Opinion
No. 92-2076
Submitted April 6, 1993 —
Decided June 16, 1993.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-1186.
Claimant-appellant, Eugene Fields, sustained three industrial injuries since 1972, the last of which occurred in the course of and arising from his employment with appellee, Midland Steel Products Company, in 1981. The first two were allowed for "injured right thumb" and "puncture wound top of head." The third, claim No. 768253-22, was recognized for "back strain." Claimant also has serious health problems unrelated to his industrial injury.
In 1988, claimant applied to appellee Industrial Commission for permanent total disability compensation. Several conflicting medical reports were before the commission. Commission specialist Dr. W. Jerry McCloud found claimant permanently and totally impaired, but based this opinion on the mistaken belief that the claim had been allowed for aggravation of degenerative disc disease. Dr. G.E. Gustafson, on the other hand, found claimant capable of sustained remunerative employment, subject to a ten-pound lifting restriction of limited frequency and a caveat that he avoid repetitive bending, twisting and stooping.
Dr. Robert D. Zaas, attending physician, listed numerous objective findings in support of his conclusion that claimant's allowed conditions prevented sustained remunerative employment. The commission's rehabilitation division concluded that claimant had no rehabilitation potential.
The commission ultimately denied permanent total disability compensation, based "particularly upon the reports [ sic] of Doctor Gustafson, a consideration of the claimant's age, education, work history and other disability factors including physical, psychological and sociological, that are contained within the Statement of Facts prepared for the hearing on the instant Application, the evidence in the file and the evidence adduced at the hearing.
"The claimant is 54 years of age, and he has obtained his GED. The claimant has work experience as a mechanic, welder and millwright. Dr. Gustafson in his 6-16-89 report states the claimant is not permanently and totally disabled as a result of the industrial injury. Therefore, the claimant is denied Permanent Total Disability as the result of the allowed conditions in claim 768253-22. Dr. McCloud in his 7-24-90 report stated the claimant has no current impairment under Claim Nos. 72-28728 or 78-51508."
Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging in effect that the commission abused its discretion in denying his application for permanent total disability benefits. The court of appeals found that the commission's order violated State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, and issued a limited writ vacating the commission's order and remanding the cause for further consideration and a new order.
This cause is now before this court upon an appeal as of right.
Stewart Jaffy Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy; Sheldon Karp Co., L.P.A., and Sheldon Karp, for appellant.
Lee I. Fisher, Attorney General, and Richard A. Hernandez, Assistant Attorney General, for appellee Industrial Commission.
State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, directed the commission to "specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision. An order of the commission should make it readily apparent from the four corners of the decision that there is some evidence supporting it." Id. at 206, 567 N.E.2d at 248.
The commission concedes that its order does not satisfy Noll since it does not explain the reasoning behind the order but merely identifies evidence that the commission deemed relevant. Mere recitation of claimant's age, education and work history does not constitute an explanation of the commission's decision.
However, a Noll violation does not mandate substitution of the commission's denial with an order granting permanent total disability benefits. Under similar facts, we rejected this proposition, writing:
"A lack of `some evidence' supporting denial of permanent total disability compensation does not automatically translate into `some evidence' supporting its award. State ex rel. Lampkins v. Dayton Malleable, Inc. (1989), 45 Ohio St.3d 14, 542 N.E.2d 1105. Accordingly, we return the cause to the commission for further consideration of the application." State ex rel. Wilcox v. Ashtabula Cty. Highway Dept. (1992), 64 Ohio St.3d 190, 192, 593 N.E.2d 1390, 1391-1392.
Claimant responds that the commission must be instructed to find permanent total disability upon remand if claimant's allowed conditions together with nonmedical evidence and nonallowed medical conditions remove him from sustained remunerative employment.
Claimant's assertion arises from language in State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, in which this court ordered the commission, for the first time, to consider nonmedical disability factors in evaluating applications for permanent total disability compensation. Stephenson directed the commission to "look at the claimant's age, education, work record, and all other factors, such as physical, psychological and sociological, that are contained within the record in making its determination of permanent total disability." (Emphasis added.) Id. at 173, 31 OBR at 374, 509 N.E.2d at 951.
Claimant misreads Stephenson. The commission must "look at" all relevant factors in the record that may affect a claimant's ability to work. However, Stephenson was never intended to permit the commission to base an award of permanent total disability on non-allowed medical conditions, in whole or in part.
For these reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, F.E. SWEENEY and PFEIFER, JJ., concur.
RESNICK, J., dissents.