State ex rel. Penske Truck Leasing Co., L.P. v. Indus. Comm. (Slip Opinion) , 153 Ohio St. 3d 133 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Penske Truck Leasing Co., L.P. v. Indus. Comm., Slip Opinion No. 2018-Ohio-2153.]
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SLIP OPINION NO. 2018-OHIO-2153
THE STATE EX REL. PENSKE TRUCK LEASING COMPANY, L.P., APPELLEE, v.
INDUSTRIAL COMMISSION OF OHIO, APPELLANT;
FIZER ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Penske Truck Leasing Co., L.P. v. Indus. Comm.,
Slip Opinion No. 2018-Ohio-2153.]
Workers’ compensation—Industrial commission failed to explain the basis for its
specific allocations of cost for permanent-total-disability award among the
worker’s three claims—Court of appeals’ judgment granting writ of
mandamus affirmed.
(No. 2017-0636—Submitted April 24, 2018—Decided June 6, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 15AP-223,
2017-Ohio-1119.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Industrial Commission, appeals the judgment of the Tenth
District Court of Appeals granting a writ of mandamus ordering the commission to
(1) vacate its order allocating the cost of a permanent-total-disability award
between two different employers and (2) issue an amended order. For the reasons
that follow, we affirm.
{¶ 2} Appellee Deborah J. Fizer filed an application for permanent-total-
disability compensation based on three workers’ compensation claims for work-
related injuries she sustained while working as a truck driver for two different
employers. In 2001, Fizer was injured while she was working for appellee Penske
Truck Leasing Company, L.P. Her workers’ compensation claim was allowed for
cervical strain. She filed a claim in 2004 for a second injury she sustained while
working for Penske, and that claim was allowed for “lumbosacral sprain/strain, left
rotator cuff sprain/strain, [and] adhesive capsulitis left shoulder.” In 2007, Fizer
was injured while working for appellee TQ Logistics, and she filed a claim that was
allowed for “sprain of neck, sprain left shoulder, disc bulge with compression at
the C5 through C7 disc levels, [and] recurrent depressive psychosis—severe.”
{¶ 3} A staff hearing officer granted the application based on the report of
a commission specialist, Jess Bond, M.D., who evaluated Fizer’s allowed medical
conditions in all three claims. Based upon Dr. Bond’s report and a report from
Marian Chatterjee, Ph.D., the hearing officer apportioned the cost of the award
among the three claims as follows: 9 percent to the 2001 claim, 13 percent to the
2004 claim, and 78 percent to the 2007 claim.
{¶ 4} The commission denied Penske’s request for reconsideration.
{¶ 5} Penske filed this mandamus action in the Tenth District Court of
Appeals challenging the commission’s allocation of the cost of the award among
the three claims. A magistrate in the court of appeals made the following findings:
(1) the staff hearing officer abused his discretion by relying on Dr. Chatterjee’s
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January Term, 2018
report in allocating the cost of the award when he did not rely on her report in
awarding permanent-total-disability compensation, (2) there was no evidence to
support allocating any of the cost of the award to the 2001 claim, and (3) there was
some evidence to support allocating a portion of the cost of the award to the 2004
claim, but no evidence to support the specific percentage the hearing officer
allocated. The magistrate concluded that the court should grant a writ of mandamus
ordering the commission to vacate the allocation portion of its order and to enter an
amended order allocating the cost of the award in a manner consistent with the
magistrate’s decision.
{¶ 6} Both the commission and Penske objected to the magistrate’s
conclusion regarding the report of Dr. Chatterjee. The commission also objected
to the magistrate’s determinations regarding the hearing officer’s allocation of
some of the cost of the award to the 2001 and 2004 claims.
{¶ 7} The court of appeals sustained the objection regarding the report of
Dr. Chatterjee, because no party had objected at the commission level to the
inclusion of the report as evidence.
{¶ 8} The court of appeals overruled the commission’s remaining two
objections. The court agreed with the magistrate that there was no evidence
supporting allocating any of the costs of the award to the 2001 claim. The court of
appeals also agreed that there was some evidence to support allocating a portion of
the cost of the award to the 2004 claim but that the order did not explain the reason
for the 13 percent the hearing officer allocated to the 2004 claim. The court issued
a writ of mandamus ordering the commission to vacate the portion of the hearing
officer’s order allocating the cost of the award and to enter an amended order with
respect to allocation.
{¶ 9} This matter is before the court on the commission’s appeal as of right.
