State ex rel. Ehlinger v. Indus. Comm.
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1 The State ex rel. Ehlinger, Appellee and Cross-Appellant, v. Industrial 2 Commission of Ohio, Appellant and Cross-Appellee. 3 [Cite as State ex rel. Ehlinger v. Indus. Comm. (1996), ____ Ohio St. 4 3d ____.] 5 Workers compensation -- Denial of application for permanent total 6 disabilty compensation by Industrial Commission not an abuse 7 of discretion when some evidence is present supporting the 8 commission s conclusion that, medically, claimant could do 9 sedentary work. 10 11 12 (No. 94-2171 -- Submitted July 24, 1996 -- Decided August 21, 1996.) Appeal and Cross-Appeal from the Court of Appeals for Franklin County, No. 93APD10-1393. 13 Claimant Donald M. Ehlinger, appellee and cross-appellant, sustained 14 two back injuries in the course of and arising from his employment with the 15 Cleveland Zoological Society and the Cleveland Metro Park District. The 16 Industrial Commission of Ohio, appellant and cross-appellee, allowed both 17 workers compensation claims and claimant eventually filed for permanent 18 total disability compensation. 1 2 Among the medical evidence before the commission was the report of Dr. Gnage, who concluded: 3 The patient described to me the activity level of his job requiring 4 climbing, lifting, etc. He has not worked at this job for eight years and is 5 now retired at age 65. Certainly it does not seem likely that he will be able 6 to return to this job. I would not feel there is any specific treatment for his 7 low back problem and would feel he had reached maximum recovery from 8 this. There is one difficulty in my mind in [that] his history dictates pain 9 after walking which could be secondary to spinal stenosis or from vascular 10 insufficiency. I would feel that evaluation by a vascular surgeon might be 11 necessary to differentiate these two at this point. According to AMA 12 Guides, taking into account his disc operations with mild loss of motion at 13 the back and the obvious degeneration on his spinal x-rays, I would assign 14 an impairment rating of 20% to the body as a whole. The only kind of 15 employment he would be suited * * * for is sedentary type of employment. 16 At his age of 65, I doubt that this is reasonable and I would therefore feel 17 this is a permanent impairment rating and that he would not be able to return 18 to any sustained employment. 2 1 Dr. Jack D. Hutchison also assessed a twenty-five percent 2 impairment, but did not comment on claimant s ability to work or possible 3 physical restrictions. Dr. Aaron Schneider concurred in the twenty-five 4 percent impairment rating. 5 The commission ultimately denied permanent total disability, writing: 6 The reports of Doctors Gnage, Ljubija [sic, Ljuboja] , Schneider, 7 Hutchison and Mr. Fink were reviewed and evaluated. This order is based 8 particularly upon the reports of Drs. Gnage and Hutchison, and the evidence 9 in the file * * *. 10 The medical evidence found persuasive are the reports of 11 Commission Specialists, Drs. Gnage and Hutchison. Dr. Gnage assigns the 12 claimant a 20% PPI [permanent partial impairment] to his allowed physical 13 conditions and opines that solely on the basis of these conditions the 14 claimant can perform sedentary work. Dr. Hutchison finds the claimant to 15 demonstrate a 25% PPI and indicates the claimant does not present evidence 16 of radiculopathy or nerve root compression. The report of Commission 17 specialist Schneider, is found unpersuasive in that he considers non-medical 18 factors in [reaching] his conclusion that the claimant is prohibited from 3 1 sustained remunerative employment. Thus, the reliable medical evidence 2 indicates the claimant has a low to moderate back impairment which, in and 3 of itself, does not preclude the claimant from engaging in sedentary 4 employment. It is noted the claimant is 71 years old, has a B.S. in 5 agriculture, and a vocational history as a grinder, nature counselor and game 6 protector. While it is unclear as to whether the claimant s work experience 7 has afforded him skills transferrable to sedentary employment, his advanced 8 education degree, [and] with it concomitant technical knowledge, strongly 9 suggests the claimant has the skills and qualifications for a number of 10 sedentary jobs. Thus, notwithstanding the claimant s advanced age of 71 11 nor [sic] his possible lack of transferrable skills from work experience, the 12 Commission finds he does have the vocational aptitude based on his 13 education to engage in sustained remunerative employment consistent with 14 his physical restrictions. Accordingly, the claimant s Application for 15 Permanent and Total Disability is denied. 16 Claimant filed a complaint in mandamus in the Court of Appeals for 17 Franklin County, alleging that the commission abused its discretion in 18 denying him permanent total disability compensation. The court of appeals 4 1 held that the order did not satisfy State ex rel. Noll v. Indus. Comm. (1990), 2 57 Ohio St.3d 203, 567 N.E.2d 245, and returned the cause to the 3 commission for further consideration and amended order. 4 5 6 7 8 9 10 This cause is now before this court upon an appeal and cross-appeal as of right. Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy; Hahn & Swadey and Victor Hahn, for appellee and cross-appellant. Betty D. Montgomery, Attorney General, and Diane M. Meftah, Assistant Attorney General, for appellant and cross-appellee. Per Curiam. Claimant seeks to compel an award of permanent total 11 disability compensation pursuant to State ex rel. Gay v. Mihm (1994), 68 12 Ohio St.3d 315, 626 N.E.2d 666. The commission seeks to have its order 13 upheld as is. For the reasons to follow, we find in the commission s favor. 