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

Decision Date31 December 1984
Docket NumberNo. 83-1532,83-1532
Citation15 Ohio St.3d 87,472 N.E.2d 718
Parties, 15 O.B.R. 188 The STATE, EX REL. LUCENTE, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Appellant, Ralph Lucente, was employed by Strouss Division, May Department Stores Company ("Strouss"), an appellee herein. His claim, No. 684917-22, was allowed as to a July 9, 1979 injury for "acute lumbo sacral sprain with pull of the paravertebral muscle of L-1, L-3 area" and compensation and benefits were paid. Thereafter, appellant filed an application with appellee Industrial Commission for determination of the percentage of permanent partial disability. Appellant was referred for examination to Dr. Anthony Dominic who opined, relative to his examination of December 11, 1980, that appellant " * * * has a permanent partial impairment of 20%."

Appellant was again examined by Dr. Dominic on April 9, 1981, and the hearing officer in referring the instant claim also referred for review therewith a 1976 claim, No. 76-15289, wherein appellant received a 1978 award of forty percent permanent partial disability for injuries to "right shoulder, contusion left hip, strain lumbosacral and sacro iliac spine." The report of Dr. Dominic acknowledged review of the 1976 claim and opined a permanent partial impairment of fifty-five percent. Again, referral to Dr. Dominic was made for purposes of clarification or differentiation of the 1976 and 1979 claims. Dr. Dominic then issued his third report dated June 24, 1981, concluding that "the claimant has a permanent partial impairment of 55% on claim file 684917-22 [subject claim] only."

Upon a subsequent finding by a district hearing officer that appellant had a permanent partial disability of fifty-five percent, the 1979 claim was reviewed on application for reconsideration filed by Strouss. In connection therewith, appellant's claim file was referred to the chief medical advisor to the commission, Dr. Dwight H. Davies. Dr. Davies was also apprised of the 1976 claim which had resulted in a forty percent permanent partial disability award. Dr. Davis rendered a report dated April 22, 1982, stating in part: "Using the facts in Dr. Dominic's reports along with the AMA Guides to the Evaluation of Permanent Impairment and McBride's Disability Evaluation, I obtained 16% PPI and 34% PPD for a freight handler. In summary, I don't believe Dr. Dominic's findings are consistent with 55% PPI."

The commission's order, following hearing, was then issued on February 24, 1982, and reads in relevant part as follows:

" * * * it is further the finding of the Staff Hearing Officer that claimant's percentage of permanent partial disability as a result of the allowed conditions is no greater than that previously determined, so that there is no basis for an additional award of compensation at this time. It is ordered, therefore, that claimant's C-92-A Application for an Increase in Percentage Permanent Partial Disability filed 9-5-80 be denied.

"This finding and order is based on the reports of Drs. Davies and Dominic, the evidence in the file and the evidence adduced at the hearing. Refer to claim # 76-15289."

The instant mandamus action filed by appellant requested an order directing the commission to find appellant entitled to a determination of permanent partial disability. The writ was denied on August 5, 1983.

Tablack, Wellman, Jeren & Freedom and John A. Jeren, Jr., Youngstown, for appellant.

Buckingham, Doolittle & Burroughs and Deborah Sesek, Akron, for appellee Strouss Div., May Dept. Stores.

Anthony J. Celebrezze, Jr., Atty. Gen., Bradley J. Finn and Lee M. Smith, Asst. Attys. Gen., for appellee Indus. Com'n.

PER CURIAM.

Appellant urges that the commission's order of February 24, 1982 did not comply with the requirements of State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 483, 453 N.E.2d 721, that such decisions " * * * specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief...

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