State ex rel. Roy v. Industrial Commission

[This opinion has been published in Ohio Official Reports at 

74 Ohio St.3d 259

.]




 THE STATE EX REL. ROY, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO,
                                        APPELLEE.
           [Cite as State ex rel. Roy v. Indus. Comm., 

1996-Ohio-141

.]
Workers’       compensation—Application           for   permanent       total      disability
        compensation—Industrial Commission abuses its discretion in denying
        compensation when it did not consider all allowed conditions.
    (No. 94-1180—Submitted October 24, 1995—Decided January 10, 1996.)
   APPEAL from the Court of Appeals for Franklin County No. 93APD05-731.
                                  __________________
        {¶ 1} Appellant-claimant, William D. Roy, was injured in the course of and
arising from his employment with Southern Ohio Regional Transit Authority
(“SORTA”). His claim for workers’ compensation benefits was allowed. In 1989,
he moved appellee, Industrial Commission of Ohio, for permanent total disability
compensation. Claimant’s allowed conditions at that time involved his shoulder
and lower back. Dr. James P. Duffy reported that these conditions rendered
claimant permanently and totally disabled. Dr. Dale E. Fox assessed a seventy-
five-percent permanent partial impairment and prohibited claimant from returning
to his former job. On the larger question of sustained remunerative employment he
stated that:
        “Whether he [claimant] can qualify for some other type of work would have
to be decided [,] but at his age [fifty-five] I doubt whether he would be a good
candidate for rehabilitation.”
        {¶ 2} On behalf of the commission, Dr. Wayne C. Amendt assessed a thirty-
four-percent permanent partial impairment that would permit light-duty work. Dr.
Steven S. Wunder found a fifteen percent permanent partial impairment with a
capacity for sustained remunerative employment.



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        {¶ 3} SORTA offered the report of Dr. Kenneth R. Hanington. He opined:
        “The industrial injury does prevent the claimant from returning to his former
position of employment. His condition is permanent. He has reached maximum
medical improvement. The industrial injury in and of itself does not prevent the
claimant from engaging in sustained remunerative employment of a light lifting
nature. Light lifting is defined as lifting 20 lbs. maximum with frequent lifting
and/or carrying of objects weighing up to 10 lbs. His impairment, using the AMA
guide as a reference, is rated as 25% for the whole person for his lumbar spine, 0%
of the whole person for his left hip, 12% whole person for his left shoulder injuries.
This combines to give him a total impairment rating of 34% of the whole person,
based on the AMA Guides.
        “Rehabilitation Potential: Considering the percentage of impairment, the
claimant is medically stable to participate in rehabilitation services of a light lifting
level. No new diagnostic tests are necessary. There are no medical barriers to his
return to employment. Programs that would assist the claimant’s return to gainful
employment would be pain and stress management and vocational rehabilitation.
If these programs are implemented, the claimant could return to light duty work.”
        {¶ 4} From a vocational standpoint, Anthony C. Riccio, Ph.D., reviewed the
Duffy and Fox reports and concluded that the claimant’s age, education, and history
of unskilled work dictated permanent total disability compensation.
        {¶ 5} On June 27, 1990, the commission heard claimant’s permanent total
disability application. At the hearing’s conclusion, it held claimant’s motion in
abeyance and referred claimant to the commission’s rehabilitation division. On
August 7, 1990, claimant moved the commission for additional allowance of a
psychiatric condition.
        {¶ 6} Dr. W. Jerry Mysiw examined claimant on the rehabilitation
division’s behalf. He concluded:




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       “At this time this gentleman is functioning in less than a sedentary work
capacity. His condition appears to be stable. *** Based on today’s history and
physical examination, I believe that this gentleman should be capable of performing
functional activities in a sedentary to light capacity.       There would be some
restrictions concerning his ability to use his left arm for reaching; however, the
extent of these restrictions is not entirely clear as the range of motion tested in the
left shoulder was somewhat compromised by his pain behavior. Nevertheless I
believe that this gentleman should be considered as a candidate for admission to a
Pain and Stress Management Program. This opinion is based on the discrepancy
between his physical findings today and the nature of his impairment. I believe that
at the conclusion he should be capable of functioning between a light work to
sedentary work capacity. There does not appear to be anything in the past medical
history that would preclude participation or benefiting from such a program.”
       {¶ 7} John E. Edwards, evaluation coordinator for the rehabilitation
division, ultimately recommended case closure, however, writing:
       “Based upon review of the Camera Center Evaluation Team reports, Mr.
William Roy does not appear an appropriate candidate for rehabilitation services
and such services are not recommended. The physician examiner estimated his
physical capacities to be in the less than sedentary range and was of the opinion
that rehabilitation services might improve his physical capacities to the full
sedentary range. Mr. Roy reports having attended school to the eighth grade and
his tested levels of academic skills are below average for that level of education.
He reports an 18 year work history of semi-skilled employment as a mechanic
which ended in 1987. Vocational aptitude testing produced predominantly average
scores and no occupational areas of potential in the sedentary range of physical
capacities could be identified.
       “This 57 year old man has not worked since 1987 after working 18 years in
a semi-skilled occupation due to an industrial injury which has reduced his physical




