concurring separately. I concur in the majority’s conclusion that the Industrial Commission abused its discretion. However,, because I believe we should not create a new test for determining whether the Industrial Commission has abused its discretion in issuing permanent total disability orders, I dissent from the syllabus and the language in the opinion supporting the syllabus.
Unquestionably, the commission’s order failed to properly apply the factors enunciated in State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, to the evidence in the record. When the Stephenson factors are combined with even the one medical report herein indicating claimant is less than permanently and totally disabled, there is not some evidence to support the commission’s order.
The court of appeals correctly observed that the commission’s order does not contain an adequate explanation of how the nonmedical disability factors justify the commission’s conclusion that the claimant is not permanently and totally disabled, as required by State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.
Rather than decide this case on the some evidence rule, which is currently and has been intermittently the standard announced by this court, the majority opinion introduces a new standard for the review of permanent total disability orders. The majority says that: “[Wjhere the facts of the case indicate that there is a substantial likelihood that the claimant is permanently and totally disabled, courts are not and will not be precluded from ordering the Industrial Commission, in a mandamus action, to award permanent total disability benefits notwithstanding the so-called ‘some evidence’ rule.” Our frustration with the commission’s inability to follow Noll and Stephenson in some percentage of its cases, in my opinion, does not warrant the creation of a new rule of appellate review. What does “substantial likelihood” mean — are we rejecting the some evidence rule? Which standard is to be applied by the court of appeals and by this court? How do the standards relate to each other?
The some evidence rule works. The court of appeals applied it and produced the correct result in this case. If we affirm the court of appeals, it will receive clear direction from this court that it may enter a similar decision in subsequent cases where such a decision is appropriate.
For the foregoing reasons, I would affirm the judgment of the court of appeals for the reasons stated in its opinion.
Wright, J., concurs in the foregoing concurring opinion.