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State ex rel Borden3/20/2003
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION
. Relator, Borden, Inc., commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order granting respondent Louis Wilson compensation for impairment of earning capacity under former R.C. 4123.57(A) for the period October 17, 1990 through August 6, 1998, and to enter an order denying Wilson impairment of earning capacity compensation.
.Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate concluded Wilson failed to present some evidence of impairment of earning capacity with respect to the entire period at issue. Accordingly, the magistrate determined the court should issue a writ of mandamus ordering the commission to vacate its order awarding impairment of earning capacity compensation , and to enter an order denying the compensation. Wilson has filed an objection to the magistrate's decision, contending that even if the magistrate properly concluded that evidence regarding Wilson's pre-injury and post-injury earnings alone is insufficient to support an award for impairment of earning capacity, the record contains additional facts that would support the award.
.Without question, the staff hearing officer's order does not cite evidence on which the staff hearing officer properly may rely to award impairment of earning capacity compensation . Specifically, although the order cites the medical report of J. Stephen Beam, M.D., that report simply details Dr. Beam's physical examination of Wilson and his conclusion regarding Wilson's impairment rating. As the magistrate observed, that evidence alone does not support an award for impairment of earning capacity. Nor do the pre-injury and post-injury earnings discussed in the staff hearing officer's decision in themselves support the award.
.Rather than examine the record to determine whether any further evidence may be construed to support an award of impairment of earning capacity, we return the matter to the Industrial Commission to ascertain whether the record contains the requisite evidence to support an impairment of earning capacity award to Wilson. To that extent, Wilson's objection is sustained.
.Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and has appropriately noted the relevant law. Because, however, the evidence on which the commission relied is insufficient to support its decision and because this court is reluctant, in the first instance, to construe the record evidence to determine whether any other evidence may support an award, we adopt the magistrate's findings of fact but reject the magistrate's application of the law to the facts of this case, including the magistrate's recommended disposition of this case. Instead, we issue a limited writ of mandamus ordering the Industrial Commission of Ohio to vacate its order granting Wilson compensation for impairment of earning capacity under former R.C. 4123.57(A), and to issue a new order, either granting or denying the requested compensation and citing the evidence on which the commission relies.
Objection sustained to the extent indicated; limited writ granted.
TYACK and LAZARUS, JJ., concur.
APPENDIX A
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
State of Ohio ex rel. Borden, Inc., Relator, v. Louis Wilson and Industrial Commissi
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