Summary
identifying age, education, and work record as relevant nonmedical factors
Summary of this case from State ex rel. Navistar, Inc. v. Indus. Comm'nOpinion
No. 86-1007
Decided July 8, 1987.
Worker's compensation — Determination of permanent total disability — Commission must look at all factors, such as physical, psychological, and sociological, that are contained within the record.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from the decision by the court of appeals granting a writ of mandamus against the Industrial Commission. The commission had denied the application of relator-appellee, Nayoma Stephenson, for permanent total disability compensation on previously allowed employment-related injuries. The court of appeals, in a memorandum decision, found the appellee permanently and totally disabled.
The record shows that the appellee is a married female, twenty-eight years of age at the time of the accident, who has three dependents. She was employed by the Tri-State Offset Printing Company of Cincinnati as a keyboard operator. On September 4, 1973, appellee sustained injuries to her lower back, neck, head and hip when she slipped and fell down a long flight of steps as she was departing from work. She filed a motion for temporary total disability compensation which was granted, and was paid over several years to the maximum allowable under the law, in addition to medical expenses.
There is no question that the claimant had a continuing and, to some degree, progressively worsening physical condition. However, there was considerable variation between the reports submitted by her attending physician and those of the physicians appointed by the commission regarding the severity of her allowed injury, and the degree of her permanent total disability to perform any sustained remunerative work.
On October 21, 1982, the appellee filed an application for permanent total disability compensation. The application was supported by a letter dated September 22, 1982 from Dr. Lewis K. Curtwright, the claimant's treating physician. Dr. Curtwright's letter stated in pertinent part:
"I have not seen any functional improvement in nine years. The objective tests (CAT scan, EMG testing, and bone scan), do not reveal any neurological pathology. The patient refuses myelography testing because of some personal events. The evidence in her case strongly supports a permanent and total disability."
Having received appellee's application, the commission referred the appellee to Dr. David H. Gillis, an independent specialist, for examination. Dr. Gillis examined appellee on January 14, 1983. The commission received the specialist's report on February 3, 1983. His report contained a detailed history which described appellee's industrial injury as resulting in "injuries to her lower back, neck, head and hip." Dr. Gillis noted that her treatment had been conservative. He further determined that relator's medical condition was not likely to improve and that she would not be able to resume her former employment which involved lifting, bending, carrying and stooping. Dr. Gillis' report concluded, in the following language:
"At this time, based on the length of her injury and due to her present physical findings, I feel certain that there is a reasonable degree of permanent partial disability to the back and thus to the body as a whole but no definite evidence of permanent total disability. I would estimate her permanent partial disability to be in the neighborhood of about 50%." (Emphasis added.)
On February 16, 1983, appellee's counsel filed a C-86 motion requesting authorization to depose Dr. Gillis in order to clarify his medical report of February 3, 1983.
In his deposition of September 19, 1983, Dr. Gillis stated that the claimant would have problems doing work that would require her to stand for long periods of time or that required prolonged sitting. He also stated that she would have severe limitations in doing any work which required lifting, bending, carrying or stooping. Accordingly, the doctor found that the claimant would have difficulty in returning to the former occupations in which she had been engaged. Dr. Gillis concluded by stating that "she would have problems doing" those things. The doctor was then questioned as follows:
"Question: Doctor, I have one question of you, please. Based upon your examination of this lady on January 14, 1983, do you have an opinion, Doctor, as to whether or not she is or was able and capable of obtaining and retaining any gainful employment?
"Answer: Based on my opinion I felt she could do some other type employment, yes.
"* * *
"Question: But not the type she had been doing?
"Answer: I felt the type she had been doing would be a problem."
On September 11, 1984, appellee submitted an affidavit to the Industrial Commission in support of her application for permanent total disability. Therein she stated that she had formerly been employed in the capacity of a store clerk, a custodial janitorial worker, and a typesetter printers. She also stated that because these positions required sitting or standing for prolonged periods, and required lifting or bending, her present physical condition would not permit such types of employment.
The commission, after reviewing such evidence, held the determination in abeyance until an additional medical review could be obtained. On September 21, 1984, Dr. Paul H. Dillahunt of the commission's Medical Section conducted a medical review of relator's claim. He addressed the question of permanent total disability. Dr. Dillahunt's review was detailed and set forth the appellee's age (thirty-nine), occupation (keyboard operator), allowed injuries, and last date of employment. The report included a review of the "subjective and objective findings of the consulting, examining and treating physicians," as well as the medical records. After reviewing all of appellee's medical problems relating to her injury, Dr. Dillahunt concluded, in pertinent part, as follows:
"Although claimant can not return to her former usual and customary occupation it is within reasonable medical probability and certainty that the combined effects of the allowed conditions would not preclude claimant from performing some other substantially remunerative occupation."
