State ex rel. Yancey v. Firestone Tire & Rubber Co.

Decision Date22 January 1997
Docket NumberNo. 94-2617,94-2617
Citation77 Ohio St.3d 367,673 N.E.2d 1374
PartiesThe STATE ex rel. YANCEY, Appellant, v. FIRESTONE TIRE & RUBBER COMPANY et al., Appellees.
CourtOhio Supreme Court

Appellant, Leola Yancey, seeks a writ of mandamus (1) to vacate appellee Industrial Commission of Ohio's denial of her deceased husband's application for permanent total disability compensation ("PTD"), and (2) to award her, pursuant to R.C. 4123.60, the PTD she claims he should have received prior to his death.

Leola's husband, Charles Yancey, was injured in 1973 while working for appellee Firestone Tire & Rubber Company ("Firestone"). His workers' compensation claim was recognized for "contusion to head, cervical strain, cervical radiculitis, post traumatic headaches, post traumatic stress disorder and aggravation of pre-existing anxiety neurosis [or disorder]." After his injury, Charles was diagnosed with an unrelated diabetic condition that eventually resulted in pedal amputations and total blindness. In 1985, Charles applied for PTD based on the report of his psychiatrist, Dr. Maximilien Menassa, who opined that Charles was permanently and totally disabled.

David E. Aronson, Ph.D., a clinical psychologist and commission specialist, assessed a thirty percent psychological impairment and also predicted that Charles would never be able to return to work.

Dr. John Frenz, another commission specialist, expressly recognized that he was to evaluate whether Charles was "permanently and totally disabled from sustained remunerative employment due to the allowed conditions" and, "[i]f not, [to] so state, and [to] give [a] definite percentage of impairment." Dr. Frenz noted that Charles was blind and had had some pedal amputations due to diabetes unrelated to his industrial injury; however, he still concluded:

"This claimant has indeed sustained impairments per this claim which rende[r] him permanently and totally disabled from sustained remunerative employment to a degree of 100%; this is exclusive of his other unrelated medical problems and disabilities."

Dr. Robert Rosen, an osteopath for the commission, reviewed the Menassa, Frenz and Aronson reports and concluded:

"It is doubtful that a 66 year old blind man could be rehabilitated into any type of gainful employment. For this reason, it is my opinion he is Permanently and Totally Disabled from any form of remunerative employment do [sic, due] to the allowed conditions in the above mentioned claims."

Charles died on November 28, 1988, before the commission's disposition of his PTD application. In January 1989, Leola applied, as Charles' dependent, for the accrued compensation he might have received before his death. The commission denied Leola's application in May 1993, finding that Charles was not permanently and totally disabled, that he was capable of sedentary work, and that his prior work history and educational level did not preclude this employment. The commission explained:

"The reports of Drs. Menassa, Aronson, Frenz and Rosen were reviewed and evaluated. This order is based particularly upon the reports of Drs. Rosen, Frenz and Aronson, the evidence in the file and the evidence adduced at the hearing.

" * * *

"A review of the medical evidence on file relative to the claimant's medical impairment relating to the allowed conditions in the claim leaves [sic, leads] the Commission to conclude that the totality of the medical evidence on file reflects that the claimant is not permanently and totally impaired. In this regard, the Commission specifically notes that the determination of disability is within the discretion of the Commission and that the opinions of the examining physicians should be restricted to a question of impairment based upon acceptable reference criteria. Dr. Aronson found the claimant's psychological presentation to represent only a 30% total body impairment while Dr. Rosen and Dr. Franz [sic ] found the claimant to be totally disabled. However, neither of these two reports indicated what level of impairment resulted from the allowed conditions in the claim. Accordingly, a review of the file with particular attention to the medical treatment on file, leaves [sic ] the Commission to conclude that the claimant's medical presentation from the allowed conditions does not render him permanently and totally impaired. The Commission finds that the claimant retained the residual functional capacity to perform sedentary levels of employment had he not expired in November of 1988. It is further noted that the claimant was able to complete 10 formal years of education and that he had a work history as a janitor, a treadroom worker, a foundry worker and a general laborer. The Commission finds that his vocational presentation would have been consistent with allowing him to [join] the active work force in positions for which he was medically capable of performing. However, the Commission notes that the claimant had [an] unrelated and unallowed diabetes mellitus condition. The effect this non-related medical presentation had on the claimant's ability to perform sustained remunerative employment leads the Commission to conclude that the claimant's inability to return to the active work force prior to his death was not causally related to the allowed conditions in the claim. Accordingly, the instant application for permanent total disability was [sic ] well as the widow claimant's application for accrued benefits for permanent total disability are denied consistent with this order."

Leola then filed her mandamus complaint in the Court of Appeals for Franklin County. She argued that the commission had abused its discretion in finding Charles fit for sustained remunerative employment and in denying her application for the PTD he should have received. A referee recommended denial of the writ without reaching Charles' PTD eligibility. The referee concluded that Charles's claim had abated upon his death and that Leola had no legal right, under R.C. 4123.60, to pursue payment of his PTD in mandamus. The court of appeals adopted the referee's report, with one judge dissenting, and denied the writ.

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

Law Offices of Stanley R. Jurus, Columbus, and Michael J. Muldoon, Hilliard, for appellant.

Buckingham, Doolittle & Burroughs, L.P.A., Brett L. Miller and Richard A. Hernandez, Columbus, for appellee Firestone Tire & Rubber Co.

Betty D. Montgomery, Attorney General, and Yolanda L. Barnes, Assistant ...

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6 cases
  • State ex rel. Liposchak v. Indus. Comm.
    • United States
    • Ohio Supreme Court
    • 15 Noviembre 2000
    ...In State ex rel. Nicholson v. Copperweld Steel Co. (1996), 77 Ohio St.3d 193, 672 N.E.2d 657, and State ex rel. Yancey v. Firestone Tire & Rubber Co. (1997), 77 Ohio St.3d 367, 673 N.E.2d 1374, we recently recognized mandamus as the sole means to enforce a claimant's right to accrued but un......
  • State ex rel. Hudson v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • 13 Agosto 2013
    ...disorder was not work prohibitive, without any medical evidence to support such a determination. See State ex rel. Yancey v. Firestone Tire & Rubber Co., 77 Ohio St.3d 367, 370-71 (1997), citing Johnson at 340 (finding that "[t]o deny PTD in the face of two allowed conditions, the commissio......
  • State ex rel. McComas v. Indus. Comm.
    • United States
    • Ohio Supreme Court
    • 22 Enero 1997
  • State ex rel. Hartness v. Kroger Co.
    • United States
    • Ohio Supreme Court
    • 22 Abril 1998
    ...of PTD represents an abuse of discretion, and a writ of mandamus must issue to correct the abuse. State ex rel. Yancey v. Firestone Tire & Rubber Co. (1997), 77 Ohio St.3d 367, 673 N.E.2d 1374. Here, the parties do not dispute the evidence that shows Hartness's permanent, but only partial i......
  • Request a trial to view additional results

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