State ex rel. Mobley v. Industrial Com'n, 95-452

• Decision Date: 11 June 1997
• Docket Number: No. 95-452,95-452
• Citation: 78 Ohio St.3d 579,679 N.E.2d 300
• Parties: The STATE ex rel. MOBLEY, Appellee and Cross-Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellants and Cross-Appellees; Ohio State University, Cross-Appellee.
• Court: Ohio Supreme Court

Page 579

78 Ohio St.3d 579

679 N.E.2d 300

The STATE ex rel. MOBLEY, Appellee and Cross-Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellants and Cross-Appellees; Ohio State University, Cross-Appellee.

No. 95-452.

Supreme Court of Ohio.

Submitted March 31, 1997.

Decided June 11, 1997.

Daniel D. Connor Co., L.P.A., Daniel D. Connor and Kenneth S. Hafenstein, Columbus, for appellee and cross-appellant.

Betty D. Montgomery, Attorney General, and Charles Zamora, Assistant Attorney General, for appellants and cross-appellees Industrial Commission and Bureau of Workers' Compensation.

PER CURIAM.

Two questions are presented for our review: (1) Did the commission comply with State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, and State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, in denying Mobley PTD? and (2) Does the record demonstrate that Mobley is permanently and totally disabled and, therefore, entitled to PTD? For the reasons that follow, we find that the commission did not sufficiently explain how Mobley's age combined with his prior sales experience and his education to allow sustained remunerative employment; however, we also find that the court of appeals erred in rejecting Mobley's sales experience as evidence of his employability. We further find that this record does not warrant relief on the authority of State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Accordingly, we affirm in part and reverse in part.

Noll and Stephenson Relief

Where medical evidence establishes that a claimant's permanent impairment due to industrial injury is only partial, the commission must deny PTD unless the claimant's age, work experience, education, or other relevant characteristics, commonly referred to as the Stephenson factors, foreclose sustained remunerative employment. State ex rel. Hopkins v. Indus. Comm. (1994), 70 Ohio St.3d 36, 39-40, 635 N.E.2d 1257, 1259; State ex rel. Lawrence v. Am. Lubricants Co. (1988), 40 Ohio St.3d 321, 322, 533 N.E.2d 344, 345-346; State ex rel. Hartung v. Columbus (1990), 53 Ohio St.3d 257, 258, 560 N.E.2d 196, 198. And, for all the commission's determinations, Noll requires it "to prepare orders that are 'fact-specific and which contain reasons explaining its decision. * * * Such order[s] must specifically state what evidence has been relied upon to reach its conclusion and, most important, briefly explain the basis of its decision.' " State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 375, 658 N.E.2d 1055, 1057, quoting Noll, 57 Ohio St.3d at 206, 567 N.E.2d at 249. The commission's failure to specify and explain the impact of the Stephenson factors, in accordance with Noll, is an abuse of discretion, and a writ of mandamus will issue to correct the abuse. State ex rel. Ranomer v. Indus. Comm. (1994), 71 Ohio St.3d 134, 137, 642 N.E.2d 373, 376.

The court of appeals correctly determined that the medical report of Dr. Zuelzer represented some evidence allowing the commission's conclusion that Mobley was only permanently partially impaired and that his allowed condition did not preclude sustained remunerative employment. State ex rel. Ehlinger v. Indus. Comm. (1996), 76 Ohio St.3d 400, 402, 667 N.E.2d 1210, 1212. The court of appeals also correctly observed that the commission was therefore obligated to explain whether the combination of Mobley's age, work experience, education, etc., permitted his employment. On this issue, the court of appeals wrote:

"The commission found that Mr. Mobley was able to obtain future employment, relying in part upon Mr. Mobley's former employment as a salesman in a 'locomotive firm.' The evidence before us provides no insight as to what was involved in the sales job, so we cannot ascertain what effect the former sales job has on Mr. Mobley's future employability. * * * [T]he absence of information left the commission equally unable to draw inferences including the inferences the commission drew that the thirty-year-old sales experience in a locomotive firm job was 'job experience in a less physical type of occupation as well as interpersonal skills in dealing with clients.'

"The order of the commission also fails to explain to any helpful degree the effect of Mr. Mobley's age on his employment prospects."

In its appeal, the commission accuses the court of appeals of having second-guessed the commission's assessment of Mobley's prior sales experience. We agree.

The commission concluded from Mobley's sales experience that he had acquired interpersonal communication skills, and it considered this skill an employment asset. The commission also noted that Mobley's physical restrictions were consistent with a sales position, which it did not consider physically demanding. The court of appeals discarded this assessment, finding that (1) the only description of Mobley's sales experience--"sales in [a] locomotive firm"--was too vague to evaluate; and (2) in any event, the experience was too long ago to be of value in the current job market.

This ruling, as the commission argues, would divest the commission of its power to interpret evidence and draw reasonable inferences. State ex rel. West v. Indus. Comm. (1996), 74 Ohio St.3d 354, 356, 658 N.E.2d 780, 782. The phrase "sales in a locomotive firm" is cryptic, but it at least conveys Mobley's undisputed experience in sales, an occupation that is as available today as it was in the 1960s, when Mobley, then in his late thirties, apparently worked for the "locomotive firm." Moreover, the inference that Mobley developed some communicative ability follows naturally from his sales experience, which typically requires interaction with customers in a physically unchallenging environment. Thus, the commission did not abuse its discretion in finding this occupational experience an asset to reemployment. Cf. State ex rel. Miller v. Indus. Comm. (1996), 76 Ohio St.3d 590, 592, 669 N.E.2d 844, 846 (fifty-two-year-old claimant's teenage experience of delivering telegrams by bicycle was of "negligible re-employment value" because it was "vocationally and chronologically" remote).

Reviewing courts must not micromanage the commission as it carries out the business of compensating for industrial/occupational injuries and illness. The commission is the exclusive evaluator of evidentiary weight and disability. State ex rel. Ellis v. McGraw Edison Co. (1993), 66 Ohio St.3d 92, 94, 609 N.E.2d 164, 165. Moreover, review of a commission order in mandamus is not de novo, and courts must defer to the commission's expertise in evaluating disability, not substitute their judgment for the commission's. State ex rel. Pass v. C.S.T. Extraction Co., supra, 74 Ohio St.3d at 376, 658 N.E.2d at 1057-1058. Where a commission order is adequately explained and based on some evidence, even evidence that may be persuasively contradicted by other evidence of record, the order will not be disturbed as manifesting an abuse of discretion. Id.; State ex rel. Moss v. Indus. Comm. (1996), 75 Ohio St.3d 414, 417, 662 N.E.2d 364, 366; State ex rel. King v. Trimble (1996), 77 Ohio St.3d 58, 63, 671 N.E.2d 19, 23.

Here, the commission had evidence that Mobley's allowed condition and past experience were conducive to his employment as a salesperson. The court of appeals ignored this evidence, along with the commission's reasonable inferences, not because the evidence did not exist, but because it was not particularly convincing of Mobley's capacity for sustained remunerative employment. Neither we nor the court of appeals can overturn commission...