Opinion
No. 83-507
Decided June 27, 1984.
Workers' compensation — Commission order supported by the evidence, when.
APPEAL from the Court of Appeals for Franklin County.
On October 10, 1972, appellant, Carl Williams, was injured in the course and scope of his employment as a pipefitter with Benjamin F. Shaw Company, Inc. His claim was allowed for "hip strain, probable low back strain." Appellant applied to the Industrial Commission ("commission"), appellee, for a determination of percentage of permanent partial disability on May 14, 1974. He was examined by Dr. William C. Roland who determined that appellant was twenty percent permanently and partially disabled. On March 5, 1975, the commission likewise found that appellant was twenty percent permanently and partially disabled.
On July 9, 1975, appellant filed a motion for permanent total disability compensation. He had been examined by Dr. Robert R. Kessler on June 30, 1975. Dr. Kessler concluded that appellant was permanently and totally disabled.
Appellant submitted to an examination by Dr. J.D. Hutchison at the commission's request. Dr. Hutchison concluded that appellant was not permanently and totally disabled because there were "many things * * * [he] could do which would not require heavy lifting." Appellant moved the commission for a voluntary dismissal of his motion which was granted on October 28, 1976.
Appellant filed an application for an increase in percentage of permanent partial disability. He was examined by Dr. James P. Owens on June 6, 1977. Dr. Owens concluded that appellant was sixty percent permanently and partially disabled. On July 11, 1977, the commission increased appellant's permanent partial disability to sixty percent.
On May 12, 1980, appellant filed a second application for permanent total disability compensation based on the report of Dr. J.W. Loux who considered appellant permanently and totally disabled. Appellant was examined at the commission's request by Dr. Joseph H. Rapier, Jr., on July 11, 1980. Dr. Rapier concluded that appellant was thirty percent disabled "to the body as a whole." Appellant's second application was denied by the commission on December 4, 1980.
On February 25, 1981, appellant filed a motion to be found temporarily and totally disabled. Upon hearing, appellant made an oral motion for the allowance of an additional condition. On May 20, 1981, the additional condition of "aggravation of pre-existing osteoarthritis of the low back" was allowed. Temporary total disability compensation was awarded for a back period "to continue to the next hearing." Appellant's claim was "referred to COLMD for examination and opinion" after which the matter was to be reset.
On October 14, 1981, appellant filed a third application for permanent total disability compensation. His application was supported by Drs. E.E. Musgrave and Marion G. Brown. Dr. Musgrave indicated on the space provided in the physician's report that appellant was permanently and totally disabled. Dr. Brown, a commission specialist, had examined appellant on August 26, 1981. Dr. Brown concluded that appellant was twenty-five percent permanently impaired, and stated that appellant, "from an occupational standpoint, is totally and permanently disabled."
On March 10, 1982, appellant's file was referred to Dr. D.D. Kackley for medical review. Dr. Kackley, after discussing each of the reports of the examining physicians, stated that "[t]he medical evidence on file simply does not indicate PTI. His current award * * * would be representative of total loss of reserve of the entire back area. There is no indication of impairment beyond this level."
On March 31, 1982 the commission issued its order finding "[t]hat the claimant is not permanently and totally disabled; that therefore the Motion filed 10-14-81 be denied. This finding and order is based on the reports of Drs. Brown, Hutchison, Rapier and Kackley * * *."
Appellant filed a mandamus action in the Court of Appeals for Franklin County seeking to compel the commission to find him permanently totally disabled. The court of appeals denied the writ.
The cause is now before this court upon an appeal as of right.
Agee, Clymer Morgan Co., L.P.A., and Mr. Philip J. Fulton, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. Thomas E. Skilken, for appellee.
This court has consistently held that the commission's factual findings, when supported by the record, will not be disturbed. State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396, 397 [23 O.O.3d 358]; State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446, 447 [20 O.O.3d 379]. Appellant argues that the record does not support the commission's findings.
In its order, the commission cited the reports of Drs. Brown, Hutchison, Rapier, and Kackley. Dr. Brown opined that appellant was twenty-five percent permanently impaired. His opinion with regard to appellant's employment prospects in light of this percentage of impairment, however, was that appellant was permanently and totally disabled. These conclusions are consistent given the distinction between impairment and disability.
The commission correctly points out, however, that Dr. Brown, in reaching his conclusion, considered an unallowed condition. Appellant contends that the commission implicitly allowed the condition of compression fracture when it accepted the conclusion of Dr. J. Owens (regarding an earlier determination of percent of permanent partial disability) inasmuch as Dr. Owens considered it in reaching his conclusion. In order to accept his conclusion, however, the commission need not necessarily accept each and every one of Dr. Owens' findings. Furthermore, the commission's procedures for the allowance of compensable injuries are well-established. They do not permit implicit recognition as appellant suggests.
Drs. Hutchison and Rapier concluded that appellant was not permanently totally disabled. Dr. Kackley concluded that appellant was not permanently and totally impaired. Although Dr. Kackley spoke in terms of impairment and not disability, "it is apparent that his conclusions were based upon considerations relevant to a determination of disability," Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, 149, inasmuch as he opined that appellant's current award was representative of his level of disability.
The order of the commission was supported by the evidence upon which it relied. Therefore, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.