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capacities to the less than sedentary range. He has an eighth grade education, and
does not read or write as well as one would expect with that level of education. He
has few transferable skills to offer and it does not appear that he would be successful
in acquiring new skills which would enable him to compete in the work place at a
sedentary level of physical capacities. It does not appear that the Rehabilitation
Division could provide services to him which would significantly improve his
physical capacities nor address his vocational and educational deficits to such an
extent that he would have a realistic prospect of returning to employment.
Therefore, this file is recommended for closure and is forwarded to Industrial
Commission Legal Section.”
       {¶ 8} The commission, by order sent September 6, 1991, denied permanent
total disability compensation, writing:
       “The reports of Doctors Duffy, Wunder, Hanington, and Amendt and the
Rehabilitation Evaluation Report Summary dated 11-30-90, were reviewed and
evaluated.
       “This order is based particularly upon the report of Doctor[s] Wunder,
Amendt, Hanington and the Rehabilitation Evaluation Report Summary dated 11-
30-90, a consideration of the claimant’s education,
age ***.
       “Claimant is 58 years old, has worked as a glass and seat
repairman/mechanic, and has [a] barber[’]s license in Ohio and Kentucky. *** Dr.
Hanington found only a 34% permanent partial impairment due to the allowed
conditions. The allowance of the claim (Claim PEL 53794) does not preclude
claimant from performing light work (lifting 20 lbs. frequently). Dr. Amendt also
found only a 34% permanent partial impairment due to all the allowed conditions;
claimant has no medical barriers to be resolved per Dr. Amendt. Claimant has
transferable skills as a barber which would be within his physical restrictions per
Dr. Amendt and Dr. Hanington’s opinion that claimant can perform light work.



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                                  January Term, 1996




Claimant is found not to be permanently totally disabled based upon the medical
impairments (limited to light work) and transferable skill cited above.”
          {¶ 9} On September 30, 1991, claimant sought reconsideration of the
commission’s order. On June 12, 1992, the commission additionally allowed the
claim for “major depressive disorder.” On April 13, 1993, reconsideration was
denied.
          {¶ 10} Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, claiming that the commission had abused its discretion in denying
permanent total disability compensation.        The appellate court found that the
commission’s order did not adequately set forth its reasoning pursuant to State ex
rel. Noll v. Indus. Comm. (1990), 

57 Ohio St. 3d 203

, 

567 N. E. 2d 245

. It issued
a limited writ directing the commission to vacate its order and returned the cause
to it for further consideration and amended order.
                                __________________
          This cause is now before this court upon an appeal as of right.
          Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
for appellant.
          Betty D. Montgomery, Attorney General, and Charles Zamora, Assistant
Attorney General, for appellee.
                                __________________
          Per Curiam.
          {¶ 11} Claimant alleges two main defects in the commission’s order: (1) a
failure to consider all allowed conditions; and (2) an insufficient explanation under
Noll, which claimant argues warrants a writ to compel permanent total disability
compensation pursuant to State ex rel. Gay v. Mihm (1994), 

68 Ohio St. 3d 315

,

626 N. E. 2d 666

. Because we agree with claimant’s initial contention, we reverse
the judgment of the court of appeals.




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                              SUPREME COURT OF OHIO




          {¶ 12} The commission did not include claimant’s psychiatric condition in
its deliberations. The court of appeals, however, held that State ex. rel. Cordray v.
Indus. Comm. (1990), 

54 Ohio St. 3d 99

, 

561 N. E. 2d 917

, supported the
commission’s action. In so doing, the court of appeals erred.
          {¶ 13} The relevant chronology is as follows:
          June 27, 1990—Claimant’s permanent total disability compensation
application heard;
          August 7, 1990—Claimant moves for additional allowance of psychiatric
condition;
          September 6, 1991—Permanent total disability compensation denied;
          September 30, 1991—Claimant moves for reconsideration;
          June 12, 1992—Psychiatric condition allowed; and
          April 13, 1993—Reconsideration denied.
          {¶ 14} In examining the confusing order of events, we hold neither claimant
nor the commission to be blameless. Claimant did not seek psychiatric allowance
until after the permanent total disability compensation hearing. The commission,
for its part, took an inordinately long time to adjudicate the three motions before
it—fourteen months for permanent total disability compensation, two years for the
psychiatric allowance, and eighteen months for reconsideration.
          {¶ 15} Irrespective of fault, one fact controls—by the time reconsideration
was denied, “major depressive disorder” was an allowed condition.               This
distinguishes this case from Cordray.
          {¶ 16} In Cordray, the commission held claimant’s permanent total
disability compensation motion in abeyance in order to secure a commission
specialist’s exam. During the abeyance period, claimant submitted a vocational
report.     Permanent total disability compensation was later denied, without
consideration being given to the vocational report.        Claimant challenged the
omission to this court.



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                                January Term, 1996




       {¶ 17} We found no abuse of discretion. We reasoned that, under Ohio
Adm. Code 4121-3-09 (C)(5), the commission, “having the discretion to grant or
deny additional time for hearing preparation, *** must also have the discretion to
accept or reject evidence submitted thereafter.” Cordray, 

54 Ohio St. 3d at 101

,

561 N.E. 2d at 919

.
       {¶ 18} Under Cordray, the commission, in this case, was indeed free to
disregard the psychiatric evidence. The critical difference is that, unlike Cordray,
the commission did consider the belated evidence and, once it did, moved beyond
Cordray’s protection.
       {¶ 19} Once the commission allowed the psychiatric condition prior to the
commission’s conclusive denial of permanent total disability compensation, the
issue became one of additional conditions, rather than one of additional evidence.
Unlike additional evidence, there is no precedent supporting the denial of
permanent total disability compensation absent consideration of all allowed
conditions. The commission, therefore, erred in not granting reconsideration and
incorporating the condition into its deliberations.
       {¶ 20} Accordingly, we reverse the judgment of the court of appeals, direct
the commission to vacate its order, and return the cause for consideration of all
allowed conditions and an amended order. Until the commission does so, any
further discussion of claimant’s potential eligibility for permanent total disability
compensation is premature.
       {¶ 21} The judgment of the court of appeals is hereby reversed.
                                                                 Judgment reversed
                                                           and limited writ allowed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                              __________________




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