Summary
In Hughes, two psychiatrists, Drs. Giray and Goold, each opined that the claimant's "combined" physical and psychiatric conditions rendered the claimant PTD.
Summary of this case from Kaiser Foundation Health Plan v. Indus. Comm.Opinion
No. 85-1928
Decided August 20, 1986.
Workers' compensation — Medical reports may consider and impliedly accept all the allowed conditions relevant to the claim before rendering a final evaluation.
APPEAL from the Court of Appeals for Franklin County.
Relator-appellant, William Hughes, was injured on March 5, 1976 during the course of, and arising out of, his employment with respondent-appellee Goodyear Tire Rubber Company when he lifted a one-hundred-ten-pound box. Relator's original claim for compensation was allowed for "degenerative joint disease of the lumbosacral spine" and was subsequently amended to include an additional condition of "adjustment disorder with depressed mood" in an order issued on March 4, 1982.
On April 22, 1982, an application was filed by relator for permanent total disability. This application was denied by respondent-appellee Industrial Commission in an order issued on September 27, 1984. The order stated in part:
"The medical reports of Drs. Mullen, Halley, Willock, Lentz, Goold, Brown, McCloud, DeMuth, Hardie and Fallon were reviewed and evaluated. The findings and order are based particularly on the medical reports of Drs. Hardie, Fallon, DeMuth, and McCloud, the evidence in the file and the evidence adduced at the hearing."
Relator predicated his claim on the evidence of Drs. Murray S. Willock, Saim Giray and Edmond J. Goold. Dr. Willock, relator's attending physician, stated he had seen the patient on June 22, 1984 "for recheck of his degenerative joint disease lumbosacral spine, adjustment disorder with depressed mood. He was given refills on his Indocin, Darvocet — N 100 and Valium. Patient requested sleep medicine and was started on Dalmane 15 mg. h.s. He is to recheck back with me in 6 months or as needed.
"It is my opinion that the above named patient is still permanently and totally disabled."
Dr. Giray indicated:
"Considering the chronicity of his orthopedic and psychiatric conditions combined together he is permanently and totally disabled, in my opinion, and there is a direct/proximal causal relationship between his March 5, 1976 injury and his psychiatric condition, as revealed in this report."
However, Dr. Giray's psychiatric report did not indicate that he either physically examined relator or expressly accepted all the findings of the examining physicians.
Similarly, Dr. Goold concluded:
"I believe that this neurosis in combination with the physical disability has resulted in permanent and total disability from any gainful employment."
Dr. Goold, a psychiatrist, did not indicate that he conducted a physical examination nor did he expressly adopt the findings of any examining physician in his report.
The commission's determination expressly rested upon the reports of Drs. J.A. Hardie, Timothy J. Fallon, David W. DeMuth and W. Jerry McCloud, as well as the record and evidence adduced at the hearing. Dr. Hardie reviewed relator's claim file and stated, in a report on September 17, 1982:
"All medical reports have been reviewed and I am of the opinion based upon the allowed condition(s) that the claimant is not PT [permanently and totally disabled] for the following reason(s):
"Pertinent medical evaluations do not support a related PT. Claimant can relate, is oriented, has an intact memory, no deterioration in personal grooming and no psychosis. He can ambulate without aids, there is no motor or sensory deficits, no atrophy or weakness. He has minimal reduction in range of motion of the spine and some pain experience at `extremes of forward flexion.'
"Current impairment (if not PT): 20% (inclusive)."
Dr. Hardie was not an examining physician nor did he expressly adopt the findings of the examining physicians.
Dr. DeMuth, after noting that the purpose of his examination was "to determine permanent total impairment in a definite percentage and to evaluate the totality of the claimant's disability due to the combined effect of his back problem," and after stating that "the physical findings are noted in the chart indicating degenerative joint disease of the lumbosacral spine," concluded, "[i]t is my opinion from the available information that Mr. Hughes shows minimal psychiatric symptoms. He is best described as an adjustment disorder with anxious mood. It is further my opinion that his symptoms would not interfere with his ability to work and I therefore find no psychiatric impairment."
