[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Gulley v. Indus. Comm., Slip Opinion No. 2017-Ohio-9131.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-9131

THE STATE EX REL. GULLEY, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO,

APPELLANT, ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Gulley v. Indus. Comm., Slip Opinion No. 

2017-Ohio-9131.] 

Workers’ compensation—Permanent total disability—Industrial Commission must 

review all vocational evidence before determining whether claimant is 

entitled to compensation—Court of appeals’ judgment granting limited writ 

affirmed—Limited writ granted. 

(No. 2016-1199—Submitted June 20, 2017—Decided December 21, 2017.) 

APPEAL from the Court of Appeals for Franklin County, No. 15AP-759. 

_______________________

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., 
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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 
January Term, 2017 

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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 for reconsideration. 

{¶ 9} Gulley filed a complaint for a writ of mandamus alleging that the 

commission had abused its discretion. The court of appeals determined that 

permanent-total-disability compensation should not be denied based primarily on 

Gulley’s refusal of rehabilitation services when he later attempted to use the 

services in 2014. The court issued a limited writ requiring the commission to 

address the merits of Gulley’s application without relying on Gulley’s earlier 

refusals of rehabilitation services. 

{¶ 10} The author of the separate opinion in the court of appeals agreed that 

a limited writ should be granted but would order the commission to consider all 

vocational evidence in the record. 

{¶ 11} This matter is before the court on the direct appeal filed by the 

commission. 

Legal Analysis

{¶ 12} The relevant inquiry in determining permanent total disability is 

whether the claimant is able to perform sustained remunerative employment. State 
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ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170, 509 N.E.2d 946 

(1987). In addition to the medical evidence, the commission must analyze 

nonmedical factors such as the claimant’s age, education, and work record. The 

commission must also consider any other factors that might be important to the 

determination whether a claimant may return to the job market by using past 

employment skills or skills that may be reasonably developed. Id. 

{¶ 13} Here, the parties do not dispute the evidence that Gulley was 

medically capable of performing sedentary work. Instead, the issue involves the 

commission’s analysis of Gulley’s nonmedical factors, particularly the impact of 

the evidence of vocational rehabilitation in the record. 

{¶ 14} The commission argues that it may consider an injured worker’s lack 

of participation in rehabilitation or retraining when determining permanent total 

disability and that Gulley’s refusal to participate in rehabilitative services in 2010 

and 2012 was some evidence that supported its decision denying permanent-totaldisability compensation. The commission also maintains that it had discretion to 

reject McCoy’s vocational reports as not persuasive. 

{¶ 15} A claimant’s refusal to participate in rehabilitation or retraining is a 

proper factor for the commission to consider in permanent-total-disability cases. 

State ex rel. B.F. Goodrich Co. v. Indus. Comm., 73 Ohio St.3d 525, 529, 653 

N.E.2d 345 (1995). Furthermore, absent extenuating circumstances, it is not 

unreasonable to expect a claimant to participate in efforts to return to work to the 

best of his or her abilities. State ex rel. Wilson v. Indus. Comm., 80 Ohio St.3d 250, 

253-254, 685 N.E.2d 774 (1997). Because permanent total disability is 

compensation of last resort, a claimant should not assume that the lack of 

participation will go unnoticed. Id. Consequently, the commission did not abuse 

its discretion when it considered Gulley’s refusal to participate in rehabilitation 

opportunities when he was deemed eligible in 2010 and 2012. See B.F. Goodrich

at 529. 
January Term, 2017 

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{¶ 16} The commission also summarily rejected the reports of McCoy due 

to a perceived conflict of interest. The commission considered McCoy’s opinion 

tainted because she had been hired by Gulley’s counsel to assess his employment 

potential in support of the pending permanent-total-disability application after 

McCoy had issued a similar report for the bureau. Although the commission has 

authority to reject a vocational report, even if it is uncontradicted, State ex rel. 

Singleton v. Indus. Comm., 71 Ohio St.3d 117, 118, 642 N.E.2d 359 (1994), we do 

not agree that McCoy’s assessments created a conflict of interest that tainted her 

opinion. 

{¶ 17} The record indicates that the bureau approved the request of Gulley’s 

counsel for McCoy to perform an initial assessment for rehabilitation purposes. 

The bureau’s interest in this assessment was neither incompatible nor irreconcilable 

with Gulley’s interest. McCoy’s subsequent assessment for permanent-totaldisability purposes was not incompatible or irreconcilable with the bureau’s 

position. McCoy reached similar conclusions in both reports. Thus, we find that it 

was an abuse of discretion for the commission to reject McCoy’s reports based on 

a conflict of interest. 

{¶ 18} Although the commission is not bound to accept all vocational 

evidence in the record, it is required to review the evidence to determine whether 

the claimant is foreclosed from sustained remunerative employment. Singleton at 

118. The commission failed to do so here. Therefore, we adopt the reasoning of 

the separate opinion filed in the court of appeals, and we order the commission to 

review all the vocational evidence before determining whether Gulley is entitled to 

permanent-total-disability compensation. This approach conforms with the 

mandate in Stephenson to “consider any other factors that might be important to its 

determination of whether this specific claimant may return to the job market by 

utilizing [his] past employment skills, or those skills which may be reasonably 

developed.” Id., 31 Ohio St.3d at 170, 509 N.E.2d 946. 
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{¶ 19} Consequently, we affirm the judgment of the court of appeals and 

grant a limited writ that returns the matter to the commission to consider all the 

vocational evidence in the record. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ., 

concur. 

