State ex rel. Washington v. Indus. Comm. , 2015 Ohio 3897 ( 2015 )

[Cite as State ex rel. Washington v. Indus. Comm., 2015-Ohio-3897.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Elizabeth A. Washington,
:
Relator,
:
v. No. 14AP-445
:
Industrial Commission of Ohio and (REGULAR CALENDAR)
Montgomery County, :
Respondents. :
D E C I S I O N
Rendered on September 24, 2015
E.S. Gallon & Associates, and Corey L. Kleinhenz, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Mathias H. Heck, Jr., Prosecuting Attorney, Todd M.
Ahearn and Jonathan A. Ketter, for respondent Montgomery
County.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Elizabeth A. Washington, commenced this original action in
mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate its order denying her application for permanent total disability
("PTD") compensation, which was based on a finding that she voluntarily abandoned the
workforce, and to enter an order that adjudicates her PTD application on its merits.
No. 14AP-445 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found: (1) a
medical inability to return to her former position of employment at respondent,
Montgomery County ("employer"), precluded a commission finding that relator
voluntarily abandoned her employment based on the principle set forth in State ex rel.
Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996); (2) the staff hearing officer's
order does not comply with Ohio Adm.Code 4121-3-34(D)(1)(d); and (3) the commission
abused its discretion in determining that relator voluntarily abandoned the workforce
subsequent to her retirement. Therefore, the magistrate has recommended that we grant
relator's request for a writ of mandamus.
{¶ 3} Both the commission and the employer have filed objections to the
magistrate's decision. The basis for their objections is very similar. Because all of the
objections are closely related, we will address them together.
{¶ 4} Respondents' principal argument is that the magistrate erred by
substituting his judgment for that of the commission in determining whether relator's
retirement was a voluntary abandonment of the workforce for reasons unrelated to her
industrial injury. We agree.
{¶ 5} If an injured worker voluntarily abandons the entire workforce, the injured
worker is not eligible for PTD compensation. State ex rel. Cinergy Corp./Duke Energy v.
Heber, 130 Ohio St.3d 194, 2011-Ohio-5027, ¶ 5; State ex rel. Baker Material Handling
Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994), paragraph two of the syllabus.
However, if the abandonment of the workforce is caused by the industrial injury, the
claimant can receive PTD compensation. State ex rel. Hart v. Indus. Comm., 10th Dist.
No. 12AP-77, 2013-Ohio-1155. The voluntary nature of abandonment of the workforce is a
factual question within the commission's final jurisdiction. State ex rel. Krogman v. B &
B Ents. Napco Flooring, LLC, 10th Dist. No. 14AP-477, 2015-Ohio-1512.
{¶ 6} Here, the commission carefully considered the evidence in determining that
relator's retirement constituted a voluntary abandonment of the workforce and was not
caused by her industrial injury. There is substantial evidence to support the commission's
determination.
No. 14AP-445 3
{¶ 7} It is undisputed that at the time she decided to retire, relator had been
released to work with temporary restrictions by Dr. Lehner. (Medco-14 form, Mar. 26,
2012.) Relator withdrew from her rehabilitation program because she was retiring.
Relator admitted that she did not receive any medical advice that she should retire from
the workforce due to her industrial injury. Dr. Lehner's Medco-14 form is medical
evidence, contemporaneous with relator's retirement, that indicates she was capable of
sustained remunerative employment at the time of her retirement. Relator made no
subsequent attempt to reenter the workforce. The commission questioned relator during
the hearing and assessed her motivation for retiring in light of the medical evidence.
Therefore, there is some evidence supporting the commission's decision that relator's
retirement constituted the voluntary abandonment of the workforce and was not caused
by her industrial injury.
{¶ 8} The fact that relator was receiving wage continuation at the time of her
retirement does not require a different result. Receipt of wage continuation or temporary
total disability ("TTD") compensation does not preclude a finding that a claimant has
voluntarily abandoned the workforce for reasons unrelated to his or her injury. Moreover,
voluntarily abandoning the workforce precludes PTD compensation even if the departure
from the position of employment is injury induced. State ex rel. Corman v. Allied
Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579, ¶ 7; State ex rel. Lackey v. Indus.
