479 N.E.2d 876
No. 84-884Supreme Court of Ohio.
Decided June 26, 1985.
Workers’ compensation — Stress incontinence — Termination of benefits — Allegation of fraud — Commission must make specific finding as to fraud issue.
APPEAL from the Court of Appeals for Franklin County.
On October 14, 1971, appellant, Joice A. Koonce, was employed by Storer Communications, Inc. as a receptionist for radio station WSPD in Toledo. Sometime that day, a caster broke on her swivel chair and she fell to the floor, sustaining injuries to her neck, upper and lower back. Appellant filed a claim for workers’ compensation benefits. The claim was
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allowed. Appellant later developed a urinary condition resulting in “stress incontinence.” Appellant’s physician, Dr. Carl Armstrong, credited this condition to the “changes in walking and ambulatory patterns of the patient secondary to the back injury.” Pursuant to Dr. Armstrong’s report, appellant’s workers’ compensation allowance was amended to include this condition in September 1973.
Appellant, after her accident, tried to continue working and was treated for her physical problems at various times during 1972 and 1973. Appellant’s condition did not improve, and on August 5, 1975 the appellee, Industrial Commission, awarded benefits for permanent and total disability. Benefits were paid retroactive to December 26, 1974. While appellant’s permanent and total disability application was pending, appellant received unemployment compensation.
In January 1980, the Industrial Commission, alleging new evidence, ordered appellant to appear for examinations by two medical specialists. A hearing was set for June 23, 1981, at which time the commission continued the matter for further study and discussion. On October 8, 1981, the commission issued an order by its chief hearing officer that appellant’s compensation be terminated immediately. The order notwithstanding, appellant’s benefits continued through August 1982. The commission, on November 29, 1982, found that appellant was not permanently and totally disabled and terminated her compensation effective February 19, 1980. At the same time, the commission acted to recover what it considered to be an overpayment to appellant in the amount of $6,703.44. This was for compensation paid between February 19, 1980 and August 8, 1982. The commission’s conclusion as to appellant’s medical state was based on the reports of its two specialists — Drs. William R. Sloan and Mark Bohm — and the fact that in her application for unemployment benefits, appellant had stated that she was available for and able to work.
Appellant thereupon initiated this mandamus action in the Court of Appeals for Franklin County. The court granted the writ prohibiting collection of the alleged overpayment and remanded the matter to the commission for a determination as to whether appellant had fraudulently procured workers’ compensation benefits. The court refused to compel the commission to vacate its finding that appellant was not permanently and totally disabled.
The cause is now before this court upon an appeal as a matter of right.
George N. Fell II and Steven E. Marcus, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Lee M. Smith an Dennis L. Hufstader, for appellee Industrial Commission of Ohio.
Per Curiam.
The court of appeals granted a writ of mandamus in this case to require the Industrial Commission to vacate its finding that appellant had fraudulently procured benefits. The court held that “the commission must make a finding that the claimant * * * [appellant] in fact did
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obtain the benefits through fraud,” and remanded the cause for that purpose.[1] We agree with the court below. Where allegations of fraud are involved in a termination-of-benefits case, the Industrial Commission must make a specific finding as to the fraud issue. Mere conclusory statements in the commission’s pronouncement will not sustain an order cancelling benefits where fraud is alleged.[2] Without a specific finding, the commission’s order terminating compensation will be ordered vacated.
The only remaining question in this case, then, is whether the evidence before the Industrial Commission supports its order that appellant’s compensation be terminated because she is not permanently and totally disabled.
As already mentioned, appellant’s permanent-and-total-disability claim was allowed because of a back injury and the urinary condition. Benefits later were terminated because of the alleged fraud and the “finding of the Commission that from the reports of medical specialist[s] Dr. William Sloan and Dr. Mark Bohm, that claimant is not permanently and totally disabled at this time.”
In State, ex rel. Anderson, v. Indus. Comm. (1981), 62 Ohio St.2d 166, at 168 [16 O.O.3d 199], this court 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.”
More recently, in State, ex rel. Norman, v. Indus. Comm.
