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

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1 The State ex rel. Rhoten, Appellee, v. Industrial Commission of Ohio,
2 Appellant.
3 [Cite as State ex rel. Rhoten v. Indus. Comm. (1996), _____ Ohio St.3d
4 _____.]
5 Workers' compensation -- Application for permanent total disability
6 compensation -- Industrial Commission abuses its discretion in
7 denying claim when its order does not satisfy Noll requirements.
8
(No. 94-2137--Submitted July 24, 1996--Decided October 23, 1996.)
9
APPEAL from the Court of Appeals for Franklin County, No.
10 93APD08-1158.
11
Appellee-claimant, Evelyn J. Rhoten, sustained two injuries in the
12 course of and arising from her employment as a housekeeper for Best
13 Western East motel in Mason, Ohio. Her workers' compensation claims were
14 collectively allowed for "acute strain right knee, aggravation of pre-existing
15 lumbar strain, osteoarthritis right knee, herniated intervertebral disc L3-4
16 with severe facet arthrosis."
17
In 1991, she moved appellant, Industrial Commission of Ohio, for
18 permanent total disability compensation. Dr. Edward M. Slowik found
19 claimant unable to do "repetitive bending, twisting, squatting, crouching,

1 kneeling, standing or crawling" and assessed a permanent total impairment.
2 Dr. Arnold R. Penix assessed claimant a forty-one percent permanent partial
3 impairment with a capacity for sedentary to light work.
4
Conducting a psychological evaluation with emphasis on vocational
5 factors, Kenneth Tecklenburg, Ph.D., found that claimant's intellectual
6 functioning was in a low average range. He noted that "[n]ormally,
7 individuals who scores [sic] in this range are able to obtain a high school
8 degree." He also felt, however, that claimant's age and unskilled work
9 history offset her learning capacity and realistically prevented sustained
10 remunerative employment.
11
An initial order by the commission in 1992, denying permanent total
12 disability compensation, was returned to the commission by the court of
13 appeals for further consideration pursuant to State ex rel. Noll v. Indus.
14 Comm. (1990), 57 Ohio St.3d 203, 567 N.E.2d 245. This generated a second
15 order in 1993, denying permanent total disability compensation, which read:
16
"* * * The order is based particularly upon the reports [sic] of Doctor
17 Penix, evidence in the file and/or evidence adduced at the hearing.

2

1
"Medical evidence on file reveals that the claimant's physical
2 presentation permits her to engage in sedentary to light duty work activity. In
3 this regard the Commission relies upon the report of Arnold R. Penix, M.D.,
4 disinterested orthopedic specialist. Dr. Penix examined the claimant and
5 found a 41% permanent partial impairment secondary to the allowed
6 conditions in both claims. Dr. Penix's exam includes numerous normal
7 objective physical findings including negative straight leg raising, normal
8 sensory exam, normal reflexes at the knees and ankles, normal strength in the
9 quadriceps, hamstrings, and extensor hallucis longus bilaterally. Dr. Penix
10 concluded the industrial injuries do not prohibit the claimant from engaging
11 in all forms of sustained remunerative employment. He reported that the
12 claimant can engage in sedentary work activity at this time, however, she is
13 medically stable to participate in rehabilitation services at a sedentary to light
14 duty activity level. Dr. Penix recommended weight loss, reconditioning and
15 a job search for sedentary to light duty employment. As such, the
16 Commission finds the medical evidence to indicate the claimant has the
17 capacity to perform sedentary to light work activity. From a vocational
18 perspective it is found that claimant possesses the requisite skills to perform

