State ex rel. Pass v. C.S.T. Extraction Co.

Decision Date24 January 1996
Docket NumberNo. 94-893,94-893
Citation74 Ohio St.3d 373,658 N.E.2d 1055
PartiesThe STATE ex rel. PASS, Appellant, v. C.S.T. EXTRACTION COMPANY; Industrial Commission of Ohio, Appellee.
CourtOhio Supreme Court


Relief pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666, will be granted only in extraordinary circumstances revealing an abuse of discretion.

Appellant-claimant, Moses Pass, Jr., sustained two injuries in the course of and arising from his employment with C.S.T. Extraction Company. Appellant's 1974 workers' compensation claim, No. 74-463, has been allowed for "lumbosacral strain, chronic depression, and aggravation of pre-existing arthritis." His 1975 claim, No. 75-21438, has been recognized for "upper back, both arms, neck and low back."

Claimant eventually moved appellee, Industrial Commission of Ohio, for permanent total disability compensation. The Court of Appeals for Franklin County vacated the commission's initial order denying compensation because the order lacked the factual specificity required by State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. Among the evidence before the commission at the second permanent total disability hearing was the report of Dr. Lee Howard a psychologist. He found a five to ten percent permanent psychological/psychiatric impairment that did not prevent claimant's return to his former position of employment as a hod carrier.

Commission specialist Dr. D.D. Kackley listed the allowed conditions as "lumbosacral[ ] strain, chronic depression, aggravation of pre-existing arthritis" and the allowed claim number as 74-463. He concluded that claimant could not return to his former job, but could do light work. He assessed a twenty percent permanent partial impairment and, based on Dr. Howard's report, a twenty-four to twenty-eight percent combined effects permanent partial impairment.

Dr. Walter A. Holbrook also performed a combined effects review for the commission. He assessed a seventy percent permanent partial impairment and felt that claimant could do "low stress sedentary work."

A vocational assessment from John P. Kilcher was also on file. In an extensive report, he concluded that claimant's current nonmedical profile left claimant unemployable. In terms of potentially developable skills, Kilcher stated:

"I would fully concur with the rationale utilized by the Legal Section [of the Industrial Commission] of not referring the claimant to The Rehabilitation Division [of the Industrial Commission] based upon his age. A person of 63 years of age and having only completed the 7th grade of school, in my opinion, would not be a candidate for any form of rehabilitation program with a return to work goal. With the claimant's depressed state, some form of psychological therapy would be recommended, not with the goal of returning him back to work, but to assist the claimant in daily living activities. Another consideration in relation to rehabilitation services, would be Psychologist Howard's recommendation relating to the claimant's prescribed medication with addictive potential. This should be addressed to prevent any endangerment to the claimant which could potentially result."

The commission denied claimant permanent total disability compensation, writing:

"The reports of Drs. [sic ] Linder, Kilcher, Howard, Kackley, and Holbrook were reviewed and evaluated. The findings and order are based particularly upon the medical reports of Drs. Howard, Holbrook and Kackley, the evidence in the file and the evidence adduced at hearing.

"The claimant is 64 years old, has an 8th [sic ] grade education, and has worked as a hod carrier and construction worker. Dr. Howard found the allowed psychiatric conditions to not be work-restrictive. Dr. Kackley indicates that claimant is still capable of light work and indicates the combined impairment to be only 28%. When considering only the allowed conditions, it appears that even with only an 8th grade education[,] the claimant would still have the ability to retrain to light work, which would still allow some manual labor. Further, he lives in a large metropolitan area which provides more job opportunities. Finally, Mr. Kilcher's vocational evaluation is based on the premise that claimant can only do low stress sedentary work. This does not seem to be the case based on Dr. Howard['s] and Dr. Kackley's reports. Therefore, Mr. Kilcher's report is not found to be persuasive. Based on these factors, permanent and total disability is denied."

Reconsideration was denied.

Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion in denying permanent total disability compensation. The court of appeals denied the writ, finding that the order was supported by "some evidence" and satisfied Noll, supra.

This cause is now before this court upon an appeal as of right.

Barkan & Neff, L.P.A., and David E. Pryor, Columbus, for appellant.

Betty D. Montgomery, Attorney General, and Melanie Cornelius, Assistant Attorney General, for appellee.

WRIGHT, Justice.

Two questions are presented: (1) Does the commission's order satisfy Noll, supra? and (2) Is claimant entitled to a writ of mandamus compelling permanent total disability compensation consistent with State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666, if Noll has not been met? For the reasons to follow, we answer both questions in the negative.

Noll directs the commission to prepare orders that "are fact-specific and which contain reasons explaining its decisions. * * * Such order must specifically state what evidence has been relied upon to reach its conclusion and, most important, briefly explain the basis of its decision." Noll, 57 Ohio St.3d at 206, 567 N.E.2d at 249.

In this case, the order's explanation is deficient because it raises doubt as to whether all the allowed conditions were considered. Although the commission cited the report of Dr. Holbrook, denial was clearly premised on the reports of Drs. Howard and Kackley. Dr. Howard considered claimant's psychological condition. Dr. Kackley considered claimant's allowed physical conditions,...

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