The State ex rel. Nicholson, Appellant, v. Copperweld Steel Company; Industrial 1 Commission of Ohio, Appellee. 2 [Cite as State ex rel. Nicholson v. Copperweld Steel Co . (1996), ____ Ohio St.3d 3 _____.] 4 Workers’ compensation -- R.C. 4123.60 affords dependents, upon timely 5 application, the right to claim compensation for which a decedent 6 was eligible but was not paid bef ore death -- Mandamus available to 7 enforce this right -- Industr ial Commission’s order denying 8 application for compensation an abuse of discretion when 9 requirements of Noll not met. 10 (No. 94-2352 -- Submitted September 24, 1996 -- Decided December 18, 1996.) 11 A PPEALfrom the Court of Appeals for Franklin County, No. 93APD08- 12 1091. 13 Appellant, Marian Nicholson, seek s a writ of mandamus (1) to vacate 14 appellee Industrial Commission of Ohio’s de nial of her “Application for Payment 15 of Compensation Accrued at Time of Death,” and (2) to award her the permanent 16 total disability compensation (“PTD”) she claims her husband should have 17 received prior to his death. 18 Marian’s husband, Charles Nicholson, was injured in 1973 and again in 19 1974 while working for Copperweld Steel Company. His workers’ compensation 202 claims were recognized for “right foot ” and “contusion and ecchymosis of left 1 buttock, strain of left sacroiliac, aggravation of pre-existing arthritis of the lumbar 2 spine, spondylolisthesis at L5/S1 and central bulging discs at L4/5, L5/S1.” In 3 July 1990, Charles applied for PTD. His physician, Dr. Martin J. Lohne, reported 4 that Charles was “100% disabled” due to his back injury. A commission 5 specialist, Dr. David M. Baroff, reported Charles had a twenty-five percent 6 permanent partial impairment based on th e allowed back condition, but concurred 7 that Charles was unfit for sustained rem unerative employment. Charles died on 8 February 18, 1992, before any disposition of his PTD application. 9 On April 13, 1992, Marian applied, as Charles’s dependent, for the 10 compensation Charles could have receive d prior to his death. The commission 11 denied her application in February1993, finding that Charles had been 12 permanently and totally disabled when he di ed, but not due to either of his allowed 13 conditions. The commission explained: 14 “The reports of Doctors Lohne, Baroff and McCloud were reviewed and 15 evaluated. This order is based partic ularly upon the report of Doctor McCloud. 16 “The medical evidence found persuasi ve includes the report of Commission 17 orthopedist Dr. McCloud. The report, whic h consists of a review of both allowed 183 claim files subsequent to the claimant’s death, finds a 30% permanent partial 1 impairment due to the claimant’s allo wed conditions and opines these conditions 2 did not render the claimant permanently to tally impaired. It is noted that the 3 claimant’s course of treatment for his allowed conditions was exclusively 4 conservative in nature. The report of Commission specialist Dr. Baroff, which 5 finds only a 25% permanent partial impairment but opines the claimant is 6 permanently disabled from any work, is found unpersuasive in that it is not 7 supported by objective medical evidence on file. Medical evidence on file 8 indicates at the time of his death the clai mant suffered from a seizure disorder and 9 arthritis in both knees. The death certifi cate indicates the claimant’s immediate 10 cause of death was cardiac arrest, w ith meningeal sarcoma and coronary 11 a[r]teriosclerotic heart disease listed as contributing causes. Therefore, while the 12 Commission finds the claimant to have beenincapable of gainful employment at 13 his date of death, it is determined that the claimant’s inability to work was not 14 causally related to the allowed conditions inthe claim files. This finding is based 15 on a consideration of Dr. McCloud’s report, the claimant’s conservative course of 16 treatment, the claimant’s adva nced age of 68 at his date of death, and his serious 17 non-work related medical conditions. Accordingly, the IC-2 filed 7/17/90 184 [Charles’s application] and the C-6 f iled 4/13/92 [Marian’s application] are 1 denied.” 