No. 94-893 | Ohio | Jan 24, 1996
Lead Opinion
Two questions are presented: (1) Does the commission’s order satisfy Noll, supra? and (2) Is claimant entitled to a writ of mandamus compelling permanent total disability compensation consistent with State ex rel. Gay v. Mihm (1994), 68 Ohio St. 3d 315" court="Ohio" date_filed="1994-02-16" href="https://app.midpage.ai/document/state-ex-rel-gay-v-mihm-6768756?utm_source=webapp" opinion_id="6768756">68 Ohio St.3d 315, 626 N.E.2d 666, if Noll has not been met? For the reasons to follow, we answer both questions in the negative.
Noll directs the commission to prepare orders that “are fact-specific and which contain reasons explaining its decisions. * * * Such order must specifically state what evidence has been relied upon to reach its conclusion and, most important, briefly explain the basis of its decision.” Noll, 57 Ohio St.3d at 206, 567 N.E.2d at 249.
In this case, the order’s explanation is deficient because it raises doubt as to whether all the allowed conditions were considered. Although the commission cited the report of Dr. Holbrook, denial was clearly premised on the reports of Drs. Howard and Kackley. Dr. Howard considered claimant’s psychological condition. Dr. Kackley considered claimant’s allowed physical conditions, but only in claimant’s 1974 claim. The conditions arising out of claimant’s 1975 claim, particularly “upper back,” “both arms” and “neck,” were apparently overlooked.
Having, therefore, found Noll noncompliance, we turn to the question of appropriate relief. Upon review, we find that relief pursuant to Gay is inappropriate.
Gay relief is clearly premature where there is doubt as to whether the commission considered all allowed conditions. State ex rel. Jarrett v. Indus. Comm. (1994), 69 Ohio St. 3d 127" court="Ohio" date_filed="1994-04-27" href="https://app.midpage.ai/document/state-ex-rel-jarrett-v-industrial-commission-6769466?utm_source=webapp" opinion_id="6769466">69 Ohio St.3d 127, 630 N.E.2d 699; State ex rel. Roy v. Indus. Comm. (1995), 74 Ohio St. 3d 259" court="Ohio" date_filed="1996-01-10" href="https://app.midpage.ai/document/state-ex-rel-roy-v-industrial-commission-6772704?utm_source=webapp" opinion_id="6772704">74 Ohio St.3d 259, 658 N.E.2d 293. A return for further consideration and amended order is the proper remedy for such a defect, and that is our disposition here.
First, Gay did not abandon the “some evidence” rule articulated in State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18" court="Ohio" date_filed="1987-06-03" href="https://app.midpage.ai/document/state-ex-rel-burley-v-coil-packing-inc-6759776?utm_source=webapp" opinion_id="6759776">31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936" court="Ohio" date_filed="1987-06-03" href="https://app.midpage.ai/document/state-ex-rel-burley-v-coil-packing-inc-6759776?utm_source=webapp" opinion_id="6759776">508 N.E.2d 936. An order that is supported by “some evidence” will be upheld. It is immaterial whether other evidence, even if greater in quality and/or quantity, supports a decision contrary to the commission’s.
Second, Gay is not an occasion for de novo evidentiary review. Gay relief is mandamus relief, the standard for which, in extent of disability cases, is an abuse of discretion. State ex rel. Rouch v. Eagle Tool & Machine Co. (1986), 26 Ohio St. 3d 197" court="Ohio" date_filed="1986-09-23" href="https://app.midpage.ai/document/state-ex-rel-rouch-v-eagle-tool--machine-co-6759536?utm_source=webapp" opinion_id="6759536">26 Ohio St.3d 197, 26 OBR 289, 498 N.E.2d 464" court="Ohio" date_filed="1986-09-23" href="https://app.midpage.ai/document/state-ex-rel-rouch-v-eagle-tool--machine-co-6759536?utm_source=webapp" opinion_id="6759536">498 N.E.2d 464. There is no abuse of discretion where there is “some evidence” in support.
Third, Gay did not set aside our policy of deferring to the commission’s expertise in disability matters. If, for example, the commission does not consider the claimant’s age to be an obstacle to reemployment or retraining, and its reasoning is adequately explained, we will defer to its judgment. In the same vein, we will not depart from the principle that the commission alone is responsible for evaluating evidentiary weight and credibility. Burley, 31 Ohio St. 3d 18" court="Ohio" date_filed="1987-06-03" href="https://app.midpage.ai/document/state-ex-rel-burley-v-coil-packing-inc-6759776?utm_source=webapp" opinion_id="6759776">31 Ohio St.3d at 20-21, 31 OBR at 72, 508 N.E.2d 936" court="Ohio" date_filed="1987-06-03" href="https://app.midpage.ai/document/state-ex-rel-burley-v-coil-packing-inc-6759776?utm_source=webapp" opinion_id="6759776">508 N.E.2d at 938. The commission’s decision to find one medical report more persuasive than another, for example, will not be second-guessed.
Gay relief was intended as a narrow exception to the general rule of returning NoZZ-deficient orders to the commission. Relief is to issue only in extraordinary circumstances, and we recognize, in retrospect, that some of our decisions in which Gay relief has been awarded may appear to have weakened these standards. We, therefore, hold that Gay relief will be granted only in extraordinary circumstances revealing an abuse of discretion.
We thus deny claimant’s request for a full writ of mandamus pursuant to Gay. We instead issue a limited writ of mandamus vacating the commission’s order and returning the cause to the commission for consideration of allowed conditions. This is to be followed by a reasoned and factually specific amended order as mándated by Noll.
Accordingly, the judgment of the court of appeals is reversed and a limited writ is allowed consistent with this opinion.
Judgment reversed and limited writ allowed.
Concurrence Opinion
concurring. Dr. Holbrook’s report could have served as the requisite “some evidence” supporting the denial of permanent total disability compensation in this case if the commission had referenced Dr. Holbrook’s findings in its rationale. It did not do so, perhaps because Dr. Holbrook concluded in his combined effects review that this claimant was seventy percent permanently partially impaired with an ability to do “low stress sedentary work,” as compared with the significantly lower percentage and the “light work” conclusion of Dr. Kackley. If Dr. Holbrook’s conclusion had been reviewed in light of John Kilcher’s vocational assessment, the commission’s conclusion may have been different. As it happened, the commission devalued the vocational assessment of Kilcher for the reason that the assessment used Dr. Holbrook’s conclusion as its premise.
Without Dr. Holbrook’s report, the deficiency of Dr. Kackley’s report is fatal to compliance with the Noll requirements.