State ex rel. Thompson v. Fenix & Scisson, Inc.

• Decision Date: 09 August 1985
• Docket Number: No. 84-806,84-806
• Citation: 19 OBR 117,482 N.E.2d 1241,19 Ohio St.3d 76
• Parties: , 19 O.B.R. 117 The STATE, ex rel. THOMPSON, Appellant, v. FENIX & SCISSON, INC.; Industrial Commission, of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 76

19 Ohio St.3d 76

482 N.E.2d 1241, 19 O.B.R. 117

The STATE, ex rel. THOMPSON, Appellant, v. FENIX & SCISSON, INC.; Industrial Commission, of Ohio, Appellee.

No. 84-806.

Supreme Court of Ohio.

Aug. 9, 1985.

Syllabus by the Court

Where the record before the Industrial Commission contains reliable, probative, and substantial evidence in accordance with the law to support a factual finding and determination that a claimant is permanently and totally disabled, and there is no evidence to the contrary which meets such standards, a determination of the commission that the claimant is not permanently and totally disabled is an abuse of discretion by the commission for which the claimant will be afforded relief in an action in mandamus.

On November 28, 1959, relator-appellant, James Thompson, sustained an injury in the course of his employment with respondent Fenix & Scisson, Inc. His claim was subsequently recognized by the respondent-appellee, Industrial Commission of Ohio ("commission"), for "abrasions and contusions to the head, back and shoulder area, cervical spine," and appellant was awarded benefits for temporary total and permanent partial disability. In 1979, appellant's application for allowance of an additional psychiatric condition was recognized for "conversion reaction."

On May 8, 1978, appellant filed a motion for permanent total disability benefits, submitting a medical report by Dr. Robert Mattill stating that appellant "will continue to be disabled with low back pain and will not be able to return to work." A later report by Dr. David H. Procter in 1981 was subsequently submitted by appellant, stating that he would "never" be able to resume either light or regular work, and that he is "permanently disabled."

In 1980, the commission referred appellant to Dr. Jack Borders for an evaluation of his psychiatric condition. Dr. Borders, based on this condition only, found appellant twenty-five percent permanently and partially disabled. A further medical report by Dr. William J. McCloud in 1981 found no evidence of permanent total disability based on appellant's physical condition alone.

In an order dated February 7, 1983, the commission denied appellant's motion for permanent total disability benefits. The commission expressly based its findings and order on the medical reports of Drs. Borders and McCloud, and on the additional medical reports of Drs. Wise, Cordell and Hardie.

Appellant filed an action in mandamus in the court of appeals, requesting a writ directing the commission to find him permanently and totally disabled. The court of appeals denied the writ. In so holding, the court rejected appellant's argument that the medical evidence relied upon by the commission failed to evaluate the combined effect of his two allowed conditions, and that it therefore could not constitute evidence that appellant was not permanently and totally disabled. The court reasoned that the evidence submitted by appellant alleged that he was disabled as a result of only one of his allowed injuries (the physical condition) and not as a result of the combined effect of that condition and his other allowed condition, the psychiatric problem known as conversion reaction. Therefore, the only issue before the commission was whether appellant was permanently and totally disabled as a result of his physical injury alone, and the commission was entitled to rely upon medical evidence evaluating the effects of that allowed condition only.

The cause is now before this court upon an appeal as of right.

Michael J. Muldoon, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Marcia J. Harris, Columbus, for appellee.

CLIFFORD F. BROWN, Justice.

Appellant urges that the commission's order denying him permanent total disability benefits constitutes an abuse of discretion as it is unsupported by the evidence. We agree.

This court has repeatedly held that where there is no evidence upon which the commission could have based its factual conclusion, an abuse of discretion exists and mandamus becomes appropriate. See, e.g., State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 58-59, 386 N.E.2d 1109. Because the evidence before the commission in the instant cause, upon which the commission relied to reach its erroneous decision, consisted entirely of medical reports which are legally deficient to support the conclusion that appellant is not permanently and totally disabled, no evidence existed upon which the commission could have based such conclusion. Thus, the commission abused its discretion, and a writ of mandamus will issue.

