Summary
In Adkins, we addressed the question of whether the Industrial Commission is required to rely on the report of a vocational consultant who concluded that, considering the claimant's experience, education and age, the claimant would not present the "best qualifications or least problems" for potential employment, and whether the commission is required to explain its reasons for not relying on this report.
Summary of this case from State, ex Rel. Elliott v. Indus. CommOpinion
No. 85-1508
Decided July 2, 1986.
Workers' compensation — Determination that claimant not permanently and totally disabled supported by evidence, when.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Chalis Adkins, was injured in November 1962 while working as a truck driver. His workers' compensation claim was allowed for low back strain, and in January 1963 a surgical lumbar laminectomy was performed. Temporary total disability benefits were awarded to appellant beginning in May 1980. Appellant's employer went out of business in 1976 and appellant has not worked since that time.
On May 27, 1982, appellant filed an application for permanent and total disability. By order dated June 20, 1984, the Industrial Commission found appellant not permanently and totally disabled, stating:
"This finding and order is based on the medical reports of Drs. Reynolds, Davies, Mattill, and particularly the report of Dr. Kackley, the evidence in file and/or the evidence adduced at the hearing."
The relevant medical evaluations to which the commission's order refers are those of Drs. D.D. Kackley and William Reynolds. Dr. Kackley's evaluation of appellant concluded that he was capable of moderate activity and had a permanent partial impairment of approximately forty percent. Dr. Kackley defined moderate activity as "* * * alternate sitting, standing and walking — 6 to 8 hrs. daily. Lifting limited to 10-15 lbs. occasionally, and no repetitive bending." Dr. Kackley admitted in his answers to interrogatories that he did not consider such factors as age, education or work history, though he did opine that appellant could no longer work as a truck driver. His written report was rendered May 12, 1981 when appellant was sixty-four years of age.
Dr. Reynolds' report of June 29, 1982 concluded that appellant was permanently and partially impaired in the range of sixty percent. Reynolds stated that "[c]onsidering his [appellant's] age and his impairment and the fact that he has worked as a truck driver it is doubtful whether this man will ever be returned to any gainful employment. Also the fact he has not worked in over 6 years provides for a poor prognosis. I do feel [he] should be able to do a sedentary job if he were able to find one where he could sit for a while and get up and move around * * *." Dr. Reynolds' answers to interrogatories stated that appellant should not have to do any lifting.
At the time of the commission's finding and order it also had as evidence before it the report of a vocational consultant, Steven Rosenthal, not referred to in the commission's order, who interviewed appellant in December 1982 when appellant was sixty-five years of age. This report assumed appellant's capacity for sedentary work. The report stated that "[t]he primary issue is whether this client has the skills or education to perform gainful activity." It described appellant's work skills as including "truck operation, scheduling, routing, and log maintenance" and notes that appellant continued driving after the accident for thirteen and one-half years, on a reduced basis, until the employer went bankrupt. The report continued:
"Work experience includes the transferable skills indicated above, which could be useful on jobs such as dispatcher, fork lift operator, or route sales. Unfortunately, these types of work require either more education or light exertion. The factors of employee competition and unspoken employer discrimination also prevail. The back condition may also create problems with distraction and occasional absences. Employer philosophy is to hire the individual with the best qualifications and the least potential problems. At age 65, Mr. Adkins would not be able to present the `best qualifications or least problems.'"
Appellant filed the instant mandamus action below to compel the commission to find him permanently and totally disabled. The court of appeals found that there was evidence to support the commission's order denying permanent and total disability benefits.
The cause is now before this court upon an appeal as of right.
Agee, Clymer Morgan Co., L.P.A., and Philip J. Fulton, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Dennis L. Hufstader and Janet E. Jackson, for appellee.
Essentially, appellant raises two questions herein. First, whether there is substantial, reliable and probative evidence supporting the determination by the commission that appellant is not permanently and totally disabled. Second, whether the commission is required to explain why it did not accept the conclusions of a vocational consultant who, in consideration of appellant's experience, education, and age, found that as to employment opportunities, appellant would not present the "best qualifications or least problems."
Appellant sets forth a proposition, neither raised nor argued below, asserting want of procedural due process.
