Workers' compensation—Industrial Commission's denial of application for permanent total disability compensation not an abuse of discretion when supported by "some evidence"—Mandamus sought to compel commission to vacate order and to enter an order granting compensation—Denial of writ by court of appeals affirmed.
.]
THE STATE EX REL. CUNNINGHAM, APPELLANT, v. INDUSTRIAL COMMISSION OF
OHIO, APPELLEE.
[Cite as State ex rel. Cunningham v. Indus. Comm.,
2001-Ohio-35
.]
Workers’ compensation—Industrial Commission’s denial of application for
permanent total disability compensation not an abuse of discretion when
supported by “some evidence”—Mandamus sought to compel commission
to vacate order and to enter an order granting compensation—Denial of
writ by court of appeals affirmed.
(No. 99-1933—Submitted March 14, 2001—Decided April 11, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-1290.
__________________
Per Curiam.
{¶ 1} Howard Cunningham, appellant, seeks a writ of mandamus to compel
the Industrial Commission of Ohio, appellee, to vacate its order denying his
application for permanent total disability compensation (“PTD”) and to enter an
order granting this compensation. The Court of Appeals for Franklin County
denied the writ, finding that the commission’s order was supported by some
evidence and, therefore, not an abuse of discretion. On Cunningham’s appeal as of
right, we affirm.
{¶ 2} Cunningham injured his back in 1982 while working as a pumper for
a petroleum company. After that, Cunningham stopped working. He was only
fifty-one years old at the time, he was physically able to perform sedentary tasks,
and despite having only an eighth grade education, he had accumulated a variety of
work experiences, including operating his own service station.
{¶ 3} In 1995, almost twelve years later, Cunningham applied for PTD,
alleging that he was unable to perform any type of sustained remunerative
SUPREME COURT OF OHIO
employment. The commission denied him PTD because he had made no effort to
vocationally rehabilitate himself during the many years that he did not work after
his industrial injury. Cunningham does not dispute that he did not try to improve
his potential for reemployment; he argues only that the commission abused its
discretion in expecting him to make the effort before his condition was diagnosed
as permanent.
{¶ 4} We disagree. PTD is a compensation “of last resort, to be awarded
only when all reasonable avenues of accomplishing a return to sustained
remunerative employment have failed.” State ex rel. Wilson v. Indus. Comm.
(1997),
. In Wilson, as here, the
claimant’s age, relatively low medical impairment, capacity to learn, and varied
work experience made him a prime candidate for rehabilitation and reentry into the
workforce. But also like Cunningham, that claimant did nothing to rehabilitate
himself vocationally for many years and then applied for PTD, representing that he
was unemployable. We found no abuse of discretion in the commission’s denial of
PTD for that claimant, explaining:
“[I]t is not unreasonable to expect a claimant to participate in return-to-work
efforts to the best of his or her abilities or to take the initiative to improve
reemployment potential. While extenuating circumstances can excuse a claimant’s
nonparticipation in reeducation or retraining efforts, claimants should no longer
assume that a participatory role, or lack thereof, will go unscrutinized.” Wilson,
.
{¶ 5} The court of appeals found no extenuating circumstances to excuse
Cunningham’s failure even to attempt vocational rehabilitation, and we concur.
Accordingly, the judgment to deny Cunningham a writ of mandamus is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
2
January Term, 2001
RESNICK, J., dissents.
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Law Office of Thomas Tootle and Thomas Tootle, for appellant.
Betty D. Montgomery, Attorney General, and Dennis H. Behm, Assistant
Attorney General, for appellee.
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