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

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THE STATE EX REL. NICKELL, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO,
APPELLEE.
[Cite as State ex rel. Nickell v. Indus. Comm. (1998), ___ Ohio St.3d ___.]
Workers' compensation -- Denial of permanent total disability compensation by
Industrial Commission -- State ex rel. Gay relief ordered, when.
(No. 95-2088 -- Submitted June 9, 1998 -- Decided September 23, 1998.)
APPEAL from the Court of Appeals for Franklin County, No. 94APD08-1112.

Appellant-claimant Lois J. Nickell's 1974 workers' compensation claim was
allowed for "lumbosacral strain and contusion of coccyx; mild depressive illness;
aggravation of preexisting schizophrenia." In 1988, she moved appellee Industrial
Commission of Ohio for permanent and total disability compensation ("PTD").
Claimant's combined-effects permanent partial impairment as a result of the
allowed conditions was assessed at fifty-one percent by Dr. Walter A. Holbrook.
He opined that claimant was medically capable of sedentary sustained
remunerative employment, but was not a good candidate for rehabilitation or
retraining.

The commission denied PTD compensation on April 15, 1992, writing:

"Claimant is 55 years of age, has an 8th grade education and a work history
as a cashier and factory worker. Commission specialists Drs. Flexman, Louis and
Holbrook indicated claimant has a combined 51% PPI and retains the residual
functional capacity to perform low-stress sedentary work. With consideration
given to all factors, claimant is found not to be PTD."

The commission, believing that the order did not satisfy State ex rel. Noll v.
Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, set the matter for
further hearing. The commission on April 21, 1993 again denied PTD, writing:

" * * * The order is based particularly upon the reports of Drs. Flexman, J.
Shaffer, Louis and Holbrook * * *.

"After a review and consideration of the medical evidence on file, the
Commission concludes that the claimant's allowed conditions do not render her
permanently totally impaired from all gainful employment. Medical evidence
found persuasive includes the reports of Commission Specialists Drs. Flexman,
Shaffer, Louis and Holbrook. Commission Neuropsychologist Dr. Flexman found
the claimant's depressive disorder to represent a 30% permanent partial
impairment and opined that this condition would not prevent her from returning to
her previous position of employment. Commission Psychologist Dr. Jill Shaffer
opines that the claimant's allowed psychological conditions, especially her
aggravation of pre-existing schizophrenia, prevents her from returning to her
former position of employment. However, Dr. Shaffer indicates that the
percentage of impairment attributable to the claimant's psychological conditions is
a moderate 30-40%, and these conditions in and of themselves would not preclude
the claimant from returning to some sustained remunerative employment. Dr.
Shaffer's opinion that the claimant is permanently precluded from returning to
work is found unpersuasive in that she considers non-medical disability factors in
this conclusion. Commission Neurologist Dr. Louis finds the claimant to
demonstrate only a 5% permanent partial impairment due to her back injury. Dr.
Louis further opines that the claimant retains the physical capacity to return to her
former position of employment when considering solely her allowed physical
conditions.

"The Combined Effects Review of Dr. Holbrook finds the claimant to
demonstrate a 51% overall impairment and suggests that she is not permanently
totally impaired as a result of her allowed conditions. While it is noted that the

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claimant has undergone a number of psychiatric hospitalizations which primarily
occurred between 1982 and 1985, her course of treatment for her allowed physical
conditions has been exclusively conservative in nature. Thus, considering the
aforementioned medical evidence, the Commission determines that the claimant
presents a minimal back impairment and a moderate psychological impairment.
Considering these impairments in conjunction, the Commission concludes that the
claimant retains the residual functional capacity to engage in low stress light duty
and/or sedentary work. Considering her non-medical disability factors, the
Commission determines that she possesses the vocational aptitude to enable her to
obtain gainful work compatible with her physical and mental limitations. It is
noted that the claimant is 56 years old, possesses an 8th grade education, and has a
work history as a cashier, factory worker, bakery worker, and mailroom clerk. The
Commission finds that the claimant's prior work experience as a cashier and
mailroom clerk provided her with job skills transferable to many low stress, light
duty and sedentary work opportunities. Furthermore, based primarily upon her
relatively young age, the Commission determines that the claimant remains a
viable candidate to return to work irregardless [sic] of her limited educational
level. Accordingly, finding the claimant to be capable of engaging in some
sustained remunerative employment consistent with her physical and mental work
restrictions, the Commission denies her Application for Permanent Total
Disability."

