Opinion
No. 81-1822
Decided July 28, 1982.
Workers' compensation — Application for permanent and total disability — Commission's order unsupported by evidence, when.
IN MANDAMUS.
Relator, Gladys Jennings, was injured in 1959, while in the course and scope of her employment with respondent Toledo City Board of Education. Her workers' compensation claim was allowed, recognizing the condition of sprained back and right shoulder. By 1977, relator was found to have a permanent partial disability of 50 percent for this injury.
In 1979 relator filed an application seeking compensation for permanent total disability with respondent Industrial Commission of Ohio. In support of her application, relator submitted the reports of Drs. Joseph A. Gosman and Thomas J. Williams. Both doctors examined relator and concluded that she was permanently and totally disabled.
At the request of the commission, relator was examined by Dr. William J. McCloud, who submitted a report concluding that relator was not permanently and totally disabled. Thereafter, relator was granted leave to depose Dr. McCloud, and the following is an excerpt from his deposition:
"Q. * * * [D]o you have an opinion whether she was unfit to work in any substantially remunerative employment when you examined her considering the extent of her injury, age, her education and more important the fact that she's always done some work requiring moderate to heavy lifting?
"A. I think in consideration of those things you have described to me, then one must reach a conclusion that she would not be capable of resuming those work activities.
"Q. In your opinion, since she was 72 years old, was she a candidate for rehabilitation?
"A. No.
"Q. On the basis of permanent total disability which, as you know, is an administrative function and separate and different from 100 percent medically impaired, do you believe the Claimant is 100 percent permanently and totally disabled?
"A. Yes."
Based on the foregoing, the reports of Drs. Gosman and Williams, the hearing examiner recommended that relator be found permanently and totally disabled. On October 22, 1981, the commission denied relator's application based on "the evidence in the file and/or the evidence adduced at the hearing."
Relator then instituted this action in mandamus requesting that a writ issue to compel the commission to enter an order finding relator to be permanently and totally disabled. She alleges that there was no evidence upon which the commission could have based its order.
Messrs. Wagoner, Steinberg, Chinnis Smith and Mr. Michael D. Dorf, for relator.
Mr. William J. Brown, attorney general, and Mr. James E. Davidson, for respondent Industrial Commission.
Messrs. Cooper, Straub, Walinski Cramer and Mr. T. Scott Johnston, for respondent Toledo Board of Education.
"Where there is no evidence upon which the commission could have based its factual conclusion an abuse of discretion is present and mandamus becomes appropriate. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9 [58 O.O.2d 66]." State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39, 42 [13 O.O.3d 30, 31].
Relator argues that upon deposition, Dr. McCloud repudiated the conclusion in his report and thus the report cannot constitute evidence to support the order of the commission. We agree.
The purpose of permanent total disability benefits is to compensate a claimant for impairment of earning capacity. State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 282 [71 O.O.2d 255, 258]. The Medical Examination Manual issued by the commission's Medical Section pursuant to R.C. 4121.38(B)(2), states, at page vi, that permanent total disability "* * * is established when the injury has caused the injured worker to be unfit for sustained remunerative employment."
R.C. 4121.38 provides in part:
"(B) The medical section shall:
"* * *
"(2) Issue a manual of commission policy as to impairment evaluation so as to increase consistency of medical reports. This manual shall be available to the public at cost but shall be provided to all physicians who treat claimants or to whom claimants are referred for evaluation; * * *."
In his deposition, Dr. McCloud concluded that relator was not fit for sustained remunerative employment and was permanently and totally disabled, in direct conflict with his original report. We reject the commission's contention that Dr. McCloud's deposition testimony does not detract from the probative value of the original report. The result urged by the commission would defeat the purposes of deposing an expert witness since the commission could ignore that testimony if it tends to discredit the expert's original report. It would also serve to emasculate the provisions of R.C. 4121.38(B)(2), the purpose of which is to increase consistency in medical evaluations, because it would permit the commission to override its own definitions and standards.
We hold that where a medical expert has, by deposition testimony, repudiated a conclusion previously made in a medical report, that report cannot constitute evidence to support the order of the commission. In the case at bar, there was no evidence but the repudiated report of Dr. McCloud to support the order of the commission and all the evidence presented supported relator's entitlement to benefits for permanent and total disability.
Accordingly, the writ prayed for is allowed.
Writ allowed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and KRUPANSKY, JJ., concur.
HOLMES, J., concurs in the judgment.