THE STATE EX REL. EATON CORPORATION, APPELLANT, v. INDUSTRIAL COMMISSION

OF OHIO ET AL., APPELLEES.

[Cite as State ex rel. Eaton Corp. v. Indus. Comm. (1997), ___ Ohio St.3d ___.]

Workers’ compensation — Award of permanent total disability compensation by

        Industrial Commission not an abuse of discretion when supported by

        “some evidence.”

        (No. 95-1131 — Submitted December 3, 1997 — Decided December 31,

1997.)

        APPEAL from the Court of Appeals for Franklin County, No. 93APD10-

1420.

        Appellee-claimant, Roy L. Johnson, was injured on November 4, 1982,

while in the course of and arising from his employment with appellant, Eaton

Corporation.    Appellee Industrial Commission of Ohio allowed his workers’

compensation claim for “[r]uptured L5-S1 with sciatica; disc herniation L4-S1.”

Treatment for claimant’s degenerative disc disease, however, was specifically

disallowed.

        Claimant underwent three surgeries for the allowed conditions with little

success.     On April 5, 1988, claimant applied for permanent total disability

compensation. Accompanying his motion was a C-85A claim reactivation form

with attending physician’s report, dated April 4, 1986, and a narrative dated

December 18, 1986, from Dr. Robert D. Zaas, who indicated that the claimant was

unable to do sustained remunerative employment. Dr. Zaas, however, appeared to

attribute claimant’s permanent total impairment, in part, to his nonallowed

degenerative disc disease.

        Dr. W. Jerry McCloud examined claimant on behalf of the commission and

concluded:
      “In summary, this individual does have loss of lumbar reserve and may have

some radicular changes and actually should have some radicular changes as he has

had surgery on three different occasions. * * * I think that he would have

restrictions against repetitive lifting of objects whose weight would exceed some

20 pounds and consistent with primarily his historical complaints he should not be

asked to stand or ambulate for uninterrupted intervals exceeding an estimated four

hours but I do not think other restrictions would exist. Again, this individual has

had surgery on three different occasions and one might anticipate finding flaming

radicular testing procedures but such is not the case in regard to his evaluation.

      “It is my opinion that the medical evidence would indicate that Mr. Johnson

is capable of work activities. The changes are permanent and he has reached a

level of maximum medical improvement and demonstrates a permanent partial

impairment of 50%, 35% related to loss of almost the entirety of his functional

lumbar reserve and 15% related to his historical complaints[,] although there is

something of an absence of positive physical findings.”

      Claimant also submitted a vocational evaluation from William L. Fink.

Vocational consultant Fink reported:

      “Mr. Johnson was born in a coal-mining area of West Virginia. As best that

he could remember he went to school to either the fifth or sixth grade. He said

that he was either 14 or 15 years old when he left school. If he had left school at

age 14[,] his appropriate grade placement would have been the 9th grade, if he

had been 15 when he left school[,] proper grade placement would have been the

10th grade.

      “Attached to this report is a writing sample with an explanation how the

writing sample test was administered. The end result is that Mr. Johnson is a

functional illiterate. * * *



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      “All of Mr. Johnson’s past jobs were unskilled labor [and], therefore, there

can be no implication that he was skilled or has any transferable skills. His past

work required the ability to stand, bend and lift. The exertional demands of his

past work was [sic] no less than medium level work and at times his work

required heavy to very heavy exertional effort.

      “As noted in the previously referred to writing sample, titled ‘Addendum’,

Mr. Johnson is illiterate, threfore [sic] there can be no implication of his utilizing

or being trained for any area of clerical skills or jobs that require even minimal

writing.

      “* * *

      “All of Mr. Johnson’s past work required lifting and/or exertional effort of

more than 20 pounds. Dr. McCloud’s report limited him to that level; however,

Dr. McCloud did not consider Mr. Johnson’s past relevant work, nor did he know

of Mr. Johnson’s illiteracy.

