# State ex rel. Koonce v. Indus. Comm.

> Ohio Supreme Court · June 14, 1994 · 1994 Ohio 463

URL: https://www.frixlaw.com/law-library/cases/11148958

## Case

- **Court:** Ohio Supreme Court
- **Decided:** June 14, 1994
- **Citations:** 1994 Ohio 463
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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The State ex rel. Koonce, Appellant, v. Industrial Commission
of Ohio et al., Appellees.
[Cite as State ex rel. Koonce v. Indus. Comm. (1994), Ohio
St.3d .]
Workers' compensation -- Industrial Commission's continuing
jurisdiction does not extend beyond the institution of
mandamus proceedings -- Courts not precluded from ordering
Industrial Commission, in mandamus action, to award
permanent total disability benefits.
(No. 93-1665 -- Submitted March 29, 1994 -- Decided June
15, 1994.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-1393.
Appellant-claimant, Samuel Koonce, sustained two injuries,
in 1989 and in 1990, in the course of and arising from his
employment with appellee Dresser Industries, Inc., Marion
Division, and his workers' compensation claims were allowed.
He later applied to appellee Industrial Commission of Ohio for
permanent total disability compensation. At his March 31, 1992
hearing, the commission voted to hold claimant's application in
abeyance pending an additional medical examination. It appears
that Dr. J.Q. Brown performed that examination and concluded
that claimant had a twenty percent permanent partial impairment
that did not prevent sustained remunerative employment.
The commission denied permanent total disability
compensation. The commission's internal voting sheet indicated
that each of the three commissioners who elected to deny
permanent total disability compensation based his vote in part
on Dr. Brown's report. The commission's order, however, did
not reference that report:
"The reports of Drs. Eboh, Cunningham and Hutchison were
reviewed and evaluated. This order is based particularly upon
the report of Dr. Hutchison, the evidence in the file and the
evidence adduced at the hearing.
"Mr. Koonce is 61 years of age with a fifth grade
education and a 35 year work history as a building maintenance
worker. The medical evidence relied upon by Mr. Koonce, the
report of Dr. Eboh, indicates Mr. Koonce is permanently and
totally disabled when the allowed conditions are factored with
a consideration of his education and age. However, the report
of Dr. Hutchison, as relied upon by the Commission, relates Mr.
Koonce as only an 18% total body impairment from the allowed
back conditions and no impairment from the allowed conditions
to his hands. This report noted that the degenerative changes
found in the diagnostic tests and upon examination are
primarily a result of the normal aging process. This report
concluded that Mr. Koonce could engage in sustained
remunerative employment consistent with normal physical
limitations placed upon a person of his age. When these low
levels of impairment found by Dr. Hutchison are coupled with a
consideration of the nature of the allowed conditions, the
limited course of medical treatment over the history of his
claim, and limited diagnostic test results, Mr. Koonce shall
not be found to be permanently and totally disabled from the
allowed conditions in the claims. It should be noted that a
consideration of the nature of the allowed conditions and the
low levels of impairment found by the Industrial Commission
specialist outweigh any consideration of Mr. Koonce's age or
limited education."
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, claiming that the commission
abused its discretion in denying permanent total disability
compensation. Prior to the appellate court's decision,
however, the commission, claiming continuing jurisdiction under
R.C. 4123.52, vacated its order denying permanent total
disability compensation, "since it is evident that a writ of
mandamus will issue in consideration of a factual error in the
order which cannot be rectified due to a change in the
composition of the Commissioners who had voted." The
commission then moved for summary judgment in the court of
appeals, claiming that its decision to vacate its order
rendered the action moot. The appellate court sustained the
commission's motion and denied the writ.
This cause is now before this court upon an appeal as of
right.

Stewart R. Jaffy & Associates Co., L.P.A., Stewart R.
Jaffy and Marc J. Jaffy, for appellant.
Lee I. Fisher, Attorney General, and Gerald H. Waterman,
Assistant Attorney General, for appellee Industrial Commission.
Vorys, Sater, Seymour & Pease and Robert A. Minor, for
appellee Dresser Industries, Inc., Marion Division.

