State ex rel. Rothkegel v. Westlake

In State ex rel. Rothkegel v. Westlake (2000), 88 Ohio St.3d 409, 2000 Ohio 364, 727 N.E.2d 869, the commission denied the PTD application of a 62 year old claimant who had sustained two industrial injuries while employed as a paramedic with a local fire department. In Rothkegel, the commission, through its SHO, simply acknowledged that the claimant was 62 years of age in its order denying the PTD application. The Rothkegel court states: Claimant also proposes that the commission's treatment of his age warrants a return of the cause for further consideration. The commission concedes that it mentioned claimant's age only in passing, but argues that the defect does not compel a return of the cause. Claimant relies on State ex rel. Moss v. Indus. Comm. (1996), 75 Ohio St.3d 414, 1996 Ohio 306, 662 N.E.2d 364, in which we held: "The commission has a responsibility to affirmatively address the age factor. It is not enough for the commission just to acknowledge claimant's age. It must discuss age in conjunction with the other aspects of the claimant's individual profile that may lessen or magnify age's effects." Id. at 417. Since that time, we have declared that the absence of an age discussion is not necessarily a fatal flaw, nor does it, in some cases, even compel a return of the cause. In State ex rel. Blue v. Indus. Comm. (1997), 79 Ohio St.3d 466, 1997 Ohio 164, 683 N.E.2d 1131--relied on by both the commission and the court of appeals--we wrote: "As another Noll flaw, claimant assails the commission's cursory mention of his age. While the commission did not 'discuss' this factor, that flaw, in this instance, should not be deemed fatal. Claimant was fifty-seven when permanent total disability compensation was denied. While not a vocational asset, claimant's age is also not an insurmountable barrier to re-employment. If claimant's other vocational factors were all negative, further consideration of his age would be appropriate, since age could be outcome-determinative--the last straw that could compel a different result. All of claimant's other vocational factors are, however, positive. A claimant may not be granted permanent total disability compensation due solely to his age. Therefore, even in the absence of detailed discussion on the effects of claimant's age, the commission's explanation satisfies Noll." Id. at 469-470. Claimant responds that Blue did not overrule Moss and did not, therefore, eliminate the commission's responsibility to affirmatively discuss age. This is true, but claimant misses the point. The question is not whether the commission has such a duty, but rather what happens when the commission falls short of this duty. Blue indicates that where the claimant's other vocational factors are favorable, a return of the cause is not a given. In this case, claimant's other vocational factors are favorable. Like the claimant in Blue, our claimant is a high school graduate. Both claimants, moreover, received extensive additional schooling in highly demanding areas--Blue as a certified electrician and our claimant as a paramedic. Therefore, consistent with Blue, we decline to return the cause for further consideration. Id. at 411-412.