The opinion
[This opinion has been published in Ohio Official Reports at 77 Ohio St.3d 193.]
THE STATE EX REL. NICHOLSON, APPELLANT, v. COPPERWELD STEEL
COMPANY; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Nicholson v. Copperweld Steel Co., 1996-Ohio-198.]
Workers’ compensation—R.C. 4123.60 affords dependents, upon timely
application, the right to claim compensation for which a decedent was
eligible but was not paid before death—Mandamus available to enforce
this right—Industrial Commission’s order denying application for
compensation an abuse of discretion when requirements of Noll not met.
(No. 94-2352—Submitted September 24, 1996—Decided December 18, 1996.)
APPEAL from the Court of Appeals for Franklin County, No. 93APD08-1091.
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{¶ 1} Appellant, Marian Nicholson, seeks a writ of mandamus (1) to vacate
appellee Industrial Commission of Ohio’s denial of her “Application for Payment
of Compensation Accrued at Time of Death,” and (2) to award her the permanent
total disability compensation (“PTD”) she claims her husband should have received
prior to his death.
{¶ 2} Marian’s husband, Charles Nicholson, was injured in 1973 and again
in 1974 while working for Copperweld Steel Company. His workers’
compensation claims were recognized for “right foot” and “contusion and
ecchymosis of left buttock, strain of left sacroiliac, aggravation of pre-existing
arthritis of the lumbar spine, spondylolisthesis at L5/S1 and central bulging discs
at L4/5, L5/S1.” In July 1990, Charles applied for PTD. His physician, Dr. Martin
J. Lohne, reported that Charles was “100% disabled” due to his back injury. A
commission specialist, Dr. David M. Baroff, reported Charles had a twenty-five
percent permanent partial impairment based on the allowed back condition, but
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concurred that Charles was unfit for sustained remunerative employment. Charles
died on February 18, 1992, before any disposition of his PTD application.
{¶ 3} On April 13, 1992, Marian applied, as Charles’s dependent, for the
compensation Charles could have received prior to his death. The commission
denied her application in February 1993, finding that Charles had been permanently
and totally disabled when he died, but not due to either of his allowed conditions.
The commission explained:
“The reports of Doctors Lohne, Baroff and McCloud were reviewed and
evaluated. This order is based particularly upon the report of Doctor McCloud.
“The medical evidence found persuasive includes the report of Commission
orthopedist Dr. McCloud. The report, which consists of a review of both allowed
claim files subsequent to the claimant’s death, finds a 30% permanent partial
impairment due to the claimant’s allowed conditions and opines these conditions
did not render the claimant permanently totally impaired. It is noted that the
claimant’s course of treatment for his allowed conditions was exclusively
conservative in nature. The report of Commission specialist Dr. Baroff, which finds
only a 25% permanent partial impairment but opines the claimant is permanently
disabled from any work, is found unpersuasive in that it is not supported by
objective medical evidence on file. Medical evidence on file indicates at the time
of his death the claimant suffered from a seizure disorder and arthritis in both knees.
The death certificate indicates the claimant’s immediate cause of death was cardiac
arrest, with meningeal sarcoma and coronary a[r]teriosclerotic heart disease listed
as contributing causes. Therefore, while the Commission finds the claimant to have
been incapable of gainful employment at his date of death, it is determined that the
claimant’s inability to work was not causally related to the allowed conditions in
the claim files. This finding is based on a consideration of Dr. McCloud’s report,
the claimant’s conservative course of treatment, the claimant’s advanced age of 68
at his date of death, and his serious non-work related medical conditions.
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Accordingly, the IC-2 filed 7/17/90 [Charles’s application] and the C-6 filed
4/13/92 [Marian’s application] are denied.”
{¶ 4} Marian then filed her complaint in mandamus in the Court of Appeals
for Franklin County. She argued that the allowed conditions and Charles’s other
vocational characteristics had made him unfit for sustained remunerative
employment and, therefore, that the commission had abused its discretion by
denying her payment for the PTD Charles should have received prior to his death.
A referee recommended denial of the writ without reaching Charles’s PTD
eligibility. The referee concluded that Charles’s claim had abated upon his death
and that Marian had no legal right, under R.C. 4123.60, to pursue payment for his
PTD by an action in mandamus. The court of appeals agreed, adopted the referee’s
reasoning, and denied the writ.
{¶ 5} The cause is before this court upon an appeal as of right.
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Jurus Law Offices and Michael J. Muldoon, for appellant.
Betty D. Montgomery, Attorney General, and Charles Zamora, Assistant
Attorney General, for appellee.