Finally, on November 2, 1984, after specifically reviewing and evaluating the medical reports of Drs. Gillis, Curtwright and Dillahunt, as well as the totality of the other evidence in the record, the commission, by order, denied appellee's application for permanent total disability compensation. The November 2, 1984 order stated, in pertinent part:
"The medical reports of Drs. Gillis, Curtwright and Dillahunt were reviewed and evaluated. The findings and order are based particularly on the medical report of Dr. Dillahunt, the evidence in the file and the evidence adduced at the hearing."
Claimant sought a writ of mandamus in the Court of Appeals for Franklin County. The court referred the matter to a referee who, after reviewing the facts of this case, this court's holding in State, ex rel. Kokocinski, v. Indus. Comm. (1984), 11 Ohio St.3d 186, 11 OBR 499, 464 N.E.2d 564, as well as others, concluded that there was no evidence within the record upon which the commission could have determined that the claimant was not permanently and totally disabled. The court of appeals adopted the findings of fact and conclusions of law of the referee as stated and granted the writ.
Beall, Hermanies, Bortz Major, John H. Hermanies and Ronald D. Major, for appellee.
Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson and Tyrone Yates, for appellant.
The primary issue in this case is whether the Industrial Commission had before it some evidence upon which to decide that the relator-claimant was not permanently and totally disabled. We do not pronounce new law in this opinion, but reiterate established law, so as to hopefully clarify the current law of Ohio relative to the jurisdiction of the Industrial Commission to review the claimant's file, and to determine whether there exists sufficient evidence to conclude the ultimate issue. It is basic law, without need of citation, that the Industrial Commission has considerable discretion in the performance of its duties; that its actions are presumed to be valid and performed in good faith and judgment, unless shown to be otherwise; and that so long as there is some evidence in the file to support its findings and orders, this court will not overturn such.
It is also basic law that the purpose of permanent and total disability benefits is to compensate injured persons for impairment of earning capacity. State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 71 O.O. 2d 255, 328 N.E.2d 387. In determining permanent total disability, the Industrial Commission must evaluate the evidence concerning the degree to which the claimant's ability to work has been impaired. The ultimate consideration is whether the claimant is "`unfit for sustained remunerative employment.'" (Emphasis deleted.) State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St.3d 72, 5 OBR 127, 448 N.E.2d 1372. Any conclusion with regard to permanent total disability must address the claimant's ability to work. State, ex rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 11 OBR 497, 464 N.E.2d 1005.
In making a determination of the degree to which the claimant's ability to work has been impaired, and to answer the query as to whether the claimant is unfit to work at any sustained remunerative employment, the commission must look to a broad number of pertinent factors. It must review all the evidence in the record including the doctors' reports and opinions. The commission must also review any evidence relative to the claimant's age, education, work record, psychological or psychiatric factors if present, and that of a sociological nature. The commission should consider any other factors that might be important to its determination of whether this specific claimant may return to the job market by utilizing her past employment skills, or those skills which may be reasonably developed.
Typically, to gain such insight, the commission relies upon the doctors' reports. These usually include the examination of the claimant and a medical analysis of the physical condition highlighting the allowed injury. The doctors' determination of the severity of the physical condition generally presents a conclusion as to the examinee's percentage of physical impairment of function. Doctors' reports regularly use the words "disability" and "impairment" interchangeably, which use is not in accordance with the Medical Examination Manual issued by the Industrial Commission. However, in the context of the medical report, it may be concluded that reference to the claimant's physical impairment is generally intended. This court, in State, ex rel. Dallas, v. Indus. Comm. (1984), 11 Ohio St.3d 193, 11 OBR 504, 464 N.E.2d 567, and Meeks v. Ohio Brass Co. (1984), 10 Ohio St.3d 147, 10 OBR 482, 462 N.E.2d 389, noted the different meanings of the terms. We pointed out that "impairment" is the amount of a claimant's anatomical and/or mental loss of function and is to be determined by the doctors and set forth within the medical reports. We also noted that "disability" is the effect that the physical impairment has on the claimant's ability to work, which is to be determined by the Industrial Commission and its hearing officers.
