State ex rel. Unger 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. Unger, Appellant, v. Industrial Commission of
Ohio et al., Appellees.
[Cite as State ex rel. Unger v. Indus. Comm. (1994), Ohio
St.3d .]
Workers' compensation -- Denial of permanent total disability
compensation -- Due process violation asserted based on
alleged ex parte communications between company and
Industrial Commission -- Commission's order upheld, when
-- Commission's adoption of order written by company
permissible, when -- Lack of written commission guidelines
on permanent total disability evaluations is insufficient
to invalidate commission's order.
(No. 93-1726 -- Submitted August 31, 1994 -- Decided
November 9, 1994.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-755.
Appellant-claimant, James L. Unger, sustained two injuries
in the course of and arising from his employment with appellee
Columbus & Southern Ohio Electric ("CSOE", now known as
Columbus Southern Power Company). Claimant sought permanent
total disability compensation in 1988. Among the medical
evidence before appellee Industrial Commission were reports
from Doctors Robert B. Larrick, Paul F. Gatens, Jr., and John
Q. Brown, all of which concluded that claimant could do
sedentary work. A "functional capacity assessment" submitted
by claimant from Baxter Sportmed concluded that claimant was
"not realistically employable." A vocational assessment from
Ability Recovery Services, Inc. ("ARS"), found a capacity for
sedentary sustained employment.
The commission heard claimant's application on August 21,
1991. What followed is unclear. It is known only that on
September 3, 1991, counsel for CSOE wrote to commission
chairman Colasurd:
"Pursuant to your request from our August 22, 1991
hearing, please find enclosed a proposed Order of the
Industrial Commission relative to your findings that the
claimant is not permanently and totally disabled."
The commission's denial order was mailed one month later.

It contained, verbatim, several of the findings proposed by
CSOE.
On October 15, 1991, CSOE's counsel again wrote the
chairman:
"Please find enclosed the order of the Industrial
Commission which I received on October 8, 1991, denying
permanent total disability. Please also find enclosed a copy of
my previously filed proposed findings which you requested after
the hearing.
"As you will note, a number of proposed findings were
deleted or changed in the order that was issued. I am not sure
whether this was an intentional act by the Commission. If
these were editorial mistakes, I have highlighted the portions
of my findings that were not included or changed in the
eventual order of the Commission, and I ask that you consider
issuing a corrected order if that is your intent."
The corrected order that followed incorporated all of
CSOE's proposals and read as follows:
"[T]he claimant is not permanently and totally disabled
for the reason that the disability is not total; that is, the
claimant is able to perform sustained remunerative employment *
* *.
"The reports of Doctor(s) Rocco, Larrick, Gatens and Brown
were reviewed and evaluated. Further, the vocational report
from Ability Recovery Services dated 4/18/90 and the vocational
report from Baxter Work Eval, dated 5-24-91 and the supplement,
dated 8-13-91 were considered. Further considered was the Ohio
Labor Market data of 4/19/91.
"The order is based particularly upon the reports of
Doctor(s) Larrick, Gatens and Brown and the report of Ability
Recovery Services, the evidence in the file and/or evidence
adduced at the hearing.
"It is particularly noted that the claimant, 61 years old,
has a high school education and has significant experience in
the work force, having worked in five other previous
occupations. The greater balance of the medical and vocational
evidence indicates that the claimant is capable of performing
sustained remunerative employment of sedentary to light duty
nature. The report of Ability Recovery Services indicates that
there are occupations that the claimant could immediately
obtain within the local labor market. The report from Baxter
speaks in generalities as to the local labor market, whereas
the report from Ability Recovery Services indicates two
specific jobs to which the claimant could receive immediate
placement: telephone solicitor and lock assembler.
"Further, the claimant was examined by two Commission
Specialists, a physical maintenance rehabilitation specialist,
and an orthopedic specialist, both of whom opined that the
claimant has relatively low permanent impairment and is not
permanently and totally impaired from a medical standpoint.
"Given the lack of medical evidence supporting a
significant medical impairment [and] the vocational evidence
supporting an ability to perform work readily available within
the claimant's local labor market, it is the decision of the
Commission that the claimant is not permanently and totally
disabled."
Claimant filed a complaint in mandamus in the Court of

