Summary
In State ex rel. Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250, 685 N.E.2d 774, the commission's rehabilitation division assessed the rehabilitation potential of a PTD applicant and recommended, among other things, remedial education classes.
Summary of this case from State ex rel. Gonzales v. MorganOpinion
No. 95-962
Submitted October 8, 1997 —
Decided November 12, 1997.
APPEAL from the Court of Appeals for Franklin County, No. 94APD02-235.
Appellant-claimant, Keith L. Wilson, was injured in 1981 while in the course of and arising from his employment with Robglo, Inc. His workers' compensation claim was recognized for "lumbosacral strain and possible herniated nucleus pulposus." Claimant never returned to work after his injury.
In 1987, claimant moved appellee, Industrial Commission of Ohio, for permanent total disability compensation. He accompanied his motion with a letter from Dr. A.S. Buchanan, which stated:
"In my opinion, Mr. Keith Wilson is permanently and totally disabled from performing the unskilled manual labor which he had previously done, due to his severe chronic back pain and degenerative arthritis of the spine."
Degenerative arthritis is not an allowed condition in the claim.
Commission specialist Dr. H. Tom Reynolds also examined claimant. He reported:
"No specific neurologic deficits were noted on today's examination. Straight leg raising, sitting versus that [of] supine was inconsistent. And there was exquisite tenderness to palpation about the low back. Based on today's examination and review of the file, it is my opinion that this claimant has an impairment that is permanent in nature but not permanent and total. I do not feel he can return to his previous level of employment, and this inability would be permanent. In my opinion, I do feel he maintains the ability to perform sustained remunerative employment within the sedentary and light job duty classifications, consistent with not lifting more than 25 pounds occasionally and 10 pounds frequently, with bending and stooping to no more than occasional in nature. The objective findings do not fully substantiate his significant and exquisite pain behaviors and complaints subjectively. I do feel he has experienced maximum recovery. He has already undergone a vocational evaluation. I do not feel that he would benefit from a formal rehabilitation referral. Work hardening and work simulation in an appropriately identified area from the vocational evaluation within his physical capacities would be appropriate. By participating in a rehab program I do not feel this would increase his physical capacities past those mentioned. * * * It is my opinion that this claimant would have a permanent impairment of 20%."
Claimant also submitted a report from vocational consultant Anthony C. Riccio, Ph.D., who assessed a permanent total disability based on the following:
"1. The claimant was found to be functioning below entry competitive level of vocational competence by Rehabilitation personnel.
"2. The claimant was found to be disabled by an impartial administrative law judge of the Social Security Administration.
"3. All who observed and/or evaluated the claimant for the Commission noted significant pain behaviors.
"4. The claimant has a restricted range of back motion, a limp, and reduced tolerance for sitting or standing.
"5. The claimant has not worked for more than nine years. He has adjusted to a disabled life style and has little motivation to change, even if he could.
"6. While it is sad to see younger individuals placed on permanent and total disability, I do not believe this claimant will ever work again. From a vocational perspective, he has been removed from the work force. Therefore, I have to believe he is permanently and totally disabled."
The commission's Rehabilitation Division evaluated claimant in April 1988. Evidence from that evaluation is somewhat confusing because it describes claimant's rehabilitation potential in conflicting terms. Ultimately, however, the division recommended remedial education classes, a low-back rehabilitation program, and a pain and stress program for claimant, the latter two in the hope that claimant "may eventually be able to increase his physical capabilities to the point his job options can increase." The Rehabilitation Division repeatedly contacted claimant thereafter to set up an individualized rehabilitation program. Claimant did not, however, respond to those contacts, and his file was closed for lack of interest by claimant.
The commission denied claimant permanent total disability compensation on September 27, 1990. Reconsideration was granted in response to the then-newly issued decision in State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245. The commission denied permanent total disability benefits for a second time, writing:
"The medical reports of Drs. Buchanan, Reynolds, and vocational Consultant Anthony Riccio were reviewed and evaluated. The findings and order are based particularly on the medical report of Dr. Reynolds, the evidence in the file and evidence adduced at hearing.
"The claimant is 47 years old, has a 9th grade education and has worked as a carpenter, stripminer, forklift operator, pipe layer and maintenance man. Claimant's Dr. Buchanan only states claimant cannot return to his former job of unskilled [and] manual labor, he does not say the claimant is permanently and totally disabled from all sustained gainful work. Dr. Reynolds found the claimant capable of sedentary and light work. Considering the claimant's young age (47) and 9th grade education it would appear he has the time and education needed to retrain. He would also have the time to improve his educational [cap]abilities. Further, the Rehabilitation Division, after physical and vocational evaluations, found the claimant to have rehabilitation potential. In light of the factors, Mr. Riccio's report is not found to be persuasive. Based on all the above stated facts, permanent and total disability is denied."
Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying him permanent total disability compensation. The court of appeals found that the order was both supported by "some evidence" and in compliance with Noll, and denied the writ.
This cause is now before this court upon an appeal as of right.
Stewart Jaffy Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, for appellant. Betty D. Montgomery, Attorney General, and Yolanda V. Vorys, Assistant Attorney General, for appellee.
Claimant contests the validity of the commission's order and asserts a right to permanent total disability compensation pursuant to State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Upon review, we reject claimant's challenge and affirm the judgment of the court of appeals.
The commission confines itself to Dr. Reynold's report with respect to claimant's allowed conditions. Dr. Reynolds assessed a low, twenty percent permanent partial impairment and found claimant capable of sedentary and light work. There is thus "some evidence" of a medical ability by claimant to perform sustained remunerative employment.
In its nonmedical analysis, the commission, mentioning claimant's relatively young age, concentrated on future rather than current skills. This is the proper focus for such an analysis. As the Franklin County Court of Appeals wrote in an earlier decision, the 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." State ex rel. Speelman v. Indus. Comm. (1992), 73 Ohio App.3d 757, 762, 598 N.E.2d 192, 195.
The commission found that claimant's age afforded him the opportunity to improve the educational deficits on which he so heavily relies in asserting that he is incapable of sustained remunerative employment. Reduction or elimination of these deficits, in turn, would facilitate the acquisition of new skills. We not only sustain the commission's reasoning, but feel compelled to add an observation of our own.
Not only does claimant have the opportunity to improve his reemployment potential, he has had this opportunity for the sixteen years he has not worked since his injury. Despite the fact that claimant was only age thirty-seven when injured, there is no evidence that claimant ever made an effort to pursue remedial education or obtain his G.E.D. The record does reflect that claimant did not respond when contacted by the commission's Rehabilitation Division about establishing a rehabilitation plan.
We view permanent total disability compensation as compensation of last resort, to be awarded only when all reasonable avenues of accomplishing a return to sustained remunerative employment have failed. Thus, it is not unreasonable to expect a claimant to participate in return-to-work efforts to the best of his or her abilities or to take the initiative to improve reemployment potential. While extenuating circumstances can excuse a claimant's nonparticipation in reeducation or retraining efforts, claimants should no longer assume that a participatory role, or lack thereof, will go unscrutinized.
For the reasons stated above, we find that the commission did not abuse its discretion in denying claimant permanent total disability compensation, and, accordingly, affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
F.E. SWEENEY, J., dissents and would reverse the judgment of the court of appeals.