State ex rel. Hughes v. Goodyear Tire & Rubber Co.

Per Curiam.

For the reasons to follow we uphold the denial of the writ of mandamus.

Relator is required to show a clear legal right to the relief sought and a clear legal duty on the part of the commission to provide the relief in order for this court to issue a writ of mandamus. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141 [40 O.O.2d 141]; State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St. 3d 76. To show the clear legal right, relator must demonstrate that the commission abused its discretion by entering an order unsupported by some evidence in the record. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St. 2d 9 [58 O.O.2d 66]; State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [22 O.O.3d 400].

Within the past decade this court has set certain parameters for what constitutes “some evidence” before the commission. In State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166, 168 [16 O.O.3d 199], we held that a physician’s report must assess impairment, in a claim for permanent and total disability on account of the combined effect of two or more allowed conditions, by considering those allowed conditions together. In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St. 2d 55, 59 [11 O.O.3d 216], we indicated that non-examining physicians must expressly accept the findings of the examining physicians, although not necessarily their opinions, prior to rendering their own opinions.

The rules in Anderson and Wallace were consolidated in State, ex rel. Teece, supra. The result was a “combined effect” rule that compelled physicians who. actually examined less than all the combined conditions, not only to evaluate the relevant allowed condition(s), but to do so by ex *74 pressly accepting the findings of the physician or physicians who actually examined the claimant in regard to the other conditions. This position was qualified, however, when we indicated that evidence which might not in itself support or deny a claim could still be used to test the credibility of reports that complied with both Anderson and Wallace. See State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St. 2d 396 [23 O.O.3d 358] (When a doctor finds no evidence of a disability related to psychiatric illness, one of two alleged conditions, the need to evaluate the combined effect of the conditions is obviated.). Importantly, we emphasized our concern that “ [questions of credibility and the weight to be given evidence are clearly within the commission’s discretionary powers of fact finding.” Teece, supra, at 169; See, also, State, ex rel. Bevis, v. Coffinberry (1949), 151 Ohio St. 293 [39 O.O. 135]; State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St. 3d 38.

A review of the record before us indicates that Drs. Giray, Goold, McCloud, Fallon, and DeMuth all specifically examined claimant as to either the physical or psychological condition but not both. In all these cases it is clear that while the physician might not literally “expressly adopt” the factual findings with respect to conditions outside his field of expertise, each was familiar with those findings to various degrees when he made his evaluation, as indicated in the facts herein.

It is apparent to us today that much confusion has resulted from this court’s desire to insure that impairment evaluations be rendered by physicians who were aware of all relevant aspects of a claimant’s allowed conditions. We do not suggest, however, that experts in one area of medicine must be experts in all areas of medicine, but merely that physicians in a multiple-conditions claim be aware that other allowed conditions exist that might potentially influence their conclusions with respect to impairment. Similarly, our opinions should not provide the basis for usurping the role of the commission in determining disability by creating arbitrary exclusionary rules that eliminate evidence the commission might find credible because such evidence fails to include “magic words” to conform with hypertechnical evidentiary rules, e.g., “I expressly adopt the findings but not the opinion of Dr. ‘X.’ ” As we noted in Teece, supra, at 168-169, evidence that does not conform with Anderson can still be used to rebut elements of conforming reports.

To clarify and resolve the difficulties engendered in the application of Anderson, we hold today that reports which consider and impliedly accept all the allowed conditions relevant to the claim before rendering a final evaluation with respect to impairment are “some evidence” to support a commission allowance or disallowance of a permanent total disability claim. On this basis the reports of Drs. Hardie, Fallon, McCloud,1 DeMuth, *75 Goold, and Giray were all permissible evidence to be accepted or not accepted as the commission saw fit. The commission’s decision, resting upon the reports of Drs. Hardie, Fallon, DeMuth and McCloud, was thus supported by some evidence. The commission’s determination was therefore not an abuse of discretion and relator has not demonstrated a clear legal right to mandamus relief.

Accordingly, the judgment of the court of appeals denying the writ is affirmed.

Judgment affirmed.

Locher, Holmes and Wright, JJ., concur. Celebrezze, C.J., Sweeney, C. Brown and Douglas, JJ., concur in judgment only.

By way of example, Dr. McCloud’s report indicates that he evaluated the claimant “in regards to the conditions allowed in this claim” after articulating these allowed conditions. This type of assertion both considers and impliedly accepts the allowed conditions to render the report “some evidence.”