State ex rel. Ehlinger v. Industrial Commission, No. 94-2171

No. 94-2171 | Ohio | Aug 21, 1996

Per Curiam.

Claimant seeks to compel an award of permanent total disability compensation pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St. 3d 315" court="Ohio" date_filed="1994-02-16" href="https://app.midpage.ai/document/state-ex-rel-gay-v-mihm-6768756?utm_source=webapp" opinion_id="6768756">68 Ohio St.3d 315, 626 N.E.2d 666. The commission seeks to have its order upheld as is. For the reasons to follow, we find in the commission’s favor.

Medically, the commission relied on the reports of Drs. Hutchison and Gnage. The latter assessed a twenty percent permanent partial impairment and opined that the allowed conditions would permit sedentary sustained remunerative employment. As such, any alleged deficiencies in Dr. Hutchison’s report are immaterial, since Gnage’s report is “some evidence” supporting the conclusion that, medically, claimant could do sedentary work.

Examining the commission’s evaluation of claimant’s nonmedical disability factors, claimant asserts that the commission abused its discretion in characterizing claimant’s college degree as a vocational.asset. He reasons that because his degree did not generate a sedentary job, the degree does not enhance his prospects for sedentary work. We disagree.

A college degree implies an above-average level of intelligence that would facilitate the acquisition of new skills that are conducive to sedentary work. A college education also suggests a measure of commitment, hard work, and discipline that prospective employers value. The commission did not, therefore, err in viewing claimant’s education favorably.

The commission’s order acknowledges the strenuous, not sedentary, nature of claimant’s previous jobs. Claimant’s preoccupation with past experience and current skills ignores a fundamental precept — “[a] permanent total disability compensation assessment examines both claimant’s current and future, i.e., potentially developable, abilities.” State ex rel. Ewart v. Indus. Comm. (1996), 76 Ohio St. 3d 139" court="Ohio" date_filed="1996-07-24" href="https://app.midpage.ai/document/state-ex-rel-ewart-v-industrial-commission-6774421?utm_source=webapp" opinion_id="6774421">76 Ohio St.3d 139, 142, 666 N.E.2d 1125, 1128. Claimant’s prior history and present abilities do not, therefore, necessarily negate future opportunities based on new skills. This is particularly true where a claimant, as here, possesses an above-average learning capacity. Accordingly, the commission did not err in determining that reemployment/retraining was not foreclosed by claimant’s work history.

Claimant also emphasizes his advanced age. While not a vocational asset, age must not be deemed as insurmountable a barrier as the claimant urges. In State ex rel. Moss v. Indus. Comm. (1996), 75 Ohio St. 3d 414" court="Ohio" date_filed="1996-04-10" href="https://app.midpage.ai/document/state-ex-rel-moss-v-industrial-commission-6773655?utm_source=webapp" opinion_id="6773655">75 Ohio St.3d 414, 417, 662 N.E.2d 364, 366, we wrote:

“Age must instead be considered on a case-by-case basis. To effectively do so, the commission must deem any presumptions about age rebuttable. Equally important, age must never be viewed in isolation. A college degree, for example, can do much to ameliorate the effects of advanced age.

“Pass [State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St. 3d 373" court="Ohio" date_filed="1996-01-24" href="https://app.midpage.ai/document/state-ex-rel-pass-v-cst-extraction-co-6772736?utm_source=webapp" opinion_id="6772736">74 Ohio St.3d 373, 658 N.E.2d 1055], DeZarn [State ex rel. DeZarn v. Indus. Comm. (1996), 74 Ohio St. 3d 461" court="Ohio" date_filed="1996-02-07" href="https://app.midpage.ai/document/state-ex-rel-dezarn-v-industrial-commission-6772760?utm_source=webapp" opinion_id="6772760">74 Ohio St.3d 461, 659 N.E.2d 1259] and Bryant [State ex rel. Bryant v. Indus. Comm. (1996), 74 Ohio St. 3d 458" court="Ohio" date_filed="1996-02-07" href="https://app.midpage.ai/document/state-ex-rel-bryant-v-industrial-commission-6772758?utm_source=webapp" opinion_id="6772758">74 Ohio St.3d 458, 659 N.E.2d 1256] support these propositions. Collectively, these cases establish that there is not an age — ever—at which reemployment is held to be a virtual impossibility as a matter of law. Certainly, it would be remiss to ignore the limitations that age can place on efforts to secure other employment. However, limitation should never automatically translate into prohibition.

“Each claimant is different, with different levels of motivation, initiative and resourcefulness. The claimant in Bryant is an excellent example of a claimant who was motivated to work well beyond retirement age and was resourceful enough to find a job that valued the experience that his advanced age brought.

“This underscores the commission’s responsibility to affirmatively address the age factor. It is not enough for the commission to just acknowledge claimant’s age. It must discuss age in conjunction with the other aspects of the claimant’s individual profile that may lessen or magnify age’s effects.

“In this case, the commission recognized the impediments that claimant’s age imposed on her ability to obtain other work. The commission, however, did not find these limitations to be a complete bar to reemployment. Given claimant’s relatively low level of impairment, the commission reasoned that, with the claimant’s ability to read, write, and do math, sedentary work was not absolutely precluded. This conclusion was within the commission’s prerogative as the exclusive evaluator of disability, and we will not substitute our judgment for that of the commission. * * * ”

In this case, the commission found that claimant’s low degree of impairment, coupled with his high level of education, offset the effect of claimant’s advanced age and nonsedentary work history. We do not find that this conclusion constitutes an abuse of discretion.

Claimant lastly accuses the commission of failing to “affirmatively consider” the report of vocational consultant Michael L. Fink. The commission’s order, however, reflects its consideration of his reports. Contrary to claimant’s representation, the commission is not required to accept the conclusion of a vocational or rehabilitation report, since to do so “makes the rehabilitation division, not the commission, the ultimate evaluator of disability * * *.” State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92, 94, 609 N.E.2d 164, 166.

The commission’s freedom to accept or reject a vocational report is particularly important in a case such as this. The Fink reports, dated 1981 and 1988, were not based on personal evaluations but were instead based on telephone and personal conversations. No recent medical reports were reviewed in the 1988 Fink report, nor was any vocational or aptitude testing performed. Fink conceded that claimant had the mental and educational capacity for work and based his conclusion of permanent total disability compensation, in large part, on claimant’s inability to travel to and from a job. The commission did not abuse its discretion in rejecting these reports.

Based upon these factors, the judgment of the court of appeals is hereby reversed.

Judgment reversed.

Moyer, C.J., Pfeifer, Cook and Stratton, JJ., concur. Douglas, Resnick and F.E. Sweeney, JJ., dissent and would affirm the judgment of the court of appeals.