State ex rel. Fresh Mark, Inc. v. Mihm - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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1992, pursuant to a pilot project implemented by Chief Justice
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The State ex rel. Fresh Mark, Inc., Appellant, v. Mihm et
al., Appellants. (Consolidated Appeals.)
[Cite as State ex rel. Fresh Mark, Inc. v. Mihm
(1992), Ohio St.3d .]
Workers' compensation -- Commission's order awarding
compensation for impaired earning capacity not error when
a cursory review of the materials in the record shows that
there was sufficient evidence on which the commission
could properly rely in reaching its determination.
(Nos. 91-1346, 91-1593 and 91-1670 -- Submitted September
22, 1992 -- Decided December 14, 1992.)
Appeals from the Court of Appeals for Franklin County, No.
90AP-879.
Alva J. Bowman sustained low back injuries in 1982 and
1985 in the course of and arising from his employment with
Fresh Mark, Inc. (formerly known as "Superior's Brand Meats,
Inc."). A workers' compensation claim resulting from the 1982
injury was recognized for "ruptured disc -- lower back." A
separate claim for the 1985 injury was recognized for "lumbar
intervertebral disc syndrome L3/4 on the left side."
In 1987, Bowman sought permanent partial disability
compensation with respect to each claim. In separate orders, a
district hearing officer for the Industrial Commission
("commission") found a percentage of permanent partial
disability of eighteen percent concerning each of Bowman's
claims. The two orders are virtually identical, providing, in
part, that:
"* * * [T]he claimant must elect whether to receive
compensation, as above determined, or to be compensated for
impairment of earnings capacity; that the Application for the
Determination of Percentage of Permanent Partial Disability,
filed 06/29/87 be granted to the extent of this order. The
medical report(s) of Dr(s) KACKLEY, MCCLOUD, HUBBELL, were
reviewed, evaluated, and compared. The findings and order are
based particularly on the medical report(s) of Dr(s) KACKLEY,
MCCLOUD, HUBBELL, a consideration of the claimant's age,
education, work history, and other disability factors including
physical, psychological and sociological, that are listed

within the pending application, the evidence on record, the
evidence adduced at the hearing, and any new and changed
conditions."
Thereafter, Bowman elected to receive his awards as
compensation for impaired earning capacity under former R.C.
4123.57(A). Fresh Mark objected to the elections and requested
that the matter be set for hearing.
On March 16, 1989, following a hearing, a commission
district hearing officer issued orders granting Bowman's
election in both claims. The hearing officer determined that
Bowman, with respect to each injury, had an impairment of
earning capacity of eighteen percent. The orders also provided
that the hearing officer's findings were "[b]ased on the
medical reports of Dr. Steiman."1 The March 16, 1989 orders
were administratively affirmed.
Fresh Mark filed a complaint in mandamus in the court of
appeals, alleging that there was no evidence to support the
commission's orders awarding benefits for impaired earning
capacity. Fresh Mark also alleged that the commission erred in
awarding concurrent benefits in two claims involving the same
impairment. Accordingly, Fresh Mark requested the issuance of
a writ of mandamus directing the commission to vacate its
orders in both claims.
The court of appeals referred the matter to a
court-appointed referee who, in her written report, found that
the record contained no medical reports of a "Dr. Steiman" --
the only doctor cited in the commission's orders awarding
compensation for impaired earning capacity. On this basis, the
referee, citing State ex rel. Noll v. Indus. Comm. (1991), 57
Ohio St.3d 203, 567 N.E.2d 245, recommended the issuance of a
limited writ "ordering the Industrial Commission to vacate its
orders awarding compensation for impairment of earning capacity
and to issue new orders granting or denying such compensation,
specifying therein the evidence relied upon and briefly
explaining the reasoning for its decisions." The court of
appeals adopted the referee's report and entered immediate
judgment. Subsequently, Fresh Mark, the commission and the
Bureau of Workers' Compensation filed objections to the
referee's report, all of which were overruled.
The cause is now before this court on consolidated appeals
as of right.2

Buckingham, Doolittle & Burroughs, Brett L. Miller and
Eleanor J. Tschugunov, for appellant Fresh Mark.
Lee Fisher, Attorney General, Cordelia A. Glenn and Gerald
H. Waterman, Assistant Attorneys General, for appellants
Industrial Commission and the Bureau of Workers' Compensation.

Douglas, J. The central issue in this case is whether
there is some evidence to support the commission's orders
awarding compensation for impaired earning capacity. For the
reasons that follow, we find that the commission's orders are
supported by some evidence and are in accordance with law.
The commission's orders pertaining to the allowance of
benefits for impaired earning capacity referred to the medical
reports of a "Dr. Steiman." However, no such reports are
contained in the record. Rather, the only medical reports

