Summary
In State ex rel. Roadway Express, Inc. v. Indus. Comm. (1992), 63 Ohio St.3d 123, 585 N.E.2d 415, the employer sought a writ of mandamus to compel the Industrial Commission to specify the evidence upon which it based its decision in allowing the employee's claim.
Summary of this case from Green v. B.F. Goodrich Co.Opinion
No. 90-2057
Submitted December 3, 1991 —
Decided February 26, 1992.
APPEAL from the Court of Appeals for Franklin County No. 89AP-1114.
On July 22, 1978, respondent-appellee William Chadbourne, an employee of relator-appellant, Roadway Express, Inc., was injured in the course of and arising out of his employment. Respondent-appellee Industrial Commission of Ohio ("commission") allowed Chadbourne's claim for "strained and twisted lumbosacral back" and he received temporary total disability compensation until October 1984 when the commission ordered payment to cease.
On April 14, 1986, the commission denied Chadbourne's motion for permanent total disability compensation.
On April 22, 1986, Chadbourne filed for permanent partial disability benefits. The commission found that Chadbourne had a ten percent permanent partial disability. Chadbourne then requested compensation for impaired earning capacity ("IEC") under R.C. 4123.57(A). Roadway asked for a hearing, after which the district hearing officer ordered Roadway to pay ten percent temporary partial disability compensation to Chadbourne.
The regional board of review and commission staff hearing officers affirmed the district hearing officer's order in its entirety.
Roadway filed a complaint in mandamus in the court of appeals alleging that the commission abused its discretion by awarding Chadbourne compensation under R.C. 4123.57(A). Roadway argued in the alternative that (1) there was no evidence to support the commission's order, and (2) the commission's order did not satisfy the requirements of State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721. The court of appeals denied the writ.
The cause is before the court as a matter of right.
Buckingham, Doolittle Burroughs, Brett L. Miller and Eleanor J. Tschugunov, for appellant.
Lee I. Fisher, Attorney General, Dennis L. Hufstader and Michael L. Squillace, for appellee Industrial Commission of Ohio.
Colasurd Colasurd and Christopher P. Colasurd, for appellee William Chadbourne.
This case requires us to review the Industrial Commission's order granting R.C. 4123.57(A) compensation to Chadbourne. For the reasons which follow we grant a limited writ of mandamus and return the matter to the Industrial Commission.
The district hearing officer's order, confirmed in its entirety by the regional board of review and staff hearing officers of the Industrial Commission, states in relevant part:
"The Hearing Officer finds from proof on file that pursuant to the award for permanent partial disability, as approved by the Industrial Commission, the claimant has elected to accept said award under Section 4123.57(A) of O.R.C., based on impairment in earning capacity.
"It is ordered, therefore, that temporary partial disability compensation at 10% be paid in accordance with Industrial Commission Ohio and Bureau of Workers['] Compensation rules and regulations and to continue so long as the impairment exists, upon submission of wage statements.
"The Self-Insured Employer is hereby ordered to comply with the findings herein."
Roadway argues that the commission abused its discretion in awarding Chadbourne impaired earning capacity ("IEC") compensation under R.C. 4123.57(A) because the commission failed to specify the evidence upon which it relied. We agree.
An Industrial Commission order granting or denying benefits to a claimant must specifically state the evidence upon which it relied and briefly explain the reasoning for its decision. State, ex rel. Noll, v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245; State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, 6 OBR 531, 534, 453 N.E.2d 721, 724. The commission's order fails to state any evidence upon which it relied in awarding Chadbourne R.C. 4123.57(A) compensation. Although the record may contain some evidence from which the commission could have determined that Chadbourne was entitled to R.C. 4123.57(A) compensation, our review is limited to the evidence upon which the commission specifically relied. We have consistently refused to search the record for some evidence to support the commission's decision and have returned similar cases to the commission for an amended order as required by Mitchell, supra. Noll, supra; State, ex rel. KMI Continental, Inc., v. Indus. Comm. (1991), 61 Ohio St.3d 443, 444-445, 575 N.E.2d 192, 193; State, ex rel. B.O.C. Group, General Motors Corp., v. Indus. Comm. (1991), 58 Ohio St.3d 199, 202-203, 569 N.E.2d 496, 499; State, ex rel. General American Transp. Corp., v. Indus. Comm. (1990), 49 Ohio St.3d 91, 92-93, 551 N.E.2d 155, 157; State, ex rel. Firestone Tire Rubber Co., v. Indus. Comm. (1990), 49 Ohio St.3d 283, 284, 551 N.E.2d 979, 980-981; State, ex rel. Frigidaire Division, General Motors Corp., v. Indus. Comm. (1988), 35 Ohio St.3d 105, 106-108, 518 N.E.2d 1194, 1196-1197; State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 173, 31 OBR 369, 374-375, 509 N.E.2d 946, 951; State, ex rel. Jeffrey, v. Indus. Comm. (1986), 26 Ohio St.3d 3, 5, 26 OBR 2, 4, 496 N.E.2d 919, 921.
