78 Ohio St. 3d 579 | Ohio | 1997
Two questions are presented for our review: (1) Did the commission comply with 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, in denying Mobley PTD? and (2) Does the record demonstrate that Mobley is permanently and totally disabled and, therefore, entitled to PTD? For the reasons that follow, we find that the commission did not sufficiently explain how Mobley’s age combined with his prior sales experience and his education to allow sustained remunerative employment; however, we also find that the court of appeals erred in rejecting Mobley’s sales experience as evidence of his employability. We further find that this record does not warrant relief on the authority of State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Accordingly, we affirm in part and reverse in part.
Noll and Stephenson Relief
Where medical evidence establishes that a claimant’s permanent impairment due to industrial injury is only partial, the commission must deny PTD unless the claimant’s age, work experience, education, or other relevant characteristics, commonly referred to as the Stephenson factors, foreclose sustained remunerative employment. State ex rel. Hopkins v. Indus. Comm. (1994), 70 Ohio St.3d 36, 39-40, 635 N.E.2d 1257, 1259; State ex rel. Lawrence v. Am. Lubricants Co. (1988), 40 Ohio St.3d 321, 322, 533 N.E.2d 344, 345-346; State ex rel. Hartung v. Columbus (1990), 53 Ohio St.3d 257, 258, 560 N.E.2d 196, 198. And, for all the commission’s determinations, Noll requires it “to prepare orders that are ‘fact-specific and which contain reasons explaining its decision. * * * Such order[s] must specifically state what evidence has been relied upon to reach its conclusion and, most important, briefly explain the basis of its decision.’ ” State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 375, 658 N.E.2d 1055, 1057, quoting Noll, 57 Ohio St.3d at 206, 567 N.E.2d at 249. The commission’s failure to specify and explain the impact of the Stephenson factors, in accordance with
The court of appeals correctly determined that the medical report of Dr. Zuelzer represented some evidence allowing the commission’s conclusion that Mobley was only permanently partially impaired and that his allowed condition did not preclude sustained remunerative employment. State ex rel. Ehlinger v. Indus. Comm. (1996), 76 Ohio St.3d 400, 402, 667 N.E.2d 1210, 1212. The court of appeals also correctly observed that the commission was therefore obligated to explain whether the combination of Mobley’s age, work experience, education, etc., permitted his employment. On this issue, the court of appeals wrote:
“The commission found that Mr. Mobley was able to obtain future employment, relying in part upon Mr. Mobley’s former employment as a salesman in a ‘locomotive firm.’ The evidence before us provides no insight as to what was involved in the sales job, so we cannot ascertain what effect the former sales job has on Mr. Mobley’s future employability. * * * [T]he absence of information left the commission equally unable to draw inferences including the inferences the commission drew that the thirty-year-old sales experience in a locomotive firm job was ‘job experience in a less physical type of occupation as well as interpersonal skills in dealing with clients.’
“The order of the commission also fails to explain to any helpful degree the effect of Mr. Mobley’s age on his employment prospects.”
In its appeal, the commission accuses the court of appeals of having second-guessed the commission’s assessment of Mobley’s prior sales experience. We agree.
The commission concluded from Mobley’s sales experience that he had acquired interpersonal communication skills, and it considered this skill an employment asset. The commission also noted that Mobley’s physical restrictions were consistent with a sales position, which it did not consider physically demanding. The court of appeals discarded this assessment, finding that (1) the only description of Mobley’s sales experience — “sales in [a] locomotive firm” — was too vague to evaluate; and (2) in any event, the experience was too long ago to be of value in the current job market.
This ruling, as the commission argues, would divest the commission of its power to interpret evidence and draw reasonable inferences. State ex rel. West v. Indus. Comm. (1996), 74 Ohio St.3d 354, 356, 658 N.E.2d 780, 782. The phrase “sales in a locomotive firm” is cryptic, but it at least conveys Mobley’s undisputed experience in sales, an occupation that is as available today as it was in the 1960s, when Mobley, then in his late thirties, apparently worked for the “locomotive firm.” Moreover, the inference that Mobley developed some communicative
Reviewing courts must not micromanage the commission as it carries out the business of compensating for industrial/occupational injuries and illness. The commission is the exclusive evaluator of evidentiary weight and disability. State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92, 94, 609 N.E.2d 164, 165. Moreover, review of a commission order in mandamus is not de novo, and courts must defer to the commission’s expertise in evaluating disability, not substitute their judgment for the commission’s. State ex rel. Pass v. C.S.T. Extraction Co., supra, 74 Ohio St.3d at 376, 658 N.E.2d at 1057-1058. Where a commission order is adequately explained and based on some evidence, even evidence that may be persuasively contradicted by other evidence of record, the order will not be disturbed as manifesting an abuse of discretion. Id.; State ex rel. Moss v. Indus. Comm. (1996), 75 Ohio St.3d 414, 417, 662 N.E.2d 364, 366; State ex rel. King v. Trimble (1996), 77 Ohio St.3d 58, 63, 671 N.E.2d 19, 23.