which appear in the record are those of Drs. Kackley, McCloud
and Hubbell. The reports of these three doctors were referred
to in the commission's earlier orders determining the
percentage of permanent partial disability. Given the
commission's reliance on the reports of these three doctors in
its earlier determinations, and the fact that the record
contains no reports of a "Dr. Steiman," we are convinced that
the commission's references to "Dr. Steiman" in its orders
awarding compensation for impaired earning capacity were
inadvertent errors.
A cursory review of the materials in the record shows that
there was sufficient evidence (some evidence) on which the
commission could properly rely in determining that Bowman was
entitled to compensation for a thirty-six percent impairment of
earning capacity, to which each claim contributed. The
evidence also supports the commission's determination to
allocate the total impairment between the two separate claims,
which arose from distinct physical injuries, and we find no
error in this regard.
In State ex rel. Mitchell v. Robbins & Myers, Inc. (1983),
6 Ohio St.3d 481, 483-484, 6 OBR 531, 533-534, 453 N.E.2d 721,
724, and a number of other cases, we have stressed the
importance of specificity of commission orders and have
required that such orders contain a citation to the evidence
relied upon and a brief explanation of the decision granting or
denying benefits. In Mitchell, we stated that "this court will
no longer search the commission's file for 'some evidence' to
support an order of the commission not otherwise specified as a
basis for its decision." Id. at 484, 6 OBR at 534, 453 N.E.2d
at 724. Our decision today does not represent a departure from
the general rule of Mitchell and its progeny. Rather, we
emphasize that, in the case at bar, the commission's citations
to the reports of Dr. Steiman were clearly mistakes (perhaps
clerical errors) and that a mere cursory examination of the
record supports the commission's orders granting Bowman
benefits for impaired earning. On these facts, we uphold the
commission's orders.
Accordingly, for the reasons stated herein, the judgment
of the court of appeals granting a limited writ is reversed,
and the orders of the Industrial Commission are reinstated.
Judgment reversed.
Moyer, C.J., Sweeney, H. Brown and Resnick, JJ., concur.
Holmes and Wright, JJ., dissent.

FOOTNOTES:
1 The two orders were identical in all relevant respects,
stating, in part, that:
"Claimant is found to have an impairment of earning
capacity of 18% due to residuals from the injury * * * and is
entitled to compensation under Ohio Revised Code 4123.57(A)
* * *.
"Specifically, claimant is restricted in ability to
perform lengthy road calls or lifting, thereby limiting the
commission potential of his sales profession, as well as
employment in general.
"Based on the medical reports of Dr. Steiman."
2 This case is a procedural morass which, when straightened

out, makes all parties (Fresh Mark, the commission and the
Bureau of Workers' Compensation) appellants, since all
completely disagree with, and have appealed from, the court of
appeals' issuance of a limited writ. In case No. 91-1346, all
parties filed notices of appeal. Fresh Mark was the first to
file its notice of appeal (but only in the court of appeals)
and, subsequently, the commission and the Bureau of Workers'
Compensation filed a timely notice of appeal (not a
cross-appeal) in the court of appeals and in this court. In
case No. 91-1593, only Fresh Mark filed a notice of appeal. In
case No. 91-1670, only the commission and the Bureau of
Workers' Compensation filed a notice of appeal. Thus,
notwithstanding the parties' own designations, all parties are
appellants. In any event, the three cases arise out of the
same issue and are consolidated for decision.

Wright, J., dissenting. The majority may be entirely
correct that the Industrial Commission committed a "clerical
error" in relying on a doctor's report that does not appear in
the record. Nevertheless, I must agree with the court of
appeals that it is the commission's responsibility, not the
reviewing court's, to correct this error.
The majority states that the issue is "whether there is
some evidence to support the commission's orders awarding
compensation." While this is the proper standard of review, I
believe that there is a predicate issue which must be reached
before we consider whether "some evidence" supports the
commission's decision. That issue is whether the commission
sufficiently specified the evidence upon which it relied in
reaching its decision.
In State ex rel. Mitchell v. Robbins & Myers, Inc. (1983),
6 Ohio St.3d 481, and State ex rel. Noll v. Indus. Comm.
(1991), 57 Ohio St.3d 203, we held that the commission must
"specifically state what evidence has been relied upon, and
briefly explain the reasoning for its decison." Noll, supra,
syllabus. The commission must to do this because it is
emphatically not the reviewing court's responsibility to search
the record for evidence. Mitchell, supra, at 484, 6 OBR at
534, 453 N.E.2d at 724.
In this case we have a situation in which the commission
did not state with specificity the evidence of record upon
which it relied. The commission affirmed orders issued by the
district hearing officer which were based on medical reports
filed by Dr. Steiman. The record, however, does not contain
any reports by a Dr. Steiman. Therefore the commission cannot
logically be said to have stated the evidentiary basis for its
decision -- its decision had to have been based on other,
unspecified, evidence in the record.
It is not the role of the courts to search the record for
evidence to support the commission's decision. The reviewing
court is only to examine the record to see that the evidence
cited by the commission supports its decision. Sound policy
limits the participation of the courts in the workers'
compensation system to questions of law. Moreover, requiring
the courts to examine the record in detail places too onerous a
burden on the judiciary. In this instance a "cursory"
examination of the record may well have revealed to the

majority "some evidence" to support the commission's decision.
Future cases, however, will not be so effortless.
I would affirm the court of appeals. In a case in which
the reviewing court finds that the evidence relied upon by the
commission does not exist in the record, the court should issue
a writ ordering the commission to state with specificity the
evidence upon which it actually relied. I respectfully dissent.
Holmes, J., concurs in the foregoing dissenting opinion.