State ex rel. Berry v. Industrial Commission

Clifford F. Brown, J.,

concurring. The key phrase in the majority opinion, in which I wholeheartedly concur, states that “the commission elected to premise its decision upon the applicability of IC-5-10, and not upon .the existence of protective eyewear.” The commission could have stated merely that its decision was based on “the evidence in the file and/or the evidence adduced at hearing.” Such a statement would presumably include the issue of protective eyewear availability, and some evidence of the existence of the eyewear does exist in the record. It is quite likely, therefore, that this court, confronted with the standard boiler-plate “explanation,” would have concluded that some evidence in support of the decision existed.

However, the commission framed its decision in a manner which revealed its faulty legal basis. In choosing to go beyond the usual slogans which typically hide the reasoning behind its decisions, the commission cannot avail itself of the “some evidence” shibboleth in this case.

The use of such boiler-plate language by the commission is habitual. In State, ex rel. Norman, v. Indus. Comm. (1982), 1 Ohio St. 3d 263, 263-264, “* * * the commission denied relator’s application, predicating its decision ‘on the report of Dr. Reynolds, evidence in the file and evidence adduced at the hearing.’ ” In State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St. 3d 101, “ At the request of the commission, relator was examined by Dr. William J. McCloud, who submitted a report concluding that relator was not permanently and totally disabled. Thereafter, relator was granted leave to depose Dr. McCloud * * *.

“Based on the foregoing, the reports of Drs. Gosman and Williams, the hearing examiner recommended the relator be found permanently and totally disabled. On October 22, 1981, the commission denied relator’s application based on ‘the evidence in the file and/or the evidence adduced at the hearing. ’ ” (Emphasis added.)

In State, ex rel. Hughes, v. Indus. Comm. (1982), 1 Ohio St. 3d 57, 58, the *197facts were as follows: “On October 2, 1980, the commission denied appellant’s motion for permanent and total disability, basing its decision on the reports of Drs. Bolz, Praul, McCloud, ‘the evidence on file and the evidence adduced at the hearing.’ ” (Emphasis added.) In State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St. 2d 396, 397 [23 O.O.3d 358], “The commission’s order was based on ‘the medical reports of Drs. Turton and McCloud, evidence in the file and evidence adduced at the hearing. ’ ” (Emphasis added.) In State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165, 166 [22 O.O.3d 400], “The commission based its findings on the medical reports of Drs. Kessler, Giray, McCloud and Horwitz, ‘and the evidence in the file and/or the evidence adduced at the hearing. ’ ” (Emphasis added.) The commission demonstrates a remarkable ability to invent variations on a basic theme.

In State, ex rel. Cox, v. Indus. Comm. (1981), 67 Ohio St. 2d 235 [21 O.O.3d 147], a case also involving a claim of injury from a violation of a specific safety requirement, the hearing officer’s decision was reviewed by the commission and approved without any written explanation. Claimant’s application was summarily denied. The court of appeals, on review, pointed out the vagueness surrounding the grounds for such a decision, as quoted supra, at page 242: “ ‘Upon review of the record, this court cannot properly ascertain the basis of the holding by the staff hearing officer nor can we understand the facts concerning relator’s injury.’ ” As Justice Holmes aptly noted, “If the Court of Appeals could not from the record properly ascertain the basis of the holding of the staff hearing officer, the question is reasonably posed as to how the Industrial Commission could have so ascertained the basis of the order.” Id.

These examples of Industrial Commission decisions studded with cliches or worse were gleaned from only those cases decided by this court since 1981. Over this same span, I have rallied against the meaningless rubber-stamp standard of review used by this court, the so-called “some evidence rule.” See, e.g. State, ex rel. Kilburn, v. Indus. Comm. (1982), 1 Ohio St. 3d 103, 106; State, ex rel. Questor Corp., v. Indus. Comm. (1982), 70 Ohio St. 2d 240, 242 [24 O.O.3d 334]; State, ex rel. Allerton, v. Indus. Comm., supra, at pages 399-400; State, ex rel. Ohio Precision Castings, v. Bohman (1982), 69 Ohio St. 2d 391, 395 [23 O.O.3d 256]; State, ex rel. Teece, v. Indies. Comm., supra, at pages 170-174; State, ex rel. Peeples, v. Farley Paving (1981), 66 Ohio St. 2d 106, 109 [20 O.O.3d 96]; State, ex rel. Manley, v. Indus. Comm. (1981), 66 Ohio St. 2d 40, 43 [20 O.O.3d 25].

I am now convinced that regardless of the standard of review applied by this court, justice cannot be achieved for claimants before the Industrial Commission without enforcing some specificity in the opinions of that body. Sloganeering such as “based on the evidence in the file and/or adduced at hearing” effectively frustrates the review process, whatever level of scrutiny is applied.

The courts considering workers’ compensation claims require some explanation for the actions of the commission beyond the meaningless boiler*198plate platitudes currently in use, given the significant development of the law in this area. For example, when allegations of violations of specific safety requirements are at issue, the commission must consider not only whether the events alleged did occur, but whether the employer, the employee and the condition are covered by the regulation. See, e.g., the instant action, and State, ex rel. Kilburn, v. Indus. Comm., supra. Specification of the grounds for decision allows reviewing courts to evaluate the decision’s correctness.

When medical reports are involved, extensive rules exist concerning the reliability of such reports. See, e.g., State, ex rel. Norman, v. Indus. Comm., supra; State, ex rel. Hughes, v. Indus. Comm., supra; State, ex rel. Anderson, v. Indus. Comm. (1980), 62 Ohio St. 2d 166 [16 O.O.3d 199]; State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St. 2d 55, 59 [11 O.O.3d 216]. Without some explanation, the commission’s use of unreliable reports is effectively unreviewable.

Moreover, R.C. 4123.519 distinguishes decisions as to extent of disability, which are subject to an action in mandamus, from other, appealable decisions of the commission. State, ex rel. Bosch, v. Indus. Comm. (1982), 1 Ohio St. 3d 94; State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St. 2d 278 [71 O.O.2d 255]. Some specification of the reasoning of the commission would aid in the classification of the decision for purposes of appealability.

Given the ever increasing body of workers’ compensation law, I strongly urge the establishment of some standards to guide the commission when drafting its opinions, so that reviewing courts may be assured that the specific grounds relied upon are discernible. I would require the commission in all cases to specify the reports or findings in the file it relied upon and why such reliance was appropriate. Otherwise, we will be left, as we are now, to grope in the dark, relying on the barest assurance that the decisions of the commission are in accordance with law.