State ex rel. Haddix v. Industrial Commission

636 N.E.2d 323, 70 Ohio St. 3d 59

• Court: Ohio Supreme Court
• Decided: August 10, 1994
• Docket: No. 93-1449
• Status: Published

Opinions

Per Curiam.

Claimant seeks a writ of mandamus to compel a permanent total disability award that is consistent with our recent decision in State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. The commission wants its order reinstated, and essentially contends that Noll has not been violated. Upon review, we favor claimant’s position.

As is true with all disputes arising under Noll and Gay, the success of claimant’s permanent total disability application rests on the interpretation given his nonmedical disability factors. In this case, the commission’s order is internally inconsistent.

The present order lists three nonmedical factors — age, education and work history. The commission was silent on the first, giving no clue as to whether claimant’s age was viewed favorably or unfavorably. Its observation that claimant was sixty years old appears to be no more than that — a random factual observation with no significance attached one way or the other.

Education, on the other hand, was specifically deemed an obstacle to reemployment, so it does not support the transferable-skills theory. This leaves the commission’s conclusion resting solely on claimant’s work history.

The commission determined that claimant’s prior work as a gas station attendant and press operator provided him with skills transferable to sedentary employment. The commission’s order, however, does not identify what those skills are. Such elaboration is critical in this case, since common sense suggests that neither prior work is, in and of itself, sedentary.

The commission responds that it “inferred” from claimant’s gas station job that claimant “perform[ed] a variety of duties, which would include such things as pumping gas, washing windows, dealing with customers at retail, making change, filling out credit card slips, operating a cash register, and light custodial work.” Again, however, none of this explanation was stated in the order. Moreover, pumping gas, washing windows and light custodial duties do not suggest sedentary employment.

The commission’s order, contrary to Noll, does not, therefore, adequately explain how these vocationally neutral and/or unfavorable factors combine to produce a claimant who is able to work. Equally important, we are not convinced that such an explanation is possible. Claimant is now in his sixties. He did not attend even high school and has worked as a gas station attendant and press operator. We thus find relief consistent with Gay to be appropriate.

The appellate judgment is hereby reversed and a writ of mandamus is allowed.

Judgment reversed and writ allowed.

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