State ex rel. Whetstone v. Bonded Oil Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Whetstone, Appellant, v. Bonded Oil Company;
Industrial Commission of Ohio, Appellee.
[Cite as State ex rel. Whetstone v. Bonded Oil Co.
(1995),
Ohio St.3d .]
Workers' compensation -- Nonallowed pre-existing condition may
not be considered under Stephenson's "all other factors"
-- Permanent total disability compensation not permitted
by combining insignificant work injury with serious
nonindustrial health problems.
(No. 94-166 -- Submitted June 6, 1995 -- Decided August
16, 1995.)
Appeal from the Court of Appeals for Franklin County, No.
93AP-81.
Appellant-claimant, Phillip Whetstone, is a
forty-six-year-old high-school graduate. When he was
twenty-five, he injured his back in the course of and arising
from his employment with respondent Bonded Oil Company.
Although treatment has been conservative, he has not worked
since 1976. In 1980, his claim was additionally allowed for
"severe depressive neurosis."
In 1988, claimant applied for permanent total disability
compensation. Medical evidence before appellee, Industrial
Commission of Ohio, uniformly found that claimant was
physically capable of gainful employment. Psychologically, the
examiners noted claimant's explosive personality. In terms of
impairment related to the industrial injury, the evidence
ranged from zero percent permanent partial psychiatric
impairment to permanent total impairment. As to the latter,
Dr. Thomas T. F. Tsai based his opinion on the following
observations:
"* * * Mr. Whetstone * * * [a]ppears to be somewhat tense
and started to talk without asking. He sat down quickly and
began to give [many] details about his suffering. He's well
oriented in all spheres. His speech is not clear but although
[sic] is understandable due to his anxiety[,] his
verbalizations [are] not well organized. His memory is intact
and his intelligence is estimated at average level. His

thought processes showed no gross abnormalities but thought
contents were saturated with hopelessness and [he] feels bad
for himself. His affect showed definite depression with
anxiety and somatization. His judgment and insights are only
fair."
Dr. Lee Howard reported:
"The claimant's present complaints include irritability
and explosive outbursts. However, it should be noted that the
claimant admitted problems with physical abuse with his first
wife prior to the Industrial accident in question. He is
currently separated from his second wife due to the same
problem. The modal diagnosis is a passive aggressive
personality disorder with explosive features. This condition
predated the Industrial accident in question and there are no
evidences [sic] of aggravation.
"Although the claimant does experience some depression, it
is primarily secondary to his personality disorder which causes
an inability to effectively interact with others. The
industrial accident is minimally responsible. He uses it as a
source for projection of blame. There is poor motivation for
change. He has not attempted to work for approximately 12
years."
Dr. Paul H. Dillahunt assessed a forty-four-percent
combined-effects impairment. He also stated:
"In addition to the orthopedic impairment, it must be
noted that claimant's mental impairment would further
compromise claimant's occupational opportunities. Claimant is
tense, nervous, irritable, anxious, shaky with a short fuse and
he lacks coping skills which would indicate claimant should be
employed in a low stress occupation. Claimant's memory is
impaired for recent and remote events and claimant has periods
of forgetfulness which would compromise claimant's ability to
remember locations or work-like procedures or to understand and
remember detailed instructions. * * * Claimant has social
withdrawal with isolation which would compromise claimant's
ability to work in coordination with or in proximity to others
without being distracted by them. * * * Claimant has periods
of confusion which would question claimant's ability to sustain
an ordinary routine without special supervision. Claimant
retains the ability to comprehend and reason which indicates
claimant has [the] ability to make simple work related
decisions."
The commission, on April 29, 1992, denied permanent total
disability compensation, writing:
"Claimant is age 43, is a high school graduate and has a
work history as a dockworker and auto reconditioner. Claimant
has had conservative medical care and has not had surgery. Dr.
Howard opined claimant could return to his former position of
employment. Drs. Kackley and Dillahunt opined claimant could
engage in sustained remunerative employment. Based upon
claimant's young age, [being a] high school graduate and the
above medical findings, claimant is found not to be
[permanently and totally disabled]."
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, claiming that the commission
abused its discretion in failing to factor in the "passive
aggressive personality disorder with explosive features"

referred to by Dr. Howard. Because that condition had not been
allowed in the claim, the appellate court found no error and
denied the writ.
This cause is now before this court upon an appeal as of
right.

John R. Workman, for appellant.
Betty D. Montgomery, Attorney General, and Janie D.
Roberts, Assistant Attorney General, for appellee.

Per Curiam. State ex rel. Stephenson v. Indus. Comm.
(1987), 31 Ohio St.3d 167, 173, 31 OBR 369, 374, 509 N.E.2d
946, 951, directed the commission to "look at the claimant's
age, education, work record, and all other factors, such as
physical, psychological, and sociological that are contained
within the record in making its determination of permanent
total disability."
Claimant has a nonallowed pre-existing condition that Dr.
Howard described as a "passive aggressive personality disorder
with explosive features." Claimant asserts that this condition
falls within the "all other factors" of which Stephenson
demands consideration.
Claimant's position effectively nullifies the important
distinction between allowed and nonallowed conditions by
according the two equal consideration, the latter under the
guise of "all other factors." Claimant's proposition also
effectively permits a claimant to receive permanent total
disability compensation by combining the most insignificant
work injury with serious nonindustrial health problems. Being
unable to ascribe either intent to Stephenson, we reject
claimant's argument.
Claimant also unpersuasively asserts a violation of State
ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567
N.E.2d 245. The citation of claimant's youth, educational
attainment, and history of conservative medical care, however,
is consistent with an order that we approved in State ex rel.
Hart v. Indus. Comm. (1993), 66 Ohio St.3d 95, 609 N.E.2d 166.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.