State ex rel. Jones v. Devery - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[THE STATE EX REL.] JONES, APPELLANT, v. DEVERY, ADMR.; INDUSTRIAL
COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Jones v. Devery (1998), 83 Ohio St.3d 361.]
Workers' compensation -- Industrial Commission does not abuse its discretion in
denying impaired earning capacity compensation, when.
(No. 96-233 -- Submitted June 24, 1998 -- Decided October 14, 1998.)
APPEAL from the Court of Appeals for Franklin County, No. 95APD01-53.

Appellant-claimant, Janice M. Jones, was injured in 1985 in the course of
and arising from her employment with Glosser Brothers, Inc. Her workers'
compensation claim was allowed for "lumbar dorsal contusion with possible
herniated disc." A herniated disc was never subsequently confirmed. Claimant
never returned to work and, in 1991, moved appellee, Industrial Commission of
Ohio, for permanent partial disability compensation pursuant to former R.C.
4123.57. Estimates of claimant's permanent partial disability were set at fifty,
thirty, and fourteen percent by Drs. Keith Rugh, W. Jerry McCloud, and Mark E.
Weaver, respectively. Drs. Rugh and McCloud placed restrictions on claimant
against bending and lifting. No other limitations were prescribed.

The commission ultimately found claimant to have a twenty percent
permanent partial disability. Given a choice of receiving her award as a lump sum
permanent partial disability payment under former R.C. 4123.57(B) or as bi-
weekly impaired earning capacity ("IEC") compensation under former R.C.
4123.57(A), claimant chose the latter.

Claimant's election, pursuant to State ex rel. Johnson v. Indus. Comm.
(1988), 40 Ohio St.3d 384, 533 N.E.2d 775, triggered a second hearing at which
claimant was required to prove actual IEC. The Bureau of Workers'
Compensation found no proof of IEC. Claimant appealed to a commission district
hearing officer ("DHO"), who also denied IEC, writing:

"Claimant's request to receive compensation for an impairment of earning
capacity is denied as claimant failed to demonstrate such pursuant to [State ex rel.]
Eaton Corp. v. Indus. Comm. (1994), 66 Ohio St.3d 180 [610 N.E.2d 992].

"Regarding claimant's pre-injury earning capacity, claimant gave no
evidence nor made any argument that claimant was underemployed prior to the
11/29/85 injury. Accordingly, the pre-injury earning capacity is set at claimant's
Average Weekly wage in the claim, or at $87.64. This is adjusted for inflation to
1994 dollars by comparing the 1985 Statewide Average Weekly Wage of $354
with the 1994 Statewide Average Weekly Wage of $482. With this calculation, the
Pre-injury earning capacity is $119.33.

"Regarding claimant's past-injury [sic, post-injury] earning capacity,
claimant argued that claimant is unable to return to work at any of her former
positions of employment -- desk clerk, painter, housekeeper, general laborer.
Given claimant's age of 57 and 10th grade education, claimant argued a high
degree of impairment, but gave no specific figure and provided no supportive
vocational evidence. [C]laimant alluded to a 100% impairment of earning capacity
but acknowledged that an application for permanent total disability has previously
been denied.

"The medical evidence on file, the 11/21/89 report of Dr. McCloud, the
11/25/92 report of Dr. Weaver, and the 2/22/93 report of Dr. Rugh does [sic]
confirm that claimant cannot perform her former employment. These reports relate
restrictions on lifting and bending.

"In 1991[,] claimant was evaluated by the Rehabilitation Division. The
vocational reports stated that claimant's past work did involve semi-skilled
employment, that claimant showed little interest in rehabilitation, that claimant
demonstrated average learning abilities in the vocational tests, and concluded that
claimant demonstrated transferable skills.

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"From the medical and vocational evidence, the District Hearing Officer
finds that claimant is capable of performing sedentary work. Although sedentary
work may pay varying levels of wages, setting the post-injury earning capacity at
minimum wage equates to $170.00.

"Thus setting the post-injury earning capacity at $170.00 and noting that
claimant may qualify for a higher paying sedentary position, given the 1991
vocational evaluations, there is no impairment of earning capacity. Claimant is
currently capable of earning more now than what she [was] earning prior to the
11/29/85 injury. * * * "

Claimant again appealed.

At the staff hearing officer ("SHO") hearing that followed, claimant
submitted an "Earning Capacity Assessment" from Beal D. Lowe, Ph.D. That
report stated in part:

"Based on a worklife expectancy of 6.3 years and an annual earning capacity
of $9,110, Ms. Jones is calculated to have had a future lifetime earning capacity of
$57,393, from 1994 onward, had she not been injured.

" * * *

"As a 57 year old woman currently inactive in the labor market, Ms. Jones'
projected remaining active work life is 2.2 years * * *."

It also noted:

"As a result of her loss of capacity to perform Light occupations, Ms. Jones
has lost access to more than 50% of the jobs to which she had preinjury access. As
a result of this loss of access, she may be expected to experience more frequent,
and longer-enduring, unemployment. The Sedentary low education entry level
labor market is crowded and competitive * * *. The Ohio Bureau of Employment
Services reports fewer than 500 placements statewide per year for this type of
work. In addition, as an individual with some physical disabilities and a history of

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disability unemployment, she would experience competitive damage and increased
rate of job application failure in the labor market. She also is more likely to have
physical problems related to episodic re-injuries. As a result of lost labor market
access, reduced competitiveness, and probable performance and attendance
limitations, Ms. Jones will almost certainly experience a loss of active worklife.
These losses have led her to be inactive in the labor market."

The SHO affirmed the DHO's order and further review was denied.

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying IEC
compensation. The court of appeals denied the writ.

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

Thompson, Meier & Dersom, Thomas D. Thompson and David J. Azallion,
for appellant.

Betty D. Montgomery, Attorney General, and William J. McDonald,
Assistant Attorney General, for appellee.
__________________

Per Curiam. IEC looks beyond actual earnings to claimant's potential
earnings -- i.e., earning capacity. State ex rel. Eaton Corp. v. Indus. Comm.
(1993), 66 Ohio St.3d 180, 610 N.E.2d 992, and Indus. Comm. v. Royer (1930),
122 Ohio St. 271, 171 N.E. 337. It looks "not [at] what claimant did earn, but what
he or she could have earned." (Emphasis sic.) Eaton at 183-184, 610 N.E.2d at
995. An allegation that injury has impaired a claimant's earning capacity requires
the commission to identify both claimant's pre- and post-injury earning capacities,
to denominate the two monetarily, and to make a comparison. Eaton.

In this case, the commission separately determined claimant's pre- and post-
injury earning capacities and explained how those figures were reached. Despite

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this adherence to Eaton, claimant nevertheless assails the order's analysis for
failing to consider Dr. Lowe's assertions of diminished job choice and shortened
work life.

We find this argument to be unpersuasive. The SHO's affirmance of the
DHO's order without independent evidentiary findings is inherently a rejection of
Dr. Lowe's report as unpersuasive. State ex rel. DeMint v. Indus. Comm. (1990),
49 Ohio St.3d 19, 550 N.E.2d 174. Consequently, the commission was not
required to discuss in its order the assertions contained in that report. No abuse of
discretion, therefore, exists.

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

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

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