State ex rel. Lopez v. Interstate Rd. Mgt. Corp.
2021 Ohio 2082
| Ohio Ct. App. | 2021Background
- George G. Lopez suffered allowed work injuries in 2003 and 2008 (multiple orthopedic and spinal conditions) and stopped working after the 2008 injury.
- He received temporary total disability through June 6, 2017, and then applied for permanent total disability (PTD) beginning June 7, 2011.
- Treating providers (Drs. Thaxton and Andreshak) found MMI and opined Lopez was not a candidate for vocational rehabilitation and unable to engage in sustained remunerative employment; Dr. Andreshak characterized him as permanently and totally disabled.
- The commission’s examiner, Dr. Borrillo, found MMI but assessed a 35% whole-person impairment and residual capacity for sedentary work (occasional up to 10 lbs., able to sit constantly, no work above shoulder height).
- A vocational evaluator (Savage Veh) concluded Lopez’s limited education, near‑illiteracy, age, chronic pain, and lack of transferable skills precluded sustained remunerative employment.
- The staff hearing officer (SHO) denied PTD, crediting Dr. Borrillo and noting Lopez’s work/supervisory history, bilingualism, and self-report that he can read/write; the commission denied reconsideration and Lopez filed this mandamus action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the commission failed to address claimant's low literacy and its effect on vocational rehabilitation and PTD | Lopez: SHO ignored evidence he reads at or below first-grade level and must consider illiteracy when assessing employability/rehabilitation | Commission: SHO considered literacy; claimant self‑reported ability to read/write and was bilingual; work history supports retraining for sedentary work | Denied—SHO addressed literacy, distinguished Hall, and cited evidence supporting retrainability |
| Whether the commission erred by considering claimant's failure to pursue vocational rehabilitation given medical/vocational evidence that he is not a viable candidate | Lopez: Treating doctors and vocational testing show he is not a candidate for rehabilitation, so nonparticipation cannot be held against him | Commission: It may expect claimants to attempt reasonable return-to-work efforts; commission may credit medical examiner (Dr. Borrillo) finding claimant medically able to do sedentary work | Denied—commission permissibly credited Dr. Borrillo over treating physicians and could consider lack of rehabilitation efforts |
| Standard of review and appropriateness of mandamus relief | Lopez: Argued commission order was unsupported | Commission: Order is supported by some evidence and is shielded by commission’s fact‑finding authority | Denied—mandamus relief unavailable because commission’s decision is supported by some evidence and credibility/weight are for the commission |
Key Cases Cited
- State ex rel. Vonderheide v. Multi-Color Corp., 156 Ohio St.3d 403 (2019) (reaffirming that a commission order supported by some evidence must be upheld despite contrary evidence)
- State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (1996) (explaining the some-evidence standard for commission orders)
- State ex rel. Hall v. Indus. Comm., 80 Ohio St.3d 289 (1997) (illiteracy is a nonmedical factor the commission must consider in PTD analysis where illiteracy is established)
- State ex rel. Wilson v. Indus. Comm., 80 Ohio St.3d 250 (1997) (PTD is last-resort compensation; claimants are expected to participate in return-to-work efforts absent extenuating circumstances)
- State ex rel. Lacroix v. Indus. Comm., 144 Ohio St.3d 17 (2015) (commission has discretion to accept or reject vocational evidence)
- State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991) (commission must specify evidence relied upon and briefly explain reasoning)
- State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967) (mandamus requires clear right, clear duty, and lack of adequate remedy)