Opinion
No. 87-1529
Submitted September 20, 1988 —
Reporter's Note: This cause was decided on December 30, 1988, but was released to the public on January 20, 1989, subsequent to the retirement of Justice Locher, who participated in the decision.
Workers' compensation — Application for permanent total disability compensation — Remand of commission order for consideration of nonmedical disability factors — Dismissal of medical report commenting solely on impairment, erroneous.
APPEAL from the Court of Appeals for Franklin County, No. 85AP-1083.
Appellee, Jane H. Lawrence, was injured on December 21, 1966, while in the course of and arising out of her employment with American Lubricants Company. Her claim was allowed for "contusion of left shoulder, strain of right sacro-iliac joint," and eventually amended to include allowances for "thrombophlebitis left leg" and "musculoligamentous strain of the cervical spine." On June 22, 1983, appellee filed an application for permanent total disability compensation with the Industrial Commission of Ohio. This motion was supported by a report from Dr. J.B. Paley, attending physician, which indicated that appellee was "permanently and totally removed from the employment market, due to the conditions arising from her industrial injury."
Appellee was examined for the commission by Dr. Jack D. Hutchison who concluded:
"* * * Although she has a lot of back pain according to her history she does not at this time show objective findings that would substantiate a claim of permanent and total impairment. Her impairment is believed to be high moderate at 60-65%."
At the hearing on appellee's application for permanent total disability compensation, the commission also had before it appellee's date of birth, education and prior work history. There was also evidence that appellee retired in 1979, allegedly due to her industrial injuries. On January 15, 1985, the commission denied appellee's permanent total disability application based on "the reports of Drs. Paley Hutchinson [ sic]."
Appellee then filed an action in mandamus in the Court of Appeals for Franklin County, seeking to order the commission to allow her motion for permanent total disability compensation. The court granted the requested writ, finding no evidence to support the commission's decision that appellee was not permanently and totally disabled. The commission filed a motion to reconsider in light of the then recent decision in State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946. The motion was overruled.
The cause is now before this court upon appeal as a matter of right.
E.S. Gallon Associates and Richard M. Malone, for appellee. Anthony J. Celebrezze, Jr., attorney general, and Jeffery W. Clark, for appellant.
Permanent total disability is the inability to engage in sustained remunerative employment. State, ex rel. Jennings, v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420. In State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946, we stated that for purposes of permanent total disability determination, examining physicians should confine their opinions to the question of medical impairment, and that the commission, in addressing the more comprehensive issue of permanent total disability, should also consider the "* * * claimant's age, education, work record, and all other factors, such as physical, psychological, and sociological, that are contained within the record * * *." Id. at 173, 31 OBR at 374, 509 N.E.2d at 951. In Stephenson, we remanded a commission order that failed to indicate that these factors were taken into account. We reach the same result in this case.
In denying permanent total disability compensation, the commission examined the medical evidence, but failed to consider, or to state whether it considered, the pertinent nonmedical factors enumerated in Stephenson. Their consideration is imperative where the commission, as in this case, denies permanent total disability compensation based upon medical evidence that merely indicates that the claimant is not permanently and totally impaired. The terms are not equivalent. A finding that a claimant is not permanently and totally impaired indicates that the person retains capacity for some type of work based on medical factors. However, a person's medically based capacity for certain employment is immaterial if age, work experience or education forecloses him or her from such employment.
The court of appeals held that because Dr. Hutchison's report commented solely on impairment it was of no evidentiary value. It then found that the only remaining evidence was Dr. Paley's narrative indicating that appellee was permanently and totally disabled, and held accordingly. We disagree with the appellate court's dismissal of the Hutchison report. In Stephenson, we indicated that "impairment," not "disability," is the proper subject of medical reports. Therefore, it is inconsistent to discard as nonprobative reports that confine themselves to a discussion of impairment.
We thus find that the appellate court erred in failing to assign any evidentiary weight to Dr. Hutchison's report. We also find that the commission erred in failing to consider, or to state whether it considered, nonmedical disability factors. Accordingly, we reverse the decision of the appellate court and remand the cause to the commission to consider, if it has not already done so, those factors set forth in Stephenson, and for the order of the commission to reflect consideration of those factors.
Judgment reversed and cause remanded.
MOYER, C.J., LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
I respectfully dissent. I would affirm the judgment of the court of appeals in accordance with the July 7, 1987 well-reasoned opinion of the Tenth District Court of Appeals filed July 9, 1987, authored by Strausbaugh, P.J., and concurred in by Judges Cook and Stephenson, and the thorough report of Referee Kullman of October 31, 1986.
SWEENEY, J., concurs in the foregoing dissenting opinion.