State, ex rel. Elliott v. Industrial Com'n of Ohio

• Decision Date: 20 August 1986
• Docket Number: No. 85-1430,85-1430
• Citation: 26 Ohio St.3d 76,497 N.E.2d 70,26 OBR 66
• Parties: , 26 O.B.R. 66 The STATE, ex rel. ELLIOTT, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.
• Court: Ohio Supreme Court

Page 76

26 Ohio St.3d 76

497 N.E.2d 70, 26 O.B.R. 66

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

No. 85-1430.

Supreme Court of Ohio.

Aug. 20, 1986.

Appellant, Herbert Elliott, was injured on August 8, 1968, in the course of his employment as a molder with Holophane Company, Inc. A workers' compensation claim was initially allowed for "low back strain." In May 1981, the claim was additionally allowed for "disc degeneration, arthritis, and severe nerve root pressure."

Appellant was unable to continue working in his usual occupation as a molder, a job he had held for thirty years. The position required constant standing, repetitive bending, and heavy lifting of eighty to one hundred pound weights. Appellant was awarded temporary total benefits until he received the maximum amount payable for the 1968 injury. He then filed an application for permanent total disability benefits. In support of his application, appellant submitted a report from his treating physician, Dr. Carl Jenkins. Dr. Jenkins discussed appellant's medical afflictions relating to the allowed conditions and concluded:

"This man, since May of 1972 in his job situation as molder and metal pourer, has physical limitations that prevent him from doing manual labor well enough to hold a job. * * * Certainly after operative intervention, he would still not be able to do manual labor. In this respect, I feel that further investigation of this sort is not warranted in this man who is still permanently disabled for this type of work situation (60-70%) and feel in reality that this is 100% disability."

Appellant also submitted the report of a vocational consultant, Steven Rosenthal, M.A. Rosenthal's report noted that intelligence testing of appellant reflected an I.Q. of 64, which places him within a "trainable mentally retarded group." Rosenthal concluded:

"In summary we have a 54 year old male with limited intelligence, restricted physical capabilities, and no transferrable [sic] skills. The medical information points to a capacity to perform a limited range of sedentary-light exertion jobs. A limitation in bending and the need to obtain a sit-stand-walk option places significant limitations on both the client and employer. We first need to eliminate jobs requiring reading, writing or communication requirements. We further eliminate positions requiring problem solving, judgment [sic] and multiple step responsibilities. We then must consider how Mr. Elliott will compete with the other healthy applicants for so-called 'soft jobs.' I believe the restrictions indicated would necessitate special considerations by an employer. With no further skill-academic development or medical rehabilitation, I believe Mr. Elliott will be unemployable."

The evidence before the Industrial Commission also included an affidavit of appellant declaring that he can write his name but cannot read, add or subtract, that his wife has always handled all business and money matters, that he worked for approximately thirty years as a molder, and that he has a fifth grade education.

The evidence specifically relied upon by the commission, as expressly articulated in its findings of fact and order, consisted of the reports of "Drs. Kackley, Braunlin and Steiman, the evidence in the file and the evidence adduced at the hearing."

Dr. Kackley, after examining the claimant and reviewing his history and file, concluded: "From the standpoint of strict orthopedic evaluation today, this individual is obviously not totally impaired. He is capable of moderate activity and any degree of PPI would be attributable to some degree of loss of low back reserve or low back decompensation. I would estimate his percentage of PPI at approximately 30 percent. I find no evidence of any other co-existing factors to account for any impairment beyond that percentage."

Dr. Braunlin, after a physical examination, review of claimant's medical history and file opined:

"I feel that he has likely reached maximum recovery from his industrial accident. I feel that his percent of present impairment is about 30%. I would also feel that his percentage of permanent partial impairment for his allowed conditions is about 30 percent. I feel that he would not be significantlly [sic] restricted by his industrial accident in terms of light lifting or sitting. I feel that his industrial accident would limit him from heavy lifting and should preclude him from frequent moderate lifting. I feel that his lumbar bending should also be minimized because of his industrial accident."

