State ex rel. Buttolph v. General Motors Corp.

Per Curiam. The primary issue presented by this appeal is whether the commission adequately explained its reasoning for denying TTD compensation to claimant in its June 24, 1993 order as required by Mitchell and State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. Mitchell and Noll require that in any order granting or denying benefits, the commission specifically state what evidence it has relied on, and briefly explain the reasoning or basis for its decision. The purpose for requiring such evidentiary identification and explanation is so that “meaningful review can be accomplished.” Noll, 57 Ohio St.3d at 206, 567 N.E.2d at 249. However, we find that the order is ambiguous and should be returned for clarification because it prevents this court from conducting a meaningful review. See, e.g., State ex rel. DeMint v. Indus. Comm. (1990), 49 Ohio St.3d 19, 20, 550 N.E.2d 174, 176; State ex rel. Osco Industries v. Indus. Comm. (1989), 43 Ohio St.3d 167, 168, 539 N.E.2d 1128, 1130; State ex rel. Ingold v. Ormet Corp. (1988), 39 Ohio St.3d 353, 530 N.E.2d 920; State ex rel. Frigidaire Div., Gen. Motors Corp. v. Indus. Comm. (1988), 35 Ohio St.3d 105, 518 N.E.2d 1194, paragraph two of the syllabus. The critical portion of the June 24, 1993 order explains that TTD compensation was denied “for the reason that there is a lack of evidence in the record of an impairment from the allowed condition which is sufficient to preclude the claimant from performing the duties of his former position of employment, as so evidenced by the reports of Dr. Martin * * *.” This language is reasonably susceptible of two interpretations: (1) “there is a lack of evidence in the record” to support the contrary conclusion that claimant’s siderosis prevents him' from returning to work; or (2) “as so evidenced by the reports of Dr. Martin,” claimant’s medical history discloses no physical or physiologic impairment resulting from his siderosis that would preclude his return to work. Indeed, the parties’ arguments are respectively tied to these interpretations. From the claimant’s perspective, the order should be read according to the first [76] interpretation set forth above. Read this way, the order constitutes an abuse of discretion because the record contains a supplemental report by Dr. Joseph F. Tomashefski, Jr., dated October 25, 1989, which specifically opines, “within reasonable medical certainty, that Mr. Buttolph’s siderosis was the most important cause of his pulmonary dysfunction and inability to return to work.” From appellants’ perspective, the order should be read according to the second interpretation set forth above. Under this interpretation, the issue becomes whether the commission is required to explain its reasons for choosing one medical opinion over another, or for rejecting the other opinion. However, in order to address this issue, it must first be determined whether the commission did in fact choose one opinion over another, or whether it has simply failed to recognize that the record contained a contrary opinion. It is obvious that neither issue can be addressed — indeed, we cannot even know which issue is presented — until we know what the order says. Thus, there can be no meaningful review until the ambiguity is clarified by the commission.1 The referee purported to resolve the ambiguity by striking part of the order as “less than artful.” However, all ambiguous statements are “less than artful”; otherwise, they would not be ambiguous. We cannot simply rewrite the statement to achieve the interpretation we desire by striking the offending language as “less than artful.” Claimant also contends that the cause should be returned for further consideration because the commission’s June 24 order fails to list all medical evidence proffered for consideration. According to claimant, State ex rel. Fultz v. Indus. [77] Comm. (1994), 69 Ohio St.3d 327, 631 N.E.2d 1057, requires that “all of the medical evidence in the record * * * be considered and noted in the Commission’s decision.” Although the commission is required to consider all evidence properly before it, it is not required to list each piece of evidence that it considered in its order. Under Mitchell, 6 Ohio St.3d at 483-484, 6 OBR at 534, 453 N.E.2d at 724, the commission is required to enumerate in its order “only that evidence which has been relied upon to reach their conclusion * * *.” (Emphasis added.) See, also, Noll, 57 Ohio St.3d at 204, 567 N.E.2d at 247. There is no requirement that the commission list all evidence considered. See DeMint, 49 Ohio St.3d at 20, 550 N.E.2d at 176. Nor does Fultz impose such a requirement. Fultz holds, in effect, merely that if the commission unnecessarily endeavors to enumerate the evidence considered, it must appear from its order that all evidence was given consideration. Thus, if the commission lists only the evidence relied upon, without any attempt to enumerate the evidence considered, Fultz does not apply. See State ex rel. Lovell v. Indus. Comm. (1996), 74 Ohio St.3d 250, 252-253, 658 N.E.2d 284, 287. In the case sub judice, the commission’s June 24, 1993 order listed only the evidence relied upon. No effort was made to list the evidence considered. Thus, Fultz is inapplicable, and claimant’s argument must fail. Last, the commission argues that the court of appeals erred in applying State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, to a TTD case. We agree. This court has specifically explained that “non-medical factors such as age, education, and work experience, * * * have no place in a determination of TTD.” State ex rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 212, 631 N.E.2d 138, 146. However, a simple reading of the court of appeals’ decision reveals that no critical issue was decided entirely on the basis of Stephenson. Thus, the error is entirely harmless, as it has no determinative effect on the outcome or the reasons underlying the appellate court’s decision. In light of the foregoing, we affirm the judgment of the court of appeals. Judgment affirmed. Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur. Footnotes [1] In fact, the commission’s explanation of its own order is ambiguous. The commission, in its brief, explains that: “The Commission’s order clearly indicates specific reliance on the reports of Dr. Martin who opined that Appellee: “ ‘has no apparent physical or physiologic impairment from the pathologically diagnosed condition of pulmonary siderosis. He does have a moderate degree of airway obstruction which is not from siderosis.’ ” Here the commission’s explanation of its June 24 order comports with the second interpretation set forth supra. However, the commission immediately goes on to finish its explanation, as follows: “It is clear that the Commission, in utilizing the ‘former position of employment’ test found in [State ex rel.] Ramirez [v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586], sought medical evidence in the record of an impairment from the allowed condition (siderosis) which prohibits a return to the former position of employment. They found a ‘lack of evidence’ in this regard, stated as much in the order and accordingly denied benefits because siderosis does not prevent the Appellee from performing the duties of his former position of employment.” Here, the commission very clearly explains its June 24 order as meaning that no evidence existed in the record to support a conclusion that claimant’s siderosis was work-preelusive, i.e., the first interpretation set forth supra. This explanation undermines its entire position on appeal. Accordingly, in attempting to explain that its June 24 order is not ambiguous, the commission’s conclusions remain unclear. This serves to highlight the need for clarification.