State ex rel. Wean United, Inc. v. Indus. Comm.

Decision Date19 May 1993
Docket NumberNo. 92-1990,92-1990
Citation66 Ohio St.3d 272,611 N.E.2d 828
PartiesThe STATE ex rel. WEAN UNITED, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Vorys, Sater, Seymour & Pease and Robert E. Tait, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., and William J. McDonald, Asst. Atty. Gen., for appellee Indus. Com'n.

Schiavoni, Schiavoni & Bush and Joseph J. Bush III, Youngstown, for appellee John DiMartino.

PER CURIAM.

Claimant has severe health problems that are unrelated to his industrial injury, and no one seriously disputes that he is unable to work. However, a finding of permanent total disability requires a claimant to prove that his or her inability to perform sustained remunerative employment arises exclusively from the claim's allowed conditions. State ex rel. Jennings v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420; Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1.

In this case, there are serious problems with the supporting medical evidence and the commission's order itself. As to the former, each of the medical reports cited--Pesa, DePizzo and Brooks--is flawed in its own way. Dr. Brooks, for example, never discusses the key question of claimant's ability to perform sustained remunerative employment. Dr. Pesa also does not discuss that question, limiting his discussion to claimant's ability to return to his former position of employment only. Dr. Pesa, moreover, attributes claimant's inability to return to work in great part to nonallowed conditions. Finally, Dr. DePizzo is the only one who addresses sustained remunerative employment, but bases his opinion on medical and nonmedical factors, contrary to State ex rel. Lawrence v. Am. Lubricants Co. (1988), 40 Ohio St.3d 321, 533 N.E.2d 344.

The evidentiary problems are compounded by the commission's failure--as demonstrated by its order--to consider nonmedical disability factors. State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946. Dr. Brooks indicates in his report that claimant does possess a partial impairment attributable to his allowed back condition. This together with nonmedical factors could conceivably produce permanent total disability. The commission, therefore, abused its discretion by failing to consider those nonmedical factors, warranting a return of the cause to the commission for further consideration and amended order.

This action, of course, is premised on our finding that laches does not bar this cause of action. Laches is " 'an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party.' " Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 15 OBR 134, 135, 472 N.E.2d 328, 329. Delay, however:

"[D]oes not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the...

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    ...and unexplained length of time under circumstances prejudicial to the adverse party. State ex rel. Wean United, Inc. v. Indus. Comm. (1993), 66 Ohio St.3d 272, 275, 611 N.E.2d 828, 830; Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 15 OBR 134, 134-135, 472 N.E.2d 328, 329. In order to invo......
  • State ex rel. Chrysler Corp. v. Industrial Com'n of Ohio
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    ...compensate claimants unless their disability results exclusively from an allowed condition. State ex rel. Wean United, Inc. v. Indus. Comm. (1993), 66 Ohio St.3d 272, 274, 611 N.E.2d 828, 829. Here, Dr. Kalb's reports and testimony satisfy this standard because he attributed Garrett's disab......
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    ...to perform sustained remunerative employment arises exclusively from the allowed conditions. State ex rel. Wean United, Inc. v. Indus. Comm. (1993), 66 Ohio St.3d 272, 611 N.E.2d 828. Once the claimant's initial burden is met and an award of PTD is made, the award continues until death, and......
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