State ex rel. Milburn v. Industrial Commission

Celebrezze, C.J.,

dissenting. I am in complete agreement with Justice Brown’s observations that the reports of Drs. Casiano, Ceramella and Kraus do not constitute probative evidence on which the Industrial Commission could rely in denying appellee Milburn’s claim for temporary total disability benefits for the period beginning February 9, 1982.

I am particularly disturbed by the plurality’s reliance on, inter alia, the reports of Drs. Leven and Paquelet as supporting the commission’s order.

The plurality’s construction of its “some evidence rule” is, in my view, an unsatisfactory standard of dubious validity. See State, ex rel. Smith, v. Indus. Comm. (1986), 26 Ohio St. 3d 128, 130-134. (Celebrezze, C.J., concurring in part and dissenting in part.) The plurality’s use of the reports of Drs. Leven and Paquelet in the instant case illustrates the potential for abuse of this “some evidence” rule.

The commission’s district hearing officer, in his 1983 order denying appellee temporary total disability benefits, stated that the order was “[b]ased on the medical reports of Drs. Kraus, Casiano and Ceramella.” Apparently realizing that those reports offer only weak (at best) evidence in support of that order, the plurality has dredged up two old reports of Drs. Leven and Paquelet, predating the period of claimed disability, which it considers as “some evidence” in support of the commission’s order.

Dr. Leven examined appellee on March 13, 1981. His report on appellee’s condition at that time is of highly questionable relevance in deter*124mining appellee’s eligibility for temporary total compensation for a period beginning nearly one year later.

The doctor opined that appellee was suffering a “[temporary [partial” impairment, yet the commission’s district hearing officer subsequently found Dr. Leven’s evaluation unpersuasive. In April 1981, the commission awarded appellee temporary total disability benefits through May 1981 after expressly considering Dr. Leven’s report. If the commission itself previously found this report unconvincing in 1981, how can the plurality now rely on it to deny appellee temporary total compensation from February 9, 1982?

This sad scenario is repeated with the plurality’s embrace of the report of Dr. Paquelet, who examined appellee in September 1981. The reliability, relevance and probative value of this medical report is also suspect. The plurality glosses over Dr. Paquelet’s medical finding that appellee’s “grip is poor.” Yet surely this is a critical observation regarding a man whose job entailed lifting and handling up to 64,000 pounds of bricks per day. Dr. Paquelet’s report also characterized appellee as a man who “continues with disabling wrist pain,” a statement conveniently omitted from the plurality’s recount. Indeed, the Industrial Commission evidently had far more doubts about the value of Dr. Paquelet’s report than did today’s plurality, since the commission expressly considered the report’s medical finding but rejected its conclusion as to disability. In March 1982, the district hearing officer again ordered that appellee be awarded temporary total compensation from May 31, 1981 through February 8, 1982 after specifically considering Dr. Paquelet’s report.

The commission subsequently in 1983 denied appellee’s claim for temporary total disability benefits for the period beginning February 9, 1982, based on the later reports of Drs. Casiano, Ceramella and Kraus. It would have been patently inconsistent for the commission to have relied on the reports of Drs. Leven and Paquelet, since the commission had previously awarded compensation after acknowledging those very reports. Although such “minor ” incongruities apparently do not trouble today’s plurality, it is my belief that its misguided resurrection of these once-discarded reports as some evidence in support of the commission’s 1983 order is an embarrassment to sound rationalization.

The plurality’s de novo consideration of two such fallible and outdated reports is all the more unconscionable when one considers that the commission itself chose not to rely on them in making its determination for the period beginning February 9, 1982. Today’s decision is thus a clear signal by a faction of this court that where the specific evidence relied on by the commission does not pass even the minimal scrutiny deemed appropriate,1 *125the plurality will simply rummage through the archives until it ferrets out any other “evidence” to use in propping up the commission’s order. The use of the reports of Drs. Leven and Paquelet in the instant case demonstrates a willingness to stretch the “some evidence” rule to its outermost limits. “Some” now apparently means little more than a shred and the “evidence” need not be reliable, relevant or probative, or even current.

Because it must be assumed that those concurring in today’s judgment will delve into the file with equal zeal whether the commission has ruled in favor of the employer or the claimant, both parties henceforth should be very uneasy about any meaningful judicial review of the commission’s determination of disability. If this case is an indication, those concurring will instead embark on a mindless scavenger hunt in hopes they will find the golden scintilla of evidence they seek so that they might quickly dispense with the appeal.

For the foregoing reasons, I respectfully dissent.

Sweeney, J., concurs in the foregoing dissenting opinion.

See, e.g., State, ex rel. Hughes, v. Goodyear Tire & Rubber Co. (1986), 26 Ohio St. 3d 71, in which a plurality of this court remarked that a medical report in which a physician considers and implicitly accepts all the allowed conditions relevant to a claim before rendering a final *125evaluation with respect to impairment provides some evidence to support the Industrial Commission’s allowance or disallowance of disability claim.

Hughes attempts to set aside this court’s requirement set forth in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [16 O.O.3d 199], that medical testimony not evaluating the combined effect of two or more allowed conditions cannot constitute evidence that the claimant is not permanently and totally disabled.