State ex rel. Jackson v. Industrial Commission

[This opinion has been published in Ohio Official Reports at 

79 Ohio St.3d 266

.]




  THE STATE EX REL. JACKSON, APPELLANT, V. INDUSTRIAL COMMISSION OF
                               OHIO ET AL., APPELLEES.
         [Cite as State ex rel. Jackson v. Indus. Comm., 

1997-Ohio-152

.]
Workers’ compensation—Denial of application for permanent total disability
        compensation by Industrial Commission—Commission ordered to review
        application further and issue an amended order, when.
        (No. 95-528—Submitted April 15, 1997—Decided July 23, 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 appellee
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 has 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
                             SUPREME COURT OF OHIO




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 particularly 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 employment 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.



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                               January Term, 1997




       {¶ 4} The cause is before this court upon an appeal as of right.
                             ___________________
       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




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weight and disability. Thus, when some evidence for the commission’s decision
exists, the decision must be upheld even if contradicted by other evidence a
reviewing court considers more persuasive. 

Id. at 376

, 

658 N.E.2d at 1058

.
         {¶ 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 reports, 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. He 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.”


1. The parties do not mention it, but the commission’s order identifies only the first of Jackson’s
two allowed conditions, which suggests that it did not consider the second. To deny PTD without
considering all relevant allowed conditions is an abuse of discretion for which mandamus is the
remedy. State ex rel. Johnson v. Indus. Comm. (1988), 

40 Ohio St.3d 339

, 

533 N.E.2d 720

. Here,
however, the commission relied on reports from Drs. Kaffen and McCloud, both of whom took into
account Jackson’s two injuries. This reliance tends to confirm the commission’s appreciation of
both claims. Thus, in State ex rel. Zollner v. Indus. Comm. (1993), 

66 Ohio St.3d 276

, 

611 N.E.2d 830

, we preserved a commission order with the same defect.




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                                January Term, 1997




       {¶ 8} With respect to the commission’s explanation of how Jackson’s
nonmedical characteristics did not foreclose employment, the court of appeals’
referee found:
       “[T]he commission stated 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 explanation 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 on 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




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explanation, “[t]hese factors are susceptible [of] both positive or negative
interpretations depending on the reviewer, and, therefore, mere recitation gives no
insight into the commission’s reasoning.” 

Id.

 Waddle thus directed the commission
to specify in its orders whether nonmedical factors were considered an asset or
detriment to employment and warned that noncomplying orders would result in a
writ requiring an adequate explanation. Thus, in State ex rel. Pierce v. Indus.
Comm. (1997), 

77 Ohio St.3d 275, 277

, 

673 N.E.2d 1304, 1306

, we rejected as
insufficient a commission order denying PTD because it (1) merely acknowledged
a claimant’s age (sixty-two) and education (tenth grade with G.E.D.) and (2) failed
to specify what marketable skills a former ironworker had or could develop to
obtain sedentary employment.
        {¶ 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 employment 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



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                                January Term, 1997




adequately explain how claimant’s experience in window washing and
maintenance promoted reemployment in sedentary or light duty job).
       {¶ 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 vocational
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

.”




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                             SUPREME COURT OF OHIO




       {¶ 15} Singleton, being the more recent and consistent statement of the law,
requires the conclusion that the commission had authority to reject Jackson’s
vocational expert’s report. Thus, we concur in the court of appeals’ finding that the
commission permissibly rejected Jackson’s vocational evidence.
                                    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.



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                               January Term, 1997




       DOUGLAS, J., concurs in judgment only.
       COOK and LUNDBERG STRATTON, JJ., dissent.
                             ___________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 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.
                             ___________________




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