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

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

THE STATE EX REL. JACKSON, APPELLANT, V. INDUSTRIAL COMMISSION OF OHIO ET
AL., APPELLEES.
[Cite as State ex rel. Jackson v. Indus. Comm. (1997), ___ Ohio St.3d ___.]
Workers' compensation -- Denial of application for permanent total disability
compensation by Industrial Commission -- Commission ordered to review
application further and issue an amended order, when.

(No. 95-528 -- Submitted April 15, 1997 -- Decided July 23, 1997.)

APPEAL from the Court of Appeals for Franklin County, No. 94APD01-81.

Lane Jackson, appellant, seeks a writ of mandamus ordering appellee
Industrial Commission of Ohio to vacate its denial of his application for
permanent total disability compensation ("PTD") and to grant him this relief.

Jackson injured his neck and back in 1978 while working for appellee L&W
Construction, Inc. He also injured his neck, back, and shoulder in 1990 while
working for appellee Mosser Construction, Inc. His two workers' compensation
claims were recognized for "acute cervical and lumbosacral contusions,
ligamentous sprain and paraspinal myofascitis" and "acute cervical sprain, acute
sprain and strain of left deltoid and lumbosacral, left rotator cuff tear,"
respectively. He applied for PTD in 1992 based on both allowed conditions. The
commission denied PTD, explaining:

"It is the finding of the Commission that this claim has been recognized for:
Acute cervical and lumbosacral contusions, ligamentous sprain and paraspinal
myofascities [sic].

"That the Commission find[s] 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 Permanent Total Disability Application * * * be denied.

"The reports of Doctor(s) Anderson, Charms, Kaffen and McCloud, were
reviewed and evaluated. The order is based particularly upon the reports of
Doctor(s) Kaffen and McCloud, evidence in the file and/or evidence adduced at
the hearing.

"Claimant is 57 years of age, has his G.E.D. and work experience as a
construcitlon [sic] laborer for 23 years. Treatment has been mostly conservative.
Claimant last worked less than 3 years ago. Dr. Kaffen judged claimant as a 44%
impairment and capable of working within certain restrictions. Dr. McCloud
judged claimant as a 45% impairment and capable of working within certain
restrictions. Based on the evidence on file, it is concluded claimant is not
permanently and totally disabled. Based upon a consideration of all the above

2

factors, including claimant's relatively high level of education, it is concluded that
claimant retains the physical and mental abilities to engage in sustained
remunerative employment within the restrictions listed by Drs. McCloud and
Kaffen. Therefore, the claimant is not permanently and totally disabled."

Jackson then sought the instant writ in the Court of Appeals for Franklin
County. He argued that the commission had not explained how his permanent
partial impairment, age, education, work experience, and lack of rehabilitation
potential combined to permit employment, as required by State ex rel. Stephenson
v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, and
State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. He
also asserted his eligibility for PTD under State ex rel. Gay v. Mihm (1994), 68
Ohio St.3d 315, 626 N.E.2d 666. A referee found the commission's order
sufficient and recommended denial of the writ. The court of appeals denied the
writ, overruling Jackson's objections and adopting the referee's report.

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

Cooper, Spector & Weil and Gary M. Spector, for appellant.

3

Betty D. Montgomery, Attorney General, and Sandra L. Nimrick, Assistant
Attorney General, for appellee Industrial Commission.
___________________

Per Curiam. This cause presents two issues for our review: (1) Did the
commission adequately explain its decision in accordance with State ex rel. Noll v.
Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245? and (2) Is Jackson
eligible for PTD under State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626
N.E.2d 666? For the reasons that follow, we hold that the commission failed to
sufficiently explain how Jackson's age and prior work experience combined with
his education to permit employment, but that Jackson has not established his
permanent and total disability. Accordingly, we reverse the court of appeals'
judgment as to the commission's compliance with Noll, but we reject Jackson's
claim for relief under Gay.
Noll Compliance

If the commission fails to cite evidence of record showing that a claimant's
permanent medical impairment is only partial, State ex rel. Burley v. Coil Packing,
Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, or to adequately
explain how the claimant's nonmedical characteristics, including age, education,

4

experience, etc., combine with the impairment to permit sustained remunerative
employment, State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167,
31 OBR 369, 509 N.E.2d 946; Noll, supra, its order denying PTD is an abuse of
discretion, and a writ of mandamus must issue to correct the abuse. Gay, supra;
State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 658 N.E.2d
1055. But the commission is also the exclusive evaluator of evidentiary weight
and disability. Thus, when some evidence for the commission's decision exists,
the decision must be upheld even if contradicted by other evidence a reviewing
court considers more persuasive. Id. at 376, 658 N.E.2d at 1058.

