State ex rel. Jeffrey v. Industrial Commission

Holmes, J.,

dissenting. I must dissent from the majority’s opinion because I do not feel that the Industrial Commission’s order was an abuse of discretion. Granting a writ of mandamus is clearly inappropriate where the record contains some evidence in support of the commission’s findings. State, ex rel. G F Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St. 2d 446, 447 [20 O.O.3d 379], citing State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St. 2d 77 [14 O.O.3d 275]; State, ex rel. Davis, v. Indus. Comm. (1979), 60 Ohio St. 2d 160 [14 O.O.3d 402]; State, ex rel. Republic Steel, v. Indus. Comm. (1980), 61 Ohio St. 2d 193 [15 O.O.3d 216]; State, ex rel. Dodson, v. Indus. Comm. (1980), 62 Ohio St. 2d 408 [16 O.O.3d 439].

The commission ordered affirmance of the regional board of review’s order to allow temporary partial compensation at twenty-five percent. It based such order on the reports of Drs. Fallon and Friedman. This court has consistently held that a simple recitation of which reports the commission has relied on is sufficient to satisfy the rule of State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, that commission orders must state which evidence the commission relied upon in reaching its conclusion. See State, ex rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St. 3d 184, 185 (the commission’s mentioning of medical reports of four doctors meets the Mitchell requirement); State, ex rel. Burdette, v. Dayton Walther Corp. (1984), 14 Ohio St. 3d 29 (commission’s statement that its order was “ ‘based on the reports of Drs. Chinn and Graham, evidence in the file and evidence adduced at the hearing’ ” [id. at 29-30] did articulate the evidence relied on by the commission).

It is clear that the medical reports of Drs. Friedman and Fallon provide some evidence in support of the commission’s decisions. Dr. Friedman’s initial opinion that appellant was temporarily totally disabled, in a report dated October 17, 1983, addressed only prior injuries appellant had received while working for a former employer. In that claim, No. 81-5991, appellant had been allowed an award of five percent permanent partial disability (September 27, 1982). Upon reconsideration (decision of November 17, 1982) a ten percent permanent partial disability for injuries to upper and lower back was awarded; and, by additional order dated *7March 30,1983, the claim was allowed for right shoulder strain and tear of tendon cuff. Although these allowances have never been appealed, the hearing officer’s order dated July 13, 1983, under the claim related to the more recent injury, No. 82-17094, ordered appellant to undergo a COLSP exam under both claim numbers and then to reset both files for hearing. This state of the record makes it unclear which injuries are at issue and, thus, which medical reports are relevant to the case sub judice. However, this October 17, 1983 report declaring appellant to be temporarily and totally disabled, upon which the majority relies to conclude that the evidence does not support the commission’s findings, dealt only with the first claim, No. 81-5991, and clearly is not relevant to the instant appeal of claim No. 82-17094.

In a later report, dated December 6, 1983, Dr. Friedman does address both the prior and more recent injuries. There, not only does he opine that the prior injury (that he once believed to be a temporary total disability) now amounts to only a permanent partial impairment of twenty percent, but he also believes that the later injury, which may include some of the prior back injury, resulted in permanent partial impairment of twenty-five percent.3 An even later report by Dr. Friedman implies appellant could return to work.4 These reports, even without Dr. Fallon’s opinion, based on a September 1983 examination, that appellant was “not under temporary total impairment,” but only a twenty percent permanent partial impairment,5 surely provide some evidence supporting the commission’s finding that appellant has a partial disability of twenty-five percent. It is important to note that the mere use of the medical term “impairment” does not limit the value of his opinion as to “disability,” i.e., that appellant *8“could return to his former job activities.” See Meeks v. Ohio Brass Co. (1984), 10 Ohio St. 3d 147, 148-149; and State, ex rel. Dallas, v. Indus. Comm. (1984), 11 Ohio St. 3d 193. Both Drs. Friedman and Fallon were of the opinion that appellant could return to his former employment.

While the medical reports conflict as to the extent of appellant’s disability, the commission’s resolution of such factual matters is subject to reversal by mandamus action only upon a showing of abuse of discretion. State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St. 2d 15, 16 [58 O.O.2d 70]. Nothing in the commission’s order allowing the twenty-five percent disability even approaches an abuse of discretion.6 The majority’s conclusion to the contrary is merely a substitution of its own judgment for that of the commission, prohibited by this court’s ruling in State, ex rel. Marshall, v. Keller (1968), 15 Ohio St. 2d 203, 205 [44 O.O.2d 184], Its additional argument that the commission’s order is internally inconsistent is equally unpersuasive. Allowance of an appeal is not axiomatic to ruling in favor of appellant, as an appellant has no right to judgment merely because his appeal is allowed.

Accordingly, I would affirm the judgment of the court of appeals and deny the writ requested.

Locher and Wright, JJ., concur in the foregoing dissenting opinion.

Dr. Friedman’s report, dated December 6, 1983, concerns claim No. 81-5991, not here at issue, and No. 82-17094, with their respective dates of injury of January 27, 1981 (Eagle Crusher Co.) and July 22, 1£)82 (Crestline Auto Wrecking Co.). It opines the following:

“Based on lower back injury, I would place his permanent partial impairment of at least 25% and of the right shoulder strain and right shoulder tendon cuff tear I would place his permanent partial impairment of 20%.”

Dr. Friedman’s letter dated April 12, 1984 states that:

“I still feel the need for a CAT scan and a myelogram by a competent neurosurgeon or orthopedic surgeon to rule out the possibility of a herniated disc would be indicated first before he could return to his regular duty which requires heavy lifting.”

Dr. Fallon’s report dated September 9, 1983 provides that:

“From the standpoint of allocation of the impairments it would be my feeling that due to the impairment which occurred in 1981 — claim number 81-5991 that he would have a 15% permanent partial impairment. The LS strain which was super-imposed on a prior low back injury in the second claim or claim no[.] 82-17094 would result in an impairment of some 5% additionally.”

Such expert conclusions provide not only notice of the commission’s reasons for denial of total disability but also establish the physician’s awareness of the two claims and injuries related to each. It is for the commission to determine the credibility and the weight to be given to submitted, relevant evidence. State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165, 169 [22 O.O.3d 400].

It may be an abuse of discretion for the commission to order “temporary partial” disability benefits as R.C. 4123.56 provides for temporary disability compensation only when such disability is total, State, ex rel. McDaniel, v. Indus. Comm. (1984), 15 Ohio App. 3d 55, and R.C. 4123.57 seems to provide for partial disability only when such is permanent. See State, ex rel. Brown, v. Indus. Comm. (1981), 3 Ohio App. 3d 273. However, this issue is not addressed by the majority and it is sufficient for purposes of this dissent to note that this court upheld an award of temporary partial disability benefits in State, ex rel. Petros, v. Connor (1984), 12 Ohio St. 3d 176, 178. See, also, the commission’s Medical Examination Manual of October 5, 1981, at vi.