2 Marian then filed her complaint in mandamus in the Court of Appeals for 3 Franklin County. She argued that the allowed conditions and Charles’s other 4 vocational characteristics had made him unfit for sustained remunerative 5 employment and, therefore, that the commission had abused its discretion by 6 denying her payment for the PTD Charles s hould have received prior to his death. 7 A referee recommended denial of the writ without reaching Charles’s PTD 8 eligibility. The referee concluded that Charles’s claim had abated upon his death 9 and that Marian had no legal right, under R.C. 4123.60, to pursue payment for his 10 PTD by an action in mandamus. The court of appeals agreed, adopted the 11 referee’s reasoning, and denied the writ. 12 The cause is before this court upon an appeal as of right. 13 Jurus Law Offices and Michael J. Muldoon , for appellant. 14 Betty D. Montgomery, Attorney General, and Charles Zamora, Assistant 15 Attorney General, for appellee. 16 Per Curiam . Two questions are presented for our review: (1) Is mandamus 17 available to compel payment, pursuant to R.C. 4123.60, to a decedent’s spouse of 185 the PTD the decedent could have received prior to his death? and (2) Did the 1 commission abuse its discretion in finding that Charles was not entitled to PTD 2 and denying Marian the payments available under R.C. 4123.60? For the reasons 3 that follow, we hold that R.C. 4123.60 affords dependents, upon timely 4 application, the right to claim compensa tion for which a decedent was eligible but 5 was not paid before death and that mandamu s is available to enforce this right. 6 We further hold that the commission’s or der is not sufficiently specific under State 7 ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St . 3d 203, 567 N.E.2d 245, and, 8 therefore, constitutes an abuse of discreti on. Accordingly, we reverse and return 9 this cause to the commission for further consideration and an amended order. 10 R.C. 4123.60 11 Marian applied for payment of co mpensation for which Charles qualified 12 before he died pursuant to R.C. 4123.60, which provided, in part: 13 “In all cases of death from causes other than the injury or occupational 14 disease for which award had theretofore been made on account of temporary, or 15 permanent partial, or total disability, inwhich there remains an unpaid balance, 16 representing payments accrued and due to th e decedent at the time of his death, the 17 commission may, after satisfactory proof ha s been made warranting such action, 186 award or pay any unpaid balance of such award to such of the dependents of the 1 decedent, or for services rendered on accountof the last illness or death of such 2 decedent, as the commission determines in accordance with the circumstances in 3 each such case. If the decedent would have been lawfully entitled to have made 4 application for an award at the time of his death the commission may, after 5 satisfactory proof to warrant an award and payment, award and pay an amount, 6 not exceeding the compensation which the decedent might have received, but for 7 his death, for the period prior to the date of his death, to such of the dependents of 8 the decedent, or for services rendered on account of the last illness or death of 9 such decedent, as the commission determines in accordance with the 10 circumstances of each case, but such payments may be made only in cases in 11 which application for compensation was made in the manner required by sections 12 4123.01 to 4123.94 of the Revised Code, during the lifetime of such injured or 13 disabled person, or within one year after the death of such injured or disabled 14 person.” (Emphasis added.) (136 Ohio Laws, Part I, 1075, 1169-1170.) 15 The court of appeals concluded thatCharles’s PTD claim abated upon his 16 death, which is true under State ex rel. Hamlin v. Indus. Comm. (1993), 68 Ohio 17 St.3d 21, 22, 623 N.E.2d 35, 36. The court further held that his surviving spouse 187 had no right under R.C. 4123.60 to “step into * * * [his] shoes” for the purpose of 1 pursuing his claim, and this is also true. State ex rel. Manns v. Indus. Comm . 2 (1988), 39 Ohio St.3d 188, 529 N.E.2d 1379, paragraph three of the syllabus 3 (where deceased claimant was paid lump-sum advan ce for anticipated future 4 compensation, advance was not “accrued compensation” to which dependents may 5 be entitled under R.C. 4123.60, and a surviving spouse cannot pursue the 6 decedent’s claim for the a dvance). The commission urge s us to affirm for the 7

