State ex rel. Clark v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Clark, Appellant, v. Industrial Commission of Ohio, Appellee.
[Cite as State ex rel. Clark v. Indus. Comm. (1997), ___ Ohio St. 3d ___.]
Workers' compensation -- Application for permanent total disability
compensation held in abeyance pending another medical
examination and combined-effects review -- Industrial
Commission abuses its discretion under former R.C. 4123.53,
where record fails to disclose that additional medical
examinations are necessary in determining permanent total
disability.
- -
The Industrial Commission abuses its discretion under former R.C. 4123.53,
where the record fails to disclose that additional medical examinations
are necessary or of assistance in determining permanent total disability.
- -

(No. 95-432 -- Submitted March 18, 1997 -- Decided June 4, 1997.)
Appeal from the Court of Appeals for Franklin County, No. 93APD10-
1454.

Claimant-appellant, Imogene M. Clark, received two injuries in the
course of and arising out of her employment as a store manager with United

Dairy Farmers. Her first injury occurred on July 22, 1981, and was allowed by
appellee, Industrial Commission of Ohio, for "[s]wollen and sprain right leg."
This claim was assigned claim No. 81-22100. Her second injury occurred on
August 21, 1983, and was allowed by the commission for "[f]racture left lower
leg; torn medial meniscus, left knee; vasicosilis vein with phlebitis;
exacerbation of pre-existing dysthymic disorder, generalized anxiety disorder,
psychological factors affecting physical condition." This claim was assigned
claim No. 83-19859. Claimant has not been gainfully employed since August
21, 1983.

In April 1988, claimant filed an application for permanent total disability
("PTD") compensation. On July 10, 1989, the commission ordered claimant to
report for two medical examinations on the issue of PTD. On July 19, 1989,
claimant was examined by commission specialist Daniel E. Braunlin, M.D., an
orthopedist. Dr. Braunlin assessed a ten percent permanent partial impairment
("PPI") attributable to the musculoskeletal factors in the claim and found
claimant unable to return to her previous duties. He felt that claimant could

2

perform sedentary work and that, by participating in vocational rehabilitation,
"could be progressed to *** possibly even a level of light activity work."

On July 28, 1989, claimant was examined by commission specialist Peter
E. Nims, M.D., a psychiatrist. Dr. Nims opined that claimant's allowed
psychiatric impairments "represent a low degree, twenty to twenty-five per
cent." However, he felt that claimant's "combined impairments would prohibit
her from any sustained remunerative employment because of her chronic pain,
her preoccupation with her symptoms, and limited interest and poor
concentration."

On May 24, 1991, the commission ordered claimant to report for another
round of medical examinations, this time with commission specialists Clarence
J. Louis, M.D., and Giovanni M. Bonds, Ph.D. Dr. Louis assessed a "0%
impairment" attributable to the injury in claim No. 81-22100, and a twenty
percent PPI attributable to the allowed physical conditions in claim No. 83-
19859. Dr. Louis also opined that claimant cannot return to her former position
of employment but, with rehabilitation, could return to sedentary work.

3

Dr. Bonds concluded that claimant's allowed psychological conditions
produce a twenty percent PPI, "prohibit her from engaging in any sustained
remunerative employment," and render her "not psychologically stable enough
to participate in rehabilitation services, and [make] it unlikely that any
programs available would return this claimant back to gainful employment."

On February 10, 1992, a combined-effects review was performed by
commission specialist Merle Gibson, M.D. Dr. Gibson concluded that claimant
suffers a forty percent total combined-effects impairment and is
psychologically unable to engage in any sustained remunerative employment.

On June 4, 1992, a statement of facts was prepared for the commission
by its attorney unit. The statement writer offered no recommendation on the
issue of PTD, explaining that, "[a]lthough both Commission Psychologist Dr.
Bonds and combined effects review by Dr. Gibson opine that claimant is not
capable of sustained remunerative employment, the % P.P.I. are low, and
Orthopod Dr. Lewis [sic] finds claimant to be capable of sustained
remunerative employment."

