State Ex Rel. Brown v. Industrial Commission , 13 Ohio App. 3d 178 ( 1983 )

This is a mandamus action. Relator contends that the Industrial Commission of Ohio grossly abused its discretion in finding him not temporarily totally disabled subsequent to December 28, 1981.

Relator, while in the course of and arising out of his employment as a teacher with the Columbus Board of Education in Franklin County, Ohio, injured his back while lifting cartons of books and supplies. He filed a claim for workers' compensation. This claim was allowed for "acute lumbar strain," and relator was awarded temporary total disability benefits from June 17, 1978 to December 28, 1981.

Relator continued to receive temporary total disability benefits based on the reports of his attending physician, Dr. John B. Roberts, and as a result of an order by a district hearing officer, dated May 6, 1981, ordering that temporary total compensation continue to be paid.

Relator was examined by Dr. William Reynolds on August 25, 1981, at the request of the commission. The purpose of the examination was to determine relator's extent of disability. Dr. Reynolds found relator to have a temporary partial disability "in the range of 40% on a subjective basis." Thereafter, the district hearing officer, on December 11, 1981, determined the extent of relator's disability at fifty percent temporary partial. This was based on the reports of Dr. Roberts, who found total disability, and Dr. Reynolds, who found, as noted above, forty percent medical disability. This order was affirmed by the Regional Board of Review and the commission.

The substance of relator's argument is that the report of Dr. Reynolds cannot constitute some evidence to support the order, because it was dictated but not read or signed. Since this report is not probative of the extent of disability, he argues, there is no evidence to support the order.

It is well-settled that relator has the burden of showing a clear legal right to a writ of mandamus. State, ex rel.Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141]. Such a clear legal right exists when relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State, ex rel.Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9 [58 O.O.2d 66]. Nonetheless, when the record contains some evidence to support the commission's finding, there has been no abuse of discretion by the commission, and mandamus will not lie. State, ex rel. G FBusiness Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446 [20 O.O.3d 379].

This court is mindful of the heavy caseload and administrative responsibilities of the Industrial Commission. Nevertheless, it is reiterated that the unsigned report cannot be proper evidence. A critical issue must not depend upon an unsigned physician's report. The potential for inaccuracy is too great to depend upon such a statement. Respondent contends that such a report has no less validity than a doctor's deposition. A deposition, however, is taken under oath upon timely notice to all parties with cross-examination permitted of the witness. See Civ. R. 30. Such protections for accuracy afforded by Civ. R. 30 are not present in the physician's medical report at issue in this case.

Accordingly, a limited writ of mandamus is granted for a new hearing and redetermination based on the actual signed report of Dr. Reynolds in proper form.

Limited writ of mandamus granted.

WHITESIDE, P.J., and STRAUSBAUGH, J., concur.