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State ex rel. Manville International10/30/2003
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
. Relator, Johns Manville International, Inc., seeks a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission"), to vacate its order granting permanent total disability ("PTD") compensation to respondent, Myrtle Miller ("Miller"), and/or to vacate its order denying reconsideration.
.Pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) In her decision, the magistrate found that the commission abused its discretion when it awarded PTD compensation dating back to 1989. The magistrate also found that the commission's order does not comply with the mandates of State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, and State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Therefore, the magistrate recommended the court issue a writ of mandamus returning this matter to the commission. Miller timely filed objections to this decision, asserting that the commission's actions did not constitute an abuse of its discretion.
.The magistrate correctly found that the commission's order fails to set forth a sufficient evidentiary basis for its decision to retroactively award PTD compensation for the past 14 years. The commission's order states it based its decision on "the reports of Dr. Ward and Dr. Mikultis." However, there is only one medical report from 1989 (by Dr. Ward). Therefore, it is the only medical report that could serve as "some evidence" to support the commission's decision to commence its PTD award in 1989. The diagnosis in Dr. Ward's 1989 report is equivocal, and it simply cannot be considered. State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649.
.The magistrate also correctly determined that the order does not comply with Noll and Stephenson. As previously noted, the commission's order fails to adequately set forth the basis for its decision to award PTD compensation retroactively for 14 years, though Miller has been examined repeatedly during that time. Additionally, the commission's order states it based its PTD award on medical and non-medical factors. However, though the order states Miller does not have transferable skills, it does not discuss whether Miller can learn to perform some other job in light of her disability, as Stephenson requires. Miller's objections are therefore overruled.
.Following an independent review of this matter, we find the magistrate has properly determined the pertinent facts and applied the correct legal standards. Therefore, we adopt the magistrate's decision as our own, including its findings of fact and conclusions of law. In accordance with the magistrate's decision, we grant a writ of mandamus ordering the commission to vacate its order granting PTD compensation and upon further consideration, to issue a new order granting or denying PTD (or other appropriate compensation) in compliance with Noll and Stephenson.
Objections overruled; writ of mandamus granted.
BRYANT and KLATT, JJ., concur.
(APPENDIX A)
IN MANDAMUS
.In this original action in mandamus, relator, Johns Manville International, Inc., asks the court to issue a writ compelling respondent Industrial Commission of Ohio ("commission") to vacate its order granting compensation for permanent total disability ("PTD") to respondent Myrtle Miller, and/or to vacate its order denying reconsideration. Findings of Fact
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