Comm., 129 Ohio St.3d 119, 2011-Ohio-3089, ¶ 11; State ex rel. Roxbury v. Indus. Comm.,
138 Ohio St.3d 91, 2014-Ohio-84, ¶ 11. We note that the commission's order expressly
states that "the Injured Worker's application must be denied due to her abandonment of
the entire job market by virtue of her retirement from this Employer effective
06/12/2012."
{¶ 9} Respondents also argue that Pretty Prods. does not preclude the application
of the voluntary abandonment doctrine under the circumstances presented here. We
agree. Unlike Pretty Prods., which involved TTD compensation and a voluntary
abandonment of employment based on termination due to a post-injury work-rule
violation, the case at bar involves a retirement and abandonment of the workforce, and
then a subsequent application for PTD compensation. Therefore, Pretty Prods. is
inapplicable.
No. 14AP-445 4
{¶ 10} Lastly, respondents object to the magistrate's conclusion that the
commission's order "strongly suggests" that the commission did not consider all of the
evidence submitted regarding relator's medical condition at or near the time of retirement
as required by Ohio Adm.Code 4121-3-34(D)(1)(d). Respondents essentially contend that
this conclusion is another example of the magistrate improperly substituting his judgment
for that of the commission by relying on evidence that the commission found
unpersuasive. We agree with respondents.
{¶ 11} It is well-established that the commission need only enumerate the evidence
relied upon to reach its decision. State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio
St.3d 481, 483-84 (1983). Generally, the commission is not required to list or cite
evidence that has been considered and rejected or explain why certain evidence was
deemed unpersuasive. Courts have recognized an exception to this general rule when it is
clear that the commission intended to list all the evidence before it, but omits a particular
document from that list. In these situations, courts may presume that the document was
overlooked. State ex rel. Scouler v. Indus. Comm., 119 Ohio St.3d 276, 2008-Ohio-3915,
¶ 16-18.
{¶ 12} The magistrate notes that the commission fails to identify and discuss Dr.
Lehner's March 26, 2012 office note. In this office note, Dr. Lehner discusses both
relator's intention to retire in the near future and her concern that she might not be able
to perform all aspects of her job duties if she were to return to her position of
employment. Relator expressed concerned that she might not be capable of helping out in
dealing with a combative special needs client. Dr. Lehner states that "I cannot really fault
her for that at this point." Referencing the state of her rehabilitation, Dr. Lehner states
that relator "probably could go back to work pretty soon. I would still put her on some
restrictions."
{¶ 13} The magistrate takes issue with the commission's finding that there is no
medical evidence that a physician advised relator to retire from the workforce. According
to the magistrate, this finding indicates that the commission did not consider Dr. Lehner's
March 26, 2012 office note. The magistrate interprets Dr. Lehner's statement that "I
cannot really fault her for that at this point," as referring to her intention to retire and as
"consistent with and similar to an advisement to retire." Because there is no mention or
No. 14AP-445 5
discussion of this office note in the commission's order, the magistrate concludes that the
commission did not consider it, thereby violating Ohio Adm.Code 4121-3-34(D)(1)(d).
{¶ 14} We fail to discern from the commission's order that it intended to list all the
evidence before it. Therefore, we see no reason to deviate from the general rule that the
commission need only enumerate the evidence it relied upon to support its decision.
There was no need for the commission to identify and discuss Dr. Lehner's office note if it
did not rely upon it. We also agree with respondents that the magistrate improperly
substituted his judgment for that of the commission by interpreting the meaning and
impact of Dr. Lehner's March 26, 2015 note, particularly with respect to whether it
reflects an advisement to abandon the workforce due to her industrial injury. At most, the
comment refers only to the circumstances of relator's current employment. Because the
commission did not rely upon this office note, it had no obligation to identify or discuss it.
Because we presume the commission considered all evidence before it, we agree with
respondents that the commission's order does not violate Ohio Adm.Code 4121-3-
34(D)(1)(d).
{¶ 15} Because there is some evidence to support the commission's decision that
relator voluntarily abandoned the workforce, the commission did not abuse its discretion
when it denied relator PTD compensation. Therefore, we sustain respondents' objections.
