Vulcan Materials Co. v. Industrial Commission of Ohio, and Gustava Garrett ,.

• Decision Date: 28 September 1989
• Docket Number: 88AP-41,89-LW-3112
• Parties: VULCAN MATERIALS COMPANY, Relator, v. INDUSTRIAL COMMISSION OF OHIO, and Gustava Garrett, Jr., Respondents.
• Court: Ohio Court of Appeals

VULCAN MATERIALS COMPANY, Relator, v. INDUSTRIAL COMMISSION OF OHIO, and Gustava Garrett Jr., Respondents.

No. 88AP-41.

89-LW-3112 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

September 28, 1989

Vorys Sater, Seymour & Pease, and Robert E. Tait, for relator.

Anthony J. Celebrezze, Jr., Attorney General, and Teresa O. McIntyre for respondent Industrial Commission of Ohio.

Larrimer & Larrimer, David Swanson and Craig Aalyson, for respondent Gustava Garrett, Jr.

OPINION

In Mandamus.

YOUNG Judge.

Relator, Vulcan Materials Company, has filed this original action requesting that this court grant a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission"), to vacate its order continuing the payment of temporary total disability compensation to co-respondent, Gustava Garrett, Jr. ("claimant"), and to issue an order finding that claimant was not entitled to such compensation on the basis of the permanency of his allowed condition.

This matter was referred to Kenneth W. Macke, referee, pursuant to Civ.R. 53 and Section 13, Loc.R. 11 of the Tenth District Court of Appeals. The referee filed his report containing findings of fact and conclusions of law, and recommended that relator's request for mandamus be granted ordering the commission to vacate its orders of February 12, 1987 and August 24, 1987, to the extent temporary total disability compensation is awarded, but to do so at the determination of whether the claimant is entitled to permanent and total disability compensation, and to make a determination in accordance with State, ex rel. Eaton Corp., v. Lancaster (1988), 40 Ohio St.3d 404.

The referee's findings of fact are not in dispute. Claimant sustained injury in the course of and arising out of his employment with relator on September 28, 1979. Claimant was allowed compensation for "left chronic sciatica and back pain."

On September 20, 1984, relator filed a motion requesting the termination of temporary total disability compensation on the grounds that the claimant's condition had become permanent.

A district hearing officer granted relator's motion, by order dated September 12, 1985, on the basis that the report of Dr. Nader indicated that claimant would never be capable of returning to his former position of employment due to the allowed condition. Claimant did not appeal from this decision. Instead, on December 10, 1985, claimant filed an application for compensation for permanent and total disability.

On June 18, 1986, claimant filed a motion requesting that his claim be additionally allowed for a condition described as "dysthymic disorder" and that temporary total compensation be reinstated from the date of last payment.

A district hearing officer granted claimant's motion by order dated February 12, 1987. The report states, in pertinent part, as follows:

"It is the finding of the Hearing Officer that this claim has been recognized for the following disabilities: Left chronic sciatica and back pain.

"It is further the finding of the Hearing Officer that the issue to be considered at this hearing is: Claimant's C-86 filed 6-18-86^additional condition (development of psychological factors).

"After full consideration of the issue it is the order of the Hearing Officer:

"Additional Allowance Dysthemic [sic] disorder.

"Compensation to be Awarded: Temporary total is order to continue to the date of the Permanent Total Disability hearing in view of the high degree of impairment evidenced by the claimant, based on C-84's submitted with objective findings.

"Based on Reports of Dr.(s) Bailin, Pritscher, Sherman, Derrick and Mames."

By order dated August 24, 1987, the Toledo Regional Board of Review affirmed the February 12, 1987 order of the district hearing officer. The commission subsequently affirmed the decision of the board and denied relator's appeal.

As a result of the commission's decision, relator filed the instant action and contends that the commission abused its discretion by ordering the continued payment of temporary total disability compensation pending the determination of the application for permanent and total disability compensation. The parties have stipulated the commission's claim file as the evidence to be considered by the court in this action. No objections to the report of the referee have been filed.

Relator has the burden of showing a clear legal right to a writ of mandamus as a remedy from a determination of the Industrial Commission. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141. It is well-settled that mandamus will not lie where the record contains some evidence to support the finding of the Industrial Commission. State, ex rel. Lewis, v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72. Conversely, where there is no evidence upon which the commission could have based its factual conclusion, an abuse of discretion is present and mandamus becomes appropriate. Paragon, supra; State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39.

In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, the Ohio Supreme Court interpreted R.C. 4123.56 as follows:

" * * * "An employee is entitled to be paid temporary total disability when injured and unable to work until one of three things occur: (1) he has returned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the...