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finding that another report from Dr. Katz contained the same infirmities as those contained in his report in Lopez
Summary of this case from State ex rel. Ohio State Univ. v. Indus. Comm'n of OhioOpinion
No. 93-2360
Submitted January 10, 1995 —
Decided March 1, 1995.
APPEAL from the Court of Appeals for Franklin County, No. 92AP-994.
Appellant, Robert J. Taylor, was injured in 1985 in the course of and arising from his employment with Regal Transportation. A workers' compensation claim was recognized for "lumbar strain with somatic dysfunction of lumbar spine and left sacroiliac joint." In 1989, appellant applied to appellee, Industrial Commission of Ohio ("commission"), for permanent total disability compensation. In support of his application, appellant relied on medical reports from Dr. E.A. DeChellis and Dr. E. DePasquale, Jr. Dr. DeChellis, who had examined appellant on January 6, 1989 on the commission's behalf, concluded:
"I feel this claimant is not substantially able to perform his former job duties and tasks. I feel he is permanently unable to return to his former position of employment. I feel he has reached maximum medical improvement. I feel this gentlemen [ sic] is incapable of performing remunerative employment even of a sedentary nature due to the restrictions that he cannot sit for any length of time greater than 15 minutes nor stand for greater than 15 minutes. He cannot carry any heavy objects. I think he is 100 [percent] disabled [ sic] at this time."
Dr. DePasquale, appellant's attending physician, reached essentially the same conclusion as did Dr. DeChellis. Dr. DePasquale stated that as a result of appellant's 1985 injury appellant was "permanently and totally disabled [ sic] from any gainful employment."
An extensive vocational report prepared by William L. Fink, a vocational consultant, was also presented in support of appellant's 1989 application for permanent total disability compensation. In his report, dated March 6, 1989, Fink emphasized that appellant was an "older worker" (born April 10, 1933), that his education "was limited to the 8th grade as his income was needed to help his family," and that all of appellant's former job duties entailed heavy manual labor. On this basis, Fink concluded:
"From a vocational rehabilitation point of view Mr. Taylor is not a viable candidate for vocational rehabilitation services due to his age and the fact that he was a heavy manual type worker and his educational deficit. His educational deficit, alone, would contra-indicate academic training that would prepare him for sedentary work. Additionally, the fact that he cannot sit for prolonged periods of time would contra-indicate sedentary work.
"While it is unfortunate that individuals such as Mr. Taylor lose their ability to work when they can no longer use their back, this is, nonetheless, a fact. It should also be noted that nowhere in Mr. Taylor's work history has he ever done a job that could be accomplished in a permissive manner. That is to say, none of his past job experience allowed for either standing or sitting at will and/or resting when needed. Thus, it is my opinion that Mr. Taylor is 100 [percent] permanently and totally disabled [ sic] from a vocational rehabilitation point of view."
Appellant was further examined on the commission's behalf on November 21, 1989 by Dr. Gary I. Katz. In his report, Dr. Katz found "no objective findings," yet concluded that appellant had a fifty percent permanent partial impairment. Dr. Katz determined that appellant was capable of sustained remunerative employment and that he could resume his former job duties.
Subsequently, appellant moved to depose Dr. Katz, alleging that Katz's findings conflicted with the conclusions reached by Drs. DeChellis and DePasquale. A district hearing officer, however, denied appellant's motion and the order was administratively affirmed. Further, on March 10, 1992, the commission conducted a hearing with respect to appellant's 1989 application for permanent total disability compensation. In an order mailed March 24, 1992, the commission denied appellant's application, stating, in part:
"The reports of Doctor(s) DePasquale Jr., Katz, DeChellis, Mr. Fink were reviewed and evaluated.
"The order is based particularly upon the reports of Doctors [ sic] Katz, evidence in the file and/or evidence adduced at the hearing.
"Claimant is * * * [fifty-eight] years old with an 8th grade education and a work history as a trucker and general laborer. Medical evidence relied upon by the Commission, particularly the report by Dr. Katz, indicates claimant is not PTD. Dr. Katz stated claimant has a 50 [percent] impairment and is not prevented by the orthopedic conditions from returning to former position of employment. In consideration of the relevant factors, claimant is found not PTD."