Additionally, doctors' reports quite regularly indicate their opinion as to whether a claimant would be able to perform his prior employment functions, or any employment functions. These types of conclusions arguably go beyond the question of impairment and transcend into the job market-disability issue. The fact that a doctor's report offers an opinion as to the ultimate fact to be determined by the commission does not necessarily detract from the reliability of the report. The utilization of the term "disability" by doctors in their reports has been tacitly recognized over the years by this court in our opinions and syllabus law. Yet it remains the ultimate authority and duty of the commission to determine the totality and permanency of the allowed injury. The commission is not required to accept the factual findings stated in a medical report at face value and, without questioning such, adopt the conclusions as those of the commission. This court, in State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 22 O.O. 3d 400, 429 N.E.2d 433, stated that to do so would be tantamount to allowing a physician to determine disability rather than the commission. Questions of credibility and the weight to be given evidence are clearly within the commission's discretionary powers. See, generally, State, ex rel. Ohio Bell Telephone Co., v. Krise (1975), 42 Ohio St.2d 247, 71 O.O. 2d 226, 327 N.E.2d 756.
It is interesting to note that in the review of the record before us, the referee's report adopted by the court of appeals sets forth basically sound law. It then proceeds to cite a case with an inapposite factual situation, upon which the referee based his conclusion. The referee's report quite correctly noted that merely because "Dr. Gillis offered an opinion on the ultimate issue to be determined does not detract from the reliability of his report." Also, we believe the referee's report quite correctly stated: "The fact that a claimant may be precluded from returning to his or her former position of employment does not, ipso facto, entitle the claimant to compensation for permanent and total disability if, in fact, the Industrial Commission has before it evidence indicating that the claimant is not precluded from performing other employment."
The referee's report then proceeded to compare the doctor's opinion in this case with that in Kokocinski, supra, as follows: "In the instant case, while Dr. Gillis expressly indicated a belief that relator was not precluded from performing other employment, he also stated that such employment would necessarily have to contemplate activities other than those relator had previously performed. * * * Dr. McCloud [in Kokocinski] indicated that based upon a consideration of non-impairment factors, the claimant would have difficulty finding work other than that which she had previously performed, and that the latter duties would be difficult for the claimant to perform based upon her medical impairment."
The referee's report points out that this court, in Kokocinski, "rightfully determined that Dr. McCloud's report did not support a conclusion that the claimant therein was not permanently and totally disabled." Similarly, the referee's report concluded that Dr. Gillis' opinion is not some evidence upon which the Industrial Commission could have based its determination.
It is important to note the differences within the facts of this case and those in Kokocinski. In Kokocinski the claimant was a lady sixty-three years of age with little education or job skills, who at the time of the injury was working as a janitress, i.e., unskilled manual labor. There was absolutely no evidence in the record that she could have been employed in any other capacity. Accordingly, this court held at 189, 11 OBR at 502, 464 N.E.2d at 567, that the claimant's "* * * educational and vocational background limit[ed] her employment opportunities to those involving unskilled manual labor. Her injury effectively prevent[ed] her from performing those types of activities. There was no evidence upon which the commission could have determined otherwise* * *."
In the present case, at the time of the commission's denial of permanent total disability, the claimant was a woman thirty-nine years of age with a varied employment background including work in the printing business as a typesetter. In this particular job she evidently read copy material, selected and set type, and functioned generally in a position which required reading, writing and letter alignment capability. She obviously had the manual dexterity to accomplish type placement within the type frames. These employment skill data, within the record before the commission here, are quite different than those found in the facts of Kokocinski.
We reiterate that the determination of permanent total disability, and whether or not the claimant could return to any other remunerative employment, is an ultimate finding, totally within the province of the commission. We hold it to be necessary that the commission 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.
Perhaps these factors were considered by the commission, but because we find no indication in the commission's order that such factors were considered by the commission in reaching its decision on the percentage of permanent total disability of appellee, see State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721, we reverse the judgment of the court of appeals and remand this cause to the commission for consideration of said factors, if previous consideration had not been given, and an amended order stating the commission's findings after such consideration.
Judgment reversed and cause remanded.
SWEENEY, Acting C.J., COOK, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, J., sitting for MOYER, C.J.
COOK, J. of the Eleventh Appellate District, sitting for SWEENEY, J.