Vocational restrictions


By Paul E. Pfeifer - Court of Appeals



Sherwood Lacroix was injured on September 7, 2003, while working for GMRI, Inc., a company that owns several restaurant chains. Lacroix did a bit of everything at his job – he worked as a dishwasher, a baker, and he performed maintenance for the company. He was only 26 years old when his injury occurred.

After the injury, his workers’ compensation claim was allowed for cervical/lumbar strain, head contusion, disc displacement, and postlaminectomy syndrome – a condition characterized by persistent pain following back surgeries. It’s also called “failed back syndrome.” He has not worked since he was injured, and has had to rely on a walker or a wheelchair to get around.

In 2006, and again in 2008, Lacroix applied for permanent-total-disability (“PTD”) compensation. Permanent total disability – as the name suggests – is the “inability to perform sustained remunerative employment” due to the physical conditions that were allowed in the person’s initial claim. It can result from the injured worker’s medical conditions alone or in conjunction with other nonmedical disability or vocational factors.

The Industrial Commission of Ohio – which handles such matters – denied both of Lacroix’s applications for PTD compensation on the basis that Lacroix was capable of working and not permanently and totally disabled.

Lacroix tried again in 2010, with a report from his treating physician, Timothy Morley, D.O. Another doctor – Kiva Shtull, M.D., examined Lacroix on behalf of GMRI. Dr. Shtull concluded that Lacroix was capable of full-time employment “in the sedentary category, in the seated position.” But, even with sedentary, seated work, Dr. Shtull had a list of restrictions that would be necessary for Lacroix to return to work.

According to Dr. Shtull, any job Lacroix took would need these restrictions: 1) The ability to change positions as necessary; 2) No foot pedal operation with the lower extremities; 3) No exposure to vibratory forces.

Lacroix had two vocational assessments performed that reached two different conclusions. The first was performed by Mark A. Anderson, who concluded that no occupations existed that matched all of Lacroix’s restrictions.

The second was performed by Craig Johnston, Ph.D. In his report, Dr. Johnston identified the medical opinions submitted and concluded that “if one accepts the opinion of Dr. Shtull, then Mr. Lacroix is again capable of sedentary physical activity.” Dr. Johnston examined Lacroix’s nonmedical disability factors and concluded that he remained capable of sustained remunerative employment.

Following a hearing at the Industrial Commission, a staff hearing officer denied Lacroix’s application. The hearing officer relied on Dr. Shtull’s report as evidence that Lacroix was medically capable of performing sedentary employment. The hearing officer also reviewed all vocational evidence submitted, analyzed Lacroix’s nonmedical disability factors, and determined that he was vocationally capable of returning to work or going into a rehabilitation program.

After that, Lacroix filed a complaint for a writ with the court of appeals. He argued that the staff hearing officer abused his discretion when he relied on the vocational report of Dr. Johnston because the report was flawed.

Lacroix maintained that the Johnston report was flawed because Dr. Johnston did not consider Dr. Shtull’s limitation that Lacroix must remain in a seated position. And Dr. Johnston listed potential jobs – such as security guard and cashier – that seemed impossible for a person who relied on a walker or wheelchair.

The court of appeals, however, concluded that there was evidence in the record supporting the Commission’s decision that Lacroix was medically and vocationally capable of sedentary employment. The court noted that Lacroix did not challenge Dr. Shtull’s medical opinion and that the Commission independently evaluated the nonmedical disability factors.

Thus, the court of appeals determined that, despite any deficiencies in the Johnston report, the record nevertheless contained evidence to support the Commission’s denial of benefits. The court therefore denied the writ that Lacroix sought.

Having failed at the court of appeals, Lacroix turned next to us – the Ohio Supreme Court – to press his claim for permanent total disability.

To challenge the Commission’s order denying PTD compensation, Lacroix had to demonstrate an abuse of discretion. The standard for an abuse of discretion claim is this: so long as there is some evidence in the record that supports the order, the Commission does not abuse its discretion.

Previous court decisions have established that a vocational expert need not list all restrictions when referring to a medical report. Furthermore, the Commission, as the exclusive evaluator of disability, is not required to accept vocational evidence, even if that evidence is unchallenged.

The Commission is the expert on vocational evidence and had the discretion to accept or reject all or some of the Johnston report. So – according to a five-to-two majority of our court – Lacroix’s argument lacked merit.

Lacroix also maintained that the Commission abused its discretion by relying on Dr. Shtull’s report because it was contradictory. Lacroix further argued that the Commission failed to explain how the additional limitations set forth by Dr. Shtull correspond with the ability to perform work at the sedentary level.

But, Lacroix did not raise those arguments in the court of appeals. Consequently, they have been waived.

Our court concluded that Lacroix was not entitled to the writ that he sought because there was evidence in the record to support the Commission’s denial of PTD compensation. Therefore, Lacroix failed to establish that he was entitled to the writ.

Justice William M. O’Neill and I cast the two dissenting votes. Why did we dissent?

Lacroix’s injuries are substantial enough that he is confined to a wheelchair, among other limitations. Even so, one of the vocational experts, whose report provides the evidence that the Commission relies upon to justify its conclusion, determined that Lacroix is capable of being a security guard. That just isn’t plausible, and reliance on that report is misguided.

Therefore, Justice O’Neill and I would have reversed the judgment of the court of appeals. Nevertheless, the majority saw it differently, and thus our court affirmed the judgment of the court of appeals in denying Sherwood Lacroix his request for permanent total disability compensation.

By Paul E. Pfeifer

Court of Appeals

Paul E. Pfeifer is a judge in the Court of Appeals.

Paul E. Pfeifer is a judge in the Court of Appeals.

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