State ex rel. Verbanek v. Industrial Commission

Per Curiam. One issue is presented: Is Dr. Boutouras’ report “some evidence” supporting the denial of payment for medical services? For the reasons to follow, we find that it is not. State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 19, 543 N.E.2d 87, 89, stated that “it [is] inconsistent to permit the commission to reject * * * [a] report at one level, for whatever reason, and rely on it at another.” In this case, the commission expressly relied on Dr. Boutouras’ report. Two elements of that narrative are relevant — his recitation of claimant’s prior history and his assessment of zero-percent impairment. The latter was clearly rejected when the fifteen-percent award of permanent partial disability was made, so it could not be relied upon /later. We recognize that the credibility of claimant’s recited history does not depend on Boutouras’ impairment assessment and is, thus, in a sense, severable from it. However, even if the recited-history element of the report was somehow preservable under an exception to Zamora, it would be insufficient to sustain the commission’s decision. We are not convinced that the commission could have reached its decision without reliance upon the zero-percent impaired assessment [564] that eliminated claimant’s industrial injury as a potential source of claimant’s renewed back problems. Finding that a crucial element of the commission’s reasoning is unsupported by “some evidence,” the judgment of the court of appeals is hereby reversed and the writ of mandamus is allowed. Judgment reversed and writ allowed. Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur. Wright, Pfeifer and Cook, JJ., dissent.