March 21, 2012
Educational Rehabilitation

by Justice Paul E. Pfeifer

Trevor Gonzales never returned to work after he was hurt in his 2003 industrial injury. Six years after that injury, Trevor filed an application with the Industrial Commission of Ohio for permanent total disability (“PTD”) compensation, but it was denied.

The Commission concluded that Trevor was physically capable of sedentary employment. After considering Trevor’s non-medical disability factors – as it’s required to do – it concluded that Trevor’s age did not prohibit reemployment.  The Commission felt that Trevor’s “varied work history is a positive factor that highlights his ability to learn new jobs skills and to work in different work environments.”

But the bulk of the Commission’s analysis focused on the fact that Trevor was illiterate. The Commission acknowledged that this impaired his ability to perform sedentary employment, but concluded that factor greatly outweighed by the fact that Trevor “has not participated in any type of rehabilitation program to negate his” inability to read, write or do basic math very well.

Trevor had decided not to participate in a vocational rehabilitation program and had failed to return phone calls in regards to taking part in a rehabilitation program. Trevor’s “failure to undergo appropriate and reasonable vocational rehabilitation to increase his residual functional capacity and/or obtain new marketable employment skills and to improve upon his ability to write, read, or do math” was the basis for the denial of his PTD application.

The Commission concluded that Trevor had “presented no evidence that he is unable to participate in any type of vocational rehabilitation program.”

Trevor next filed a complaint in the Court of Appeals, alleging that the Commission had abused its discretion in denying his application. The court of appeals disagreed.

Citing the Commission’s exclusive authority to evaluate vocational evidence, the court of appeals stressed that Trevor had refused vocational rehabilitation “when there was no evidence that he would not benefit from such services.” Ultimately, the court of appeals concluded that the Commission did not abuse its discretion in deciding to hold Trevor “accountable for this failure.”

After that ruling by the court of appeals, Trevor Gonzales filed an appeal here – at the Supreme Court of Ohio. Our court noted that contrary to Trevor’s suggestion, illiterate persons are neither unemployable nor, once injured, inherently permanently and totally disabled. Trevor himself demonstrates the fallacy of the notion that illiterate persons are unemployable by having worked for decades without the ability to read or write.

As to whether an injury renders an illiterate person permanently and totally disabled, many illiterate claimants through the years have successfully transitioned to other post-injury employment, often helped by their successful completion of vocational retraining and remedial education.

Our court has discussed vocational rehabilitation in depth before. In a case from 1997, the Commission assessed the rehabilitation potential of a person who had applied for PTD compensation and recommended remedial education classes.

An individual program was prepared, but the claimant refused to participate. This refusal was one of the reasons why the PTD application was later denied. The claimant challenged that decision.

When the case came before us we upheld the decision because in a PTD analysis, the relevant vocational inquiry is “whether the claimant may return to the job market by using past employment skills or those skills which may be reasonably developed.”

In that 1997 case, the Commission concluded that “the claimant’s age afforded him the opportunity to improve the educational deficits on which he so heavily relies in asserting that he is incapable of sustained remunerative employment. Reduction or elimination of these deficits, in turn, would facilitate the acquisition of new skills.”

We sustained the Commission’s reasoning, and added an observation of our own: “Not only does the claimant have the opportunity to improve his reemployment potential, he has had this opportunity for the sixteen years he has not worked since his injury. Despite the fact that the claimant was only age thirty-seven when injured, there is no evidence that the claimant ever made an effort to pursue remedial education or obtain his GED.

“We view PTD compensation as compensation of last resort, to be awarded only when all reasonable avenues of accomplishing a return to employment have failed. Thus, it is not unreasonable to expect a claimant to participate in return-to-work efforts to the best of his/her abilities or to take the initiative to improve reemployment potential.”

In another case, from 2010, the employer challenged an award of PTD to a claimant who began a vocational rehabilitation program but couldn’t finish it due to health problems unrelated to her industrial injury. The employer argued that because the unrelated medical conditions prevented the claimant from completing a rehabilitation program designed to enhance her employment prospects, those conditions were impermissibly contributing to her disability and foreclosed compensation.

Our court acknowledged that under certain circumstances, the employer’s position could have merit. “If, for example, the goal of rehabilitation is to improve a person’s pain tolerance to the point of permitting sedentary employment, failure to complete that program – regardless of the reason – seems relevant only if he/she is a viable candidate for that type of work. Even in the best of times economically, an elderly claimant with a fifth-grade education and a history of heavy labor is probably not a realistic candidate for a desk job.

“On the other hand, a person with clerical skills and experience is, and in that case, the failure to complete a program that would permit sedentary employment may be material” to a PTD analysis.

There are two immediate differences from that 2010 case and Trevor Gonzales’s. First, Trevor is medically capable of sustained employment, so his rehabilitation potential is relevant to the analysis. Second, his case doesn’t involve a claimant who began a rehabilitation program but was then prevented from finishing due to circumstances beyond his control.

To the contrary, Trevor refused even to respond to preliminary inquiries from rehabilitation services. Therefore, by a vote of seven-to-zero, we affirmed the judgment of the court of appeals to deny Trevor’s PTD application.

EDITOR'S NOTE: The case referred to is State ex rel. Gonzales v. Morgan, 131 Ohio St.3d 62, 2011-Ohio-6047. Case No. 2010-0964. Decided December 1, 2011. Opinion Per Curiam.