State ex rel. Hughes v. Goodyear Tire & Rubber Co.

Clifford F. Brown, J.,

concurring in judgment only. I concur in today’s judgment on the basis that there is sufficient probative, credible and competent evidence to support the commission’s order denying appellant’s application for permanent total disability benefits. However, I cannot concur with the majority’s analysis for the following reasons.

First, I must again voice my vigorous disapproval of the majority’s unnecessary use of the “some evidence” phraseology. I have expressed my aversion for this meaningless jargon on many occasions on the grounds that the standard has “degenerated to the level where judicial review in a mandamus action is a rubber stamp of approval for any unreasonable, captious and unjust Industrial Commission decision * * *.” State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165, 174 [22 O.O.3d 400] (Clifford F. Brown, J., dissenting). See, also, Meeks v. Ohio Brass Co. (1984), 10 Ohio St. 3d 147, 149-150 (Clifford F. Brown, J., concurring), and cases cited therein. I strenuously object to the continued use of this senseless jargon which has endeared itself to those members of this court who fondly envision a world where workers “know their place” and bureaucrats reign unquestioned.

I further object to the majority’s attempted emasculation of this court’s 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], In Anderson, this court held, at 168, that “[w]here the issue before the commission is whether a claimant is permanently and totally disabled 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.” The majority today cleverly sidesteps this holding and attempts to dilute it by stating that “reports which consider and impliedly accept all the allowed conditions relevant to the claim before rendering a final evaluation with respect to impairment *76are ‘some evidence’ to support a commission allowance or disallowance of a permanent total disability claim.” (Emphasis added.) This statement, which the majority characterizes as its attempt to “clarify and resolve the difficulties engendered in the application of Anderson,” is actually a brazen effort to relax the standard of review to the point where there is no review at all. I can imagine the delight with which employers will greet the word “impliedly” as used above, which is so wonderfully vague and flexible that any report can be twisted to fit.

A similar, equally noxious, attempt is made by the majority opinion to dismantle State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St. 2d 55 [11 O.O.3d 216], wherein this court held that a non-examining physician must expressly adopt the findings, but not necessarily the opinion, of one or more examining physicians in order for his report to constitute evidence in support of a subsequent order of the commission. This holding represents simple logic: If a physician has not examined the claimant himself, he must expressly adopt the findings of one who has, or his opinion has no basis. As with Anderson, the majority opinion today attempts to dilute Wallace by replacing the requirement of express adoption with some sort of “adoption by implication” standard. Again, the phrase “by implication” is conveniently obscure, and therefore is tailor-made to suit the majority’s purpose of destroying meaningful review in this court.

These attempts to deprive Anderson and Wallace of their vitality are simply another example of the concerted effort by certain justices on this court to clutter the claimant’s path with as many obstacles and stumbling blocks as their fertile imaginations can devise.

For these reasons, I am compelled to concur in judgment only.