State ex rel. Waddle v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Waddle, Appellee, v. Industrial Commission of
Ohio et al., Appellants.
[Cite as State ex rel. Waddle v. Indus. Comm. (1993), Ohio
St.3d .]
Workers' compensation -- Application for permanent total
disability compensation -- Mere presence of nonallowed
disabling conditions does not automatically foreclose a
finding of permanent total disability.
(No. 92-2081 -- Submitted July 28, 1993 -- Decided October
3, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-1331.
Appellee-claimant, Charles L. Waddle, sustained three
industrial injuries, the last two of which were in the course
of and arising from his employment with appellant, Baker
Concrete Construction, Inc. ("Baker") His third injury, in
1984, was the most debilitating, involving his neck, shoulder,
right arm and back. This last injury prevented a return to his
former job, and generated six years of temporary total
disability compensation.
In 1987, claimant had a heart attack and underwent
quadruple bypass surgery. Claimant continued to experience
angina and intermittent losses of vision. Tests also revealed
an eighty-five percent blockage of his carotid artery. All of
these conditions were unrelated to his industrial injuries.
In 1991, claimant sought permanent total disability
compensation. Dr. John Putman, claimant's physician, opined
that claimant's allowed back conditions alone prevented
sustained remunerative employment. There was also medical
evidence that claimant's cardiac status precluded sustained
remunerative employment. The commission ultimately denied
permanent total disability compensation, stating:
"This order is based particularly upon the reports of
Doctors Hutchison, Pasach and Izsack, a consideration of the
claimant's age, education, work history and other disability
factors including physical, psychological and sociological,
that are contained within the Statement of Facts prepared for
the hearing on the instant Application, the evidence in the

file and the evidence adduced at the hearing.
"The Industrial Commission finds that the claimant is 53
years old, has an eighth grade education, and has worked as a
cement finisher and working foreman. The claimant has
disabilities which are not related to his three industrial
injuries, namely and [sic] emotional condition and severe heart
condition which prevents gainful employment, as evidence[d] by
the report of Dr. Schneider. However, when Dr. Hutchison
examined the claimant and review[ed] the medical record, he
concluded the claimant was capable of sustained remunerative
employment. Considering the non-medical disability factors
noted above and the moderate level of impairment found by Dr.
Hutchison, the Industrial Commission finds that the claimant is
not precluded from performing sustained remunerative
employment."
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in denying him permanent total disability
compensation. The court of appeals agreed, finding that the
commission erred in failing to consider claimant's nonallowed
heart and emotional conditions as disability factors under
State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d
167, 31 OBR 369, 509 N.E.2d 946. The court issued a writ that
vacated the commission's order, and returned the cause for
further consideration.
This cause is now before this court upon an appeal as of
right.

Daniel D. Connor Co., L.P.A., and Daniel D. Connor, for
appellee.
Lee I. Fisher, Attorney General, Cordelia A. Glenn,
Yolanda L. Barnes and Gerald H. Waterman, Assistant Attorneys
General, for appellant Industrial Commission.
Squire, Sanders & Dempsey, Michael J. Hickey and Michael
A. Vanderhorst; Millisor & Nobil Co., L.P.A., and Preston J.
Garvin, for appellant Baker Concrete Construction, Inc.
Vorys, Sater, Seymour & Pease and Robert A. Minor, urging
reversal for amici curiae, Ohio Manufacturers' Association,
Ohio Self-Insurers' Attorney Association and Ohio Chamber of
Commerce.
Stewart A. Jaffy & Associates Co., L.P.A., Stewart A.
Jaffy and Marc J. Jaffy, urging affirmance for amici curiae,
Ohio Association of Trial Lawyers and Ohio AFL-CIO.

Per Curiam. The parties debate the role nonallowed
conditions should play in a permanent total disability
determination. Amici Ohio AFL-CIO et al. ("AFL-CIO") contend
that nonallowed conditions are Stephenson factors that must be
considered in this determination. The other parties disagree -
- including claimant, whose interest amici AFL-CIO purport to
further. Baker and amici Ohio Manufacturer's Association et
al. ("OMA") do not focus on nonallowed conditions generally,
but only on those that prevent sustained remunerative
employment. Where such conditions exist, Baker and amici argue
that a finding of permanent total disability is automatically
precluded, regardless of the severity of the allowed
conditions. Claimant takes a middle ground, arguing that