On July 24, 1992, appellant filed a complaint in mandamus in the court of appeals, challenging the commission's denial of his motion to depose Dr. Katz and the 1989 application for permanent total disability compensation. The court of appeals found that the commission did not abuse its discretion with regard to these issues and denied the writ.
The cause is now before this court upon an appeal as of right.
Elliott, Heller, Maas, Moro Magill Co., L.P.A., Rush E. Elliott and Richard L. Magill, for appellant.
Betty D. Montgomery, Attorney General, and Gerald H. Waterman, Assistant Attorney General, for appellee.
In the case at bar, both Dr. DeChellis and Dr. DePasquale concluded that appellant was physically unable to work. In addition, William Fink, a vocational expert, determined that appellant was not a viable candidate for rehabilitative services. Dr. Katz, however, reached a contrary conclusion and, in his report, wrote:
"OPINION: I feel this represents a lumbosacral myofascitis secondary to the fall in January 1985. The tests * * * showed that there was no compression of nerve roots according to the lumbar myelogram. There are no objective findings and there is a large amount of functional overlay. * * * I do not consider this patient to be permanently and totally disabled [ sic] from gainful employment. I feel he is able to work at his former position of employment at least from an orthopaedic [ sic] standpoint. I feel he is entitled to a permanent partial impairment of * * * (fifty percent) of the body as a whole. Possibly psychiatric evaluation would be indicated because of the element of functional overlay and the fact that there are no objective findings by examination and tests reported on his medical records."
Without question, the commission's decision, denying appellant's application for permanent total disability compensation, was premised exclusively on Dr. Katz's assessment of appellant's condition. Thus, the question before this court is whether Dr. Katz's report was "some evidence" supporting the commission's decision. For the reasons that follow, we answer this question in the negative.
Recently, in State ex rel. Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445, 633 N.E.2d 528, this court considered the evidentiary sufficiency of a medical report on which the commission relied in denying a claimant permanent total disability compensation. The report at issue in Lopez also involved the same doctor at issue here, Dr. Katz. In fact, the report in Lopez was substantively identical to the report in the present situation in that Dr. Katz found no objective findings, concluded that the claimant could return to heavy labor, and then, however, assessed a fifty percent permanent partial impairment. We rejected Dr. Katz's report in Lopez, reasoning:
We recognize that the court of appeals did not have the benefit of our decision in State ex rel. Lopez v. Indus. Comm. (1994), 69 Ohio St.3d 445, 633 N.E.2d 528.
"Katz's report, however, while unequivocal, is so internally inconsistent that it cannot be `some evidence' supporting the commission's decision. Despite `normal' physical findings, Katz assessed a high (fifty percent) degree of impairment. He then, however, concluded that claimant could perform heavy foundry labor. Being unable to reconcile these seeming contradictions, we find that the report is not `some evidence' on which to predicate a denial of permanent total disability compensation." Id. at 449, 633 N.E.2d at 531-532.
Clearly, Dr. Katz's report in the present situation contains the same infirmities as those contained in his report in Lopez. Thus, consistent with our findings in Lopez, we find that Dr. Katz's report in the case at bar cannot, as a matter of law, be "some evidence" supporting the commission's decision.
Granted, the lack of "some evidence" supporting denial of permanent total disability compensation does not automatically equate into "some evidence" supporting an award. State ex rel. Wilcox v. Ashtabula Cty. Hwy. Dept. (1992), 64 Ohio St.3d 190, 192, 593 N.E.2d 1390, 1391. However, here, the remaining medical evidence is overwhelming, and it unequivocally constitutes "some evidence" supporting an award for permanent total disability compensation.
For the foregoing reasons, we grant relief consistent with State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Accordingly, the judgment of the court of appeals is reversed, and a writ of mandamus is allowed.
Judgment reversed and writ allowed.
RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
MOYER, C.J., and WRIGHT, J., dissent.