3

1 sedentary to light duty work activity. The claimant has a varied work history
2 which includes being a cookie packer, tabacco [sic] bag catcher, residential
3 cleaner, machine operator and commercial housekeeper. The claimant has
4 only a seventh grade education, however, K. Tecklenburg, Ph.D. reported
5 claimant's IQ indicates the potential to learn new material. While the
6 claimant cannot resume her former duties as a commercial housekeeper, she
7 can perform other sustained remunerative employment. It is noted the
8 claimant has prior work experience at various factory jobs. It is found that
9 she is physically capable of resuming sedentary to light factory work, as well
10 as other sedentary to light employment; and she has the IQ to learn new tasks.
11 At the age of 66 the claimant may choose not to re-enter the work force,
12 however, she is capable of engaging in sustained remunerative employment
13 considering the industrial injuries. Therefore, the application for permanent
14 total disability is denied."
15
Claimant filed a complaint in mandamus in the Court of Appeals for
16 Franklin County, alleging that the commission abused its discretion in
17 denying permanent total disability compensation. The appellate court agreed
18 and ordered the commission to award permanent total disability

4

1 compensation pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d
2 315, 626 N.E.2d 666.
3
This cause is now before this court upon an appeal as of right.
4
Finkelmeier & Finkelmeier and William I. Farrell, for appellee.
5
Betty D. Montgomery, Attorney General, and Diane M. Meftah,
6 Assistant Attorney General, for appellant.
7
Per Curiam. We are once again asked to evaluate the sufficiency of
8 what is actually the second permanent total disability order issued in this
9 case. The first order was returned to the commission by the court of appeals
10 after the latter concluded that the order did not adequately explain its
11 reasoning as Noll demands. The ensuing order, now before us, was also
12 found by the appellate court to be Noll-deficient -- a conclusion with which
13 we agree.
14
Claimant's medical capacity for sedentary work is not seriously
15 disputed. At issue, therefore, are claimant's nonmedical disability factors,
16 particularly her age, work history, and education. Beginning with the last
17 element, the commission's disposition of the education factor was not an
18 abuse of discretion.

5

1
The tenor of the commission's analysis suggests a recognition of the
2 impediment presented by claimant's seventh grade education. The
3 commission reasoned, however, that the lack of formal schooling was offset,
4 to some degree, by claimant's intellectual capacity to be retrained. This is a
5 defensible conclusion.
6
We recognize the obstacle that the lack of a high school degree can
7 present. We also, however, recognize that the absence of a high school
8 diploma does not necessarily denote a lack of a claimant's intelligence. In
9 some cases, an otherwise bright claimant may lack a diploma because
10 uncontrollable circumstances forced the claimant to exit school prematurely.
11 In this case, Dr. Tecklenburg concluded that claimant was intellectually
12 capable of completing high school had she not been forced to leave to care
13 for her siblings. The commission did not, therefore, abuse its discretion in
14 finding that claimant's education was not a complete barrier to retraining.
15
The commission's treatment of claimant's work history is more
16 tenuous. The commission noted claimant's prior factory employment,
17 including her jobs in the 1940s as a cookie packer and as a tobacco bag
18 catcher. While we acknowledge the commission's considerable latitude in

6

1 the interpretation of nonmedical disability factors, we find that, in this
2 instance, the commission's reliance on two positions that claimant performed
3 nearly fifty years ago constitutes an abuse of discretion. Removing these jobs
4 from our consideration leaves claimant with only one year of factory
5 experience that is vastly outweighed by claimant's years of housekeeping --
6 work she can no longer perform.
7
Two assumptions by the commission further undermine its analysis.
8 The first is that every job produces some transferable skill. The second is
9 that this claimant's prior jobs left her with skills transferable to sedentary
10 work.
11
The commission's first assumption ignores the plethora of unskilled
12 jobs in the workplace. The second ignores that none of claimant's jobs had
13 been sedentary. It is thus unclear how claimant's jobs would yield sedentary
14 skills.
15
The commission could, of course, have facilitated review by
16 identifying these perceived "skills." Under similar circumstances, the court
17 in State ex rel. Haddix v. Indus. Comm. (1994), 70 Ohio St.3d 59, 61, 636
18 N.E.2d 323, 324, held:

7

1
"The commission determined that claimant's prior work as a gas
2 station attendant and press operator provided him with skills transferable to
3 sedentary employment. The commission's order, however, does not identify
4 what those skills are. Such elaboration is critical in this case, since common
5 sense suggests that neither prior work is, in and of itself, sedentary.
6
"The commission responds that it `inferred' from claimant's gas station
7 job that claimant `perform[ed] a variety of duties, which would include such
8 things as pumping gas, washing windows, dealing with customers at retail,
9 making change, filling out credit card slips, operating the cash register, and
10 light custodial work.' Again, however, none of this explanation was stated in
11 the order. Moreover, pumping gas, washing windows and light custodial
12 duties do not suggest sedentary employment.
13
"The commission's order, contrary to Noll, does not, therefore,
14 adequately explain how these vocationally neutral and/or unfavorable factors
15 combine to produce a claimant who is able to work. * * *"
16
In summary, claimant spent all but one year of her recent work history
17 employed as a housekeeper--a job that is now foreclosed by injury. At best,
18 claimant's work history could be considered as vocationally neutral if viewed

8

1 as being offset by claimant's capacity to retrain. It is perhaps more accurate
2 to view claimant's work history unfavorably, but under no circumstances
3 should it be deemed an asset. In so doing, the commission abused its
4 discretion.
5
The final variable noted by the commission was claimant's age. The
6 commission did not expressly declare claimant's age to be an asset or
7 liability, although, again, the order's tone suggests recognition of the
8 obstacles to employment that claimant's age (sixty-six) might provide. The
9 effect of age, however, like other factors, can be diminished by other
10 characteristics possessed by the claimant. An advanced age that might be
11 employment-prohibitive to a laborer may not have the same effect on a white
12 collar worker.
13
In this case, the commission appears to downplay the negative aspects
14 of claimant's age by speculating that if the claimant indeed failed to return to
15 work, it may be due to personal choice. We reject this reasoning.
16
The claimant undeniably had that option, but there is no evidence that
17 claimant ever voiced an unwillingness to return to work if able. To the
18 contrary, claimant's permanent total disability compensation application and

9

1 Dr. Tecklenburg's report reflect claimant's enjoyment of her work and her
2 regret that she could not return to it. The commission's reasoning constitutes
3 an abuse of discretion.
4
Taken together, these errors compel us to conclude that the
5 commission's order does not satisfy Noll. Considering both the claimant's
6 overall presentation and the commission's failure on two occasions to
7 produce a Noll-compliant order, we hereby affirm the issuance of a writ of
8 mandamus pursuant to our decision in Gay.
9
Accordingly, the judgment of the court of appeals is affirmed.
10
Judgment affirmed.
11
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK,
12 JJ., concur.
13
STRATTON, J., dissents.
14
STRATTON, J., dissenting. Not only was the Industrial Commission's
15 order supported by "some" evidence, it explained in great detail the factors
16 involved in its denial of permanent total disability compensation. The
17 majority seems to require an extraordinarily detailed listing of precise skills
18 that can transfer to other work; yet I can think of a host of sedentary jobs that
10

1 someone with claimant's background can perform based on the commission's
2 summary.
3
In addition, the majority's treatment of age virtually turns workers'
4 compensation into a retirement program. I do not believe that the purpose of
5 workers' compensation is to provide a cushion for everyone who reaches
6 retirement age and finds re-employment more difficult. Yet this is what this
7 court seems to require of workers' compensation. There is inherent reverse
8 age discrimination here -- if an older worker sustains the same injury as a
9 younger worker, under the majority's standard, the older worker is more
10 likely to receive compensation for the same injury simply because of his or
11 her age. This is unfair to both the younger worker and the employer. It also
12 provides a disincentive to employers to hire older workers because of greater
13 exposure to higher workers' compensation awards. I do not believe this is
14 the intent of the majority's opinion, but I believe that it will be the result.
15 Therefore, I respectfully dissent.
16
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