same reasons. 8 We, however, read the emphasized language of R.C. 4123.60 to expressly 9 authorize a deceased worker’s dependents’ receipt of compensation for which the 10 worker qualified and should have received be fore death. Indeed , we have already 11 said that where a deceasedworker’s dependents’ claims accrued compensation 12 under R.C. 4123.60, “[t]he award is not personal to the worker because R.C. 13 4123.60 specifically provides that depende nts may recover the compensation the 14 deceased worker was entitled to receive.” State ex rel. Nyitray v. Indus. Comm . 15 (1983), 2 Ohio St.3d 173, 177, 2 OBR 715, 719, 443 N.E.2d 962, 966, fn. 5. For 16 this reason, an R.C. 4123.60 award is similar to a death benefit award under R.C. 17 4123.59 -- both exist separate and apart fro m the rights of the injured worker. 188 Nyitrayat 174, 2 OBR at 716, 443 N.E.2d at 963; Manns , 39 Ohio St.3d at 190, 1 529 N.E.2d at 1381. 2 Thus, contrary to the court of appeals’ decision, Marian is not attempting to 3 pursue Charles’s PTD claim, which he filed pursuant to R.C. 4123.58, on his 4 behalf. Rather, when Marian filed her application for accrued compensation, she 5 instituted her own claim for compensation Charles could have received, a claim 6 that is expressly sanctioned by R.C. 4123.60. As a result, Marian’s claim was not 7 abated by Charles’s death -- her interest s actually arose at that time and, under 8 R.C. 4123.60, they became i ndependently actionable. Nyitrayat 174, 2 OBR at 9 716, 443 N.E.2d at 963. 10 The court of appeals also conc luded that R.C. 4123.60 requires the 11 commission to decide a dependent’s app lication for accrued compensation, but 12 stops short of authorizing a dependent’s suit in mandamus if the application is 13 denied. The court came to this conclu sion because R.C. 4123.60 does not identify 14 mandamus as an avenue for challenging the commission’s denial of compensation 15 and because the statute states that th e commission “may” compensate dependents 16 of deceased workers, connoting a discretionary decision. Neither consideration, 179 however, justifies the appellate court’s refusal to recognize Marian’s claim as 1 actionable in mandamus. 2 The court of appeals cited State ex rel. Yurcsisin v. Indus. Comm. (1944), 3 142 Ohio St. 479, 27 O.O. 408, 52 N.E.2d 991, which noted the discretionary 4 language of the predecessor to R.C. 4123. 60, but did not deny mandamus on that 5 basis alone. The Yurcsisin court instead held that a widow had failed to prove 6 claimed compensation was “accrued and due” under the first sentence of the 7 statute. This holding does not bar mandamus where such proof exists. 8 Furthermore, in Nyitray we granted mandamus to remedy the denial of equal 9 protection represented by former R.C. 4123.60. At that time, R.C. 4123.60 denied 10 accrued compensation to dependents of work ers who died of industrial injury or 11 occupational disease, but allowed co mpensation for qualifying dependents of 12 workers who died of other causes. We held that no rational basis justified a 13 distinction based on cause of death and gran ted the writ. By affording this relief, 14 we effectively ordered the commission to award any compensation for which the 15 surviving spouse in that case qualified. Thus, R.C. 4123.60 is enforceable through 16 mandamus. 17 PTD Denial 1810 In reviewing the PTD application of a claimant who is only permanently 1 partially impaired due to industrial injury, the commission must consider the 2 claimant’s age, work experience, education, or other relevant nonmedical or 3 vocational characteristics, as required by State ex rel. Stephenson v. Indus. Comm . 