Dr. McCloud indicated that the allowed claim was for "degenerative joint disease of the lumbosacral spine and an adjustment disorder with a depressed mood." He went on to state that he evaluated "him in regards to the conditions allowed in this claim." Dr. McCloud concluded: "I would estimate that he has an overall impairment of 20% of the body as a whole based on his loss of function and reserve as described."
Dr. Fallon reviewed the claim file and noted the findings of Dr. Donald L. Brown that claimant had "a psychiatric problem of 5 to 10% but one which would not preclude work activity," and Dr. DeMuth, who "concurred and described an adjustment disorder with an anxiety component." After a physical examination, Dr. Fallon concluded:
"I feel that from the standpoint of the low back condition that the impairment that exist [ sic] would be approximately a 25% impairment [which] would be considered a permanent partial impairment. He certainly over this period of time has been adequately treated and has achieved maximum stabilization and no further improvement would be expected. In addition I would concur with Dr. Brown's finding of an additional 5 to 10% based on the psychiatric problems."
On October 12, 1984, relator instituted an action in mandamus, in the Court of Appeals for Franklin County, which alleged that the commission abused its discretion and sought an order to compel the commission to find relator entitled to receive permanent total disability compensation. On October 31, 1985, the court of appeals, after reviewing the facts and recommendations provided by a referee, denied the writ.
The cause is now before this court on an appeal as of right.
Michael J. Muldoon, for appellant.
Vorys, Sater, Seymour Pease, Robert A. Minor and P. Douglas Barr, for appellee Goodyear Tire Rubber Co.
Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson and Gerald H. Waterman, for appellee Industrial Commission.
For the reasons to follow we uphold the denial of the writ of mandamus.
Relator is required to show a clear legal right to the relief sought and a clear legal duty on the part of the commission to provide the relief in order for this court to issue a writ of mandamus. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141]; State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St.3d 76. To show the clear legal right, relator must demonstrate that the commission abused its discretion by entering an order unsupported by some evidence in the record. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9 [58 O.O.2d 66]; State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165 [22 O.O.3d 400].
Within the past decade this court has set certain parameters for what constitutes "some evidence" before the commission. In State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 168 [16 O.O.3d 199], we held that a physician's report must assess impairment, in a claim for permanent and total disability on account of the combined effect of two or more allowed conditions, by considering those allowed conditions together. In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 59 [11 O.O.3d 216], we indicated that non-examining physicians must expressly accept the findings of the examining physicians, although not necessarily their opinions, prior to rendering their own opinions.
The rules in Anderson and Wallace were consolidated in State, ex rel. Teece, supra. The result was a "combined effect" rule that compelled physicians who actually examined less than all the combined conditions, not only to evaluate the relevant allowed condition(s), but to do so by expressly accepting the findings of the physician or physicians who actually examined the claimant in regard to the other conditions. This position was qualified, however, when we indicated that evidence which might not in itself support or deny a claim could still be used to test the credibility of reports that complied with both Anderson and Wallace. See State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396 [23 O.O.3d 358] (When a doctor finds no evidence of a disability related to psychiatric illness, one of two alleged conditions, the need to evaluate the combined effect of the conditions is obviated.). Importantly, we emphasized our concern that "[q]uestions of credibility and the weight to be given evidence are clearly within the commission's discretionary powers of fact finding." Teece, supra, at 169; See, also, State, ex rel. Bevis, v. Coffinberry (1949), 151 Ohio St. 293 [39 O.O. 135]; State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38.
A review of the record before us indicates that Drs. Giray, Goold, McCloud, Fallon, and DeMuth all specifically examined claimant as to either the physical or psychological condition but not both. In all these cases it is clear that while the physician might not literally "expressly adopt" the factual findings with respect to conditions outside his field of expertise, each was familiar with those findings to various degrees when he made his evaluation, as indicated in the facts herein.
It is apparent to us today that much confusion has resulted from this court's desire to insure that impairment evaluations be rendered by physicians who were aware of all relevant aspects of a claimant's allowed conditions. We do not suggest, however, that experts in one area of medicine must be experts in all areas of medicine, but merely that physicians in a multiple-conditions claim be aware that other allowed conditions exist that might potentially influence their conclusions with respect to impairment. Similarly, our opinions should not provide the basis for usurping the role of the commission in determining disability by creating arbitrary exclusionary rules that eliminate evidence the commission might find credible because such evidence fails to include "magic words" to conform with hypertechnical evidentiary rules, e.g., "I expressly adopt the findings but not the opinion of Dr. `X.'" As we noted in Teece, supra, at 168-169, evidence that does not conform with Anderson can still be used to rebut elements of conforming reports.
