OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Singleton, Appellant, v. Industrial
Commission of Ohio, Appellee.
[Cite as State ex rel. Singleton v. Indus. Comm. (1994),
Ohio St.3d .]
Workers' compensation -- Application for permanent total
disability compensation denied when Industrial Commission
finds claimant capable of rehabilitation/retraining --
Commission's decision upheld when supported by "some
evidence."
(No. 93-2105 -- Submitted October 11, 1994 -- Decided
December 7, 1994.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-1581.
Appellant-claimant, Harley Singleton, broke his left foot
in 1984 while in the course of and arising from his employment
with Clermont Transfer. Six years later, he applied to
appellee, Industrial Commission of Ohio, for permanent total
disability compensation.
Among other medical evidence presented to the commission,
were the reports of Doctors Wayne C. Amendt and Steven S.
Wunder, both of whom felt that claimant had a ten percent
permanent partial impairment. Dr. Amendt felt that while
claimant was unable, at that time, to return to his former job,
there were two surgical procedures that, if successful, might
alleviate claimant's complaints of pain and return him to his
previous job. Dr. Wunder stated that claimant could not resume
his former duties "because of the amount of controls that had
to be operated by foot," but could do sedentary or light work.
Claimant submitted a vocational evaluation from Michael T.
Farrell, Ph.D., who opined that:
"[Claimant] is restricted to sedentary work activity of an
unskilled nature, commensurate with his intellectual
functioning and academic skills, similar to his past work
experience, not requiring sustained attention and
concentration. Therefore, in conjunction with the above
factors, it is my opinion that jobs do not exist in significant
numbers in the local economy for which he would be able to
perform on a sustained basis which would be considered
substantially remunerative; therefore, he should be considered
permanently and totally disabled."
The commission denied permanent total disability
compensation in an order that the Court of Appeals for Franklin
County found to violate State ex rel. Noll v. Indus. Comm.
(1991), 57 Ohio St.3d 203,
567 N.E.2d 245. On return of the
cause to the commission, a second order issued that again
denied permanent total disability compensation, as follows:
"Claimant is 60 years old, has a 10th grade education, and
work experience as dockman, trucker, and salesman. It is
noted that claimant was self-employed in the fruit and
vegetable business for approximately 6 years and that claimant
occasionally tends bar on a voluntary basis. The reports of
Drs. Autry, Amendt and Wunder were reviewed. The vocational
report of Dr. Farrell was reviewed.
"The Commission particularly relies upon the reports of
Drs. Amendt and Wunder, Commission orthopedists, who each
concluded that claimant demonstrates a 10% permanent partial
impairment and is capable of sedentary to light work
activities. The Commission finds that this relatively low
impairment does not preclude retraining to employment at the
sedentary-light range. Further, the commission finds that
claimant's past work history, particularly as a salesman and
his self-employment in the fruit and vegetable business,
indicates that claimant has the intelligence and skills to be
rehabilitated/retrained. Accordingly, claimant's application
for permanent total disability is denied."
Claimant again petitioned the appellate court for a writ
of mandamus to compel an award of permanent total disability
compensation. The appellate court denied the writ.
This cause is now before this court upon an appeal as of
right.
Kondritzer, Gold, Frank & Crowley Co., L.P.A., and Edward
C. Ahlers, for appellant.
Lee Fisher, Attorney General, and Dennis L. Hufstader,
Assistant Attorney General, for appellee.
Per Curiam. Claimant seeks to compel an award of
permanent total disability compensation consistent with State
ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315,
626 N.E.2d 666.
Alternatively, he seeks a return of the cause to the commission
for further consideration and an amended order. We deny both
requests and affirm the judgment below.
Claimant's challenge rests on the erroneous belief that
the commission was bound by Farrell's vocational assessment.
Part of the commission's authority to weigh and evaluate
evidence, however, is the freedom to reject it as
unpersuasive. Particularly as to vocational assessments, "to
bind the commission to a rehabilitation report's conclusion
makes the rehabilitation division, not the commission, the
ultimate evaluator of disability, contrary to [State ex rel.
Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR
369,
509 N.E.2d 946]." State ex rel. Ellis v. McGraw Edison
Co. (1993),
66 Ohio St.3d 92, 94,
609 N.E.2d 164, 166.
Preliminary to awarding either of the petitioned remedies
herein, there must be a finding of noncompliance with Noll,
supra. The adequacy of an order's reasoning often turns on the
consistency between the ultimate decision and the factors cited
in support thereof. Where the factors cited, for example,
readily suggest claimant's amenability to re-employment, the
length of the commission's reasoning is generally immaterial,
and mandamus relief will be denied. See, e.g., State ex rel.
Hart v. Indus. Comm. (1993),
66 Ohio St. 3d 95,
609 N.E.2d
166. On the other hand, a longer explanation by the commission
will not suffice where the factors discussed do not readily
coincide with the decision issued, and mandamus relief will be
granted. See, e.g., State ex rel. Soto v. Indus. Comm. (1994),
69 Ohio St. 3d 146,
630 N.E.2d 714.
The present explanation meets the Noll requirement.
Medically, the claim is allowed exclusively for "broken left
foot." That injury preceded claimant's denial of permanent
total disability compensation by eight years. His permanent
medical impairment was found to be quite low -- ten percent.
Equally important, aside from his education, claimant's
nonmedical profile cannot be conclusively characterized as
vocationally unfavorable. Claimant was sixty years old when
permanent total disability compensation was denied - - an age
that need not automatically be considered an impediment to
employment. Claimant's work history is even more conducive to
characterization as an employment asset. Despite his tenth
grade education, claimant possessed the intelligence to run his
own produce business for six years. There is thus "some
evidence" supporting the commission's conclusion that claimant
"has the intelligence and skills to be rehabilitated/retrained."
The appellate judgment is accordingly affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, F.E. Sweeney
and Pfeifer, JJ., concur.
Resnick, J., dissents.