14 Medically, the commission relied on the reports of Drs. Hutchison 15 and Gnage. The latter assessed a twenty percent permanent partial 16 impairment and opined that the allowed conditions would permit sedentary 17 sustained remunerative employment. As such, any alleged deficiencies in 18 Dr. Hutchison s report are immaterial, since Gnage s report is some 5 1 evidence supporting the conclusion that, medically, claimant could do 2 sedentary work. 3 Examining the commission s evaluation of claimant s nonmedical 4 disability factors, claimant asserts that the commission abused its discretion 5 in characterizing claimant s college degree as a vocational asset. He 6 reasons that because his degree did not generate a sedentary job, the degree 7 does not enhance his prospects for sedentary work. We disagree. 8 9 A college degree implies an above-average level of intelligence that would facilitate the acquisition of new skills that are conducive to sedentary 10 work. A college education also suggests a measure of commitment, hard 11 work, and discipline that prospective employers value. The commission did 12 not, therefore, err in viewing claimant s education favorably. 13 The commission s order acknowledges the strenuous, not sedentary, 14 nature of claimant s previous jobs. Claimant s preoccupation with past 15 experience and current skills ignores a fundamental precept -- [a] 16 permanent total disability compensation assessment examines both 17 claimant s current and future, i.e., potentially developable, abilities. State 18 ex rel. Ewart v. Indus. Comm. (1996), 76 Ohio St.3d 139, 142, 666 N.E.2d 6 1 1125, ____. Claimant s prior history and present abilities do not, therefore, 2 necessarily negate future opportunities based on new skills. This is 3 particularly true where a claimant, as here, possesses an above-average 4 learning capacity. Accordingly, the commission did not err in determining 5 that reemployment/retraining was not foreclosed by claimant s work history. 6 Claimant also emphasizes his advanced age. While not a vocational 7 asset, age must not be deemed as insurmountable a barrier as the claimant 8 urges. In State ex rel. Moss v. Indus. Comm. (1996), 75 Ohio St.3d 414, 9 417, 662 N.E.2d 364, 366, we wrote: 10 Age must instead be considered on a case-by-case basis. To 11 effectively do so, the commission must deem any presumptions about age 12 rebuttable. Equally important, age must never be viewed in isolation. A 13 college degree, for example, can do much to ameliorate the effects of 14 advanced age. 15 Pass [State ex rel. Pass v. C.S.T. Extraction Co. (1995), 74 Ohio 16 St.3d 373, 658 N.E.2d 1055], DeZarn [State ex rel. DeZarn v. Indus. Comm. 17 (1996), 74 Ohio St.3d 461, 659 N.E.2d 1259] and Bryant [State ex rel. 18 Bryant v. Indus. Comm. (1996), 74 Ohio St. 3d 458, 659 N.E.2d 1256] 7 1 support these propositions. Collectively, these cases establish that there is 2 not an age -- ever -- at which reemployment is held to be a virtual 3 impossibility as a matter of law. Certainly, it would be remiss to ignore the 4 limitations that age can place on efforts to secure other employment. 5 However, limitation should never automatically translate into prohibition. 6 Each claimant is different, with different levels of motivation, 7 initiative and resourcefulness. The claimant in Bryant is an excellent 8 example of a claimant who was motivated to work well beyond retirement 9 age and was resourceful enough to find a job that valued the experience that 10 11 his advanced age brought. This underscores the commission s responsibility to affirmatively 12 address the age factor. It is not enough for the commission to just 13 acknowledge claimant s age. It must discuss age in conjunction with the 14 other aspects of the claimant s individual profile that may lessen or magnify 15 age s effects. 16 In this case, the commission recognized the impediments that 17 claimant s age imposed on her ability to obtain other work. The 18 commission, however, did not find these limitations to be a complete bar to 8 1 reemployment. Given claimant s relatively low level of impairment, the 2 commission reasoned that, with the claimant s ability to read, write, and do 3 math, sedentary work was not absolutely precluded. This conclusion was 4 within the commission s prerogative as the exclusive evaluator of disability, 5 and we will not substitute our judgment for that of the commission. * * * 6 In this case, the commission found that claimant s low degree of 7 impairment coupled with his high level of education, offset the effect of 8 claimant s advanced age and nonsedentary work history. We do not find 9 that this conclusion constitutes an abuse of discretion. 10 Claimant lastly accuses the commission of failing to affirmatively 11 consider the report of vocational consultant Michael L. Fink. The 12 commission s order, however, reflects its consideration of his reports. 13 Contrary to claimant s representation, the commission is not required to 14 accept the conclusion of a vocational or rehabilitation report, since to do so 15 makes the rehabilitation division, not the commission, the ultimate 16 evaluator of disability * * *. State ex rel. Ellis v. McGraw Edison Co. 17 (1993), 66 Ohio St.3d 92, 94, 609 N.E.2d 164, 166. 9 1 The commission s freedom to accept or reject a vocational report is 2 particularly important in a case such as this. The Fink reports, dated 1981 3 and 1988, were not based on personal evaluations but were instead based on 4 telephone and personal conversations. No recent medical reports were 5 reviewed in the 1988 Fink report, nor was any vocational or aptitude testing 6 performed. Fink conceded that claimant had the mental and educational 7 capacity for work and based his conclusion of permanent total disability 8 compensation, in large part, on claimant s inability to travel to and from a 9 job. The commission did not abuse its discretion in rejecting these reports. 10 11 Based upon these factors, the judgment of the court of appeals is hereby reversed. 12 Judgment reversed. 13 MOYER, C.J., PFEIFER, COOK and STRATTON, JJ., concur. 14 DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent and would affirm 15 the judgment of the court of appeals. 16 10
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