State ex rel. Frigidaire, Inc. v. Indus. Comm.

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The State ex rel. Frigidaire, Inc., f.k.a. White Consolidated

Industries, Appellant, v. Industrial Commission of Ohio,

Appellee.

[Cite as State ex rel. Frigidaire, Inc. v. Indus. Comm.

(1994), Ohio St.3d .]

(No. 93-811 -- Submitted June 15, 1994 -- Decided August

31, 1994.)

Appeal from the Court of Appeals for Franklin County, No.

92AP-232.

Claimant, Wayne Ousley, sustained three industrial

injuries in the course of and arising from his employment with

appellant Frigidaire, Inc., f.k.a. White Consolidated

Industries, in 1984 and 1985. Awards have been collectively

allowed for "trauma to thoracic and lumbar spine, laceration to

the back of head, aggravation of pre-existing arthritis of the

lumbar and thoracic spine." In 1988, claimant moved appellee,

Industrial Commission of Ohio, for permanent total disability

compensation. The sole evidence submitted by claimant was a

report from attending physician, Dr. Elizabeth Reed, that read

in its entirety:

"The above patient is totally & permanently disabled, due

to back injury (Trauma aggravating arthritic changes in lumbar

& thoracic spine). He is able to walk short distances but is

unable to do any lifting or work.

"He is using some hydrotherapy and taking Motrin at the

present time.

"He also shows considerable depression & nervousness for

which he takes Elavil. This may be related to the head injury

& laceration."

Claimant was examined on Frigidaire's behalf by Drs. R. C.

Stastny and Thomas H. Brown, Jr. Stastny felt that claimant

had no impairment attributable to the allowed conditions and

could resume "his normal activities without restriction and

without impairment on a full-time basis." Stastny commented

that claimant's "problems are more psychogenic with a strong

functional overlay."

Dr. Brown's physical findings were essentially the same as

Stastny's, but prompted a different conclusion. Brown

prohibited claimant from heavy lifting, bending and stooping,

and limited claimant to sedentary work. Commission physician

Dr. John Kissel felt claimant had a five to ten percent

neurological impairment and could return to his former position

of employment. Dr. W. Jerry McCloud found a fifty percent

permanent partial orthopedic impairment. He felt claimant

could not return to his former job but could do other work. A

combined effects review by Dr. Paul H. Dillahunt assessed a

fifty percent permanent partial impairment with a capacity for

light work.

On April 10, 1990, the commission granted claimant

permanent total disability compensation in a standard

boilerplate order. Frigidaire's complaint in mandamus

generated a return to the commission for an order that

satisfied State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio

St.3d 203, 567 N.E.2d 245.

The commission again awarded permanent total disability

compensation based:

"* * * particularly on the medical report of Dr. Reed, the

evidence in the file and the evidence adduced at the hearing.

"Mr. Ousley is 62 years of age, has an eighth grade

education and has worked primarily as a millwright. He was

examined and judged as permanently and totally disabled by Dr.

Reed. Mr. Ousley has an employment history of being a heavy

laborer, which he cannot return to due to his back injuries.

With all factors considered, Mr. Ousley is permanently and

totally disabled."

Frigidaire filed a second complaint in mandamus in the

Court of Appeals for Franklin County, reasserting that the

commission abused its discretion in granting permanent total

disability compensation. The appellate court denied the writ.

This cause is now before this court upon an appeal as of

right.

Baran, Piper, Tarkowsky & Fitzgerald Co., L.P.A., and John

Tarkowsky, for appellant.

Lee Fisher, Attorney General, and William J. McDonald,

Assistant Attorney General, for appellee.

Per Curiam. Frigidaire asserts that Dr. Reed's report

does not support a permanent total disability award. We

disagree and affirm the judgment of the court below.

Contrary to Frigidaire's contention, the report satisfies

the most fundamental permanent total disability requirement --

relating a total inability to work exclusively to claimant's

allowed conditions. Reed specifically says that claimant's

inability to work is "due to back injury." This establishes

the requisite causal relationship and invalidates Frigidaire's

suggestion that Reed's disability opinion was based in part on

a nonallowed problem due to depression.

Frigidaire also alleges a lack of supportive findings in

the report. We again disagree. Although skimpy, the report

pinpoints the claimant's arthritic condition as the source of

his problems. It also indicates that claimant cannot do

lifting and is restricted to brief walking, both of which would

impact on his ability to work. Given the commission's

authority to evaluate evidentiary weight and credibility, its

decision to rely on Reed's report is not an abuse of discretion.

The commission's reliance on evidence of a medical

incapacity for work dispenses with the need for an evaluation

of the commission's treatment of claimant's nonmedical

factors. State ex rel. Galion Mfg. Div., Dresser Industries,

Inc. v. Haygood (1991), 60 Ohio St.3d 38, 573 N.E.2d 60.

Accordingly, we find that "some evidence" supports the

commission's order. State ex rel. Burley v. Coil Packing, Inc.

(1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936.

The appellate court's judgment is hereby affirmed.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.

Sweeney and Pfeifer, JJ., concur.