State ex rel. Quarto Mining Co. v. Foreman

[This opinion has been published in Ohio Official Reports at 

79 Ohio St.3d 78

.]




 THE STATE EX REL. QUARTO MINING COMPANY, APPELLANT, v. FOREMAN ET
                                     AL., APPELLEES.

      [Cite as State ex rel. Quarto Mining Co. v. Foreman, 

1997-Ohio-71

.]
Workers’ compensation—In evaluating claimant’s application for permanent total
        disability compensation, Industrial Commission does not abuse its
        discretion by failing to initiate the issue whether claimant’s retirement
        precludes his or her eligibility for                permanent total disability
        compensation—Industrial Commission’s award of permanent total
        disability compensation supported by “some evidence,” when.
        (No. 95-248—Submitted March 18, 1997—Decided June 18, 1997.)
  APPEAL from the Court of Appeals for Franklin County, No. 93APD12-1738.
                                  __________________
        {¶ 1} On July 12, 1972, claimant-appellee, Glen Foreman, was injured in a
roof cave-in in an underground mine while working as a roof bolter for appellant,
Quarto Mining Company (“employer”). Claimant filed a workers’ compensation
claim which was ultimately allowed by appellee Industrial Commission of Ohio for
“[f]racture distal right tibia and fibula; laceration left occipital (scalp); talocalcaneal
dislocation right ankle; lumbosacral strain; and osteomyelitis of the distal end of
the tibia.”
        {¶ 2} Claimant was initially off work for approximately one year. He
attempted to return to his former job as a roof bolter, but was unable to do so. He
was then transferred to the job of “outside supply man,” at which he remained for
approximately three years. Thereafter, claimant was transferred to the job of
dispatcher in the coal mine.         During this time, claimant underwent multiple
surgeries in an effort to treat and correct the injuries to his right leg and foot and
the osteomyelitis that developed secondary to surgery.
                             SUPREME COURT OF OHIO




       {¶ 3} Claimant remained at the dispatcher job until September 1984, when
he suffered a myocardial infarction and underwent a coronary artery bypass graft.
Also, the mine closed and claimant was laid off. He has not worked since
September 27, 1984, and has been receiving Social Security disability benefits since
March 1, 1985.
       {¶ 4} On December 16, 1985, claimant filed an application for permanent
total disability (“PTD”) compensation, which the commission denied by order
dated February 24, 1987. On January 24, 1989, claimant filed another application
for PTD benefits. In the statement of facts prepared for the commission, it was
stated: “It is the opinion of this statement writer that the weight of the evidence on
file does not support a finding of permanent total disability. Claimant retired in
1984 as a result of his cardiac condition. In September of 1984, the claimant
underwent a coronary bypass surgery.”         However, on January 10, 1991, the
commission denied PTD compensation “for the reason that the disability is not
total; that is, the claimant is able to perform sustained remunerative employment.”
       {¶ 5} Claimant again filed an application for PTD compensation on August
18, 1992. By order dated June 15, 1993, the commission granted the application,
explaining as follows:
       “The reports of Drs. Smith and Gatens were reviewed and evaluated. This
order is based particularly upon the reports of Drs. Smith and Gatens, evidence in
the file and/or evidence adduced at the hearing.
       “After reviewing the medical evidence relevant to the claimant’s 1972
industrial injury, it is concluded that his allowed conditions severely restrict his
ability to pursue gainful employment. The medical evidence relied upon in making
this determination includes the reports of Drs. Smith and Gatens. Dr. Smith,
claimant’s attending physician, opined Mr. Foreman is permanently and totally
disabled as a result of his allowed conditions. Dr. Gatens, Commission Physical
Medicine Specialist, rated Mr. Foreman’s impairment at a relatively high 55% and




