THE STATE EX REL. JACKSON, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 95-528
Supreme Court of Ohio
July 23, 1997
79 Ohio St.3d 266 | 1997-Ohio-152
Submittеd April 15, 1997. APPEAL from the Court of Appeals for Franklin County, No. 94APD01-81.
{¶ 1} Lane Jackson, appellant, seeks a writ of mandamus ordering appellee Industrial Commission of Ohio to vacate its denial of his application for permanent total disability compensation (“PTD“) and to grant him this relief.
{¶ 2} Jackson injured his neck and back in 1978 while working for appellеe L&W Construction, Inc. He also injured his neck, back, and shoulder in 1990 while working for appellee Mosser Construction, Inc. His two workers’ compensation claims were recognized for “acute cervical and lumbosacral contusions, ligamentous sprain and paraspinal myofascitis” and “acute cervical sprain, acute sprain and strain of left deltoid and lumbosacral, left rotator cuff tear,” respectively. He applied for PTD in 1992 based on both allowed conditions. The commission denied PTD, explaining:
“It is the finding of the Commission that this claim hаs been recognized for: Acute cervical and lumbosacral contusions, ligamentous sprain and paraspinal myofascities [sic].
“That the Commission find[s] from proof of record that the claimant is not permanently and totally disabled for the reason that the disability is not total; that
is, the claimant is able to perform sustained remunerative employment; that therefore the Permanent Total Disability Application * * * be denied. “The reports of Doctor(s) Anderson, Charms, Kaffen and McCloud, were reviewed and evaluated. The order is based particulаrly upon the reports of Doctor(s) Kaffen and McCloud, evidence in the file and/or evidence adduced at the hearing.
“Claimant is 57 years of age, has his G.E.D. and work experience as a construcitlon [sic] laborer for 23 years. Treatment has been mostly conservative. Claimant last worked less than 3 years ago. Dr. Kaffen judged claimant as a 44% impairment and capable of working within certain restrictions. Dr. McCloud judged claimant as a 45% impairment and capable of working within certain restrictions. Based on the evidence on file, it is concluded claimant is not permanently and totally disabled. Based upon a consideration of all the above factors, including claimant‘s relatively high level of education, it is concluded that claimant retains the physical and mental abilities to engage in sustained remunerative еmployment within the restrictions listed by Drs. McCloud and Kaffen. Therefore, the claimant is not permanently and totally disabled.”
{¶ 3} Jackson then sought the instant writ in the Court of Appeals for Franklin County. He argued that the commission had not explained how his permanent partial impairment, age, education, work experience, and lack of rehabilitation potential combined to permit employment, as required by State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, and State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. He also asserted his eligibility for PTD under State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. A referee found the commission‘s order sufficient and recommended denial of the writ. The court of appeals denied the writ, overruling Jackson‘s objections and adopting the referee‘s report.
Cooper, Spector & Weil and Gary M. Spector, for appellant.
Betty D. Montgomery, Attorney General, and Sandra L. Nimrick, Assistant Attorney General, for appellee Industrial Commission.
Per Curiam.
{¶ 5} This cause presents two issues for our review: (1) Did the commission adequately explain its decision in accordance with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245? and (2) Is Jackson eligible for PTD under State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666? For the reasons that follow, we hold that the commission failed to sufficiently explain how Jackson‘s age and prior work experience combined with his education to permit employment, but that Jackson has not established his permanent and total disability. Accordingly, we reverse the court of appeals’ judgment as to the commission‘s compliance with Noll, but we reject Jackson‘s claim for relief under Gay.
Noll Compliance
{¶ 6} If the commission fails to cite evidence of record showing that a claimant‘s permanent medical impairment is only partial, State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, or to adequately explain how the claimant‘s nonmedical characteristics, including age, education, experience, etc., combine with the impairment to permit sustained remunerative employment, State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946; Noll, supra, its order denying PTD is an abuse of discretion, and a writ of mandamus must issue to correct the abuse. Gay, supra; State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 658 N.E.2d 1055. But the commission is also the exclusive evaluator of evidentiary
{¶ 7} The court of appeals correctly found some evidence for the commission‘s finding that Jackson was only partially impaired due to his allowed conditions and still physically able to work with restrictions.1 While Jackson relies on his physician‘s and vocational expert‘s rеports, Dr. Jerry McCloud reported in June 1993 that Jackson was permanently but not totally impaired based on his two allowed conditions and able to work with restrictions:
“It is my opinion that the medical evidence would indicate that the claimant is capable of work activities. Hе is not capable of his 1990 employment. The changes are permanent and he has reached a level of maximum medical improvement and in [the second claim] demonstrates a permanent partial impairment of 45% related to the loss of active lumbar and cervical reserve and those changes in his left shoulder. This estimation is compatible with recommendations made in the Third Edition of the AMA Guidelines on Physical Impairment. There is 0% impairment in [the first claim]. Future requests for ongoing conservative treatment or other forms of conservative measures should not be approved as they will not be of lasting benefit to the claimant. He does have soft tissue injuries which are approaching three years of age and these will not respond in a positive fashion to ongoing or persistent conservative treatments nor significantly alter his future clinical prospects.”
“[T]he commission statеd that it considered claimant‘s age of fifty-seven, G.E.D., and work experience as a construction laborer and concluded that those factors, particularly the G.E.D., combined with the physical ability to perform some work within certain restrictions, do not prevent relator from performing sustained remunerative employment. The commission‘s explanation, although brief, suggests that the commission considered relator‘s age and education to be assets to reemployment, thereby providing adequate reasoning for the decision. See State ex rel. Murray v. Mosler Safe Co. (1993), 67 Ohio St.3d 330 [617 N.E.2d 1118].”