The court of appeals correctly found some evidence for the commission's
finding that Jackson was only partially impaired due to his allowed conditions and
still physically able to work with restrictions.1 While Jackson relies on his
physician's and vocational expert's reports, Dr. Jerry McCloud reported in June
1993 that Jackson was permanently but not totally impaired based on his two
allowed conditions and able to work with restrictions:

"It is my opinion that the medical evidence would indicate that the claimant
is capable of work activities. He is not capable of his 1990 employment. The
changes are permanent and he has reached a level of maximum medical

5

improvement and in [the second claim] demonstrates a permanent partial
impairment of 45% related to the loss of active lumbar and cervical reserve and
those changes in his left shoulder. This estimation is compatible with
recommendations made in the Third Edition of the AMA Guidelines on Physical
Impairment. There is 0% impairment in [the first claim]. Future requests for
ongoing conservative treatment or other forms of conservative measures should
not be approved as they will not be of lasting benefit to the claimant. He does
have soft tissue injuries which are approaching three years of age and these will
not respond in a positive fashion to ongoing or persistent conservative treatments
nor significantly alter his future clinical prospects."

With respect to the commission's explanation of how Jackson's nonmedical
characteristics did not foreclose employment, the court of appeals' referee found:

"[T]he commission stated that it considered claimant's age of fifty-seven,
G.E.D., and work experience as a construction laborer and concluded that those
factors, particularly the G.E.D., combined with the physical ability to perform
some work within certain restrictions, do not prevent relator from performing
sustained remunerative employment. The commission's explanation, although
brief, suggests that the commission considered relator's age and education to be

6

assets to reemployment, thereby providing adequate reasoning for the decision.
See State ex rel. Murray v. Mosler Safe Co. (1993), 67 Ohio St.3d 330 [617
N.E.2d 1118]."

Adopting this finding, the court of appeals stated:

"Although the commission's explanation of its reasoning is indeed brief, it
is clear that the commission considered relator's `relatively high level of
education' as a dispositive factor in determining relator's employability within the
restrictions listed by Dr[.] McCloud * * *. While a more detailed explanation of
the commission's reasoning would be preferable, we are not prepared to say that
the explanation is too brief to meet the requirements of Noll, supra. Moreover,
this court is not at liberty to substitute its judgment for that of the commission
simply because it may disagree on the impact of relator's nonmedical disability
factors. State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92 [609
N.E.2d 164]. Accordingly, relator's objection is overruled."

Jackson complains that the commission merely reported his age and work
history without meaningful discussion. He cites State ex rel. Waddle v. Indus.
Comm. (1993), 67 Ohio St.3d 452, 458, 619 N.E.2d 1018, 1022, which recognized
that "[s]pecific recitation [of nonmedical factors], without more, is only slightly

7

better than that the old boilerplate language assailed in Noll." Absent the requisite
explanation, "[t]hese factors are susceptible [of] both positive or negative
interpretations depending on the reviewer, and, therefore, mere recitation gives no
insight into the commission's reasoning." Id. Waddle thus directed the
commission to specify in its orders whether nonmedical factors were considered
an asset or detriment to employment and warned that noncomplying orders would
result in a writ requiring an adequate explanation. Thus, in State ex rel. Pierce v.
Indus. Comm. (1997), 77 Ohio St.3d 275, 277, 673 N.E.2d 1304, 1306, we rejected
as insufficient a commission order denying PTD because it (1) merely
acknowledged a claimant's age (sixty-two) and education (tenth grade with
G.E.D.) and (2) failed to specify what marketable skills a former ironworker had
or could develop to obtain sedentary employment.

The commission does not defend its silence on the marketability of any
skills or abilities generated by Jackson's prior work experience, but it insists that it
treated Jackson's age as an employment asset and observed that he had "last
worked less than [three] years ago." The commission may have inferred from
Jackson's recent employment that age was not an appreciable barrier for him in the
job market, but this is pure speculation. Waddle disapproved of orders requiring

8

such conjecture, admonishing the commission to "say so" if it views one or more
nonmedical factors as employment assets. Id., 67 Ohio St.3d at 458, 619 N.E.2d at
1022.

The court of appeals concluded that the commission considered Jackson's
G.E.D. dispositive on the issue of his ability to be rehired. Waddle and Pierce,
however, hold that the commission must do more -- it must also specify the extent
to which age and employment history may impede or promote a claimant's
reemployment prospects. Thus, contrary to the court of appeals' judgment, the
commission's order in this case is too cursory to withstand scrutiny under Noll,
supra. State ex rel. Bruner v. Indus. Comm. (1997), 77 Ohio St.3d 243, 245, 673
N.E.2d 1278, 1280 (mandamus issued to require the commission to adequately
explain how claimant's experience in window washing and maintenance promoted
reemployment in sedentary or light duty job).