{¶ 10} The commission argues that the court of appeals applied an improper
standard of review and evidentiary requirement by requiring the commission to
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SUPREME COURT OF OHIO
provide further explanation of the allocations beyond the “some evidence”
standard. The commission maintains that it is not required to provide a
mathematical explanation for the allocations.
{¶ 11} In support of upholding the court of appeals’ judgment, Penske
argues that the hearing officer gave no explanation for how he arrived at the
allocation percentages and that it is entitled to mandamus relief when the evidence
cited fails to support the commission’s allocation of responsibility for a permanent-
total-disability award when there are multiple claims and employers.
{¶ 12} Ohio Adm.Code 4121-3-34(D)(3)(h) provides that a hearing officer
must prepare orders deciding permanent total disability “on a case by case basis”
and that the orders must be “fact specific,” must “contain the reasons explaining
the decision,” “must specifically state what evidence has been relied upon in
reaching the conclusion,” and must “explain the basis for the decision.” This
provision does not apply only to orders awarding or denying compensation. “All
matters affecting the rights and obligations of a claimant or employer merit an
explanation sufficient to inform the parties and potentially a reviewing court of the
basis for the commission’s decision.” (Emphasis sic.) State ex rel. Yellow Freight
Sys., Inc. v. Indus. Comm., 71 Ohio St. 3d 139, 142, 642 N.E.2d 378 (1994).
{¶ 13} The commission is not required to explain its allocations with
mathematical precision, but the allocations must be consistent with the evidence
that the commission expressly relies upon. State ex rel. Cafaro Mgt. Co. v. Indus.
Comm., 10th Dist. Franklin No. 12AP-638, 2013-Ohio-5104, ¶ 13-15. For
example, in Yellow Freight, this court issued a writ of mandamus ordering the
commission to reexamine its 100 percent allocation of the cost of a permanent-
total-disability award because it had relied on a medical report in which the
physician used the plural “claims.”
{¶ 14} In State ex rel. Hay v. Indus. Comm., 52 Ohio St. 3d 99, 555 N.E.2d
965 (1990), the commission allocated 35 percent of the cost of the claimant’s
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January Term, 2018
permanent-total-disability award to a 1971 workers’ compensation claim and 65
percent to a 1975 claim based on two medical reports in the record. This court
concluded that the evidence did not support the allocation, because both reports
attributed the claimant’s permanent total disability to only the 1975 injury. The
court affirmed the court of appeals’ judgment granting a writ of mandamus
directing the commission to amend its order and allocate the entire cost of the award
to the 1975 claim.
{¶ 15} In State ex rel. Erieview Metal Treating Co. v. Indus. Comm., 109
Ohio St. 3d 147, 2006-Ohio-2036, 846 N.E.2d 515, the commission’s order
allocated the entire cost of a permanent-total-disability award to the earlier of the
injured worker’s two claims. This court concluded that the fact that the benefits
had all been paid from the earlier claim was sufficient evidence to support the
commission’s allocation of all the costs to that claim.
{¶ 16} The commission speaks only through its orders. Yellow Freight, 71
Ohio St. 3d at 142, 642 N.E.2d 378. Thus, a court reviews for sufficiency the
evidence identified in the order as the basis for the commission’s decision; the court
need not search the record for evidence that is not specified in the order as a basis
for the commission’s decision. Id.
{¶ 17} Here, the commission was required to explain the basis for the
specific allocations of the award among the three claims. It did not do so. Dr. Bond
reviewed Fizer’s claims according to the injured body part and did not set forth
impairments for each allowed condition. Because in some instances, Fizer’s
allowed conditions in one claim affected the same body part that was affected in an
allowed condition in another claim, Dr. Bond’s report fails to attribute impairment
to each claim. The commission indicated that it relied on Dr. Bond’s report to
allocate the cost of the award among the three claims, but it failed to explain how
it did so. This constituted an abuse of discretion.
{¶ 18} We affirm the judgment of the court of appeals.
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SUPREME COURT OF OHIO
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
KENNEDY, J., concurs in judgment only.
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Scheuer, Mackin & Breslin, L.L.C., J. Kent Breslin, and Eric A. Rich, for
appellee Penske Truck Leasing Co.
Boyd, Rummell, Carach, Curry, Kaufmann & Bins-Castronovo Co., L.P.A.,
and Randall Rummell, for appellee Deborah J. Fizer.
Michael DeWine, Attorney General, and Natalie J. Tackett, Assistant
Attorney General, for appellant.
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