{¶ 9} Adopting this finding, the court of appeals stated:
“Although the commission‘s explanation of its reasoning is indeed brief, it is clear that the commission considered relator‘s ‘relatively high level of education’ as a dispositive factor in determining relator‘s employability within the restrictions listed by Dr[.] McCloud * * *. While a more detailed explаnation of the commission‘s reasoning would be preferable, we are not prepared to say that the explanation is too brief to meet the requirements of Noll, supra. Moreover, this court is not at liberty to substitute its judgment for that of the commission simply because it may disagree оn the impact of relator‘s nonmedical disability factors. State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92 [609 N.E.2d 164]. Accordingly, relator‘s objection is overruled.”
{¶ 10} Jackson complains that the commission merely reported his age and work history without meaningful discussion. He cites State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452, 458, 619 N.E.2d 1018, 1022, which recognized that “[s]pecific recitation [of nonmedical factors], without more, is only slightly better than that the old boilerplate language assailed in Noll.” Absent the requisite
{¶ 11} The commission does not defend its silence on the marketability of any skills or abilities generated by Jackson‘s prior work experience, but it insists that it treated Jackson‘s age as an employment asset and observed that he had “last worked less than [three] years ago.” The commission may have inferred from Jackson‘s recent employment that age was not an appreciable barrier for him in the job market, but this is pure speculation. Waddle disapproved of orders requiring such conjecture, admonishing the commission to “say so” if it views one or more nonmedical factors as emplоyment assets. Id., 67 Ohio St.3d at 458, 619 N.E.2d at 1022.
{¶ 12} The court of appeals concluded that the commission considered Jackson‘s G.E.D. dispositive on the issue of his ability to be rehired. Waddle and Pierce, however, hold that the commission must do more — it must also specify the extent to which age and employment history may impede or promote a claimant‘s reemployment prospects. Thus, contrary to the court of appeals’ judgment, the commission‘s order in this case is too cursory to withstand scrutiny under Noll, supra. State ex rel. Bruner v. Indus. Comm. (1997), 77 Ohio St.3d 243, 245, 673 N.E.2d 1278, 1280 (mandamus issued to require the commission to
{¶ 13} Jackson also complains that the commission did not properly credit the report of his vocational expert, citing State ex rel. Hopkins v. Indus. Comm. (1994), 70 Ohio St.3d 36, 635 N.E.2d 1257. Jackson argues, and rightly so, that Hopkins holds that the commission abuses its discretion by disregarding, as it did here, the only vocational report in the record. Id. at 40, 635 N.E.2d at 1260.
{¶ 14} Hopkins, however, is contrary to established authority that the commission, as the exclusive evaluator of disability, is not bound to accept vocational evidence, even if uncontradicted. Rather, upon a determination of claimant‘s permanent partial impairment, the commission‘s charge is to review the evidence of the claimant‘s age, education, work history, and other relevant nonmedical characteristics and to decide for itself from that evidence whether the claimant is realistically foreclosed from sustained remunerative employment. The commission may credit offered vocational evidence, but expert opinion is not critical or even necessary, because the commission is the expert on this issue. Thus, in State ex rel. Singleton v. Indus. Comm. (1994), 71 Ohio St.3d 117, 118, 642 N.E.2d 359, 361, another case in which the commission rejected the sole voсational report in the record, we explained:
“Claimant‘s challenge rests on the erroneous belief that the commission was bound by [the vocational expert‘s assessment of claimant‘s claim for permanent and total disability]. Part of the commission‘s authority to weigh and evaluate evidence, however, is the freedom to reject it as unpersuasive. Particularly as to vocational assessments, ‘[t]o bind the commission to a rehabilitation report‘s conclusion makes the rehabilitation division, not the commission, the ultimate evaluator of disability, contrary to [Stephenson, supra].’ State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92, 94, 609 N.E.2d 164, 166.”
Gay Relief
{¶ 16} State ex rel. Gay v. Mihm, supra, permits a reviewing court to award PTD where the commission has failed to comply with the specificity requirements of Noll, supra, and the record shows that a commission decision denying PTD would necessarily be an abuse of discretion. Pass, supra, 74 Ohio St.3d at 376, 658 N.E.2d at 1058. However, if the record is insufficient or the claimant‘s nonmedical factors are split between favorable and unfavorable considerations, reviewing courts should order the commission to comply with Noll regardless of whether the commission ultimately grants or denies PTD. State ex rel. Ranomer v. Indus. Comm. (1994), 71 Ohio St.3d 134, 137, 642 N.E.2d 373, 376.
{¶ 17} For the reasons already discussed, Jackson has failed to establish his eligibility for Gay relief. While the commission did not specify how Jackson‘s age and employment history combined with his medical condition and restrictions and his education to make him employable, it did assess his education level to be a marketable asset. As at least one nonmedical factor suggests Jackson‘s capacity for employment, this record does not compel the conclusion that Jackson is inevitably permanently and totally disabled.
{¶ 18} Having found that the commission did not comply with Noll, but that Jackson is not entitled to relief under Gay, we reverse the court of appeals’ judgment and grant a limited writ ordering the commission to review Jackson‘s application further and issue an amended order.
Judgment reversed and limited writ granted.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment only.
COOK and LUNDBERG STRATTON, JJ., dissent.
{¶ 19} The appropriate standard for this court‘s review is to determine whether there is “some evidence” in the record to support the stated basis for the commission‘s decision. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Because the record below contains “some evidence” in support of the commission‘s decision, I would affirm the court of appeals.
COOK, J., concurs in the foregoing dissenting opinion.