Because the commission's order failed to specify the basis of its decision as required by Mitchell, it is unclear whether the award of R.C. 4123.57(A) compensation comports with the requirements of State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 387, 533 N.E.2d 775, 778. Under Johnson the determination of impaired earning capacity entails two steps — an initial hearing to determine partial disability and a second hearing to assess actual impaired earning capacity. Id. In the second hearing, the claimant bears the burden of showing an actual impaired earning capacity that is causally related to his industrial injury. State, ex rel. Apgar, v. Indus. Comm. (1989), 42 Ohio St.3d 5, 7, 535 N.E.2d 1364, 1365. Nothing in the commission's order indicates that Chadbourne met this burden.
The commission's order pre-dated Johnson and the decision to grant Chadbourne IEC compensation under R.C. 4123.57(A) may have been based on the commission's prior practice of automatically awarding IEC compensation whenever a claimant (who had been determined partially disabled) requested it.
Although the order refers to the submission of wage statements, evidence of actual earnings by itself (whether increased or decreased) is not determinative of the issue. State, ex rel. Arias, v. Indus. Comm. (1990), 49 Ohio St.3d 76, 79, 551 N.E.2d 135, 138; State, ex rel. Bouchonville, v. Indus. Comm. (1988), 36 Ohio St.3d 50, 51, 521 N.E.2d 773, 774.
Furthermore the commission's order makes no reference to Chadbourne's age, education, work history, or any other relevant factors in the record. The commission must consider these factors, set forth in Stephenson, supra, when determining the degree of impaired earning capacity under R.C. 4123.57(A). State, ex rel., Arias, v. Indus. Comm. (1990), 49 Ohio St.3d 76, 80, 551 N.E.2d 135, 139; State, ex rel. Bouchonville, v. Indus. Comm. (1988), 36 Ohio St.3d 50, 52, 521 N.E.2d 773, 775.
Accordingly we reverse the judgment of the court of appeals and grant a limited writ ordering the commission to vacate its order and to proceed in accordance with this opinion.
Judgment reversed and limited writ allowed.
MOYER, C.J., HOLMES and WRIGHT, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.
I respectfully dissent. I would affirm the well-reasoned decision of Judges Bryant, Whiteside and McCormac of the Tenth District Court of Appeals.
In part, the court of appeals said: "We agree with the referee's findings of fact and conclusions of law, and find that the referee is technically correct in suggesting a limited writ in this case. However, the evidence the referee cites makes very clear why the commission determined this matter as it did. To grant a limited writ under Mitchell and Stephenson would simply burden the Industrial Commission by requiring it to state what is readily ascertainable on review."
There is clearly "some evidence" to support the commission's determination. In fact, there is more than just some evidence. Dr. William Kraus's report, based upon his August 8, 1985 examination, concludes that appellee will never be able to return to his prior job as a dockman, although appellee might be able to engage in light work with restrictions on bending, lifting, standing and walking. Further, in a report provided to the commission, Dr. Timothy Fallon found that appellee would have some difficulty in working as a dock worker.
While this evidence was used by the commission in denying appellee permanent total disability compensation, it is clearly relevant to the issue of impairment of earning capacity under former R.C. 4123.57(A). While admittedly the duty remains with the commission to set forth, with some specificity, the evidence relied upon in reaching its determination, it is not, in this case, any laborious task to glean from the record that the evidence is there to support the commission's determination.
This is not a State, ex rel. Noll, v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, case. When there is some evidence to support the commission's finding in awarding benefits, the additional factors of age, education, etc. need not be considered. All such a consideration would render is further evidence supporting the commission's decision to award benefits.
Since I would affirm the judgment of the court of appeals in all respects, I must respectfully dissent.
SWEENEY and RESNICK, JJ., concur in the foregoing dissenting opinion.