State ex rel. Bryant v. Industrial Commission

659 N.E.2d 1256, 74 Ohio St. 3d 458

• Court: Ohio Supreme Court
• Decided: February 7, 1996
• Docket: No. 94-1093
• Status: Published

Opinions

Per Curiam.

Claimant seeks to compel a permanent total disability compensation award pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Upon review, we find such relief to be inappropriate, and return the cause to the commission for further consideration and amended order pursuant to State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.

Preliminary to any consideration of relief pursuant to Gay is a finding that Noll has not been met. State ex rel. Sebestyen v. Indus. Comm. (1994), 71 Ohio St.3d 36, 38, 641 N.E.2d 197, 199. Noll noncompliance in this case stems from a deficiency which we are encountering with increasing frequency — the inconsistency between the commission’s actions and words.

The commission cites claimant’s occupational longevity as evidence that retraining is unimpeded by age. Several months earlier, however, the commission refused to refer claimant to its own rehabilitation division because it felt that claimant was too old. Claimant either is or is not too old for effective retraining — he cannot be both.

Left to decide between Noll or Gay relief, we elect the former. As we reaffirmed in State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 658 N.E.2d 1055, we will not review the commission’s findings de novo. To proceed further in this instance would force us to speculate as to which age assessment more accurately reflects the commission’s views — an action we decline to take. Guidance from the commission is imperative on this important issue.

Accordingly, the judgment of the court of appeals is reversed and a limited writ is issued that returns the cause to the commission for further consideration and amended order.

Judgment reversed and limited unit granted.

Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., and Cook, J., dissent.