State ex rel. Walters v. Industrial Commission

Celebrezze, C.J. It is firmly established that the resolution of “* * * disputed factual situation's is within the final jurisdiction of the Industrial Commission, and subject to correction by action in mandamus only upon a showing of abuse of discretion.” State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St. 2d 15, 16 [58 O.O.2d 70]. This court has held that when there is no evidence upon which the [73] commission could have based its order, there is an abuse of discretion and mandamus is appropriate. State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St. 2d 55, 58 [11 O.O.3d 216]. Conversely, where the record contains some evidence supporting the commission’s finding that the claimant is not totally disabled, its findings will not be disturbed (State, ex rel. Allerton, v. Indus. Comm. [1982], 69 Ohio St. 2d 396, 397 [23 O.O.3d 358]) unless the claimant has produced “reliable, probative, and substantial” evidence to support his claim of permanent total disability. State, ex rel. Thompson, v. Fenix & Scisson, Inc. (1985), 19 Ohio St. 3d 76, syllabus. In such a case, the commission must show some evidence to the contrary which “meets such standards” in order to justify its order denying those benefits. Id. In the instant case we note that appellant’s evidence, contained in Dr. King’s report, was reliable, probative, substantial and definite. In contrast, the evidence given by Dr. McCloud to support the commission’s determination that appellant was not permanently and totally disabled was demonstrably not reliable, probative, or substantial because of Dr. McCloud’s equivocation in deposition. In his report, Dr. King opined that appellant’s significant work-related impairment,1 viewed in light of his age, lack of education, and lack of job skills, left him totally unsuited for any future gainful employment.2 Dr. King’s well-considered findings are factually supported and his conclusion concerning the extent of appellant’s disability is reliable, probative, and substantial evidence supporting appellant’s claim. The decision of the commission, however, reflects the opinion contained in Dr. McCloud’s report, in which he stated that appellant was not totally impaired. In contrast, to Dr. King’s steadfast conclusion that appellant was totally disabled and hence unemployable, Dr. McCloud, subsequent to his medical report, changed his view concerning the effect appellant’s impairment had on his employment prospects. For example, during deposition, Dr. McCloud first agreed with Dr. King’s evaluation as to appellant’s total disability, then stated that appellant was not unfit for some type of gainful employment and then again specifically agreed with Dr. King’s findings as to both appellant’s impairment and total disability. [74] At worst, Dr. McCloud contradicted himself; at best, his conclusion that appellant was not totally disabled was equivocal. This court faced a strikingly similar situation in State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St. 3d 72. In that case, a physician examined the appellant at the commission’s request and produced a report which stated that appellant was totally disabled but might be able to return to work if “motivated.” We held that such an equivocal report “does not constitute evidence upon which the commission may either grant or deny appellant’s application” for permanent total disability benefits. Id. at 76. See State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St. 3d 101. In the instant case, the physician’s equivocation came at deposition, where counsel for both parties elicited Dr. McCloud’s opinion as to the extent of appellant’s disability. Dr. McCloud’s opinions on that issue were part of the record and were admittedly relied upon by the commission. The apparent uncertainty in Dr. McCloud’s position gives the commission an insufficient basis to support its order denying appellant permanent total disability benefits.3 Accordingly, we conclude that there is reliable, probative, and substantial evidence in support of appellant’s claim. While the record also contains some evidence to the contrary, it does not meet the above standards and thus cannot support the commission’s denial of the claim. We therefore hold that mandamus will issue where the record contains reliable, probative, and substantial evidence supporting a claim for permanent total disability benefits and the decision of the Industrial Commission to the contrary is based solely on a medical report where the reporting physician, during a later deposition, equivocates or contradicts his opinion concerning the extent of disability. The judgment of the court of appeals is reversed and the writ prayed for is allowed. Judgment reversed and writ allowed. Sweeney, C. Brown and Douglas, JJ., concur. Locher, Holmes and Wright, JJ., dissent. Footnotes [1] Although Dr. King used the terms “impairment” and “disability” interchangeably, a fair reading of his report makes clear that he concluded that appellant had incurred a twenty-five to thirty percent physical impairment, which, when viewed against appellant’s age, education and work experience, resulted in a permanent total disability. See Meeks v. Ohio Brass Co. (1984), 10 Ohio St. 3d 147, 149. [2] The Medical Examination Manual of the commission states, at page vi, that permanent total disability “* * * is established when the injury has caused the injured worker to be unfit for sustained remunerative employment.” This court requires that determinations of disability be based on the claimant’s ability to return to the type of work for which he or she is qualified. State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630 [23 O.O.3d 518]. [3] In the case at bar, both doctors spoke to both impairment and disability. We recognize that determinations as to extent of impairment are medical in nature, while determinations as to extent of disability are administrative in nature. State, ex rel. Dallas, v. Indus. Comm. (1984), 11 Ohio St. 3d 193. However, the commission itself often refers to and relies on doctors’ opinions as to extent of disability when making its determination as to permanent total disability benefits. State, ex rel. Kokocinski, v. Indus. Comm. (1984), 11 Ohio St. 3d 186, 188. Such is the case here. The commission relied on Dr. McCloud’s statement that appellant was not unfit for gainful employment, yet disregarded the doctor’s later statements agreeing with Dr. King that appellant was totally disabled. The commission cannot claim that it alone determines extent of disability when it makes this determination solely by relying on an equivocating medical expert.