The commission in its order dated February 7, 1983, based its decision denying appellant's motion for permanent and total disability on the insufficient medical reports of five physicians, using this language: "This finding * * * is based on the medical reports of Drs. Wise, Borders, Cordell, McCloud, Hardie, the evidence in file and/or evidence adduced at the hearing." With the exception of the report of Dr. Hardie, to be discussed infra, none of the reports cited by the commission in support of its order attempts to evaluate the combined effect of appellant's two allowed conditions in determining whether he is permanently and totally disabled. Therefore, these reports cannot constitute evidence that appellant is not permanently and totally disabled. ¹ See State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 168-169, 404 N.E.2d 153 .

Moreover, the sole remaining report cited by the commission, that of Dr. Hardie, a non-examining physician to whom the commission referred all the records for review, deviates from the evidentiary standard enunciated in Wallace, supra, and State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 429 N.E.2d 433 . ² These cases require that a non-examining physician expressly adopt the factual findings of one or more examining physicians, whose opinions appear in the record, as the basis of his own opinion. This standard also applies to medical opinions in combined-effect claims, where the examining physicians evaluate only one allowed condition. State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 75, 448 N.E.2d 1372. Dr. Hardie did not expressly adopt the factual findings of any examining physician, and therefore his report cannot constitute evidence upon which the commission may rely.

Thus, it is apparent that the commission relied entirely on medical reports which may not legally be termed evidence under Wallace and Teece, supra.

We disagree with the court of appeals' statement that "the issue before the commission was whether relator [appellant] was permanently and totally disabled as the result of his physical injury alone, * * * " and consequently reject the erroneous conclusion flowing therefrom that "the commission was warranted in relying upon medical evidence evaluating the effects of that allowed condition only." These statements of the court of appeals completely disregard the finding of the commission dated November 27, 1979, that appellant's "conversion reaction be allowed in this claim. This order is based on the medical evidence of Drs. Rogers and Cordell." This conversion reaction is descriptive of appellant's psychiatric condition.

In addition, the court of appeals failed to recognize that the report of Dr. Mattill predated the allowance of appellant's claim for conversion reaction. Moreover, Dr. Procter's report described appellant's present condition as "severe back & neck pain; nerves," which indicates that he considered appellant's psychiatric condition, combined with his physical disability, in formulating his opinion that appellant was permanently and totally disabled.

It is incorrect to criticize the decision we reach by stating that "[t]he * * * only reason to conjure today's result is the assumed 'invulnerability' of Dr. David H. Procter's report." Dr. Procter's report is only one element to support the invulnerability of our result. His report dated November 6, 1981, describing claimant's present condition as "severe back & neck pain; nerves," obviously refers both to a physical and a psychiatric condition. Dr. Procter's report describing that part of claimant's disability associated with nerves or psychiatric condition is further corroborated by the medical report of Dr. Sheldon Rogers dated April 26, 1979, that "[t]his individual appears to be suffering from a conversion reaction." On November 27, 1979, the commission made an order recognizing claimant's conversion reaction in this language: "That Conversion Reaction be allowed in this claim. This order is based on the medical evidence of Drs. Rogers and Cordell." Thus, the reports of Drs. Rogers and Cordell, as well as the order of the commission, also establish claimant's psychiatric condition or conversion reaction (nerves). It is a desperate groping at straws to assert that our decision today rests solely on the report of Dr. Procter, and to strip that report of its true meaning and significance.

Thus, the issue of the combined effect of appellant's two allowed conditions was clearly before the commission. It follows that the commission's reliance on medical evidence evaluating the effects of only one allowed condition, in reaching a decision finding appellant was not permanently and totally disabled, constituted an abuse of discretion. Anderson, supra, and Norman, infra. Mandamus thus becomes appropriate. Id.

We held in State, ex rel. Anderson, v. Indus. Comm., supra, that where the issue before the commission is whether a claimant is permanently and totally disabled on account of the combined effect of two or more allowed conditions, medical testimony not evaluating the combined effect of those conditions can not constitute evidence that the claimant is not permanently and totally disabled. That is still good law, and therefore applies to discrediting the medical reports upon which the commission...