Jackson also complains that the commission did not properly credit the
report of his vocational expert, citing State ex rel. Hopkins v. Indus. Comm.
(1994), 70 Ohio St.3d 36, 635 N.E.2d 1257. Jackson argues, and rightly so, that
Hopkins holds that the commission abuses its discretion by disregarding, as it did
here, the only vocational report in the record. Id. at 40, 635 N.E.2d at 1260.

9

Hopkins, however, is contrary to established authority that the commission,
as the exclusive evaluator of disability, is not bound to accept vocational evidence,
even if uncontradicted. Rather, upon a determination of claimant's permanent
partial impairment, the commission's charge is to review the evidence of the
claimant's age, education, work history, and other relevant nonmedical
characteristics and to decide for itself from that evidence whether the claimant is
realistically foreclosed from sustained remunerative employment. The
commission may credit offered vocational evidence, but expert opinion is not
critical or even necessary, because the commission is the expert on this issue.
Thus, in State ex rel. Singleton v. Indus. Comm. (1994), 71 Ohio St.3d 117, 118,
642 N.E.2d 359, 361, another case in which the commission rejected the sole
vocational report in the record, we explained:

"Claimant's challenge rests on the erroneous belief that the commission was
bound by [the vocational expert's assessment of claimant's claim for permanent
and total disability]. Part of the commission's authority to weigh and evaluate
evidence, however, is the freedom to reject it as unpersuasive. Particularly as to
vocational assessments, `[t]o bind the commission to a rehabilitation report's
conclusion makes the rehabilitation division, not the commission, the ultimate
10

evaluator of disability, contrary to [Stephenson, supra].' State ex rel. Ellis v.
McGraw Edison Co. (1993), 66 Ohio St.3d 92, 94, 609 N.E.2d 164, 166."

Singleton, being the more recent and consistent statement of the law,
requires the conclusion that the commission had authority to reject Jackson's
vocational expert's report. Thus, we concur in the court of appeals' finding that
the commission permissibly rejected Jackson's vocational evidence.
Gay Relief

State ex rel. Gay v. Mihm, supra, permits a reviewing court to award PTD
where the commission has failed to comply with the specificity requirements of
Noll, supra, and the record shows that a commission decision denying PTD would
necessarily be an abuse of discretion. Pass, supra, 74 Ohio St.3d at 376, 658
N.E.2d at 1058. However, if the record is insufficient or the claimant's
nonmedical factors are split between favorable and unfavorable considerations,
reviewing courts should order the commission to comply with Noll regardless of
whether the commission ultimately grants or denies PTD. State ex rel. Ranomer v.
Indus. Comm. (1994), 71 Ohio St.3d 134, 137, 642 N.E.2d 373, 376.

For the reasons already discussed, Jackson has failed to establish his
eligibility for Gay relief. While the commission did not specify how Jackson's
11

age and employment history combined with his medical condition and restrictions
and his education to make him employable, it did assess his education level to be a
marketable asset. As at least one nonmedical factor suggests Jackson's capacity
for employment, this record does not compel the conclusion that Jackson is
inevitably permanently and totally disabled.

Having found that the commission did not comply with Noll, but that
Jackson is not entitled to relief under Gay, we reverse the court of appeals'
judgment and grant a limited writ ordering the commission to review Jackson's
application further and issue an amended order.
Judgment reversed
and limited writ granted.

MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

DOUGLAS, J., concurs in judgment only.

COOK and LUNDBERG STRATTON, JJ., dissent.
FOOTNOTE
1.
The parties do not mention it, but the commission's order identifies only the
first of Jackson's two allowed conditions, which suggests that it did not consider
the second. To deny PTD without considering all relevant allowed conditions is
12

an abuse of discretion for which mandamus is the remedy. State ex rel. Johnson v.
Indus. Comm. (1988), 40 Ohio St.3d 339, 533 N.E.2d 720. Here, however, the
commission relied on reports from Drs. Kaffen and McCloud, both of whom took
into account Jackson's two injuries. This reliance tends to confirm the
commission's appreciation of both claims. Thus, in State ex rel. Zollner v. Indus.
Comm. (1993), 66 Ohio St.3d 276, 611 N.E.2d 830, we preserved a commission
order with the same defect.

LUNDBERG STRATTON, J., dissenting. The appropriate standard for this
court's review is to determine whether there is "some evidence" in the record to
support the stated basis for the commission's decision. State ex rel. Burley v. Coil
Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Because the
record below contains "some evidence" in support of the commission's decision, I
would affirm the court of appeals.

COOK, J., concurs in the foregoing dissenting opinion.
13