State ex rel. Balvin v. Youghiogheny & Ohio Coal Co.

Per Curiam. Y & 0 contests the appellate court’s decision to return the cause for further consideration and amended order. Claimant contests the court’s refusal to order the commission to expressly consider the rehabilitation report and issue an amended order. Only claimant’s challenge is found persuasive. This case falls squarely under State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327, 631 N.E.2d 1057. Fultz returned for further consideration an order that omitted reference to two reports among the evidence purportedly considered. The court wrote: “Neither the commission’s rehabilitation report nor Riccio’s vocational report is listed in the commission’s order as being among the evidence the commission considered. While the commission correctly contends in essence that it need only enumerate the evidence relied on, the fact that the commission in listing the evidence considered omitted those two reports from that list, leads to only one conclusion — the commission either inadvertently or intentionally ignored that evidence. Because these reports could be key to the success or failure of claimant’s application, the cause must be returned to the commission for further consideration.” Id. at 329, 631 N.E.2d at 1059. Fultz also held that Noll review was premature, since a satisfactory evidentiary explanation could not occur unless all evidence had been considered. Y & O’s claim of Noll compliance is not, therefore, ripe for review. [166] Accordingly, that portion of the appellate court’s judgment that returned the cause for further consideration and amended order is affirmed. That portion of the judgment which declined to specifically direct the commission to consider the rehabilitation report and issue an amended order is reversed. Judgment reversed in part and affirmed in part. Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.