State ex rel. Fultz v. Indus. Comm., 93-1376

Decision Date18 May 1994
Docket NumberNo. 93-1376,93-1376
PartiesThe STATE ex rel. FULTZ, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.
CourtOhio Supreme Court

Appellant-claimant, Thelma Fultz, sustained two industrial injuries in the course of and arising from her employment with appellee, Southwest Ohio Regional Transit Authority. The most serious injury occurred in 1985 and claimant's workers' compensation claim was allowed for "[s]train--cervical, thoracic and lumbar, right ankle and right knee; somatoform pain disorder with dysthymia."

In 1987, claimant applied to appellee, Industrial Commission of Ohio, for permanent total disability compensation. Attending physician, Steven D. Mueller, M.D., stated that "given [claimant's] level of education and vocational skills, she should be evaluated for 100% permanent disability [sic ]." He did not comment on the effect claimant's medical condition alone had on her ability to work.

Dr. Wayne C. Amendt examined claimant orthopedically and concluded that, while unable to return to her old job, she could do light work. He assessed a twenty-two percent permanent partial orthopedic impairment. Psychologist Michael T. Farrell, Ph.D., found that claimant's psychological condition would not prevent her from engaging in any type of sustained remunerative employment. He also noted, however, that:

"Given her 48 years of age, past employment, the physical and mental impairments recognized in the claim, and the unrelated physical and mental impairments, it is my opinion that she would not be a good candidate for vocational rehabilitation."

Dr. Walter A. Holbrook's combined-effects review assessed a fifty-three percent permanent partial impairment. Dr. Holbrook felt that claimant was limited to jobs requiring "lifting 10 lbs. occasionally and less than 10 lbs. frequently under low stress circumstances," and that she could not return to her former job.

The commission's rehabilitation division found that claimant's "[v]ocational aptitude testing and academic skills testing were rated below average and average respectively." Claimant's assets in favor of successful retraining included age, education (GED), semi-skilled work history and academic skills. Claimant's liabilities were listed as: (1) last date worked (May 24, 1985); (2) "[c]urrent physical capacities: sedentary to light strength range with limited sit/stand tolerance"; (3) current aerobic conditioning; (4) "[m]onetary disincentive; Mrs. Fultz received $817 per month in PERS benefits"; (5) "[a]ttitude toward participation in rehabilitation programming"; (6) "[i]nitiative during vocational screening"; (7) work pacing; (8) vocational aptitudes; and (9) psychological stability. Two evaluators concluded that claimant's biggest impediment to successful retraining was her poor attitude. Her file was consequently closed.

Claimant also submitted the vocational report of Anthony C. Riccio, Ph.D., who felt claimant to be permanently and totally "disabled" based on these factors:

"1. The claimant has not worked in more than five years.

"2. The claimant has never done sedentary work nor does she have any skills relevant to sedentary work.

"3. The claimant has been found disabled by PERS.

"4. The claimant has been found by Rehab to have no re-employment potential.

"5. The claimant has a Class 2 mental impairment. In terms of vocational probability, there is no such thing as low stress work for such people. Stress is not a job characteristic; it is a function of worker perception. The claimant's mental status would cause her to perceive all work settings as stressful. For her, there would be no such thing as low stress work. From a vocational perspective, she is clearly permanently and totally disabled ...

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    ...Balvin v. Youghiogheny & Ohio Coal Co. (1994), 70 Ohio St.3d 163, 165, 637 N.E.2d 907, 908-909; State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327, 329, 631 N.E.2d 1057, 1059; State ex rel. Cupp v. Indus. Comm. (1991), 58 Ohio St.3d 129, 129-130, 568 N.E.2d 1214, The commission's......
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    ...rehabilitation report of record and the commission's order was a violation of the principle originally set forth in State ex rel. Fultz v. Indus. Comm., 69 Ohio St.3d 327 1994), and whether the commission's non-medical analysis violated Noll because the analysis did not attempt to reconcile......
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