Opinion
No. 92-631
Submitted November 10, 1992 —
Decided December 14, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-705.
Appellee-claimant, Mildred Forte, injured her back in 1982 in the course of and arising from her employment as a nurse's aide with appellant, Mt. Carmel Health. She never returned to work, receiving temporary total disability compensation until those benefits were terminated in 1987 due to the permanency of her allowed condition.
In 1989, claimant applied for permanent partial disability compensation pursuant to former R.C. 4123.57. Among other evidence considered by appellee Industrial Commission of Ohio was the report of Dr. Lewis Seeder, who examined claimant on appellant's behalf. He found claimant could do work in the "* * * sedentary to light physical capacity range. Certainly the individual would be capable of performing activities involving alternate sitting and standing with lifting limited to a weight range of between 10 and 20 pounds."
The commission found claimant fifteen percent permanently and partially disabled, and she chose to receive her compensation as impaired earning capacity benefits under former R.C. 4123.57(A). In support of her election, she also offered in evidence the report of her attending physician, Richard C. Stigliano. As a result of his physical findings, Dr. Stigliano concluded that claimant, during an eight-hour work day could not: (1) stand or sit over two hours, (2) lift over ten pounds, (3) use her feet for repetitive movements such as operating foot controls, or (4) do pushing or pulling.
Following a hearing on her election, a commission district hearing officer decided:
"(1) * * * [C]ompensation per R.C. 4123.57(A) is granted; per [ State ex rel.] Bouchonville [ v. Indus. Comm. (1988), 36 Ohio St.3d 50, 521 N.E.2d 773], [ State ex rel.] Johnson [ v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775], and [ State ex rel.] Stephenson [ v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946];
"(2) Claimant has established the allowed conditions, in conjunction with her age (60 years), education (9th grade) and vocational history (nurse's aide) have impaired her earning capacity. Further, the report of Dr. Stigliano reflects the allowed condition precludes her from obtaining jobs within her vocational capacity. The non-industrial condition (arthritis) is also a factor, combining with the above, further impairing her earning capacity;
"(3) Payment of the award for impaired earning capacity is to be paid at the rate 2/3 times average weekly wage x 15% medical impairment to commence 7-19-87 and to continue * * *.
"* * *
"This order is based on the Medical Reports of Dr(s). Stigliano and Seeder."
This order was administratively affirmed.
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that there was no evidence that claimant's earning capacity had been impaired by her industrial injury. The appellate court denied the writ.
This cause is now before this court on appeal as of right.
Douglas M. Bricker, for appellant.
Gibson Robbins-Penniman Co., L.P.A., and Gus Robbins-Penniman, for appellee Forte. Lee I. Fisher, Attorney General, and William J. McDonald, Assistant Attorney General, for appellees Industrial Commission et al.
Appellant does not dispute that the physical restrictions placed on claimant by Drs. Seeder and Stigliano are inconsistent with her nurse's aide duties. She cannot, therefore, return to her former position of employment. State ex rel. Evans v. Pepsi-Cola Bottling Co. (1986), 22 Ohio St.3d 116, 22 OBR 196, 489 N.E.2d 792. It is her residual capacity for sedentary work that anchors appellant's challenge. Because she retains that ability, appellant maintains that claimant's earning capacity has not been diminished. Appellant alternatively argues that any potential impairment is unrelated to the industrial injury. Both claims fail.
Appellant's first proposition ignores the interplay between medical and nonmedical factors. A claimant's capacity for sedentary work is immaterial if the employee lacks the necessary intellectual or vocational skills to do such work. See State ex rel. Lawrence v. American Lubricants Co. (1988), 40 Ohio St.3d 321, 533 N.E.2d 344. This is precisely what the claimant alleged and the commission found here — claimant's age, education and limited job skills disqualified her from any position within her physical capabilities.
Appellant's second proposition attempts to equate this case with State ex rel. CPC Group, Gen. Motors Corp. v. Indus. Comm. (1990), 53 Ohio St.3d 209, 559 N.E.2d 1330; State ex rel. Pauley v. Indus. Comm. (1990), 53 Ohio St.3d 263, 559 N.E.2d 1333; and State ex rel. Loral Sys., Inc. v. Indus. Comm. (1991), 59 Ohio St.3d 112, 570 N.E.2d 1106 — all of which turned on causal relationship. In CPC and Pauley, as distinguished from this case, there was evidence that specifically attributed diminished earning capacity to other causes. In CPC, evidence showed that claimant retired for reasons unrelated to the injury. Similarly, in Pauley, the claimant testified that her post-injury inability to earn wages was due to her decision to stay home with her children. No such evidence exists here.
Reliance on Loral is similarly misplaced. There, the claimant presented evidence of a twenty-five percent medical impairment and a statement indicating a lack of wages over the relevant period. We found insufficient evidence connecting the absence of earnings to her post-injury physical condition, stating:
"Claimant has submitted no evidence showing that her lack of wages is due to the twenty-five percent impairment noted by Dr. Rosen. We will not speculate as to whether her lack of earnings is attributable to the allowed conditions or is due to, for example, a voluntary decision not to work for reasons unrelated to her injury." Loral, supra, at 113, 570 N.E.2d at 1107.
There is no need to speculate on causal relationship in the case at bar. Again, medical evidence established that claimant could not return to her former job. Nonmedical evidence established that there were no jobs consistent with claimant's physical restrictions for which she is educationally or vocationally prepared. When claimant lost her ability to return to her old job due to the injury, she concomitantly lost her ability to earn wages due to injury. This distinguishes the present facts from those in Loral.
We thus find that the commission did not abuse its discretion in awarding claimant compensation for impaired earning capacity. Accordingly, we affirm the judgment of the appellate court.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.