State ex rel. Wean United, Inc. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Wean United, Inc., Appellant, v. Industrial
Commission of Ohio et al., Appellees.
[Cite as State ex rel. Wean United, Inc. v. Indus. Comm.
(1993), Ohio St.3d .]
Workers' compensation -- Application for permanent total
disability compensation -- Finding of permanent total
disability requires that claimant prove that inability to
perform sustained remunerative employment arises
exclusively from claim's allowed conditions -- Commission
abuses its discretion when it fails to consider nonmedical
disability factors.
(No. 92-1990 -- Submitted March 16, 1993 -- Decided May
19, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-635.
Appellee-claimant, John DiMartino, in 1976, suffered a
"lumbar herniated disc" while in the course of and arising from
his employment with appellant, Wean United, Inc., a
self-insured employer. His workers' compensation claim was
allowed for this condition only. Claimant also has several
other severe medical problems that are unrelated to his work
injury. These include deep vein thrombosis, cerebrovascular
disease and carotid artery disease, as well as pulmonary
embolism.
In 1985, claimant filed a motion for permanent total
disability compensation with the appellee Industrial Commission
of Ohio. The sole evidence submitted in support of his
application was a C84 "physician's report supplemental"
completed by attending physician, Felix A. Pesa. Under
"[p]resent complaints and condition(s)," Dr. Pesa listed "foggy
feeling; using Jobst stocking for leg pain." Objective
findings given were "Lumbar Herniated Disc Disease[;] Chronic
Venous Insufficiency; past Thrombophlebitis." Subjective
findings noted "Remissions & Exacerbations of leg pain & back
pain." Dr. Pesa did not comment on claimant's ability to
perform sustained remunerative employment, although he did say
that claimant could never return to his former job. However,
when asked on the same form to identify "claimant's position of

employment at the time of injury" and "claimant's duties," Dr.
Pesa responded with a question mark.
While his permanent total disability motion was pending,
claimant requested that his claim be additionally allowed for
"Deep Vein Thrombosis (right leg)[,] Cerebrovascular Disease
and Carotid Artery Disease." For reasons unknown, the
commission chose to hear claimant's permanent total disability
motion before it considered the issue of additional allowance.
The commission in 1987 granted permanent total disability
compensation based solely on Dr. Pesa's report. There is no
indication that nonmedical disability factors were considered.
In 1988, the commission disallowed the additional claim
for the cerebrovascular disease and cartoid artery disease
condition, but allowed the claim for the deep vein thrombosis
condition. Upon appeal by claimant's employer to the trial
court, claimant's right to participate in the State Insurance
Fund for the thrombosis condition was denied by judgment entry
on August 9, 1990. On August 23, 1990, appellant moved the
commission to reconsider its permanent total disability order,
based on the formal disallowance of the vascular conditions.
After a hearing, the commission denied appellant's motion,
writing:
"It is the decision of the Industrial Commission to deny
the employer's motion for reconsideration of the permanent
total award, filed 8-23-90. This order is based upon the
medical evidence of record, including the reports of Dr.
[Dennis B.] Brooks, dated 6-12-90, and Dr. [Nicholas P.]
DePizzo, dated 1-7-91.
"It is the specific finding of the Commission that the
evidence submitted at this hearing did not present medical
evidence that was not previously considered. * * *"
Appellant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in awarding permanent total disability
benefits. The appellate court found that appellant had
unreasonably delayed in filing its complaint and, as a result,
was barred by laches from pursuing this action.
This cause is now before this court upon an appeal as of
right.

Vorys, Sater, Seymour & Pease and Robert E. Tait, for
appellant.
Lee I. Fisher, Attorney General, and William J. McDonald,
Assistant Attorney General, for appellee Industrial Commission.
Schiavoni, Schiavoni & Bush and Joseph J. Bush III, for
apellee John DiMartino.

Per Curiam. Claimant has severe health problems that are
unrelated to his industrial injury, and no one seriously
disputes that he is unable to work. However, a finding of
permanent total disability requires a claimant to prove that
his or her inability to perform sustained remunerative
employment arises exclusively from the claim's allowed
conditions. State ex rel. Jennings v. Indus. Comm. (1982), 1
Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420; Fox v. Indus. Comm.
(1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1.
In this case, there are serious problems with the

supporting medical evidence and the commission's order itself.
As to the former, each of the medical reports cited - - Pesa,
DePizzo and Brooks - - is flawed in its own way. Dr. Brooks,
for example, never discusses the key question of claimant's
ability to perform sustained remunerative employment. Dr. Pesa
also does not discuss that question, limiting his discussion to
claimant's ability to return to his former position of
employment only. Dr. Pesa, moreover, attributes claimant's
inability to return to work in great part to nonallowed
conditions. Finally, Dr. DePizzo is the only one who addresses
sustained remunerative employment, but bases his opinion on
medical and nonmedical factors, contrary to State ex rel.
Lawrence v. Am. Lubricants Co. (1988), 40 Ohio St.3d 321, 533
N.E.2d 344.
The evidentiary problems are compounded by the
commission's failure - - as demonstrated by its order - - to
consider nonmedical disability factors. State ex rel.
Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR
369, 509 N.E.2d 946. Dr. Brooks indicates in his report that
claimant does possess a partial impairment attributable to his
allowed back condition. This together with nonmedical factors
could conceivably produce permanent total disability. The
commission, therefore, abused its discretion by failing to
consider those nonmedical factors, warranting a return of the
cause to the commission for further consideration and amended
order.
This action, of course, is premised on our finding that
laches does not bar this cause of action. Laches is "'an
omission to assert a right for an unreasonable and unexplained
length of time, under circumstances prejudicial to the adverse
party.'" Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 15 OBR
134, 135, 472 N.E.2d 328, 329. Delay, however:
"[D]oes not of itself constitute laches, and in order to
successfully invoke the equitable doctrine of laches it must be
shown that the person for whose benefit the doctrine will
operate has been materially prejudiced by the delay of the
person asserting his claim." Smith v. Smith (1959), 168 Ohio
St. 447, 7 O.O.2d 276, 156 N.E.2d 113, paragraph three of the
syllabus; State ex rel. Case v. Indus. Comm. (1986), 28 Ohio
St.3d 383, 28 OBR 442, 504 N.E.2d 30.
In finding laches, the court of appeals, through its
referee, looked to the nearly four and one-half year gap
between the commission's permanent total disability order and
appellant's mandamus complaint. The appellate court, however,
overlooked a key element of this case - - the pendency of the
claimant's motion for additional allowance at the time
permanent total disability was awarded. Appellant persuasively
argues that it was premature to protest the permanent total
disability decision before the additional allowance issue was
resolved. Appellant stresses that its evidentiary challenge
was viable only if claimant's additional allowance request was
denied. Therefore, the point from which we measure the delay,
in this case, is not the date of the permanent total disability
order, but instead is the date on which claimant's motion for
the allowance of additional conditions was finally resolved.
Because appellant commenced this action within two weeks of the
judgment entry denying the allowed thrombosis condition, we

find no unreasonable or unexplained filing delay.
For these reasons, we reverse the judgment of the court of
appeals and return the cause to the commission for further
consideration of cliamant's permanent total disability
application. The commission is directed to consider only those
conditions formally recognized in the claim as well as the
nonmedical factors enumerated in Stephenson.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Douglas, J., concurs in judgment only.