State ex rel. Manley v. Industrial Commission

Per Curiam. The issue presented herein is whether the opinion rendered by Dr. Davies, a non-examining physician, was properly utilized by the Industrial Commission in its denial of appellant’s motion for a permanent and total disability award. In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio [42] St. 2d 55, this court discussed the purpose of the opinion of a non-examining physician in a case before the Industrial Commission. This court stated, at page 59: “[T]he non-examining physician is required to expressly accept all the findings of the examining physicians, but not the opinion drawn therefrom. If a non-examining physician fails to accept the findings of the doctors***, the medical opinion that is rendered does not constitute evidence to support a subsequent order of the commission.” It follows that if the non-examining physician does accept the findings of the examining doctors, the resulting report of the non-examining physician will constitute evidence before the commission. State, ex rel. Rachow, v. Indus. Comm. (1979), 58 Ohio St. 2d 17; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St. 2d 39. In the instant case, the non-examining physician did accept the findings of the examining physicians and his report made specific reference to those findings. Since the guidelines of State, ex rel. Wallace, supra, were followed, the report of Dr. Davies was evidence before the commission. Dr. Davies, as well as the commission, determined that appellant was not permanently and totally disabled. It is well established that mandamus will not lie where there is some evidence to support the findings of the Industrial Commission. See, e.g., State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St. 2d 128. There was ample evidence, based on the findings of the examining physicians as well as Dr. Davies’ report, that appellant was not permanently' and totally disabled. Accordingly, a writ of mandamus will not be granted. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. Judgment affirmed. Celebrezze, C. J., W. Brown, P. Brown, Locher and Holmes, JJ., concur. Sweeney and C. Brown, JJ., dissent.