State ex rel. Waddle v. Indus. Comm.

• Decision Date: 13 October 1993
• Docket Number: No. 92-2081,92-2081
• Citation: 619 N.E.2d 1018,67 Ohio St.3d 452
• Parties: The STATE ex rel. WADDLE, Appellee, v. INDUSTRIAL COMMISSION of Ohio et al., Appellants.
• Court: Ohio Supreme Court

Page 452

67 Ohio St.3d 452

619 N.E.2d 1018

The STATE ex rel. WADDLE, Appellee, v.INDUSTRIAL COMMISSION of Ohio et al., Appellants.

No. 92-2081.

Supreme Court of Ohio.

Submitted July 28, 1993.

Decided Oct. 13, 1993.

Appellee-claimant, Charles L. Waddle, sustained three industrial injuries, the last two of which were in the course of and arising from his employment with appellant, Baker Concrete Construction, Inc.("Baker").His third injury, in 1984, was the most debilitating, involving his neck, shoulder, right arm and back.This last injury prevented a return to his former job, and generated six years of temporary total disability compensation.

In 1987, claimant had a heart attack and underwent quadruple bypass surgery.Claimant continued to experience angina and intermittent losses of vision.Tests also revealed an eighty-five percent blockage of his carotid artery.All of these conditions were unrelated to his industrial injuries.

In 1991, claimant sought permanent total disability compensation.Dr. John Putman, claimant's physician, opined that claimant's allowed back conditions alone prevented sustained remunerative employment.There was also medical evidence that claimant's cardiac status precluded sustained remunerative employment.The commission ultimately denied permanent total disability compensation, stating:

"This order is based particularly upon the reports of Doctors Hutchison, Pasach and Izsack, 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.

"The Industrial Commission finds that the claimant is 53 years old, has an eighth grade education, and has worked as a cement finisher and working foreman.The claimant has disabilities which are not related to his three industrial injuries, namely and [sic ] emotional condition and severe heart condition which prevents gainful employment, as evidence[d] by the report of Dr. Schneider.However, when Dr. Hutchison examined the claimant and review[ed] the medical record, he concluded the claimant was capable of sustained remunerative employment.Considering the non-medical disability factors noted above and the moderate level of impairment found by Dr. Hutchison, the Industrial Commission finds that the claimant is not precluded from performing sustained remunerative employment."

Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying him permanent total disability compensation.The court of appeals agreed, finding that the commission erred in failing to consider claimant's nonallowed heart and emotional conditions as disability factors under State ex rel. Stephenson v. Indus. Comm.(1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946.The court issued a writ that vacated the commission's order, and returned the cause for further consideration.

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

Daniel D. Connor Co., L.P.A., and Daniel D. Connor, Columbus, for appellee.

Lee I. Fisher, Atty. Gen., Cordelia A. Glenn, Yolanda L. Barnes and Gerald H. Waterman, Asst. Attys.Gen., for appellantIndus. Com'n.

Squire, Sanders & Dempsey, Michael J. Hickey and Michael A. Vanderhorst, Millisor & Nobil Co., L.P.A., and Preston J. Garvin, Columbus, for appellantBaker Concrete Const., Inc.

Vorys, Sater, Seymour & Pease and Robert A. Minor, Columbus, urging reversal for amici curiae, Ohio Manufacturers' Ass'n, Ohio Self-Insurers' Atty. Ass'n and Ohio Chamber of Commerce.

Stewart A. Jaffy & Associates Co., L.P.A., Stewart A. Jaffy and Marc J. Jaffy, Columbus, urging affirmance for amici curiae, Ohio Ass'n of Trial Lawyers and Ohio AFL-CIO.

PER CURIAM.

The parties debate the role nonallowed conditions should play in a permanent total disability determination.Amici Ohio AFL-CIO et al. ("AFL-CIO") contend that nonallowed conditions are Stephenson factors that must be considered in this determination.The other parties disagree--including claimant, whose interest amici AFL-CIO purport to further.Baker and amici Ohio Manufacturer's Association et al. ("OMA") do not focus on nonallowed conditions generally, but only on those that prevent sustained remunerative employment.Where such conditions exist, Baker and amici argue that a finding of permanent total disability is automatically precluded, regardless of the severity of the allowed conditions.Claimant takes a middle ground, arguing that nonallowed conditions are immaterial, regardless of their severity, as long as the allowed conditions, in and of themselves, prevent sustained remunerative employment.Accordingly, he asserts that nonallowed conditions cannot be used to advance his cause or defeat it.We agree.

