State Ex Rel. Guthrie v. Industrial Commission

[Cite as State ex rel. Guthrie v. Indus. Comm., 133 Ohio St. 3d 244, 2012-Ohio-4637.]
THE STATE EX REL. GUTHRIE, APPELLANT, v. INDUSTRIAL
COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Guthrie v. Indus. Comm.,
133 Ohio St. 3d 244, 2012-Ohio-4637.]
Workers’ compensation—Permanent total disability—Commission did not abuse
discretion in denying benefits for permanent total disability—Claimant
capable of sustained remunerative employment—Vocational factors
properly taken into consideration—Fact that claimant’s best efforts at
rehabilitation did not lead to job is irrelevant to eligibility for benefits.
(No. 2011-0432—Submitted August 21, 2012—Decided October 10, 2012.)
APPEAL from the Court of Appeals for Franklin County,
No. 10AP-171, 2011-Ohio-833.
___________________
Per Curiam.
{¶ 1} Appellant, Pamela Guthrie, filed an application for permanent total
disability (“PTD”). The Industrial Commission of Ohio, appellee, found that
Guthrie was capable of sedentary sustained remunerative employment and denied
her request for PTD. Guthrie filed a complaint in mandamus in the Franklin
County Court of Appeals, alleging that the commission had abused its discretion.
The court of appeals denied Guthrie’s mandamus action. For the reasons that
follow, we affirm.
FACTS
{¶ 2} Guthrie has several work-related knee conditions that have left her
with a 20 percent permanent partial disability. These conditions were enough to
keep her from returning to her former position of employment as a nurse’s aide.
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She began receiving temporary total disability compensation in 2004 and has
never worked again.
{¶ 3} Guthrie was in her mid-40s when she stopped working. She is a
high school graduate, and as part of an Industrial Commission vocational
rehabilitation program, she completed a four-year graphic-arts program. Despite
her involvement in rehabilitation on at least two occasions, she never secured
employment. Rehabilitation efforts ceased in 2009, and the closure report that
followed reflected on Guthrie’s participation:
She would not attend Networking Group but met with her
[employment services specialist] weekly, and [in] her last report
period she agreed to meet twice each week. Pam is reluctant to
change routines and habits even when they are unproductive or
counterproductive. She tended to contact many employers
regarding jobs for which she is not qualified. Her training and
experience is limited, and there are limited jobs she can perform
partially because of her physical limitations. She discards many
suggestions and harbors many self-defeating attitudes. However,
her strong will and determination also work for her at times. She
was highly motivated in her search and did everything required of
her. During her last Staffing, she was informed by her team that
she would need to alter her approach, try different things, invest
more time in her search, and broaden job considerations and
possibilities. Her case was closed by BWC on 1-30-09. * * *
***
Pamela’s job development program will not be extended
past 2/1/09. The team encouraged Pamela to apply to positions
that will help her obtain some recent work experience, rather than
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search for a “perfect” job and to search for a sedentary position
that will accommodate her physical limitations. Pamela reported
that this is “frustrating” but she realizes that this is the “reality” of
the situation.
{¶ 4} In 2009, Guthrie applied for PTD. The Industrial Commission of
Ohio, through a staff hearing officer (“SHO”), finding that Guthrie was medically
and vocationally capable of sedentary sustained remunerative employment,
denied PTD. Guthrie does not dispute that from a medical standpoint, she is
capable of sedentary employment, but contends that the commission abused its
discretion by dismissing or discounting relevant vocational factors.
{¶ 5} Discussing Guthrie’s vocational profile, the hearing officer wrote:
[T]he Injured Worker has a pre-existing condition that impacts
upon some employment opportunities. She has severe hearing
loss. However, the Injured Worker can read lips. The record
reflects that the Injured Worker was involved in a rehabilitation for
job search [sic]. She was not able to find employment. They
closed her file. After the closure of the file, the Injured Worker
stopped looking for employment even though rehabilitation had
recommended that she continue to look for employment. A review
of the rehabilitation file indicates that they recommended to the
Injured Worker to contact State of Ohio Bureau of Vocational
Rehabilitation for further services as this agency helped her with
training in the past.
The Staff Hearing Officer finds that the Injured Worker has
the ability to secure employment notwithstanding her pre-existing
condition. * * * The Injured Worker has also had some computer
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training in order to enhance her ability to secure employment. The
Staff hearing officer acknowledges that the Injured Worker’s
ability to secure employment is difficult but it is because of the job
market. Her disability factors are not of such magnitude that
would warrant a finding of permanent and total disability. The
Injured Worker could look for sedentary employment.
{¶ 6} Thereafter, Guthrie filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission had abused its
discretion in denying PTD. She focused on her extensive participation in
rehabilitation and the program’s failure to lead to a job. These factors, she
argued, compelled a finding of PTD.
{¶ 7} The court of appeals disagreed, finding that the commission had
not abused its discretion in concluding that Guthrie was medically and
vocationally capable of sustained remunerative employment. The court found
that the SHO did not ignore or improperly discount any relevant vocational
factors, and the fact that Guthrie’s efforts at rehabilitation had not translated into a
job was irrelevant to PTD eligibility. The court of appeals denied the writ,
prompting Guthrie’s appeal to this court as of right.
DISCUSSION
{¶ 8} PTD is the inability to perform sustained remunerative
employment. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St. 3d 167, 509
N.E.2d 946 (1987). It can result from the allowed medical conditions alone or in
tandem with the factors enumerated in Stephenson. The weight to be given to
these factors rests exclusively with the commission, which is considered to be the
expert on PTD matters. State ex rel. Ellis v. McGraw Edison Co., 66 Ohio St. 3d
92, 94, 609 N.E.2d 164 (1993); State ex rel. Jackson v. Indus. Comm., 79 Ohio
St.3d 266, 271, 680 N.E.2d 1233 (1997).