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying
PTD compensation. The court of appeals found that the order did not satisfy Noll,
and again returned the cause for further consideration and amended order.

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

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__________________

Hochman & Roach Co., L.P.A., and Gary D. Plunkett, for appellant.

Betty D. Montgomery, Attorney General, and Julia A. Collier, Assistant
Attorney General, for appellee.
__________________

Per Curiam. The parties do not dispute the appellate court's finding of Noll
noncompliance, and the propriety of that decision has been further reinforced by
the recent decisions in State ex rel. Bruner v. Indus. Comm. (1997), 77 Ohio St.3d
243, 673 N.E.2d 1278, and State ex rel. Mann v. Indus. Comm. (1998), 80 Ohio
St.3d 656, 687 N.E.2d 773. Mann and Bruner involved claimants with a work
history akin to that seen here -- unskilled and nonsedentary. The commission
denied PTD in both cases after determining that the claimant possessed job skills
that would transfer to other positions. In neither case did the commission identify
what these perceived "skills" were, and only in Mann did the commission even
hint at what these potential new jobs might be.
We
twice
found
Noll noncompliance and pointedly admonished the
commission for its hollow orders in both cases. In Bruner, we wrote:

"We are disturbed by the increasing frequency with which the commission
has denied permanent total disability compensation based on `transferable skills'
that the commission refuses to identify. This lack of specificity is even more
troubling when those `skills' are derived from traditionally unskilled jobs." Id. at
245, 673 N.E.2d at 1280.
In
Mann, we stated:

"The commission, in finding claimant capable of work, relies
overwhelmingly on claimant's past employment. Its discussion is flawed because,
despite excessive verbiage, it is no more than a recitation of claimant's

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nonmedical profile. The commission lists claimant's work history three times but
never explains how those nonsedentary jobs equip claimant for a sedentary
position. Moreover, the commission's reference to `sedentary low stress positions
in the food service industry' merits further explanation. While the commission is
generally not required to enumerate the jobs of which it believes claimant to be
capable, its assertion that claimant could do low stress sedentary work in an
industry that is traditionally considered neither low stress nor sedentary requires
further exploration." Id. at 659, 687 N.E.2d at 776.

Mann and Bruner establish that the present claimant, at a minimum, is
entitled to a Noll "remand." Claimant, however, urges us to go one step further
and order PTD pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315,
626 N.E.2d 666. Claimant's position is persuasive.

Our decision to order a Noll remand in Bruner does not control, due to
significant factual distinctions between this case and Bruner. Unlike Bruner, this
claimant does not have a GED and must rely on her eighth grade education.
Moreover, Bruner had a low twenty-five percent impairment. The present
claimant's impairment is more than double that amount.

The present claimant has also been described as a poor candidate for
retraining or rehabilitation by the doctor on whom the commission expressly
relied. This distinguishes this case from Mann, in which the vocational consultant
who assessed Mann said that there were jobs for which she was medically and
vocationally qualified. This factor, combined with Mann's possession of a GED,
sets the present case apart.

It is difficult, in this case, to view without skepticism the commission's
ability to accomplish anything meaningful upon a return for further consideration.
The commission cannot identify something that does not exist, and the existence

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of any significant "skills" as derived from a cashier or mailroom clerk position is
very dubious. The same can be said of the "many" jobs that the claimant can
purportedly do. Because claimant's education, unskilled work history, and poor
candidacy for retraining limit her to unskilled labor, we question how many of
those jobs realistically exist in the low stress light/sedentary realm. For these
reasons, we find Gay relief to be the more appropriate remedial option.

That portion of the appellate judgment which found Noll noncompliance is
affirmed. That portion which returned the cause for further consideration pursuant
to Noll is reversed, and a writ of mandamus consistent with Gay is hereby granted.
Judgment reversed in part
and affirmed in part.

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

COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

COOK, J., dissenting. I respectfully dissent from the majority's opinion. I
would affirm the judgment of the court of appeals returning the case pursuant to
State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.
This is not a case of vocationally unfavorable evidence paired with a high degree
of physical impairment -- the usual Gay relief profile. See State ex rel.
Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693, 635 N.E.2d 372.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.

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