State, ex Rel. Anderson,v.Indus. Comm

Supreme Court of OhioMay 14, 1980
62 Ohio St. 2d 166 (Ohio 1980)

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No. 79-1122

Decided May 14, 1980.

Workers' compensation — Order of commission denying disability — Abuse of discretion, when — No evidence to support finding — Mandamus remedy appropriate.

APPEAL from the Court of Appeals for Franklin County.

On November 22, 1972, appellant, Rowena Anderson, sustained an injury in the course of and arising out of her employment with ITT Thompson Industries, Inc. Her claim for workers' compensation was allowed for a herniated lumbar disc. She received compensation for temporary total disability until November 13, 1977, and, since that time, has continued to receive compensation for temporary partial disability.

Appellant was examined at the commission's request by Dr. Maria U. Ryan, on October 14, 1975, and by Dr. J. John Bock, on November 5, 1975. Dr. Ryan recommended that the commission continue the 50 percent temporary partial disability for another two to three months and then re-examine and re-evaluate appellant. Dr. Bock determined that appellant was 20-25 percent permanent partially disabled. While Dr. Bock referred to appellant's "psychological problems that tend to exaggerate***[her] subjective complaints," his and Dr. Ryan's examinations were limited to the spinal injury.

On March 4, 1976, appellant filed a motion with the Industrial Commission asking that she be found permanently and totally disabled. Then, on June 30, 1976, she filed a motion with the Bureau of Worker's Compensation asking that a psychiatric disability also be recognized under her claim. In support of this motion she filed medical reports from Dr. Beryl M. Oser, her attending physician, and Dr. Evan J. Halas, a psychiatrist. Dr. Oser concluded that appellant is permanently and totally disabled due to her back injury. Dr. Halas, examining appellant on August 11, 1976, found that due to her November 22, 1972, industrial injury she had developed a "traumatic neurosis," resulting in a moderate psychiatric disability, but combined with her orthopedic disability, he felt that she could "safely be considered as totally and permanently disabled as to sustained, gainful employment."

The commission then referred appellant to Dr. Robert R. Kessler, an orthopedist, and Dr. Richard Villarreal, a psychiatrist. Dr. Kessler, examining appellant on April 20, 1976, estimated a 50 percent permanent partial disability from her back injury, but that combined with her neurosis she was, in fact, permanently and totally disabled. Dr. Villarreal, examining her on February 26, 1977, found a direct and causal relationship between appellant's anxiety and depression and her November 22, 1972, industrial injury. It was his opinion that she had a 25-30 percent psychiatric disability "above and beyond any physical disability benefits that have been granted her." Dr. Villarreal expressed no opinion as to whether the combined effect of the back and psychiatric injuries rendered appellant permanently and totally disabled.

On April 27, 1977, appellant's claim was allowed for "depressive neurosis with anxiety." On March 21, 1978, however, the commission issued an order finding that appellant was not permanently and totally disabled. On January 12, 1979, she filed a complaint in mandamus in the Court of Appeals for Franklin County. That court denied the writ on June 19, 1979, relying principally upon a report from Dr. J. Quinn Dorgan, Jr., who became appellant's attending physician on October 10, 1978, where he estimated that she might be able to resume work on July 18, 1979. The commission did not base its decision on this factor and it was apparently not argued.

On July 3, 1979, appellant filed a motion with the Court of Appeals requesting a new trial. With the motion she attached an affidavit from Dr. Dorgan indicating that his estimate of appellant's return to work was submitted to the Industrial Commission in accordance with commission policy, and that at all times he considered her to be permanently and totally disabled.

On October 30, 1979, the Court of Appeals overruled the motion on the ground that the evidence as to the percentage of physical and psychiatric disability was sufficient to justify the commission's decision.

The cause is now before this court upon an appeal as of right.

Mr. W. Michael Shay, for appellant.

Mr. William J. Brown, attorney general, and Mr. William Naperstick, for appellee.


Appellant alleges, in her sole proposition of law, that the reports of the examining physicians who do not evaluate all the conditions allowed in her workers' compensation claim cannot be considered evidence upon which the Industrial Commission could base its order finding that she is not permanently and totally disabled.

While it may not always be necessary that the physicians evaluate every condition allowed in a claim, we do find that where the issue before the commission is whether a claimant is permanently and totally disabled on account of the combined effect of two or more allowed conditions, medical testimony not evaluating the combined effect of those conditions cannot constitute evidence that the claimant is not permanently and totally disabled. The only evidence here which evaluated the combined effect of the two conditions indicated that appellant was permanently and totally disabled. Therefore, since there is no evidence upon which the commission could have based its conclusion that appellant is not permanently and totally disabled, mandamus becomes appropriate. See State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 58.

Accordingly, the judgment of the Court of Appeals must be reversed and the writ of mandamus is allowed.

Judgment reversed and writ allowed.

CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.


It is my belief that the commission had the discretion to enter the order which it did, based upon the totality of the file before it. I would affirm.