State ex rel. Rodriguez v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Rodriguez, Appellant, v. Industrial
Commission of Ohio, Appellee.
[Cite as State ex rel. Rodriguez v. Indus. Comm. (1993),
Ohio St.3d .]
Workers' compensation -- Industrial Commission's continuing
jurisdiction ceases once a mandamus action has been
commenced -- Mandamus to compel commission to pay claimant
permanent total disability compensation -- Limited writ
ordering further consideration by commission and an
amended order not warranted, when.
(No. 92-2278 -- Submitted June 15, 1993 -- Decided August
25, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-469.
Appellant-claimant, Jose A. Rodriguez, was injured in 1976
in the course of and arising from his employment with appellee,
Ruetinik Gardens/Richard Pritzer. Claimant worked for ten more
years until quitting for reasons allegedly related to his
injury.
In 1990, claimant sought permanent total disability
compensation from appellee, Industrial Commission of Ohio.
Among other evidence presented to the commission was the report
of the commission specialist, Dr. W.J. McCloud, which concluded
that claimant could do sedentary or light work. In her report,
Dr. Naomi Waldbaum concurred. The commission's rehabilitation
division, in October 1990, listed numerous jobs that were felt
to be within claimant's capabilities, given his physical
condition and work history. Four months later, however, the
division closed claimant's rehabilitation file:
"[B]ased on Mr. Rodriguez's lack of education, age (51),
lack of transferrable skills to sedentary type position, and
lack of recommendations directed at vocational services with a
goal of returning to work. * * *"
On January 7, 1992, the commission mailed an order which
denied claimant permanent total disability compensation,
stating:
"* * * [T]hat the claimant is not permanently and totally
disabled * * * [because] claimant is able to perform sustained

remunerative employment * * *.
"The reports of Doctors Friedman, Fink, McCloud, and
Waldbaum were reviewed and evaluated. This order is based
particularly upon the reports [sic] of Doctors [sic] McCloud.
"Claimant is 52 years old with an 8th grade education from
Puerto Rico and a 27 year work history as a greenhouse general
laborer. A 6/11/90 orthopedic Commission speciallst [sic] exam
by Dr. McCloud found a 40% PPI [permanent partial impairment]
and [found that claimant is] capable of sustained remunerative
employment. Treatment has been conservative. Claimant
continued to work for nearly 10 years subsequent to the date of
his injury. With consideration given to all these factors,
claimant is found not to be PTD."
Claimant filed a complaint in the Court of Appeals for
Franklin County, on April 8, 1992, for a writ of mandamus to
compel the commission to pay him permanent total disability
compensation. Among the abuses of discretion alleged were the
commission's failure to (1) consider all vocational evidence
before it, pursuant to State ex rel. Cupp v. Indus. Comm.
(1991), 58 Ohio St.3d 129, 568 N.E.2d 1214; and (2) adequately
explain its reasoning as required by State ex rel. Noll v.
Indus. Comm. (1990), 57 Ohio St.3d 203, 567 N.E.2d 245. The
appellate court agreed and issued a limited writ returning the
cause to the commission for further consideration and an
amended order.
Claimant appealed to this court as a matter of right. The
commission thereafter, on January 25, 1993, mailed a second
order in which it attempted to comply with the appellate
court's judgment. The commission, again denying permanent
total disability compensation, stated in its order:
"* * * [T]he claimant is not permanently and totally
disabled * * * [because] the claimant is able to perform
sustained remunerative employment * * *.
"The medical reports of doctors Friedman, McCloud,
Waldbaum, Vocational Expert Fink, as well as the reports of the
Rehabilitation Division * * * were reviewed and evaluated. The
findings and order are particularly based on the medical
reports of Doctors McCloud and Waldbaum, the evidence on file
and the evidence adduced at the hearing, as well as portions of
the vocational reports of Mr. Fink and the Rehabilitation
Division.
"The claimant is 53 years old and has been employed as a
laborer in the greenhouse industry for 27 years. Dr. McCloud
finds that as a result of the injury, that claimant has a 40
percent impairment and that his only physical restriction is
repetitive bending and lifting over 20 pounds. Dr. McCloud
also recommended rehabilitation. The claimant also was
examined by Dr. Waldbaum, who also concluded that claimant has
some rehabilitation potential for an essentially sedentary,
light, intermittent type occupation. The Commission accepts
the findings of doctors McCloud and Waldbaum, which contradict
the findings of Mr. Fink who finds that claimant would be
unable to perform light or sedentary work.
"The Rehabilitation Division found that claimant has a
semi-skilled work history and is able to drive an automobile.
Testing by the Rehabilitation Division reveals that claimant
demonstrates average motor coordination, finger dexterity and

manual dexterity. Based on the claimant's work history, the
Rehabilitation Division identified several alternative
occupations for which the claimant could possibly be retrained
including elemental mechanical and industrial work, attendance
services, the craft industry, production work and quality
control. The Commission accepts those findings of the
Rehabilitation Division but does not accept the final
conclusion of the Rehabilitation Division that the claimant
lacks transferrable skills to a sedentary position.
"The Rehabilitation Division also recommended adult
remedial education as part of the claimant's vocational
rehabilitation. Despite the claimant's limited education and
the fact that English is his second language, he was capable of
maintaining employment with the same employer for many years.
Therefore, the Commission does not consider those factors as
interfering with claimant's ability to perform sustained
remunerative employment."
Claimant, in his reply brief before this court, attacks
the second order of the commission on similar grounds as the
first, and also assails the commission's continuing
jurisdiction to issue the second order after the commencement
of a judicial challenge.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy
and Marc J. Jaffy; Frank L. Gallucci Jr., Co., L.P.A., and
Frank Gallucci, for appellant.
Lee I. Fisher, Attorney General, and Merl H. Wayman,
Assistant Attorney General, for appellee.

