State ex. rel. Neumeyer v. Indus. Comm.
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1 The State ex rel. Neumeyer, Appellee and Cross-Appellant, v. Industrial 2 Commission of Ohio, Appellant and Cross-Appellee. 3 [Cite as State ex. rel. Neumeyer v. Indus. Comm. (1996), _____ Ohio 4 St.3d_____.] 5 Workers compensation -- Industrial Commission does not abuse its 6 discretion in basing a permanent partial disability award solely 7 on 8 demonstrable. 9 (No. 94-2755 -- Submitted June 5, 1996 -- Decided July 3, 1996.) 10 APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin 11 medical and clinical findings that are reasonably County, No. 93AP-831. 12 In 1979, appellee and cross-appellant, claimant Robert K. Neumeyer, 13 was injured in the course of and arising from his employment with R.H. 14 Penick. His workers compensation claim was allowed for fracture left 15 femur comminuted subtrochanteric spasm, and claimant eventually filed an 16 Application for the Determination of the Percentage of Permanent Partial 17 Disability with the appellant and cross-appellee, Industrial Commission of 18 Ohio. 1 Among the evidence before the commission were the reports of 2 commission specialist Dr. Thomas H. Baughman and consulting physician 3 Dr. Timothy R. Gatens. Dr. Baughman assessed a ten percent permanent 4 partial impairment. Dr. Gatens did not comment on the percent of 5 impairment, but did note that claimant has had remarkable improvement in 6 his pain and increase in his activity level. 7 After protracted administrative and judicial proceedings, a 8 commission district hearing officer found a ten percent permanent partial 9 disability. That order was administratively affirmed. The commission staff 10 11 hearing officer wrote: It is the finding of the Staff Hearing Officer that the Application for 12 Reconsideration be denied and the order of the District Hearing Officer, 13 dated 12-12-90, be affirmed for the reason that is supported by proof of 14 record and is not contrary to law. 15 This order is based upon the report of Dr. Baughman, as well as a 16 consideration of the claimant s non-medical disability factors of age 48, 17 high school diploma and prior work experience of laborer in a meat market, 2 1 apprenticeship program in plumbing and twelve years as a plumber and 2 work as an oil field worker. 3 The statement of R.H. Penick, claimant s employer, and testimony of 4 the claimant concerning disability above Dr. Baughman s ten percent (10%) 5 impairment rating were also considered. It is found the increased disability 6 alleged by the claimant is not evidenced by medical or clinical findings 7 reasonably demonstrable as required by O.R.C. 4123.57. Dr. Gatens 8 reported on 12-17-90 that neurologically, the left leg is intact and extensive 9 medical work-up showed no problems with the fracture site or any tumor or 10 11 any other problems going on that might be causing his left leg pain. Claimant filed a complaint in mandamus in the Court of Appeals for 12 Franklin County, alleging that the commission abused its discretion in 13 failing to find a higher percentage of permanent partial disability. The court 14 of appeals agreed and returned the cause to the commission for further 15 consideration and amended order. 16 17 This cause is now before this court upon an appeal and cross-appeal as of right. 3 1 2 3 4 5 Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, for appellee and cross-appellant. Betty D. Montgomery, Attorney General, and William McDonald, Assistant Attorney General, for appellant and cross-appellee. Per Curiam. On authority of our decision in State ex rel. Holman v. 6 Longfellow Restaurant. (1996), _____ Ohio St.3d _____, ____ N.E.2d 7 ____, the judgment of the court of appeals is reversed. 8 9 Judgment reversed. 10 MOYER, C.J., PFEIFER, COOK and STRATTON, JJ., concur. 11 DOUGLAS, J., dissents. 12 RESNICK and F.E. SWEENEY, JJ., dissent and would affirm the 13 judgment of the court of appeals. 14 4
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