No. 93-1972 | Ohio | Dec 14, 1994
Lead Opinion
Pursuant to 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, and its progeny, a court considering a complaint for a writ of mandamus alleging abuse of discretion by the Industrial Commission in denying a motion for permanent total disability must engage in a multi-step analysis. That court must first review the form of the commission’s order and determine whether the order satisfies the requirements of State ex rel. Noll v. Indus. Comm., supra, by (1) specifying the evidence upon which the commission relied, and (2) explaining the reasoning the commission used to reach its decision in such a manner as to enable meaningful judicial review. Gay, supra, at 319-320, 626 N.E.2d 666" 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">626 N.E.2d at 670.
The issuance of a writ of mandamus is appropriate where the court finds noncompliance with Noll, as such non-compliance is equivalent to an abuse of discretion. However, the nature of the mandate in the writ is dependent upon further analysis. Where the record before the court shows a substantial likelihood that the claimant is permanently and totally disabled, the court may order the commission to forthwith make an award of permanent total disability compensation. Gay, supra, syllabus. In the absence of substantial likelihood of permanent and total disability, or in cases where non-medical factors are split between favorable and non-favorable considerations, the court may order the commission to further consider the claimant’s motion. In this latter category of cases, the court should issue a writ ordering the commission to issue a decision meeting the specificity requirements of Noll, regardless of whether the commission ultimately grants or denies permanent total disability compensation. State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St. 3d 693" court="Ohio" date_filed="1994-07-27" href="https://app.midpage.ai/document/state-ex-rel-domjancic-v-industrial-commission-6769628?utm_source=webapp" opinion_id="6769628">69 Ohio St.3d 693, 635 N.E.2d 372; State ex rel. Madison v. Indus. Comm. (1994), 69 Ohio St. 3d 333" court="Ohio" date_filed="1994-05-18" href="https://app.midpage.ai/document/state-ex-rel-madison-v-industrial-commission-6769517?utm_source=webapp" opinion_id="6769517">69 Ohio St.3d 333, 631 N.E.2d 1062.
In the case at bar, the commission concluded that the claimant, a man now nearly eighty years of age, “is able to perform sustained remunerative employment.” The commission did not suggest the form of employment that this claimant might be able to perform, nor does the order specify or even suggest any evidence before it justifying the commission’s finding. The commission’s order in the cause before us clearly falls short of the specificity requirements of Noll. See State ex rel. Hopkins v. Indus. Comm. (1994), 70 Ohio St. 3d 36" court="Ohio" date_filed="1994-08-03" href="https://app.midpage.ai/document/state-ex-rel-hopkins-v-industrial-commission-6770204?utm_source=webapp" opinion_id="6770204">70 Ohio St.3d 36, 635
The commission’s failure to include the report of the certified vocational-evaluation specialist in its list of the evidence considered does not in this case require return of the cause to the commission for further review. Cf. State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St. 3d 327" court="Ohio" date_filed="1994-05-18" href="https://app.midpage.ai/document/state-ex-rel-fultz-v-industrial-commission-6769515?utm_source=webapp" opinion_id="6769515">69 Ohio St.3d 327, 631 N.E.2d 1057. The fact that the commission failed to rely on the report does not require this court to ignore it or the conclusions contained in it, particularly where no evidence rebutting those conclusions is present in the record. Nothing in the vocational report can be used to support the contention that this claimant is employable in any alternative occupation. No non-medical factors tending to favor the existence of possible alternative employment are contained in this record. Instead, the record exhibits a nearly eighty-year-old arthritic man with a high-school education who has been previously employed only in active forms of work, who now suffers extensive and continuing pain and sleeplessness resulting from his allowed conditions, and who is expressly described by two of the three physicians who examined him to be non-amenable to vocational rehabilitation. We find on this record substantial likelihood that the claimant is entitled to an award of permanent total disability compensation.
The judgment of the court of appeals is reversed insofar as it merely ordered the commission to issue an order complying with Noll. A writ of mandamus is hereby issued to compel the Industrial Commission to award claimant Ranomer permanent total disability compensation.
Judgment reversed in part and unit granted.
Dissenting Opinion
dissenting. For the reasons I concurred in Chief Justice Moyer’s separate concurrence in 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, 324, 626 N.E.2d 666, 673, I respectfully dissent.
Once we find that the Industrial Commission has failed to state specifically the evidence upon which it has relied and to explain briefly the reasoning for its decision, as required by State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St. 3d 203" court="Ohio" date_filed="1991-01-24" href="https://app.midpage.ai/document/state-ex-rel-noll-v-industrial-commission-6762935?utm_source=webapp" opinion_id="6762935">57 Ohio St.3d 203, 567 N.E.2d 245, this court should grant a limited writ of mandamus ordering
State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327, 631 N.E.2d 1057, which was decided after Gay, supra, cannot be distinguished from this case. In Fultz, the commission denied permanent total disability compensation. There, as in this case, the commission’s order provided a list of evidence that the commission had considered, but the list omitted a vocational report. We found that even Noll review was premature. Noting that the omitted report could be the key to the failure or success of the claimant’s application, we returned the cause to the commission for further consideration. Unlike the majority in this case, in Fultz, we did not independently review the record to determine whether there was a “substantial likelihood” that the claimant was entitled to an award of permanent total disability compensation.
For the foregoing reasons, I would affirm the judgment of the court of appeals.