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

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THE STATE EX REL. ONDUSKO, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO,
APPELLANT.
[Cite as State ex rel. Ondusko v. Indus. Comm. (1997), 79 Ohio St.3d 382.]
Workers' compensation -- Interlocutory award of permanent total disability
compensation does not conclusively establish a claimant's right to continue
permanent total disability compensation beyond the closed period awarded
in the order.
(No. 95-795 -- Submitted August 26, 1997 -- Decided September 17, 1997.)
APPEAL from the Court of Appeals for Franklin County, No. 94APD03-320.

Appellee-claimant, George Ondusko, sustained two injuries in the course of
and arising from his employment with David Black General Contractor and Jarvis,
Downing & Emch, respectively. In 1989, claimant moved appellant, Industrial
Commission of Ohio, for permanent total disability compensation. On June 13,
1990, claimant's application was heard by a deputy of the commission, who 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 100% in claim
# 83-19303 from 6-14-90 to 1-6-91; further payment of compensation [is] 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 RHDIV [Rehabilitation Division] for an
evaluation of the claimant's rehabilitation potential * * *. Once [the] report is on

file, claim files [are] to be referred to the Legal Section for preparation of
statement of facts to be completed within 71 days from the date the rehabilitation
report is on file and set for hearing before the members of the Industrial
Commission on the issue of continuation of the award of permanent and total
disability compensation.

"The reports of doctor(s) Holbrook, Cohen, Turton and J.Q. Brown were
reviewed and evaluated.

"This order is based particularly upon the reports of doctor(s) Holbrook,
Cohen, Turton and J.Q. Brown[,] 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."

That order was approved by Industrial Commission members Smith, Bell,
and McAllister.

A series of interim orders ultimately extended permanent total disability
compensation to August 23, 1992. During that period, the membership of the
commission changed significantly. Also during that period of extension,
claimant's rehabilitation file was closed. The closure report stated:

"Mr. Ondusko is a 54 year old injured worker with a high school education
and a certificate for T.V. repair, which he completed in 1956. He has worked as a
laborer-pipelayer (869.664-014/heavy strength range) and a coal mine supervisor
(181.167-018/light strength range). He recently completed a pain and stress
program at the J.L. Camera Center and is currently functioning in the light
strength range, with limitations in stoop, bend, and carry activities. Although the
mine supervisor position is within Mr. Ondusko's present strength range, it is not

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within his physical abilities. This position requires a great deal of walking over
uneven surfaces which is beyond Mr. Ondusko's physical ability. His certificate
in T.V. repair is outdated and would not be useful in today[']s market. Therefore,
Mr. Ondusko does not have any transferable skills within his present strength
range. The following are additional barriers to Mr. Ondusko's return to work:

"(1) Weight (5'8" -- 286.5 pounds).

"(2) Diabetic condition for which he has been on a strict diet which he has
difficulty observing.

"(3) Questionable motivation.

"(4) Social Security Disability payments.

"(5) Expected starting salary of $25,000 to $30,000 per year.

"(6) Not wanting to relocate and the local economy not appearing to
support a job search.

"(7) Has not worked since September 1983.

"At the beginning of his rehabilitation program at the J.L. Camera Center[,]
Mr. Ondusko walked with a cane and could only walk 15 minutes. At discharge,
he was walking without a cane for 35 minutes. He has, at discharge, a sitting
tolerance of an average of 60 minutes and a standing tolerance of an average of
40-60 minutes. Mr. Ondusko participated in work circuit tasks at J.L.C.C. and had
frequent pain[,] causing the need for increased rest breaks. Though Mr. Ondusko
made slight improvements in his [illegible] capacities, he is still physically limited
in regards to employability.

"* * *

"Mr. Ondusko was reported as having questionable motivation. He had
problems with punctuality as well as a couple of instances of not wanting to leave
the residence hall at all. It is reported that he had to be spoken to on a periodic

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basis in regards to his behavior and verbal conduct in interactions with fellow
injured workers. His interpersonal skills appeared abrasive to some people. It was
reported also that he stated he did not want to work for low pay and didn't know
what he could do to make as much money as he is making while collecting SSDI
and compensation.

"Upon the analysis of variables which affect this case, it is determined that
Mr. Ondusko does not have a realistic opportunity of returning to employment.
Therefore, the provision of additional rehabilitation services would not be
expected to significantly improve his re-employment status."