4 (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, and determine whether 5 the claimant is nevertheless foreclosed from sustained remunerative employment. 6 State, ex rel. Hopkins v. Indus. Comm . (1994), 70 Ohio St.3d 36, 38,635 N.E.2d 7 1257, 1259; State ex rel. Lawrence v. Am. Lubricants Co (1988), 40 Ohio St.3d 8 321, 322, 533 N.E.2d 344, 345-346; State ex rel. Hartung v. Columbus (1990), 53 9 Ohio St.3d 257, 258, 560 N.E.2d 196, 198. And, for all its determinations, Noll, 10 supra , requires the commission “to prepare orders that ‘are fact-specific and which 11 contain reasons explaining its decisions. * * * Such order[s] must specifically state 12 what evidence has been relied upon to reach its conclusion and, most important, 13 briefly explain the basis of its decision.’” State ex rel. Pass v. C.S.T. Extraction 14 Co. (1996), 74 Ohio St.3d 373, 375, 658 N.E.2d 1055, 1057, quoting Noll , 57 15 Ohio St.3d at 206, 567 N.E.2d at 249. The commission’s failure to specify and 16 explain the impact of the Stephenson factors, in accordance with Noll , is an abuse 1711 of discretion for which mandamus is the remedy. State ex rel. Ranomer v. Indus. 1 Comm . (1994), 71 Ohio St.3d 134, 137, 642 N.E.2d 373, 376. 2 Marian argues that the commission did not sufficiently account for the 3 Stephenson factors when it denied her application for compensation that had 4 accrued to Charles before he died. We agree. 5 Charles was approximately seventy- years old and a nursing-home resident 6 when he died. He had a seventh-grade education and had been employed as a 7 railroad brakeman and steel mill laborer. He had not worked since his injury in 8 1974, and he appeared to have no rehabilitation potential. 9 The commission noted Charles’s age in its order but no other nonmedical 10 characteristics. It instead relied completely on Dr. McCloud’s October 1992 11 report, which, except for one or two conclu sions, reads as if he were determining 12 Charles’s cause of death for a death-benefit claim, rather than Charles’s fitness for 13 sustained remunerative employment on his application for PTD. The report stated: 14 “H ISTORY 15 “Injured 4-30-74 16 “1) 562043-22 is allowed for right foot # 2) 73-41359 is allowed for 17 contusions and ecchymosis of left buttock, st rain of left sacroiliac, aggravation of 1812 pre-existing arthritis of lumbar spine and spondylolisthesis at L5-S1 with disc 1 bulging at L4-5 and L5-S1. He was a general laborer for the Copperweld Steel 2 Company. 3 “I was asked to review the industrial records to help determine if there was 4 medical evidence consistent with consider ing this claimant unable to perform any 5 sustained work activity. It is important to note that at the time of his death his 6 back injury was some 19 years old and his foot injury was some 18 years old. His 7 treatment in regard to each of these probl ems was conservative in nature and I did 8 review a variety of clini cal notes from Dr. Burrows [ sic , Baroff]. The charts are 9 quite thick but there is nothing in the ch art that would indicate any specific or 10 radical changes that occurred through his clinical course as the conservative 11 treatment and various conservative modalities were continued throughout his 12 clinical history in regard to these claims. The claimant did die on February 18, 13 1992 and I did review the death certificate as prepared by the coroner. The 14 primary cause of death was listed as a cardi ac arrest with a contributing factor of 15 meningeal sarcoma. Further, the claimant was felt to have arterial sclerotic heart 16 disease as a contribu ting factor as well. 1713 “In summary, this individual died as a result of cardiac arrest and the 1 precipitating factor as well as the contri buting factors [was] described on the death 2 certificate by the coroner. Neither the primary factor in relation to his death nor 3 the contributing factors in any fashion can be related to the conditions permitted to 4 be a portion of either of these two clai ms. Therefore, review of the medical 5 information in the record would indicate th at this claimant cannot be considered 6 permanently and totally impaired base d upon the conditions permitted to be a 7 portion of either claim. 