State ex rel. Jackson v. Indus. Comm.

Decision Date23 July 1997
Docket NumberNo. 95-528,95-528
Citation79 Ohio St.3d 266,680 N.E.2d 1233
PartiesThe STATE ex rel. JACKSON, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Cooper, Spector & Weil and Gary M. Spector, Cleveland, for appellant.

Betty D. Montgomery, Attorney General, and Sandra L. Nimrick, Assistant Attorney General, for appellee Industrial Commission.

PER CURIAM.

This cause presents two issues for our review: (1) Did the commission adequately explain its decision in accordance with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245? and (2) Is Jackson eligible for PTD under State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666? For the reasons that follow, we hold that the commission failed to sufficiently explain how Jackson's age and prior work experience combined with his education to permit employment, but that Jackson has not established his permanent and total disability. Accordingly, we reverse the court of appeals' judgment as to the commission's compliance with Noll, but we reject Jackson's claim for relief under Gay.

Noll Compliance

If the commission fails to cite evidence of record showing that a claimant's permanent medical impairment is only partial, State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936, or to adequately explain how the claimant's nonmedical characteristics, including age, education, experience, etc., combine with the impairment to permit sustained remunerative employment, State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946; Noll, supra, its order denying PTD is an abuse of discretion, and a writ of mandamus must issue to correct the abuse. Gay, supra; State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 658 N.E.2d 1055. But the commission is also the exclusive evaluator of evidentiary weight and disability. Thus, when some evidence for the commission's decision exists, the decision must be upheld even if contradicted by other evidence a reviewing court considers more persuasive. Id. at 376, 658 N.E.2d at 1058.

The court of appeals correctly found some evidence for the commission's finding that Jackson was only partially impaired due to his allowed conditions and still physically able to work with restrictions. 1 While Jackson relies on his physician's and vocational expert's reports, Dr. Jerry McCloud reported in June 1993 that Jackson was permanently but not totally impaired based on his two allowed conditions and able to work with restrictions:

"It is my opinion that the medical evidence would indicate that the claimant is capable of work activities. He is not capable of his 1990 employment. The changes are permanent and he has reached a level of maximum medical improvement and in [the second claim] demonstrates a permanent partial impairment of 45% related to the loss of active lumbar and cervical reserve and those changes in his left shoulder. This estimation is compatible with recommendations made in the Third Edition of the AMA Guidelines on Physical Impairment. There is 0% impairment in [the first claim]. Future requests for ongoing conservative treatment or other forms of conservative measures should not be approved as they will not be of lasting benefit to the claimant. He does have soft tissue injuries which are approaching three years of age and these will not respond in a positive fashion to ongoing or persistent conservative treatments nor significantly alter his future clinical prospects."

With respect to the commission's explanation of how Jackson's nonmedical characteristics did not foreclose employment, the court of appeals' referee found:

"[T]he commission stated that it considered claimant's age of fifty-seven, G.E.D., and work experience as a construction laborer and concluded that those factors, particularly the G.E.D., combined with the physical ability to perform some work within certain restrictions, do not prevent relator from performing sustained remunerative employment. The commission's explanation, although brief, suggests that the commission considered relator's age and education to be assets to reemployment, thereby providing adequate reasoning for the decision. See State ex rel. Murray v. Mosler Safe Co. (1993), 67 Ohio St.3d 330 ."

Adopting this finding, the court of appeals stated:

"Although the commission's explanation of its reasoning is indeed brief, it is clear that the commission considered relator's 'relatively high level of education' as a dispositive factor in determining relator's employability within the restrictions listed by Dr[.] McCloud * * *. While a more detailed explanation of the commission's reasoning would be preferable, we are not prepared to say that the explanation is too brief to meet the requirements of Noll, supra. Moreover, this court is not at liberty to substitute its judgment for that of the commission simply because it may disagree on the impact of relator's nonmedical disability factors. State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92 . Accordingly, relator's objection is overruled."

Jackson complains that the commission merely reported his age and work history without meaningful discussion. He cites State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452, 458, 619 N.E.2d 1018, 1022, which recognized that "[s]pecific recitation [of nonmedical factors], without more, is only slightly better than that the old boilerplate language assailed in Noll." Absent the requisite explanation, "[t]hese factors are susceptible [of] both positive or negative interpretations depending on the reviewer, and, therefore, mere recitation gives no insight into the commission's reasoning." Id. Waddle thus directed the commission to specify in its orders whether nonmedical factors were considered an asset or detriment to employment and warned that noncomplying orders would result in a writ requiring an adequate explanation. Thus, in State ex rel. Pierce v. Indus. Comm. (1997), 77 Ohio St.3d 275, 277, 673 N.E.2d 1304, 1306, we rejected as insufficient a commission order denying PTD because it (1) merely acknowledged a claimant's age (sixty-two) and education (tenth grade with G.E.D.) and (2) failed to specify what marketable skills a former ironworker had or could develop to obtain sedentary employment.

The commission does not defend its silence on the marketability of any skills or abilities generated by Jackson's prior work experience, but it insists that it treated Jackson's age as an employment asset and observed that he had "last worked less than [three] years ago." The commission may have inferred from Jackson's recent employment that age was not an appreciable barrier for him in the job market, but this is pure speculation. Waddle disapproved of orders requiring such conjecture, admonishing the commission to "say so" if it views one or more nonmedical factors as employment assets. Id., 67 Ohio St.3d at 458, 619 N.E.2d at 1022.

The court of appeals concluded that the commission considered Jackson's G.E.D. dispositive on the issue of his ability to be rehired. Waddle and Pierce, however, hold that the commission must do more--it must also specify the extent to which age and employment history may impede or promote a claimant's reemployment prospects. Thus, contrary to the court of appeals' judgment, the commission's order in this case is too cursory to withstand scrutiny under Noll, supra. State ex rel. Bruner v. Indus. Comm. (1997), 77 Ohio St.3d...

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