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                                    January Term, 1997




opined that he is unable to return to his former position of employment. However,
Dr. Gatens did indicate Mr. Foreman retains the ability to pursue sedentary
employment. It is further noted that Mr. Foreman has undergone a number of
surgical procedures in an attempt to correct his right lower extremity injuries and
relatively recent diagnostic testing evidence suggests the continued presence of
ankle impairment. Accordingly, based on the foregoing medical evidence, the
Commission concludes Mr. Foreman does not possess the ability to engage in his
former work activities and, at best, only is capable of engaging in sedentary work
activities which do not require standing or ambulating of any significant degree.
        “Considering his non-medical disability factors, the Commission concludes
that he does not possess the vocational potential to obtain sedentary work of a sit-
down nature. Mr. Foreman is 57 years of age, possesses an eleventh grade
education with a G.E.D., and has work history as a roof bolter, supply man,
dispatcher, coal miner, corrections officer and experience in the U.S. Army. Due
to the fact Mr. Foreman’s prior work experience all entailed significant physical
exertion and did not qualify him for similar or related employment of a reduced
physical capacity nature, it is concluded that he currently lacks job skills
transferable to sit-down sedentary work.
        “Furthermore, Mr. Foreman’s advancing age and G.E.D. educational level
do not serve as vocational assets in his attempt to acquire new and specialized
vocational skills.   Specifically, it is determined that Mr. Foreman’s age and
education indicate that he lacks the useful remaining industrial life, educational
ability, and above average intellectual capacity in order for him to acquire the skills
necessary for him to obtain a new vocation of a sit-down sedentary nature.
Accordingly, for the foregoing reasons, Mr. Foreman’s application for permanent
and total disability is granted.”
        {¶ 6} On December 28, 1993, the employer filed a complaint in mandamus
with the court of appeals. The complaint alleged (1) that the commission’s June




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15, 1993 order fails to “cite reliance on some evidence of record which would
support a finding of permanent total disability” and (2) that the commission’s order
fails to “address the obvious facts of record that * * * [claimant] remained in the
workforce until a 1984 non-occupational heart attack and subsequent surgery
forced him to quit working.”
       {¶ 7} The cause was assigned to a referee, who recommended that the writ
be granted to the extent of ordering the commission to make a factual determination
as to the voluntariness of claimant’s departure from the workforce. The referee
essentially reasoned that since references were made in the record to claimant’s
heart attack, layoff and/or retirement, it was incumbent upon the commission to
determine the nature and extent of claimant’s removal from the workforce.
       {¶ 8} The appellate court rejected the referee’s conclusions and
recommendation and denied the writ. The court essentially held that the failure of
the employer to have raised the retirement issue administratively precludes it from
arguing the issue in an action in mandamus. Additionally, the court of appeals
found that the record contains some evidence to support the commission’s award
of PTD compensation.
       {¶ 9} This cause is before the court upon an appeal as of right.
                               __________________
       Hanlon, Duff, Paleudis & Estadt Co., L.P.A., and John G. Paleudis, for
appellant.
       Larrimer & Larrimer and David H. Swanson, for appellee Glen Foreman.
       Betty D. Montgomery, Attorney General, and Melanie Cornelius, Assistant
Attorney General, for appellee Industrial Commission of Ohio.
                               __________________
       Per Curiam.
       {¶ 10} This appeal raises two issues. The first question presented is whether
the commission, in evaluating claimant’s application for PTD compensation,




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                                 January Term, 1997




abused its discretion by failing to initiate the issue of whether claimant’s retirement
precludes his eligibility for PTD compensation. This question can also be framed
in terms of whether the employer waived the retirement issue by not raising it
administratively. The second issue is whether the cause should be remanded for
further consideration on the basis that the medical reports upon which the
commission relied do not constitute “some evidence” of PTD, or the commission
failed to adequately explain and/or apply claimant’s nonmedical disability factors.
                                           I
        {¶ 11} It is important to understand initially that the question in this case is
not, as the employer claims, about whether an issue must be raised by some “formal
procedure” or placed on some “formal record” before the commission.                The
employer nowhere denies that it failed to raise the retirement issue administratively.
Nor does the employer claim to have raised the issue administratively at all, by any
means, “formal” or otherwise, during either the proceedings culminating in the
order of June 15, 1993, or in any of the proceedings leading to the two prior
commission orders denying PTD compensation.              Instead, the essence of the
employer’s first three arguments, properly construed, is that the issue raises itself
by virtue of being manifest in the record.
        {¶ 12} “Ordinarily, reviewing courts do not consider questions not
presented to the court whose judgment is sought to be reversed.” Goldberg v. Indus.
Comm. (1936), 

