State ex rel. Missik v. Youngstown
| Decision Date | 09 December 1992 |
| Docket Number | No. 92-155,92-155 |
| Citation | 602 N.E.2d 633,65 Ohio St.3d 189 |
| Parties | The STATE ex rel. MISSIK, Appellant, v. CITY OF YOUNGSTOWN et al., Appellees. |
| Court | Ohio Supreme Court |
Appellant-claimant, George Missik, suffered three injuries while working for the city of Youngstown: (1) claim number PE626746--"Bilateral sacroiliac injury," (2) claim number PEL4593--"Neck and shoulder," and (3) claim number PEL3212--"Injured back and left side." Claimant did not return to work after the last injury.
In 1987, claimant sought permanent total disability compensation, listing only PEL3212 and PEL4593 on his application. Claimant was examined on the Industrial Commission's behalf by Dr. William G. Kraus, who confined his examination and discussion to the injuries sustained in those two claims (except for referring to the other injury in giving the claimant's history). He concluded:
"It is my present opinion that this claimant is now permanently and totally impaired insofar as the performance of any sustained remunerative employment on the basis of the allowed conditions in Claim Nos. PEL-4593 and PEL-3212, and, within reasonable medical probability, I do not believe that he can be rehabilitated."
The commission granted permanent total disability compensation, with the order specifying "that the cost of this award be allocated 100% to claim number PEL-3212."
Claimant eventually sought permanent partial disability compensation in claim numbers PE626746 and PEL4593. A commission district hearing officer dismissed both applications based on claimant's prior permanent total disability award. Reconsideration was denied in both claims.
Claimant sought a writ of mandamus in the Court of Appeals for Franklin County, claiming that the commission had abused its discretion in dismissing his application for compensation for permanent partial disability. The court of appeals disagreed, relying on Dr. Kraus's narrative. Because that report attributed claimant's disability to both upper and lower back conditions, the court reasoned that "there was no evidence to support a theory that the commission intended to attribute the entire permanent total disability solely to the last claim number."
This cause is now before this court upon an appeal as of right.
Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald E. Slipski and Steven L. Paulson, Austintown, for appellant.
Lee I. Fisher, Atty. Gen., and Dennis L. Hufstader, Asst. Atty. Gen., for appellee Industrial Com'n of Ohio.
Pursuant to our decision in State ex rel. Litten v. Indus. Comm. (1992), 65 Ohio St.3d 178, 602 N.E.2d 624, we find that the...
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