4

On June 30, 1992, claimant's application for PTD compensation was
heard by the commission. However, the commission decided to hold
claimant's application in abeyance pending yet another psychological
examination to be followed by another combined-effects review, after which
the "claim(s) [would] be returned to the Commission for order without further
hearing."

Accordingly, on September 11, 1992, claimant was ordered to report for
a medical examination with commission specialist Jill Shaffer, Ph.D., a clinical
psychologist. Dr. Shaffer assessed a twenty-five percent PPI "due to the
industrial injury in itself, and not to pre-existing conditions," and concluded
that "the industrial injury in itself does not prevent Ms. Clark from returning to
her former position of employment."

Thereafter, a combined-effects review was performed by commission
specialist Walter A. Holbrook, M.D. Dr. Holbrook assessed a fifty-four
percent PPI as a result of all allowed conditions and concluded that claimant
was not medically incapable of performing her former duties of employment,

5

but was capable of performing some sustained remunerative employment. He
essentially imposed a restriction of light duty work with the additional caveat
that claimant cannot perform occupations "requiring close association with
other employees or with the general public."

On August 18, 1993, the commission, without further hearing, issued its
order finding claimant not permanently and totally disabled and, therefore,
denied her application for PTD compensation. The commission based its order
"particularly upon the report(s) of Dr.(s). Louis, Shaffer, and Holbrook,
evidence in the file and evidence adduced at the hearing."

Claimant filed a complaint in mandamus with the Court of Appeals for
Franklin County, seeking a writ directing the commission to grant her
application for PTD compensation. Claimant alleged that the commission
"abused its discretion by having [her] re-examined by new Industrial
Commission doctors after the June 30, 1992 hearing," and that "[t]here is no
reasonable basis to conclude that [she] is capable of engaging in sustained
remunerative employment."

6

The referee concluded that the commission did not abuse its discretion
when it sought another psychological examination and combined-effects
review following the June 30, 1992 hearing. He did recommend, however, the
issuance of a limited writ pursuant to State ex rel. Noll v. Indus. Comm. (1991),
57 Ohio St.3d 203, 567 N.E.2d 245.

The court of appeals essentially adopted the referee's findings of fact and
conclusions of law, with one judge dissenting. The majority held, in particular,
that relief under State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626
N.E.2d 666, is inappropriate under the circumstances. It found that Dr.
Holbrook's report and claimant's age (fifty-six) provides "some evidence" that
claimant is not permanently and totally disabled. Thus, "the commission
should be given another opportunity to explain the reasoning for its decision."
The dissenting judge stated that, "[c]onsidering the report of Dr. Holbrook and
the nonmedical factors, it is unlikely the respondent commission could find a
basis for properly concluding that *** [claimant is able] to engage in sustained
remunerative employment." (Emphasis sic.)

7

This cause is before the court upon an appeal as of right.

Hochman & Roach Co., L.P.A., and Gary D. Plunkett, for appellant.

Betty D. Montgomery, Attorney General, and Melanie Cornelius,
Assistant Attorney General, for appellee.

ALICE ROBIE RESNICK, J. The issue presented is whether the commission
abused its discretion when it decided at the June 30, 1992 PTD hearing to
schedule a third psychological examination followed by another combined-
effects review.1

The commission argues that R.C. 4123.53 empowers it to have a
claimant examined to determine her right to workers' compensation benefits
and "does not limit the number of such examinations."

Former R.C. 4123.53 (now R.C. 4123.53[A]) provided that "[a]ny
employee claiming the right to receive compensation may be required by the
industrial commission to submit himself for medical examination at any time,
and from time to time ***." (Emphasis added.) 1953 H.B. No. 1. This statute
gives the commission broad discretion with regard to requiring a claimant to

8

submit to medical examinations. State ex rel. Anderson v. Indus. Comm.
(1984), 9 Ohio St.3d 170, 172, 9 OBR 456, 459 N.E.2d 548, 551.