131 Ohio St. 399, 404

, 

6 O.O. 108, 110

, 

3 N.E.2d 364, 367

. See,
also, State ex rel. Moore v. Indus. Comm. (1943), 

141 Ohio St. 241

, 

25 O.O. 362

,

47 N.E.2d 767

, paragraph three of the syllabus; State ex rel. Gibson v. Indus. Comm.
(1988), 

39 Ohio St.3d 319, 320

, 

530 N.E.2d 916, 917

 (rule that issues not previously
raised are waived is applicable in an appeal from a denial of a writ of mandamus).
Nor do appellate courts have to consider an error which the complaining party
“could have called, but did not call, to the trial court’s attention at a time when such




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error could have been avoided or corrected by the trial court.” State v. Williams
(1977), 

51 Ohio St.2d 112, 117

, 

5 O.O.3d 98, 101

, 

364 N.E.2d 1364, 1367

.
       {¶ 13} These rules are deeply embedded in a just regard for the fair
administration of justice.   They are designed to afford the opposing party a
meaningful opportunity to respond to issues or errors that may affect or vitiate his
or her cause. Thus, they do not permit a party to sit idly by until he or she loses on
one ground only to avail himself or herself of another on appeal. In addition, they
protect the role of the courts and the dignity of the proceedings before them by
imposing upon counsel the duty to exercise diligence in his or her own cause and
to aid the court rather than silently mislead it into the commission of error. 

Id.,

51 Ohio St.2d at 117

, 

5 O.O.3d at 101

, 

364 N.E.2d at 1367

. See, also, State v. Driscoll
(1922), 

106 Ohio St. 33, 38-39

, 

138 N.E. 376, 378

.
       {¶ 14} The employer, however, essentially seeks a dispensation or
relaxation of these rules in proceedings before the commission. However, there is
nothing about the purpose of workers’ compensation legislation or the character of
the proceedings before the commission that would justify such action. As Professor
Larson explains, “evidentiary and procedural rules usually have an irreducible hard
core of necessary function that cannot be dispensed with in any orderly
investigation of the merits of a case.” 2B Larson, Workmen’s Compensation Law
(1996) 15-4, Section 77A.10. Thus, “when the rule whose relaxation is in question
is more than a merely formal requirement and touches substantial rights of fair play,
the relaxation is no more justified on a compensation appeal than on any other.
Such a rule is that forbidding the raising on appeal of an issue that has not been
raised below * * *.” (Emphasis added.) Id. at 15-101, 15-103, Section 77A.83.
(The term “below” is used broadly by Professor Larson to include issues not raised
at the administrative level. Id. at 15-103 to 15-116, fn. 46, Section 77A.83.)
       {¶ 15} In a well-reasoned decision, the California appellate court in Bohn
v. Watson (1954), 

130 Cal.App.2d 24, 37

, 

278 P.2d 454, 462

, applied these rules to




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                                January Term, 1997




proceedings before the Real Estate Commissioner of Los Angeles County. The
court refused to consider an issue not raised administratively, despite the fact that
the lower court, upon an action for a writ of mandate, considered the issue. The
court held that the issue was not properly injected into the claim by virtue of the
lower court’s consideration. In so holding, the court aptly explained:
       “It was never contemplated that a party to an administrative hearing should
withhold any defense then available to him or make only a perfunctory or ‘skeleton’
showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded
issues, in the reviewing court. * * * The rule compelling a party to present all
legitimate issues before the administrative tribunal is required in order to preserve
the integrity of the proceedings before that body and to endow them with a dignity
beyond that of a mere shadow-play. Had [appellant] desired to avail herself of the
asserted bar of limitations, she should have done so in the administrative forum,
where the commissioner could have prepared his case, alert to the need of resisting
this defense, and the hearing officer might have made appropriate findings
thereon.” (Citations omitted.) See, also, Foster v. Bozeman City Comm. (1980),

