State ex rel. Gay v. Mihm

Decision Date16 February 1994
Docket NumberNo. 92-2560,92-2560
Citation626 N.E.2d 666,68 Ohio St.3d 315
PartiesThe STATE ex rel. GAY, Appellee, v. MIHM, Admr., et al., Appellants.
CourtOhio Supreme Court


In a workers' compensation case involving permanent total disability, where the facts of the case indicate that there is a substantial likelihood that a claimant is permanently and totally disabled, courts are not and will not be precluded from ordering the Industrial Commission, in a mandamus action, to award permanent total disability benefits notwithstanding the so-called "some evidence" rule.

Appellee, George V. Gay, suffered several industrial injuries during his employment with the city of Cincinnati water department. The last injury occurred on March 22, 1985, when appellee fell backwards while pulling on a length of pipe. A workers' compensation claim resulting from the March 1985 injury was recognized for "strain back * * *; * * * aggravation of pre-existing arthritic changes of the lumbar spine, sclerosis, spondylolisthesis and fracture of the pars interaticulais."

Finding himself unable to return to work following the March 1985 injury, appellee filed, in December 1988, an application for permanent total disability compensation. A statement included in the application provides:

"It should be noted that this 59 year old claimant has only a 9th grade education and that he worked soley [sic ] as a construction laborer for 29 years and 5 months with the City of Cincinnati Water Works Department prior to this injury. His duties included the laying of pipe, digging ditches, carrying pipe and other heavy equipment. In addition to this he also acted as a truck driver for the Cincinnati Water Works. These are the only duties ever carried out by this claimant until it became impossible for him to continue in the performance of his job due to recognized disability in his compensation claims."

In support of his application for permanent total disability compensation, appellee submitted the medical reports of Dr. Daniel N. Berning and Dr. Lenzy G. Southall. Dr. Berning's 1986 report states, in part, that:

"We are now at the point where [appellee] is considered a [sic ] permanent total disability * * *. [Appellee] is a sincere individual but has reached the point where he is not expecting to go back to his former duties. I suppose an exception would be if he could be in a strictly supervisory capacity but then riding in trucks and such is not conducive to comfort of his low back because of the nature of that problem.

" * * * We have established [appellee], in my opinion, as a [sic ] permanent and total disability. He is relatively young being only 56 years of age but his work is that of a young man until as an old man he is unable to follow those duties."

Dr. Southall's report, dated November 1, 1988, states, in part: " * * * I have treated * * * [appellee] continuously for his lumbar muscle strain and it is my opinion that [appellee] is permanently and totally disabled to work. It is also my opinion that [appellee] is one hundred (100) percent totally disabled."

An extensive vocational evaluation prepared by George E. Parsons, Ph.D., was also presented in support of the application for permanent total disability compensation. Dr. Parsons's 1990 report reveals that appellee worked as a construction laborer for the city of Cincinnati for most of his entire working life. Appellee's job duties included driving a truck, digging ditches, lifting and laying pipe, and supervising the work of other construction laborers. Appellee was tested by Dr. Parsons for general aptitude in nine separate categories relating to the ability to perform work. Appellee received the lowest possible score in all categories of vocational aptitude tested, with the exception of one category in which he received the second lowest possible score. According to Dr. Parsons's report, the test results showed that appellee's overall work skills were poor, and that appellee was not a viable candidate for rehabilitation services. In his report, Dr. Parsons states:

"At this time, * * * [appellee's] physical limitations restrict him from lifting greater than ten pounds and walking farther than six blocks without rest. He is further bothered by his legs 'giving out' without warning, causing him to fall.

"Based upon the various restrictions placed upon * * * [appellee], he could not return to his past relevant employment as an employee of the City of Cincinnati Water Works Department, as this would be considered very heavy work activity. * * * [Appellee] is limited further from finding alternative employment by several factors. Objective testing, using primarily the General Aptitude Test Battery, would indicate that overall vocational aptitudes are poor. This factor, taken with his limited education, advanced age, medical condition, and the fact * * * [appellee] has never performed work other than that of a very heavy, semi-skilled nature, contraindicate his viability for rehabilitation.

