State ex rel. Hughes v. Industrial Commission

Clifford F. Brown, J.

concurring. I concur in modification of the judgment of the Court of Appeals so that a writ of mandamus will issue which orders the award to relator of permanent total disability without affording the commission any alternative. In affirming the judgment as modified, the majority opinion reaches a just result and makes an excellent analysis bottomed on the principle that Dr. McCloud’s medical report, because it evaluated only the physical infirmity and not the psychiatric condition, was “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.” Thus, Dr. McCloud’s report finding partial disability could not be considered evidence on which the commission may rely to rebut the other reports’ findings of permanent, total disability.

In reaching a just result in this case a lame effort is made to distinguish this court’s per curiam holding in State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [22 O.O.3d 400]. In this case, we do not permit use of the inadequate, insufficient medical reports of Drs. Lon Cordell, Edward J. Praul and W. J. McCloud, because they do not meet the standards of State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [16 O.O.3d 199]3 to test the reliability and credibility of the medical reports of Drs. Bolz and Giray which do meet the standards of Anderson. We did just the opposite in Teeee, supra, when the majority permitted medical reports of three'doctors which did not meet the standards of Anderson to test the reliability and credibility of the only report which was based on the combined effects of two allowed conditions.4

*62We would serve the cause of justice better if we are forthright and overrule Teece. It is bad law. In its place we should fashion the following rule: 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 relator is permanently and totally disabled, and there is no evidence to the contrary which meets such standards, a determination of the commission that relator is not permanently and totally disabled is an abuse of discretion by the commission for which the relator will be afforded relief in an action in mandamus.

Drs. Cordell and Praul failed to evaluate the allowed physical disability of claimant. Dr. McCloud failed to evaluate the allowed psychiatric disability.

The following excerpts from the per curiam opinion in Teece reduce to the principle that reports can at the same time be irrelevant evidence and relevant evidence:

“The Court of Appeals denied the writ. The court held that the report of Dr. Kessler constituted evidence upon which the commission could have based its decision. The court further found, however, that while the reports of Drs. Giray, McCloud and Horwitz were insufficient to form the basis for the commission’s orders herein, they were nonetheless sufficient to evaluate the credibility and reliability of the report by Dr. Kessler. [Teece, at 166.]
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“This court agrees with appellant that the report of Dr. Kessler constitutes evidence that the claimant is permanently and totally disabled since it complied with the requirements set forth in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [16 O.O.3d 199] * * *. We further agree with appellant that, based on State, ex rel. Anderson, v. Indus. Comm., the medical report of Dr. McCloud cannot constitute evidence to support the commission’s finding that appellant is not permanently and totally disabled, for the report failed to consider her psychological condition which had been previously allowed by the commission. [Id. at 167-168.)
*62"While the evidence in the reports of Drs. McCloud, Horwitz and Giray is insufficient in itself to support or deny a claim for permanent and total disability, it is nonetheless relevant and admissible. [Id. at 168.]
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“Thus, the Court of Appeals did not err in finding that the commission could use the factual findings contained in these reports to test the credibility and reliability of the report of Dr. Kessler, the only report herein that complied with the test set forth in State, ex rel. Anderson, v. Indus. Comm, scad State, ex rel. Wallace, v. Indus. Comm., supra, that appellant was permanently and totally disabled.* * * [Id. at 168-169.]”
This absurd rationalizing closely approximates the classic definition of “doublethink” defined in George Orwell’s 1984, at page 215, as the power to hold two contradictory beliefs simultaneously and accept both of them.