Per Curiam. Claimant challenged the first order denying
permanent total disability compensation by an action in
mandamus. Dissatisfied with the remedial action that the
appellate court ordered, claimant appealed to this court. The
commission, meanwhile, prepared a second order incorporating
the appellate court's instructions. Claimant contests the
commission's authority to issue the later order. We agree with
claimant's assertions, but decline to order the relief claimant
seeks.
R.C. 4123.52 provides in part:
"The jurisdiction of the industrial commission over each
case shall be continuing, and the commission may make such
modification or change with respect to former findings or
orders with respect thereto, as, in its opinion is justified."
Continuing jurisdiction has substantive and time
restrictions. Substantively, continuing jurisdiction may be
invoked where an order contains a mistake of law of such
character that remedial action would clearly follow. State ex
rel. B&C Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538,
605 N.E.2d 372. This prerequisite has been met here. The
initial commission order suggests that potentially relevant
vocational evidence had not been considered, contrary to Cupp,
supra. We also find that the order did not satisfy the
standard set by Noll, supra. These are errors that would
certainly generate remedial action by this court in the form of
further consideration and an amended order.
Continuing jurisdiction, however, must also be timely
exercised. State ex rel. Gatlin v. Yellow Freight Systems,

Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480 N.E.2d 487.
The commission retains jurisdiction over nonappealable orders,
such as this, "for a reasonable period of time." Id. at
syllabus. Claimant maintains that "a reasonable period of
time" cannot extend beyond the filing of a mandamus complaint.
We agree.
We routinely have held that the filing of an appeal
terminates an administrative agency's continuing jurisdiction.
See, e.g., State ex rel. Borsuk v. Cleveland (1972), 28 Ohio
St.2d 224, 57 O.O.2d 464, 277 N.E.2d 419; State ex rel. Prayner
v. Indus. Comm. (1965), 2 Ohio St.2d 120, 31 O.O.2d 192, 206
N.E.2d 911; Diltz v. Crouch (1962), 173 Ohio St. 367, 19 O.O.2d
312, 182 N.E.2d 315. We find no compelling reason to allow the
commencement of a mandamus action to have a different effect.
Commission recognition and correction of, as here, clear
mistakes of law is to be encouraged when it occurs before
judicial proceedings have begun. Beyond that point, we fear
that, more often than not, commission action will frustrate,
not further, expeditious and fair resolution of disputes, as
well as judicial economy.
Contrary to the commission's suggestion, our decision in
B&C Machine Co., supra, does not dictate a different result.
While B&C Machine Co. added a new substantive element to
continuing jurisdiction, it did not extend the time during
which continuing jurisdiction may properly be exercised. B&C
Machine Co. was factually unique, addressing a "null" appeal.
The timely exercise of continuing jurisdiction in the case of
properly appealable orders or those amenable to mandamus was
not at issue.
Having determined that the commission's continuing
jurisdiction ceases once a mandamus action has been commenced,
we are confronted, in this case, with an unusual circumstance.
Aware of the nullifying effect the finding of no jurisdiction
has on a commission order, we also recognize that the second
commission order herein incorporates the very corrections we
would have ordered, had the first order been the only one
before us. To disregard the second order by returning the
cause to the commission to reissue, under the guise of Cupp and
Noll compliance, a substantively identical, yet post-dated,
order, is an unnecessarily duplicative act under these facts.
Therefore, consistent with our longstanding refusal to
issue a writ of mandamus to compel a vain act (State ex rel.
Snider v. Stapleton [1992], 65 Ohio St.3d 40, 600 N.E.2d 240;
State ex rel. Petroff v. Indus. Comm. [1933], 127 Ohio St. 65,
186 N.E. 721), we decline to return the cause to the commission
for further consideration and an amended order, and instead
proceed to examine the second order on its merits. Upon
review, we find that this order is supported by "some
evidence." See State ex rel. Burley v. Coil Packing, Inc.
(1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. The
commission in its second order also adequately explains its
reasoning, consistent with Noll. Finally, we find that the
commission remedied an earlier evidentiary deficiency by
considering previously overlooked vocational evidence.
Accordingly, a limited writ ordering further consideration
and an amended order is no longer warranted. The judgment of
the court of appeals is, therefore, reversed.

Judgment reversed.
Moyer, C.J., Wright, F.E. Sweeney and Pfeifer, JJ., concur.
A.W. Sweeney, Douglas and Resnick, JJ., dissent.

Douglas, J., dissenting. I respectfully dissent. I
would grant the writ and order compensation for permanent total
disability ("PTD"). The medical impairment finding and
consequent disability are substantial and clear. The
"Stephenson factors" (State ex rel. Stephenson v. Indus. Comm.
[1987], 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946) are both
obvious and significant. The commission's rehabilitation
division closed appellant's rehabilitation file "based on Mr.
Rodriguez's lack of education, age (51), lack of transferrable
skills to sedentary type position, and lack of recommendations
directed at vocational services with a goal of returning to
work." What more is necessary for there to be a PTD
determination? The time has come for this court, in these
cases, not to ignore the obvious.
A.W. Sweeney and Resnick, JJ., concur in the foregoing
dissenting opinion.