State ex rel. Zamora v. Industrial Com'n of Ohio, 87-993

Decision Date16 August 1989
Docket NumberNo. 87-993,87-993
Citation543 N.E.2d 87,45 Ohio St.3d 17
PartiesThe STATE, ex rel. ZAMORA, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant, et al.
CourtOhio Supreme Court

Gallon, Kalniz & Iorio Co., L.P.A., and William R. Menacher, Toledo, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Helen M. Ninos and Donald R. Ford, Jr., Columbus, for appellant.

PER CURIAM.

The commission based its denial of permanent total disability compensation particularly on the reports of Dr. Brown and Dr. Kogut. The court of appeals rejected Dr. Brown's report as "some evidence" to support the commission's decision because it did not evaluate the combined effect of Zamora's physical and psychiatric conditions, as required by State, ex rel. Anderson, v. Indus. Comm., supra. It rejected Dr. Kogut's report for the same reason and because " * * * his opinion was, at least in part, rejected when the psychiatric condition was recognized by the Industrial Commission." Before this court, the commission points out that State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, has overruled Anderson and the combined-effects doctrine. Thus, the commission argues, the Brown and Kogut reports constitute some evidence to support its finding against permanent total disability with regard to Zamora's physical and mental impairments. We agree that, with the Anderson impediment removed, the Brown report constitutes some evidence of the lack of a permanent and total physical impairment. However, we agree with the court of appeals that the Kogut report, even with the Anderson impediment removed, cannot constitute some evidence against mental impairment.

The Kogut report was available to the regional board of review before it allowed the amendment to the claim adding the psychiatric condition. Dr. Kogut concluded that Zamora suffered from moderate impairment from depression, that the depression preceded his 1963 physical injury, and that the contribution of the 1963 injury to his current depression was minimal. The regional board implicitly rejected this report when it allowed the claim expressly on the Mann letter of November 8, 1984, which also found a moderate depression, but concluded that Zamora was permanently and totally disabled. We agree with the court of appeals that it would be inconsistent to permit the commission to reject the Kogut report at one level, for whatever reason, and rely on it...

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