[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Gulley v. Indus. Comm., Slip Opinion No. 2017-Ohio-9131.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-9131
THE STATE EX REL. GULLEY, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO,
                                    APPELLANT, ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State ex rel. Gulley v. Indus. Comm., Slip Opinion No.
                                     2017-Ohio-9131.]
Workers’ compensation—Permanent total disability—Industrial Commission must
        review all vocational evidence before determining whether claimant is
        entitled to compensation—Court of appeals’ judgment granting limited writ
        affirmed—Limited writ granted.
   (No. 2016-1199—Submitted June 20, 2017—Decided December 21, 2017.)
      APPEAL from the Court of Appeals for Franklin County, No. 15AP-759.
                               _______________________
        Per Curiam.
        {¶ 1} Appellant, Industrial Commission of Ohio, appeals the judgment of
the Tenth District Court of Appeals in which the court concluded that the
commission should not have denied the application of appellee, Lloyd Gulley Jr.,
                             SUPREME COURT OF OHIO




for permanent-total-disability compensation. The Industrial Commission denied
the application based, in part, on Gulley’s refusal to participate in rehabilitative
services. The court issued a limited writ of mandamus ordering the commission to
address the merits of Gulley’s application without relying on his alleged refusal to
accept vocational-rehabilitation services.
       {¶ 2} For the reasons that follow, we affirm the judgment of the court of
appeals to the extent that it granted a limited writ, but consistent with the analysis
of the separate opinion filed in the court of appeals, we order the commission to
consider all the evidence in the record that is related to vocational-rehabilitation
services when considering Gulley’s application.
                          Facts and Procedural History
       {¶ 3} Gulley was injured on November 9, 2009, when he slipped off a piece
of heavy equipment at work. His workers’ compensation claim was allowed for
various medical conditions involving his left shoulder, back, hand, and arm. His
claim was also allowed for depressive disorder and pain disorder. Gulley has not
worked since his accident.
       {¶ 4} The Bureau of Workers’ Compensation approached Gulley in 2010
and again in 2012 regarding the opportunity for rehabilitation and retraining to
return to the workforce. On both occasions, Gulley indicated that he was not
interested in the program.
       {¶ 5} In June 2014, Gulley’s counsel referred him to Assertive Vocational
Services for vocational rehabilitation. The commission approved the request.
Khanisha McCoy, a rehabilitation counselor, performed an assessment. She issued
a report on August 1, 2014, in which she concluded that Gulley did not appear to
be a feasible candidate for vocational-rehabilitation services. Consequently, the
bureau closed Gulley’s rehabilitation file.
       {¶ 6} Gulley then applied for permanent-total-disability compensation.
Gulley’s counsel hired McCoy to assess Gulley’s employment potential. McCoy




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issued a report in April 2015 in which she addressed the issue in greater depth than
she had in her previous report. She concluded that Gulley was not employable.
        {¶ 7} A staff hearing officer denied Gulley’s application. The hearing
officer concluded, based on the evidence in the record, that Gulley was medically
capable of performing sedentary work. The hearing officer determined that his
negative nonmedical factors of age (64), education level (6th grade), and prior work
experience (heavy-equipment operator) were outweighed by his lack of interest in
vocational rehabilitation in 2010 and 2012. The hearing officer also rejected
McCoy’s reports as tainted because she had been originally hired by the bureau and
then was hired by Gulley’s attorney to perform the vocational assessment, resulting
in a conflict of interest. Based on his own assessment, the hearing officer concluded
that Gulley could likely be retrained and return to work.
        {¶ 8} The commission denied Gulley’s request for reconsideration.
        {¶ 9} Gulley filed a complaint for a writ of mandamus alleging that the
commission had abused its discretion. The court of appeals determined that
permanent-total-disability compensation should not be denied based primarily on
Gulley’s refusal of rehabilitation services when he later attempted to use the
services in 2014. The court issued a limited writ requiring the commission to
address the merits of Gulley’s application without relying on Gulley’s earlier
refusals of rehabilitation services.
        {¶ 10} The author of the separate opinion in the court of appeals agreed that
a limited writ should be granted but would order the commission to consider all
vocational evidence in the record.
        {¶ 11} This matter is before the court on the direct appeal filed by the
commission.
                                   Legal Analysis
        {¶ 12} The relevant inquiry in determining permanent total disability is
whether the claimant is able to perform sustained remunerative employment. State




