State ex rel. Koonce v. Industrial Commission

Per Curiam. The appellate court, in making its determination, did not have the benefit of this court’s decision in State ex rel. Rodriguez v. Indus. Comm. (1993), 67 Ohio St.3d 210, 616 N.E.2d 929, which held that the commission’s continuing jurisdiction does not extend beyond the institution of mandamus proceedings. As such, the commission abused its discretion in vacating the order. Turning to the merits, we find two related aspects of the order particularly troubling. First is the amount of significance the commission attaches to the percentage of impairment assigned by Dr. Hutchison. Second is the erroneous suggestion that Hutchison attributed claimant’s physical limitations exclusively to his age, not his allowed conditions. It seems the commission disregarded a most — 438 — germane aspect of Hutchison’s report — his conclusion that the allowed conditions precluded heavy lifting as well as frequent stooping and bending. These restrictions set forth by Dr. Hutchison preclude claimant’s return to his former job. More broadly, the restrictions effectively confine claimant to lighter — possibly sedentary — employment. The commission’s order does not adequately explain how it determined that claimant’s age, education and work history render claimant amenable to that type of work. Accordingly, we find that the requirement of State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, has not been met. Having reached this conclusion, we must determine the appropriate remedial option — a return for further consideration and amended order pursuant to Noll or a writ of mandamus compelling a permanent total disability award under State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. We elect the latter. Given the evidence of record — claimant’s advanced age, extremely limited education and singular job history — we are unpersuaded that a denial of compensation can be adequately justified should the cause be returned once more to the commission. Accordingly, the judgment of the court of appeals is reversed and the writ is allowed. Judgment reversed and unit allowed. AM. Sweeney, Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Douglas and Resnick, JJ., concur separately. Moyer, C.J., and Wright, J., dissent.