Lead Opinion
Fоr the reasons to follow we affirm the denial of the writ of mandamus.
Only where the record is devoid of some еvidence to support the commission’s order will an abuse of discretion exist. State, ex. rel. Elliott, v. Indus. Comm. (1986),
Appellant presents twо theories for recovery. The first is that an examining doctor must present an opinion on whether the claimant can perform remunerative employment or the doctor’s testimony is not “evi
The weight to be assigned to conflicting evidence is in the province of the Industrial Commission, not this court. State, ex rel. Elliott, supra, at 79. Insofar as some evidence was presented to suppоrt the commission’s decision, it will not be overturned. State, ex rel. Allerton, v. Indus. Comm. (1982),
This is an action for a writ оf mandamus. Thus, the burden is on the relator to show that the commission committed an abuse of discretion. State, ex rel. Morris, v. Indus. Comm. (1984),
Accordingly, the judgment of the court of appeals is affirmed and the writ is denied.
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from today’s decision for the following reasons. First, I must voiсe my vigorous disapproval of the majority’s use of the abhorrent “some evidence” jargon. My dislike of this stаndardless standard has been expressed on many occasions. See,
Second, the majority opinion ignores certain critical aspects of the evidence which I believe warrant issuance of the writ.
The majority states, correctly, that Dr. J.Q. Brown examined claimant and stated in his report that “I would not consider her to be PTI. I would consider her to have a PTI of moderate degree [i.e.] 45%.” What the majority conveniently disregards is that Dr. Brown subsequently repudiated this report when he stated in his deposition that “I don’t think this patient could do the type of occupation that she was doing as you’ve described it in here which is the standard type of work for а licensed practical nurse. * * *” This court has held that “where a medical expert has, by deposition testimony, repudiated a conclusion previously made in a medical report, that report cannot constitute evidence to support the order of the commission.” State, ex rel. Jennings, v. Indus. Comm. (1982),
Dr. Tramer is the last remaining physician оf the three relied on by the commission in its order. His report is also defective. While stating that claimant sufferеd a “60% permanent partial impairment,” Dr. Tramer’s report did not address the question of whether claimant was capable of any sustained remunerative employment as required by State, ex rel. Morris, v. Indus. Comm. (1984),
The reports of Dr. Edward W. Shannon are the only evidence on which the commission may rely. Dr. Shannon rendered at least five reports. In no less than two of these, Dr. Shannon opined that claimant was “totally and permanently disabled” and “totally disabled.”
Finally, and perhaps most importantly, it is my view that the Industrial Commission, when it assesses disability, must take into account such nonmedical factors as age, education, work history, mental acuity and transferable work skills. The Industrial Commission’s order contains no expression that these factors were considered.
In State, ex. rel. Norman, v. Indus. Comm. (1982),
In sum, none of the reports cited by the commission in its order constitutes reliable evidence supporting its finding that claimant is not permanently and totally disabled. In my view, claimаnt is therefore entitled to the writ she seeks. I would reverse the judgment of the court of appeals and issuе a writ directing the commission to enter an order awarding claimant compensation for permanent total disability.