State v. Industrial Commission, Unpublished Decision (9-30-1999) ( 1999 )

IN MANDAMUS MEMORANDUM DECISION Relator, Gerald Jackson, has commenced this original action seeking a writ of mandamus which directs respondent Industrial Commission of Ohio to vacate its order denying compensation for permanent total disability, and to issue an order granting such compensation or, in the alternative, to issue an order that complies with 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.

Pursuant to Civ.R. 53 and Section M, Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. In her decision, the magistrate concluded (1) Dr. Appert's report, on which the commission relied, is fatally equivocal in regard to permanency, and (2) the commission's order does not adequately set forth its rationale regarding relator's failure to engage in rehabilitation efforts, in that although the commission concluded relator failed to engage in physical rehabilitation and in academic and/or vocational training, the record indicates relator was involved in one or the other, based on the letter of Dr. Appert.

Accordingly, the magistrate decided the commission's order fails to cite "some evidence" on which it can rely in regard to its finding of medical/functional capacity, and further fails to adequately explain its rationale regarding relator's failure to engage in rehabilitation efforts. The magistrate decided a limited writ should issue.

No objections have been filed to the magistrate's decision.

Finding no error of law or other defect on the face of the magistrate's decision, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we issue a limited writ of mandamus returning this matter to the commission to vacate its order denying permanent total disability compensation, to refer claimant for a new medical examination by a commission specialist or to rely on the evidence currently in the file except for the Appert reports, to hold a new permanent total disability hearing if a specialist's report is added to the record, and to render a decision granting or denying permanent total disability compensation in compliance with the authorities referenced in the magistrate's decision.

Limited writ granted.

PETREE and DESHLER, JJ., concurs.