Appeals for Franklin County, alleging that the commission
abused its discretion in denying permanent total disability.
The appellate court denied the writ.
This cause is now before this court upon an appeal as of
right.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy
and Marc J. Jaffy, for appellant.
Porter, Wright, Morris & Arthur, Karl J. Sutter and
Christopher C. Russell, for appellee Columbus Southern Power
Company.
Lee Fisher, Attorney General, Michael P. O'Grady and
Richard A. Hernandez, Assistant Attorneys General, for appellee
Industrial Commission.

Per Curiam. There are three components to claimant's
challenge, involving both the order itself and the
circumstances surrounding its issuance. Claimant poses two
challenges to the circumstances preceding the commission's
final order. Claimant initially asserts a due process
violation based on allegedly ex parte communications between
CSOE and the commission. Claimant's argument fails for two
reasons.
First, the record does not identify the extent, if any, to
which ex parte communications actually took place. Because the
claimant was already on notice as to the disposition of his
application after the first denial order issued, the only
relevant time frame for examining any ex parte contact is the
period between the first hearing and the first denial. The
record, however, provides an incomplete picture of events
therein. It is known only that on September 3, 1991, CSOE,
"pursuant to your [the commission's] request from our August
22, 1991 hearing," tendered a proposed denial order.
Unfortunately, the parties disagree as to whether the permanent
total disability denial and draft request were announced at the
permanent total disability hearing. Thus, the extent to which
CSOE's submission of the order was unknown to claimant is not
revealed.
Second, assuming arguendo that ex parte communication
occurred, it does not automatically constitute a due process
violation. As stated in Southwest Sunsites, Inc. v. Fed. Trade
Comm. (C.A. 9, 1986), 785 F.2d 1431, 1436-1437:
"Ex parte communications do not void an agency decision.
PATCO v. FLRA, 685 F.2d 547 (D.C. Cir., 1982). The agency
decision is voidable and the court will consider whether 'the
agency's decisionmaking process was irrevocably tainted so as
to make the ultimate judgment of the agency unfair, either to
an innocent party or to the public interest that the agency is
obliged to protect.' Id. at 564. Relevant considerations are
the gravity of the ex parte communication, whether the
communication may have influenced the decision, whether the
party making the communication benefited from the decision,
whether opposing parties knew of the communication and had an
opportunity to rebut, and whether vacation and remand of the
decision would serve a useful purpose. Id. The court is
concerned primarily with the integrity of the process and the
fairness of the result rather than adherence to mechanistic

