Thеre are three components to claimant’s challenge, involving both the order itself and the circumstances surrounding its issuance. Clаimant poses two challenges to the circumstances preceding the commission’s final order. Claimant initially asserts a due prоcess violation based on allegedly ex parte communications between CSOE and the commission. Claimant’s argument fails for two reasons.
First, the rеcord does not identify the extent, if any, to which ex parte communications actually took place. Because the claimant was аlready on notice as to the disposition of his application after the first denial order issued, the only relevant time frame for examining any ex parte contact is the period between the first hearing and the first denial. The record, however, provides an incomplete picture of events therein. It is known only that on September 3, 1991, CSOE, “pursuant to your [the commission’s] request from our August 22, 1991 hearing,” tendered a рroposed denial order. Unfortunately, the parties disagree as to whether the permanent total disability denial and draft request were announced at the permanent total disability hearing. Thus, the extent to which CSOE’s submission of the order was unknown to claimant is not revealed.
Second, assuming arguendo that ex parte communication occurred, it does not automatically constitute a due process violation. As stated in Southwest Sunsites, Inc. v. Fed. Trade Comm. (C.A.9, 1986),
“Ex parte communications do not void an agency decision.” PATCO v. FLRA,
“Petitioner’s allegation must overcome a presumption of honesty and integrity on the part of the Commission, and thus a presumption that the decision rests on proper grounds. Porter County Chapter v. Nuclear Regulatory Commission,
We employed similar reasoning in In re Investigation of Natl. Union Fire Ins. Co. of Pittsburgh, Pa. (1993),
“Incumbent upon National Union was the burden to overcome the рresumption of honesty and integrity affording those serving as adjudicators. Withrow v. Larkin (1975),
In this case, claimant has neither established that the commission’s decision to deny permanent total disability was influencеd by ex parte contact nor has it overcome the presumption of honesty and integrity that attaches to the commission’s deliberations аnd decisions. Accordingly, claimant’s due process argument fails.
Claimant also attacks the commission’s adoption of an ordеr written by CSOE. Claimant, however, cites no authority that requires that an order be personally written by one of the voting commissioners. So long аs the order reflects the reasoning of the commission gained by the commission’s meaningful review of the evidence — as State ex rel Ormet Corp. v. Indus. Comm. (1990),
Claimant’s reliance on Logue v. Wilson (1975),
The present case is distinguishable in two respects. First, unlike the judge in Logue, the decision-maker in this ease attended the evidentiary hearing. The commission was not, therefore, dependent on another’s assimilation of the evidence. Second, the proposed order in the instant case did not lack written findings in support. To the contrary, the CSOE draft contained extensive findings that the commission was free to either accept or reject upon independent evidentiary review.
Claimant alsо challenges the commission’s reliance on the ARS vocational report. The commission, however, is the exclusive evaluator of evidentiary weight and credibility. State ex rel. Burley v. Coil Packing, Inc. (1987),
Claimant’s challenge, despite his protestations to the contrary, simply reflects, in our view, claimant’s disagreement with the rеport’s characterization of his medical profile. For example, while claimant viewed his age, education and work history as impediments to reemployment, ARS disagreed.
Claimant also accuses ARS of improperly evaluating a “theoretical individuаl” rather than claimant. This assertion is based on ARS’s evaluation of claimant’s nonmedical data without actually examining claimant. However, with one exception, claimant does not allege that any of the data evaluated was inaccurate. Morеover, that the evaluator allegedly misunderstood claimant’s most recent job duties is immaterial, since the employer does not dispute the medical consensus that claimant cannot return to that job.
To invalidate the ARS report under claimant’s theory would in effect be to hold that any report that is not based on personal examination cannot constitute “some evidence.” Suсh a ruling would conflict with State ex rel. Wallace v. Indus. Comm. (1979),
Claimant alleges that the ARS report did not consider the effect of his pain on his ability to work. The ARS report, however, was directed primarily at claimant’s %oranedical capabilities. The three physicians’ reports on which the commission relied all acknowledged clаimant’s complaints of pain. Thus, pain was factored into the overall analysis of permanent total disability. We accordingly find thаt the ARS report was “some evidence” on which the commission could rely.
For these reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.