State ex rel. Jeffrey v. Industrial Com'n of Ohio

• Decision Date: 13 August 1986
• Docket Number: No. 85-1157,85-1157
• Citation: 496 N.E.2d 919,26 Ohio St.3d 3
• Parties: , 26 O.B.R. 2 The STATE ex rel., JEFFREY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.
• Court: Ohio Supreme Court

Page 3

26 Ohio St.3d 3

496 N.E.2d 919, 26 O.B.R. 2

The STATE ex rel., JEFFREY, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.

No. 85-1157.

Supreme Court of Ohio.

Aug. 13, 1986.

Calhoun, Benzin, Kademenos & Heichel and Victor P. Kademenos, Mansfield, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson and Richard C. Slavin, Columbus, for appellee.

PER CURIAM.

Appellant posits that the Industrial Commission's order terminating his temporary total disability compensation was an abuse of discretion. Appellant offers several arguments in support of his position, but we find that only one of these arguments need be addressed in the disposition of this appeal.

Appellant contends that the commission's order is confusing, contradictory and not supported by the evidence. Specifically, appellant notes that although the order grants his appeal and denies Crestline's appeal (of the award of temporary partial disability benefits), it also affirms the decision of the regional board of review which effectively terminated appellant's temporary total disability benefits and awarded temporary partial benefits. Appellant asserts that the foregoing inconsistencies in the commission's order, combined with a lack of evidence in support of an award of temporary partial disability benefits, evinces a lack of compliance with the requirement that the commission "specifically state which evidence and only that evidence which has been relied upon to reach * * * [its] conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested." State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, 453 N.E.2d 721. This argument has merit.

First, the commission's order is internally inconsistent and contradictory. By granting appellant's appeal, one would assume that the commission was ruling in his favor and reinstating his temporary total disability benefits. In affirming the regional board of review, however, the commission merely maintained the status quo and provided no relief to appellant.

Second, it is impossible to resolve the foregoing inconsistency by reference either to the "evidence" relied upon by the commission or to the commission's non-existent "explanation" of its conclusion. The evidence cited by the commission consists solely of the medical reports of Drs. Fallon and Friedman. While Dr. Fallon's report states that it is his "feeling" that appellant "is not under temporary total impairment" and "could return to his former job activities," the report also states that appellant has a "permanent partial impairment" of twenty percent. ¹ Dr. Friedman's report, on the other hand, reaches the conclusion that appellant is "temporarily and totally disabled." ² Neither of these reports provides a factual basis for the award of temporary partial disability benefits at twenty-five percent.

In Mitchell, supra, this court emphasized that the commission must succinctly set forth a basis for its decision, so that (1) the parties have some notice as to the reasons for the approval or denial of compensation, and (2) the courts do not have to search the record for "some evidence" in support of the commission's determination and assume that the commission, in fact, relied upon that evidence in reaching its decision.

The commission's order in the instant case falls short of the standard discussed in Mitchell. The contradictory nature of the order itself raises a question as to whether the commission, by granting appellant's appeal, actually intended to award temporary total disability benefits to the appellant, or whether the commission, in fact, intended to adopt the regional board of review's decision to award only temporary partial disability benefits. The commission offers no explanation that might assist the court in resolving the order's inconsistencies, nor does the evidence cited by the commission support an award of temporary partial disability benefits. Although the report of Dr. Fallon might support an order that denies reinstatement of the appellant's temporary total benefits, the report of Dr. Friedman appears to support only an order that awards those benefits. Additionally, neither report even indirectly discusses temporary partial impairment or disability; and Dr. Fallon's finding of a permanent partial impairment of twenty percent has no correlation to an award of temporary partial benefits at twenty-five percent, which appears to have been "pulled from thin air."

Based on the foregoing, we grant a limited writ of mandamus and direct the commission to vacate its order of August 2, 1984 and issue a new order that clearly decides the parties' respective appeals, states which evidence has been relied upon, and succinctly explains the basis of its order.

Accordingly, the judgment of the court of appeals is reversed and a limited writ of mandamus is allowed.

Judgment reversed and limited writ allowed.

CELEBREZZE, C.J. and SWEENEY and C. CLIFFORD F. BROWN, JJ., concur.

DOUGLAS, J., concurs in judgment only.

LOCHER, HOLMES and WRIGHT, JJ., dissent.

HOLMES, Justice, dissenting.

I must dissent from the majority's opinion because I do not feel that the Industrial Commission's order was an abuse of discretion. Granting a writ of mandamus is clearly inappropriate where the record contains some evidence in support of the commission's findings. State, ex rel. G F Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446, 447, 423 N.E.2d 99 , citing State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77, 397 N.E.2d 403 ; State, ex rel. Davis, v. Indus. Comm. (1979), 60 Ohio St.2d 160, 398 N.E.2d 779 ; State, ex rel. Republic Steel, v. Indus. Comm. (1980), 61 Ohio St.2d 193, 399 N.E.2d 1268 ; State, ex rel. Dodson, v. Indus. Comm. (1980), 62 Ohio St.2d 408, 406 N.E.2d 513 .

The commission ordered affirmance of the regional board of review's order to allow temporary partial compensation at twenty-five percent. It based such order on the reports of Drs. Fallon and Friedman. This court has consistently held that a simple recitation of which reports the commission has relied on is sufficient to satisfy the rule of State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 453 N.E.2d 721, that commission orders must state which evidence the commission relied upon in reaching its conclusion. See State, ex rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 185, 464 N.E.2d 1005 (the commission's mentioning of medical reports of four doctors meets the Mitchell requirement); State, ex rel. Burdette, v. Dayton Walther Corp. (1984), 14 Ohio St.3d 29, 470 N.E.2d 897 (commission's statement that its order was " 'based on the reports of Drs. Chinn and Graham, evidence in the file and evidence adduced at the hearing' " [id. at 29-30, 470 N.E.2d 897] did articulate the evidence relied on by the commission).

It is clear that the medical reports of Drs. Friedman and Fallon provide some evidence in support of the commission's decisions. Dr. Friedman's initial opinion that appellant was temporarily totally disabled, in a report dated October 17, 1983, addressed only prior injuries appellant had received while working for a former employer. In that claim, No. 81-5991, appellant had been allowed an award of five percent permanent partial disability (September 27, 1982). Upon reconsideration (decision of November 17, 1982) a ten percent permanent partial disability for injuries to upper and lower back was awarded; and, by additional order dated March 30, 1983, the claim was allowed for right shoulder strain and tear of tendon cuff. Although these allowances have never been appealed, the hearing officer's order dated July 13, 1983, under the claim related to the more recent injury, No. 82-17094, ordered appellant to undergo a COLSP exam under both claim numbers and then to reset both files for hearing. This state of the record makes it unclear which injuries are at issue and, thus, which medical reports are relevant to the case sub judice. However, this October 17, 1983 report declaring appellant to be temporarily and totally disabled, upon which the majority...