State ex rel. Noll v. Industrial Commission

Douglas, J.,

concurring. The issue in this case is whether the decision by the Industrial Commission denying appellant’s application for permanent total disability compensation is supported by some evidence. The majority of this court limits our holding in State, ex rel. Hartung, v. Indus. Comm. (1990), 53 Ohio St. 3d 257, 560 *207N.E. 2d 196, to the facts of that case. I agree. In my judgment, it is impossible for this court to conclude that the Industrial Commission’s decision is supported by some evidence.

If Hartung ever stood for the proposition that the commission never has to, with any specificity, say how the factors set forth in State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St. 3d 167, 31 OBR 369, 509 N.E. 2d 946 (hereinafter “Stephenson factors”) have been considered, then I was wrong in my judgment to concur in the Hartung decision. Such a holding is indefensible, cruel and unjust. The case at bar presents a good example of why a general and generic holding in a case should not be applied across the board to a class of cases which, by their very nature, are fact-specific.

Due to a work-related injury, Noll, claimant-appellee, filed a claim for temporary total disability which was recognized for neck strain, head concussion and cervical degenerative disc disease (claim No. 84-39286). Finding himself unable to successfully return to work, Noll filed an application for permanent total disability compensation.

Noll is sixty years old. He has been employed as a construction laborer, maintenance worker or carpenter throughout his entire working life. His job-related activities included the use of hand and power tools and required him to regularly carry approximately one hundred pounds. He was on his feet throughout the work day and was required to do considerable lifting, bending and twisting at the head, neck and lower back.

In support of his application for permanent total disability compensation, Noll was examined by Dr. Michael T. Farrell, Ph.D., a vocational expert. Dr. Farrell’s report shows that Noll achieved a seventh grade education. Intellectually, Noll functions at the borderline to low-average range. He is intellectually surpassed by approximately seventy-six percent of the general population. His written communication is very poor. He has difficulty comprehending even simple written questions. He neither reads nor writes satisfactorily. Dr. Farrell concluded that Noll is incapable of returning to his past employment as a carpenter or construction laborer and that Noll’s skills are not transferrable to another occupation. Farrell also concluded that Noll is not a good candidate for vocational rehabilitation by on-the-job training due to Noll’s intellectual capacity. Farrell concluded that Noll should be considered permanently and totally disabled.

Noll was also examined by Dr. O. Daniel Fox, M.D. In a report submitted by Dr. Fox, he states in part that:

“I feel that Mr. Noll is permanently and totally disabled from any type of gainful employment. He only has an eighth grade education [sic] and I do not feel that he is capable of rehabilitating himself to any type of employment. I feel that he has reached Ms maximum level of recovery.”

Noll was also examined by Dr. Gerald S. Steiman, M.D. In his report, Dr. Steiman states that:

“It is my opinion that Mr. Noll has evidence of a 75 percent permanent partial impairment of the cervical spine which corresponds to an 18 percent permanent partial impairment of the body as a whole. There is a further 5 percent permanent partial impairment of the body as a whole secondary to the fact that he has had surgery on his neck and a 4 percent permanent partial impairment of the body as a whole secondary to the concussion (head). Therefore, it is my opinion that there is evidence of a 27 percent permanent partial impairment of the body as a *208whole secondary to the conditions allowed within claim 84-39286.” (Emphasis added.)

In his report, Dr. Steiman also states that:

“It is my opinion that there is no evidence of a permanent total impairment. I believe Mr. Noll is currently able to return to sustained remunerative employment when considering only the allowed disabilities within claim 84-39286. In reaching my decision, I have not taken into account his age, work history or education." (Emphasis added.)

In State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, 483-484, 6 OBR 531, 533-534, 453 N.E. 2d 721, 724-725, this court stated that:

“* * * [YW|e will, when necessary, henceforth grant a writ of mandamus directing the commission to specify the basis of its decision. Cf. State, ex rel. Cox, v. Indus. Comm. (1981), 67 Ohio St. 2d 235 [21 O.O. 3d 147]; State, ex rel. GF Business Equipment, Inc., v. Indus. Comm. (1982), 2 Ohio St. 3d 86. In other words, district hearing officers, as well as regional boards of review and the Industrial Commission, must specifically state which evidence and only that evidence which has been relied upon to reach their conclusion, and a brief explanation stating why the claimant is or is not entitled to the benefits requested. Moreover, this court will no longer search the commission’s file for ‘some evidence’ to support an order of the commission not otherwise specified as a basis for its decision.

U* * *

“We take this step, first and foremost, because the duty to so specify the basis for its decision is imposed upon the commission by statute. * * *

“Secondly, a decision of a district hearing officer, a regional board of review, or the commission which specifically sets forth the basis for the decision will enable this court, as well as the Court of Appeals for Franklin County, to readily discern the specific grounds relied upon and whether the record supports such a finding when a party to the proceeding initiates an action for a writ of mandamus. Our task will be eased by a succinct statement setting forth only that evidence relied upon in reaching a decision and why the claimant was granted or denied requested benefits. In addition, and equally as important, those parties precluded from perfecting an appeal in accordance with R.C. 4123.519 will be better advised as to why a particular decision was reached.”

Thus, Mitchell sets forth a requirement that the Industrial Commission specify the evidence upon which it relies in making its determinations and also requires the commission to briefly explain why the claimant is or is not entitled to the benefits requested.

