State ex rel. Rouch v. Eagle Tool & Machine Co.

Clifford F. Brown, J.,

dissenting. In its continuing scheme to completely gut the workers’ compensation system in Ohio, today’s plurality lowers its sights on previous rulings from this court which sought to ensure that the system functions fairly, equitably and responsibly. Today’s plurality decision attempts to destroy the viability of two of the best workers’ compensation holdings to emanate from this court in recent years: State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [ 16 O.O.3d 199 ], and State, ex rel. Thompson, v. Fenix & Scisson, Inc. (1985), 19 Ohio St. 3d 76 .

In Anderson, we held that “where the issue before the commission is whether a claimant is permanently and totally disabled on account of the combined effect of two or more allowed conditions, medical testimony not evaluating the combined effect of those conditions cannot constitute evidence that the claimant is not permanently and totally disabled.” Id. at 168 . The logic and justice of this holding are indisputable. If the claimant alleges that he is permanently and totally disabled as a result of the combination of two or more allowed conditions, a medical report evaluating fewer than all those conditions is simply not probative on the question of whether the claimant is in fact permanently and totally disabled. Our holding in Anderson merely requires the commission to discount evidence which is not germane to the issue at hand.

Under the guise of “modifying” Anderson, today’s plurality actually is *222 attempting to repudiate and overrule it totally. 12 Now, the commission is free to seize on any report, no matter how unreliable or nonprobative, to “support” its decision, regardless of whether the report is actually relevant to the issue of combined effect and the extent of disability. As a result, the Industrial Commission’s orders and awards in such cases will be, practically speaking, virtually unreviewable. Today’s plurality has taken one more step toward its goal: to disembowel the appellate review of workers’ compensation cases for the purpose of frustrating the claimant and favoring employers.

The next martyr in the plurality’s war against justice for workers is State, ex rel. Thompson, v. Fenix & Scisson, Inc. (1985), 19 Ohio St. 3d 76 . In Thompson, this court held that:

“Where the record before the Industrial Commission contains reliable, probative, and substantial evidence in accordance with the law to support a factual finding and determination that a claimant is permanently and totally disabled, and there is no evidence to the contrary which meets such standards, a determination of the commission that the claimant is not permanently and totally disabled is an abuse of discretion by the commission for which the claimant will be afforded relief in an action in mandamus.” Id. at syllabus.

The reasonableness and justice of this holding are self-evident. It simply states that where the record contains ample, legally acceptable evidence supporting the claimant’s position, and no such evidence to the contrary, the commission abuses its discretion when it finds against the claimant. But today’s plurality apparently is convinced that this ruling requiring the commission to issue just, fair and equitable orders places too heavy a burden on that body, and may actually require it to find for the claimant in some cases. Thus, Thompson, like Anderson, is “modified,” which in this case means “overruled.”

I also reject the plurality’s arrant use of the much-maligned “some evidence” language. I have repeatedly expressed my abhorrence of this nonstandard, on the basis that it is constantly twisted and abused in an effort to uphold any order of the Industrial Commission, no matter how insupportable, unjust, or nonsensical. Too often this senseless “rule” is construed to mean that the order of the commission must be upheld even if it is supported by only a scintilla of non-evidence.

I will not hestitate to point out the strange phenomenon represented *223 by today’s decision, along with two other cases decided recently: State, ex rel. Milburn, v. Indus. Comm. (1986), 26 Ohio St. 3d 119 , and State, ex rel. Smith, v. Indus. Comm. (1986), 26 Ohio St. 3d 128 . This trio of decisions attempts to deal a heavy blow to the claimant in the workers’ compensation area. Their existence is directly chargeable to Justice Douglas.

Until this sudden and unexplained judicial swerve to the right, Justice Douglas had demonstrated a laudable disposition to champion vigorously the cause of equal justice for the working person while recognizing the rights and interests of employers. One example of what must now be called his previous stance is State, ex rel. Horne, v. Great Lakes Construction Co. (1985), 18 Ohio St. 3d 79 , in which Justice Douglas joined in a salutary opinion holding that a claimant is temporarily and totally disabled as long as his work-related injury keeps him from returning to his former position of employment, meaning the position he held when he was injured. The reader of today’s decision will further be surprised to learn that Justice Douglas also joined in Thompson, supra, another laudable and just decision, which he is now helping to destroy. 13

Further evidence of Justice Douglas’ ambivalence and inconsistency with regard to workers’ rights may be found in State, ex rel. Walters, v. Indus. Comm. (1985), 20 Ohio St. 3d 71 . In Walters, we held that “[mandamus will issue where the record contains reliable, probative, and substantial evidence supporting a claim for permanent total disability benefits and the decision of the Industrial Commission to the contrary is based solely on a medical report where the recording physician, during a later deposition, equivocates or contradicts his opinion concerning the extent of disability.” (Emphasis added.) Id. at syllabus. Justice Douglas concurred in Walters; Justices Locher, Holmes and Wright, with whom Justice Douglas joins today in judgment, dissented. Thus, less than a year ago, Justice Douglas provided the fourth vote necessary to decide a case adopting the “reliable, probative, and substantial evidence” standard which ensures that the commission acts responsibly and fairly. In Smith and Milburn, Justice Douglas, in a complete judicial change of direction, provided the fourth vote necessary to solidify the new majority of four needed to accomplish the unholy mission of stifling and slowing the pro *224 gress this state has made toward justice for our workers. By his refusal today to adhere to his previous stance of protecting our work force and advancing the cause of equal justice for workers, Justice Douglas has signalled the end of the enlightened path this court has taken in recent years. This course of conduct provides a startling illustration of judicial betrayal of a long-defended cause, the cause of justice for workers.

The most recent defense of this now-relinquished cause appears in a cáse decided shortly before this case today. In Egan v. National Distillers & Chemical Corp. (1986), 25 Ohio St. 3d 176, 188-190 , Justice Douglas, in a separate opinion concurring in judgment only, waxed eloquent on his own (now abandoned) devotion to “fundamental fairness” in the area of workers’ compensation. This dedication to the cause of fairness and equity has today been jettisoned.

Accordingly, I would reverse the court of appeals and grant the writ reinstating the payment of temporary total disability compensation to appellant.

It is interesting to note that Justice Douglas expends considerable effort explaining his extreme dislike of Anderson, and yet he refuses to join the plurality in overruling it, for reasons clear only to himself. Were he to join in overruling that decision, which would be the only course of action consistent with his apparent abhorrence for it, he may be perceived as anti-labor — an uncomfortable prospect. Yet, if he were to uphold Anderson, his popularity among businesses and employers might be jeopardized. His solution lies before you: a lengthy, opaque “concurrence in judgment only” in which he painstakingly divorces himself from the consequences of actually taking a position on the case.

In Thompson, supra, we articulated a clear, good and easily understood evidentiary standard for the Industrial Commission in evaluating disability claims, as set forth in the syllabus quoted, supra, in the body of this dissenting opinion. Justice Douglas was one of the four justices concurring in that opinion and syllabus, which now he unequivocally rejects by joining in the present case. This mandamus standard of “reliable, probative and substantial evidence” for testing the validity of disability orders by the Industrial Commission harmonizes with the law concerning the statutory standard and scope of review for testing the validity of administrative agency determinations in other areas, as provided in R.C. 119.12, 3745.06, 3734.05(C)(7), 4112.05(E), 4112.06(E), 4112.061(A), and 4141.26(B). This sound and stable standard of review should not be scrapped for something as malleable, spongy and elusive as the “some evidence” standardless standard.