KENNEDY, J., dissents, with an opinion joined by O’NEILL, J. 

_________________ 

 KENNEDY, J., dissenting. 

{¶ 20} I respectfully dissent. Although I agree with the majority’s 

conclusion that the Industrial Commission of Ohio “did not abuse its discretion 

when it considered [appellee’s, Lloyd Gulley Jr.’s] refusal to participate in 

rehabilitation opportunities when he was deemed eligible in 2010 and 2012,” 

majority opinion at ¶ 15, I disagree with the majority’s holding that the commission 

abused its discretion in rejecting the reports of Khanisha McCoy, a rehabilitation 

counselor, on the ground that she had a conflict of interest in issuing those reports, 

majority opinion at ¶ 17. To reach this determination, the majority elevates a 

difference of opinion into an abuse of discretion, which our case law does not 

permit. Therefore, I would find that the commission did not abuse its discretion in 

rejecting McCoy’s reports, and I would reverse the judgment of the Tenth District 

Court of Appeals and deny the writ of mandamus sought by Gulley. 

{¶ 21} The hearing officer found that McCoy’s opinion was tainted by a 

conflict of interest because she was originally hired by the Bureau of Workers’ 

Compensation and then was hired by Gulley’s attorney to perform a vocational 

assessment. 

The commission is the exclusive fact-finder with sole responsibility 

to evaluate the weight and credibility of the evidence. * * * As a 
January Term, 2017 

7

reviewing court, we generally defer to the commission’s expertise 

in these matters and do not substitute our judgment for that of the 

commission. * * * This court’s role is limited to determining 

whether there is some evidence in the record to support the 

commission’s stated basis for its decision. 

State ex rel. Perez v. Indus. Comm., 147 Ohio St.3d 383, 2016-Ohio-5084, 66 

N.E.3d 699, ¶ 20. 

{¶ 22} The commission’s findings will be disturbed only if the commission 

abuses its discretion. State ex rel. Cordell v. Pallet Cos., Inc., 149 Ohio St.3d 483, 

2016-Ohio-8446, 75 N.E.3d 1230, ¶ 19. An abuse of discretion is “ ‘not merely an 

error in judgment but a perversity of will, passion, prejudice, partiality, or moral 

delinquency,’ ” and is to be found only when there is no evidence upon which the 

commission could have based its decision. State ex rel. Commercial Lovelace 

Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191, 193, 489 N.E.2d 288 (1986), 

quoting State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 590, 113 

N.E.2d 14 (1953). When applying the abuse-of-discretion standard, a reviewing 

court is not free to substitute its judgment for that of the fact-finder. See Berk v. 

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). 

{¶ 23} In concluding that the commission abused its discretion in rejecting 

McCoy’s reports based on her alleged conflict of interest, the majority fails to 

accord deference to the commission and, instead, substitutes its own judgment. The 

majority discusses the evidence—the two assessments prepared by McCoy—and 

concludes that there was not a conflict of interest in McCoy’s preparing both 

assessments: “McCoy’s subsequent assessment * * * was not incompatible or 

irreconcilable with the bureau’s position.” Majority opinion at ¶ 17. This 

conclusion merely differs from the opinion reached by the commission, in other 
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words, it was an error. It is not a “perversity of will, passion, prejudice, partiality, 

or moral delinquency.” Shafer at 590. 

{¶ 24} Moreover, the record does contain evidence to support the 

commission’s determination that a conflict of interest existed. While the two 

assessments may have each reached the conclusion that Gulley was not employable, 

inconsistencies are present. In the report prepared for the bureau, McCoy noted 

that Gulley had “limited transferrable skills” and made no mention of whether 

Gulley had computer skills. In contrast, her report for Gulley’s counsel stated that 

Gulley “has no direct transferrable skills (due to limitations)” and that “[t]he 

majority of sedentary positions involve * * * the ability to demonstrate proficient 

computer skills and/or operate office equipment.” Therefore, the commission did 

not abuse its discretion when it concluded that McCoy had a conflict of interest. 

{¶ 25} Whether the evidence in the record is sufficient to establish that 

McCoy had a conflict of interest is irrelevant. Instead, the issue is whether there is 

no evidence upon which the commission could have based its decision. In reaching 

its conclusion today, the majority ignores this established standard of review, fails 

to defer to the commission, and imposes its own judgment. Therefore, I would find 

that the commission did not abuse its discretion in rejecting McCoy’s reports, and 

I would reverse the judgment of the court of appeals and deny the writ. 

 O’NEILL, J., concurs in the foregoing opinion. 

_________________ 

 Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and Daniel J. O’Brien, 

for appellee. 

Michael DeWine, Attorney General, and John R. Smart, Assistant Attorney 

General, for appellant. 

_________________