Dr. Steiman, after a neurological examination and review of the claimant's medical history, rendered the following opinion:

"Based on the above neurological examination, a review of Mr. Elliott's complaints, his past medical records and his job description, it is my opinion that he would not be able to return to his previous employment as a molder and perform all the duties and tasks which are required of him. Unfortunately, I feel that the claimant has reached maximal recovery and therefore, any ongoing impairment should be considered to be permanent. It is my opinion that the claimant has an impairment of a low moderate degree, 40%. In reaching this conclusion, I have taken into consideration all of the disabilities allowed."

In response to interrogatories, all three doctors indicated they had not taken into consideration appellant's age, education and work skills.

Appellant subsequently commenced this action in mandamus in the Court of Appeals for Franklin County, alleging the commission had abused its discretion in failing to find that he is permanently and totally disabled and entitled to compensation therefor. Acting upon a referee's report and recommendation, the court of appeals denied the writ.

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

Agee, Clymer & Morgan Co., L.P.A. and Philip J. Fulton, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson and Merl H. Wayman, for appellee.

PER CURIAM.

For the reasons to follow we affirm the denial of the writ of mandamus.

The extraordinary writ of mandamus may only issue if relator has demonstrated a clear legal right to the relief sought. State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 429 N.E.2d 433 . Such demonstration is predicated upon an abuse of discretion by the Industrial Commission which, in turn, may be established only if the record is devoid of some evidence to support the commission's order. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9, 13, 278 N.E.2d 34 [58 0.0.2d 66]; State, ex rel. Teece, supra, 68 Ohio St.2d at 167, 429 N.E.2d 433.

Although Drs. Kackley, Braunlin and Steiman did not expressly consider appellant's age, education or work history in rendering their respective opinions, there is no requirement that they do so. In State, ex rel. Adkins, v. Indus. Comm. (1986), 24 Ohio St.3d 180, 181-182, 494 N.E.2d 1105, we stated:

"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 ."

Evidence of appellant's age, education and work history, while potentially relevant to the question of disability, was clearly in the record before the commission. ¹ While the ultimate disability opinion by the commission did not expressly indicate that these factors were considered relevant, it need not have done so because the weight to be given such evidence is squarely within the commission's discretionary power of fact-finding. See State, ex rel. Teece, v. Indus. Comm., supra, 68 Ohio St.3d at 169, 429 N.E.2d 433; State, ex rel. Lunsford, v. Indus. Comm. (1984), 11 Ohio St.3d 137, 139, 464 N.E.2d 150. Similarly, the concern that Drs. Kackley, Braunlin, and Steiman did not consider claimant's age, education and work skills in their respective evaluations is not persuasive. While such factors may be considered, the medical reports of those doctors goes to the issue of impairment which is a concern separate and distinct from the issue of disability. See, generally, State, ex rel. Meeks, v. Ohio Brass. Co. (1984), 10 Ohio St.3d 147, 148, 462 N.E.2d 389.

To conclude, R.C. 4123.519 expressly indicates that this court may not act as an appellate body with respect to decisions by the commission concerning the extent of disability. Moreover, mandamus is not a substitute for an appeal nor can it be used to create an appeal in cases where appeal is not provided by law. State, ex rel. Marshall, v. Keller (1968), 15 Ohio St.2d 203, 205, 239 N.E.2d 85 . Because the commission's decision was supported by some evidence, no basis for mandamus is extant and we are compelled to affirm the judgment of the court of appeals in denying the requested writ.

Judgment affirmed.

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

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

CLIFFORD F. BROWN, Justice, dissenting.

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

As noted by the majority, appellant adduced evidence to demonstrate that he had worked for thirty years as a molder, that he was fifty-four years old and illiterate, with a low level education and limited mental capacity. The vocational consultant's report concluded that these factors, combined with appellant's allowed injury, render him "unemployable." For the following reasons, I believe the Commission abused its...