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Per Curiam.
{¶ 6} Two questions are presented for our review: (1) Is mandamus
available to compel payment, pursuant to R.C. 4123.60, to a decedent’s spouse of
the PTD the decedent could have received prior to his death? and (2) Did the
commission abuse its discretion in finding that Charles was not entitled to PTD and
denying Marian the payments available under R.C. 4123.60? For the reasons that
follow, we hold that R.C. 4123.60 affords dependents, upon timely application, the
right to claim compensation for which a decedent was eligible but was not paid
before death and that mandamus is available to enforce this right. We further hold
that the commission’s order is not sufficiently specific under State ex rel. Noll v.
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Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, and, therefore,
constitutes an abuse of discretion. Accordingly, we reverse and return this cause to
the commission for further consideration and an amended order.
R.C. 4123.60
{¶ 7} Marian applied for payment of compensation for which Charles
qualified before he died pursuant to R.C. 4123.60, which provided, in part:
“In all cases of death from causes other than the injury or occupational
disease for which award had theretofore been made on account of temporary, or
permanent partial, or total disability, in which there remains an unpaid balance,
representing payments accrued and due to the decedent at the time of his death, the
commission may, after satisfactory proof has been made warranting such action,
award or pay any unpaid balance of such award to such of the dependents of the
decedent, or for services rendered on account of the last illness or death of such
decedent, as the commission determines in accordance with the circumstances in
each such case. If the decedent would have been lawfully entitled to have made
application for an award at the time of his death the commission may, after
satisfactory proof to warrant an award and payment, award and pay an amount,
not exceeding the compensation which the decedent might have received, but for
his death, for the period prior to the date of his death, to such of the dependents of
the decedent, or for services rendered on account of the last illness or death of such
decedent, as the commission determines in accordance with the circumstances of
each case, but such payments may be made only in cases in which application for
compensation was made in the manner required by sections 4123.01 to 4123.94 of
the Revised Code, during the lifetime of such injured or disabled person, or within
one year after the death of such injured or disabled person.” (Emphasis added.)
(136 Ohio Laws, Part I, 1075, 1169-1170.)
{¶ 8} The court of appeals concluded that Charles’s PTD claim abated upon
his death, which is true under State ex rel. Hamlin v. Indus. Comm. (1993), 68 Ohio
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St.3d 21, 22, 623 N.E.2d 35, 36. The court further held that his surviving spouse
had no right under R.C. 4123.60 to “step into * * * [his] shoes” for the purpose of
pursuing his claim, and this is also true. State ex rel. Manns v. Indus. Comm.
(1988), 39 Ohio St.3d 188, 529 N.E.2d 1379, paragraph three of the syllabus (where
deceased claimant was paid lump-sum advance for anticipated future
compensation, advance was not “accrued compensation” to which dependents may
be entitled under R.C. 4123.60, and a surviving spouse cannot pursue the
decedent’s claim for the advance). The commission urges us to affirm for the same
reasons.
{¶ 9} We, however, read the emphasized language of R.C. 4123.60 to
expressly authorize a deceased worker’s dependents’ receipt of compensation for
which the worker qualified and should have received before death. Indeed, we have
already said that where a deceased worker’s dependents’ claims accrued
compensation under R.C. 4123.60, “[t]he award is not personal to the worker
because R.C. 4123.60 specifically provides that dependents may recover the
compensation the deceased worker was entitled to receive.” State ex rel. Nyitray v.
Indus. Comm. (1983), 2 Ohio St.3d 173, 177, 2 OBR 715, 719, 443 N.E.2d 962,
966, fn. 5. For this reason, an R.C. 4123.60 award is similar to a death benefit
award under R.C. 4123.59 -- both exist separate and apart from the rights of the
injured worker. Nyitray at 174, 2 OBR at 716, 443 N.E.2d at 963; Manns, 39 Ohio
St.3d at 190, 529 N.E.2d at 1381.
{¶ 10} Thus, contrary to the court of appeals’ decision, Marian is not
attempting to pursue Charles’s PTD claim, which he filed pursuant to R.C. 4123.58,
on his behalf. Rather, when Marian filed her application for accrued compensation,
she instituted her own claim for compensation Charles could have received, a claim
that is expressly sanctioned by R.C. 4123.60. As a result, Marian’s claim was not
abated by Charles’s death—her interests actually arose at that time and, under R.C.
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4123.60, they became independently actionable. Nyitray at 174, 2 OBR at 716, 443
N.E.2d at 963.
