# State ex rel. Smith v. Industrial Commission > Ohio Supreme Court · August 20, 1986 · 26 Ohio St. 3d 128 URL: https://www.frixlaw.com/law-library/cases/6759513 ## Case - **Full name:** The State, ex rel. Smith v. Industrial Commission of Ohio - **Court:** Ohio Supreme Court - **Decided:** August 20, 1986 - **Citations:** 26 Ohio St. 3d 128; 26 Ohio B. 110; 498 N.E.2d 447; 1986 Ohio LEXIS 757 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Brown, Celebrezze, Douglas, Holmes, Locher, Sweeney, Wright - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6759513 ## Opinion text Clifford F. Brown, J., dissenting. Because I believe that the report relied on by the Industrial Commission in its order cannot constitute evidence capable of supporting that order, I dissent. The order of the commission reads: “The medical reports of Drs. Wolf and Reynolds were reviewed and evaluated. The findings and order are based particularly on the medical report of Dr. Reynolds, the evidence in the file, and the evidence adduced at the hearing.” It is clear that the report of Dr. Reynolds was the sole report relied upon by the commission. The statement that the medical report of Dr. Wolf was “reviewed and evaluated” is not to be interpreted to mean that Dr. Wolf’s report was relied upon by the commission. Therefore, the only report this court should evaluate is the report of Dr. Reynolds. State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481 . In my view, Dr. Reynolds’ report cannot constitute evidence on which the commission may rely to support its order. I concur with the analysis of the court below in this regard. In excluding Dr. Reynolds’ report from evidentiary consideration, the court of appeals resorted to its decision in State, ex rel. Brown, v. Indus. Comm. (1983), 13 Ohio App. 3d 178 . There, the court stated: ¡<* * *[An] 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.” Id. at 179 . I find this analysis very persuasive. I believe that for the reasons outlined by the Brown court, Dr. Reynolds’ report, which was unsigned and unread, cannot constitute evidence that the appellant was not permanently and totally disabled. While the plurality opinion today acknowledges that the report of Dr. Reynolds is “difficult to accept,” it proceeds to evade this little *135 “difficulty” by stating that “the report of Dr. Wolf fully substantiates the findings of the commission. Such report, although not emphasized, was certainly ‘evidence in the file’ which was also ‘adduced at the hearing. ’ ” (Emphasis added.) Readers who are at all familiar with the case law in this area will most certainly be scratching their heads over this statement. It completely ignores one of the most significant cases to be announced by this court in recent years: State, ex rel. Mitchell, v. Robbins & Myers, Inc., supra. In Mitchell, we held that “district hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is not entitled to the benefits requested. Moreover, this court will no longer search the commission’s file for ‘some evidence’ to support an order of the commission not otherwise specified as a basis for its decision. ” (Emphasis added.) Id. at 483-484 . Today’s plurality is apparently in such haste to reach its result-oriented judgment that it cannot be bothered either to analyze Mitchell’s applicability in any meaningful way, or overrule it, which would be the only honest way to reach the result herein. There is simply no conceivable way that the order of the commission can satisfy Mitchell once the report of Dr. Reynolds is discounted. The only report specifically relied upon by the commission in its order was that of Dr. Reynolds. Once that report is discounted, as the plurality has done, this court cannot search the file for evidence “not otherwise specified as a basis for its decision.” The plurality today cavalierly does exactly what Mitchell said we would no longer do: it searches the file for other evidence to support the order. Seizing on the report of Dr. Wolf, the plurality then justifies its use by emphasizing that it constitutes “evidence in the file” which was also “adduced at the hearing.” But this sort of approach was precisely what Mitchell was designed to abolish. As we noted therein at 483, the Mitchell file “highlight[ed] a problem which is becoming increasingly prevalent, that is, the commission’s failure to state with any precision the basis for its decisions. Claimants and employers alike, who appear before the commission, are frequently informed that requested benefits are either being granted or denied based on ‘the evidence in the file and/or the evidence adduced at the hearing.’ ” This problem was then resolved by our holding that the commission must state with specificity which evidence and only that evidence it relied on, and must provide a brief explanation of the reason for its order. In its rush to judgment, today’s plurality completely disregards Mitchell in an obviously hastily devised opinion which will serve only to confuse. I might add that Justice Holmes, who joins with the plurality today, praised Mitchell at the time it was announced, stating that he was “in wholehearted agreement with the policy pronouncements” contained *136 therein. Mitchell, supra, at 484 (Holmes, J., concurring in part and dissenting in part). He called the opinion a “salutary one, and long overdue.” Id. He further declared that “[w]hen writing as a judge of the Tenth District Court of Appeals, I opined for just such a rule on a number of occasions.” Id. at 484-485 . Now that “just such a rule” is firmly established in Ohio case law, Justice Holmes is strangely eager to join in its sabotage. His concurrence herein is doubly strange, given his past pontifications on the sanctity of stare decisis. See, e.g., Shroades v. Rental Homes (1981), 68 Ohio St. 2d 20, 29-31 [ 22 O.O.3d 152 ] (Holmes, J., dissenting). Based on the foregoing, I would reverse the judgment of the court of appeals and issue a writ of mandamus directing the commission to find appellant permanently and totally disabled, on the basis that there was no evidence supporting the commission’s order denying such benefits, and there was substantial, reliable and probative evidence, in the form of the report of Dr. Lambert, that appellant was in fact permanently and totally disabled. Dr. Lambert’s report stated that appellant’s disability “certainly is permanent. He would be unable to perform any job which required standing, climbing, walking or heavy lifting.” Dr. Lambert’s evaluation is consistent with the rule, that “determinations of disability be based on a claimant’s ability to return to the type of work for which he or she is qualified.” State, ex rel. Kokocinski, v. Indus. Comm. (1984), 11 Ohio St. 3d 186, 189 . For the foregoing reasons, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6759513. Public record. Not legal advice.