{¶ 16} Following an independent review of this matter, we find that the magistrate
improperly substituted his judgment for that of the commission in determining that
relator's abandonment of the workforce was caused by her industrial injury. We adopt the
magistrate's findings of fact but not his conclusions of law. Accordingly, we deny relator's
request for a writ of mandamus.
Objections sustained; writ of mandamus denied.
LUPER SCHUSTER, J., concurs.
TYACK, J., dissents.
TYACK, J. dissenting.
{¶ 17} Since I agree with our magistrate's analysis of the pertinent issues, I
respectfully dissent.
{¶ 18} There is no indication that Elizabeth A. Washington could resume the
employment she had before she was injured. She would have immediately been entitled
No. 14AP-445 6
to temporary total disability ("TTD") compensation but, instead, entered into agreements
under which her wages were continued and her accumulated sick leave was used.
{¶ 19} Washington started a work conditioning program and physical therapy.
These are not the actions of a woman who is abandoning the workforce. At the same time,
she had serious doubts that she could physically handle combative patients, which was
part of her job.
{¶ 20} Finally, she moved for TTD. Soon thereafter, she had a third back surgery.
In May 2013, a commission specialist found that she had reached maximum medical
improvement. Stated in lay terms, she was not going to get significantly better anytime
soon. As a result, five months later yet, she applied for permanent total disability
compensation ("PTD").
{¶ 21} In November 2013, as a result of the filing for PTD, a different commission
specialist reported that she was capable of sedentary activity with a long list of
restrictions. In the meantime, she had applied for payment of the retirement benefits she
had earned with the Ohio Public Employees Retirement System ("OPERS"). The fact that
she applied for benefits she had earned through membership in OPERS, does not tell you
that she abandoned the entire workforce, let alone voluntarily abandoned the workforce
over six months before her third back surgery. This raises the question of exactly when
Washington supposedly abandoned the workforce, an issue not really addressed at the
Industrial Commission. I also note Washington testified at her hearing that she could not
continue working as a result of her injuries. Her treating physician of many years agreed.
{¶ 22} I would return this case to the Industrial Commission of Ohio with
instructions to determine if Elizabeth Washington is entitled to PTD compensation. I
would adopt our magistrate's detailed and well-written decision. Since the majority of
this panel does not do so, I dissent.
No. 14AP-445 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Elizabeth A. Washington,
:
Relator,
:
v. No. 14AP-445
:
Industrial Commission of Ohio and (REGULAR CALENDAR)
Montgomery County, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on March 18, 2015
E.S. Gallon & Associates, and Corey L. Kleinhenz, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Mathias H. Heck, Jr., Prosecuting Attorney, Todd M.
Ahearn and Jonathan A. Ketter, for respondent Montgomery
County.
IN MANDAMUS
{¶ 23} In this original action, relator, Elizabeth A. Washington, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying her application for permanent total disability ("PTD") compensation on
grounds that she voluntarily abandoned the workforce, and to enter an order that
adjudicates the application based upon the merits of the medical and non-medical
No. 14AP-445 8
evidence submitted on the application absent the finding of a voluntary abandonment of
the workforce.
Findings of Fact:
{¶ 24} 1. On April 27, 1999, relator injured her lower back while employed as a
"workshop specialist" for respondent Montgomery County, a state-fund employer.
2. The industrial claim (No. 99-385310) is allowed for:
Sprain lumbar region, bilateral; sprain of right hand;
aggravation of degenerative spondylolisthesis L4-5; stenosis
at L3-4; facet arthritis; impingement L3 nerve root, lumbar;
bilateral foraminal stenosis at L5-S1.
{¶ 25} 3. On July 26, 2003, relator underwent low back surgery performed by
orthopedic surgeon James K. Lehner, M.D. In his operative report, Dr. Lehner describes
the operation:
Decompression, L4-L5, posterior spinal fusion, L4-L5, with
spine length rods, right iliac crest bone graft.
{¶ 26} 4. On September 7, 2011, Dr. Lehner performed a second surgery to the low
back. In his operative report, Dr. Lehner describes the operation:
[One] Extension of previous L4 to L5 fusion to L3 with 360-
degree fusion with interbody graft with PEEK EBI graft and
array rods with revision of previous SpineLink rods to array
rods.
