Opinion
No. 89-376
Submitted May 8, 1990 —
Decided July 18, 1990.
Workers' compensation — Regional board of review's order remanded when, without explanation, without reasons, and without indication of the evidence relied upon, the board reversed its original decision.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-790.
Claimant-appellee, Esther Manes, filed a motion with the Industrial Commission of Ohio ("commission") for temporary total disability compensation for injuries sustained in the course of and arising from her employment with appellant, Akron City Hospital. Appellant, a self-insured employer, challenged the asserted temporary total disability and requested a commission hearing. At the hearing, appellee orally amended her temporary total compensation motion to reflect a request for compensation from February 18, 1986 "to date."
A commission district hearing officer denied temporary total compensation finding:
"The claimant suffered an intervening back injury in a fall on 4-12-85.
"Dr. Mallo did not treat the claimant from 9-24-85 to 8-14-86. Dr. Mallo's report of 8-14-86 does not express any opinion on claimant's ability to return to her former position of employment. * * *"
On October 20, 1986, the regional board of review vacated the district hearing officer's order and awarded temporary total compensation from September 24, 1985 to August 14, 1986. This order prompted a letter to the regional board from appellant that read:
"Enclosed please find a copy of the October 20, 1986 hearing order issued by the Canton Regional Board of Review * * *. Upon review we question whether or not a mistake or error was made * * *.
"Consequently, we request that you review this matter inasmuch as claimant through counsel amended the motion to request compensation only beginning February 18, 1986. Further, pursuant to prior Commission order, claimant was paid temporary partial compensation through July 5, 1986."
Appellee responded with her own letter asking that compensation be extended beyond August 14, 1986. She enclosed an October 29, 1986 letter from Dr. Mallo to her attorney that stated:
"* * * Regarding Esther Manes' condition, I have only seen her once since my last report to you, and her condition remains the same as before.
"It is still my opinion that she is unable to return to her former position of employment."
On December 3, 1986, the board issued an "Amended Order Pursuant to the Regional Board Order of October 20, 1986." That amended order stated:
"It is the order of this Board that the order of October 20, 1986 * * * be vacated in its entirety.
"The board orders that the District Hearing Officer's order dated 8-20-86 be affirmed in all respects."
A commission staff hearing officer refused further appeal on April 2, 1987.
Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that the commission abused its discretion by denying temporary total disability compensation. The appellate court found that the regional board's and staff hearing officer's orders did not comply with State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721, and issued a limited writ. The writ ordered the commission to vacate its April 2, 1987 order and issue an amended order "determining relator's [appellee's] entitlement to temporary total disability compensation setting forth the reasons for such determination and the evidence relied on * * *."
Appellant now appeals to this court as of right.
Tramonte, Kot, Davis Lowry, Thomas P. Kot and Kelly L. McLaughlin, for appellee.
Buckingham, Doolittle Burroughs Co., L.P.A., and Deborah Sesek, for appellant.
Under State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, 6 OBR 531, 533-534, 453 N.E.2d 721, 724:
"* * * [D]istrict hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested."
Orders that do not comply may be returned to the commission for clarification. See, also, State, ex rel. Frigidaire Division, General Motors Corp., v. Indus. Comm. (1988), 35 Ohio St.3d 105, 518 N.E.2d 1194. For the reasons that follow, we find that a remand is warranted.
Our analysis focuses on the district hearing officer's order, the December 3, 1986 regional board order that affirmed it, and the latter's lack of separate evidentiary findings. In State, ex rel. DeMint, v. Indus. Comm. (1990), 49 Ohio St.3d 19, 550 N.E.2d 174, we held that a regional board need not prepare separate evidentiary findings where it was affirming the decision and reasoning of a district hearing officer's order that satisfied Mitchell. The present district hearing officer's order set forth the reasoning and evidence on which it relied as required. The present case, however, is distinguishable from DeMint in one important respect.
Unlike DeMint, the regional board here originally vacated the district hearing officer's order. The December 3, 1986 affirmation came about only because the board sua sponte reversed itself, as the appellate court stated, "[w]ithout explanation, without reasons, and without indication of the evidence relied upon * * *." The board fails to explain why evidence that it apparently found insufficient originally to support a denial of temporary total disability compensation, suddenly persuaded it to decide otherwise. Its action is even more puzzling in light of the additional evidence presented to the board that specifically stated that appellee could not resume her former duties at that time.
We also note that by affirming the district hearing officer's order without more, the board adopted the hearing officer's evidence as its own. Here, the evidence cited by the district hearing officer in denying compensation was "Dr. Mallo's report of 8-14-86." Upon review, however, we question whether this report indeed exists. The parties consistently refer to just three Mallo reports, dated February 18, 1986, April 10, 1986 and October 29, 1986. Our examination of the record also reveals no August 14, 1986 report. The remand for clarification is thus warranted for this reason as well.
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.