The commission's discretion under former R.C. 4123.53, however, is not
unlimited. While former R.C. 4123.53 imposes no specific limit on the number
of medical examinations that the commission may schedule, on any given
issue, neither does it permit the commission to act in an unreasonable, arbitrary
or unconscionable fashion in its determination to schedule them. Propriety, not
aggregation, is the polestar of discretion in this case. Indeed, the very concept
of discretion connotes action taken in light of reason, and bounded by the rules
and principles of law. Discretion is not the indulgence of administrative whim,
but the exercise of sound judgment. It is a privilege of decision-making, not to
be placed ahead of the responsibility to act fairly and judiciously. Thus, as in
other matters, the commission must exercise its discretion with regard to
requiring a claimant to submit to medical examinations "soundly and within
legal bounds." See State ex rel. Goodyear Tire & Rubber Co. v. Indus. Comm.
(1974), 38 Ohio St.2d 57, 62, 67 O.O.2d 74, 77, 310 N.E.2d 240, 244;

9

Copperweld Steel Co. v. Indus. Comm. (1944), 142 Ohio St. 439, 445, 27 O.O.
376, 378, 52 N.E.2d 735, 737-738.

Accordingly, we hold that the commission abuses its discretion under
former R.C. 4123.53 where the record fails to disclose that additional medical
examinations are necessary or of assistance in determining PTD.

The commission argues that it had "sound reasons for its course of action
in this matter." Since the claimant's complaint is directed toward the medical
activity which occurred "after the June 30, 1992 hearing," the court need only
concern itself with the commission's reasons for referring claimant to
psychologist Dr. Shaffer for examination and the claim file to Dr. Holbrook for
a combined-effects review.

The commission claims that the additional psychological examination by
Dr. Shaffer was necessary because Dr. Bonds "addressed a non-allowed
psychological condition in his report. Thus, his report could not be used as
evidence in this matter." The commission explains that Dr. Bonds took "into
10

account a chronic pain syndrome which was never recognized as an allowed
condition."

With all due respect to the commission, nowhere in his report does Dr.
Bonds even mention a "chronic pain syndrome." The only reference to
"chronic pain" is made in conjunction with claimant's complaints. At no time
does Dr. Bonds purport to elevate such complaints to the level of a
"syndrome," "condition," or any such degree of recognition, let alone rely upon
it in rendering his opinion. Instead, he very carefully and appropriately based
his opinions solely on claimant's allowed psychological injuries:
"(1)
the claimant's industrial injuries[,] i.e., excerbation [sic] of pre-
existing dysthymic disorder, generalized anxiety disorder, and psychological
factors affecting physical condition, prevent her from returning to her former
position of employment. Her condition is permanent and the degree of
permanent impairment resulting from the industrial accident is 20% of the body
as a whole.
11

"(2) the claimant's industrial injuries do prohibit her from engaging in
any sustained remunerative employment. ***" (Emphasis added.)

Dr. Bonds did not address "a non-allowed psychological condition in his
report" or take "into account" anything other than claimant's allowed
psychological injuries in rendering his opinions.

The commission next argues that Dr. Louis "concluded that [claimant]
was limited to sedentary work but documented minimal impairment. Then Dr.
Gibson did a combined effects review. *** He equated a forty percent
impairment with permanent total impairment. In doing so contradictory
conclusions deprived his report of its evidentiary value. *** Rather than
proceed with such defective evidence, the Industrial Commission chose to
solve the problem prior to making its ultimate decision." (Citation omitted.)

