[Cite as State ex rel. Gonzales v. Morgan, 131 Ohio St.3d 62, 2011-Ohio-6047.]




             THE STATE EX REL. GONZALES, APPELLANT, v. MORGAN;
                   INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Gonzales v. Morgan, 131 Ohio St.3d 62, 2011-Ohio-6047.]
Workers’ compensation—Permanent total disability—Nonmedical vocational
        factors—Failure to participate in educational rehabilitation.
(No. 2010-0964—Submitted September 20, 2011—Decided December 1, 2011.)
               APPEAL from the Court of Appeals for Franklin County,
                            No. 09AP-752, 2010-Ohio-1959.
                                  __________________
        Per Curiam.
        {¶ 1} Appellee, Industrial Commission of Ohio, denied appellant’s,
Trevor Gonzales’s, application for permanent total disability compensation
(“PTD”) in an order that emphasized his refusal to participate in vocational
rehabilitation. Gonzales challenges that decision.
        {¶ 2} Gonzales never returned to any type of employment after his 2003
industrial injury, and he filed for PTD six years later. The commission considered
Gonzales’s application and concluded that he was physically capable of sedentary
employment.      It then considered Gonzales’s nonmedical disability factors as
required by State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167,
31 OBR 369, 509 N.E.2d 946. The commission found that Gonzales’s age did not
prohibit reemployment and felt that his “varied work history is a positive factor
that highlights his ability to learn new jobs skills and to work in different work
environments.”
        {¶ 3} The bulk of the commission’s analysis, however, focused on
Gonzales’s illiteracy.       The commission acknowledged that this deficiency
impaired his ability to perform sedentary employment but concluded:
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        {¶ 4} “[T]his factor is greatly outweighed by the fact that the Injured
Worker has not participated in any type of rehabilitation program to negate his
ability to not [sic] read, write, or do basic math very well. The evidence in the
claim file notes that two letters were sent to the Injured Worker on 01/05/2004
and 03/12/2004 which found that the Injured Worker was not feasible [sic] to
participate in a vocational rehabilitation program based upon his decision to not
participate in such a program or his failure to contact and return phone calls in
regards to participating in a rehabilitation program. Therefore, based upon the
Injured Worker’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 is the basis for the denial of his * * * permanent total disability application.
The Injured Worker has presented no evidence that he is unable to participate in
any type of vocational rehabilitation program.”
        {¶ 5} Gonzales filed a complaint in mandamus in the Court of Appeals
for Franklin County, alleging that the commission had abused its discretion in
denying PTD. The court of appeals, speaking through its magistrate, disagreed.
It cited the commission’s exclusive authority to evaluate vocational evidence and
stressed that Gonzales had refused vocational rehabilitation “when there was no
evidence that he would not benefit from such services.” Franklin App. No. 09AP-
752, 2010-Ohio-1959, ¶ 23. Ultimately, the court of appeals concluded that the
commission did not abuse its discretion in deciding to “hold relator accountable
for this failure.”
        {¶ 6} Gonzales now appeals to this court as a matter of right.
        {¶ 7} Contrary to Gonzales’s suggestion, illiterate persons are neither
unemployable nor, once injured, inherently permanently and totally disabled.
Gonzales himself demonstrates the fallacy of the former by having worked for
decades without the ability to read or write. As to the latter, many illiterate




