State v. Morone, Unpublished Decision (8-26-1999)

IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION MEMORANDUM DECISION Relator, Frank Morone, has filed 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.

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 that the commission's analysis of the non-medical factors is inadequate to comply 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. Accordingly, the magistrate recommended that a limited writ be granted.

Relator has filed an objection to the magistrate's decision, contending that a full writ of mandamus should be issued pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St. 3d 315. The magistrate's decision adequately addresses the issue raised in relator's single objection. For the reasons set forth in the magistrate's decision, the objection is overruled.

Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them with the following amplification. Although the staff hearing officer relied upon the vocational report of Julie Morrissey, the staff hearing officer does not attempt to adopt the vocational report, much less the analysis employed in it. As a result, the staff hearing officer's order is conclusory with respect to the positions which relator may be capable of performing, lacking any analysis to support the conclusions. As the magistrate noted, simply relying on the vocational report is not a substitute for an independent explanation regarding the non-medical factors. State ex rel. Hayesv. Indus. Comm. (1997), 78 Ohio St. 3d 572. With that amplification, 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 grant a limited writ of mandamus, ordering the Industrial Commission of Ohio to vacate its order denying relator compensation for permanent total disability compensation, and to issue a new order that grants or denies permanent total disability compensation in compliance with the authorities cited in the magistrate's decision and adopted here.

Objection overruled; limited writ granted.

PETREE and KENNEDY, JJ., concur.