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ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170, 509 N.E.2d 946
(1987).     In addition to the medical evidence, the commission must analyze
nonmedical factors such as the claimant’s age, education, and work record. The
commission must also consider any other factors that might be important to the
determination whether a claimant may return to the job market by using past
employment skills or skills that may be reasonably developed. Id.
          {¶ 13} Here, the parties do not dispute the evidence that Gulley was
medically capable of performing sedentary work. Instead, the issue involves the
commission’s analysis of Gulley’s nonmedical factors, particularly the impact of
the evidence of vocational rehabilitation in the record.
          {¶ 14} The commission argues that it may consider an injured worker’s lack
of participation in rehabilitation or retraining when determining permanent total
disability and that Gulley’s refusal to participate in rehabilitative services in 2010
and 2012 was some evidence that supported its decision denying permanent-total-
disability compensation. The commission also maintains that it had discretion to
reject McCoy’s vocational reports as not persuasive.
          {¶ 15} A claimant’s refusal to participate in rehabilitation or retraining is a
proper factor for the commission to consider in permanent-total-disability cases.
State ex rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525, 529, 653
N.E.2d 345 (1995). Furthermore, absent extenuating circumstances, it is not
unreasonable to expect a claimant to participate in efforts to return to work to the
best of his or her abilities. State ex rel. Wilson v. Indus. Comm., 80 Ohio St.3d 250,
253-254, 685 N.E.2d 774 (1997).              Because permanent total disability is
compensation of last resort, a claimant should not assume that the lack of
participation will go unnoticed. Id. Consequently, the commission did not abuse
its discretion when it considered Gulley’s refusal to participate in rehabilitation
opportunities when he was deemed eligible in 2010 and 2012. See B.F. Goodrich
at 529.




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                                January Term, 2017




        {¶ 16} The commission also summarily rejected the reports of McCoy due
to a perceived conflict of interest. The commission considered McCoy’s opinion
tainted because she had been hired by Gulley’s counsel to assess his employment
potential in support of the pending permanent-total-disability application after
McCoy had issued a similar report for the bureau. Although the commission has
authority to reject a vocational report, even if it is uncontradicted, State ex rel.
Singleton v. Indus. Comm., 71 Ohio St.3d 117, 118, 642 N.E.2d 359 (1994), we do
not agree that McCoy’s assessments created a conflict of interest that tainted her
opinion.
        {¶ 17} The record indicates that the bureau approved the request of Gulley’s
counsel for McCoy to perform an initial assessment for rehabilitation purposes.
The bureau’s interest in this assessment was neither incompatible nor irreconcilable
with Gulley’s interest.   McCoy’s subsequent assessment for permanent-total-
disability purposes was not incompatible or irreconcilable with the bureau’s
position. McCoy reached similar conclusions in both reports. Thus, we find that it
was an abuse of discretion for the commission to reject McCoy’s reports based on
a conflict of interest.
        {¶ 18} Although the commission is not bound to accept all vocational
evidence in the record, it is required to review the evidence to determine whether
the claimant is foreclosed from sustained remunerative employment. Singleton at
118. The commission failed to do so here. Therefore, we adopt the reasoning of
the separate opinion filed in the court of appeals, and we order the commission to
review all the vocational evidence before determining whether Gulley is entitled to
permanent-total-disability compensation.      This approach conforms with the
mandate in Stephenson to “consider any other factors that might be important to its
determination of whether this specific claimant may return to the job market by
utilizing [his] past employment skills, or those skills which may be reasonably
developed.” Id., 31 Ohio St.3d at 170, 509 N.E.2d 946.