[Two] Decompression bilaterally at L3-L4 with partial
facetectomies.
{¶ 27} 5. On September 8, 2011, Dr. Lehner completed a C-84 on which he
certified temporary total disability from September 6, 2011 to and estimated return to
work date of February 23, 2012. In response to the C-84 queries, Dr. Lehner indicated
that relator cannot return to her former position of employment nor can she return to
other employment.
{¶ 28} 6. Following the September 7, 2011 surgery, relator briefly returned to
transitional duty at Montgomery County, but this ended in December 2011.
{¶ 29} 7. In early March 2012, relator and her employer executed a "Salary
Continuation Agreement" on form C-55 in which it was agreed that relator's full
No. 14AP-445 9
salary/wages would be paid in lieu of temporary total disability ("TTD") compensation
from February 27 to March 23, 2012.
{¶ 30} 8. In early April 2012, relator and her employer executed another C-55
form on which it was agreed that relator's full salary/wages would be paid in lieu of TTD
compensation from March 24 to April 20, 2012.
{¶ 31} 9. Apparently, following the payment of salary/wage continuation, relator
was paid sick leave. However, in an affidavit executed by relator on September 12, 2012,
relator states that she was "placed on sick leave as of February 27, 2012" and "was paid
sick leave through May 31, 2012."
{¶ 32} 10. Earlier, on February 28, 2012, Chris McGlaughlin, Physical Therapist
and Clinical Director of Sports Therapy, Inc., reported to Dr. Lehner:
Ms. Washington has completed 5.5 weeks of her prescribed
work-conditioning program and 4 weeks of her active
physical therapy program. Ms. Washington has
demonstrated a good level of effort and compliance
throughout. * * *
Ms. Washington remains appropriate for continued skilled
care in order to achieve the remaining functional goals and
maximize her employability.
***
Plan: Continue with a work-conditioning program on a
schedule of 4-5x/ week for 2.5 weeks. A functional re-
assessment will be completed in ~2 weeks in order to assure
adequate progress towards stated goals and make additional
recommendations as required, such as progression into a
work-hardening program.
Prognosis: Good
{¶ 33} 11. On March 26, 2012, relator visited Dr. Lehner for further evaluation.
Dr. Lehner reported:
Ms. Washington returned today and there were a few things
that we had to talk about with her back. She is possibly going
to retire here in the near future. She does not feel that she
can do the kind of work that she has been doing with the
special needs clients tha[t] she deals with because, every
once in a while, one will get combative and she does not
No. 14AP-445 10
think that she can handle them. She is going to try to seek
retirement. We have an evaluation with the work hardening
people and they say that she has maxed out well enough that
she probably could go back to work pretty soon. I would still
put her on some restrictions. The problem is just the
situation where there is a possibly combative person. It could
be somebody in the room that she is working with or even
the one next door and she is called over to help out and she
just does not feel that she is capable of doing that. I cannot
really fault her for that at this point.
***
ASSESSMENT/PLAN: * * * I will see her back again in three
months. A lot of things have changed as far as her retirement
situation. Right now, she is apparently applying for all of this
to be done now and, if she does, there may be some
significant changes between now and three months from
now.
{¶ 34} 12. On March 26, 2012, Dr. Lehner completed a "Physician's Report of
Work Ability" on a form provided by the Ohio Bureau of Workers' Compensation
("bureau"). The form is designated as the Medco-14. Thereon, Dr. Lehner indicated that
relator may return to work with restrictions from April 1 to June 30, 2012 and that the
restrictions were temporary. One of the restrictions was no lifting of over 20 pounds.
{¶ 35} 13. On March 26, 2012, the Ohio Public Employees Retirement System
("OPERS") received relator's retirement application.
{¶ 36} 14. By letter dated March 29, 2012, OPERS informed relator:
Your Traditional Pension Plan retirement application was
received March 26, 2012. Unless you were paid for time you
worked beyond the date indicated on your application for
retirement, your benefit is effective on June 1, 2012. * * *
You have selected Single Life Benefit as the payment plan.