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{¶ 9} The SHO’s conclusion that Guthrie’s allowed conditions did not
foreclose sustained remunerative employment required her to analyze Guthrie’s
Stephenson factors. Stephenson at 170. She discussed Guthrie’s age (50), varied
work experience, education, and skills, which included a high school diploma, the
completion of a four-year graphic-arts program, and computer training. She
concluded that the cumulative effect of these factors on Guthrie’s capacity for
sustained remunerative employment was “not of such magnitude that would
warrant a finding of permanent and total disability.” This conclusion was within
the hearing officer’s discretion as evidentiary evaluator and was not an abuse of
discretion.
{¶ 10} In her second proposition of law, Guthrie argues that the SHO
improperly refused to consider her rehabilitation attempt as a factor in favor of
PTD. Guthrie states that she made serious attempts at rehabilitation over a five-
year period and that the SHO unfairly discounted those efforts. She implies that
the SHO denied PTD to punish her for ignoring the rehabilitation division’s
advice. She criticizes the SHO’s suggestion that her rehabilitation efforts were
unsatisfactory and cites State ex rel. Ramsey v. Indus. Comm., 10th Dist. No.
99AP-733, 2000 WL 329058 (Mar. 30, 2000), affirmed without opinion, 91 Ohio
St.3d 24, 740 N.E.2d 672 (2001), as support for the proposition that the
commission denied PTD punitively.
{¶ 11} Ramsey, however, is inapposite. First and foremost, according to
the Ramsey court, the order denying PTD in that case appeared to rely solely upon
the medical evidence, ignoring vocational information available in the file. The
court held that the SHO had abused his discretion by failing to consider relevant
vocational evidence. By contrast, the SHO in the instant case considered all
factors before denying PTD. This court cannot second-guess her evaluation of the
evidence. State ex rel. George v. Indus. Comm., 130 Ohio St. 3d 405, 2011-Ohio-
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6036, 958 N.E.2d 948, ¶ 11 (the commission is exclusively responsible for
assessing the weight and credibility of the evidence).
{¶ 12} Second, even if Ramsey were not distinguishable for this reason,
the language relied upon by Guthrie does not avail her. The vocational evidence
in Ramsey showed that the claimant failed at rehabilitation, even though he did his
best to succeed. In issuing a limited writ ordering the commission to consider that
evidence, the court of appeals remarked that failure at rehabilitation is not always
a negative factor, “used as a means to punish injured workers on those occasions
when a hearing officer feels that the injured worker has failed to exercise his or
her best efforts at rehabilitation.” 2000 WL 329058, *1. The court emphasized
that a claimant’s good-faith, best-effort failure should be considered as a positive
factor in favor of granting PTD compensation.
{¶ 13} There is no basis in this case for imputing to the SHO a desire to
punish the claimant because she failed at rehabilitation. The SHO considered all
of the evidence.1 The denial of PTD that followed was not “punishment”; it was
the natural consequence of Guthrie’s failure to carry her burden of proof. Only
when a denial is issued against a claimant who is incapable of sustained
remunerative employment due to allowed conditions or a combination of those
conditions and vocational factors can the denial be considered unjust and possibly
punitive.
{¶ 14} The fact that the SHO did not view Guthrie’s rehabilitation efforts
favorably does not affect the validity of the order. The commission is exclusively
responsible for interpreting the vocational evidence before it. Ellis, 66 Ohio St. 3d
at 94, 609 N.E.2d 164; Jackson, 79 Ohio St. 3d at 271, 680 N.E.2d 1233. Here,
the rehabilitation division made both favorable and unfavorable comments about
1. The SHO did make repeated references to Guthrie’s failure to engage in a postrehabilitation job
search. These were largely unnecessary observations and may have obfuscated—rather than
enhanced—the most salient portion of the SHO’s order, which was that Guthrie was capable of
sustained remunerative employment.
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Guthrie’s participation, and the commission was permitted to accept the latter
over the former. Thus, we find no abuse of discretion.
{¶ 15} Guthrie also believes that the commission should have factored her
deafness into its PTD analysis. She is incorrect. A disability finding can never be
based––even in part––on medical conditions that are unrelated to the industrial
injury. State ex rel. Waddle v. Indus. Comm., 67 Ohio St. 3d 452, 454-455, 619
N.E.2d 1018 (1993); State ex rel. Nissin Brake Ohio, Inc. v. Indus. Comm., 127
Ohio St. 3d 385, 2010-Ohio-6135, 939 N.E.2d 1242, ¶ 13-15.
{¶ 16} Finally, Guthrie asserts that by attributing her inability to work to
the poor job market, the SHO improperly factored the economic climate into the
PTD equation. This contention fails for the reasons given by the court of appeals.
PTD was denied because Guthrie was found to be medically and vocationally
capable of sustained remunerative employment. That finding is all that matters.
In referring to the job market, the SHO was merely speculating as to why
Guthrie’s ability to work had not translated into an actual job. It was nothing
more than a surplus observation that does not affect the merit of the SHO’s
analysis.
{¶ 17} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Philip J. Fulton Law Office, Ross R. Fulton, and Philip J. Fulton, for
appellant.
Michael DeWine, Attorney General, and Rema A. Ina, Assistant Attorney
General, for appellee.
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