State ex rel. Gemind v. Industrial Commission

696 N.E.2d 1025, 82 Ohio St. 3d 457

• Court: Ohio Supreme Court
• Decided: July 29, 1998
• Docket: No. 95-2592
• Status: Published

Opinions

Douglas, J.

The central question presented for our consideration is whether the court of appeals erred in determining that the commission’s order satisfied the requirements of Noll, supra. For the reasons that follow, we find that the commission’s order failed to comply with Noll. Accordingly, we reverse the judgment of the court of appeals.

Permanent total disability is the inability to engage in sustained remunerative employment. State ex rel. Lawrence v. Am. Lubricants Co. (1988), 40 Ohio St.3d 321, 322, 533 N.E.2d 344, 345, citing State ex rel. Jennings v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420. Thus, in determining whether a claimant is permanently and totally disabled, the commission must consider all pertinent factors, both medical and nonmedical, that may impact on the claimant’s ability to continue to work. In State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 173, 31 OBR 369, 374, 509 N.E.2d 946, 951, we held that the commission must “look at the claimant’s age, education, work record, and all other factors, such as physical, psychological, and sociological, that are contained within the record in making its determination of permanent total disability.” The commission’s consideration of the Stephenson factors is essential to the determination of permanent total disability, where the medical evidence indicates that the claimant is capable of some work and the nonmedical disability factors indicate that the claimant cannot realistically engage in sustained remunerative employment. See, also, State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 320, 626 N.E.2d 666, 671 (“A thorough consideration of the Stephenson factors is indispensable to the determination of permanent total disability, where a claimant’s medical capacity to do work is not dispositive and the claimant’s nonmedical disability factors indicate that the claimant cannot realistically return to the job market.”).

In Noll, syllabus, we held: “In any order of the Industrial Commission granting or denying benefits to a claimant, the commission must specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision.” The mandate of Noll that the commission must explain the basis for its decisions includes the duty of the commission to explain, in its orders, how the Stephenson factors, if pertinent, support the commission’s determination granting or denying requested benefits. Gay, 68 Ohio St.3d at 321, 626 N.E.2d at 671. The failure to comply with Noll “is equivalent to an abuse of discretion.” State ex rel. Ranomer v. Indus. Comm. (1994), 71 Ohio St.3d 134, 137, 642 N.E.2d 373, 376.

In the case at bar, the commission’s order does not adequately explain how appellant’s nonmedical disability factors comport with the decision denying permanent total disability compensation. To be sure, the commission’s findings .are inconsistent with its ultimate determination that appellant’s application: be denied.

In its order, the commission states that “the claimant’s past employment has consisted of heavy work as a cement finisher only” and that “[t]his work did not yield any skills which could be transferable to sedentary work activities.” The commission also states that “[c]laimant is 48 years old and he completed the 9th grade. He does not have a G.E.D. He cannot read, write or do basic math well.” The commission also noted that appellant’s file does not contain a vocational report. Based on the foregoing information, the commission then concluded that “claimant is capable of obtaining his G.E.D. and undertaking retraining so as to qualify for a more sedentary-type of work.”

Notably, the commission cites appellant’s age and the fact that the record does not contain a vocational report as evidence that appellant is capable of obtaining his G.E.D. According to the commission’s order, once appellant has obtained his G.E.D., he would then be in a position to retrain for sedentary-type employment.

Appellant’s age may be a vocationally favorable factor. See, generally, State ex rel. Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250, 253, 685 N.E.2d 774, 777. However, age alone should not be the ultimate determinant as to whether a person has the needed proficiency to obtain a G.E.D. Appellant does not have a G.E.D. He only completed the ninth grade and he cannot read, write, or do basic math well. In this regard, the commission has provided no explanation how appellant, given his present limited abilities, is qualified to obtain a G.E.D. Further, there is no vocational report within the record upon which a proper determination can be made that appellant has the skills necessary to provide him with the opportunity to return to the job market. Id., citing State ex rel. Speelman v. Indus. Comm. (1992), 73 Ohio App.3d 757, 762, 598 N.E.2d 192, 195 (“[T]he relevant vocational inquiry is “whether the claimant may return to the job market by using past employment skills or those skills which may be reasonably developed.’ ”). Indeed, the specific findings by the commission with respect to appellant’s limited abilities are inconsistent with its ultimate conclusion that appellant can in fact obtain a G.E.D. and eventually return to sustained remunerative employment. Clearly, the commission’s order does not satisfy the requirements of Noll.

Having concluded that the commission’s order violates Noll, we next consider whether appellant is entitled to the issuance of a writ directing the commission to find that he is permanently and totally disabled. In many cases involving Noll noncompliance, we have elected to return the cause to the commission for further consideration and amended order. However, Gay offers a different alternative in circumstances where returning the cause to the commission would serve no useful purpose. In Gay, at the syllabus, we held:

“In a workers’ compensation case involving permanent total disability, where the facts of the case indicate that there is a substantial likelihood that a claimant is permanently and totally disabled, courts are not and will not be precluded from ordering the Industrial Commission, in a mandamus action, to award permanent total disability benefits notwithstanding the so-called ‘some evidence’ rule.”

Thus, having the option of deciding between Noll and Gay relief, we reluctantly choose the former. We are particularly interested in any insight the commission may provide if it determines that appellant is not entitled to permanent total disability compensation. Of course, to adequately justify its decision denying appellant’s application, the commission, in its order, would be required to explain how it is that a forty-eight-year-old claimant, who has worked his entire working life as a cement finisher, who has not worked since 1989, who is incapable of returning to his former job duties, who has no transferable job skills, and who has limited reading, writing, and math abilities, can realistically return to the job market to perform some type of sedentary work.

For the foregoing reasons, the judgment of the court of appeals is reversed, and a limited writ is issued that returns the cause to the commission for further consideration and amended order.

Judgment reversed and limited unit allowed.

Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.