(1982), 1 Ohio St.3d 263, 265, the court said: “However, if a physician determines that one is not permanently and totally disabled as the result of one condition,
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the physician must continue and analyze the additional allowed conditions to determine their combined effect upon the injured worker evaluated. This is the real meaning of Anderson, supra
[62 Ohio St.2d 166 (16 O.O.3d 199)]. Obviously, one must look at the person as a whole in evaluating whether [he] can work or not.”
In the present case, neither of the medical reports relied upon by the commission covers all of the conditions allowed in appellant’s original claim. Dr. Sloan, in his evaluation, only discussed appellant’s problem with incontinence; he neglected to mention anything about appellant’s back condition and to what degree the two, taken together, have rendered the appellant physically impaired. Under Anderson and Norman, supra, Dr. Sloan’s report does not constitute evidence that can support the Industrial Commission’s ruling.
Dr. Bohm evaluated appellant’s back injury and concluded that she was only thirty to forty percent permanently and partially disabled. He did not offer any opinion as to what extent appellant’s other problems physically affected her. With respect to the urinary condition, Dr. Bohm merely acceded to the judgment of Dr. Sloan. Again, under Anderson and Norman, supra, the report of Dr. Bohm does not constitute evidence supportive of the finding of the Industrial Commission. See, also, State, ex rel. Anderson, v. State (1979), 60 Ohio St.2d 106 [14 O.O.3d 339].
R.C. 4123.58(A) states: “In cases of permanent total disability, the employee shall receive an award to continue until his death * * *.” This provision places a burden upon the Industrial Commission heavier than that which it carried here. Once determining that permanent and total disability exists, the Industrial Commission must have before it reliable, probative, and substantial evidence before it can terminate an award made pursuant to its original findings. Such evidence was lacking in this case because neither doctor’s report relied upon by the commission can justify its finding that appellant was no longer permanently and totally disabled. “Where there is no evidence upon which the commission could have based its factual conclusion, an abuse of discretion is present and mandamus becomes appropriate.” State, ex rel. Teece, v. Indus. Comm.
(1981), 68 Ohio St.2d 165, 167 [22 O.O.3d 400].
Therefore, in view of the foregoing, we conclude that the judgment of the court of appeals should be affirmed insofar as it allows a writ of mandamus vacating the Industrial Commission’s order and remanding the cause for consideration of the fraud issue. The judgment of the court of appeals should be reversed, however, with respect to its holding that the Industrial Commission did not abuse its discretion in deciding that appellant was no longer permanently and totally disabled. A writ of mandamus is hereby allowed directing the Industrial Commission to vacate such determination.
Judgment affirmed in part, reversed in part and writ allowed.
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CELEBREZZE, C.J., SWEENEY, LOCHER, C. BROWN, DOUGLAS and CONNORS, JJ., concur.
HOLMES, J., concurs in part and dissents in part.
CONNORS, J., of the Sixth Appellate District, sitting for WRIGHT, J.
“`* * * The commission should be held to have inherent power to prevent the misappropriation or the misapplication of the insurance fund to claimants who are afterwards found not to be entitled thereto. The state insurance fund is in the nature of a trust fund and it is the duty of the commission to impartially distribute the same among persons entitled thereto and not permit the fund to be depleted or become the object of fraud or imposition, and it being clearly their [sic] moral and legal duty to correct any mistake or fraud or imposition which will result in a misapplication or misappropriation of any part of the fund the law should not be so construed, even in the case of ambiguity, neither should the legislature be held to have intended to enact any provisions which would in any manner hamper or interfere with the members of the commission in their efforts to properly protect the fund.'” State, ex rel. Weimer, v. Indus. Comm. (1980), 62 Ohio St.2d 159, 161 [16 O.O.3d 174], quotin Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 396-397. See, also, R.C. 4123.52, which confers continuing jurisdiction on the Industrial Commission to “make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified.”
HOLMES, J., concurring in part and dissenting in part.
In that I believe the court of appeals was correct as to both issues presented here, I would affirm the court of appeals in all respects.