State ex rel. Consolidation Coal Co. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Consolidation Coal Company, Appellant, v. Industrial
2
Commission of Ohio et al., Appellees.
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[Cite as State ex rel. Consolidation Coal Co. v. Indus. Comm. (1997), Ohio
4
St.3d .]
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Workers' compensation -- Award of permanent total disability benefits
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by Industrial Commission not an abuse of discretion when
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supported by "some evidence."
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(No. 94-2708 -- Submitted January 7, 1997 -- Decided April 16, 1997.)
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APPEAL from the Court of Appeals for Franklin County, No. 93APD11-
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1557.
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Appellee Wayne R. McDaniel was employed by appellant, Consolidation
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Coal Company ("Consolidation"). McDaniel seeks permanent total disability
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benefits related to his employment with Consolidation.
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In 1974, McDaniel began his employment with Consolidation. During his
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employment, McDaniel sustained three work-related injuries for which workers'
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compensation claims were allowed: (1) Claim No. 647654-22, for a contusion
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of the lower back and depression from an injury in July 1978; (2) Claim No.

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841818-22, for a lower back injury and depression from an injury in March
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1984; and (3) Claim No. 994750-22, for cervical strain, bulging disc and
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depression from an injury in April 1987.
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In 1984, McDaniel underwent a laminectomy and diskectomy. He
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recovered sufficiently to return to work for Consolidation until June 1987.
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On December 11, 1991, McDaniel filed an application for permanent total
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disability compensation. Dr. J.J. Fierra instituted a combined-effects review of
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McDaniel's case.i On August 3, 1993, the commission awarded McDaniel
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permanent and total disability with ninety percent of the cost of the award to be
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charged to Claim No. 647654-22 and ten percent of the cost to be charged to
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Claim No. 994750-22. The commission's order relied primarily upon Fierra's
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report.
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Consolidation filed a complaint for writ of mandamus in the Franklin
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County Court of Appeals alleging an abuse of discretion by the commission in
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making the award to McDaniel. The referee recommended that the request for a

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writ of mandamus be denied. No objections were filed. The appellate court
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adopted the referee's recommendation and denied the request for the writ.
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The cause is now before this court upon an appeal as of right.
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Hanlon, Duff, Paleudis & Estadt Co., L.P.A. and John G. Paleudis, for
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appellant Consolidation Coal Company.
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R.E. Goforth Co., L.P.A. and James P. Proctor, for appellee Wayne R.
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McDaniel.
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Betty D. Montgomery, Attorney General, and Jeffery B. Duber, Assistant
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Attorney General, for appellees Industrial Commission and Administrator,
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Bureau of Workers' Compensation.
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LUNDBERG STRATTON, J. Consolidation seeks a writ of mandamus,
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alleging that the commission abused its discretion in awarding permanent total
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disability by improperly relying upon Dr. Fierra's report and by misinterpreting
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the restrictions contained therein.
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In order to successfully challenge an order of the Industrial Commission
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by mandamus, the relator must demonstrate an abuse of discretion. State ex rel.

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1
Burley v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 20, 31 OBR 70, 72, 508
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N.E. 2d 936, 938. If an order is supported by "some evidence," then there is no
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abuse of discretion. Id.
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In this opinion, we reaffirm the proposition that this court's review of a
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commission's order pursuant to a complaint for a writ of mandamus should be
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limited to determining whether there is some evidence to support the
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commission's order. Burley, supra. To go further and assess the credibility of
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the evidence would place this court "in the role of a `super commission,' a role
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never envisioned by either the Ohio Constitution or the General Assembly." Id.
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at 20, 31 OBR at 72, 508 N.E. 2d at 938. Accordingly, we will evaluate the
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commission's order by the some evidence standard.
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Consolidation sets forth five propositions of law arguing that the
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commission failed to support its order with some evidence. We will address
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each of Consolidation's propositions separately below.
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I. Polio

