State ex rel. Hughes v. Industrial Commission

Locher, J.

The instant cause presents two questions: (1) Did the appellate court act improperly in issuing a writ of mandamus which compelled the commission to adopt either of two options and (2) did the commission abuse its discretion in denying appellant’s motion for permanent and total disability? We answer both queries in the affirmative.

I

In order for a writ of mandamus to issue, the party seeking the writ must prove that the official against whom the writ is directed is under a “clear legal duty” to perform the desired act and, thus, that the relator has a “clear legal right” to the relief sought for which no “plain and adequate” legal remedy ex*59ists. State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St. 2d 42 [15 O.O.3d 53]; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141 [40 O.O.2d 141]. Consequently, the Court of Appeals’ issuance of a writ of mandamus offering alternate forms of relief is incompatible with the very existence of the conditions necessary for a writ to issue.

An official subject to a writ of mandamus is either obligated to perform the requested act, or he is not so duty-bound. A writ of mandamus brooks no middle ground. Thus, the Court of Appeals erred in issuing its Janus-like writ. Whether any writ should have issued at all may only be determined by ascertaining the propriety of the commission’s denial of appellant’s motion for permanent total disability.

II

Appellant argues that the commission abused its discretion by denying his motion for permanent total disability. We agree.

This court observed, in State, ex rel. Anderson, v. State (1979), 60 Ohio St. 2d 106, 108 [14 O.O.3d 339], that: “* * * It is well established that mandamus will not lie where there is some evidence to support the finding of the Industrial Commission. However, where there is no evidence upon which the commission could have based its factual conclusion an abuse of discretion is presented and mandamus becomes appropriate.* * *” Appellant asserts, and we find, that, as the commission had before it no evidence upon which its decision was based, mandamus lies.

In the instant cause, only two physicians examined appellant as to both his physical and psychiatric disabilities.1 Both found him to be permanently and totally disabled. No examining physician who found him otherwise considered both conditions. The court, in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166, 168, [16 O.O.3d 199] held that “* * * where the issue before the commission is whether a claimant is permanently and totally dis-' abled on account of the combined effect of two or more allowed conditions, medical testimony not evaluating the combined effect of those conditions cannot constitute evidence that the claimant is not permanently and totally disabled.” As the record evidences a notable absence of medical testimony which evaluates both of appellant’s conditions and finds him to be other than permanently and totally disabled, the commission clearly abused its discretion in denying relator’s motion.

This court’s decision in State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [22 O.O.3d 400], does not compel a contrary result. In Teece, supra, at 169, we stated that “[t]he holdings in State, ex rel. Anderson, v. Indus. Comm. [(1980) 62 Ohio St. 2d 166 (16 O.O.3d 199)] and State, ex rel. Wallace, v. Indus. Comm. [(1979), 57 Ohio St. 2d 55 (11 O.O.3d 216)], supra, do not require the commission to accept the factual findings stated in’ a properly qualified medical report at face value and unquestioningly adopt them as *60those of the commission.” It has been suggested that, under the Teece ruling, the reports of Drs. Cordell, McCloud and Praul, though not evidence that appellant is other than permanently and totally disabled, nonetheless can be used to evaluate the credibility of the reports which do find him to be so. Our decision in Teece, however, offers no guidance in the present case.

In Teece, the only medical report that comported with the standard enunciated by this court, in State, ex rel. Anderson, v. Indus. Comm., supra, found the claimant to be permanently and totally disabled on the basis of his physical infirmities alone. Thus, in Teece, we found proper the commission’s reliance on a report which found claimant’s physical -injuries to be less than permanently and totally disabling to deny his motion for permanent total disability. In the case at bar, no testimony exists which could effectively undermine, as did the one report in Teece, the credibility of two medical reports, i.e., those of Drs. Bolz and Giray, both of which evaluated appellant’s physical and psychiatric conditions and found him to be permanently and totally disabled.

Dr. McCloud’s report, in which he concluded that appellant was only partially physically disabled, is insufficient to counter the reports of Drs. Bolz and Giray, whose recommendations were based on an evaluation of appellant’s psychiatric condition as well as his physical condition. Similarly, the illations of Drs. Cordell and Praul that appellant is only partially psychiatrically disabled are inadequate to discredit Drs. Bolz’s and Giray’s findings of a substantial physical disability. Indeed, appellant could only be shown to be no more than partially disabled by viewing the reports of Drs. Cordell, McCloud and Praul as a single recommendation. To so construe them, however, would countenance the very result that Anderson forbids—the mixing and matching in crazy-quilt fashion of physical and psychiatric findings made by various physicians either to establish or deny that claimant is permanently and totally disabled.2 A report that a claimant is permanently and totally disabled cannot, consonant with Anderson, be refuted by combining one physician’s conclusion that claimant is only 15 percent physically disabled with another’s that claimant is only 15 percent psychiatrically disabled and is, thus, merely 30 percent disabled.

Based upon the above analysis, we find'improper both the commission’s denial of appellant’s motion for permanent total disability and the Court of Appeals’ issuance of a writ of mandamus in the alternative. Accordingly, we order that a writ of mandamus issue, ordering the commission to grant appellant’s motion and award him the appropriate compensation.

Judgment affirmed, as modified.

*61Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. W. Brown, J., concurs in the judgment. Holmes and Krupansky, JJ., dissent.

It is clear from the record that the Court of Appeals erred in finding that Dr. Bolz’s conclusion was based solely on appellant’s physical condition.

In Anderson, we overturned a decision wherein the appellate court had apparently combined the reports of various physicians as to the percentage of the claimant’s physical and psychiatric disabilities in order to arrive at a finding that she was not permanently and totally disabled.