State ex rel. Ellis v. McGraw Edison Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Ellis, Appellant, v. McGraw Edison Company et
al., Appellees.
[Cite as State ex rel. Ellis v. McGraw Edison Co. (1993),
Ohio St. 3d .]
Workers' compensation -- Application for permanent total
disability compensation denied when claimant found capable
of sustained remunerative employment -- Commission
interpretation of nonmedical factors -- Specialized
vocational or rehabilitation reports not accorded greater
weight than other evidence.
(No. 92-1000 -- Submitted February 2, 1993 -- Decided
April 7, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-727.
Appellant-claimant, Thomas E. Ellis, sustained three
low-back injuries while in the course of and arising from his
employment as an unskilled laborer with appellee McGraw Edison
Company. Claimant did not return to work after the third
injury in 1985. In 1989, claimant moved appellee Industrial
Commission of Ohio for permanent total disability compensation.
Among the medical evidence presented was commission
specialist Dr. J.D. Hutchison's report concluded that claimant
was permanently partially, not permanently totally, impaired at
twenty-five percent. Dr. Hutchison felt that claimant could:
"Resume some light work activity in which he could lift up to
25 to 30 lbs. occasionally and 15 lbs. frequently. He could
work both sitting and standing positions as long as he was able
to get up and move about and change positions periodically."
On May 3, 1991, the commission denied claimant permanent
total disability compensation, writing:
"* * * [T]he claimant is not permanently and totally
disabled for the reason that the disability is not total; that
is, the claimant is able to perform sustained remunerative
employment * * *.
"The reports of Doctors Steiman, Hutchison, Dorgan, [and]
McCloud were reviewed and evaluated.
"This order is based particularly upon the reports of
Doctors [sic] Hutchison, 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 objective findings contained in the report of Dr.
Hutchison reflect claimant is capable of sustained remunerative
activity at the light level. His relatively young age and
education reflects [sic] he retains the transferable skills to
engage in light job duties."
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission's
order: (1) was not supported by "some evidence," as required by
State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.
3d 18, 31 OBR 70, 508 N.E. 2d 936, syllabus, and (2)
inadequately explained why permanent total disability
compensation was denied, contrary to State ex rel. Noll v.
Indus. Comm. (1991), 57 Ohio St. 3d 203, 567 N.E.2d 245. The
appellate court denied the writ.
This cause is now before the court upon an appeal as of
right.

Espy & Benton and Fredrick D. Benton, Jr., for appellant.
Squire, Sanders & Dempsey and Preston J. Garvin, for
appellee McGraw Edison Co.
Lee I. Fisher, Attorney General, and Merl H. Wayman,
Assistant Attorney General, for appellee Industrial Commission.

Per Curiam. Recognizing that generic permanent total
disability orders hindered evidentiary review, Noll, supra,
ordered the Industrial Commission to prepare "orders on a
case-by-case basis which are fact-specific and which contain
reasons explaining its decisions. * * * Such order must
specifically state what evidence has been relied upon to reach
its conclusion and, most important, briefly explain the basis
of its decision." Id. at 206, 567 N.E.2d at 249.
The order at issue specified that permanent total
disability compensation was denied because claimant was found
capable of sustained remunerative employment. It also
explained how the commission reached that conclusion. In this
case, the commission found that claimant's age and education
aided his retraining for an occupation consistent with his
physical abilities. The order, therefore, satifies Noll.
Despite his assertions to the contrary, claimant's assault
on the commission's order deals far more with the commission's
interpretation of the nonmedical factors - - particularly
claimant's education - - than to the order's form or content.
Claimant's position, however, contradicts the commission's role
as exclusive evaluator of both disability, State ex rel.
Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 172-173,
31 OBR 369, 374, 509 N.E.2d 946, 951, and evidentiary weight,
Burley, supra, at 20-21, 31 OBR at 72, 508 N.E.2d at 938. The
commission's present order indicates consideration of
nonmedical evidence. The commission and claimant simply
differed on the impact of claimant's nonmedical disability
factors.
The commission exercised its prerogative in concluding

that, at age fifty-one, claimant was young, not old, and that
his age was a help, not a hinderance. So, too, is the
conclusion with regard to claimant's education, which also
derives support from the record. More so than claimant's age,
his education can be interpreted as either an asset or a
liability. While his grade school level of spelling and
below-average reading ability clearly can be perceived
negatively, the same rehabilitation report that determined
these academic skills to be a limitation nonetheless concluded
that his high school education was an asset. The commission
was persuaded by the latter conclusion.
Claimant strongly suggests that the commission was bound
by another report from the commission's rehabilitation division
that concluded that claimant was unemployable. This claim
fails. Specialized vocational or rehabilitation reports are
not accorded greater weight than other evidence. See State ex
rel. Speelman v. Indus. Comm. (1992), 73 Ohio App.3d 757, 598
N.E.2d 192. To 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.
For the reasons given above, the judgment of the court of
appeals is affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, F.E. Sweeney
and Pfeifer, JJ., concur.
Resnick, J., concurs in judgment only.