The opinion
Holmes, J.,
dissenting. Although I must regretfully agree with much of what is said about State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [ 16 O.O.3d 199 ], I believe that the majority too narrowly applies State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [ 22 O.O.3d 400 ], Consequently, I respectfully dissent.
I am compelled to concur in the majority’s holding that the reports of Drs. Cordell, McCloud and Praul may not be considered to directly rebut the reports of Drs. Giray and Bolz. This is mandated by Anderson.
However, Anderson was refined by Teece. In Teece, the claimant had three allowed conditions, two physical and one psychological. The only report which could be considered evidence, that the claimant was totally and permanently disabled, reflected only the claimant’s two physical conditions. Likewise, no report contrary considered all of the claimant’s allowed conditions. Yet this court affirmed the commission’s denial of claimant’s application for permanent and total disability. We held that even though a report, failing to comport with Anderson, could not be used to rebut, it could be considered to test the reliability of a doctor’s specific factual findings upon which he based his conclusion of permanent and total disability. 5 We said, at page 169:
“The holdings in State, ex rel. Anderson, v. Indus. Comm. and State, ex rel. Wallace, v. Indus. Comm., supra, do not require the commission to accept the factual findings stated in a properly qualified medical report at face value *63 and unquestioningly adopt them as those of the commission. To do so would be tantamount to allowing a physician to determine disability rather than the commission. Questions of credibility and the weight to be given evidence are clearly within the commission’s discretionary powers of fact finding. See, generally, State, ex rel. Shelton, v. Indus. Comm. (1929), 121 Ohio St. 41 ; State, ex rel. Ohio Bell Telephone Co., v. Krise (1975), 42 Ohio St. 2d 247 [ 71 O.O.2d 226 ].”
Anderson requires the commission to look beyond the “bottom line”—is the claimant permanently and totally disabled—and consider which allowed conditions underlie that conclusion. Teece allows the commission to examine the factual findings of all reports to assess the reliability of those which concluded that the claimant is totally and permanently disabled. The thrust of this inquiry is not whether there is “some evidence” to support the commission’s denial of permanent and total disability, but, rather, did the claimant establish his right to a finding of permanent and total disability in the first instance.
Where, as here, specific factual findings of the claimant’s doctor are directly contradicted by those of other doctors, I would hold that the commission does not abuse its discretion in refusing to award permanent and total disability.
Accordingly, I would reverse the judgment of the Court of Appeals. 6
Krupansky, J., concurs in the foregoing dissenting opinion.
Arguably, Teece could have rested on somewhat narrower grounds. Since the claimant’s doctor based his conclusion on only the allowed physical conditions, there is no reason, under the Anderson rule of preclusion, not to consider a contrary report based upon the same conditions. It appears this is the basis for the majority’s narrow reading of Teece.
Although the commission has not appealed the judgment, it is incumbent upon this court to consider whether any writ of mandamus is appropriate here. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141 [ 40 O.O.2d 141 ].