The opinion
[This opinion has been published in Ohio Official Reports at 82 Ohio St.3d 102.]
THE STATE EX REL. BUSWELL, APPELLEE AND CROSS-APPELLANT, v.
INDUSTRIAL COMMISSION OF OHIO, APPELLANT AND CROSS-APPELLEE.
[Cite as State ex rel. Buswell v. Indus. Comm., 1998-Ohio-262.]
Workers’ compensation—Industrial Commission not bound by a prior
interlocutory order for the award of permanent total disability
compensation—Industrial Commission’s order denying permanent total
disability compensation supported by “some evidence,” when.
(No. 95-2044—Submitted May 13, 1998—Decided June 10, 1998.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No.
94APD09-1309.
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{¶ 1} Claimant Sharon E. Buswell, appellee and cross-appellant, sustained
an industrial injury in 1982 while employed as a staff nurse for First Community
Village. Her workers’ compensation claim was allowed for “strain of neck, strain
of middle back and low-back; reactive depression.”
{¶ 2} In 1992, she moved appellant and cross-appellee, Industrial
Commission of Ohio, for permanent total disability (“PTD”) compensation. She
accompanied her application with the May 16, 1992 report of Roseanne F. Umana,
Ph.D., who stated that claimant was psychiatrically incapable of work.
{¶ 3} Several other reports were also before the commission. Dr. John Q.
Brown noted “relatively mild” physical findings and assessed a twenty percent
physical impairment that would permit claimant to do sedentary work. Dr. Gordon
Zellers also found that claimant’s physical condition permitted sedentary to light
work. Dr. Jerold H. Altman found no psychiatric impediment whatsoever to a
resumption of work. A combined-effects review from Dr. Walter A. Holbrook also
found a capacity for sedentary work.
SUPREME COURT OF OHIO
{¶ 4} In an August 3, 1993 interlocutory order, the commission awarded
PTD compensation for a closed period. At the expiration of that period, the
commission, on December 28, 1993, denied further PTD compensation, writing:
“ * * * This order is based particularly upon the reports of Drs. J. Q. Brown,
Altman, Holbrook and Zellers.
“It is found the claimant retains the residual functional capacity to perform
light to sedentary employment based upon the conditions allowed in this claim.
This finding is based upon reports of Drs. Holbrook, J.Q. Brown and Zellers. Dr.
Zellers examined the claimant on 4/7/92 and found she is physically capable of
performing light duty work. Dr. J.Q. Brown, disinterested orthopedic specialist,
found a 20% permanent partial physical impairment, noting the physical findings
were relatively mild. Dr. Holbrook performed a combined effects review and
concluded that the claimant is physically capable of sedentary employment. It is
further found the allowed reactive depression is not work prohibitive and would not
prevent the claimant from resuming her former position of employment. This
finding is based upon the report of Jerold Altman, M.D., psychiatrist. Dr. Holbrook
also did not place any restriction based upon the allowed psychiatric condition. It
is further noted this claimant has non-allowed physical and psychiatric conditions
which are causing disability. In 1982 Drs. Sadar and Wolfe diagnosed
fibromyositis. Dr. Wolfe reported again in November, 1991 that the claimant’s
neck and low back condition continues to be myofascial in nature with some early
degenerative disc or joint disease in the lumbar spine.
“The fibrositis as diagnosed by Dr. Wolfe is not allowed in this claim.
Additionally, the claimant was hospitalized in 1983 for treatment of ‘bipolar
affective disease/manic.’ In August and September of 1984[,] Dr. D.R. Thoward
[sic], psychiatrist, diagnosed ‘schizoaffective disorder, borderline personality
organization’ and recommended day hospital treatment for at least one year[‘]s
duration. The claimant was then treated in an outpatient program at Harding
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January Term, 1998
Hospital, per Dr. Thorward’s recommendation, for a number of years. These
psychiatric conditions are separate from the allowed reactive depression.
“The claimant is almost 50 years of age and has worked as a Licensed
Practical Nurse. She has had extensive education at Columbus State Community
College, Hocking Tech and Columbus School of Nursing. She has her L.P.N.
degree. She returned to school in 1983 and completed one quarter of a one-year
program to update her training to R.N. She was accepted into an occupational
therapy training program in 1990, however, she decided not to attend the program.
Considering the claimant’s age of 50 and her extensive education[,] it is found she
has the capability to obtain employment within her functional capabilities if she so
chooses considering only the allowed conditions. The claimant has at least 15
productive years remaining in the work force. With her educational level she could
leave the health care field and pursue other forms of light to sedentary employment,
i.e.[,] inventory control, sales, clerical, etc. She also has options remaining in the
health care field if she pursued further education such as her R.N. license or
occupational therapy training. There are job opportunities for R.N.’s which are
sedentary in nature such as case reviews for insurance companies. Therefore, the
claimant is not permanently and totally disabled as a result of the allowed
conditions in this claim.”
{¶ 5} Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying PTD
compensation. The court of appeals, based on State ex rel. Draganic v. Indus.
Comm. (Sept. 22, 1994), Franklin App. No. 93APD10-1491, unreported, 1994 WL
521157, held that the commission was bound by its August 3, 1993 order and
therefore abused its discretion in denying further PTD compensation. The court,
however, then reviewed the PTD denial order, determined that it did not satisfy
State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, and
returned the cause for further consideration and amended order.
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SUPREME COURT OF OHIO
{¶ 6} This cause is now before this court upon an appeal and cross-appeal
as of right.
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Philip J. Fulton & Associates and Corrine S. Carman, for appellee and
cross-appellant.
Betty D. Montgomery, Attorney General and Yolanda V. Vorys, Assistant
Attorney General, for appellant and cross-appellee.
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Per Curiam.
{¶ 7} Subsequent to the issuance of the court of appeals’ decision in this
case, we decided State ex rel. Draganic v. Indus. Comm. (1996), 75 Ohio St.3d 461,
663 N.E.2d 929. There, we reversed the decision presently relied upon by the court
below, and held that the commission was not bound by a prior interlocutory order
for the award of permanent total disability compensation.
{¶ 8} Our decision in Draganic disposes of all the issues currently
presented but one—claimant’s request for relief pursuant to State ex rel. Gay v.
Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666. Upon review, we find relief
consistent with Gay to be inappropriate.
{¶ 9} We initially find “some evidence” in support of the commission’s
conclusion that claimant is medically capable of sustained remunerative
employment. Drs. Brown and Zellers found claimant physically capable of
sustained remunerative employment. Dr. Altman made a similar finding with
regard to claimant’s allowed psychiatric condition. Finally, Dr. Holbrook felt that
the conditions cumulatively permitted sedentary employment.
{¶ 10} Turning to the commission’s nonmedical analysis, we find that it
satisfies the requirements of State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio
St.3d 203, 567 N.E.2d 245. Stressing claimant’s relatively young age and her
education, the commission found claimant to have many sedentary career options
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January Term, 1998
both within and outside the field of health care. While the claimant has asked us to
view her education in a less favorable light than did the commission, we decline to
so do, recognizing the commission’s exclusive role as interpreter of evidentiary
weight and credibility. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio
St.3d 18, 31 OBR 70, 508 N.E.2d 936. Accordingly, our finding of Noll compliance
negates claimant’s eligibility for relief under Gay.
{¶ 11} For the foregoing reasons, the judgment of the court of appeals is
reversed.
Judgment reversed.
MOYER, C.J., F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
DOUGLAS and RESNICK, JJ., dissent.
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