State v. Industrial Commission, Unpublished Decision (11-4-1999) ( 1999 )

MEMORANDUM DECISION Relator, James Phinnessee, Jr., has filed this original action requesting this court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying relator's application for permanent total disability ("PTD") compensation, and to issue an order granting such compensation or, in the alternative, to issue an order that complies with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203.

The matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. After examining the evidence, the magistrate issued a decision, including findings of fact and conclusions of law. The magistrate determined that the commission's order fails to comply with Noll and recommended that this court grant a limited writ of mandamus ordering the commission to vacate its order denying relator's PTD application and to enter a new order in compliance with Noll.

Relator has filed objections to the magistrate's decision, arguing that he is entitled to PTD compensation pursuant to State ex rel.Gay v. Mihm (1994), 68 Ohio St.3d 315. Upon review of the stipulated evidence, we find relator's request for Gay relief inappropriate in this case. Relator has relatively low degrees of physical and psychological impairment. In addition, the record contains both positive and negative nonmedical disability factors. As such, the cause is more properly returned to the commission for further consideration and an amended order. Accordingly, relator's objections are overruled.

Upon an examination of the magistrate's decision and an independent review of the file, this court adopts the magistrate's decision as its own, including the findings of fact and conclusions of law contained therein. As such, this court hereby issues a limited writ of mandamus ordering the Industrial Commission of Ohio to vacate its order denying relator's request for PTD compensation, and to enter an order in compliance with Noll, supra, either granting or denying relator's PTD application.

Objections overruled; limited writ granted.

TYACK and DESHLER, JJ., concur.