This benefit will be paid to you throughout your life only and
terminates at your death with no further payment.
{¶ 37} 15. The record contains a "Vocational Rehabilitation Closure Report,"
which is a form ("RH-21") provided by the bureau. On April 2, 2012, the bureau closed
relator's rehabilitation case as indicated by an RH-21 completed by relator's case manager
Cindi Gilloti. The RH-21 closure report states:
No. 14AP-445 11
Ms. Washington participated in active PT through Sports
Therapy in Englewood. She was compliant with her
attendance and demonstrated good effort. She made steady
gains through her PT program and the therapist indicated
that she would be ready to start work conditioning earlier
than anticipated. Ms. Washington stated agreement with this
and she transitioned into the work conditioning program.
Through the work conditioning program, Ms. Washington
did notice an increase in her pain symptoms. She increased
her hours of attendance, work tasks and days of
participation. The therapists worked with her to try to
decrease her pain through exercise and also decreased her
number of days of participation per week for a period of
time. The therapist also provided her a TNS unit to trial [sic]
while she was participating in the program and she stated
that she did feel this was beneficial to her. Her [physician of
record] has requested purchase of a TNS unit.
Ms. Washington reported that although she noted significant
improvement in her strength, endurance and overall physical
conditioning, she started to question whether she was going
to be able to maintain the physical demands of her job on a
daily basis. She reported that she spoke to the HR
rep[resentative] through Montgomery County and learned
that because she is 64 and has 21 years of service, she was
eligible to apply for retirement. Ms. Washington reported
that she was considering toward the end of her work
conditioning program, but did not make a final decision and
apply for these services until she completed work
conditioning. Ms. Washington did not receive Living
Maintenance while she was in the vocational rehabilitation
plan as she utilized her sick leave through her [employer of
record] for her pay while in this program.
This case manager met with Ms. Washington and her
[physician of record] on 3/26/12 and he provided a release to
return to work with restrictions. This case manager
forwarded this Medco-14 to Ms. Washington's [employer of
record], even though Ms. Washington did state her intention
to apply for retirement. Jodi Fair, Montgomery County,
stated that they do not have a position available within her
restrictions and indicated an awareness that Ms. Washington
filed a request for retirement. At this time, Ms. Washington's
retirement application has been approved and her
retirement through Montgomery County will be effective
No. 14AP-445 12
6/1/12. Per the [employer of record], Ms. Washington will
remain on sick leave until her retirement benefits begin.
{¶ 38} 16. On June 12, 2012, Dr. Lehner completed another C-84 based upon his
most recent examination of March 26, 2012. On the C-84, Dr. Lehner certified TTD from
September 6, 2011 to an estimated return to work date of September 10, 2012.
{¶ 39} 17. On June 25, 2012, relator visited Dr. Lehner. Dr. Lehner reported:
Mrs. Washington came back today and she has some
complaints with her back. However, the thing that really
worries me today is that she has complaints of numbness on
the whole right side of her body and her grip strength does
not seem all that good to me on the right hand. She does not
give any incident of one particular time that there was some
problem, but she acts like she has some weakness that I
would even have to say could be a stroke. She has no
problem with vision and she does not notice any troubles on
the left side and it is just more of a feeling of numbness and
soreness on the whole right side of her body. I can only tell
that her grip strength seems a little bit weak to me. She walks
around and I cannot limit this to saying that the right side is
worse than the left with ambulation, but she just walks with
a shuffling-type gait here in the office.
I have a feeling that we have to rule out if something is going
on, particularly with her head, but also her cervical spine
with the numbness going out to the right hand.
***
ASSESSMENT/PLAN: With the arm and the leg getting
more numbness, I have to look into an area that could cause
troubles with these and that would be a cervical spine and
head MRI. I ordered that today and we will get that back.
{¶ 40} 18. On August 21, 2012, citing the June 12, 2012 C-84 from Dr. Lehner,
relator moved for TTD compensation starting June 1, 2012. In further support, relator
cited to State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996).
