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State ex rel Jeany v. Cleveland Concrete Construction11/4/2004
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
{ } In this original action, relator, Aldo Jeany, seeks a writ of mandamus:
(1) ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying him compensation for impairment of earning capacity, and (2) ordering the commission to enter an order finding that relator is entitled to compensation for impairment of earning capacity. Alternatively, relator seeks a writ of mandamus:
(1) ordering the commission to vacate its order denying relator compensation for impairment of earning capacity, and (2) remanding the cause to the commission for an oral hearing regarding relator's application and instructing the commission that the evidence supports relator's request for compensation for impairment of earning capacity.
{ } Pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, the matter was referred to a magistrate of this court. The magistrate examined the evidence and issued a decision, wherein she made findings of fact and conclusions of law. (Attached as Appendix A.) In her decision, the magistrate concluded: (1) the evidence showed that relator retired from his former employment because he was no longer able to perform that employment as a result of pain in his back and leg; (2) the commission abused its discretion by denying relator's request for impairment of earning capacity compensation on the basis that relator had voluntarily retired for reasons unrelated to his industrial injury; and (3) the commission abused its discretion by failing to address evidence that relator submitted in support of his claim that he had impaired earning capacity. The magistrate therefore recommended that "this court should issue a writ of mandamus ordering the commission to vacate its order denying relator's application for [impairment of earning capacity] and to issue a new order, either granting or denying the application, after considering the evidence in the record and concerning relator's post-injury earning capacity, further determining whether relator voluntarily retired from the entire workforce." (Magistrate's Decision, at .)
{ } The commission objects to the magistrate's decision. According to the commission, the magistrate erred because: (1) the evidence does not support relator's claim that he is entitled to compensation for impairment of earning capacity; and (2) the magistrate erroneously re-weighed the evidence that was presented for the commission's review.
{ } "An Industrial Commission's order is subject to correction in mandamus only upon a showing of an abuse of discretion. State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47, 1 O.O.2d 190, 139 N.E.2d 41. An abuse of discretion occurs when the commission issues an order unsupported by 'some evidence.' " State ex rel. Osco Industries v. Indus. Comm. (1989), 43 Ohio St.3d 167, 168. "Where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus will not lie." State ex rel. Kroger Co. v. Stover (1987), 31 Ohio St.3d 229, 232. Determination of the weight and credibility of evidence belongs to the commission. State ex rel. Baker v. Indus. Comm., 97 Ohio St.3d 267, 2002-Ohio-6341, at , citing State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 20-21.
{ } The burden of showing the existence of an impairment of earning capacity lies with a claimant. State ex rel. Pauley v. Indus. Comm. (1990), 53 Ohio St.3d 263, 264, citing State ex rel. Apgar v. Indus. Comm. (1989), 42 Ohio St.3d 5, 7. G
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