"In conclusion, based upon the factors noted above, I do not see * * * [appellee] as capable of sustaining gainful employment, and in this regard I find him permanently and totally disabled for all work activity at the present, and within the foreseeable future."

Appellee was examined by Wayne C. Amendt, M.D., on behalf of the Industrial Commission ("commission"), appellant. In his report, Dr. Amendt found that appellee's medical condition was permanent, and that appellee was incapable of returning to his former job duties. However, Dr. Amendt concluded that appellee's medical condition did not prevent appellee from engaging in sustained remunerative employment of a strictly sedentary nature. Dr. Amendt assessed the medical impairment for appellee's industrial injuries at thirty-eight percent.

In May 1991, the commission's legal services section prepared a statement of fact for the hearing on appellee's application for permanent total disability compensation. In that statement, under the heading "Disability Factors," it was specifically noted that appellee had no special training and/or special vocational skills.

On June 11, 1991, the commission conducted a hearing on the application. In an order mailed July 12, 1991, the commission denied the application for permanent total disability compensation, stating, in part:

"[T]he Commission find[s] from proof of record that the claimant is not permanently and totally disabled for the reason that the disability is not total; that is, the claimant is able to perform sustained remunerative employment; that therefore the Permanent Total Disability Application, filed 12/15/88 be denied.

"The reports of Doctors Southall, Berning, Parsons, and Amendt were reviewed and evaluated.

"This order is based particularly upon the reports [sic ] of Doctor(s) Amendt, a consideration of the claimant's age, education, work history and other disability factors including physical, psychological and sociological, that are contained within the Statement of Facts prepared for the hearing on the Instant Application, the evidence in the file and the evidence adduced at the hearing. Claimant is 61 years of age and has a 9th grade education. He has worked for the water department for 29 years rising to the position of maintenance crew leader, indicating supervisory potential. Dr. Amendt, orthopedic specialist, states that claimant is capable of sedentary work and has [a] 38% * * * [permanent partial disability]. Based upon the above cited factors claimant is found not to be * * * [permanently totally disabled]."

On January 3, 1992, appellee filed a complaint in mandamus in the court of appeals, alleging that there was no evidence to support the commission's order denying his application for permanent total disability compensation. The court of appeals, citing State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, determined that the commission's order did not contain an adequate explanation of how the nonmedical disability factors justified the commission's decision that appellee is not permanently and totally disabled. Rather than returning the cause to the commission for compliance with Noll, the court of appeals granted the requested writ of mandamus, directed the commission to vacate the order denying permanent total disability compensation, and ordered the commission to enter a finding that appellee is permanently and totally disabled.

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

Krondritzer, Gold, Frank & Crowley Co., L.P.A., and Lane N. Cohen, Cincinnati, for appellee.

Lee I. Fisher, Atty. Gen., Cordelia A. Glenn, Dennis L. Hufstader and Gloria P. Castrodale, Asst. Attys. Gen., for appellants.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, urging affirmance, for amicus curiae, Ohio Academy of Trial Lawyers.

DOUGLAS, Justice.

This appeal presents two issues for our consideration. The first issue is whether the commission's order denying appellee's claim for permanent total disability compensation satisfies the requirements of Noll, supra. The second issue is whether the court of appeals abused its discretion by ordering the commission to enter a finding that appellee is permanently and totally disabled. For the reasons that follow, we affirm the judgment of the court of appeals in all respects.

At the outset it should be noted that some of the verbiage found in our recitation of the facts and in various documents and reports which are all part of this case do not, for even one moment, indicate or imply that appellee is any less a valued human being than any other person. The tests given, the conclusions and reports drawn therefrom, and our discussions of all these matters are all done with utmost respect and in good faith and are not meant by any person playing a part in this case to be, in any way, demeaning. In...

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