January 9, 2013
Permanent Total Disability

by Justice Paul E. Pfeifer

During Pam Guthrie’s career, she had several work-related knee conditions that 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. And they also led to a workers’ compensation case that came before us – the Supreme Court of Ohio.

Pamela was in her mid-40s when she stopped working and began receiving temporary total disability compensation in 2004. Pamela, a high school graduate, had also completed a four-year graphic-arts program which was part of a vocational program through the Industrial Commission of Ohio, which administers workers’ compensation claims.

Despite her involvement in rehabilitation on at least two occasions, Pamela never secured employment.  Rehabilitation efforts ceased in 2009, and the closure report that followed reflected on Pamela’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.”

The team that worked with Pamela encouraged her to apply to “positions that will help her obtain some recent work experience, rather than search for a ‘perfect’ job and to search for a sedentary position that will accommodate her physical limitations.”

In 2009, Pamela applied for Permanent Total Disability (“PTD”) compensation. But a staff hearing officer for the Industrial Commission determined that Pamela was medically and vocationally capable of sedentary employment.  Pamela’s application was denied.

Pamela didn’t dispute that from a medical standpoint she is capable of sedentary employment, but she contended that the Commission abused its discretion by dismissing or discounting relevant vocational factors. In reviewing Pamela’s vocational profile, the staff hearing officer (“SHO”) wrote that Pamela “has a pre-existing condition that impacts upon some employment opportunities. She has severe hearing loss. However, she can read lips”

The SHO noted that Pamela had been involved in rehabilitation and had searched for a job – but was unable to find employment – and concluded that Pamela “has the ability to secure employment notwithstanding her pre-existing condition.” The SHO acknowledged that Pamela’s ability to secure employment is difficult but it’s “because of the job market. Her disability factors are not of such magnitude that would warrant a finding” of PTD.

After that report, Pamela filed a complaint in the court of appeals alleging that the Commission had abused its discretion in denying her PTD application. She focused on her extensive participation in rehabilitation and the program’s failure to lead to a job. She argued that these factors compelled a finding of PTD.

The court of appeals disagreed. The court found that the Commission had not abused its discretion when it concluded that Pamela was medically and vocationally capable of employment. In addition, the court found that the SHO did not ignore or discount any relevant vocational factors. The court of appeals thus denied her complaint, which prompted Pamela to bring her case before us for a final review.

Permanent Total Disability is the inability to perform sustained remunerative employment – or, put another way, PTD means that a person is too disabled to work. PTD can result solely from the original medical conditions, or in tandem with other factors.

For the SHO to conclude that Pamela’s conditions did not prevent her from finding employment, the SHO was required to analyze those other factors. Thus the SHO discussed Pamela’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.

The SHO concluded that the cumulative effect of these factors on Pamela’s capacity for employment was “not of such magnitude that would warrant a finding” of PTD. This conclusion was within the SHO’s discretion as the evidentiary evaluator and was not an abuse of discretion.

Pamela also argued that the SHO improperly discounted her five-year rehabilitation attempt as a factor in favor of PTD. She implied that the SHO denied PTD to punish her for ignoring the rehabilitation division’s advice.

In making her argument, Pamela cited a workers’ compensation case from 2000 in which it was found the Commission denied PTD as punishment. But the facts of that case do not support Pamela’s argument because the SHO in that case abused his discretion by failing to consider relevant vocational evidence.

By contrast, the SHO in Pamela’s case considered all relevant factors before denying PTD. And there is no indication that the SHO had a desire to punish Pamela because she failed at rehabilitation. The denial of PTD wasn’t punishment; it was the natural consequence of Pamela’s failure to carry her burden of proof.

Only when a denial is issued against a claimant who is incapable of employment due to medical conditions or a combination of those conditions and vocational factors can the denial be considered unjust and possibly punishment.

Pamela also believed 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.

Finally, Pamela asserted that by attributing her inability to work on the poor job market, the hearing officer improperly factored the economic climate into the PTD equation. But the SHO was merely speculating on why Pamela’s ability to work had not translated into a job. It was just a surplus observation that doesn’t affect the merit of the SHO’s analysis.

Therefore, by a seven-to-zero vote, we affirmed the judgment of the court of appeals to deny Pamela’s application for PTD.

EDITOR'S NOTE: The case referred to is State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-4637. Case No. 2011-0432. Decided October 10, 2012. Opinion Per Curiam.