State v. Industrial Commission

Clifford F. Brown, J.,

dissenting. The judgment of the Court of Appeals denying a writ of mandamus to compel the Industrial Commission to find relator permanently and totally disabled should be reversed. Therefore, I dissent.

The finding and order of the Industrial Commission that relator was not permanently and totally disabled relied upon medical reports of Drs. Turton and McCloud. This evidence has no probative value because neither doctor evaluated the combined effect of the allowed conditions in relator’s claim as required by this court’s holding in State, ex rel. Anderson, v. *400Indus. Comm. (1980), 62 Ohio St. 2d 166. The Court of Appeals correctly concluded that Dr. McCloud’s medical report cannot constitute evidence under the Anderson test, but reached a wrong decision denying relator’s claim for permanent and total disability, nevertheless. Likewise, the psychiatric report of Dr. Turton does not meet the Anderson test because he failed to evaluate relator’s allowed conditions.

The Industrial Commission in response to a request for admissions stated that Drs. Ridgeway, Castetter and Korb each considered relator permanently and totally disabled. Dr. Goold, a psychiatrist, diagnosed only a depressive neurosis and gave no opinion as to permanent and total disability.

Thus the factual posture of this case is one where the only probative, reliable evidence standing uncontradicted by any other lawfully cognizable evidence is that of Drs. Ridgeway, Castetter and Korb that relator is permanently and totally disabled.

The Industrial Commission abused its discretion in finding relator not permanently and totally disabled. The relator was entitled as a matter of clear right to a writ requiring the commission to find relator permanently and totally disabled, and to award him benefits accordingly.

This case is factually similar to the case of State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165, and for the same reason as expressed in my dissent therein, at pages 170 et seq., the meaningless, rubber stamp “some evidence” test used to validate unjust decisions of the Industrial Commission, as in the case here, should be eliminated from Ohio case law. The so-called “some evidence” test is an abdication of the judicial function to the Industrial Commission, containing a message from this court to the commission that “anything goes.” I will not be part of such a rubber stamp action.