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          {¶ 19} Consequently, we affirm the judgment of the court of appeals and
grant a limited writ that returns the matter to the commission to consider all the
vocational evidence in the record.
                                                                 Judgment affirmed.
          O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ.,
concur.
          KENNEDY, J., dissents, with an opinion joined by O’NEILL, J.
                                 _________________
          KENNEDY, J., dissenting.
          {¶ 20} I respectfully dissent.   Although I agree with the majority’s
conclusion that the Industrial Commission of Ohio “did not abuse its discretion
when it considered [appellee’s, Lloyd Gulley Jr.’s] refusal to participate in
rehabilitation opportunities when he was deemed eligible in 2010 and 2012,”
majority opinion at ¶ 15, I disagree with the majority’s holding that the commission
abused its discretion in rejecting the reports of Khanisha McCoy, a rehabilitation
counselor, on the ground that she had a conflict of interest in issuing those reports,
majority opinion at ¶ 17. To reach this determination, the majority elevates a
difference of opinion into an abuse of discretion, which our case law does not
permit. Therefore, I would find that the commission did not abuse its discretion in
rejecting McCoy’s reports, and I would reverse the judgment of the Tenth District
Court of Appeals and deny the writ of mandamus sought by Gulley.
          {¶ 21} The hearing officer found that McCoy’s opinion was tainted by a
conflict of interest because she was originally hired by the Bureau of Workers’
Compensation and then was hired by Gulley’s attorney to perform a vocational
assessment.


          The commission is the exclusive fact-finder with sole responsibility
          to evaluate the weight and credibility of the evidence. * * * As a




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       reviewing court, we generally defer to the commission’s expertise
       in these matters and do not substitute our judgment for that of the
       commission. * * * This court’s role is limited to determining
       whether there is some evidence in the record to support the
       commission’s stated basis for its decision.


State ex rel. Perez v. Indus. Comm., 147 Ohio St.3d 383, 2016-Ohio-5084, 66
N.E.3d 699, ¶ 20.
       {¶ 22} The commission’s findings will be disturbed only if the commission
abuses its discretion. State ex rel. Cordell v. Pallet Cos., Inc., 149 Ohio St.3d 483,
2016-Ohio-8446, 75 N.E.3d 1230, ¶ 19. An abuse of discretion is “ ‘not merely an
error in judgment but a perversity of will, passion, prejudice, partiality, or moral
delinquency,’ ” and is to be found only when there is no evidence upon which the
commission could have based its decision. State ex rel. Commercial Lovelace
Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191, 193, 489 N.E.2d 288 (1986),
quoting State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 590, 113
N.E.2d 14 (1953). When applying the abuse-of-discretion standard, a reviewing
court is not free to substitute its judgment for that of the fact-finder. See Berk v.
Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
       {¶ 23} In concluding that the commission abused its discretion in rejecting
McCoy’s reports based on her alleged conflict of interest, the majority fails to
accord deference to the commission and, instead, substitutes its own judgment. The
majority discusses the evidence—the two assessments prepared by McCoy—and
concludes that there was not a conflict of interest in McCoy’s preparing both
assessments: “McCoy’s subsequent assessment * * * was not incompatible or
irreconcilable with the bureau’s position.”      Majority opinion at ¶ 17.       This
conclusion merely differs from the opinion reached by the commission, in other




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words, it was an error. It is not a “perversity of will, passion, prejudice, partiality,
or moral delinquency.” Shafer at 590.
        {¶ 24} Moreover, the record does contain evidence to support the
commission’s determination that a conflict of interest existed. While the two
assessments may have each reached the conclusion that Gulley was not employable,
inconsistencies are present. In the report prepared for the bureau, McCoy noted
that Gulley had “limited transferrable skills” and made no mention of whether
Gulley had computer skills. In contrast, her report for Gulley’s counsel stated that
Gulley “has no direct transferrable skills (due to limitations)” and that “[t]he
majority of sedentary positions involve * * * the ability to demonstrate proficient
computer skills and/or operate office equipment.” Therefore, the commission did
not abuse its discretion when it concluded that McCoy had a conflict of interest.
        {¶ 25} Whether the evidence in the record is sufficient to establish that
McCoy had a conflict of interest is irrelevant. Instead, the issue is whether there is
no evidence upon which the commission could have based its decision. In reaching
its conclusion today, the majority ignores this established standard of review, fails
to defer to the commission, and imposes its own judgment. Therefore, I would find
that the commission did not abuse its discretion in rejecting McCoy’s reports, and
I would reverse the judgment of the court of appeals and deny the writ.
        O’NEILL, J., concurs in the foregoing opinion.
                                _________________
        Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and Daniel J. O’Brien,
for appellee.
        Michael DeWine, Attorney General, and John R. Smart, Assistant Attorney
General, for appellant.
                                _________________




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