State ex rel. Norman v. Industrial Commission ( 1982 )

Clifford F. Brown, J.

It is well established that the determination of factual situations 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. G F Business Equip., v. Indus. Comm. (1981), 66 Ohio St. 2d 446, 447 [20 O.O.3d 379, 380]. Accordingly, the reports of the four examining physicians must be analyzed to determine whether they support or contradict the decision of the commission.

Dr. DiMauro, who was Mrs. Norman’s treating physician, originally examined her on September 28, 1978, and found that her psychiatric disability was temporary and total. In his April 3, 1980 letter to Mrs. Norman’s attorney, submitted to the commission, he stated his finding that Norman’s psychiatric disability was permanent and total in view of the fact that she had not shown any improvement since she started coming to him for treatment. Thus, he concluded that relator’s psychiatric condition alone caused her to be permanently and totally disabled.

Where 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. State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166, 168 [16 O.O.3d 199, 200]. Here, the issue before the commission was whether Norman, who had previously allowed physical and psychiatric conditions, was now permanently and totally disabled. The rule stated in Anderson, however, applies only to reports which conclude a claimant is not permanently and totally disabled. Where a medical report concludes that a claimant is permanently and totally disabled on the basis of one condition alone, the Anderson test does not preclude use of that report as evidence of claimant’s permanent and total disability. In this instance, since Dr. DiMauro had concluded that relator’s psychiatric condition alone caused her to be permanently and totally disabled, there was no need to specifically mention her back problems. Relator’s reactive depression arising from the original physical injury, was found to have totally and permanently disabled her, and was probative evidence of that fact before the commission.

The reports of Drs. Kraus, Reynolds and Caruso did not find Norman to ■ be permanently and totally disabled.¹ Each physician, however, examined her physical or psychiatric condition in isolation, without considering whether the combined effect of her physical and emotional problems made her permanently and totally disabled. This failure in all three reports to consider Norman’s condition as a whole renders the reports “no evidence” under the Anderson test.

This case presents a textbook example of the different responsibilities incumbent on examining physicians reporting in connection with a claim for permanent and total disability. If a physician states one is permanently and totally disabled as the result of an allowed condition alone, there is no need for the physician also to evaluate other allowed conditions. There are not degrees of total disability. One is either able to work or not able to work. However, if a physician determines that one is not permanently and totally disabled as the result of one condition, the physician must continue and analyze the additional allowed conditions to determine their combined effect upon the injured worker evaluated. This is the real meaning of Anderson, supra. Obviously, one must look at the person as a whole in evaluating whether they can work or not.

Because the three reports finding relator not permanently and totally disabled did not consider the whole person, there was no evidence on which the commission could rely in denying total disability to Norman. The only evidence before the commission which did evaluate the person as a whole, i.e., the evaluation by Dr. DiMauro, supported the conclusion that additional compensation was warranted.

Accordingly, it was an abuse of discretion for the commission to deny relator a permanent and total disability award. Finding relator’s grounds for a writ of mandamus well taken, the judgment‘of the Court of Appeals is reversed and the writ is hereby allowed.

Judgment reversed and writ allowed.

Celebrezze, C.J., W. Brown and Sweeney, JJ., concur. Locher, Holmes and Krupansky, JJ., dissent.

1 The report of Dr. Reynolds, on which the commission expressly relied, concluded that “[i]t is my feeling that * * * [claimant] is not permanently and totally impaired as a result of this injury. I do not feel her percentage of impairment is any greater than that 62% which has been previously awarded.” Dr. Reynolds failed to use any language indicating he had considered her psychiatric impairment. Because he did not consider Norman’s condition as a whole, this report should not have been probative evidence that Norman was not permanently and totally disabled.

The report of Dr. Kraus, nearly three times the length of that of Dr. Reynolds, was not expressly relied on by the commission, perhaps because he concluded as follows:

“OPINION: It is my understanding that this claimant has received an overall permanent partial disability award of Sixty-Two Percent (62%) under Claim No. 69-37885. Therefore, it is my opinion that she has been fully compensated for her orthopaedic injury resulting from this claim. She is not permanently and totally disabled solely on the basis of her allowed orthopaedic condition. However, the ‘reactive depression’ is another matter, and this should be evaluated by a psychiatrist. It may well be that the combination of the psychiatric condition plus her orthopaedic condition does render her permanently and totally disabled, but this would depend upon the additional overall permanent partial disability awarded to the psychiatric problem by a psychiatrist.” Thus, Dr. Kraus straightforwardly recognized that he had not treated the whole person, and thus his report could not be evidence that Norman was not permanently and totally disabled.

The fourth report of an examining physician, by Dr. Caruso, considered relator’s psychiatric condition alone and found her partially disabled by a post-traumatic stress disorder in the amount of 15 percent. This report, because it did not consider Norman’s previous allowed injury, like the other commission-ordered examinations, cannot constitute evidence on which the commission may rely when it denies an award for permanent and total disability.