The opinion
[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 89.]
THE STATE EX REL. PATE, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO,
APPELLEE.
[Cite as State ex rel. Pate v. Indus. Comm., 2002-Ohio-5444.]
Workers’ compensation—Application for permanent and total disability
compensation—Industrial Commission denies claimant’s motion to
depose examining bureau doctor—Industrial Commission did not abuse
its discretion in denying claimant’s request to depose examining bureau
doctor, when.
(No. 2001-2236—Submitted September 25, 2002—Decided October 23, 2002.)
APPEAL from the Court of Appeals for Franklin County, No. 01AP-76.
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Per Curiam.
{¶1} The workers’ compensation claim of appellant-claimant, Sandra J.
Pate, has been recognized for, among other things, depression and anxiety. In 1997,
she applied to appellee, Industrial Commission of Ohio, for permanent and total
disability compensation. Attending psychiatrist Dr. Norman I. Hirsch opined that
claimant’s psychiatric condition, “[e]specially in relation to her age and her
physical disabilities,” rendered her permanently and her totally disabled.
{¶2} Dr. Donald L. Brown also examined claimant. Excluding claimant’s
physical condition and nonmedical disability factors from consideration, he
commented exclusively on claimant’s psychiatric condition and concluded that it
did not bar her from all sustained remunerative work.
{¶3} Claimant moved to depose Dr. Brown. The commission denied the
motion, stating:
{¶4} “The Staff Hearing Officer finds that Dr. Brown evaluated the
claimant for the allowed psychological conditions in this claim at the request of the
SUPREME COURT OF OHIO
Industrial Commission on the issues raised by the claimant’s Permanent Total
Disability Application. The Staff Hearing Officer further finds that Dr. Brown
considered only the allowed psychological conditions and expressed his opinion to
the questions posed in a clear and unambiguous manner. The Staff Hearing Officer
further finds that there is no substantial disparity between the opinions of Dr. Brown
and Dr. Hirsch. While Dr. Hirsch opines that the claimant is permanently and
totally disabled, he considers the claimant’s non-medical disability factor of ‘her
age’ in combination with her physical disabilities. Dr. Brown confined his opinion
to the claimant’s impairment related to the allowed psychological conditions only.
The Staff Hearing Officer finds that any difference of opinion with respect to the
claimant’s limitations considering the allowed psychological conditions is evidence
to be considered and weighed in the hearing process.”
{¶5} Claimant petitioned the Court of Appeals for Franklin County for a
writ of mandamus to compel the commission to permit her to depose Dr. Brown.
She was unsuccessful, prompting her appeal as of right to this court.
{¶6} Claimant seeks to depose Dr. Brown, alleging both internal
inconsistency in his report and a substantial disparity between Dr. Brown’s report
and Dr. Hirsch’s. Although an inconsistent report and substantial disparity among
experts were once recognized as legitimate factors for determining the
reasonableness of a request to depose a physician, they have since been sharply
criticized. In State ex rel. Cox v. Greyhound Food Mgt., Inc., 95 Ohio St.3d 353,
2002-Ohio-2335, 767 N.E.2d 1155, at ¶ 18-19, we discussed the problems with
using substantial disparity as a justification for deposition:
{¶7} “{¶ 18}The term ‘substantial disparity’ is undefined in the context of
permanent total disability. In our only two encounters with the term, ‘substantial
disparity’ was approached from a strictly numerical standpoint, comparing the
percentages of doctor-assessed impairment. This approach worked in State ex rel.
General Motors Corp. v. Indus. Comm. (1976), 47 Ohio St.2d 244, 251-252, 1
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January Term, 2002
O.O.3d 141, 351 N.E.2d 442, where the issue was permanent partial disability
(“PPD”), partly because in PPD cases, ‘substantial disparity’ is defined as a
difference of fifteen percent or more. Ohio Adm.Code 4121-3-15(3)(c). The
approach did not work in Williams v. Moody’s of Dayton, Inc., (1982), 1 Ohio St.3d
238, 1 OBR 260, 438 N.E.2d 1162, a temporary total disability case. The
Administrative Code speaks to a ‘substantial disparity * * * on the issue that is
under contest.’ The key to eligibility for temporary total disability benefits is not
the percentage of disability—it is whether the claimant can return to the former
position of employment. Substantial disparity between percentage figures can be
irrelevant in such cases. Doctors can assign wildly different disability percentages,
yet agree that a claimant can work, which is the scenario here.
{¶8} “{¶ 19}Moreover, even without numerical comparison, the
substantial-disparity criterion often does not recognize the fundamentals of the
hearing process. Disability hearings occur precisely because there is a disparity in
the medical evidence. Unanimity does not usually generate a hearing. To the
contrary, the need for a hearing generally arises when one doctor says that a
claimant can work and the other disagrees. They are completely opposite opinions
and that is why there is a hearing—to debate a disputed report’s strengths and
weaknesses. Once the hearing is concluded, the commission can accept the
disputed report or reject it as unpersuasive.” (Emphasis sic.)
{¶9} We made a similar observation on the issue of internal inconsistency:
{¶10} “[T]he commission, in its prerogative, can disqualify as fatally
flawed a report that is so internally inconsistent as to negate its credibility. Because
this is a potential problem that the commission can address and remedy without
resort to deposition, it is not an abuse of discretion for the commission to elect to
do so.” Cox, 95 Ohio St.3d 353, 2002-Ohio-2335, 767 N.E.2d 1155, at ¶ 27.
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SUPREME COURT OF OHIO
{¶11} Finally, cognizant that a reasonableness standard is used to evaluate
a motion to depose a commission or bureau doctor, Ohio Adm.Code 4121-3-
09(A)(6)(c) and (d), we concluded:
{¶12} “[T]he code’s [Ohio Adm.Code 4121-3-09(A)(6)(d)] first two
criteria [(1) whether a substantial disparity exists between various medical reports
on the issue that is under contest, and (2) whether one medical report was relied
upon to the exclusion of others], in most cases, are not very useful in determining
the reasonableness of a deposition request. Fortunately, Ohio Adm.Code 4121-3-
09(A)(6)(d)’s use of the word ‘include’ in listing criteria implies that other factors
may be considered as circumstances dictate. In this case, we indeed rely on two
other criteria: (1) Does a defect exist that can be cured by deposition? and (2) Is the
disability hearing an equally reasonable option for resolution?” Id. at ¶ 24.
{¶13} In the present case, Dr. Brown and Dr. Hirsch disagree on claimant’s
ability to work. This disagreement, however, is capable of resolution through a
hearing where the commission may accept or reject Dr. Brown’s report as
persuasiveness dictates. We also find any alleged internal inconsistency amenable
to resolution by the same process.
{¶14} Accordingly, we find that the commission did not abuse its discretion
in denying claimant’s request to depose Dr. Brown. The judgment of the court of
appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., RESNICK, F.E. SWEENEY, COOK and LUNDBERG STRATTON,
JJ., concur.
DOUGLAS, J., dissents.
PFEIFER, J., dissents and would allow the taking of the doctor’s deposition.
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Butkovich, Schimpf, Schimpf & Ginocchio Co., L.P.A., James A.
Whittaker and Stephen P. Gast, for appellant.
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January Term, 2002
Betty D. Montgomery, Attorney General, and Daniel M. Hall, Assistant
Attorney General, for appellee.
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