      “My opinion is [that] Mr. Johnson should be considered 100% permanently

and totally disabled from the vocational point of view. Mr. Johnson has difficulty

sitting for extended periods of time, he has difficulty standing, bending and

lifting. With a lack of the previously-mentioned capabilities there simply are no

jobs that Mr. Johnson could do. It is also my opinion that he is not a viable

candidate for the vocational aspects of rehabilitation due to his age, lack of

literacy and the findings as noted by Dr. McCloud.”

      The commission awarded claimant permanent total disability compensation,

writing:

      “The reports of Drs. Zaas and McCloud were reviewed and evaluated. This

order is based particularly upon the report of Dr. McCloud, evidence in the file

and/or evidence adduced at the hearing.



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      “In 1982, while moving a box, the claimant, Mr. Johnson, slipped and fell

and sustained a ruptured L5-S1 disc with left sciatica. Mr. Johnson was treated

surgically three times, twice in 1983 and once in 1990. These surgeries involved a

laminectomy and diskectomy procedures as well as an exploration of the L4-5

nerve root space. Based upon this history, the claimant was examined by Dr. W.

Jerry McCloud on behalf of the Commission. Dr. McCloud’s report indicates that

Mr. Johnson has a loss of his lumbar reserve and has radicular changes as a result

of the herniation. These positive signs and the history demonstrated over the

claim reveal that the claimant has restrictions against lifting objects whose weight

would exceed 20 pounds[,] with the addition that the claimant should not be asked

to stand or ambulate for uninterrupted intervals exceeding four hours. On this

[sic] bases, the Commission accepts the report of Dr. McCloud and his conclusion

that the claimant has a 50% total body impairment int [sic] he [sic] claim. As

accepted, the report of Dr. Mccloud [sic] relates that the claimant has the ability to

perform only sedentary levels of employment.           A review of the claimant’s

vocation[al] history reveals that he is presently 55 years of age and has a 5th grade

education. The claimant’s vocational history includes that of a machine operator

and towmotor driver. Moreover, the evidence on file relates that the claimant has

a learning disability in that his ability to read and write is limited. When this

vocational presentation is taken as a whole, it becomes readily apparent to the

Commission that the claimant is not suited for undertaking vocational re-training

intended to return him to sedentary levels of employment.          Accordingly, the

Commission finds that the claimant, Mr. Johnson, is permanently and totally

disabled such that the instant application for permanent and total disability is

granted.”




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      Eaton filed a complaint in mandamus in the Court of Appeals for Franklin

County, alleging that the commission abused its discretion in awarding claimant

permanent total disability compensation. The court of appeals found the order to

be supported by “some evidence,” and denied the writ.

      This cause is now before this court upon an appeal as of right.

                                 __________________

      Willacy & Lopresti, Aubrey B. Willacy and M. Scott Young, for appellant.

      Betty D. Montgomery, Attorney General, and Gerald H. Waterman,

Assistant Attorney General, for appellee Industrial Commission.

      Victor H. Hahn, for appellee Johnson.

                                 __________________

      Per Curiam.          Eaton assails claimant’s eligibility for permanent total

disability compensation and, alternatively, the commencement date of the award.

Upon review, we find neither argument to be persuasive and affirm the judgment

of the court of appeals.

      Eaton contends that the commission abused its discretion in relying on Dr.

McCloud’s report as “some evidence” in support of its decision. Eaton argues that

Dr. McCloud’s report was invalid because he did not discuss claimant’s non-

allowed degenerative back condition and did not specifically exclude it from his

impairment assessment. We recently rejected this argument in a case involving

the same employer — State ex rel. Eaton Corp. v. Indus. Comm. (1997), 80 Ohio

St.3d 352, 686 N.E.2d 507.

      Eaton also argues that the commencement date of claimant’s award of

permanent total disability compensation is unsupported by “some evidence.”

However, because Eaton did not raise this argument below — a point which it




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does not dispute — it has waived this proposition. Shover v. Cordis Corp. (1991),

61 Ohio St.3d 213, 220, 594 N.E. 2d 457, 462-463.

      Accordingly, the judgment of the court of appeals is affirmed.

                                                               Judgment affirmed.

      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.




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