Opinion
No. 88-1872
Submitted January 23, 1990
Decided March 14, 1990.
Workers' compensation — Commission's order unreviewable when order does not identify the evidence relied on.
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No. 87AP-213.
Appellant and cross-appellee ("claimant"), John A. Caldwell, began receiving permanent total disability compensation in 1974 for an injury received while in the course of and arising out of his employment with appellee and cross-appellant, Firestone Tire Rubber Company. In 1985, Firestone filed a motion with respondent Industrial Commission ("commission") to terminate claimant's permanent total disability compensation and declare an overpayment, based on allegations that claimant had been working while receiving such compensation. The commission granted the request in part, finding:
"* * * [T]he claimant herein was engaged in substantial remunerative employment from 1-1-85 to 8-14-85 while receiving compensation for permanent total disability; that compensation paid from 1-1-85 to 8-14-85 is considered an overpayment. Therefore, it is now the order of the Commission that compensation for permanent total disability * * * be reinstated from the date of last payment of permanent total disability, less the overpaid compensation awarded from 1-1-85 to 8-14-85; that the employer's motion, filed 9-30-85, be granted to the extent of this order."
Firestone thereupon filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in continuing compensation after August 14, 1985. The appellate court issued a limited writ ordering the commission to vacate its order, to conduct further proceedings on the question of entitlement to continued permanent total disability compensation, and to issue an order identifying the reasons for its decision and the evidence on which it relied.
The cause is now before this court upon an appeal and cross-appeal as a matter of right.
Dennis C. Belli and David P. Rieser, for appellee and cross-appellant.
Michael J. Muldoon, for appellant and cross-appellee.
A claimant who is capable of sustained remunerative employment is not permanently and totally disabled. State, ex rel. Jennings, v. Indus. Comm. (1983), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420. Firestone's argument is contingent upon that finding: If claimant did not engage in sustained remunerative employment, then no viable basis for opposing continued permanent total disability compensation exists. This critical finding, however, is presently unreviewable since the commission's order does not identify the evidence upon which it relied on as required by State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721.
In his appeal herein, claimant challenges the vacation of his right to continue to receive permanent total disability compensation after August 14, 1985. Claimant's argument also hinges, in part, upon the commission's finding.
Firestone asserts that evidentiary review and identification are unnecessary since the parties "agree" that "some evidence" of sustained remunerative employment exists. This latter claim is based on claimant's failure to appeal the commission's order, which Firestone maintains is tantamount to an admission that "some evidence" is present. We are unpersuaded.
The alleged agreement between the parties does not bar us from performing our review. Merely because the parties agree that "some evidence" exists does not make it so. In State, ex rel. O.M. Scott Sons Co., v. Indus. Comm. (1986), 28 Ohio St.3d 341, 28 OBR 406, 503 N.E.2d 1032, the parties' "agreement" that mandamus was the proper vehicle for relief did not preclude us from holding otherwise.
In the present case we cannot reach the merits of Firestone's abuse-of-discretion allegation without first finding "some evidence" of sustained remunerative employment. Being unable to do so, we remand this cause to the commission in accord with the appellate court's decision, including compliance with Mitchell, supra.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.