Opinion
No. 82-847
Decided June 22, 1983.
Workers' compensation — Finding of no permanent partial disability — Writ denied — Abuse of discretion not shown, when.
APPEAL from the Court of Appeals for Franklin County.
On July 23, 1979, Benjamin F. Phillips, appellant, suffered a back injury arising from and in the course of his employment as a truck driver for Hobart Corporation ("Hobart"), a self-insured employer. A claim filed with Hobart and the Industrial Commission ("commission") was recognized for "strain of the lower left side and upper right side of back and twisting injury to the left leg." Appellant was compensated for temporary total disability for the period from July 24, 1979 through December 17, 1979. On the latter date, appellant was examined by Dr. Martin K. Moyes on behalf of Hobart to determine whether his disability was permanent. Dr. Moyes characterized appellant's disability as "1% at most * * * [and] * * * temporary in nature." Appellant returned to work the following day.
On February 18, 1981, appellant filed an application for a determination of permanent partial disability. He was examined by Dr. James P. Owens on April 30, 1981. Dr. Owens concluded that appellant suffered a permanent partial disability of fifteen percent. Appellant was also examined by Dr. Paul A. Martin on May 7, 1981, and Dr. David D. Goldberg on July 15, 1981, to determine his fitness to operate a tractor-trailer safely. These examinations were conducted on behalf of and according to the standards of the Ohio Department of Transportation. Both doctors found appellant fit to drive without restrictions.
Appellant's application was heard on June 29, 1981. Relying on the reports of Drs. Moyes and Owens, a district hearing officer found that appellant had a permanent partial disability of twelve percent and ordered Hobart to pay the appropriate compensation. Hobart filed an application for reconsideration. During the hearing on reconsideration, the reports of Drs. Martin and Goldberg were considered. A staff hearing officer determined that appellant suffered no permanent disability and vacated the commission's previous order on November 20, 1981.
Appellant filed a mandamus action in the Court of Appeals for Franklin County alleging that the commission had abused its discretion in failing to find that appellant suffered a permanent partial disability. The court of appeals denied the writ.
The cause is now before this court on an appeal as of right.
Mr. Michael J. Muldoon, for appellant.
Mr. William J. Brown, attorney general, and Mr. Richard J. Forman, for appellee Industrial Commission.
Messrs. Thompson, Hine Flory and Mr. Henry B. Bruner, for appellee Hobart Corp.
This court has consistently held that the determination of factual issues is within the sound discretion of the Industrial Commission. State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47 [1 O.O.2d 190]. Mandamus is available only upon a showing of abuse of discretion. State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15 [58 O.O.2d 70]. Where the record contains some evidence to support their factual findings, the decision of the commission will not be disturbed. State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77 [14 O.O.3d 275]. Appellant maintains that Dr. Moyes' report is not evidence that he suffers from no permanent disability. We disagree.
Dr. Moyes' report stated that appellant's disability was one percent at most and temporary in nature. Appellant argues first that these conclusions should not be considered at all because they were drawn in an examination conducted for the purpose of determining permanent total disability. The report, however, is couched in terms conducive to a general determination of disability. It was properly considered.
In addition, appellant argues that, even if properly considered, Dr. Moyes' report is not evidence that he was not permanently disabled. This characterization, "1% at most," implicitly includes zero. Although the evidence supporting the commission's conclusion appears only by way of inference, the law of Ohio, as stated above, requires no more. What can be inferred from Dr. Moyes' report clearly is evidence that relator was not permanently disabled. No abuse of discretion has been shown. The judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
I concur in the result reached by the court in this case. However, I must again express my disapproval with the use and dependence on the empty test of "some evidence" and all its related citations. (See my dissent in State, ex rel. Kilburn, v. Indus. Comm., 1 Ohio St.3d 103, at 105-106; and my concurrences in State, ex rel. Berry, v. Indus. Comm., 4 Ohio St.3d 193, at 196, and State, ex rel. Paragon, v. Indus. Comm., 5 Ohio St.3d 72, at 77.)