Workers' compensation is intended to compensate employees and dependents "for death, injuries or occupational disease, occasioned in the course of such workmen's employment * * *."Section 35, Article II, Ohio Constitution.Accordingly, a claimant must show:

" * * * [N]ot only that his injury arose out of and in the course of employment but that a direct and proximate causal relationship existed between his injury and his harm or disability."Fox v. Indus. Comm.(1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1, paragraph one of the syllabus.

From these mandates, it follows that a claimant cannot be compensated for disability caused by conditions unrelated to the industrial injury.

We recently affirmed this principle in State ex rel. LTV Steel Co. v. Indus. Comm.(1992), 65 Ohio St.3d 22, 599 N.E.2d 265, andState ex rel. Fields v. Indus. Comm.(1993), 66 Ohio St.3d 437, 613 N.E.2d 230.In LTV, claimant bruised his elbow and back at work.Fourteen years later, he sought permanent total disability compensation.The medical reports of claimant's doctor and a commission specialist attributed claimant's inability to work, however, to nonallowed conditions.The commission awarded permanent total disability compensation, nonetheless, based on the reports of these doctors and a purported consideration of nonallowed medical disability factors.

We found an abuse of discretion and vacated the order.Stressing the physicians' extensive reliance on nonallowed conditions, we stated:

"Entitlement to permanent total disability compensation requires a showing that the medical impairment due to the allowed conditions, either alone or together with nonmedical disability factors, prevents claimant from engaging in sustained remunerative employment."Id., 65 Ohio St.3d at 24, 599 N.E.2d at 267.

We elaborated this finding in Fields.Rejecting the very argument put forth by amici AFL-CIO in the instant case, Fields stated:

" * * * Stephenson was never intended to permit the commission to base an award of permanent total disability on non-allowed medical conditions, in whole or in part."Id., 66 Ohio St.3d at 440, 613 N.E.2d at 232.

This is not to say that the mere presence of nonallowed conditions automatically bars permanent total disability compensation.Cases such as State ex rel. Jones & Laughlin Steel Co. v. Indus. Comm.(1985), 29 Ohio App.3d 145, 29 OBR 162, 504 N.E.2d 451;State ex rel. Ashcraft v. Indus. Comm.(1987), 34 Ohio St.3d 42, 517 N.E.2d 533;State ex rel. Rockwell Internatl. v. Indus. Comm.(1988), 40 Ohio St.3d 44, 531 N.E.2d 678;andState ex rel. Chrysler Corp. v. Indus. Comm.(1991), 62 Ohio St.3d 193, 580 N.E.2d 1082, do not inherently prohibit permanent total disability compensation to claimants concurrently disabled due to nonallowed conditions, since the holdings in these cases are not as broad as Baker suggests.

These decisions have consistently denied total disability compensation to those who voluntarily left their former position of employment or the work force in general.Baker's reliance on these cases, however, is flawed for two reasons.First, Baker overlooks the possibility that, as here, the nonindustrial disability may arise after the industrial injury has already forced the claimant from his or her job.As the Alaska Supreme Court stated in Estate of Ensley v. Anglo Alaska Constr. Co.(1989), 773 P.2d 955, 958:

"An employee's voluntary departure from the work force is not analogous to the situation where terminal illness prevents an already totally disabled individual from returning to work."(Emphasis added.)

Second, Baker erroneously assumes that any claimant who is not working because of a nonindustrial ailment has either completely "retired" or at least "abandoned" his or her former position of employment.However, "abandonment"--which encompasses "retirement"--relates to an issue that is:

" * * * '[P]rimarily * * * [one] of intent * * * [that] may be inferred from words spoken, acts done, and other objective facts.* * * All relevant circumstances existing at the time of the alleged abandonment should be considered.'* * * ' "[A]n abandonment is proved by evidence of intention to abandon as well as acts by which the intention is put into effect." 'The presence of such intent, being a factual question, is a determination for the commission."(Emphasis added.)State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm.(1989), 45 Ohio St.3d 381, 383, ...