To clarify and resolve the difficulties engendered in the application of Anderson, we hold today that reports which consider and impliedly accept all the allowed conditions relevant to the claim before rendering a final evaluation with respect to impairment are "some evidence" to support a commission allowance or disallowance of a permanent total disability claim. On this basis the reports of Drs. Hardie, Fallon, McCloud, DeMuth, Goold, and Giray were all permissible evidence to be accepted or not accepted as the commission saw fit. The commission's decision, resting upon the reports of Drs. Hardie, Fallon, DeMuth and McCloud, was thus supported by some evidence. The commission's determination was therefore not an abuse of discretion and relator has not demonstrated a clear legal right to mandamus relief.
By way of example, Dr. McCloud's report indicates that he evaluated the claimant "in regards to the conditions allowed in this claim" after articulating these allowed conditions. This type of assertion both considers and impliedly accepts the allowed conditions to render the report "some evidence."
Accordingly, the judgment of the court of appeals denying the writ is affirmed.
Judgment affirmed.
LOCHER, HOLMES and WRIGHT, JJ., concur.
CELEBREZZE, C.J., SWEENEY, C. BROWN and DOUGLAS, JJ., concur in judgment only.
I concur in today's judgment on the basis that there is sufficient probative, credible and competent evidence to support the commission's order denying appellant's application for permanent total disability benefits. However, I cannot concur with the majority's analysis for the following reasons.
First, I must again voice my vigorous disapproval of the majority's unnecessary use of the "some evidence" phraseology. I have expressed my aversion for this meaningless jargon on many occasions on the grounds that the standard has "degenerated to the level where judicial review in a mandamus action is a rubber stamp of approval for any unreasonable, captious and unjust Industrial Commission decision * * *." State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 174 [22 O.O.3d 400] (Clifford F. Brown, J., dissenting). See, also, Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, 149-150 (Clifford F. Brown, J., concurring), and cases cited therein. I strenuously object to the continued use of this senseless jargon which has endeared itself to those members of this court who fondly envision a world where workers "know their place" and bureaucrats reign unquestioned.
I further object to the majority's attempted emasculation of this court's holdings in State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166 [16 O.O.3d 199], and State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55 [11 O.O.3d 216]. In Anderson, this court held, at 168, that "[w]here 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 majority today cleverly sidesteps this holding and attempts to dilute it by stating that "reports which consider and impliedly accept all the allowed conditions relevant to the claim before rendering a final evaluation with respect to impairment are `some evidence' to support a commission allowance or disallowance of a permanent total disability claim." (Emphasis added.) This statement, which the majority characterizes as its attempt to "clarify and resolve the difficulties engendered in the application of Anderson," is actually a brazen effort to relax the standard of review to the point where there is no review at all. I can imagine the delight with which employers will greet the word "impliedly" as used above, which is so wonderfully vague and flexible that any report can be twisted to fit.
A similar, equally noxious, attempt is made by the majority opinion to dismantle State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55 [11 O.O.3d 216], wherein this court held that a non-examining physician must expressly adopt the findings, but not necessarily the opinion, of one or more examining physicians in order for his report to constitute evidence in support of a subsequent order of the commission. This holding represents simple logic: If a physician has not examined the claimant himself, he must expressly adopt the findings of one who has, or his opinion has no basis. As with Anderson, the majority opinion today attempts to dilute Wallace by replacing the requirement of express adoption with some sort of "adoption by implication" standard. Again, the phrase "by implication" is conveniently obscure, and therefore is tailor-made to suit the majority's purpose of destroying meaningful review in this court.
These attempts to deprive Anderson and Wallace of their vitality are simply another example of the concerted effort by certain justices on this court to clutter the claimant's path with as many obstacles and stumbling blocks as their fertile imaginations can devise.
For these reasons, I am compelled to concur in judgment only.