{¶ 11} The court of appeals also concluded that R.C. 4123.60 requires the
commission to decide a dependent’s application for accrued compensation, but
stops short of authorizing a dependent’s suit in mandamus if the application is
denied. The court came to this conclusion because R.C. 4123.60 does not identify
mandamus as an avenue for challenging the commission’s denial of compensation
and because the statute states that the commission “may” compensate dependents
of deceased workers, connoting a discretionary decision. Neither consideration,
however, justifies the appellate court’s refusal to recognize Marian’s claim as
actionable in mandamus.
{¶ 12} The court of appeals cited State ex rel. Yurcsisin v. Indus. Comm.
(1944), 142 Ohio St. 479, 27 O.O. 408, 52 N.E.2d 991, which noted the
discretionary language of the predecessor to R.C. 4123.60, but did not deny
mandamus on that basis alone. The Yurcsisin court instead held that a widow had
failed to prove claimed compensation was “accrued and due” under the first
sentence of the statute. This holding does not bar mandamus where such proof
exists.
{¶ 13} Furthermore, in Nyitray we granted mandamus to remedy the denial
of equal protection represented by former R.C. 4123.60. At that time, R.C. 4123.60
denied accrued compensation to dependents of workers who died of industrial
injury or occupational disease, but allowed compensation for qualifying dependents
of workers who died of other causes. We held that no rational basis justified a
distinction based on cause of death and granted the writ. By affording this relief,
we effectively ordered the commission to award any compensation for which the
surviving spouse in that case qualified. Thus, R.C. 4123.60 is enforceable through
mandamus.
PTD Denial
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{¶ 14} In reviewing the PTD application of a claimant who is only
permanently partially impaired due to industrial injury, the commission must
consider the claimant’s age, work experience, education, or other relevant
nonmedical or vocational characteristics, as required by State ex rel. Stephenson v.
Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, and
determine whether the claimant is nevertheless foreclosed from sustained
remunerative employment. State, ex rel. Hopkins v. Indus. Comm. (1994), 70 Ohio
St.3d 36, 38,635 N.E.2d 1257, 1259; State ex rel. Lawrence v. Am. Lubricants Co
(1988), 40 Ohio St.3d 321, 322, 533 N.E.2d 344, 345-346; State ex rel. Hartung v.
Columbus (1990), 53 Ohio St.3d 257, 258, 560 N.E.2d 196, 198. And, for all its
determinations, Noll, supra, requires the commission “to prepare orders that ‘are
fact-specific and which contain reasons explaining its decisions. * * * Such
order[s] must specifically state what evidence has been relied upon to reach its
conclusion and, most important, briefly explain the basis of its decision.’” State ex
rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 375, 658 N.E.2d 1055,
1057, quoting Noll, 57 Ohio St.3d at 206, 567 N.E.2d at 249. The commission’s
failure to specify and explain the impact of the Stephenson factors, in accordance
with Noll, is an abuse of discretion for which mandamus is the remedy. State ex
rel. Ranomer v. Indus. Comm. (1994), 71 Ohio St.3d 134, 137, 642 N.E.2d 373,
376.
{¶ 15} Marian argues that the commission did not sufficiently account for
the Stephenson factors when it denied her application for compensation that had
accrued to Charles before he died. We agree.
{¶ 16} Charles was approximately seventy-years old and a nursing-home
resident when he died. He had a seventh-grade education and had been employed
as a railroad brakeman and steel mill laborer. He had not worked since his injury
in 1974, and he appeared to have no rehabilitation potential.
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{¶ 17} The commission noted Charles’s age in its order but no other
nonmedical characteristics. It instead relied completely on Dr. McCloud’s October
1992 report, which, except for one or two conclusions, reads as if he were
determining Charles’s cause of death for a death-benefit claim, rather than
Charles’s fitness for sustained remunerative employment on his application for
PTD. The report stated:
“HISTORY
“Injured 4-30-74
“1) 562043-22 is allowed for right foot # 2) 73-41359 is allowed for
contusions and ecchymosis of left buttock, strain of left sacroiliac, aggravation of
pre-existing arthritis of lumbar spine and spondylolisthesis at L5-S1 with disc
bulging at L4-5 and L5-S1. He was a general laborer for the Copperweld Steel
Company.
