State ex rel. Adkins v. Industrial Commission

494 N.E.2d 1105, 24 Ohio St. 3d 180, 24 Ohio B. 410, 1986 Ohio LEXIS 668

• Court: Ohio Supreme Court
• Decided: July 2, 1986
• Docket: No. 85-1508
• Status: Published

Opinions

Per Curiam.

Essentially, appellant raises two questions herein.¹ First, whether there is substantial, reliable and probative evidence supporting the determination by the commission that appellant is not permanently and totally disabled. Second, whether the commission is required to explain why it did not accept the conclusions of a vocational consultant who, in consideration of appellant’s experience, education, and age, found that as to employment opportunities, appellant would not present the “best qualifications or least problems.”

As to the evidence supporting the commission’s finding and order, appellant argues that Dr. Kackley’s admission in his answers to interrogatories that he did not consider the factors of age, education and work history in making his impairment evaluation is not evidence supporting a want of permanent and total disability because disability must be considered in context with those factors. The answer to this argument is that disability, determination rests with the Industrial Commission. State, ex rel. Dallas, v. Indus. Comm. (1984), 11 Ohio St. 3d 193. The determination herein is supported by reliable, probative and substantial evidence of Dr. Kackley based upon his conclusions as to the extent of appellant’s impairment. While the credibility of Dr. Reynolds’ evaluation might arguably be impugned as equivocatory (see State, ex rel. Walters, v. Indus. Comm. [1985], 20 Ohio St. 3d 71), the credibility of Dr. Kackley’s evaluation is unimpeached and supports the commission’s determination that appellant is not permanently and totally disabled.

As to the commission’s failure to refer to the evaluation of the vocational rehabilitation consultant, that evaluation may be accepted or rejected as the commission deems appropriate because the determination of extent of disability is the function of the commission. See Dallas, supra. Moreover, the standard by which the commission must be guided in determining whether a claimant is permanently and totally disabled is whether he is “unfit for sustained remunerative employment.” See State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St. 3d 101, 102. The report of Rosenthal addressed a standard, i.e., “best qualifications or least problems,” which differed from that set forth in Jennings. Thus, the Rosenthal report was properly rejected by the commission and no reference thereto was necessary.

For reasons of the foregoing, the judgment of the court of appeals, denying the writ of mandamus, is hereby affirmed.

Judgment affirmed.

Sweeney, Locher, Holmes, Douglas and Wright, JJ., concur. Celebrezze, C.J., and C. Brown, J., dissent.

1 Appellant sets forth a proposition, neither raised nor argued below, asserting want of procedural due process.