Opinion
No. 91-990
Submitted April 27, 1992 —
Decided July 15, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-76.
Claimant-appellee, Alonzo Shepherd, was injured in 1988 in the course of and arising from his employment with appellant, Ohio Building Restoration, Inc., and his workers' compensation claim was allowed. Claimant's subsequent application for permanent total disability compensation was heard by Commissioners Smith, Fugate, McAllister and Bell of the appellee Industrial Commission of Ohio. The commission voted three-to-two to grant claimant permanent total disability compensation. The tiebreaking vote was cast by Commissioner James Mayfield who did not attend the hearing. The commissioners, in their order, also did not identify the nonmedical factors relied on, issuing instead a standard statement that relevant factors had been considered.
Appellant thereafter filed a complaint in mandamus in the Court of Appeals for Franklin County, claiming that the commission abused its discretion in granting claimant permanent total disability compensation. The appellate court agreed, finding that the commission's boilerplate recitation of nonmedical disability factors did not satisfy State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. The court vacated the order and returned the cause to the commission for further consideration and amended order.
This cause is now before this court upon an appeal as of right.
Bugbee Conkle, Gregory B. Denny and Robert P. King, for appellant.
Lee I. Fisher, Attorney General, Dennis L. Hufstader and Gerald H. Waterman, for appellee Industrial Commission.
Larrimer Larrimer and David H. Swanson, for appellee claimant.
It is undisputed that the commission's boilerplate recitation of nonmedical disability factors in granting claimant permanent total disability compensation violates State ex rel. Noll v. Indus. Comm., supra. Noll noncompliance, however, does not automatically warrant a return of the cause for additional consideration and amended order. Where medical factors alone preclude sustained remunerative employment, the commission's failure to comply with Noll is excused. State ex rel. Galion Mfg. Div., Dresser Industries, Inc. v. Haygood (1991), 60 Ohio St.3d 38, 573 N.E.2d 60.
The appropriateness of further consideration pursuant to Noll is presently unreviewable. Since the record does not contain the relevant medical evidence, it is impossible to determine whether there was medical evidence of claimant's inability to engage in sustained remunerative employment. However, even if a return of the cause to the commission is technically unnecessary under Haygood, the appellate court's decision does not merit reversal.
Simple vacation of the commission's order granting permanent total disability compensation, however, does not satisfy appellant, who demands a new hearing. The asserted basis for this request is the participation of commissioner Mayfield, who was not present at the permanent total disability hearing and yet cast the tiebreaking vote in claimant's favor. Mayfield's voting participation is improper only if he did not " in some meaningful manner, consider evidence obtained at hearing." (Emphasis sic.) State ex rel. Ormet Corp. v. Indus. Comm. (1990), 54 Ohio St.3d 102, 107, 561 N.E.2d 920, 925. The commission claims that Mayfield engaged in meaningful review. Given the presumption of regularity that attaches to commission proceedings ( State ex rel. Rouch v. Eagle Tool Machine Co., 26 Ohio St.3d 197, 215, 26 OBR 289, 304, 498 N.E.2d 464, 478, Douglas, J., concurring), the commission's statement that it complied with Ormet, absent evidence to the contrary, should be accepted.
Nevertheless, as the commission and appellate court observed, Commissioners Smith and Bell who heard and voted on claimant's application for permanent total disability compensation have been replaced. Thus, if the new members can not meaningfully review the evidence adduced at the first hearing, a new hearing, by necessity, must take place. In either event, appellant's due process rights will be protected.
Accordingly, the appellate court's judgment is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.