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

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The State ex rel. Zollner, Appellant, v. Industrial Commission
of Ohio et al., Appellees.
[Cite as State ex rel. Zollner v. Indus. Comm. (1993),
Ohio St.3d .]
Workers' compensation -- Application for permanent disability
compensation -- Claimant alleges omission of "dysthymic
disorder" from enumerated conditions in denial of
application constitutes an abuse of discretion by
commission -- Commission's denial of application not an
abuse of discretion, when.
(No. 92-1753 -- Submitted March 16, 1993 -- Decided May
19, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-957.
Appellant-claimant, Eugene R. Zollner, injured his upper
back in the course of and arising from his employment with
appellee I.M.F.S., Inc. His claim was later amended to include
the psychiatric condition "dysthymic disorder." In late 1986,
he applied for permanent total disability compensation.
The commission denied permanent total disability,
prompting claimant's complaint in mandamus in the Court of
Appeals for Franklin County. Upon review, the court determined
that the order did not satisfy State ex rel. Mitchell v.
Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453
N.E.2d 721, and returned the cause to the commission for
further consideration and an amended order.
The appellate court's decision resulted in a second
permanent total disability hearing. At that time, claimant
submitted the vocational report of Rod W. Durgin, Ph.D., which
concluded that claimant was incapable of sustained remunerative
employment.
The commission again denied claimant's motion, generating
claimant's second mandamus petition. This time, the appellate
court found that the requirements of State ex rel. Noll v.
Indus. Comm. (1991), 57 Ohio St. 3d 203, 567 N.E.2d 245, had
not been met and again returned the cause to the commission.
On June 25, 1991, the commission disallowed permanent
total disability for the third time, writing:

"* * * [T]his claim has been recognized for: Cervical cord
contusion with aggravation of a pre-existing cervical spinal
stenosis and cervical spondylosis.
"* * * [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; that therefore the Permanent Total Disability
Application, filed 12/29/86 be denied.
"The reports of Doctors Giray, Zupnick, Pritscher, Steiman
& Mann were reviewed and evaluated. This order is based
particularly upon the reports of Doctor(s) Steiman & Pritscher,
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 weight of the evidence reflects claimant is not PTD
[permanently totally disabled]. The objective findings
contained within the report[s] of Drs. Steiman and Pritscher
indicate claimant can perform sedentary work activity.
Claimant's education, (11th grade & GED) and varied work
history (repairman, carpenter) reflects [sic] he retains
transferable skills to engage in sedentary work. His advanced
age (58) is an impediment, but not a complete barrier to
engaging in work activity."
Appellant sought another writ of mandamus from the
appellate court, claiming that the commission abused its
discretion by failing to (1) consider his allowed psychiatric
condition and (2) support its decision with "some evidence" as
State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio
St.3d 18, 31 OBR 70, 508 N.E.2d 936, requires. The appellate
court rejected both contentions and denied the writ.
This cause is now before this court upon an appeal as of
right.

Dorf & Rife, Joan H. Rife and Michael D. Dorf, for
appellant.
Lee I. Fisher, Attorney General, and Dennis L. Hufstader,
Assistant Attorney General, for appellee Industrial Commission.

Per Curiam. Claimant alleges that the commission did not
consider either the allowed psychiatric condition or Dr.
Durgin's report. Both claims fail.
Claimant's first assertion is grounded in the omission of
"dysthymic disorder" from the enumerated conditions in the
permanent total disability order. Relying on State ex rel.
Johnson v. Indus. Comm. (1988), 40 Ohio St. 3d 339, 533 N.E.2d
720, claimant contends that the omission constitutes an abuse
of discretion. Johnson, however, is distinguishable. There,
as here, the commission's order did not list an allowed
psychiatric condition among the allowed conditions. However,
in Johnson, the evidence upon which the commission relied to
deny permanent total disability related solely to the
claimant's physical condition. These two factors led us to
question whether the commission indeed considered all allowed
conditions. The order was accordingly returned for
clarification.

In this case, permanent total disability denial was
premised "particularly" on the reports of Dr. Steiman and Dr.
Pritscher, who evaluated claimant's physical and psychiatric
conditions respectively. Thus, the commission clearly took
claimant's psychiatric condition into account in denying
permanent total disability.
Claimant also argues that the commission erred in not
reviewing Dr. Durgin's report. This assertion is also based on
omission - - the order's lack of reference to Durgin's
narrative among the evidence considered. Claimant, however,
has forfeited his right to pursue this argument.
A party who fails to raise an argument in the court below
waives his or her right to raise it here. State ex rel. Gibson
v. Indus. Comm. (1988), 39 Ohio St.3d 319, 530 N.E.2d 916.
Before the appellate court, claimant argued that there was no
evidence supporting the commission's decision. He did not
argue in his brief that the commission did not consider
Durgin's report or allege a resultant abuse of discretion. As
review shows, the commission's second denial order also omitted
reference to Durgin's report, despite the report's submission
at that very hearing. As we stated in State ex rel. B.O.C.
Group, Gen. Motors Corp. v. Indus. Comm. (1991), 58 Ohio St.3d
199, 200, 569 N.E.2d 496:
"Res judicata operates 'to preclude the relitigation of a
point of law or fact that was at issue in a former action
between the same parties and was passed upon by a court of
competent jurisdiction.' * * * It applies 'not only to defenses
which were considered and determined but also to those defenses
which could properly have been considered and determined.' * *
*" (Emphasis added; citations omitted.)
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.