nonallowed conditions are immaterial, regardless of their
severity, as long as the allowed conditions, in and of
themselves, prevent sustained remunerative employment.
Accordingly, he asserts that nonallowed conditions cannot be
used to advance his cause or defeat it. We agree.
Workers' compensation is intended to compensate employees
and dependents "for death, injuries or occupational disease,
occasioned in the course of such workmen's employment * * *."
Section 35, Article II, Ohio Constitution. Accordingly, a
claimant must show:
"* * * [N]ot only that his injury arose out of and in the
course of employment but that a direct and proximate causal
relationship existed between his injury and his harm or
disability." Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55
O.O. 472, 125 N.E.2d 1, paragraph one of the syllabus.
From these mandates, it follows that a claimant cannot be
compensated for disability caused by conditions unrelated to
the industrial injury.
We recently affirmed this principle in State ex rel. LTV
Steel Co. v. Indus. Comm. (1992), 65 Ohio St.3d 22, 599 N.E.2d
265, and State ex rel. Fields v. Indus. Comm. (1993), 66 Ohio
St.3d 437, 613 N.E.2d 230. In LTV, claimant bruised his elbow
and back at work. Fourteen years later, he sought permanent
total disability compensation. The medical reports of
claimant's doctor and a commission specialist attributed
claimant's inability to work, however, to nonallowed
conditions. The commission awarded permanent total disability
compensation, nonetheless, based on the reports of these
doctors and a purported consideration of nonallowed medical
disability factors.
We found an abuse of discretion and vacated the order.
Stressing the physicians' extensive reliance on nonallowed
conditions, we stated:
"Entitlement to permanent total disability compensation
requires a showing that the medical impairment due to the
allowed conditions, either alone or together with nonmedical
disability factors, prevents claimant from engaging in
sustained remunerative employment." Id., at 24, 599 N.E.2d at
267.
We elaborated this finding in Fields. Rejecting the very
argument put forth by amici AFL-CIO in the instant case, Fields
stated:
"* * * Stephenson was never intended to permit the
commission to base an award of permanent total disability on
non-allowed medical conditions, in whole or in part." Id., at
440, 613 N.E.2d at 232.
This is not to say that the mere presence of nonallowed
conditions automatically bars permanent total disability
compensation. Cases such as State ex rel. Jones & Laughlin
Steel Co. v. Indus. Comm. (1985), 29 Ohio App. 3d 145, 29 OBR
162, 504 N.E.2d 451; State ex rel. Ashcraft v. Indus. Comm.
(1987), 34 Ohio St.3d 42, 517 N.E.2d 533; State ex rel.
Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44,
531 N.E.2d 678; and State ex rel. Chrysler Corp. v. Indus.
Comm. (1991), 62 Ohio St.3d 193, 580 N.E.2d 1082, do not
inherently prohibit permanent total disability compensation to
claimants concurrently disabled due to nonallowed conditions,

since the holdings in these cases are not as broad as Baker
suggests.
These decisions have consistently denied total disability
compensation to those who voluntarily left their former
position of employment or the work force in general. Baker's
reliance on these cases, however, is flawed for two reasons.
First, Baker overlooks the possibility that, as here, the
nonindustrial disability may arise after the industrial injury
has already forced the claimant from his or her job. As the
Alaska Supreme Court stated in Estate of Ensley v. Anglo Alaska
Constr. Co. (1989), 773 P.2d 955, 958:
"An employee's voluntary departure from the work force is
not analogous to the situation where terminal illness prevents
an already totally disabled individual from returning to
work." (Emphasis added.)
Second, Baker erroneously assumes that any claimant who is
not working because of a nonindustrial ailment has either
completely "retired" or at least "abandoned" his or her former
position of employment. However, "abandonment" - - which
encompasses "retirement" - - relates to an issue that is:
"* * * '[P]rimarily * * * [one] of intent * * * [that] may
be inferred from words spoken, acts done, and other objective
facts. * * * All relevant circumstances existing at the time
of the alleged abandonment should be considered.' * * * '"[A]n
abandonment is proved by evidence of intention to abandon as
well as acts by which the intention is put into effect."' The
presence of such intent, being a factual question, is a
determination for the commission." (Emphasis added.) State ex
rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989),
45 Ohio St.3d 381, 383, 544 N.E.2d 677, 677-678.
Diversitech suggests that, as a general rule, a finding of
"abandonment" or "retirement" requires an affirmative act or
declaration by the claimant. The record contains no evidence
to support a finding of abandonment here, negating Baker's
reliance on Jones & Laughlin and its progeny.
Our decision is consistent with those of other states that
have addressed this issue. In Ensley, supra, the Alaska
Supreme Court upheld the right of a claimant concurrently
disabled for an unrelated condition to compensation. Ensley
injured his back on the job on December 7, 1984. On December
22, 1984, his injury forced him from work. Three weeks later,
he was diagnosed with cancer unrelated to employment. On
February 4, 1985, claimant's attending physician reported that
claimant was totally disabled by his back. He also stated that
claimant's cancer prevented work as well. Finally, on February
10, 1985, claimant left his job to undergo cancer treatment.
Before he died in July, claimant sought temporary total
disability compensation. The workers' compensation board
awarded claimant compensation from December 22, 1984 through
February 9, 1985, but denied payment thereafter, finding that
claimant's inability to work was cancer-related and therefore
precluded temporary total compensation. The court disagreed,
stating:
"* * * [W]e are confronted with a unique situation. The
medical records indicate that Ensley suffered from two
independent conditions - - one work-related and one not - -
either of which would have prevented him from working." Id. at

