The Ohio Supreme Court recently affirmed an appellate ruling in favor of a Northwest Ohio employer and the Industrial Commission of Ohio which reconsidered the non-medical analysis at the behest of the court and to the benefit of the employer.

A 6-1 court found the 10th District Court of Appeals ruling to be consistent with the court's opinion, despite injured worker Dawn Crispen's arguments in opposition.

The Bowling Green woman suffered two industrial injuries while working at the Wauseon facility, according to case summary. The first injury occurred in 1988 while employed by Capitol Plastics of Ohio Inc., a state fund employer. She suffered her second injury in 1998 while employed by Capitol Plastics' successor, Lear Operations Corp.

Crispen subsequently applied for permanent total disability, summary continued. In addition to the medical evidence, the commission sent the woman for a vocational assessment with Carolyn Markle, a certified rehabilitation counselor, who found Crispen had high-school level, or better, skills in reading and applied math but third grade spelling skills, eighth grade arithmetic skills and fourth grade mathematics computation skills.

Markle found that Crispen had average ability to solve problems, had no transferable skills to jobs within her physical limitations, thus she required retraining but was capable of learning entry-level clerical tasks.

However, Markle noted that Crispen "demonstrated an inability to attend on a regular and reliable basis due to her reported back pain" and opined that Crispen was "unemployable at this time due to her inability to attend on a regular basis due to her reported physical pain" and suggested that she seek volunteer work that would "allow for her inconsistent attendance."

The commission determined the woman's allowed psychological conditions did not prevent her from returning to her former position or any other work, summary detailed. Relying on the report of Dr. Harvey Popovich, the commission found that Crispen was capable of sedentary work.

Considering the non-medical factors listed in State ex rel. Stephenson v. Indus. Comm. (1987), 31 OhioSt.3d 167, 170, the commission relied on the report of Markle.

The 10th District ordered the commission to reanalyze the non-medical Stephenson factors as a result of Markle having offered opinions for which she was not qualified - namely medical. The commission did so and ruled in favor of Lear.

Assistant Attorney General Sandra Pinkerton argued in a brief on behalf of the commission that it may consider the appropriate portions of the vocational findings while disregarding the irrelevant medical findings offered by the vocational expert.

"The 10th District's opinion does not prevent the commission from relying on the vocational findings of Ms. Markle," Pinkerton wrote. "The commission is the expert on disability and an expert vocational opinion is neither critical nor even necessary to support a finding of PTD (as in State ex rel. Jackson v. Indus. Comm. (1997), 79 Ohio St.3d 266, 270). While the existence of a medical condition may require medical evidence, the commission is the sole evaluator of non-medical factors and may accept or reject all, none or any portion of the vocational reports.

"Moreover, the commission is not required to give special weight to any particular vocational or medical report. The commission may accept an expert's findings, reject the ultimate conclusion and reach its own opinion. ..."

Crispen's Toledo attorney, Martha Wilson, characterized Markle's assessment only reflected the medical restrictions she observed during the assessment process.

"... She does not purport to change or render her own opinions regarding those physical limitations," Wilson wrote in her client's brief. "She only notes as a matter of vocational evaluation that Crispen had difficulty attending the vocational testing, and thus would have difficulty attending a retraining program or work within her restrictions. Clearly, it is within the discretion of the (Industrial Commission) to either accept or reject the veracity of Crispen's reports of pain and inability to attend the program on a consistent basis.

"And clearly, it is within the discretion of the IC to find the vocational evaluator's observations persuasive or not persuasive. The magistrate has erred in finding that Markle's statements rise to the level of a medical opinion; they are her observations as a vocational expert ... ."

Justice Paul Pfeifer was the sole holdout, offering the appropriate decision would have been to reverse the judgment of the court of appeals.

The case is cited as State ex rel. Lear Operations Corp. v. Crispen, Slip Opinion No. 2010-Ohio-686.