Summary
In Hay, the commission divided a PTD award between two claims, assigning 35 percent to the 1971 claim, and 65 percent to the 1975 claim.
Summary of this case from State ex rel. Cafaro Mgmt. Co. v. Indus. Comm'n of OhioOpinion
No. 89-235
Submitted April 17, 1990 —
Decided June 27, 1990.
Workers' compensation — Application for permanent total disability award — Award not supported by "some evidence," when.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-281.
Appellee, Robert Hay, on November 6, 1984, applied to appellant, Industrial Commission of Ohio ("commission"), for permanent total disability compensation. At that time, appellee had filed two workers' compensation claims for injuries received while in the course of and arising from his employment. The first, a 1971 claim for "strain of the cervical and acromioclavical muscles," generated $87 in paid medical expenses, no temporary total disability compensation and a thirty-five-percent permanent partial disability award. The second, a 1975 claim, allowed for "injury left knee, bruised ribs, contusion left knee, aggravation of spinal stenosis and disc L-4, L-5," resulted in $54,000 in paid medical bills, $28,000 in temporary total disability compensation, and a twenty-two-percent permanent partial disability award.
The commission granted appellee's permanent total disability motion and divided the award between the two claims, assigning thirty-five percent to the 1971 claim and sixty-five percent to the 1975 claim. The commission's decision was based on the reports of Drs. Gary I. Katz and Stephen P. Combs.
Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion by allocating thirty-five percent of the award to the 1971 claim. The court agreed and granted a writ of mandamus directing the commission to amend its order and allocate appellee's permanent total disability award wholly to the 1975 claim.
Appellant now appeals to this court as of right.
Dennis Seaman, for appellee.
Anthony J. Celebrezze, Jr., attorney general, Michael L. Squillace and Donald R. Ford, Jr., for appellant.
We are again asked to review the commission's order for "some evidence" pursuant to State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Confining our examination to the evidence cited in the commission's order, we find no evidence to support its decision.
Dr. Combs' September 25, 1984 and September 30, 1986 reports attribute appellee's disability exclusively to his 1975 claim. Similarly, Dr. Katz acknowledges all the allowed conditions, but bases his conclusion essentially on symptoms and restrictions that relate to the later injury.
We reject the suggestion that the prior thirty-five-percent permanent partial disability award in the 1971 claim is some evidence supporting the commission's allocation. As we have often stated, a permanent total disability is not measured numerically but is instead based on the claimant's ability to engage in sustained remunerative employment. State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420.
For the reasons set forth above, the judgment of the appellate court is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.