State ex rel. Hay v. Industrial Commission

Jun 27, 1990

No. 89-235

Versions:52 Ohio St. 3d 99

555 N.E.2d 965

1990 Ohio LEXIS 260

Per Curiam.

We are again asked to review the commission’s order for “some evidence” pursuant to State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 31 OBR 70, 508 N.E. 2d 036. Confining our examination to the evidence cited in the commission’s order, we find no evidence to support its decision.

Dr. Combs’ September 25, 1984 and September 30, 1986 reports attribute appellee’s disability exclusively to his 1975 claim. Similarly, Dr. Katz acknowledges all the allowed conditions, but bases his conclusion essentially on symptoms and restrictions that relate to the later injury.

We reject the suggestion that the prior thirty-five-percent permanent partial disability award in the 1971 claim is some evidence supporting the commission’s allocation. As we have often stated, a permanent total disability is not measured numerically but is instead based on the claimant’s ability to engage in sustained remunerative employment. State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St. 3d 101, 1 OBR 135, 438 N.E. 2d 420.

For the reasons set forth above, the judgment of the appellate court is affirmed.

Judgment affirmed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur.