State ex rel. Jackman v. Industrial Commission

Per Curiam. One issue is presented: Did the appellate court err in vacating the commission’s order and returning the cause to it for amended order? For the reasons to follow, we find that it did. The appellate court’s decision was precipitated by the commission’s failure to specify evidence on which it relied. The commission responds that the appellate court misunderstood the basis for the denial of compensation. Wage loss was not denied to claimant because the commission affirmatively relied on any evidence— ie., “some evidence.” It was denied because, in the commission’s view, there was no evidence on which the commission could rely to make an award. The commission asserts that it cannot specify evidentiary reliance where there was none. The commission’s position makes sense, theoretically, but its argument, on closer review, is undermined by the order’s ambiguity. The order’s reference to “insufficient medical proof’ implies that the wage-loss denial was indeed premised on “no evidence.” Conversely, its emphasis on claimant’s ability to return to her former job and citation to evidence that specifically so states, suggest that the commission indeed relied on “some evidence” that was not expressly designated as such. Generally, such a lack of clarity would justify a return of the cause to the commission for further consideration and amended order. [400] We decline, however, to return the cause because of the nature of the evidence before us. The lack of “some evidence” supporting the denial of compensation is not automatically “some evidence” supporting its award. State ex rel. Lampkins v. Dayton Malleable, Inc. (1989), 45 Ohio St.3d 14, 542 N.E.2d 1105. In this case, further consideration is pointless, since none of the medical evidence could support a wage-loss award. Dr. Gonzalez’s report does not support a wage-loss award because he attributes claimant’s physical problems to congenital conditions unrelated to the industrial injury. Dr. Yamvas’s assessment of claimant’s physical abilities cannot further claimant’s position, since Dr. Vamvas’s conclusions were inherently rejected when the commission discontinued temporary total disability compensation. State ex rel. Zamora v. Indus. Comm. (1989), 45 Ohio St.3d 17, 543 N.E.2d 87. Zamora also prohibits reliance on Dr. Graneto’s 1990 report. Dr. Graneto’s 1991 report is also insufficient to support a wage-loss payment. While the report states that claimant can do sedentary work, it does not state that she is restricted to such work. Without such a declaration, Dr. Graneto does not substantiate the existence of any medical impairment because his report does not eliminate the possibility that claimant can do more strenuous work. If claimant, for example, is now able to do everything that she did before the injury, her assertion of an injury-related impairment lacks persuasiveness. Accordingly, the judgment of the court of appeals is reversed. Judgment reversed. Moyer, C.J., Douglas, Wright, Pfeifer and Cook, JJ., concur. Resnick and F.E. Sweeney, JJ., dissent.