State ex rel. Harsch v. Industrial Commission

Per Curiam. Appellant, Lorenzo Harsch, seeks a writ of mandamus compelling appellee Industrial Commission of Ohio (“commission”) to vacate its order denying his application for R.C. 4123.56(B) wage loss compensation and to grant this relief. The commission denied this compensation after determining that [281] Harsch had not pursued employment within his medical capabilities in good faith and, thus, did not qualify. The Court of Appeals for Franklin County refused the writ, holding that the commission’s decision was not an abuse of discretion. The cause is now before this court upon appeal as of right. Harsch injured his back in 1988 while working for appellee LTV Steel Company (“LTV Steel”). His workers’ compensation claim was allowed for “[ajcute right dorsal, lumbar strain; herniated nucleus pulposis L-5-S1, right.” On March 16, 1993, he applied for wage loss compensation for a period he would later change to January 4, 1993 through August 2, 1993. Harsch was unemployed during this period. The commission denied Harsch’s application based on the findings of its district hearing officer, mainly: “It is the finding of the District Hearing Officer that wage loss compensation is specifically denied from 1/4/93 through 8/2/93. Claimant has not demonstrated a good faith job search consistent with his physical capabilities. Claimant only averaged five or less job searches per week during this period.” Harsch asserts his eligibility for wage loss compensation under R.C. 4123.56(B), which provides: “Where an employee in a claim allowed under this chapter suffers a wage loss as a result of returning to employment other than his former position of employment or as a result of being unable to find employment consistent with the claimant’s physical capabilities, he shall receive compensation at sixty-six and two-thirds per cent of his weekly wage loss not to exceed the statewide average weekly wage for a period not to exceed two hundred weeks.” Corresponding former Ohio Adm.Code 4121-3-32(D) provided, in part: “ * * * [T]he payment of compensation or wage loss pursuant to division (B) of section 4123.56 of the Revised Code shall commence upon application with a finding of any of the following: “(1) The employee, as a direct result of the allowed conditions in the claim, returns to employment other than his former position of employment and suffers a wage loss; “(2) The employee returns to his former position of employment but suffers a wage loss; “(3) The employee, as a direct result of the allowed conditions of his claim, is unable to find work consistent with the employee’s physical capabilities and suffers a wage loss.” In his first arguments for reversal, Harsch maintains that a good-faith search for employment within his medical capabilities is not necessary to qualify for wage loss compensation under these laws. We, however, recently confirmed that an adequate job search is a prerequisite to eligibility for this compensation. In [282] State ex rel. Vanover v. Emery Worldwide (1997), 80 Ohio St.3d 367, 369, 686 N.E.2d 518, 520, we held: “The job search required by Ohio Adm.Code 4121-3-32(D)(3) has an inherent qualitative component — it must be an adequate job search. [State ex rel.] Consolidated Freightways [v. Engerer (1996), 74 Ohio St.3d 241, 658 N.E.2d 278]. The adequacy of a job search must be resolved on a case-by-case basis and can encompass many factors. Two of those factors * * * [are] the number and character of job contacts.” (Emphasis sic.) In Vanover, we specifically observed that “[i]t was within the commission’s discretion to find that these contacts did not go toward a good-faith [job] search.” Id. at 369, 686 N.E.2d at 521. Accordingly, we reject Harsch’s arguments to the contrary. But in his last argument for reversal, Harsch alternatively contends that the commission did not comply with the specificity requirements of State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. The commission found Harsch’s job search inadequate because he consistently contacted only five employers per week, ordinarily only one each day, during the period for which he purportedly could find no work commensurate with his physical condition. We agree that this explanation is too brief to justify the denial of wage loss compensation. A denial of a claim without some explanation as to why the claimant’s persistent job search is insufficient provides a reviewing court no basis upon which to determine why the commission decided to withhold benefits. Indeed, absent evidence and an explanation as to whether the commission considered the claimant incredible, or a malingerer, or had another reason for discounting his efforts, his daily inquiries for employment can hardly represent a lack of good faith. Accordingly, the court of appeals’ judgment denying the requested writ of mandamus is reversed and a writ returning this cause to the commission for further consideration and an amended order is granted. Judgment reversed and unit granted. Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.