State ex rel. Walters v. Industrial Com'n, 85-26

• Decision Date: 04 December 1985
• Docket Number: No. 85-26,85-26
• Parties: , 20 O.B.R. 402 The STATE, ex rel. WALTERS, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.
• Court: Ohio Supreme Court

Page 71

20 Ohio St.3d 71

486 N.E.2d 94, 20 O.B.R. 402

The STATE, ex rel. WALTERS, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.

No. 85-26.

Supreme Court of Ohio.

Dec. 4, 1985.

Syllabus by the Court

Mandamus will issue where the record contains reliable, probative, and substantial evidence supporting a claim for permanent total disability benefits and the decision of the Industrial Commission to the contrary is based solely on a medical report where the reporting physician, during a later deposition, equivocates or contradicts his opinion concerning the extent of disability.

On April 1, 1969, relator-appellant, Frederick Walters, sustained injuries to his left arm and wrist while in the course and scope of his employment with Mid-State Paint Manufacturing Company. As a consequence of these injuries, appellant was awarded temporary total disability payments by the Industrial Commission until January 1978, after which he received temporary partial disability benefits.

In August 1981, appellant was examined by Dr. H. Lee King. Dr. King's medical report estimated appellant's employment-related impairment to be twenty-five to thirty percent. It was the doctor's opinion that this impairment, coupled with appellant's age (sixty-four), limited job experience as an unskilled manual laborer and limited educational background left appellant's " * * * chances of being gainfully employed * * * [as] nil."

Based upon Dr. King's report, appellant filed an application with the commission seeking permanent total disability benefits on December 18, 1981.

At the commission's request, appellant was examined by an orthopedic specialist, Dr. William J. McCloud. Dr. McCloud's report concluded as follows:

" * * * It is my opinion this patient does not present with medical evidence consistant [sic] with considering him permanently and totally impaired based on the injuries to his upper left extremity. I would extimate [sic] that he has a PPI [permanent partial impairment] of 40% * * *."

On June 30, 1982, counsel for appellant deposed Dr. McCloud. On cross-examination, Dr. McCloud was asked to review the earlier report of Dr. King. The following exchange then occurred between counsel for appellant and Dr. McCloud:

"Q. * * *You will note there that Dr. King has expressed the opinion that based upon this man's age, educational background, past work experience and the impairment that he found * * * that his prospect of returning back to the employment market was nil. * * *

"Would you have any reason to disagree with that conclusion expressed by Dr. King * * *?

"A. No."

On direct examination by counsel for the appellee-commission, Dr. McCloud then stated that in his opinion, appellant was not completely precluded from a substantially remunerative employment.

Later, on re-cross, counsel for appellant again asked Dr. McCloud if he agreed with Dr. King's opinion, which had taken into account the age, education, work experience and impairment of appellant. Dr. McCloud gave this answer:

"A. That answer was directed towards my response to Dr. King's evaluation, which I feel was very close to my evaluation as well, and he included both impairment and disability. From that standpoint, I agree with him."

The Industrial Commission considered appellant's motion for permanent total disability on March 22, 1983, at which time the file was referred for review, discussion and order without further hearing. On May 13, 1983, the commission issued its order denying appellant's motion, finding that appellant was not permanently and totally disabled "* * * based on the medical reports of Drs. McCloud, H. Lee King, the evidence in file and/or the evidence adduced at the hearing."

On December 28, 1983, appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, seeking to vacate the commission's order on grounds the commission abused its discretion in refusing to find him permanently and totally disabled and claiming that there was no evidence to support the order.

The court of appeals denied the writ. It reasoned that, in deposition, Dr. McCloud had merely "clarified" his report in that he adhered to his earlier conclusion that appellant was not unfit for some type of work, thus providing some evidence to support the commission's order.

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

E.S. Gallon & Assoc. and Richard M. Malone, Dayton, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet Jackson and Tyrone K. Yates, Columbus, for appellee.

CELEBREZZE, Chief Justice.

It is firmly established that the resolution of " * * * disputed factual situations is within the final jurisdiction of the Industrial Commission, and subject to correction by action in mandamus only upon a showing of abuse of discretion." State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 16, 278 N.E.2d 24 .

This court has held that when there is no evidence upon which the commission could have based its order, there is an abuse of discretion and mandamus is appropriate. State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 58, 386 N.E.2d 1109 . Conversely, where the record contains some evidence supporting the commission's finding that the claimant is not totally disabled, its findings will not be disturbed (State, ex rel. Allerton, v. Indus. Comm. [1982], 69 Ohio St.2d 396, 397, 433 N.E.2d 159 ) unless the claimant has produced "reliable, probative, and substantial" evidence to support his claim of permanent total disability. State, ex rel. Thompson, v. Fenix & Scisson, Inc. (1985), 19 Ohio St.3d 76, 482 N.E.2d 1241, syllabus. In such a case, the commission must show some evidence to the contrary which "meets such standards" in order to justify its order denying those benefits. Id.

In the instant case we note that appellant's evidence, contained in Dr. King's report, was reliable, probative, substantial and definite. In contrast, the evidence given by Dr. McCloud to support the commission's determination that appellant was not permanently and totally disabled was demonstrably not reliable, probative, or substantial because of Dr. McCloud's equivocation in deposition.

In his report, Dr. King opined that appellant's significant work-related impairment, ¹ viewed in light of his age, lack of education, and lack of job skills, left him totally unsuited for any future gainful employment. ² Dr. King's well-considered findings are factually supported and his conclusion concerning the extent of appellant's disability is reliable, probative, and substantial evidence supporting appellant's claim.

The decision of the commission, however, reflects the opinion contained in Dr. McCloud's report, in which he stated that appellant was not totally impaired. In contrast, to Dr. King's steadfast conclusion that appellant was totally disabled and hence unemployable, Dr. McCloud, subsequent to his medical report, changed his view concerning the effect appellant's impairment had on his employment prospects. For example, during deposition, Dr. McCloud first agreed with Dr. King's evaluation as to appellant's total disability, then stated that appellant was not unfit for some type of gainful employment and then again specifically agreed with Dr. King's findings as to both appellant's impairment and total disability. At worst, Dr. McCloud contradicted himself; at best, his conclusion that appellant was not totally disabled was equivocal.

This court faced a strikingly similar situation in State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 448 N.E.2d 1372. In that case, a physician examined the appellant at the commission's request and produced a report which stated that appellant was totally disabled but might be able to return to work if "motivated." We held that such an equivocal report "does not constitute evidence upon which the commission may either grant or deny appellant's application" for permanent total disability benefits. Id. at 76, 448 N.E.2d 1372. See State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 438 N.E.2d 420.

In the instant case, the physician's equivocation came at deposition, where counsel for both parties elicited Dr. McCloud's opinion as to the extent of appellant's disability. Dr. McCloud's opinions on that issue were part of the record and were admittedly relied upon by the commission. The apparent uncertainty in Dr. McCloud's position gives the commission an insufficient basis to support its order denying appellant permanent total disability benefits. ³

Accordingly, we conclude that there is reliable, probative, and substantial evidence in support of appellant's claim. While the record also contains some evidence to the contrary, it does not meet the above standards and thus cannot support the commission's denial of the claim. We therefore hold that mandamus will issue where the record contains reliable, probative, and substantial evidence supporting a claim for permanent total disability benefits and the decision of the Industrial Commission to the contrary is based solely on a medical report where the reporting physician, during a later deposition, equivocates or...