State ex rel. Balvin v. Youghiogheny & Ohio Coal Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Balvin, Appellee and Cross-Appellant, v.
Youghiogheny & Ohio Coal Company, Appellant and Cross-Appellee.
[Cite as State ex rel. Balvin v. Youghiogheny & Ohio Coal Co.
(1994), Ohio St.3d .]
Workers' compensation -- Industrial Commission's order denying
permanent total disability compensation an abuse of
discretion when order enumerating evidence relied on omits
rehabilitation report from evidence the commission
considered.
(No. 93-1340 -- Submitted June 15, 1994 -- Decided August
31, 1994.)
Appeal and Cross-Appeal from the Court of Appeals for
Franklin County, No. 92AP-665.
Appellee and cross-appellant, Robert Balvin ("claimant"),
injured his back on January 31, 1983 in the course of and
arising from his employment with appellant and cross-appellee,
Youghiogheny & Ohio Coal Company ("Y&O"). Workers'
compensation benefits were awarded. In 1989, claimant applied
to the Industrial Commission of Ohio for permanent total
disability compensation. Dr. Richard S. Glass, claimant's
attending physician, certified permanent total disability
(sic). Commission physician, Paul F. Gatens, Jr., examined
claimant and assessed a forty-five percent permanent partial
impairment with a capacity for light work. Claimant was
evaluated by the commission's rehabilitation division. Its
report catalogued claimant's vocational assets and limitations
as follows:
"* * * VOCATIONAL ASSETS:
"1. * * * [A]ge * * *
"2. * * * lengthy work history with V&O [sic] Coal Company.
"3. * * * [claimant's] indication that he was a high school
graduate.
"* * * VOCATIONAL LIMITATIONS:
"1. Length of time that Mr. Balvin has been without
competitive employment.
"2. Physical capacities are decreased below competitive
levels at this time.
"3. Mr. Balvin is not currently involved with any type of

physical conditioning program.
"4. Mr. Balvin noted that he takes medication throughout
the day.
"5. Verbal and non-verbal pain complaints by Mr. Balvin.
"6. Mr. Balvin's attitude towards further rehabilitation
services and that he does not want further rehabilitation.
"7. Mr. Balvin's lack of initiative of becoming involved
with further programming.
"8. Possible unemployment rate within Mr. Balvin's local
geographic area.
"9. Mr. Balvin's academic skills. Even though Mr. Balvin
noted that he was a graduate of high school, it is felt that
Mr. Balvin has several academic deficits."
The rehabilitation division subsequently closed claimant's
file, noting:
"Based on Mr. Balvin's Vocational Screening, prognosis for
future vocational rehabilitation services appears to be poor at
this time. Significant barriers in returning to work include:
Mr. Balvin's current deconditioned state and his physical
capacities are not within entry competitive levels at this
time. Furthermore, Mr. Balvin noted to this evaluator that he
did not think the rehabilitation services would be a benefit to
him because he cannot concentrate very good [sic], he is very
nervous, emotionally upset, and gets easily depressed. Mr.
Balvin also noted that he has sitting/standing problems and he
did not learn that much going through school.
"Rehabilitation services were discussed with Mr. Balvin
and the claimant expressed little interest in getting involved."
The commission denied permanent total disability
compensation, writing:
"The reports of Drs. Glass and Gatens were reviewed and
evaluated. This order is based particularly upon the report of
Dr. Gatens, the evidence in the file and the evidence adduced
at the hearing.
"The claimant is fifty years of age, has a twelfth grade
education and possesses limited vocational skills or training.
Commission specialist, Dr. Gatens, indicates claimant has a
forty-five percent permanent partial impairment and could
engage in sustained remunerative employment. With
consideration given to all factors, the claimant is found not
to be permanently and totally disabled."
Claimant filed for a writ of mandamus in the Franklin
County Court of Appeals, alleging that the commission abused
its discretion in failing to: (1) consider the rehabilitation
report, and (2) issue an order that satisfied State ex rel.
Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d
245. The appellate court held that because the commission is
only required to list the evidence on which it relied, the lack
of reference to the rehabilitation report did not prove that
the commission impermissibly ignored that evidence. It,
accordingly, found no abuse of discretion in that regard. The
appellate court did, however, agree that Noll had been violated
and returned the cause for further consideration and amended
order.
The cause is now before this court upon an appeal and
cross-appeal as of right.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A.,
Ronald E. Slipski and Steven L. Paulson, for appellee and
cross-appellant.
Hanlon, Duff & Paleudis Co., L.P.A., and Gerald P. Duff,
for appellant and cross-appellee.

Per Curiam. Y&O contests the appellate court's decision
to return the cause for further consideration and amended
order. Claimant contests the court's refusal to order the
commission to expressly consider the rehabilitation report and
issue an amended order. Only claimant's challenge is found
persuasive.
This case falls squarely under State ex rel. Fultz v.
Indus. Comm. (1994), 69 Ohio St.3d 327, 631 N.E.2d 1057. Fultz
returned for further consideration an order that omitted
reference to two reports among the evidence purportedly
considered. The court wrote:
"Neither the commission's rehabilitation report nor
Riccio's vocational report is listed in the commission's order
as being among the evidence the commission considered. While
the commission correctly contends in essence that it need only
enumerate the evidence relied on, the fact that the commission
in listing the evidence considered omitted those two reports
from that list, leads to only one conclusion -- the commission
either inadvertently or intentionally ignored that evidence.
Because these reports could be key to the success or failure of
claimant's application, the cause must be returned to the
commission for further consideration." Id. at 329, 631 N.E.2d
at 1059.
Fultz also held that Noll review was premature, since a
satisfactory evidentiary explanation could not occur unless all
evidence had been considered. Y&O's claim of Noll compliance
is not, therefore, ripe for review.
Accordingly, that portion of the appellate court's
judgment that returned the cause for further consideration and
amended order is affirmed. That portion of the judgment which
declined to specifically direct the commission to consider the
rehabilitation report and issue an amended order is reversed.
Judgment reversed in part
and affirmed in part.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.