State ex rel. Basham v. Consolidation Coal Co.

• Decision Date: 07 June 1989
• Docket Number: No. 88-349,88-349
• Parties: The STATE, ex rel. BASHAM, Appellee, v. CONSOLIDATION COAL COMPANY, Appellant, et al.
• Court: Ohio Supreme Court

Page 151

43 Ohio St.3d 151

541 N.E.2d 47

The STATE, ex rel. BASHAM, Appellee, v. CONSOLIDATION COAL COMPANY, Appellant, et al.

No. 88-349.

Supreme Court of Ohio.

Submitted March 28, 1989.

Decided June 7, 1989.

Appellee, Teddy Basham, was injured in 1975 while in the course of an arising from his employment with appellant, Consolidation Coal Company. His workers' compensation claim was subsequently recognized for aggravation of a previous back condition. In 1985 appellee applied to the Industrial Commission ("commission") for permanent total disability compensation. Accompanying the motion was the report of attending physician James Z. Scott, who opined that appellee was permanently and totally disabled.

Appellee was examined on the commission's behalf by its specialist, Dr. John Q. Brown. In his report of August 23, 1985 and supplemental opinion of December 12, 1985, Dr. Brown stated that appellee was not permanently and totally impaired and could engage in sustained remunerative employment. Dr. Brown stated that appellee would be unable to lift over ten pounds and would be limited to an essentially sedentary job. The August report noted appellee's age, but contained no other information of a nonmedical nature. The commission denied appellee's application based on Dr. Brown's report.

Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying his disability application, and seeking a writ to compel payment of permanent total disability compensation. The court granted a limited writ and remanded the cause to the commission for consideration of relevant nonmedical disability factors set forth in State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946.

The cause is now before this court upon an appeal as a matter of right.

Cranston & Brian Co., L.P.A., and Richard F. Brian, for appellee.

Hanlon, Duff & Paleudis Co., L.P.A., and John G. Paleudis, for appellant.

PER CURIAM.

State, ex rel. Stephenson, v. Indus. Comm., supra, reaffirmed the distinction between "impairment" and "disability," holding that the commission, in deciding applications for permanent total disability compensation, must consider "claimant's age, education, work record, and all other factors, such as physical, psychological, and sociological, that are contained within the record." Id. at 173, 31 OBR at 374, 509 N.E.2d at 951. Stephenson held that an order of permanent and total disability issued by the commission must indicate that these additional factors were considered, and the court remanded for further consideration an order that failed to so indicate.

Appellant alleges that a claimant must, prior to a hearing on a permanent total disability application, affirmatively assert the relevant nonmedical disability factors on which he or she intends to rely. Appellant contends that a claimant's failure to do so essentially amounts to a waiver of the claimant's right to rely on those factors and thus forecloses the commission from considering them. For the reasons to follow, we find this argument unpersuasive.

Stephenson holds that the commission must consider nonmedical disability factors. It contains no language suggesting that the commission's duty is initiated or negated by any act or omission of a claimant. It places an affirmative duty on the commission to consider relevant disability evidence within the record regardless of whether it is presented by a claimant.

Appellant's reliance on Ohio Adm. Code 4121-3-15(G)(1) and (2) is also misplaced. Ohio Adm. Code 4121-3-15(G)(1) requires all applications for permanent...