Opinion
No. 79-188
Decided December 12, 1979.
Workers' compensation — Motion for permanent and total disability — Denial by commission abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
On March 11, 1972, John J. Anderson, the appellant, injured his back in the course of his employment with the Ohio Youth Commission while breaking up a fight. His workers' compensation claim was allowed for "lumbar discognic syndrome."
On March 27, 1974, appellant filed an Application for the Determination of the Percentage of Permanent Partial Disability with the Industrial Commission, an appellee herein. He was examined by Dr. R.J. Hansell of the Bureau of Workers' Compensation Medical Section who found that appellant suffered an eight percent permanent partial disability. Dr. Beryl Oser, appellant's treating physician, recommended that he be found 55 to 60 percent permanent partially disabled. On January 14, 1975, the commission awarded appellant 30 percent permanent partial disability.
On March 11, 1975, appellant filed a motion with the Bureau of Workers' Compensation requesting that his claim be allowed for a further condition described as "severe anxiety neurosis." Accompanying the motion was a report from Dr. Saim Giray, a psychiatrist. In his report, Dr. Giray diagnosed a "severe anxiety neurosis" and estimated a 50 percent permanent partial disability. The bureau granted the motion on April 3, 1975, finding that appellant's anxiety neurosis was the direct and proximate result of his injury on March 11, 1972. Pursuant to appellant's motion, the commission, on June 4, 1975, increased appellant's percentage of permanent partial disability to 80 percent.
On November 17, 1975, appellant filed a motion with the commission requesting that he be found permanently and totally disabled. He also submitted a report from Dr. Giray who concluded that appellant was permanently and totally disabled "[c]onsidering the severity and fixation degree of this claimant's neurosis along with his continuing physical residuals***." The commission referred appellant to Dr. Thomas T.F. Tsai, also a psychiatrist. He concluded that appellant was "suffering from severe Depressive Anxiety Neurosis with much anger and hostility due to his basic aggressive personality." He recommended that appellant be found permanently and totally disabled if his physical disability was over 20 percent. The commission then referred the claim file to Dr. Lon Cordell, Ph. D., a psychologist on its medical staff, for a peer review report. Dr. Cordell did not personally examine appellant. In his report, however, he noted that Dr. Tsai specifically stated that appellant's severe depressive anxiety neurosis is due to his basic aggressive personality, but did not state that the aggressive personality is the result of his industrial injury. Dr. Cordell then noted that an aggressive personality is the result of a "lifetime development." Although not concluding whether appellant is permanently and totally disabled due to his industrial injury, Dr. Cordell recommended that the commission refer appellant to another psychiatrist for further examination. The commission scheduled another examination to be performed by Drs. Parker and Oliver on May 23, 1977. Upon the advice of counsel, appellant refused to submit to another examination.
On August 31, 1977, the commission denied appellant's motion finding from proof of record that he is not permanently and totally disabled. The commission's order stated "[t]he finding and order is based on the medical reports of Dr. R.J. Hansell, Dr. Thos. Tsai, Dr. Lon Cordell, evidence in the file and evidence adduced at the hearing."
Appellant then filed a complaint in mandamus in the Court of Appeals, alleging the order of the commission constitutes an abuse of discretion. The writ was denied.
The cause is now before the court upon an appeal as of right.
Mr. John R. Workman, for appellant.
Mr. William J. Brown, attorney general, and Mr. James R. Piercy, for appellees.
In substance, appellant alleges that the commission abused its discretion in denying his motion for permanent and total disability. 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. State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55.
We agree with appellant that the commission's conclusion that he is not permanently and totally disabled could not be based on any evidence before the commission. Dr. Cordell's report cannot constitute such evidence because he did not conclude whether appellant is permanently and totally disabled. See Wallace, supra. His report was merely a recommendation that the commission order another psychiatric examination. In addition, Dr. Giray found appellant to be permanently and totally disabled; Dr. Tsai found that appellant suffered from severe depressive anxiety neurosis and would be permanently and totally disabled if his physical disability were greater than 20 percent; and Dr. Hansell examined appellant before his psychiatric disability was recognized and found permanent partial disability.
Appellees also reach the conclusion that the commission had the discretion to deny appellant's motion for permanent and total disability pursuant to R.C. 4123.53 because he refused to submit to an examination ordered by the commission. The commission's order, however, states that it denied appellant's motion because it found from proof of record that he was not permanently and totally disabled. It does not mention that he failed to submit to an examination. Further, R.C. 4123.53 states that if a claimant refuses to submit to an examination ordered by the commission "his right to have his claim for compensation considered***shall be suspended during the period of such refusal***." (Emphasis added.) Denial of a claim cannot be equated with suspension of consideration of that claim.
Accordingly, the judgment of the Court of Appeals is reversed, and the writ of mandamus allowed ordering the commission to vacate its August 31, 1977, order and to proceed with appellant's motion for permanent and total disability.
Judgment reversed and writ allowed.
CELEBREZZE, C.J., HERBERT, P. BROWN, SWEENEY and LOCHER, JJ., concur.
W. BROWN, J., dissents.
HOLMES, J., not participating.