Per Curiam. The appellate court, in making its
determination, did not have the benefit of this court's
decision in State ex rel. Rodriguez v. Indus. Comm. (1993), 67
Ohio St.3d 210, 616 N.E.2d 929, which held that the
commission's continuing jurisdiction does not extend beyond the
institution of mandamus proceedings. As such, the commission
abused its discretion in vacating the order.
Turning to the merits, we find two related aspects of the
order particularly troubling. First is the amount of
significance the commission attaches to the percentage of
impairment assigned by Dr. Hutchison. Second is the erroneous
suggestion that Hutchison attributed claimant's physical
limitations exclusively to his age, not his allowed
conditions. It seems the commission disregarded a most germane
aspect of Hutchison's report -- his conclusion that the allowed
conditions precluded heavy lifting as well as frequent stooping
and bending.
These restrictions set forth by Dr. Hutchison preclude
claimant's return to his former job. More broadly, the
restrictions effectively confine claimant to lighter --
possibly sedentary -- employment. The commission's order does
not adequately explain how it determined that claimant's age,
education and work history render claimant amenable to that
type of work. Accordingly, we find that the requirement of
State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203,
567 N.E.2d 245, has not been met.
Having reached this conclusion, we must determine the
appropriate remedial option -- a return for further
consideration and amended order pursuant to Noll or a writ of
mandamus compelling a permanent total disability award under
State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d
666. We elect the latter. Given the evidence of record --
claimant's advanced age, extremely limited education and
singular job history -- we are unpersuaded that a denial of
compensation can be adequately justified should the cause be
returned once more to the commission.
Accordingly, the judgment of the court of appeals is
reversed and the writ is allowed.
Judgment reversed
and writ allowed.

