Opinion
No. 87-252
Submitted May 3, 1988 —
Decided August 17, 1988.
Workers' compensation — Ability to return to former position of employment — Some evidence exists to support commission's order, when.
APPEAL from the Court of Appeals for Franklin County, No. 84AP-1045.
Appellant, Chloe Crosby, sustained injury on May 31, 1979, within the course of and arising out of her employment with appellee Department of Mental Retardation and Developmental Disabilities. Her claim was allowed by the appellee Industrial Commission for "[i]njury to all of back, head and right arm." On November 9, 1983, the claim came before a commission district hearing officer on the issue of extent of disability. The hearing officer had before him the following information: the reports of Dr. James Cameron, appellant's attending physician, certifying continued temporary total disability; the September 23, 1983 report of commission specialist Dr. Gerald S. Steiman, finding appellant capable of returning to her former position of employment with a lifting restriction of fifty pounds; and the September 23, 1983 report of commission specialist Dr. Timothy J. Fallon, finding appellant capable of returning to her former position of employment. Appellant also submitted a copy of her job description, which indicated that she was required to lift between fifty and one hundred pounds. By order dated November 9, 1983, temporary total disability compensation was terminated effective November 27, 1983, based on the reports of Drs. Steiman and Fallon, the order specifically finding that "[c]laimant is no longer temporarily and totally disabled. Claimant can substantially return to her former position of employment." This decision was affirmed by the Columbus Regional Board of Review. The Industrial Commission affirmed the board of review.
Thereafter, appellant filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County. On December 18, 1986, the court denied the writ, finding that Dr. Fallon's report constituted "some evidence" in support of the commission's orders.
The cause is now before this court upon an appeal as of right.
Michael J. Muldoon, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Cordelia A. Glenn, for appellee Department of Mental Retardation and Developmental Disabilities.
Anthony J. Celebrezze, Jr., attorney general, Helen M. Ninos and Dennis Hufstader, for appellee Industrial Commission.
The determination of disputed factual situations is within the final jurisdiction of the commission, subject to correction by action in mandamus only upon a showing of an abuse of discretion. State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47, 1 O.O. 2d 190, 139 N.E.2d 41. Where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus will not lie. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936.
Relator-appellant contends that the reports of Drs. Fallon and Steiman were defective and did not constitute "some evidence" on which the commission could rely. Her contention is not persuasive.
In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O. 3d 518, 433 N.E.2d 586, this court held that temporary total compensation may be terminated upon evidence that a claimant is capable of returning to his former position of employment. Appellant herein argues that because Dr. Steiman's report contained lifting restrictions inconsistent with her job duties, it cannot be considered "some evidence" of an ability to return to her former position of employment. This point is well-taken.
In State, ex rel. Horne, v. Great Lakes Constr. Co. (1985), 18 Ohio St.3d 79, 80, 18 OBR 117, 118, 480 N.E.2d 753, 754, "former position of employment" was defined as "the position the claimant held when he was injured." Where restrictions preclude a claimant from returning to some aspect of his former job, that report cannot be relied on as "some evidence" indicative of the ability to return to the former position of employment. State, ex rel. Evans, v. Pepsi-Cola Bottling Co. (1986), 22 Ohio St.3d 116, 22 OBR 196, 489 N.E.2d 792.
Dr. Steiman's report, however, was not the sole evidence on which the commission relied. Dr. Fallon stated that appellant "* * * would be capable of returning to her former work activities as there are no objective findings to indicate restrictions in regards to her returning to her former work activity." Appellant attacks Dr. Fallon's report on two grounds: (1) As a physical medicine specialist, Dr. Fallon was impliedly unqualified to evaluate appellant's head injury, and (2) he did not consider all allowed conditions. Neither point is well-taken.
As to the former point, appellant fails to provide evidence supporting her medical competency argument. As to the latter point, her reliance on State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 16 O.O. 3d 199, 404 N.E.2d 153, is misplaced. State, ex rel. Anderson, supra, was overruled in State, ex rel. Burley, supra, in which we held:
"The commission alone shall be responsible for the evaluation of the weight and credibility of the evidence before it. This court's role in the review of mandamus actions challenging the Industrial Commission's decision as to the extent of disability in cases involving multiple allowed conditions shall henceforth be limited to a determination as to whether there is some evidence in the record to support the commission's stated basis for its decision." Id. at 20-21, 31 OBR at 72, 508 N.E.2d at 938.
In the present case, the commission did have "some evidence" before it — Dr. Fallon's report — to support a finding that appellant was capable of returning to her former position of employment and, hence, ineligible for further temporary total disability compensation.
Appellant's contention that the commission's order did not comply with State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721, is not well-taken as the order specifically indicated that it was based on the reports of Drs. Steiman and Fallon. Pursuant to State, ex rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 11 OBR 497, 464 N.E.2d 1005, such specificity satisfies Mitchell.
The judgment of the court of appeals denying the writ is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
LOCHER, J., concurs in judgment only.