STATE, EX REL. MARSHALL, v. INDUS. COMM., 35 Ohio St.3d 65 (1988)

518 N.E.2d 556

THE STATE, EX REL. MARSHALL, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO, APPELLEE, ET AL.

No. 86-1106Supreme Court of Ohio.
Decided January 27, 1988.

Workers’ compensation — Claim for permanent and total disability compensation denied, when.

APPEAL from the Court of Appeals for Franklin County.

On December 5, 1977, appellant, Rosa M. Marshall, was injured during the course of her employment with Cincinnati General Hospital when she slipped and fell on a wet floor while cleaning a shower room. Appellant timely filed an application for workers’ compensation benefits and her claim was originally recognized for “ligamentous strain of the midline of low back.” Pursuant to this finding, appellant received temporary total disability compensation and payment of medical expenses.

On March 20, 1979, appellant filed a motion to have her claim amended to include injuries to the head, neck and back. By order dated May 23, 1979, appellant’s claim was amended to include these injuries. On March 30, 1981, appellant filed a motion to have her claim further amended to recognize a psychological condition described as depressive reaction. By order dated September 14, 1981, the appellee, Industrial Commission, recognized appellant’s additional psychological condition.

On May 10, 1983, appellant filed an application for permanent and total disability compensation. In support of this application, appellant submitted the report of her treating psychiatrist, Dr. Max L. Lurie, who diagnosed appellant

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as being permanently and totally disabled on the basis of her post-traumatic depressive neurosis.

On July 26, 1983, appellant was examined by Dr. Thomas S. Berger, a neurosurgeon. Dr. Berger limited his examination to appellant’s physical disabilities and concluded that appellant suffered from a low degree of impairment of the body as a whole. He estimated her disability in the range of ten to twenty-five percent.

On August 19, 1983, appellant was examined by Dr. George Parsons, a clinical psychiatrist. Dr. Parsons examined appellant in relation to her psychological condition and estimated that she suffered from a fifteen-percent permanent psychological impairment.

On December 3, 1983, Dr. Paul H. Dillahunt performed a review of appellant’s claim file and concluded that the medical reports contained therein did not support a finding that appellant was permanently and totally disabled.

On May 5, 1984, Dr. Dillahunt issued a second file review report in which he specifically cited all the reports contained in the file and stated that all had been reviewed and found to be acceptable. After a discussion of the various findings relating to appellant’s conditions, Dr. Dillahunt speculated that appellant possessed a sixty-five percent combined permanent partial impairment.

On April 16, 1985, a hearing was held before the Industrial Commission. At the hearing, appellant presented the report of Dr. Roger Livingston, a clinical psychologist. Dr. Livingston reported that appellant’s conditions rendered her “totally occupationally disabled” and that her chances of reentering the labor market were “non-existent.” The commission decided to hold appellant’s application in abeyance pending further review.

On June 13, 1985, the Industrial Commission denied appellant’s application for permanent and total disability compensation. The commission stated that the medical reports of Drs. Lurie, Parsons, Berger, and Dillahunt were reviewed and evaluated and that the finding was based particularly on the medical reports of Drs. Parsons, Berger and Dillahunt.

Appellant instituted the within mandamus action in the court of appeals on July 23, 1985, seeking an order compelling the commission to find appellant entitled to permanent and total disability compensation. On May 8, 1986, the appellate court denied the writ.

The cause is now before this court upon an appeal as of right.

Kondritzer, Gold Frank Co., L.P.A., M.R. Kondritzer an Edward Cohen, for appellant.

Anthony J. Celebrezze, Jr., attorney general, and Tyrone K. Yates, for appellee.

Per Curiam.

In her first proposition of law, appellant alleges that the only evidence before the commission which properly evaluated the combined effect of all appellant’s recognized conditions was the report of Dr. Livingston. As this report was supportive of appellant’s prayer for permanent and total disability compensation, appellant contends that the commission’s decision to deny such compensation was rendered without the requisite “some evidence” to support said decision.

This proposition is predicated on this court’s judgment i State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St.2d 166, 16 O.O. 3d 199, 404 N.E.2d 153, which established an evidentiary doctrine precluding the commission’s consideration of evidence which did not evaluate the combined effect of all the claimant’s recognized

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conditions. However, this court has recently overruled its previous judgment in Anderson and abandoned the combined-effect evidentiary doctrine established therein. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Accordingly, appellant’s objection based on th Anderson combined-effect evidentiary doctrine is no longer valid.

Next, appellant challenges the commission’s reliance on the non-examining report of Dr. Dillahunt, on the basis that Dr. Dillahunt does not state with sufficient specificity which examining physician’s findings he relied upon in deriving his own conclusions.

This court need not consider the merits of this proposition because the Industrial Commission did not premise its judgment exclusively on Dr. Dillahunt’s report. The commission states that its decision was based “particularly on the medical reports of Drs. Parsons, Berger and Dillahunt.” Pursuant to this court’s judgment in State, ex rel. Burley, supra, the reports of Drs. Parsons and Berger constitute some evidence which would support the commission’s determination.

For the reasons set forth in this opinion, we hereby affirm the decision of the court of appeals denying appellant’s petition for a writ of mandamus.

Judgment affirmed.

SWEENEY, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.

LOCHER, J., concurs in judgment only.

MOYER, C.J., not participating.

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