Opinion
No. 90-1584
Submitted October 8, 1991 —
Decided December 24, 1991.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-919.
Claimant-appellee, Stanley Zelek, was injured in 1978 while in the course of and arising from his employment with appellant, Youghiogheny Ohio Coal Company, and his workers' compensation claim was allowed. Claimant later applied to appellee Industrial Commission of Ohio for permanent total disability compensation. The commission denied claimant's application on January 3, 1986.
On October 21, 1986, claimant filed another application for permanent total disability compensation. The commission granted the application on May 2, 1989, and backdated compensation to October 21, 1986. Its finding was based:
"[P]articularly upon the reports of Doctors Gatens, Friedman, Brown, Jackson and Holbrook, 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."
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion by awarding permanent total disability compensation. The court of appeals found some evidence that claimant was permanently and totally disabled, but not as early as October 21, 1986. The court returned the cause to the commission for reconsideration of the effective date of compensation and an explanation as to why that date was chosen.
This cause is now before this court upon an appeal as of right.
Hanlon, Duff Paleudis Co., L.P.A., and John G. Paleudis, for appellant.
Larrimer Larrimer and David H. Swanson, for appellee Zelek.
Lee I. Fisher, Attorney General, Michael L. Squillace and Scott A. Armour, for appellees Industrial Commission and Administrator, Bureau of Workers' Compensation.
Appellant seeks vacation of the commission's May 2, 1989 order and asks us to either deny permanent total disability compensation or return the cause to the commission for an amended order that adequately explains its decision. Upon review, we find that the commission's order is flawed in two respects, warranting vacation and a return for an amended order.
The commission order's boilerplate recitation of nonmedical disability factors does not satisfy State, ex rel. Noll, v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, which directed the commission to:
"* * * [S]pecifically 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.
An amended order is appropriate for a second reason. Examining the evidence on which the commission relied, we find that the effective date of permanent total disability predates all supporting evidence. The commission commenced benefits as of October 21, 1986. The earliest cited evidence of permanent total disability, however, is the December 19, 1986 reports of Drs. Gatens and Friedman. The commission thus abused its discretion by awarding compensation over a period for which there was no evidence of permanent total disability. Further reconsideration and explanation by the commission of its order in this respect are necessary.
Accordingly, we reverse, pursuant to Noll, that portion of the judgment below which found a brief explanation by the commission of the reasoning for its decision to be unnecessary. The remainder of the appellate court's judgment is affirmed. A writ is granted ordering the commission to vacate its order and issue an amended order in accordance with this opinion.
Judgment reversed in part, affirmed in part and writ allowed.
HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.
I respectfully dissent from the majority's reliance on State, ex rel. Noll, v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. Noll, supra, does not control because, in the present case, it is obvious which evidence the commission relied upon to support its findings. As the court of appeals held:
"* * * Although the commission failed to set forth any reason for its determination as required by the Mitchell-Frigidaire-Stephenson standard, the reason for the finding of permanent total disability * * * is readily apparent from the medical reports and the statement of facts, the evidence upon which the commission indicated it relied. * * * We do not find that those decisions [other cases cited by appellant] compel a different conclusion than that recommended by the referee with respect to the Mitchell-Frigidaire- Stephenson standard as applied to the basic finding that claimant is permanently and totally disabled as a result of the industrial injury." (Footnote added.)
See State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721; State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946; State, ex rel. Frigidaire Div., General Motors Corp., v. Indus. Comm. (1988), 35 Ohio St.3d 105, 518 N.E.2d 1194.
I agree with the court of appeals' assessment of this case, and would find that there is no reason to order the commission to vacate its finding of permanent total disability. I would therefore affirm the court of appeals.
SWEENEY and DOUGLAS, JJ., concur in the foregoing dissenting opinion.