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

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The State ex rel. Bryant, Appellant, v. Industrial Commission of Ohio,
Appellee.
[Cite as State ex rel. Bryant v. Indus. Comm. (1996), _____ Ohio St. 3d _____.]
Workers' compensation -- Application for permanent total disability
compensation denied by Industrial Commission -- Cause
returned to commission by Supreme Court for further
consideration and amended order, when.

(No. 94-1093--Submitted October 24, 1995--Decided February 7, 1996.)
Appeal from the Court of Appeals for Franklin County, No. 93APD05-
685.

Appellant-claimant, Otis Bryant, was awarded workers' compensation
benefits for a "cervical fracture and subluxation of C2-3 with left-sided
weakness" which occurred while in the course of and arising from his
employment with Human Involvement Pro. In 1991, he moved appellee,
Industrial Commission of Ohio, for permanent total disability compensation.

Among the medical evidence before the commission was the report of
Dr. Ron M. Koppenhoeffer, who stated:

"When one takes into effect his decreased range of motion involving his
left shoulder, cervical spine, as well as his spinal cord injury, I believe Mr.

Bryant has a forty-one percent (41%) permanent partial impairment to the body
as a whole. *** With his decreased range of motion of his shoulder and neck, I
do not believe he could return to his former position of employment. His
coordination would also interfere with his ability to return at that position.

"The patient is medically and psychologically stable to participate in
rehabilitation services. However, I believe his current age of 79 and his limited
formal education would prohibit him from being placed in rehabilitation.
However, with these factors aside, I believe he should be recommended for
sedentary to possibly light activities. *** "

On July 20, 1992, a commission deputy awarded permanent total
disability in an interlocutory order, writing:

"This order is based particularly upon the report(s) of Dr. Nobunaga,
who for the claimant, dated 1-23-92, who found claimant's [sic] is unlikely to
perform substantial gainful employment on a sustained basis, [and] Dr.
Koppenhoeffer for the Industrial Commission dated 2-28-92 who found
claimant's age of 79 and his limited formal education would prohibit him from
being placed in rehabilitation. A consideration of the claimant's age of 79, 7th
grade education, [and] a work history which includes job as a woodworker and

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manual work ***. Additional factors considered in reaching this decision were
claimant's age of 79, his 7th grade education, his limitations concerning use of
his hands in regards to dexterity activities and the vocational report from
Michael Farrell, Ph.D. and associates."

However, when the application was heard by the full commission, it
denied permanent total disability compensation, stating:

"The entirety of the medical evidence was reviewed relative to the
instant application, and the Commission has found to be persuasive the report
of Dr. Koppenhoeffer. The report is found to conclude that the allowed
conditions in the claim do not prevent the claimant from performing light to
sedentary levels of employment. Additionally, this report states that the
claimant is medically stable to participate in rehabilitation services in an
attempt to return him to the active workforce. As such, the Commission finds
the claimant's education to be of a sufficient degree to participate in and
benefit from retraining in light to sedentary levels of employment. Moreover,
the commission finds that the claimant's work history as a vocational instructor
relates that he would be able to use and implement skills acquired in
rehabilitation in a sustained fashion. It is noted that claimant had completed a

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vocational program previously, and prior to injury, in order to secure his
position with the instant employer. It is also noted the commission does not
find the claimant's current age of 80 to be an impediment to his undergoing
retraining or work hardening as the commission is convinced by statements
within the file that he was intending to work for a number of years past
retirement age. As evidence of this, it is noted that the claimant was 72 at the
time of injury. Based on these factors which speak to the claimant's ability to
be retrained vocationally, the Commission has found the report of Mr.
Techlenberg to not be persuasive. Accordingly, the Commission finds the
claimant to be able to sustain remunerative employment."

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, claiming the commission abused its discretion in denying
permanent total disability compensation. The appellate court denied the writ
after finding the commission's order was supported by "some evidence."

This cause is now before this court upon an appeal as of right.

Butkovich, Schimp, Schimp & Ginocchio Co., L.P.A., and James A.
Whittaker, for appellant.

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Betty D. Montgomery, Attorney General, and Janie D. Roberts, Assistant
Attorney General, for appellee.

Per Curiam. Claimant seeks to compel a permanent total disability
compensation award pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.
3d 315, 626 N.E. 2d 666. Upon review, we find such relief to be inappropriate,
and return the cause to the commission for further consideration and amended
order pursuant to State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St. 3d 203,
567 N.E.2d 245.

Preliminary to any consideration of relief pursuant to Gay is a finding
that Noll has not been met. State ex rel. Sebestyen v. Indus. Comm. (1994), 71
Ohio St.3d 36, 38, 641 N.E.2d 197, 199. Noll noncompliance in this case
stems from a deficiency which we are encountering with increasing frequency--
the inconsistency between the commission's actions and words.

The commission cites claimant's occupational longevity as evidence that
retraining is unimpeded by age. Several months earlier, however, the
commission refused to refer claimant to its own rehabilitation division because
it felt that claimant was too old. Claimant either is or is not too old for
effective retraining--he cannot be both.

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Left to decide between Noll or Gay relief, we elect the former. As we
reaffirmed in State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d
373, 658 N.E.2d 1055, we will not review the commission's findings de novo.
To proceed further in this instance would force us to speculate as to which age
assessment more accurately reflects the commission's views--an action we
decline to take. Guidance from the commission is imperative on this important
issue.

Accordingly, the judgment of the court of appeals is reversed and a
limited writ is issued that returns the cause to the commission for further
consideration and amended order.
Judgment reversed,
and limited writ granted.

DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., and COOK, JJ., dissent.
Cook, J., dissenting. I respectfully dissent. Because I consider the
commission's order to have sufficiently explained its bases for the decision to
deny permanent total disability compensation to this claimant, I would affirm
the judgment of the court of appeals to deny the writ.

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In explaining its order, the commission cited that the claimant is not
medically prevented from performing light to sedentary work, that factors such
as his work history as a vocational instructor and his prior participation in a
vocational program support his ability to retrain vocationally, and that the file
reflects that the claimant planned to work for a number of years past retirement.
Noll requirements are satisfied by the commission's order, in my view, and
there is "some evidence" in the order which supports the decision. Thus, the
decision of the commission that claimant is able to sustain remunerative
employment should not be overridden by the age and education factors seized
by the majority.

The rationale of the majority decision can legitimately be construed to
mean that if a claimant is over eighty years old with a seventh grade education,
that claimant is permanently and totally disabled as a matter of law.

MOYER, C.J., concurs in the foregoing dissenting opinion.

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