Opinion

State ex rel. Roadway Express, Inc. v. Industrial Commission

  • 63 Ohio St. 3d 123
  • 585 N.E.2d 415
  • 1992 Ohio LEXIS 230
Court
Ohio Supreme Court
Filed
Feb 26, 1992
Status
Published
Author
Douglas
On the bench
Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright
Cited by
1 cases
Authority
More cited than 15.1%

The opinion

Douglas, J.,

dissenting. I respectfully dissent. I would affirm the well-reasoned decision of Judges Bryant, Whiteside and McCormac of the Tenth District Court of Appeals.

In part, the court of appeals said: “We agree with the referee’s findings of fact and conclusions of law, and find that the referee is technically correct in suggesting a limited writ in this case. However, the evidence the referee cites makes very clear why the commission determined this matter as it did. To grant a limited writ under Mitchell and Stephenson would simply burden *127 the Industrial Commission by requiring it to state what is readily ascertainable on review.”

There is clearly “some evidence” to support the commission’s determination. In fact, there is more than just some evidence. Dr. William Kraus’s report, based upon his August 8, 1985 examination, concludes that appellee will never be able to return to his prior job as a dockman, although appellee might be able to engage in light work with restrictions on bending, lifting, standing and walking. Further, in a report provided to the commission, Dr. Timothy Fallon found that appellee would have some difficulty in working as a dock worker.

While this evidence was used by the commission in denying appellee permanent total disability compensation, it is clearly relevant to the issue of impairment of earning capacity under former R.C. 4123.57(A). While admittedly the duty remains with the commission to set forth, with some specificity, the evidence relied upon in reaching its determination, it is not, in this case, any laborious task to glean from the record that the evidence is there to support the commission’s determination.

This is not a State, ex rel. Noll, v. Indus. Comm. (1991), 57 Ohio St.3d 203 , 567 N.E.2d 245 , case. When there is some evidence to support the commission’s finding in awarding benefits, the additional factors of age, education, etc. need not be considered. All such a consideration would render is further evidence supporting the commission’s decision to award benefits.

Since I would affirm the judgment of the court of appeals in all respects, I must respectfully dissent.

Sweeney and Resnick, JJ., concur in the foregoing dissenting opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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