On August 18, 1992, claimant's application for permanent total disability
compensation was heard by commissioners Colasurd, McAllister, Geltzer, and
Mayfield. Relying on Doctors Turton, Brown, and Holbrook, the commission
denied further permanent total disability compensation. The claimant's request for
reconsideration was granted, as the order "may have violated the guidelines set
forth in State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203 [567 N.E.2d
245]."

On March 17, 1993, the commission again denied claimant's application.
Claimant again successfully moved for reconsideration and on August 27, 1993, a
third denial order issued, which read:

"The order is based particularly upon the reports of Doctor(s) Turton,
Brown, Holbrook and J. Ruth, M.S.[,] evidence in the file and evidence adduced at
hearing.

"It is found[,] based upon a review of physical, psychiatric and vocational
evaluations in file[,] that the claimant retains the residual functional capacity to
perform sustained remunerative employment. From a physical perspective it is
found the claimant retains the residual functional capacity to perform sedentary

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work duties. John Q. Brown, M.D., disinterested orthopedic specialist, found a
22% impairment based upon the allowed physical conditions. He indicated that
while the claimant could not return to a labor job in construction, there would be
many forms of sustained remunerative employment that the claimant could engage
in since all of his orthopedic complaints are in the lower extremities. The claimant
could perform a sit down job and have unrestricted use of his neck and upper
extremities. Robert L. Turton, D.O., disinterested psychiatrist, found a 15%
impairment related to the allowed depression. Dr. Turton found this psychiatric
condition is not work restrictive. Dr. Turton found a combined effects impairment
of 28% of the whole person due to all allowed conditions. Dr. Holbrook reviewed
all medical evidence in [the] file and concluded the claimant has a 55%
impairment due to all allowed conditions. Dr. Holbrook reported the claimant can
perform low stress sedentary employment.

"It is further further [sic] found this fifty-five (55) year old claimant has the
vocational ability to perform work within his physical restrictions. The claimant
has a high school education and has worked as a construction worker and coal
mine foreman. The vocational evaluation by Judy L. Patton, M.S., indicates this is
a semi-skilled work history. The 10-9-90 Vocational Evaluation by John Ruth,
M.S., indicates that with additional rehabilitation services and short-term technical
training[,] the claimant would be able to secure competitive employment in the
near future. Based upon this report[,] it is found the claimant does have the
potential to be re-trained for employment within his functional capacities. The
claimant's age of 55, high school education and work experience as a foreman
would be assets in the rehabilitation effort. The 3-26-91 addendum from J. Ruth,
M.S., is not found persuasive as he finds no rehabilitation potential based upon
outdated psychiatric evaluations from Raymond Boniface and Earl Greer. Mr.

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Ruth did not indicate he considered the more current psychiatric evaluation by R.
Turton, D.O., which indicates the psychiatric condition is not work prohibitive. It
is further noted the I.C. rehabilitation division initially found rehabilitation
potential for the claimant. The case was subsequently closed in large part due to
poor motivation on the part of the claimant. The closure summary indicates [that]
the claimant had questionable motivation and that he did not want to work for low
pay and didn't know what he could do to make as much money as he is making
while collecting Social Security Disability Income and compensation. Therefore,
as the claimant can be retrained for sustained remunerative employment within his
functional capacities[,] he is not 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
further permanent total disability compensation. The court of appeals, citing its
decision in State ex rel. Draganic v. Indus. Comm. (Sept. 22, 1994), Franklin App.
No. 93APD10-1491, unreported, 1994 WL 521157, held that the commission,
absent new and changed circumstances, was bound by the finding of permanent
total disability made in its June 13, 1990 interlocutory order. The court of appeals
accordingly granted a writ, which vacated the order denying permanent total
disability compensation.

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

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald E. Slipski
and Steven L. Paulson, for appellee.

Betty D. Montgomery, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellant.
___________________

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Per Curiam. The court of appeals based its vacation of the commission's
order exclusively on its decision in State ex rel. Draganic. We have since
reversed Draganic, holding that an interlocutory award of permanent total
disability compensation does not conclusively establish a claimant's right to
continue permanent total disability compensation beyond the closed period
awarded in the order. State ex rel. Draganic v. Indus. Comm. (1996), 75 Ohio
St.3d 461, 663 N.E.2d 929.

In this case, no other challenge to the commission's order denying further
permanent total disability compensation has been made. Given our reversal of
Draganic and the absence of any challenge to the evidentiary sufficiency of the
commission's order, our review can go no further.

Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.

MOYER, C.J., F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.

DOUGLAS and RESNICK, JJ., dissent.

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