“I was asked to review the industrial records to help determine if there was
medical evidence consistent with considering this claimant unable to perform any
sustained work activity. It is important to note that at the time of his death his back
injury was some 19 years old and his foot injury was some 18 years old. His
treatment in regard to each of these problems was conservative in nature and I did
review a variety of clinical notes from Dr. Burrows [sic, Baroff]. The charts are
quite thick but there is nothing in the chart that would indicate any specific or
radical changes that occurred through his clinical course as the conservative
treatment and various conservative modalities were continued throughout his
clinical history in regard to these claims. The claimant did die on February 18,
1992 and I did review the death certificate as prepared by the coroner. The primary
cause of death was listed as a cardiac arrest with a contributing factor of meningeal
sarcoma. Further, the claimant was felt to have arterial sclerotic heart disease as a
contributing factor as well.
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“In summary, this individual died as a result of cardiac arrest and the
precipitating factor as well as the contributing factors [was] described on the death
certificate by the coroner. Neither the primary factor in relation to his death nor the
contributing factors in any fashion can be related to the conditions permitted to be
a portion of either of these two claims. Therefore, review of the medical
information in the record would indicate that this claimant cannot be considered
permanently and totally impaired based upon the conditions permitted to be a
portion of either claim.
“* * *
“562043-22 = 0% [Percentage of impairment]
“73-41359 = 30% [Percentage of impairment].”
{¶ 18} To receive PTD, Marian must demonstrate not only Charles’s
inability to perform sustained remunerative employment, but also that the inability
is causally related to the allowed conditions. State ex rel. LTV Steel Co. v. Indus.
Comm. (1992), 65 Ohio St.3d 22, 23, 599 N.E.2d 265, 267. “Permanent total
disability cannot be based, wholly or partially, on nonallowed medical conditions.”
State ex rel. Erico Products, Inc. v. Indus Comm. (1994), 70 Ohio St.3d 661, 663,
640 N.E.2d 824, 826, citing State ex rel. Fields v. Indus. Comm. (1993), 66 Ohio
St.3d 437, 613 N.E.2d 230. However, “[t]he presence of debilitating nonallowed
conditions * * * does not preclude permanent total disability compensation so long
as the allowed conditions * * * independently [or together with nonmedical
disability factors, LTV Steel at 24, 599 N.E.2d at 267] prevent sustained
remunerative employment.” Erico at 663, 640 N.E.2d at 826, citing State ex rel.
Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452, 619 N.E.2d 1018.
{¶ 19} Only the total absence of impairment attributable to allowed
conditions eliminates the commission’s obligation to consider nonmedical factors
recognized in Stephenson. In that situation, “there is no allowable impairment with
which the nonmedical factors could conceivably combine to produce [a finding that
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the claimant was unfit for sustained remunerative employment].” Erico at 663, 640
N.E.2d at 826. Here, the commission was persuaded that Charles was thirty-percent
impaired due to his allowed back condition, but did not finish the PTD analysis. It
overlooked that the combination of the thirty percent impairment and Charles’s
education, age, and work history might have precluded his return to work
independently of his otherwise failing health.
{¶ 20} The commission argues, however, that Dr. McCloud’s report was
“some evidence” upon which it could conclude that Charles’s permanent and total
disability was exclusively due to nonallowed conditions. The commission cites
LTV Steel, in which we declared it “pointless” to order an explanation of how
nonmedical factors justified a PTD award. LTV Steel at 25, 599 N.E.2d at 267.
There, medical evidence attributed permanent and total disability exclusively to
nonallowed conditions and, thus, necessarily established that the claimant’s
inability to work was not due to the allowed conditions.
{¶ 21} LTV Steel sanctions the commission’s noncompliance with Noll
where it legitimately denies PTD on evidence that exclusively attributes disability
to nonallowed conditions. LTV Steel, 65 Ohio St.3d at 24-25, 599 N.E.2d at 267.
LTV Steel, however, was distinguished on this basis in Waddle, and the distinction
applies here for the reasons just discussed:
“LTV held that the presence of a totally disabling nonindustrial condition
negated the need for further Noll consideration. Unlike this case, however, the
claimant in LTV suffered no underlying impairment whatsoever from the allowed
condition. There was thus no allowed condition/impairment with which the
Stephenson factors could conceivably combine to produce permanent total
disability. The present claimant clearly has a work-related physical impairment
with which the Stephenson factors could combine.
“For the above reasons, the judgment of the court of appeals [granting a writ
of mandamus] is affirmed[,] and the cause is returned to the commission for
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additional consideration and and amended order consistent with Noll.” Waddle at
458, 619 N.E.2d at 1022-1023.
{¶ 22} Accordingly, we reverse the judgment of the court of appeals as to
the availability of mandamus to enforce R.C. 4123.60, and issue a limited writ
returning the cause to the commission for compliance with the specificity
requirements of Noll and an amended order.
Judgment reversed and
limited writ granted.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
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