189 Mont. 64, 68

, 

614 P.2d 1072, 1074

 (“The facts do not permit us to extricate
[relator] from the situation he helped to create.”); Shakin v. Bd. of Med. Examiners
(1967), 

254 Cal.App.2d 102, 111

, 

62 Cal.Rptr. 274, 282

; Harris v. Alcoholic
Beverage Control Appeals Bd. (1961), 

197 Cal.App.2d 182, 187

, 

17 Cal.Rptr. 167, 170-171

.
       {¶ 16} To do as the employer suggests would not only deny the claimant a
meaningful opportunity to respond, but would also conflict with the court’s
directive that “[the commission] is not to be regarded as an adversary of the
claimant as in other litigation.” Miles v. Elec. Auto-Lite Co. (1938), 

133 Ohio St. 613, 616

, 

11 O.O. 339, 341

, 

15 N.E.2d 532, 534

. It would also open the door to
forcing an already overworked commission to comb the files of every PTD case in
search of issues that could potentially be raised by both sides at the hearing table.




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                              SUPREME COURT OF OHIO




In addition, it would waste judicial and administrative resources by permitting a
party to secure another bite at the PTD apple based upon the commission’s failure
to consider an issue or correct an error upon which the party remained silent.
        {¶ 17} These concerns apply with particular force in the case sub judice.
The circumstances which the employer claims preclude PTD compensation
occurred some two years prior to the commission’s first order and eight and one-
half years prior to its June 15, 1993 order. The record has contained references to
claimant’s retirement since as early as April 25, 1986. Had the employer raised the
issue during the 1987 proceedings, it may well have avoided the processing of two
more PTD applications and two additional hearings before a total of seven
commissioners over a six-year span. A claimant cannot relitigate a prior finding
that he had voluntarily retired. State ex rel. Crisp v. Indus. Comm. (1992), 

64 Ohio St.3d 507

, 

597 N.E.2d 119

. Instead, the employer sat idly by at each successive
hearing, allowing the commission each time to determine the extent of claimant’s
disability on other grounds. Then, when it finally lost administratively in 1993, the
employer raised the issue for the first time in a complaint in mandamus to the court
of appeals.
        {¶ 18} Utilizing another approach, the employer seems to be trying to argue
that the commission’s responsibility to initiate the issue of claimant’s retirement
arises by virtue of claimant’s duty to prove that his disability is causally related to
his employment. In so arguing, the employer merges those cases which provide
that pre-PTD retirement precludes eligibility for PTD compensation, with cases
holding that a finding of PTD cannot be based, in whole or in part, on nonallowed
conditions. The suggestion here is that, since it is claimant’s burden to prove that
his disability is causally related to allowed conditions in the claim, it is necessarily
claimant’s burden to prove that nonallowed conditions played no part in his
decision to retire.




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                                January Term, 1997




       {¶ 19} The argument is misguided. The claimant’s burden is to persuade
the commission that there is a proximate causal relationship between his work-
connected injuries and disability, and to produce medical evidence to this effect.
Murphy v. Carrollton Mfg. Co. (1991), 

61 Ohio St.3d 585

, 

575 N.E.2d 828

; State
ex rel. Basham v. Consolidation Coal Co. (1989), 

43 Ohio St.3d 151

, 

541 N.E.2d 47

; Fox v. Indus. Comm. (1955), 

162 Ohio St. 569

, 

55 O.O. 472

, 

125 N.E.2d 1

;
Aiken v. Indus. Comm. (1944), 

143 Ohio St. 113

, 

28 O.O. 50

, 

53 N.E.2d 1018

. The
claimant’s burden in this regard does not extend so far as to require him to raise,
and then eliminate, other possible causes of his disability. This is not a case in
which the cause remains unexplained, as in slip-and-fall cases. Here, the claimant
has produced direct medical evidence linking his disability with the injuries allowed
in the claim.    This evidence is sufficient to establish a prima facie causal
connection. The burden should then properly fall upon the employer to raise and
produce evidence on its claim that other circumstances independent of the
claimant’s allowed conditions caused him to abandon the job market.
       {¶ 20} None of the parties cites State ex rel. Jones & Laughlin Steel Corp.
v. Indus. Comm. (1985), 