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1

Consolidation claims that because Dr. Fierra's report did not expressly
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state that his impairment rating excluded McDaniel's polio, a nonallowed and
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preexisting condition, its inclusion in the rating must be assumed. As a result,
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Consolidation argues, polio was improperly factored into McDaniel's percentage
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of impairment.
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The flaw in Consolidation's argument is that it assumes that McDaniel
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had an impairment or preexisting condition attributable to the polio.
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Consolidation ignores that McDaniel had worked for years prior to his injuries
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herein without any effect from his polio. A preexisting condition is not a
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preexisting disability, where the claimant worked without any apparent problems
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prior to the injury. State ex rel. Kettering Med. Ctr. v. Wallace (1994), 68 Ohio
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St. 3d 588, 589, 629 N.E. 2d 444, 446.
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Further, there is no requirement that a physician specifically indicate that
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a nonallowed condition was not part of his or her conclusion. In the case at bar,
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Fierra's report attributed McDaniel's impairment to the allowed conditions.
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There is no legal basis for concluding that the failure to exclude polio means that

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it was included. Fierra did not attribute any of McDaniel's impairment to his
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polio despite the fact that he knew of its existence. "[N]onallowed conditions are
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immaterial, regardless of their severity, as long as the allowed conditions, in and
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of themselves, prevent sustained remunerative employment." State ex rel.
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Waddle v. Indus. Comm. (1993), 67 Ohio St. 3d 452, 454, 619 N.E. 2d 1018,
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1020.
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Accordingly, it was not an abuse of discretion for the commission to base
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its order on Fierra's report despite its failure to mention McDaniel's polio.
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II. Dr. McCloud's Report
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Fierra, in performing his combined-effects review, considered the report
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of Dr. Jerry McCloud in evaluating McDaniel. Consolidation argues that Fierra
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misconstrued McCloud's report in assessing the amount of impairment
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attributable to McDaniel's allowed back conditions. Consolidation specifically
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cites the following passage from Fierra's report:
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"[T]he orthopedic permanent partial impairment, including the permanent
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partial impairment of 30% recommended by Dr. McCloud and taking into

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1
consideration that the claimant returned to work for a substantial period of time
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following the low back surgery, is 50%."
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Consolidation claims that Fierra's report cited McDaniel's favorable
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response to back surgery, but then inexplicably increased his impairment from
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thirty percent to fifty percent when McCloud's report indicated only thirty
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percent impairment.
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Fierra's statement is concededly confusing. However, upon closer
8
examination, it becomes clear that McDaniel's allowed condition has two
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components -- cervical and lumbar. McCloud examined McDaniel only for the
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cervical condition. Thus, his thirty percent rating applied only to McDaniel's
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cervical condition -- not to his cervical and lumbar conditions as Consolidation
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mistakenly believes. Therefore, Fierra's reliance upon McCloud's report was
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limited to an assessment of McDaniel's cervical problem. Based on McCloud's
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report, Fierra then attributed the thirty percent disability to McDaniel's cervical
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condition. The additional twenty percent impairment was an assessment of

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1
McDaniel's lumbar condition made independently of McCloud's report by
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Fierra and resulted in a fifty percent impairment for McDaniel's back as a whole.
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III. Hoover's Report
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Fierra reviewed the report of Thomas O. Hoover, Ph.D., a psychologist,
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and adopted Hoover's assessment of twenty percent permanent psychiatric
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impairment. Consolidation alleges that Hoover's report, upon which Fierra
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relied, is so inconsistent that it should be disqualified from consideration.
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Specifically, Consolidation alleges that Hoover's assessment of a twenty percent
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permanent partial impairment contradicts his later statement that it was
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premature to declare that McDaniel had reached maximum medical
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improvement.
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"[ T]he non-examining physician is required to expressly accept all the
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findings of the examining physician, but not the opinion drawn therefrom." State
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ex rel. Wallace v. Indus. Comm. (1979), 57 Ohio St. 2d 55, 59, 11 O.O. 3d 216,
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219, 386 N.E. 2d 1109, 1112. In the case at bar, it was up to Fierra to decide
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which conclusions to draw from Hoover's report.

