Opinion
No. 83-1532
Decided December 31, 1984.
Workers' compensation — Denial of permanent partial disability proper, when.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from the denial of the issuance of a writ of mandamus by the court of appeals.
Appellant, Ralph Lucente, was employed by Strouss Division, May Department Stores Company ("Strouss"), an appellee herein. His claim, No. 684917-22, was allowed as to a July 9, 1979 injury for "acute lumbo sacral sprain with pull of the paravertebral muscle of L-1, L-3 area" and compensation and benefits were paid. Thereafter, appellant filed an application with appellee Industrial Commission for determination of the percentage of permanent partial disability. Appellant was referred for examination to Dr. Anthony Dominic who opined, relative to his examination of December 11, 1980, that appellant "* * * has a permanent partial impairment of 20%."
Appellant was again examined by Dr. Dominic on April 9, 1981, and the hearing officer in referring the instant claim also referred for review therewith a 1976 claim, No. 76-15289, wherein appellant received a 1978 award of forty percent permanent partial disability for injuries to "right shoulder, contusion left hip, strain lumbosacral and sacro iliac spine." The report of Dr. Dominic acknowledged review of the 1976 claim and opined a permanent partial impairment of fifty-five percent. Again, referral to Dr. Dominic was made for purposes of clarification or differentiation of the 1976 and 1979 claims. Dr. Dominic then issued his third report dated June 24, 1981, concluding that "the claimant has a permanent partial impairment of 55% on claim file 684917-22 [subject claim] only."
Upon a subsequent finding by a district hearing officer that appellant had a permanent partial disability of fifty-five percent, the 1979 claim was reviewed on application for reconsideration filed by Strouss. In connection therewith, appellant's claim file was referred to the chief medical advisor to the commission, Dr. Dwight H. Davies. Dr. Davies was also apprised of the 1976 claim which had resulted in a forty percent permanent partial disability award. Dr. Davies rendered a report dated April 22, 1982, stating in part: "Using the facts in Dr. Dominic's reports along with the AMA Guides to the Evaluation of Permanent Impairment and McBride's Disability Evaluation, I obtained 16% PPI and 34% PPD for a freight handler. In summary, I don't believe Dr. Dominic's findings are consistent with 55% PPI."
The commission's order, following hearing, was then issued on February 24, 1982, and reads in relevant part as follows:
"* * * it is further the finding of the Staff Hearing Officer that claimant's percentage of permanent partial disability as a result of the allowed conditions is no greater than that previously determined, so that there is no basis for an additional award of compensation at this time. It is ordered, therefore, that claimant's C-92-A Application for an Increase in Percentage Permanent Partial Disability filed 9-5-80 be denied.
"This finding and order is based on the reports of Drs. Davies and Dominic, the evidence in the file and the evidence adduced at the hearing. Refer to claim #76-15289."
The instant mandamus action filed by appellant requested an order directing the commission to find appellant entitled to a determination of permanent partial disability. The writ was denied on August 5, 1983.
Messrs. Tablack, Wellman, Jeren Freedom and Mr. John A. Jeren, Jr., for appellant.
Messrs. Buckingham, Doolittle Burroughs and Ms. Deborah Sesek, for appellee Strouss Division, May Department Stores.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Bradley J. Finn and Mr. Lee M. Smith, for appellee Industrial Commission.
Appellant urges that the commission's order of February 24, 1982 did not comply with the requirements of State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 483, that such decisions "* * * specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested." Additionally, appellant contends that there was no evidence before the commission to support a denial of his application for an award of permanent partial disability. Mitchell, supra, was decided after the decision of the court of appeals herein. We find that the commission's order denying appellant permanent partial disability presented adequate explanation and reference to the evidence relied on to meet the standards pronounced in Mitchell, were those standards to be applied here. Cf. State, ex rel. Burdette, v. Dayton Walther Corp. (1984), 14 Ohio St.3d 29, 31.
Appellant also contends that the commission's order is erroneous because it referred to form C-92-A, which form is used in connection with an application to increase percentage of permanent partial disability. The form actually filed by appellant was C-92, used for initial determination of the percentage of permanent partial disability.
There is no indication that the reference to form C-92-A was other than a clerical error reflecting no prejudice to appellant, as the content and substance of such order clearly disposes of appellant's application for determination of permanent partial disability.
The commission's evidentiary reference was to the reports of Drs. Dominic and Davies as well as to the 1976 claim file. Dr. Dominic's first report concluded with a twenty percent permanent partial disability and his later report, after being apprised of appellant's prior 1978 award for permanent partial disability involving, inter alia, the lower back, then raised appellant's permanent partial disability to fifty-five percent. Dr. Davies, using the findings of Dr. Dominic and applying AMA guidelines, in his report concluded with a sixteen percent permanent partial impairment and a thirty-four percent permanent partial disability. Both percentages rendered by Dr. Davies were under the forty percent permanent partial disability award previously granted in 1978 to appellant. Dr. Davies, as did Dr. Dominic, had access to the 1976 claim file of appellant which was utilized in making the 1978 permanent partial disability award. The commission's reference to the reports of Drs. Dominic and Davies was sufficiently precise to support the conclusion of the commission that "percentage of permanent partial disability as a result of the allowed conditions is no greater than that previously determined * * *."
Appellant also urges that the prior forty percent permanent partial disability award should not be used in determining the 1979 injury claim, for the reason that the prior claim involved areas of the body in addition to the low back and the award did not specify what percentage of disability attached to a specific area of the body. We find that while the 1978 award of forty percent permanent partial disability also involved "right shoulder, contusion left hip," one examiner, whose report reposed in appellant's 1976 claim file and was available to both Drs. Dominic and Davies, concluded that as to the 1976 injury the permanent partial impairment involving the lumbosacral and left sacroiliac region was thirty-two percent, or greater than Dr. Davies' assessment of sixteen percent permanent partial impairment as to the 1979 injury.
We conclude that there is evidence to support the commission's order denying an award of permanent partial disability.
For reason of the foregoing, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.