Opinion
No. 78-1424
Decided July 11, 1979.
Workers' compensation — Denial of disability claim by commission — Not abuse of discretion, when.
IN MANDAMUS.
On August 5, 1969, Joseph Kramer, relator herein, twisted his back when his foot slipped while lifting a small steel tote pan of casting slugs while in the course of his employment with the Gerity Schultz Corporation. His Workers' Compensation claim was recognized for "low back strain and left sacroiliac sprain." He never received compensation for temporary total disability.
The commission found relator to be 15 percent permanent partially disabled on December 1, 1971, and 20 percent permanent partially disabled on August 23, 1974. On September 29, 1975, relator filed a motion with the commission requesting that he be found permanently and totally disabled. The commission denied the motion on March 1, 1976, stating "that such procedure is not indicated at this time." The commission found relator 35 percent permanent partially disabled on April 29, 1976.
On March 20, 1977, relator again filed a motion with the commission requesting that he be found permanently and totally disabled. The commission referred him to Dr. Ned B. Hein, an orthopedic specialist, for examination. Dr. Hein's report stated, in relevant part:
" PRESENT COMPLAINTS: At the present time claimant complains the back bothers him. He has pain constantly in the lower left leg to the foot. The right leg is all right. He cannot cross the left leg over the right. He cannot walk on the left heel at all. His bending is sometimes good, and `sometimes bad.' He does not wear any type of back support, but he has tried to wear one.
" PHYSICAL EXAMINATION: Physical examination revealed a cooperative, well-developed well-nourished white man, who was 66 1/2" tall and weighed 154 pounds. He ambulated without any type of limp. His blood pressure was 124/78.
"Examinations of the cervical spine and upper extremities showed excellent motion with a very good grip in both hands.
"* * * The examination of the back revealed that he stood erect. A plumb bob dropped from the seventh cervical spine fell one half inch to the right of the gluteal cleft. He did stand with an increase dorsal kyphosis. He had a funnel chest or pectus excavatum. He could flex forward with the knees straight to within 10" of the floor, There was no tenderness to palpation along the spine. Extension and lateral bending to the right and left, respectively, was satisfactory. No muscle spasm was noted. He could extend one and both knees in the sitting position. The reflexes at the knees were present with reinforcement. When I was tapping him on his knees, his shoulders would go up. There was no ankle reflex on the left. The left calf measured one half inch smaller that the right. He did not cross the left knee over the right, as well as the opposite way. Straight leg raising was possible to 70 degrees bilaterally. There was some limitation of the rotation in the left hip joint. The legs were essentially equal. The thighs, measured at a point four inches above the upper poles of the patellae, were equal.
" X-RAY REPORT: X-rays taken in my office on the day of examination of the lumbar and lumbosacral spines were as follows:
"This man now has degenerative arthritis of the lumbar and lumbosacral spines with osteophyte formation. He also has osteoarthritis of the small joints of the back. The lumbosacral interspace is narrowed, and I feel there also is a defect in the posterior arch with very slight forward slippage of the fifth lumbar vertebra. I think he has a spondylolysis or very minimal spondylolisthesis, which seems to be to me quite definite.
" CONCLUSION: It is difficult for me to see at this time how this man will qualify for any type of manual labor. He certainly should not do heavy lifting or twisting with the back he has. He could do some type of menial work, which was not heavy, but that would depend on his training. He is now 64 years old, and that adds another factor to the situation. He is about ready to finish work, because of his age. I feel he is permanently and totally disabled as far as his back is concerned, and he would not qualify at this time for the type of work which he did do."
The Attorney Examiner for the commission also recommended that relator be found permanently and totally disabled.
Relator's file was then referred to Dr. J.A. Koenigshoff of the commission's medical staff. He is not an orthopedic specialist. After reviewing relator's file, including Dr. Hein's report, but without a personal examination, Dr. Koenigshoff recommended that the motion for permanent and total disability be medically disapproved. He stated in his medical opinion: "This claim has been recognized for low back strain and left sacro-iliac strain. * * *
"In reviewing the report of Industrial Commission Specialist, Dr. Ned B. Hein, it is noted that claimant has considerable degenerative osteoarthritis in his lower spine. Arthritis has never been recognized in this claim. It is noted claimant is now 65 years of age.
"I do not believe that the objective physical findings in Dr. Hein's report indicate permanent and total physical impairment due to the recognized disabilities under this claim."
The commission denied relator's motion for permanent and total disability on February 27, 1978. Relator then filed this complaint in mandamus in this court seeking a writ ordering the commission to find him permanent and totally disabled. Respondent commission has moved for judgment on the pleadings.
Messrs. Wagoner, Steinberg, Chinnis Smith and Mr. Michael D. Dorf, for relator.
Mr. William J. Brown, attorney general, and Mr. Solomon Hertzel Basch, for respondents.
It is well established that mandamus will not lie where there is some evidence to support the finding of the Industrial Commission. See State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St.2d 128. 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.
Relator contends that the opinion of Dr. Koenigshoff does not constitute "evidence" upon which the commission could have based its decision. In State, ex rel. Wallace, v. Indus Comm. (1979), 57 Ohio St.2d 55, and State, ex rel. Rachow, v. Indus. Comm. (1979), 58 Ohio St.2d 17, however, this court held that the opinion of a non-examining physician may constitute evidence before the commission to the extent that it is tantamount to a response to a hypothetical question. In other words, the non-examining physician must expressly accept all the findings of the examining physician, but may express his own conclusion based on those findings. Here, Dr. Koenigshoff expressly incorporates the report of Dr. Hein in his opinion and bases his conclusion that relator is not permanently and totally disabled due to the recognized disabilities under the claim on Dr. Hein's "objective physical findings." In particular, Dr. Koenigshoff notes Dr. Hein's finding of "considerable degenerative osteoarthritis in his [relator's] lower spine," a condition never recognized in this claim. Neither Dr. Hein's report nor any other evidence in the record suggests that relator's arthritis is related to his August 5, 1969, industrial injury. In fact, while Dr. Hein concluded that relator is "permanently and totally disabled as far as his back as concerned," he does not state that disability was caused by relator's industrial injury. Thus, we believe that the decision of the commission that relator is not permanently and totally disabled is supported by some evidence. The fact that Dr. Hein is an orthopedic specialist while Dr. Koenigshoff is not extends merely to the weight that the commission may give the evidence, not its sufficiency.
Relator also contends that denial of his claim solely upon the opinion of a non-examining physician when an examining specialist concludes that he is permanently and totally disabled violates his right to due process of law since that opinion is not competent evidence and it is the commission's practice to arbitrarily deny claims by referring them to staff doctors for only a cursory review. We have already determined that Dr. Koenigshoff's opinion is competent evidence. Relator offers no proof that the commission refers claims to its medical staff to be arbitrarily denied. In fact, in State, ex rel. General Motors, v. Indus. Comm. (1975), 42 Ohio St.2d 278, the commission found the claimant there was permanently and totally disabled despite Dr. Koenigshoff's opinion to the contrary.
In conclusion, because the opinion of Dr. Koenigshoff constitutes evidence supporting the commission's denial of relator's motion for permanent and total disability, the commission did not abuse its discretion. Accordingly, relator's complaint for a writ of mandamus must be denied.
Writ denied.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.