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claimants successfully transition to other postinjury employment, often helped by
their successful completion of vocational retraining and remedial education.
       {¶ 8} We have discussed vocational rehabilitation in depth on two
occasions. In State ex rel. Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250,
685 N.E.2d 774,         the commission’s rehabilitation division assessed the
rehabilitation potential of a PTD applicant and recommended, among other things,
remedial education classes. An individualized program was prepared, but the
claimant refused to participate. This refusal was one of the reasons why PTD was
later denied, and the claimant challenged that decision.
       {¶ 9} We upheld that decision. We affirmed that 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.’ ” (Emphasis added.) Id. at 253, quoting State ex rel. Speelman v.
Indus. Comm. (1992), 73 Ohio App.3d 757, 762, 598 N.E.2d 192.
       {¶ 10} Continuing, we wrote:
       {¶ 11} “The commission found that 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 not only sustain the commission’s reasoning, but feel compelled to add
an observation of our own.
       {¶ 12} “Not only does claimant have the opportunity to improve his re-
employment potential, he has had this opportunity for the sixteen years he has not
worked since his injury. Despite the fact that claimant was only age thirty-seven
when injured, there is no evidence that claimant ever made an effort to pursue
remedial education or obtain his G.E.D. The record does reflect that claimant did
not respond when contacted by the commission’s Rehabilitation Division about
establishing a rehabilitation plan.



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        {¶ 13} “We     view    permanent      total   disability   compensation    as
compensation of last resort, to be awarded only when all reasonable avenues of
accomplishing a return to sustained remunerative employment have failed. Thus,
it is not unreasonable to expect a claimant to participate in return-to-work efforts
to the best of his or her abilities or to take the initiative to improve reemployment
potential.   While   extenuating    circumstances      can   excuse    a   claimant’s
nonparticipation in reeducation or retraining efforts, claimants should no longer
assume that a participatory role, or lack thereof, will go unscrutinized.” Id., 80
Ohio St.3d at 253-254, 685 N.E.2d 774.
        {¶ 14} In 2010, we had another opportunity to comment on the role of
rehabilitation in State ex rel. Nissin Brake Ohio, Inc. v. Indus. Comm., 127 Ohio
St.3d 385, 2010-Ohio-6135, 939 N.E.2d 1242. There, the employer challenged an
award of PTD to a claimant who began a vocational rehabilitation program but
could not finish it due to health problems unrelated to her industrial injury. The
employer argued that because nonallowed 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.
        {¶ 15} We acknowledged that under certain circumstances, Nissin’s
position could have merit.      We began by distinguishing between medically
oriented and vocationally oriented rehabilitation programs:
        {¶ 16} “If a claimant is unable to participate in a medically oriented
rehabilitation program due to nonindustrial health problems, Nissin could have a
legitimate argument if the anticipated level of physical improvement is
compatible with the claimant’s Stephenson profile. 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.




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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 permanent total disability analysis.
        {¶ 17} “With vocationally or educationally directed programs, the
opposite analysis can be used: is the claimant medically able to perform the type
of work that the program is intended to facilitate?        If the medical evidence
indicates that the claimant is physically incapable of all work, the acquisition of a
GED, for example, is meaningless from an employment standpoint. A failure to
complete that program should therefore be irrelevant to permanent total disability
analysis, both from a logical and legal standpoint. Work skills and education are,
after all, enumerated Stephenson factors, and if the commission finds it
unnecessary to consider those factors, a claimant’s failure to complete a
Stephenson-oriented rehabilitation program does not bar a finding of permanent
total disability.” Id. at ¶17-18.
        {¶ 18} Analyzing the employer’s arguments under the second theory, we
upheld the PTD award. We found that because there was evidence supporting the
commission’s finding that the claimant’s allowed conditions prevented sustained
remunerative work, her failure to complete rehabilitation—regardless of the
reason—did not foreclose PTD.
        {¶ 19} There are two immediate distinctions between Nissin Brake and
the case at bar.      First, Trevor Gonzales is medically capable of sustained
remunerative employment, so his rehabilitation potential is germane to the
analysis. Second, this case does not involve a claimant who began a rehabilitation
program but was then prevented from finishing due to circumstances beyond the
claimant’s control.     To the contrary, Gonzales refused even to respond to
preliminary inquiries from rehabilitation services.



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       {¶ 20} The judgment of the court of appeals is affirmed.
                                                             Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                             ___________________
       Weisser & Wolf and Lisa M. Clark, for appellant.
       Michael DeWine, Attorney General, and Allan K. Showalter, Assistant
Attorney General, for appellee.
                           ______________________




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