As to the evidence supporting the commission's finding and order, appellant argues that Dr. Kackley's admission in his answers to interrogatories that he did not consider the factors of age, education and work history in making his impairment evaluation is not evidence supporting a want of permanent and total disability because disability must be considered in context with those factors. The answer to this argument is that disability determination rests with the Industrial Commission. State, ex rel. Dallas, v. Indus. Comm. (1984), 11 Ohio St.3d 193. The determination herein is supported by reliable, probative and substantial evidence of Dr. Kackley based upon his conclusions as to the extent of appellant's impairment. While the credibility of Dr. Reynolds' evaluation might arguably be impugned as equivocatory (see State, ex rel. Walters, v. Indus. Comm., 20 Ohio St.3d 71), the credibility of Dr. Kackley's evaluation is unimpeached and supports the commission's determination that appellant is not permanently and totally disabled.
As to the commission's failure to refer to the evaluation of the vocational rehabilitation consultant, that evaluation may be accepted or rejected as the commission deems appropriate because the determination of extent of disability is the function of the commission. See Dallas, supra. Moreover, the standard by which the commission must be guided in determining whether a claimant is permanently and totally disabled is whether he is "unfit for sustained remunerative employment." See State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 102. The report of Rosenthal addressed a standard, i.e., "best qualifications or least problems," which differed from that set forth in Jennings. Thus, the Rosenthal report was properly rejected by the commission and no reference thereto was necessary.
For reasons of the foregoing, the judgment of the court of appeals, denying the writ of mandamus, is hereby affirmed.
Judgment affirmed.
SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.
CELEBREZZE, C.J., and C. BROWN, J., dissent.
I concur in today's decision because it reaffirms this court's recognition that the commission, not outside "experts," has the responsibility for determining disability. Factors such as age, education and work history may certainly be considered by the commission but should not provide the basis for usurping the role of the commission in determining disability.
WRIGHT, J., concurs in the foregoing concurring opinion.
Because I believe the Industrial Commission abused its discretion by denying appellant's application for permanent total disability benefits, I dissent.
The court of appeals held that the commission's denial of benefits was supported by competent evidence, specifically the medical reports of Drs. Kackley and Reynolds. However, the court below did not consider the fact that Kackley stated in response to interrogatories that he did not consider appellant's age, education and work skills in his evaluation of appellant's disability. This court has held that "[a]ny conclusion with regard to permanent total disability must * * * address the claimant's ability to work." State, ex rel. Hutt, v. Frick-Gallagher Mfg. Co. (1984), 11 Ohio St.3d 184, 185. The Medical Examination Manual issued by the commission states at vi that permanent total disability "is established when the injury has caused the injured worker to be unfit for sustained remunerative employment."
Any meaningful determination of a claimant's fitness for sustained remunerative employment should consider "the whole person"; i.e., such determination should address claimant's injury and his work experience, level of education and age, when relevant. Appellant, at the time of his application for permanent total disability benefits, was sixty-five, had worked a substantial portion of his life as a truckdriver, and had a ninth grade education. These factors are highly relevant to a determination of whether appellant is fit for "sustained remunerative employment."
The only medical reports before the commission which considered appellant's age, education, and work history in evaluating his fitness for sustained remunerative employment are those of Dr. Reynolds and Dr. Davies. Reynolds states that "[c]onsidering his [appellant's] age and his impairment and the fact that he has worked as a truck driver it is doubtful whether this man will ever be returned to any gainful employment." Davies states that "based upon the allowed conditions and the acceptance of the objective findings of the examining physicians, the claimant may be PTD due to his age, education and physical condition." Further, the vocational consultant's report indicates strongly that the only jobs for which appellant would be qualified require either more education than claimant has or more exertion that he can handle. This, coupled with appellant's age and the competition for such jobs, renders him unfit for sustained employment.
Thus, there is no evidence upon which the commission could have reasonably based its order denying appellant's application for permanent total disability benefits. There is substantial, credible and competent evidence that claimant is permanently and totally disabled based on the combination of his allowed conditions and the vocational factors outlined above. Where there is no evidence upon which the Industrial Commission could have based its factual conclusion, it abuses its discretion, and a writ of mandamus will be granted. State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.3d 39, 42 [13 O.O.3d 30]. For these reasons, I would reverse the judgment of the court of appeals, and grant a writ of mandamus directing the Industrial Commission to issue an order finding appellant to be entitled to compensation for permanent total disability.
CELEBREZZE, C.J., concurs in the foregoing dissenting opinion.