Here, the commission had evidence that Mobley’s allowed condition and past experience were conducive to his employment as a salesperson. The court of appeals ignored this evidence, along with the commission’s reasonable inferences, not because the evidence did not exist, but because it was not particularly convincing of Mobley’s capacity for sustained remunerative employment. Neither we nor the court of appeals can overturn commission decisions on the weight of the evidence without second-guessing the commission’s judgment. Thus, because some evidence supports the commission’s assessment of Mobley’s prior sales experience, we reverse this much of the court of appeals’ judgment.
In his cross-appeal, Mobley complains that the commission reported that he was sixty-seven at the time of the hearing, but failed to specify how age, in combination with his other Stephenson characteristics, permitted employment. We agree that the commission did not sufficiently explain its reasoning for denying Mobley PTD.
State ex rel. Moss, supra, 75 Ohio St.3d at 417, 662 N.E.2d at 366, recognized that while workers’ compensation is not payable based solely for the effects of age, a claimant’s advanced age in combination with other Stephenson characteristics may realistically foreclose employment. Thus, it is not enough for the commission to “just acknowledge” a claimant’s age. Rather, the commission must specifically “discuss age in conjunction with the other aspects of the
Here, the commission did no more than identify Mobley’s age. The court of appeals thus properly ordered the commission to give further consideration to-the motion for PTD and issue a new order.
Mobley also argues that the commission either did not consider or failed to explain the impact of his documented lack of rehabilitation potential, which he asserts is a relevant vocational characteristic under Stephenson. The commission found that Mobley could perform sustained remunerative employment on a sedentary or light-duty basis regardless of any rehabilitation efforts. Thus, this factor is not determinative on any level of Mobley’s PTD eligibility, and we cannot say that the commission abused its discretion by not discussing it.
PTD Eligibility
Having found that the commission failed to comply with Noll and Stephenson, we must decide whether to order, payment of PTD pursuant to Gay, supra, 68 Ohio St.3d 315, 626 N.E.2d 666. Gay relief requires the claimant to show that a new decision by the commission denying PTD would necessarily be an abuse of discretion. Pass, supra, 74 Ohio St.3d at 376, 658 N.E.2d at 1058. To establish this, Mobley argues that he has a significant impairment; he is now in his seventies; he has only a tenth grade education; he has no skills other than those required to be a sheet metal worker, a job he can no longer physically perform; a vocational specialist concluded that he was completely unemployable; and Dr. Fallon, whose opinion Mobley claims the commission improperly ignored, declared him permanently and totally impaired.
Mobley is not entitled to PTD under Gay for several reasons. First, he exaggerates the severity of his impairment. According to Dr. Reynolds, Mobley’s impairment was only thirty percent, and he agreed with Dr. Zuelzer about a right-arm lifting restriction. In State ex rel. Bruner v. Indus. Comm. (1997), 77 Ohio St.3d 243, 245, 673 N.E.2d 1278, 1280, in the course of denying mandamus to order PTD, we considered a similar impairment and restriction level to be “relatively low.”
Second, Dr. Fallon also estimated Mobley’s permanent partial impairment at twenty-five to thirty percent, with only a right-arm lifting restriction. In fact, Dr. Fallon suggested a permanent and total impairment only after he considered Mobley’s age, education, and lack of rehabilitation potential, factors that go to disability, not impairment. Even if these factors were not the basis for Dr.
Third, the commission disagreed with Mobley about the effect of his education and experience on his employability. It inferred from Mobley’s education that he could read, write, and do basic math. It inferred from his prior work history that he had developed marketable interpersonal communication skills and, implicitly, marketable sales ability. These favorable assessments are within the commission’s province to make, Ellis, supra, 66 Ohio St.3d at 94, 609 N.E.2d at 165, and they are incompatible with Mobley’s permanent and total disability. Moreover, as the exclusive evaluator of disability, the commission was not bound to accept an offered vocational report as to Mobley’s disability. King, supra, 77 Ohio St.3d at 63, 671 N.E.2d at 23.
Mobley’s age, therefore, is the only Stephenson factor with the potential to tip the balance in favor of a PTD award. Where, as here, a claimant’s nonmedical factors are split between favorable and potentially unfavorable considerations, the claimant’s permanent and total disability is not inevitable. Ranomer, supra, 71 Ohio St.3d at 137, 642 N.E.2d at 376. Accordingly, we order the commission to reconsider Mobley’s motion for PTD and to issue an amended order.
Judgment affirmed in part, reversed in part and limited unit granted.
