State ex rel. Rogers v. Pat Salmon & Sons, Inc. (Slip Opinion)
State ex rel. Rogers v. Pat Salmon & Sons, Inc. (Slip Opinion)
Opinion of the Court
{¶ 1} The judgment of the court of appeals is affirmed for the reasons stated in the opinion of the court of appeals.
Dissenting Opinion
dissenting.
{¶ 2} On February 25, 2005, Kelvin Rogers, a truck driver for Pat Salmon & Sons, Inc., was injured when he was stepping down from his truck. He filed for workers’ compensation benefits, and the claim was allowed for sprain of right knee, sprain of lumbar region, herniated disc, disc protrusion, major depressive disorder with psychotic features, and lumbar degenerative disc disease. As a result of his injuries, he has not been able to return to the job since 2005.
{¶ 3} Rogers filed an application for permanent-total-disability benefits. However, his treating psychologist and a psychologist examining Rogers on behalf of the Industrial Commission differed distinctly in their opinions of his condition. Rogers’s treating psychologist believed that he was totally disabled, while the psychologist used by the Industrial Commission believed that Rogers was faking his injuries and could work. Donald J. Tosi, Ph.D., the Industrial Commission’s psychologist, was equivocal with regard to the reliability of his own findings, concluding that despite the fact that results of a test administered by him showed that Rogers continued to suffer from major depression and needed treatment, the validity of the test findings was limited by Rogers’s responses. Based upon the doctor’s confusing findings, a request to depose the doctor was made. As is true in any adversarial proceeding, fundamental fairness required the Industrial Commission to thoroughly evaluate the weight to be given to any testimony. This is particularly true in the area of competing doctors’ opinions.
{¶ 5} What we are left with is an application for permanent-total-disability benefits that was denied based upon medical evidence that has never faced the crucible of inquiry. In its simplest terms, this is a denial of due process. Certainly R.C. 4123.09 does not require the Industrial Commission to allow the taking of depositions. State ex rel. Gen. Motors Corp. v. Indus. Comm., 47 Ohio St.2d 244, 251, 351 N.E.2d 442 (1976). The Ohio Administrative Code requires only that the request to depose a physician be reasonable. Ohio Adm.Code 4121-3-09(A)(8)(d). And R.C. 4123.10 states that the Industrial Commission shall not be bound by the usual common law or rules of evidence. Workers’ compensation hearings are not trials. They are administrative proceedings in which procedural due process does not and cannot require strict application of the judicial model. Doyle v. Bur. of Motor Vehicles, 51 Ohio St.3d 46, 51, 554 N.E.2d 97 (1990), citing Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). That does not mean that there is no place for due process in administrative hearings. In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), cited by this court in Doyle, the Supreme Court of the United States examined whether the administrative procedures followed when a recipient’s Social Security disability benefits were terminated conformed with due process. The Supreme Court identified three factors that must be considered to determine whether the process granted in the administrative proceeding was constitutionally adequate: first, the private interest at stake; second, the risk of an erroneous deprivation of that
{¶ 6} I am convinced that if the Tenth District had reviewed this case to ensure that Rogers’s application received fair treatment, this case would not be before us today, and I would not be dissenting from this judgment entry. The court of appeals abused its discretion when it concluded that Rogers did not make an argument specific enough to make a reasonableness determination. The request for the deposition needed only to put the Industrial Commission on notice that Rogers was challenging the foundation of the doctor’s conclusion that he was in some way faking his condition, a conclusion that was contrary to test results administered by that same doctor.
{¶ 7} Dr. Tosi’s report is contradictory on its face, and equivocal medical opinions are not evidence. State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649, 657, 640 N.E.2d 815 (1994), citing State ex rel. Woodard v. Frigidaire Div., Gen. Motors Corp., 18 Ohio St.3d 110, 113, 480 N.E.2d 403 (1985), and State ex rel. Kokocinski v. Indus. Comm., 11 Ohio St.3d 186, 464 N.E.2d 564 (1984).
{¶ 8} The Tenth District and the Industrial Commission got this case wrong. Due process requires that when a medical report is used to challenge a claim, the claimant must be permitted to inquire further. This is particularly true if the medical report is contradictory or, as here, the medical provider is alleging that the claimant is faking the extent of his disability. Is that truly any different than labeling the injured worker a liar? At a minimum, this court should grant a writ compelling the Industrial Commission to allow Rogers to depose Dr. Tosi.
Reference
- Full Case Name
- The State Ex Rel. Rogers, Appellant, v. Pat Salmon & Sons, Inc., Et Al., Appellees
- Cited By
- 1 case
- Status
- Published