29 Ohio App.3d 145

, 29 OBR 162, 

504 N.E.2d 451

. Jones
was the first of “a trilogy of cases” which developed “[t]he rule that voluntary
retirement will, but injury-induced retirement will not, preclude a claimant’s
eligibility for TTD [temporary total disability] compensation.” State ex rel. Baker
Material Handling Corp. v. Indus. Comm. (1994), 

69 Ohio St.3d 202, 210

, 

631 N.E.2d 138, 145

. In particular, the court of appeals in Jones ruled that voluntary
retirement may be a basis for terminating TTD compensation. However, the
appellate court refused to apply the rule because the employer failed to raise the
issue before the commission. The court found itself “unable to find that respondent
Industrial Commission abused its discretion by failing to consider and determine
an issue that was not presented to it. * * * [W]e cannot find an abuse of discretion
for failure of the respondent Industrial Commission to initiate such an issue under




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the circumstances of this case.” Jones, 

29 Ohio App.3d at 148

, 29 OBR at 164-
165, 

504 N.E.2d at 454

.
        {¶ 21} Accordingly, we hold that the commission, in evaluating a
claimant’s application for PTD compensation, does not abuse its discretion by
failing to initiate the issue whether claimant’s retirement precludes his or her
eligibility for PTD compensation. Thus, the judgment of the court of appeals is
affirmed as to this issue.
                                           II
                               A. Medical Challenges
        {¶ 22} Most of the employer’s arguments concerning its challenges to the
medical opinions are directed at Dr. Smith’s report. It is not necessary to consider
these arguments because, as the employer observes, “it appears the Commission
did not even accept Dr. Smith’s conclusion [that claimant was medically
permanently and totally disabled], but rather preferred Dr. Gatens’ conclusion [that
claimant suffers a fifty-five percent permanent partial impairment and is medically
capable of performing sedentary work].” Thus, even if Dr. Smith’s report were
removed from evidentiary consideration, there still remains the report of Dr.
Gatens.
        {¶ 23} The employer, without any supporting authority, raises the following
challenges to Dr. Gatens’s report:
        1. The employer challenges Dr. Gatens’s understanding of claimant’s job
duties between 1972 and 1984. However, “[a] lack of awareness of previous duties
is generally of little consequence in a permanent total determination, since the
relevant issue is not the ability to return to the former job, but is instead claimant’s
capacity for any sustained remunerative work.” State ex rel. Lopez v. Indus. Comm.
(1994), 

69 Ohio St.3d 445, 449

, 

633 N.E.2d 528, 531

. See, also, State ex rel.
Domjancic v. Indus. Comm. (1994), 

69 Ohio St.3d 693, 695

, 

635 N.E.2d 372, 375

.




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                                January Term, 1997