The commission's reasoning with regard to the report of Dr. Louis is
arbitrary. The commission's order was "based particularly upon the report(s)
of Dr(s). Louis ***." Indeed, the very finding made by the commission based
on Dr. Louis's report was that claimant "is physically capable of engaging in
12

some sustained remunerative employment." This report also helped to form the
basis for the commission's conclusion that "claimant possesses the medical
capacity to engage in a number of sedentary or light duty employment
opportunities." In fact, the commission's order actually accepts Dr. Louis's
findings with respect to both claimant's PPI and physical ability to work,
which are the very "defects" the commission purportedly sought to remedy. In
a feat of twisted logic, the commission has managed to argue that an additional
psychological examination and combined-effects review were justified on the
basis of a purportedly "defective" report going to claimant's physical
capabilities upon which the commission ultimately relied in denying PTD
compensation.

Moreover, there is no inherent contradiction between a twenty-percent
impairment rating and a sedentary work restriction. See State ex rel. Koonce v.
Indus. Comm. (1994), 69 Ohio St.3d 436, 633 N.E.2d 520.

As to Dr. Gibson, his report explains that "[p]sychologically, claimant
*** cannot return to any gainful sustained remunerative employment now, or in
13

the foreseeable future. Psychiatric evaluation of impairment, even with low to
moderate percentage values, point to the total and permanent nature of her
condition." (Emphasis added.) It is in this context that Dr. Gibson
subsequently concluded that claimant "is totally and permanently impaired."
The commission is acutely aware that the assessment of a PPI percentage is a
medical issue distinct from that of claimant's ability to engage in sustained
remunerative employment based on her industrial injuries. Otherwise, it would
not direct its medical specialists to assign a PPI percentage and then go on to
make a medical determination of claimant's ability to engage in sustained
remunerative employment.

In light of the foregoing, it must be concluded that the commission
abused its discretion when it decided at the June 30, 1992 PTD hearing to
schedule a third psychological examination followed by another combined-
effects review.

The commission also argues that claimant "sat on her right to challenge
the examining physician's opinion. She failed to exercise her right to depose
14

the examining physicians involved. *** Nor does the record indicate [that
claimant] made any attempt to challenge or thwart such examinations at the
time they were conducted."

The only "examining physician's opinion" that is challenged by claimant
is that of Dr. Shaffer. However, the commission misconstrues the nature of the
challenge. Claimant's challenge goes not to the propriety of Dr. Shaffer's
opinion itself, but to the commission's order requiring the claimant to submit to
the examination in the first place. We fail to see how deposing Dr. Shaffer has
anything to do with the commission's decision to schedule the examination.
Moreover, former R.C. 4123.53 (now R.C. 4123.53[C]) provided, "If such
employee refuses to submit to any such examination or obstructs the same, his
right to have his claim for compensation considered *** shall be suspended
during the period of such refusal or obstruction." The commission cites no
authority for the proposition that a claimant must make the Hobson's choice of
waiving her challenge or having her right to consideration suspended.
15

Once the reports of Drs. Shaffer and Holbrook are stricken from
evidentiary consideration, the only conclusion that can be reached is to grant
relief consistent with Gay. All the remaining evidence unanimously indicates
that the claimant is psychologically unable to engage in any sustained
remunerative employment or participate in any rehabilitative program that
would return her to gainful employment.

For the foregoing reasons, we reverse the judgment of the court of
appeals.
Judgment reversed
and writ granted.

DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
FOOTNOTE:

1 Claimant phrases her challenge in constitutional terms, and accuses the
commission of repeatedly examining her in an effort to "manufacture" some
evidence upon which to deny her application for PTD compensation. Claimant
16

alleges that the commission "has engaged in a pattern of manufacturing
evidence with a view towards denying permanent total disability
compensation," citing two unreported appellate cases with facts similar to those
presently before the court. Such grandiose remonstrations need not be
addressed. The gravamen of claimant's challenge is simply that the
commission abused its discretion when it decided at the June 30, 1992 PTD
hearing to schedule a third psychological examination followed by another
combined-effects review.

LUNDBERG STRATTON, J., dissenting. Because I find that the Industrial
Commission had good cause to order an additional examination, I do not agree
that the commission abused its discretion in this matter. Therefore, I would
affirm the judgment of the court of appeals.

MOYER, C.J., and COOK, J., concur in the foregoing dissenting opinion.

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