State ex rel. McComas v. Industrial Commission

Cook, J.,

dissenting. Because I believe the majority’s opinion unnecessarily enlarges the availability of Gay relief, I respectfully dissent.

*366As we stated in State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 658 N.E.2d 1055, syllabus: “Relief pursuant to State ex rel. Gay v. Mihm * * * will be granted only in extraordinary circumstances revealing an abuse of discretion.” (Citation omitted.) “Gay relief is appropriate only where the evidence compels but one conclusion.” State ex rel. Records v. Indus. Comm. (1996), 74 Ohio St.3d 256, 259, 658 N.E.2d 290, 292. Where, however, the record reveals merely conflicting evidence or omitted information, Gay relief is inappropriate. State ex rel. Consol. Freightways v. Engerer (1996), 74 Ohio St.3d 241, 247, 658 N.E.2d 278, 282.

In today’s opinion, the majority awards Gay relief not because the Industrial Commission abused its discretion in failing to award permanent total disability compensation where clearly appropriate, but because, despite repeated attempts, the commission has failed to issue an order in compliance with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.

For Gay relief to be appropriate, the only reasonable view of the evidence before the commission must demonstrate the claimant’s entitlement to permanent total disability compensation. In other words, to award Gay relief a court must affirmatively conclude that the commission’s denial of permanent total disability is not supported by “some evidence.” See State ex rel. Pass, supra, at 376, 658 N.E.2d at 1057.

Because this record demonstrates just that the commission’s order is Noll deficient, I would affirm the judgment of the court of appeals.

Moyer, C.J., and Stratton, J., concur in the foregoing dissenting opinion.