Lead Opinion
Essentially, appellant raises two questions herein.
As to the evidence supporting the commission’s finding and order, appellant argues that Dr. Kackley’s admission in his answers to interrogatories that he did not consider the factors of age, еducation and work history in making his impairment evaluation is not evidence supporting a want of permanent and totаl disability because disability must be con
As to the commission’s failure to refer to the evaluation of the vocational rehabilitation consultant, that evaluation may be accepted or rejected as the commission deems appropriate because the determination of extent of disability is the function of the commission. See Dallas, supra. Moreover, the standard by which the commission must be guided in determining whether a claimant is permanently and totally disabled is whether he is “unfit for sustained remunerative employment.” See State, ex rel. Jennings, v. Indus. Comm. (1982),
For reasons of the foregoing, the judgment of the court of appeals, denying the writ of mandamus, is hereby affirmed.
Judgment affirmed.
Notes
Appellant sets forth a proposition, nеither raised nor argued below, asserting want of procedural due process.
Dissenting Opinion
dissenting. Because I believe the Industrial Commission abused its discretion by denying appellant’s application for permanent total disability benefits, I dissent.
The сourt of appeals held that the commission’s denial of benefits was supported by competent evidencе, specifically the medical reports of Drs.
Any meaningful determination of a claimant’s fitness for sustained remunerative employment should consider “the whole person”; i.e., such determination should address claimant’s injury and his work experience, level of education and age, when relevant. Appellant, at the time of his aрplication for permanent total disability benefits, was sixty-five, had worked a substantial portion of his life as a truckdriver, and had a ninth grade education. These factors are highly relevant to a determination of whether appellаnt is fit for “sustained remunerative employment.”
The only medical reports before the commission which considered appellant’s age, education, and work history in evaluating his fitness for sustained remunerative employment are thosе of Dr. Reynolds and Dr. Davies. Reynolds states that “[considering his [appellant’s] age and his impairment and the fact that he hаs worked as a truck driver it is doubtful whether this man will ever be returned to any gainful employment.” Davies states that “based upon the allowed conditions and the acceptance of the objective findings of the examining physicians, the claimant may be PTD due to his age, education and physical condition.” Further, the vocational consultant’s report indiсates strongly that the only jobs for which appellant would be qualified require either more education than claimаnt has or more exertion that he can handle. This, coupled with appellant’s age and the competition for such jobs, renders him unfit for sustained employment.
Thus, there is no evidence upon which the commission could have reasоnably based its order denying appellant’s application for permanent total disability benefits. There is substantial, credible and competent evidence that claimant is permanently and totally disabled based on the combinаtion of his allowed conditions and the vocational factors outlined above. Where there is no evidencе upon which the Industrial Commission could have based its factual conclusion, it abuses its discretion, and a writ of mandamus will be grаnted. State, ex rel. Kramer, v. Indus. Comm. (1979),
Concurrence Opinion
concurring. I concur in today’s decision because it reaffirms this court’s recognition that the commission, not outside “experts,” has the responsibility for determining disability. Factors such as age, education and work history may certainly be considered by the commission but should not provide the basis for usurping the role of the commission in determining disability.