958.
Continuing, the court stated:
"The fact that Ensley also suffered a concurrent loss of
earning capacity due to the cancer does not destroy the causal
link between the work injury and his temporary total loss of
earning capacity." Id.
The court reasoned:
"The [Workers' Compensation] Act was designed to be a
liberal remedial scheme to partially compensate workers for
lost wages due to employment related disabilities. * * * We
conclude that the remedial policy of the Act is furthered by
providing compensation for temporary disability even when a
concurrent unrelated medical condition has also rendered the
worker unable to earn his or her normal wages. To construe the
Act so as to deny coverage would create a windfall to employers
simply because of the employee's misfortune in developing an
independent medical problem." Id. at 959.
The Washington Court of Appeals reached the same result in
Shea v. Dept. of Labor & Industries (1974), 12 Wash. App. 410,
529 P.2d 1131. There, the claimant injured his back on the
job. At the time of the accident, claimant also had a
nonindustrial vascular condition, which, through medication,
did not affect his ability to work. As the years passed, both
his back and vascular conditions worsened.
Claimant eventually exited the work force. It is not
known from the opinion which condition (or possibly both)
prompted him to leave. Nevertheless, by the time claimant
filed for permanent total disability compensation, the medical
evidence established that either condition, independent of the
other, kept claimant from working.
The court found that because the back condition alone was
permanently and totally disabling, the existence of a separate
nonindustrial disability did not bar permanent total disability
compensation. Underlying the decision was the:
"* * * [O]bvious - - and oft repeated - - concept that the
workmen's compensation act was designed to provide benefits not
only to workmen with no prior physical or mental impediments,
but also to workmen who may be afflicted with preexisting
physical or mental infirmities or disabilities * * *." Id. at
414, 529 P.2d at 1133.
Accordingly, the court ruled:
"* * * [I]f the injury complained of is a proximate cause
of the disability for which compensation is sought, the
previous physical condition of the workman is immaterial and
recovery may be had for the full disability independent of any
preexisting weaknesses." (Emphasis sic.) Id.
Ensley and Shea are well reasoned. A claimant whose
allowed conditions, either alone or together with nonmedical
factors, prevent sustained remunerative employment should not
be penalized in a permanent total disability determination
simply because he or she is unfortunate enough to have other
health problems. We therefore, find that the mere presence of
nonallowed disabling conditions does not automatically
foreclose a finding of permanent total disability.
Finding, therefore, that claimant has not automatically
forfeited his eligibility for permanent total disability
compensation, we turn to claimant's assertion that the

commission's order violates State ex rel. Noll v. Indus. Comm.
(1990), 57 Ohio St.3d 203, 567 N.E.2d 245. Noll requires the
commission to "prepare fact specific orders which will be
meaningful upon review," by setting forth the reasoning for its
decision. Id. at 206, 567 N.E.2d at 248.
As this case demonstrates, the permanent total disability
decisions that are appealed to this court are, factually, close
calls. Almost all involve a claimant who retains some medical
capacity for work, making the role of nonmedical factors even
more critical. It is not enough, in this case, for the
commission to merely recite that "claimant is 53 years old, has
an eighth grade education, and has worked as a cement finisher
and working foreman." These factors are susceptible to both
positive or negative interpretations depending on the reviewer,
and, therefore, mere recitation gives no insight into the
commission's reasoning. If, for example, the commission views
these factors as assets to retraining, it should say so.
Specific recitation, without more, is only slightly better than
the old boilerplate language assailed in Noll. We, therefore,
return the order to the commission for further consideration
and an amended order.
This case does not conflict with our earlier decision in
LTV, supra. LTV held that the presence of a totally disabling
nonindustrial condition negated the need for further Noll
consideration. Unlike this case, however, the claimant in LTV
suffered no underlying impairment whatsoever from the allowed
condition. There was thus no allowed condition/impairment with
which Stephenson factors could conceivably combine to produce
permanent total disability. The present claimant clearly has a
work-related physical impairment with which Stephenson factors
could combine.
For the above reasons, the judgment of the court of
appeals is affirmed and the cause is returned to the commission
for additional consideration and an amended order consistent
with Noll.

Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.