State ex rel. Zalud Oldsmobile, Inc. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Zalud Oldsmobile, Inc., Appellant, v.
Industrial Commission of Ohio et al., Appellees.
[Cite as State ex rel. Zalud Oldsmobile, Inc. v. Indus.
Comm. (1992), Ohio St.3d .]
Workers' compensation -- Doctors' reports are not "some
evidence" supporting an award of temporary total
disability compensation, when.
(No. 91-606 -- Submitted May 12, 1992 -- Decided September
2, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
89AP-634.
Appellee-claimant, Joseph L. Mudri, worked as an auto
mechanic for thirty-two years with appellant, Zalud Oldsmobile,
Inc. His duties included brake repair, which exposed him to
asbestos. For forty years, claimant also smoked one and
one-half packs of cigarettes a day.
Claimant last worked on February 19, 1987. One week
later, claimant filed an occupational disease claim with
appellee Industrial Commission of Ohio, alleging that he had
contracted asbestosis and respiratory lung disease while in the
course of his employment with appellant. Medical evidence
before the commission included reports from Dr. Lawrence Martin
and attending physician Dr. Anthony DiMarco. Dr. DiMarco's
reports diagnosed asbestosis due to work exposure. He
concluded that claimant was permanently and totally disabled as
a result. Dr. Martin specifically opined that claimant did not
have asbestosis, and diagnosed asbestos-related pleural disease
and obstructed airways disease from smoking. The doctor stated
that claimant's respiratory impairment prevented a return to
his former position of employment. Dr. Martin could not,
however, "apportion the cause of claimant's impairment between
cigarettes and asbestos," finding it "difficult if not
impossible to quantitate the relative contributions of both
causes."
A commission district hearing officer allowed the claim
for "asbestos pleural disease" and, based on the reports of
Drs. Martin and DiMarco and medical reports on file, awarded
temporary total disability compensation from "2-20-87 through
2-1-88, and to continue." The order was administratively

affirmed.
Appellant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in awarding temporary total disability
compensation. The court of appeals disagreed. While it found
that neither the reports of Dr. Martin or DiMarco, standing
alone, supported temporary total compensation, it concluded
that a cumulative reading of their reports did.
This cause is now before this court upon an appeal as of
right.

Millisor & Nobil, John R. Slater, Keith L. Pryatel and Tod
T. Morrow, for appellant.
Lee I. Fisher, Attorney General, Dennis L. Hufstader and
William J. McDonald, for appellee Industrial Commission.
Sanislo, Bacevice & Associates and John P. Bacevice, for
appellee Mudri.

Per Curiam. The parties agree that claimant's
respiratory difficulties prevent him from resuming his former
position of employment. Dr. DiMarco diagnosed asbestosis,
related it to work exposure, and concluded that claimant was
totally disabled as a result. On the other hand, Dr. Martin
found no asbestosis attributable to work exposure, only pleural
disease. He also diagnosed obstructed airways disease due to
claimant's chronic smoking. While both causes contributed to
claimant's disability, Dr. Martin could not quantify their
respective contributions. We must determine whether these
reports are "some evidence" supporting an award of temporary
total disability compensation from February 20, 1987 through
February 1, 1988. State ex rel. Burley v. Coil Packing, Inc.
(1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. We find
that they are not.
The appellate court correctly concluded that neither the
reports of Drs. Martin nor DiMarco, standing alone, provided
"some evidence" of temporary total disability. Dr. Martin's
report fails to provide some evidence because it partially
attributes claimant's inability to work to a nonindustrial
obstructed airways disease. See State, ex rel. Burdette v.
Dayton Walther Corp. (1984), 14 Ohio St.3d 29, 14 OBR 331, 470
N.E.2d 897 (the presence of other nonindustrial lung problems
precludes a finding of permanent total disability in a
respiratory occupational disease claim). See, also, State ex
rel. Frigidaire Div., Gen. Motors Corp. v. Indus. Comm. (1988),
35 Ohio St.3d 105, 518 N.E.2d 1194 (commission can abuse its
discretion by relying on a report that partially attributes
disability to a nonallowed condition) and State ex rel. Taylor
v. Indus. Comm. (1982), 7 Ohio App.3d 263, 7 OBR 343, 455
N.E.2d 513 (no evidence in file exists to support a claim of
permanent and total disability when a physician fails to
specifically attribute disability to an allowed condition).
Unlike Dr. Martin, Dr. DiMarco attributes claimant's
condition exclusively to a nonallowed condition -- asbestosis.
As the parties and examining physicians agree, "asbestosis" and
"asbestos pleural disease" are distinct terms that should not
be used interchangeably. Accordingly, Dr. DiMarco's reports do
not support a temporary total disability compensation award.

The appellate court's cumulative reading of the doctors'
reports - - which pieced together Dr. DiMarco's work-related
disability certification with Dr. Martin's accepted diagnosis -
- conflicts with State ex rel. Zamora v. Indus. Comm. (1989),
45 Ohio St.3d 17, 543 N.E.2d 87. Under Zamora, the commission
cannot rely on a report that it rejected to deny a claim.
Here, Dr. DiMarco diagnosed asbestosis. Dr. Martin disagreed
and the commission accepted his diagnosis. In so doing, the
commission inherently rejected part of Dr. DiMarco's reports.
Thus, Dr. DiMarco's reports that diagnose asbestosis could not
be some evidence supporting temporary-total-disability
compensation and can not be part of any cumulative reading.
Appellant also claims that the commission's order does not
fulfill the evidentiary specificity requirements of State ex
rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d
481, 6 OBR 531, 453 N.E.2d 721. This contention fails.
Mitchell was intended to assist courts in their review of
commission orders. The order at bar is capable of our review
as written and does not require more elaborate explanation.
For the reasons discussed above, the judgment of the court
of appeals is reversed.
Judgment reversed.
Moyer, C.J., Sweeney, Holmes, Wright and H. Brown JJ.,
concur.
Douglas and Resnick, JJ., dissent.
Douglas, J., dissenting. I would affirm, in all
respects, the judgment of the court of appeals.
Resnick, J., concurs in the foregoing dissenting opinion.