Permanent total disability benefits

By Justice Paul E. Pfeifer

In 1983, Robert Boyd – who is now in his early 90s – retired from the Scotts Miracle-Gro Company. Twenty-two years later, in 2005, he filed a claim for workers’ compensation benefits for asbestosis in both lungs. The claim was allowed and he began collecting benefits. But the story didn’t end there.

In 2013, Robert applied for permanent-total-disability benefits. Permanent total disability (“PTD”) is defined in Ohio law as the “inability to perform sustained remunerative employment due to the allowed conditions” in a workers’ compensation claim.

When Robert applied for PTD he submitted a report from Marissa Mertz, M.D., in support of his application. Dr. Mertz had conducted an independent medical evaluation of Robert for purposes of determining permanent and total disability.

Another doctor – Robert F. Shadel – reviewed his claim file on behalf of Scotts. In addition, Dr. Herbert A. Grodner – a board-certified pulmonologist – examined Robert on behalf of the Industrial Commission of Ohio, which handles workers’ compensation claims. Dr. Grodner concluded that Robert had a mild restrictive impairment from the asbestosis, but that it would not prevent him from performing light work.

Following a hearing, a staff hearing officer at the Commission denied Robert’s application based on the medical reports of Dr. Shadel and Dr. Grodner, and on the basis of the hearing officer’s analysis of Robert’s vocational-disability factors.

After that, Robert filed a complaint with the court of appeals seeking a writ that would require the Commission to vacate its decision. But when the court of appeals denied the writ, Robert brought his case before us – the Ohio Supreme Court – for a final review.

A person filing a complaint to challenge a decision by the Industrial Commission must demonstrate that the Commission abused its discretion by entering an order not supported by any evidence in the record. Our court’s role in reviewing actions challenging the Commission’s decision is limited to determining whether there is “some evidence” in the record to support the Commission’s stated basis for its decision.

Robert argued that the Commission abused its discretion when it relied on Dr. Grodner’s report. According to Robert, Dr. Grodner was not qualified to give an opinion because he didn’t take X-rays and he wasn’t certified, with specialized training, to interpret the X-rays. Robert claimed that the specialized training was a requirement for asbestosis claims under a resolution established by the Industrial Commission.

Robert also contended that even if Dr. Grodner’s report was competent evidence, the Commission abused its discretion when it did not rely on the vocational evidence in the record, including a report from a consultant that supported a finding of PTD.

We determined that Robert’s arguments failed for several reasons. First, the Industrial Commission resolution he referred to does not apply in his case. Second, Dr. Grodner’s report was “some evidence” that supported the Commission’s decision. And third, the Commission performed its own analysis of the vocational factors and was not required to accept the findings of a consultant.

Dr. Grodner conducted an independent medical examination of Robert to determine the extent of permanent total disability. In his report, Dr. Grodner stated that he had reviewed Robert’s medical records, including CT scans and X-rays, and had conducted a physical examination and pulmonary-function studies. He concluded that Robert was only minimally impaired as a result of his asbestosis.

Robert’s argument about the Commission’s resolution actually misinterpreted the resolution. The resolution requires the injured worker to initially produce medical evidence when an asbestos-related claim is being made and prior to adjudication of a claim if and when it is contested.

The resolution says that an interpretation of X-rays must be done by a certified reader. But the requirements of the resolution apply to the initial diagnosis and claim allowance of asbestosis. Robert’s claim for asbestosis was already allowed and wasn’t being contested. Thus, Dr. Grodner was not performing the mandatory examination as a qualified medical specialist to diagnose an occupational disease identified in the law relating to asbestos claims. So the resolution doesn’t apply to Dr. Grodner’s report.

Consequently, Robert failed to demonstrate that the Commission abused its discretion when it relied on Dr. Grodner’s report as evidence supporting its order denying PTD benefits.

Robert also maintained that the staff hearing officer was required to rely on the vocational evidence in the record, such as his advanced age and the fact that he no longer drives. Robert submitted a report from the vocational consultant who opined that based on the disability factors in addition to the allowed medical condition, “it is obvious that the claimant is permanently and totally disabled.”

But our court has held in past cases that the Commission is the exclusive evaluator of disability and is not required to accept vocational evidence, even if it is uncontroverted. The Commission, as the expert on vocational evidence, had the discretion to reject the consultant’s report in favor of its own analysis of vocational factors.

In doing so, the Commission acknowledged that Robert’s age was a negative factor but contrasted it with positive factors such as his education and lengthy work history, including a supervisory position that he held until 2008. It’s well established that a claimant’s advanced age need not be an insurmountable barrier to reemployment.

The Commission also noted that Robert expressed concerns about his vision but that he was able to pass the vision test to obtain his driver’s license. Thus, the hearing officer concluded that Robert has the experience and skills, along with a driver’s license, to return to his prior employment as a runner for a car dealership.

By a six-to-one vote, we affirmed the judgment of the court of appeal. It may seem harsh that a 90-year-old man cannot get PTD for asbestosis, but Robert failed to demonstrate that the Commission abused its discretion. The Commission’s order was based on evidence in the record, and that is the standard we must use when reviewing these types of cases. Therefore, his complaint seeking a writ failed.

By Justice Paul E. Pfeifer

Paul Pfeifer is an associate justice of the Supreme Court of Ohio.

Paul Pfeifer is an associate justice of the Supreme Court of Ohio.