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State ex rel. Gulley v. Industrial Commission of Ohio

Supreme Court of Ohio

December 21, 2017

The State ex rel. Gulley, Appellee,
v.
Industrial Commission of Ohio, Appellant, et al.

          Submitted June 20, 2017

         Appeal 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.

          PER CURIAM

         {¶ 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 vocational-rehabilitation services.

         {¶ 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.

         Facts 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 ...


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