The State ex rel. Gulley, Appellee,
Industrial Commission of Ohio, Appellant, et al.
Submitted June 20, 2017
from the Court of Appeals for Franklin County, No. 15AP-759.
Hochman & Plunkett Co., LP.A., Gary D. Plunkett, and
Daniel J. O'Brien, for appellee.
Michael DeWine, Attorney General, and John R. Smart,
Assistant Attorney General, for appellant.
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., 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
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.
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 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 ...