rules. Id.
"Petitioner's allegation must overcome a presumption of
honesty and integrity on the part of the Commission, and thus a
presumption that the decision rests on proper grounds. Porter
County Chapter v. Nuclear Regulatory Commission, 606 F.2d 1363,
1371 (D.C. Cir. 1979)." See, also, Withrow v. Larkin (1975),
421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712; Haller v. Robbins
(C.A. 1, 1969), 409 F.2d 857; North Carolina v. Environmental
Policy Inst. (C.A. 4, 1989), 881 F.2d 1250; Massman Constr. Co.
v. Tennessee Valley Auth. (C.A. 6, 1985), 769 F.2d 1114; Verdin
v. O'Leary (C.A. 7, 1992), 972 F.2d 1467; United States v.
Frazin (C.A. 9, 1986), 780 F.2d 1461.
We employed similar reasoning in In re Investigation of
Natl. Union Fire Ins. Co. of Pittsburgh, Pa. (1993), 66 Ohio
St.3d 81, 609 N.E.2d 156. Rejecting a constitutional claim
arising out of alleged ex parte communications, we wrote:
"Incumbent upon National Union was the burden to overcome
the presumption of honesty and integrity affording those
serving as adjudicators. Withrow v. Larkin (1975), 421 U.S.
35, 47, 95 S. Ct. 1456, 1464, 43 L.Ed. 2d 712, 723. In the
absence of such proof and taking the administrative process as
a whole, we are unable to agree with National Union that such
ex parte communications, standing alone, violated its right to
due process." Id., 66 Ohio St.3d at 88, 609 N.E.2d at 161.
In this case, claimant has neither established that the
commission's decision to deny permanent total disability was
influenced by ex parte contact nor has it overcome the
presumption of honesty and integrity that attaches to the
commission's deliberations and decisions. Accordingly,
claimant's due process argument fails.
Claimant also attacks the commission's adoption of an
order written by CSOE. Claimant, however, cites no authority
that requires that an order be personally written by one of the
voting commissioners. So long as the order reflects the
reasoning of the commission gained by the commission's
meaningful review of the evidence -- as State ex rel. Ormet
Corp. v. Indus. Comm. (1990), 54 Ohio St. 3d 102, 561 N.E.2d
920, demands -- authorship is not dispositive.
Claimant's reliance on Logue v. Wilson (1975), 45 Ohio
App. 2d 132, 74 O.O. 2d 140, 341 N.E.2d 641, is misplaced.
Logue prohibits a court from adopting and entering judgment on
a referee's report that does not state the basis of its
findings and recommendation. Such a deficient report
forecloses independent judicial evaluation, and the adoption of
such a report, the court held, equated to judicial
rubber-stamping.
The present case is distinguishable in two respects.
First, unlike the judge in Logue, the decision-maker in this
case attended the evidentiary hearing. The commission was not,
therefore, dependent on another's assimilation of the
evidence. Second, the proposed order in the instant case did
not lack written findings in support. To the contrary, the
CSOE draft contained extensive findings that the commission was
free to either accept or reject upon independent evidentiary
review.
Claimant also challenges the commission's reliance on the
ARS vocational report. The commission, however, is the

exclusive evaluator of evidentiary weight and credibility.
State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio
St.3d 18, 31 OBR 70, 508 N.E.2d 936. It was the commission's
prerogative to find the ARS report more persuasive than that of
Baxter Sportmed.
Claimant's challenge, despite his protestations to the
contrary, simply reflects, in our view, claimant's disagreement
with the report's characterization of his medical profile. For
example, while claimant viewed his age, education and work
history as impediments to reemployment, ARS disagreed.
Claimant also accuses ARS of improperly evaluating a
"theoretical individual" rather than claimant. This assertion
is based on ARS's evaluation of claimant's nonmedical data
without actually examining claimant. However, with one
exception, claimant does not allege that any of the data
evaluated was inaccurate. Moreover, that the evaluator
allegedly misunderstood claimant's most recent job duties is
immaterial, since the employer does not dispute the medical
consensus that claimant cannot return to that job.
To invalidate the ARS report under claimant's theory would
in effect be to hold that any report that is not based on
personal examination cannot constitute "some evidence." Such a
ruling would conflict with State ex rel. Wallace v. Indus.
Comm. (1979), 57 Ohio St.2d 55, 11 O.O.3d 216, 386 N.E.2d 1109,
State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165,
22 O.O.3d 400, 429 N.E.2d 433, and State ex rel. Paragon v.
Indus. Comm. (1983), 5 Ohio St.3d 72, 5 OBR 127, 448 N.E.2d
1372, all of which have approved the evidentiary validity of
reports issued by nonexamining physicians.
Claimant alleges that the ARS report did not consider the
effect of his pain on his ability to work. The ARS report,
however, was directed primarily at claimant's nonmedical
capabilities. The three physicians' reports on which the
commission relied all acknowledged claimant's complaints of
pain. Thus, pain was factored into the overall analysis of
permanent total disability. We accordingly find that the ARS
report was "some evidence" on which the commission could rely.
Claimant lastly complains of the lack of written
commission guidelines on permanent total disability
evaluations. However, as we have previously held, the lack of
guidelines is insufficient to invalidate the commission's
order. State ex rel. Blake v. Indus. Comm. (1992), 65 Ohio
St.3d 453, 605 N.E.2d 23.
For these reasons, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Wright, F.E. Sweeney and
Pfeifer, JJ., concur.
Douglas and Resnick, JJ., dissent.