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1

More important, in State ex rel. Kaska v. Indus. Comm. (1992), 63 Ohio
2
St. 3d 743, 591 N.E. 2d 235, this court specifically held that permanency is not
3
necessarily indicative of maximum medical improvement. In other words, a
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person can sustain a permanent injury, of which there is a component that will
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not heal and a component that will heal. Accordingly, a report that indicates that
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the injury is permanent and that indicates that it is "premature to assume that
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maximum medical improvement has been achieved" is not inconsistent and can
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provide "some evidence" supporting a conclusion that someone is permanently
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disabled for purposes of workers' compensation.
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In the case at bar, Hoover unequivocally stated that McDaniel's injury
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was permanent, but also indicated that he might have some room to heal. This
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does not preclude a finding of permanency. The fact that Fierra found
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permanent impairment based on Hoover's prediction of twenty percent
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permanency does not render Fierra's conclusion unsupported simply because he
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might sustain some further recovery.
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IV. McDaniel's Stress Limitations

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1

Consolidation argues that the commission's order improperly stated that
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Fierra's report indicated that McDaniel must refrain from "any jobs with more
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than minimal stress." (Emphasis added.) Consolidation also claims the order
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indicated that Fierra noted a reduced stress requirement. (Emphasis added.)
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Consolidation alleges that the commission's mischaracterization of Fierra's
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stress limitations changed its finding from light work ability to sedentary work
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ability and was an abuse of discretion.
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Consolidation's argument is flawed. In its order, the commission
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concluded that McDaniel was precluded "from working in any jobs that require
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lifting more than 25 pounds or any jobs with more that [sic, than] minimal
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stress." The minimal stress limitation did not come from Fierra's report. Rather,
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the minimal stress limitation was a conclusion made by the commission from its
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review of McDaniel's history. Only after the commission determined that
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McDaniel was restricted from lifting over twenty-five pounds did it add the
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reduced stress limitation noted by Fierra to find that McDaniel was precluded
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from all but sedentary levels of employment.
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1

Thus, the commission's finding that McDaniel is limited to sedentary
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employment is supported by some evidence.
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4

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V. McDaniel's Ability to be Reemployed
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The commission relied upon the reports of John Ruth, a vocational
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specialist, and Fierra. Consolidation claims that these reports do not constitute
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"some evidence" to support the commission's conclusion that McDaniel's work
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history and education preclude return to the work force.
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Ruth's report provided that McDaniel, due to his ninth grade education
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and his work history, which is limited to manual labor, would not benefit from
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vocational retraining. In particular Ruth's report stated:
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"In summary, it is clearly evident that this man would be unable to return
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to his former occupation due to range of motion limitations. Mr. McDaniel
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would require an occupation which he could perform primarily at bent height
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1
with the opportunity to sit or stand alternately. This man's educational skills and
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past work experience (laborer) may limit his job seeking potentials."
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Ruth also determined that "[l]ack of educational skills, compounded by
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the fact that this man does not possess any saleable skill development (Laborer)
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it is believed that he will have extreme difficulty seeking competitive
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employment."
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Fierra concluded that McDaniel has a sixty percent total body impairment
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from the combined effects of all three injuries precluding him from bending,
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from pushing or pulling heavy objects, from repetitively lifting of objects over
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twenty-five pounds and various other specific physical activities.
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The commission considered McDaniel's physical limitations and his
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reduced stress limitation due to his depressive state and concluded that
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McDaniel is precluded from all but sedentary levels of employment.
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Based on the aforementioned, there is "some evidence" to support the
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commission's finding that McDaniel cannot return to the work force.
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VI. Conclusion
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1

Pursuant to the aforementioned analyses, we find that there is some
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evidence to support the commission's order. Burley, supra. Therefore, the
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judgment of the court of appeals is affirmed, and the writ is denied.
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Judgment affirmed.
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MOYER, C.J., F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
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DOUGLAS and RESNICK, JJ., concur in judgment only.
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i A combined-effects review, within the context of a workers' compensation
case, occurs when a doctor reviews multiple conditions together to determine the
extent of the claimant's total impairment.
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