       2. The employer assails Dr. Gatens’s report for failing to “mention the 1984
heart attack” and failing to “evaluate the 1984 heart attack’s impact on claimant’s
ability to remain in the work force.” However, as the employer noted in reference
to the first issue, an award of PTD compensation cannot be based in whole or part
on nonallowed medical conditions. Dr. Gatens did the correct thing when he stated
that although claimant “does have a history of cardiac problems, * * * they will not
be considered in terms of the impairment related to the allowed industrial injuries.”
       3. The employer asserts that Dr. Gatens did “not seek to evaluate the
claimant’s condition in 1984.” However, the claimant’s condition in 1984 has little
to do with the relevant inquiry in this case, viz., the claimant’s condition on
March 12, 1993, the date on which he was examined by Dr. Gatens.
                            B. Nonmedical Challenges
       {¶ 24} Here, again, the employer fails to support its arguments as to the
nonmedical disability issues with any authority, and the arguments that it raises are
easily disposed of:
       1. The employer argues that the commission’s order fails to explain “how
the claimant with a 60% permanent partial impairment award was able to do the
supplyman or dispatcher job until his 1984 heart attack.”         The employer is
apparently referring to the fact that the claimant received a sixty percent permanent
partial disability award which was paid “to 1/6/80.” The thrust of the argument is
that if the claimant could perform the jobs of supplyman or dispatcher prior to 1984
while his physical disability was found to be sixty percent, it must be explained
why he cannot perform those same jobs thirteen years later when his impairment
was rated by Dr. Gatens at fifty-five percent.
       The argument attaches too much significance to the percentage of
impairment assigned by Dr. Gatens. Indeed, it would have constituted error for the
commission to draw its conclusion on the basis of such percentages alone, without
regard to the claimant’s actual physical restrictions and nonmedical disability




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factors as they existed in 1993. State ex rel. Koonce v. Indus. Comm. (1994), 

69 Ohio St.3d 436, 437-438

, 

633 N.E.2d 520, 522

.
       2. The employer challenges the commission’s conclusion that claimant’s
advancing age does not serve as a vocational asset. According to the employer,
“[t]hat he [claimant] is now 57 [years of age] is irrelevant.” This argument is
questionable at best. Age is a Stephenson factor. State ex rel. Stephenson v. Indus.
Comm. (1987), 

31 Ohio St.3d 167

, 31 OBR 369, 

509 N.E.2d 946

. Thus, it is not
only a relevant, but a necessary, consideration in determining PTD. See Basham,

43 Ohio St.3d at 152

, 

541 N.E.2d at 48

. It is entirely within the commission’s
prerogative as exclusive evaluator of disability to conclude that, at age fifty-seven,
claimant was old, not young, and that his age was a hindrance, not a help, to his
retraining. Thus, the very fact of claimant’s advancing age may serve to support
the granting of an application for PTD compensation after an initial denial.
Moreover, a showing of new and changed circumstances is not “a prerequisite to
commission consideration of a subsequent application for permanent total disability
compensation after an initial denial.” State ex rel. Youghiogheny & Ohio Coal Co.
v. Indus. Comm. (1992), 

65 Ohio St.3d 351, 352-353

, 

603 N.E.2d 1026, 1027

. In
Youghiogheny, the claimant filed his second application (which was ultimately
granted) four weeks after the commission denied his first application.
       3.   The employer’s remaining arguments deal with the commission’s
interpretation of other nonmedical disability factors. In particular, the employer
interprets a vocational evaluation screening summary by the bureau’s rehabilitation
division, not referred to in the commission’s order, as vocationally favorable. The
employer notes that such report listed claimant’s work history and education as
“assets.”
       {¶ 25} “As to the commission’s failure to refer to the evaluation of the
vocational rehabilitation consultant, that evaluation may be accepted or rejected as
the commission deems appropriate because the determination of extent of disability




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                                January Term, 1997




is the function of the commission.” State ex rel. Adkins v. Indus. Comm. (1986),

24 Ohio St.3d 180, 182

, 24 OBR 410, 412, 

494 N.E.2d 1105, 1107

. As to the report
itself, it is not so one-sided as the employer claims. It lists claimant’s age, at that
time fifty-four, as a vocational limitation. It also rates claimant as “below average”
in every vocational aptitude for which he was tested but one (he was “proficient”
at adding and subtracting whole numbers).
       {¶ 26} Having found the employer’s medical and nonmedical challenges to
be without merit, we find further that the commission’s order is supported by “some
evidence.” Thus, the judgment of the court of appeals is affirmed as to this issue.
       {¶ 27} In light of all the foregoing, we affirm the judgment of the court of
appeals.
                                                                  Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                               __________________




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