In Zamora, supra, the regional board had concluded that the claimant was permanently and totally disabled, implicitly rejecting Dr. Kogut's report, which stated that the claimant had a moderate mental impairment of "40-55%."Summary of this case from State ex Rel. Didiano v. Beshara
Submitted February 8, 1989 —
Decided August 16, 1989.
Workers' compensation — Review of commission's decision — Evidence rejected by commission may not later be relied on to deny claim.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-371.
Rosalio Zamora, relator-appellee, injured his right ankle and right foot in 1963 while in the course of and arising from his employment with appellant Duerk-Shasteen, Inc. His workers' compensation claim was allowed by the Industrial Commission, respondent-appellant. Subsequently, the claim was amended to include sprain of the ligaments of the right sacroiliac joint, post-traumatic arthritis of the right foot and ankle, and osteoarthritis, L-5, S-1, vertebral interspace.
On March 22, 1984, Zamora again moved to amend the claim "to include the allowance of an aggravation of depression." Simultaneously, he applied for permanent and total disability compensation based on his physical and mental conditions. Medical reports were received from Joseph Mann, M.D., T.H. Brown, Jr., M.D., Dennis W. Kogut, Ph.D., Charles E. Barger, D.O., and Keith D. Westendorf, D.C. Drs. Brown and Kogut filed specialists' reports at the request of the commission.
In a report dated March 2, 1984, following a February 27, 1984 examination, Dr. Mann reported on Zamora's mental impairment. Dr. Mann found Zamora to be "suffering from depression in the severe range" and "permanently and totally disabled." The report acknowledged Zamora's physical impairments, but did not evaluate them.
On May 29, 1984, following an examination on May 16, 1984, Dr. Brown reported on Zamora's physical impairment. He concluded that "Mr. Zamora presents with partial permanent disability of the body as a whole of 15% based almost entirely on his history and no[t] on any significant objective clinical findings." Dr. Brown did not refer to Zamora's mental impairment.
On June 21, 1984, following a May 24, 1984 examination, Dr. Kogut reported regarding Zamora's mental impairment, finding that he suffered from depression ("moderate impairment of 40-55%"); that the depression preceded his 1963 physical injury; and that the contribution of the 1963 injury to his current depression was "minimal, less than 10%" and that the depression "should be considered permanent."
On November 8, 1984, at the request of Zamora's counsel, Dr. Mann responded by letter to Dr. Kogut's report. This letter was filed with the commission on November 26, 1984. In the letter, Dr. Mann agreed with many of Dr. Kogut's findings, but concluded that Zamora "is suffering from depression in the moderate range of around 50-55%" and "is permanently and totally disabled." Based specifically upon this report, the regional board of review modified the claim on November 26, 1984 to allow for "depression in the moderate range."
On January 9, 1985, following a January 3, 1985 examination, Dr. Barger reported on Zamora's physical impairment and concluded that "Mr. Zamora is totally and permantly [ sic] disabled from his 1963 injuries."
Dr. Westerdorf examined Zamora on January 11, 1985 regarding his physical impairment, and submitted a report that was received by the commission on January 31, 1985. Dr. Westendorf concluded that "Mr. Zamora's [ sic] condition leaves him unfit for any sustained gainful employment" and that "he is permanently and totally disabled."
On September 23, 1985, the commission denied Zamora's application for permanent total disability compensation, finding "from proof of record that the claimant is not permanently and totally disabled * * *. The medical reports of Drs. Westendorf, Barger, Mann, T.H. Brown, and Kogut were reviewed and evaluated. The findings and order are based particularly on the medical report [ sic] of Drs. Brown and Kogut, the evidence in the file and the evidence adduced at the hearing."
Zamora sought a writ of mandamus in the court of appeals vacating the commission's order and finding him permanently and totally disabled. On April 14, 1987, the court of appeals overruled objections to a referee's report and granted the writ. The court found that the commission erred in relying on the reports of Drs. Brown and Kogut because they did not consider the combined effects of Zamora's physical and mental impairments, as required by State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 16 O.O. 3d 199, 404 N.E.2d 153, because Dr. Brown's report was made before Zamora's claim for depression was allowed, and because Dr. Kogut's report was impliedly rejected, at least in part, when the regional board of review allowed the claim for depression.
The cause is before this court as a matter of right.
Gallon, Kalniz Iorio Co., L.P.A., and William R. Menacher, for appellee.
Anthony J. Celebrezze, Jr., attorney general, Helen M. Ninos and Donald R. Ford, Jr., for appellant.
The commission based its denial of permanent total disability compensation particularly on the reports of Dr. Brown and Dr. Kogut. The court of appeals rejected Dr. Brown's report as "some evidence" to support the commission's decision because it did not evaluate the combined effect of Zamora's physical and psychiatric conditions, as required by State, ex rel. Anderson, v. Indus. Comm., supra. It rejected Dr. Kogut's report for the same reason and because "* * * his opinion was, at least in part, rejected when the psychiatric condition was recognized by the Industrial Commission." Before this court, the commission points out that State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, has overruled Anderson and the combined-effects doctrine. Thus, the commission argues, the Brown and Kogut reports constitute some evidence to support its finding against permanent total disability with regard to Zamora's physical and mental impairments. We agree that, with the Anderson impediment removed, the Brown report constitutes some evidence of the lack of a permanent and total physical impairment. However, we agree with the court of appeals that the Kogut report, even with the Anderson impediment removed, cannot constitute some evidence against mental impairment.
The Kogut report was available to the regional board of review before it allowed the amendment to the claim adding the psychiatric condition. Dr. Kogut concluded that Zamora suffered from moderate impairment from depression, that the depression preceded his 1963 physical injury, and that the contribution of the 1963 injury to his current depression was minimal. The regional board implicitly rejected this report when it allowed the claim expressly on the Mann letter of November 8, 1984, which also found a moderate depression, but concluded that Zamora was permanently and totally disabled. We agree with the court of appeals that it would be inconsistent to permit the commission to reject the Kogut report at one level, for whatever reason, and rely on it at another. Accordingly, the Kogut report cannot constitute some evidence that Zamora is not permanently and totally disabled.
Excluding the Kogut report leaves no evidence of mental impairment on which the commission based its order of September 23, 1985. In State, ex rel. Lampkins, v. Dayton Malleable, Inc. (1989), 45 Ohio St.3d 14, ___ N.E.2d ___, we held that, in a case such as this, when the evidence relied on by the commission to deny a temporary total disability claim is discredited by a court, the proper procedure is to return the case to the commission for further evidence on the question of disability. We adopt the same holding with regard to permanent total disability. Accordingly, the order of the court of appeals is affirmed insofar as it vacates the decision of the commission, but reversed insofar as it orders payment of permanent and total disability compensation, and the cause is remanded to the commission.
Judgment affirmed in part and reversed in part.
MOYER, C.J., HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.