State v. Industrial Commission, Unpublished Decision (8-17-1999) ( 1999 )

MEMORANDUM DECISION Relator, Lou Doolittle, has filed this original action in mandamus requesting this court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying her application for permanent total disability 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, and State ex rel. Stephenson v. Indus. Comm. (1987),31 Ohio St. 3d 167.

This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals, who issued a decision including findings of fact and conclusions of law. The magistrate concluded that the commission abused its discretion in relying on a vocational report that the magistrate determined omitted a crucial restriction. The magistrate concluded that this court should issue a limited writ of mandamus but found no violation of Stephenson in the commission's analysis.

Respondent, Master Marketing Company, filed objections to the decision of the magistrate arguing that she had impermissibly substituted her factual determination for that of the commission. We agree. The reduction of the medical evaluations performed on relator to brief summaries does not demonstrate a failure on the part of the vocational evaluator to have considered the underlying medical evaluations in full. This characterization by the magistrate effectively substitutes her judgment for that of the commission. Accordingly, the objections to the decision of the magistrate are sustained.

Following independent review pursuant to Civ.R. 53, we find that the magistrate has properly determined the pertinent facts. However, we disagree with her conclusion of law that the commission had abused its discretion in relying on the vocational report of Dr. Livingston. We find that the decision of the commission was supported by some evidence, complied with the requirements of Noll and Stephenson, supra, and that the requested writ is thereby denied.

Objections sustained; writ of mandamus denied.

DESHLER, J., concurs.

TYACK, J., dissents.