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

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THE STATE EX REL. HALL, APPELLEE, V. INDUSTRIAL COMMISSION OF OHIO,
APPELLANT, ET AL.
[Cite as State ex rel. Hall v. Indus. Comm. (1997), ___ Ohio St.3d ___.]
Workers' compensation -- Industrial Commission's denial of application for
permanent total disability compensation an abuse of discretion, when.

(No. 95-903 -- Submitted October 21, 1997 -- Decided November 19,
1997.)

APPEAL from the Court of Appeals for Franklin County, No. 94APD03-285.

Claimant-appellee Matt Hall's workers' compensation claim has been
allowed for "lumbosacral strain; aggravation of pre-existing arthritis of the lumbar
spine; [and] aggravation of pre-existing dysthymic disorder." Claimant apparently
never returned to work after his injury and received temporary total disability
compensation thereafter.

In 1988, claimant moved appellant Industrial Commission of Ohio for
permanent total disability compensation. On September 26, 1990, a hearing was
held before a commission staff hearing officer on the issues of continued
temporary total disability compensation and permanent total disability compensa-
tion. The staff hearing officer terminated temporary total compensation after
finding that the claimant's condition had become permanent. On the issue of
permanent total disability, the staff hearing officer, sitting as deputy of the
commission pursuant to R.C. 4121.06, issued the following order:
"FINDINGS OF FACT AND ORDER OF THE COMMISSION
"INTERLOCUTORY ORDER

"It is the finding of the Commission that the claimant is permanently and
totally disabled; that compensation for such disability be awarded from 9-27-90 to
1-6-91; further payment of compensation to be considered at the next scheduled

hearing on the issue of continuation of permanent and total disability; that the
Application be granted to the extent of this order * * *.

"Claim files to be referred to the Legal Section for preparation of a
statement of facts to be completed within 43 days from the date of publication of
this memorandum and then set for hearing before the members of the Industrial
Commission on the issue of permanent and total disability compensation.

"The reports of doctor(s) Villarreal, Turton, Turner, Dillahunt, Lowe &
Vocational Evaluation were reviewed and evaluated.

"This order is based particularly upon the reports of doctor(s) Villarreal,
Turton, Turner, Dillahunt, Lowe & Vocational Evaluation[,] a consideration of the
claimant's age, education, work history and other disability factors including
physical, psychological and sociological, that are contained in the instant
application, the evidence in the file and the evidence adduced at the hearing,
including the Permanent Total Hearing Worksheet.

"* * *
"CLOSED
AWARD."

After protracted administrative and judicial proceedings, claimant's
permanent total disability application again came before staff hearing officers.
The order, approved by a commission majority, denied further permanent total
disability compensation, stating:

"The Commission finds from proof of record that the 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 Application for Permanent and Total Disability filed December 7,
1988, be denied.

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"The medical report(s) of Dr.(s) Turner, Turton, Dillahunt, Villarreal and
Lowe were reviewed and evaluated. The findings and order are based particularly
on the medical report(s) of [Drs.] Turner, Turton and Dillahunt, the evidence in the
file and the evidence adduced at [the] hearing.

"The August 3, 1989 report from Dr. Turner (Orthopedist examining at the
request of the Industrial Commission) stated the claimant had a 30% permanent
partial impairment due to the allowed orthopedic condition. He stated the
claimant would be able to engage in sustained remunerative employment.
Significantly, his testing found normal lumbar motion with the alignment of the
lumbar spine in normal condition. The motor exam was also within normal limits.
The August 3, 1989 report from Dr. Turton (psychiatrist examining at the request
of the Industrial Commission) stated that claimant had a 20% permanent partial
impairment due to the allowed psychiatric conditions. He indicated the allowed
psychiatric condition was not work restrictive. Significantly, the testing by Dr.
Turton found no delusions or hallucinations and no change in the rhythm of his
speech. In addition, the claimant's judgment and ability to reason were adequate.
The October 25, 1989, combined effects review by Dr. Dillahunt (combined
effects opinion at request of Industrial Commission) stated the claimant had a
combined 56% permanent partial impairment due to the allowed conditions. This
was divided with 30% for the lumbosacral strain; 10% for the aggravation of pre-
existing lumbar arthritis; and 30% for the aggravation of dysthymic disorder.
When applying these impairment findings to the disability factors, the claimant
would be able to return to some form of sustained remunerative employment. The
claimant's education (completed the 6th grade and is functionally illiterate) and
his previous work history (laborer, timber cutter, industrial production worker, and
construction) would be barriers to rehabilitation and retraining to more sedentary

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employment. However, the claimant is only 53 years old and * * * young enough
* * * to make retraining and rehabilitation a probability. The psychiatric and
physical impairment findings by the previously mentioned specialists would not
prevent this rehabilitation and retraining effort. Also, significantly, the claimant
has not received surgery to correct the allowed physical conditions although he
has been hospitalized several times. With consideration given to all of these
factors, the claimant is not found to be permanently and totally disabled."

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying
permanent total disability compensation. The court agreed, finding that, absent
new and changed circumstances, the commission had no authority to deviate from
the September 26, 1990 finding of permanent total disability, citing State ex rel.
Draganic v. Indus. Comm. (Sept. 22, 1994), Franklin App. No. 93APD10-1491,
unreported, 1994 WL 521157.

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

Cloppert, Portman, Sauter, Latanick & Foley and Frederic A. Portman, for
appellee.

Betty D. Montgomery, Attorney General, and Dennis L. Hufstader, Assistant
Attorney General, for appellant.
__________________

Per Curiam. The court of appeals vacated the commission's order and
directed it to issue a new order finding that claimant continued to be permanently
and totally disabled. Upon review, we affirm that judgment, but do so for reasons
other than those relied upon by that court.

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In
State ex rel. Draganic v Indus. Comm. (1996), 75 Ohio St.3d 461, 663
N.E.2d 929, issued subsequent to the lower court's decision in this case, we
reversed the judgment of the court of appeals. In Draganic, we held that the
commission is not required to extend permanent total disability compensation
beyond the date specified in an interlocutory permanent total disability order.

This leaves us to address the commission's evidentiary defense of its order.
Upon so doing, we find that the commission's order not only does not meet State
ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, but also
that claimant qualifies for relief consistent with State ex rel. Gay v. Mihm (1994),
68 Ohio St.3d 315, 626 N.E.2d 666.

The commission's order clearly defies Noll -- a deficiency that is pre-
requisite to any consideration of Gay relief. The commission's decision was based
on claimant's age, a factor which the commission felt made claimant amenable to
retraining. Age, however, is immaterial if claimant lacks the intellectual capacity
to learn. The claimant has a sixth-grade education and is illiterate. His work
history consists entirely of extremely heavy physical labor that is now well beyond
his physical capacities. There is no explanation as to how or for what jobs
claimant is able to retrain.

These factors not only compel a finding of Noll insufficiency, but the
issuance of relief pursuant to Gay as well. Since it is almost impossible to
conceive of a sedentary position for which an illiterate person with a background
in heavy labor is qualified, we find that a return of the cause to the commission for
further consideration would be futile.

Accordingly, the judgment of the court of appeals is affirmed, but for the
reasons stated above.
Judgment affirmed.

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