Opinion
No. 78-1292
Decided April 18, 1979.
Workers' compensation — Permanent and total disability — Commission's finding supportable, when — Opinion of non-examining physician acceptable, when.
IN MANDAMUS.
On September 21, 1968, while in the course of her employment as a cook with Imperial Lanes, Inc., Esther E. Rachow, relator herein, slipped on a grease spot on the floor and fell. She filed a claim with the Bureau of Workers' Compensation in October, 1968. The claim was allowed on October 25, 1968 for "[i]njured back, both arms, and stomach."
In mid 1977, relator filed an application with the Industrial Commission, the respondent herein, for a determination of the percentage of permanent partial disability. The commission referred relator to Dr. Sheldon Singal, M.D., of the bureau's medical staff. In his December 15, 1977, report he notes that relator complained of suffering continual back pain since her injury and that she has since developed arthritis. She claimed further that the arthritis in her shoulders hampers her movement. Dr. Singal commented, however, that the arthritis is not related to her industrial claim. Dr. Singal reported the following findings from his examination:
"Examination reveals a cooperative, obese short lady in mild distress. She has a gait that is normal for her body build. Examination of the spine is difficult because of her great obesity. But, it is of normal curvature. There is some minimal tenderness over the lumbosacral spine. There is no muscle spasm. The range of motion of the lumbosacral spine is hampered in all directions. Extension is no greater than five degrees (5°), right and left lateral bending ten degrees (10°) and forward flexion certainly no greater than forty-five degrees (45°). Deep tendon reflexes are 1 plus or minus at the knees, they were not done at the ankles because the patient was unable to remove her heavy shoes and, also, the examiner could not remove [them]. She uses the table for support, when lying down or arising from the table. Her straight leg raising is normal to sixty degrees bilaterally. The left elbow is without pathology and has a normal range of motion without tenderness."
Dr. Singal's impression was of "low back strain, chronic, recurrent of moderate degree." He then concluded "that based on this lady's chronic low back condition, her ability to perform any type of skilled labor that she is permanently, totally disabled." (Emphasis sic.)
Referring to Dr. Singal's report, relator filed a motion for permanent and total disability on February 27, 1978, claiming that she has been unable to do any work since June 1, 1976. Relator's motion was referred to Examiner Michael L. Ware of the commission's legal section. On May 5, 1978, he reported to the commission that "[b]ased on the facts of the limited treatment received and the consideration given to the unrelated condition of arthritis, this examiner is unable to reach a conclusion on the question of permanent and total disability * * *." The motion was then referred to Dr. James A. Hardie of the bureau's medical staff. After noting that Dr. Singal's report was reviewed, Dr. Hardie in his June 26, 1978, report stated:
"In the opinion of this reviewer, the file does not contain any documented objective evidence that indicates a PT [permanent and total] disability has resulted from the allowed injury. Dr. Singal reports ` normal curvature,' ` minimal tenderness,' and a left elbow with a normal range of motion. He also states that range of motion of the lumbosacral spine is hampered but prior to that in the report, great obesity is mentioned.
"The reference to arthritis is hearsay and therefore subjective; there is no objective evidence of such in the file.
"PT is hereby medically disapproved." (Emphasis sic.)
On July 19, 1978, the commission denied relator's motion for permanent and total disability finding "from proof of record that claimant is NOT permanently and totally disabled."
Relator then filed this complaint in mandamus herein, praying that a writ issue against respondent requiring it to vacate its July 19, 1978, order denying relator's motion for permanent and total disability and requiring it to allow said motion, or in the alternative to re-evaluate relator's claim in a manner consistent with due process of law.
Messrs. Wagoner, Steinberg, Chinnis Smith and Mr. Michael D. Dorf, for relator.
Mr. William J. Brown, attorney general, and Mr. Solomon Hertzel Basch, for respondent.
Relator alleges that the commission abused its discretion in denying her motion for permanent and total disability on the sole basis of a recommendation of a physician who had never interviewed or examined her when another commission physician, who did personally examine her, found her permanently and totally disabled.
"* * * This court has often recognized that 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 abuse of discretion. * * * Thus, where the record contains evidence which supports the commission's factual findings, this court will not disturb that determination." State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 282-283. In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 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 physicians, but may express his own conclusion based on those findings.
Here, in contrast to Wallace, supra, Dr. Hardie's report specifically refers to Dr. Singal's report and bases its conclusion upon Dr. Singal's findings. Thus, Dr. Hardie's report constitutes evidence before the commission supporting its conclusion that relator is not permanently and totally disabled.
Relator also charges that it is the commission's practice to shuttle a claimant's file to a physician in its Chief Medical Advisor's Office who will then deny the claim upon a cursory review of the file whenever an examining physician employed by the commission finds a claimant permanently and totally disabled. This, she claims, violates her constitutional right to due process of law. Relator, however, offers no proof substantiating the existence of this alleged commission practice. Thus, this court need not reach the issue of whether such a practice, if shown, is constitutionally suspect.
In conclusion, because the opinion of Dr. Hardie 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 and HOLMES, JJ., concur.
LOCHER, J., not participating.