In Stephenson, supra, we held that it was necessary for the Industrial Commission to “* * * look at the claimant’s age, education, work record, and all other factors, such as physical, psychological, and sociological, that are contained within the record in making its determination of permanent total disability.” Id. at 173, 31 OBR at 374, 509 N.E. 2d at 951. We reached this conclusion because it is the commission’s duty to evaluate the evidence concerning the claimant’s ability to continue to work. Id. at 170, 31 OBR at 372, 509 N.E. 2d at 949-950. Consideration of these nonmedical disability factors is pertinent to the determination whether a claimant is unfit to perform sustained remunerative employment or, in other words, whether the claimant can realistically return to the job market.

In Stephenson, we found no indication in the Industrial Commission’s *209order that it had considered these Stephenson factors in reaching its decision whether the claimant therein could return to any remunerative employment. As such, we remanded the cause to the commission for consideration of the Stephenson factors and (citing Mitchell) for the issuance of an amended order stating the commission’s findings after consideration of the factors. Id. at 173, 31 OBR at 374-375, 509 N.E. 2d at 951. Presumptively, in Stephenson, we remanded the cause to the commission for the issuance of an amended order wherein the commission would consider the Stephenson factors and, in accordance with Mitchell, briefly explain or justify its ultimate decision.

However, in Hartung, this court apparently concluded that the Industrial Commission, in denying an application for permanent total disability compensation, need only acknowledge that it considered the Stephenson factors (if consideration of the factors was necessary at all) and that no explanation of how it applied the factors was necessary to justify its decision and to comply with Mitchell. Id. at 258, 560 N.E. 2d at 198. While I concurred with the majority in Hartung, I have reconsidered my position on this issue and have concluded that the Industrial Commission must specifically state how the Stephenson factors were applied to justify its decisions which deny (and in some cases grant) permanent total disability compensation to a claimant. I now reach this conclusion after having reviewed many other cases now pending before us involving this very issue and after realizing the potential for injustice caused by our decision in Hartung.

In my judgment, the failure of the Industrial Commission to fully explain the application of the Stephenson factors in denying (and in some cases granting) a claim for permanent total disability compensation makes it impossible for this court to determine if any evidence exists to truly justify the commission’s decision. This case is a prime example of the problem and in his learned opinion in the court of appeals, Judge John McCormac ably recognized where this path could lead and pointed out that a “boilerplate” recitation that the factors were considered was not good enough.

Stephenson provides for a set of pragmatic considerations or' “factors” relevant to the determination whether a claimant can realistically return to any sustained remunerative employment. In Stephenson, we held that, it was necessary for the Industrial Commission to consider these pragmatic concerns in discharging its duty of determining whether a claimant is permanently and totally disabled. Id. at 170, 31 OBR at 372, 509 N.E. 2d at 949. The Industrial Commission must, of necessity, consider these factors since medical capacity to work is immaterial if, for example, the claimant’s age, experience or education forecloses such employment opportunities. See State, ex rel. Lawrence, v. American Lubricants Co. (1988), 40 Ohio St. 3d 321, 322, 533 N.E. 2d 344, 346. Thus, consideration of the Stephenson factors may override other evidence that a particular claimant can participate in sustained remunerative employment. As such, any evidence relied upon by the Industrial Commission in denying a claim for permanent total disability compensation must be considered in light of the Stephenson factors before it can become “some evidence” which would support the commission’s determination.

For this or any other court to determine if some evidence exists which would support the commission’s denial of permanent total disability *210compensation, it is necessary to know not only that the commission considered the factors but, also, why it determined that the factors did not warrant an award of permanent total disability benefits. Only by requiring the commission to fully explain (in accordance with Mitchell) how it applied the Stephenson factors can this or any other court conduct a meaningful review. Such a requirement would also have the salient effect of apprising future litigants of how the commission applies the Stephenson factors: As I noted in my concurring opinion in State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 22, 31 OBR 70, 73, 508 N.E. 2d 936, 939-940:

“The reporting requirements of Mitchell not only provide this court with the necessary tools to perform a meaningful mandamus review of the commission’s determinations, but such reporting also lends a sense of predictability for claimants and employers alike in the disposition of disability claims. By providing the parties with a brief explanation as to how the various disability factors, such as age, education and work history, affect the medically appraised degree of impairment, the commission affords future litigants invaluable insight into its decision-making process. This insight-should eventually translate into a more predictable and less litigious system.” (Emphasis sic.)

For the reasons stated herein, I support the majority’s affirmance of the judgment of the court of appeals requiring that the Industrial Commission either allow Noll’s application for permanent total disability, of deny the application with a sufficient explanation of how it applied the nonmedical factors to support a denial. It is well to remember that we are dealing with the very existence of real live human beings who have suffered an industrial injury. They are not just another number to be dealt with in some perfunctory way. Surely it is not unreasonable, overburdensome or onerous to require the commission to set forth an explanation of how each of the Stephenson factors has been considered and why the applied factors, coupled with the medical impairment evidence, still do not entitle an injured claimant to permanent total disability.

Although I agree with much of what the majority says today, I disagree, in part, with the syllabus in this case which provides as follows:

“In any order of the Industrial Commission granting or denying benefits to a claimant, the commission must specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision.” (Emphasis added.)

I completely agree with the syllabus as it relates to all orders denying benefits since, as previously mentioned, medical capacity to work is immaterial if, considering the Stephenson factors, a claimant cannot realistically return to any sustained remunerative employment. I disagree with the syllabus', in part, as it relates to all orders granting benefits. If a claimant is granted benefits solely for the stated reason that he is medically incapable of work, consideration of the Stephenson factors cannot change that determination and an explanation of how the Stephenson factors were applied will be an exercise in futility.

Sweeney, J., concurs in the foregoing concurring opinion.