8 “* * * 9 “562043-22 = 0% [Percentage of impairment] 10 “73-41359 = 30% [Percentage of impairment].” 11 To receive PTD, Marian must dem onstrate not only Charles’s inability to 12 perform sustained remunerative employment, but also that the inability is causally 13 related to the allowed conditions. State ex rel. LTV Steel Co. v. Indus. Comm . 14 (1992), 65 Ohio St.3d 22, 23, 599 N.E.2d 265, 267. “Permanent total disability 15 cannot be based, wholly or partially, on nonallowed medical conditions.” State ex 16 rel. Erico Products, Inc. v. Indus Comm. (1994), 70 Ohio St.3d 661, 663, 640 17 N.E.2d 824, 826, citing State ex rel. Fields v. Indus. Comm. (1993), 66 Ohio St.3d 1814 437, 613 N.E.2d 230. However, “[t]he presence of debilitating nonallowed 1 conditions * * * does not preclude permanen t total disability compensation so long 2 as the allowed conditions * * * independently [or together with nonmedical 3 disability factors, LTV Steelat 24, 599 N.E.2d at 267] prevent sustained 4 remunerative employment.” Erico at 663, 640 N.E.2d at 826, citing State ex rel. 5 Waddle v. Indus. Comm . (1993), 67 Ohio St.3d 452, 619 N.E.2d 1018. 6 Only the total absence of impairment attributable to allowed conditions 7 eliminates the commission’s obligation to consider nonmedical factors recognized 8 inStephenson . In that situation, “there is no allowable impairment with which the 9 nonmedical factors could conceivably co mbine to produce [a finding that the 10 claimant was unfit for sustained remunerative employment].” Erico at 663, 640 11 N.E.2d at 826 . Here, the commission was persuaded that Charles was thirty12 percent impaired due to his allowed back condition, but did not finish the PTD 13 analysis. It overlooked that the combinati on of the thirty percent impairment and 14 Charles’s education, age, and work hist ory might have precluded his return to 15 work independently of his otherwise failing health. 16 The commission argues, however, that Dr. McCloud’s report was “some 17 evidence” upon which it could conclude th at Charles’s permanent and total 1815 disability was exclusively due to nonallowed conditions. The commission cites 1 LTV Steel , in which we declared it “pointless” to order an explanation of how 2 nonmedical factors justified a PTD award. LTV Steelat 25, 599 N.E.2d at 267. 3 There, medical evidence attributed perman ent and total disability exclusively to 4 nonallowed conditions and, thus, necessar ily established that the claimant’s 5 inability to work was not due to the allowed conditions. 6 LTV Steelsanctions the commission’s noncompliance with Noll where it 7 legitimately denies PTD on evidence that exclusively attributes disability to 8 nonallowed conditions. LTV Steel, 65 Ohio St.3d at 24-25, 599 N.E.2d at 267. 9 LTV Steel , however, was distinguished on this basis in Waddle, and the distinction 10 applies here for the reasons just discussed: 11 “LTV held that the presence of a totally disabling nonindustrial condition 12 negated the need for further Nollconsideration. Unlike this case, however, the 13 claimant in LTV suffered no underlying impairment whatsoever from the allowed 14 condition. There was thus no allowed condition/impairment with which the 15 Stephenson factors could conceivably combine to produce permanent total 16 disability. The present claimant clearlyhas a work-related physical impairment 17 with which the Stephenson factors could combine. 1816 “For the above reasons, the judgment of the court of appeals [granting a writ 1 of mandamus] is affirmed[,] and the cau se is returned to the commission for 2 additional consideration and and amended order consistent with Noll.” Waddle at 3 458, 619 N.E.2d at 1022-1023. 4 Accordingly, we reverse the judgment of the court of appeals as to the 5 availability of mandamus to enforce R.C. 4123.60, and issue a limited writ 6 returning the cause to the commission for compliance with the specificity 7 requirements of Nolland an amended order. 8 9 Judgment reversed and 10 limited writ granted. 11 M OYER , C.J., D OUGLAS , R ESNICK , F.E. S WEENEY , P FEIFER , C OOK and 12 S TRATTON , JJ., concur. 13 14