State ex rel. Adkins v. Industrial Com'n of Ohio

• Decision Date: 02 July 1986
• Docket Number: No. 85-1508,85-1508
• Citation: 494 N.E.2d 1105,24 Ohio St.3d 180
• Parties: , 24 O.B.R. 410 The STATE, ex rel. ADKINS, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.
• Court: Ohio Supreme Court

Page 180

24 Ohio St.3d 180

494 N.E.2d 1105, 24 O.B.R. 410

The STATE, ex rel. ADKINS, Appellant, v.INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.

No. 85-1508.

Supreme Court of Ohio.

July 2, 1986.

Anthony J. Celebrezze, Jr., Atty. Gen., Dennis L. Hufstader and Janet E. Jackson, Columbus, for appellee.

PER CURIAM.

Essentially, appellant raises two questions herein.¹First, whether there is substantial, reliable and probative evidence supporting the determination by the commission that appellant is not permanently and totally disabled.Second, whether the commission is required to explain why it did not accept the conclusions of a vocational consultant who, in consideration of appellant's experience, education, and age, found that as to employment opportunities, appellant would not present the "best qualifications or least problems."

As to the evidence supporting the commission's finding and order, appellant argues that Dr. Kackley's admission in his answers to interrogatories that he did not consider the factors of age, education and work history in making his impairment evaluation is not evidence supporting a want of permanent and total disability because disability must be considered in context with those factors.The answer to this argument is that disability determination rests with the Industrial Commission.State, ex rel. Dallas, v. Indus. Comm.(1984), 11 Ohio St.3d 193, 464 N.E.2d 567.The determination herein is supported by reliable, probative and substantial evidence of Dr. Kackley based upon his conclusions as to the extent of appellant's impairment.While the credibility of Dr. Reynolds' evaluation might arguably be impugned as equivocatory (seeState, ex rel. Walters, v. Indus. Comm.[1985], 20 Ohio St.3d 71, 486 N.E.2d 94), the credibility of Dr. Kackley's evaluation is unimpeached and supports the commission's determination that appellant is not permanently and totally disabled.

As to the commission's failure to refer to the evaluation of the vocational rehabilitation consultant, that evaluation may be accepted or rejected as the commission deems appropriate because the determination of extent of disability is the function of the commission.SeeDallas, supra.Moreover, the standard by which the commission must be guided in determining whether a claimant is permanently and totally disabled is whether he is "unfit for sustained remunerative employment."SeeState, ex rel. Jennings, v. Indus. Comm.(1982), 1 Ohio St.3d 101, 102, 438 N.E.2d 420.The report of Rosenthal addressed a standard, i.e., "best qualifications or least problems," which differed from that set forth in Jennings.Thus, the Rosenthal report was properly rejected by the commission and no reference thereto was necessary.

For reasons of the foregoing, the judgment of the court of appeals, denying the writ of mandamus, is hereby affirmed.

Judgment affirmed.

SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.

CELEBREZZE, C.J., and CLIFFORD F. BROWN, J., dissent.

LOCHER, Justice, concurring.

I concur in today's decision because it reaffirms this court's recognition that the commission, not outside "experts," has the responsibility for determining disability.Factors such as age, education and work history may certainly be considered by the commission but should not provide the basis for usurping the role of the commission in determining disability.

WRIGHT, J., concurs in the foregoing concurring opinion.

CLIFFORD F. BROWN, Justice, dissenting.

Because I believe the Industrial Commission abused its discretion by denying appellant's application for permanent total disability benefits, I dissent.

The court of appeals held that the commission's denial of benefits was supported by competent evidence, specifically the medical reports of Drs Kackley and Reynolds.However, the court below did not consider the fact that Kackley stated in response to interrogatories that he did not consider appellant's age, education and work skills in his evaluation of appellant's disability.This court has held that "[a]ny conclusion with regard to permanent total...