A.W. Sweeney, F.E. Sweeney and Pfeifer, JJ., concur.
Douglas and Resnick, JJ., concur separately.
Moyer, C.J., and Wright, J., dissent.
Douglas, J., concurring. State ex rel. Gay v. Mihm
(1994), 68 Ohio St.3d 315, 626, N.E.2d 666 stands for the
proposition that courts will no longer be precluded from
ordering permanent total disability compensation where a
claimant clearly deserves such an award. In his dissent
herein, Justice Wright attacks the holding in Gay and
excoriates the majority in Gay for our search for "justice."
Perhaps we are also old-fashioned in believing that at least
one of the roles of courts is to be fair and to seek "justice,"
even in the face of continued vitriolic attempts to discredit
our efforts in achieving those goals. In fact, as Justice
Wright said in Morris v. Savoy (1991), 61 Ohio St.3d 684, 692,
576 N.E.2d 765, 772, "[s]omeone once said that if tempted by a
sense of humanity, treat it not as a weakness, but grant it a
measure of consideration."
Having submitted his dissent, in the case at bar,
attacking Gay, Justice Wright fails to adequately explain his
concurrence in the recent case of State ex rel. McGee v. Indus.
Comm. (1994), 69 Ohio St.3d 370, N.E.2d , which, for its
judgment, cites and relies on the holding and reasoning of
Gay! Oh well, who ever said we should be consistent.
Resnick, J., concurs in the foregoing concurring opinion.
Moyer, C.J., dissenting. The reasons for my separate
concurrence in State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d
315, 626 N.E.2d 666, have been given new meaning by the
majority opinion in this case. The majority has reviewed the
commission file and made its own judgment, thereby disregarding
the "some evidence rule." A proper application of the rule in
Gay has now been extended to place this court once again, as it
was a number of years ago, in the position of second-guessing
an administrative agency that should be permitted to exercise
its discretion. At the very most, we should return this case
to the commission for further consideration and amended order
pursuant to State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio
St.3d 203, 567 N.E.2d 245.
For the foregoing reasons, I dissent from the judgment and
opinion of the majority.
Wright, J., dissenting. In State ex rel Gay v. Mihm
(1994), 68 Ohio St.3d 315, 626 N.E.2d 666,, the majority of
this court in attempting to dispense "justice" substantially
eroded the "some evidence" rule adopted by this court in a
myriad of cases in the past. See, e.g., State ex rel. Elliott
v. Indus. Comm. (1986), 26 Ohio St.3d 76, 26 OBR 66, 497 N.E.2d
70; State ex rel. Milburn v. Indus. Comm. (1986), 26 Ohio St.3d
119, 26 OBR 102, 498 N.E.2d 440; State ex rel. Hudson v. Indus.
Comm. (1984), 12 Ohio St.3d 169, 12 OBR 237, 465 N.E.2d 1289;
State ex rel. G F Business Equip., Inc. v. Indus. Comm. (1981),
66 Ohio St.2d 446, 20 O.O.3d 379, 423 N.E.2d 99; State ex rel.
Dodson v. Indus. Comm. (1980), 62 Ohio St.2d 408, 16 O.O.3d
439, 406 N.E.2d 513; State ex rel. Humble v. Mark Concepts,
Inc. (1979), 60 Ohio St.2d 77, 14 O.O.3d 275, 397 N.E.2d 403.
In the words of the majority in Gay, "where the facts of the
case indicate that there is a substantial likelihood that a
claimant is permanently and totally disabled, courts are not
and will not be precluded from ordering the Industrial
Commission, in a mandamus action, to award permanent total
disability benefits notwithstanding the so-called 'some
evidence' rule." Gay, supra, syllabus.
I joined the Chief Justice in his well-reasoned and cogent
dissent from this syllabus in Gay. Chief Justice Moyer asked:
"What does 'substantial likelihood' mean ***? Which standard
[substantial likelihood or some evidence] is to be applied by
the court of appeals and this court? How do the standards
relate to each other?" In my view, the majority in Gay may
have fallen into the morass that prevailed prior to our return
to the "some evidence" rule. I submit that we will live to
regret the plethora of appeals that will accrue as the result
of Gay and its progeny.
Today we see just how far the majority will go in passing
out a little "justice."
As pointed out by the majority in the facts but neglected
in the body of its opinion, the Industrial Commission held
Koonce's application for permanent total disability
compensation in abeyance pending an additional medical
examination by Dr. J. Q. Brown. Dr. Brown concluded in his
report that Koonce had only a twenty percent permanent partial
impairment and that this did not prevent sustained remunerative
employment.
One of the problems in this case -- in fact, in my belief
the controlling issue -- stems from the discrepency between the
commissioners' internal voting sheets and the commission's
order denying permanent total disability compensation. While
the voting sheets indicate that the commissioners relied, at
least in part, on Dr. Brown's report, the denial order did not
reference it. Rather, the order mentions only the medical
reports of Drs. Eboh, Cunningham and Hutchison. The
commission's order and rationale denying Koonce permanent total
disability compensation is set forth below:
"The reports of Drs. Eboh, Cunningham and Hutchison were
reviewed and evaluated. This order is based particularly upon
the report of Dr. Hutchison, the evidence in the file and the
evidence adduced at the hearing.
"Mr. Koonce is 61 years of age with a fifth grade
education and a 35 year work history as a building maintenance
worker. The medical evidence relied upon by Mr. Koonce, the
report of Dr. Eboh, indicates Mr. Koonce is permanently and
totally disabled when the allowed conditions are factored with
a consideration of his education an age. However, the report
of Dr. Hutchison, as relied upon by the Commission, relates Mr.
Koonce as only an 18% total body impairment from the allowed
back conditions and no impairment from the allowed conditions
to his hands. This report noted that the degenerative changes
found in the diagnostic tests and upon examination are
primarily a result of the normal aging process. This report
concluded that Mr. Koonce could engage in sustained
remunerative employment consistent with normal physical
limitations placed upon a person of his age. When these low
levels of impairment found by Dr. Hutchison are coupled with a
consideration of the nature of the allowed conditions, the
limited course of medical treatment over the history of his
claim, and limited diagnostic test results, Mr. Koonce shall
not be found to be permanently and totally disabled from the
allowed conditions in the claims. It should be noted that a
consideration of the nature of the allowed conditions and the
low levels of impairment found by the Industrial Commission
specialist outweigh any consideration of Mr. Koonce's age or
limited education."
Koonce, of course, filed for the writ of mandamus we have
granted today. As any reader can see, regardless of whether
the denial order specifically mentions Dr. Brown's report, the
commission's conclusion in this case is supported not only by
"some evidence" but by a substantial amount of reliable and
probative evidence. Perhaps I am old-fashioned but the
decision-making process should involve at least three factors:
(1) A search for "justice,"
(2) A rational reasoning process, and
(3) A respect for precedent and stability in the law.
The majority has ignored items 2 and 3 above. Thus, I
must vigorously dissent from the majority's total departure
from an appropriate review of this type of case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11148958. Public record. Not legal advice.