{¶ 41} 19. On September 13, 2012, the bureau issued an order awarding TTD
compensation beginning June 1, 2012. Citing Dr. Lehner's C-84, the order briefly
explains: "[t]he injured worker is entitled to Temporary total compensation in relation to
the Pretty Products Court Case."
No. 14AP-445 13
{¶ 42} 20. Apparently, the September 13, 2012 bureau order was not
administratively appealed.
{¶ 43} 21. On November 21, 2012, relator underwent a third low back surgery
performed by Dr. Lehner. In his operative report, Dr. Lehner describes the operation:
"Bilateral partial facetectomy and foraminotomy at L5-S1."
{¶ 44} 22. On May 20, 2013, Dr. Lehner wrote:
Elizabeth returned today. She is in a situation in which she
has what I would identify as chronic pain. Her back is
bothering her mainly here and she has low back pain. She
has had degenerative troubles with her back in the past and I
think that we are in a situation now that everything is what I
would call complicated, but pretty much chronic at this
point.
{¶ 45} 23. On May 23, 2013, at the bureau's request, relator was examined by
James Sardo, M.D. In his five-page narrative report, Dr. Sardo opines:
In my medical opinion, the injured worker has reached
maximum medical improvement. She has undergone three
back surgeries and continues to experience persistent back
pain. She likely will require ongoing maintenance treatment
with pain management to maintain her current level of
function. However, at this point, I would not expect any
fundamental, functional, or physiologic change within a
reasonable medical probability in spite of continuing medical
or rehabilitative procedures.
***
The injured worker would be unable to return to her former
position of employment.
{¶ 46} 24. On July 1, 2013, the bureau issued an order that terminates TTD
compensation effective May 19, 2013 based upon Dr. Lehner's May 20, 2013 report. The
bureau determined that the injured worker had reached maximum medical improvement
("MMI").
{¶ 47} 25. Apparently, the July 1, 2013 bureau order was not administratively
appealed.
{¶ 48} 26. On August 13, 2013, Dr. Lehner wrote:
No. 14AP-445 14
Elizabeth has been a patient of mine for many years. I have
treated her for spondylolisthesis and spinal stenosis. She has
had three surgeries by me in the past. Based on my
treatment, observation, examinations and her previous three
surgeries I do feel that she is indeed permanently and totally
disabled.
{¶ 49} 27. On August 19, 2013, relator filed an application for PTD compensation.
{¶ 50} 28. On November 18, 2013, at the commission's request, relator was
examined by James B. Hoover, M.D. In his five-page narrative report dated
November 19, 2013, Dr. Hoover opined:
She is restricted to a sedentary level of physical activity, with
limited standing and walking, only a few minutes at one time
up to two hours per eight-hour day. She would have no
bending, stooping, crawling, or climbing. She would be
capable of lifting up to 10 lbs. on an occasional basis. There
would be no restrictions for the right wrist or hand.
{¶ 51} 29. In December 2013, Dr. Hoover completed a commission form on which
he indicated by his mark that relator is capable of "sedentary work."
{¶ 52} 30. Following a March 5, 2014 hearing, a staff hearing officer ("SHO")
issued an order denying the PTD application solely on eligibility grounds. That is, the
SHO determined that relator not only voluntarily abandoned her employment at
Montgomery County, but she also voluntarily abandoned the workforce. The SHO did not
render a determination of residual functional capacity, Ohio Adm.Code 4121-3-34(B)(4),
although the report of Dr. Hoover was discussed. Because residual functional capacity
was not determined, the SHO did not consider the non-medical factors as set forth at
Ohio Adm.Code 4121-3-34(D)(2)(b).
{¶ 53} 31. The SHO's order of March 5, 2014 explains:
After full consideration of the issue, it is the order of the Staff
Hearing Officer that the [sic] Ms. Washington's IC-2
Application for Permanent Total Disability Compensation
benefits filed 08/19/2013 be denied.
Ms. Washington was injured in the course of and arising out
of her employment as a work shop specialist on 04/27/1999
when she slipped at work injuring her right hand and her
back.
No. 14AP-445 15
In support of her application, Ms. Washington has submitted
a brief medical report from her treating physician, Dr. James
Lehner, dated 08/13/2013. Ms. Washington has also
submitted a vocational rehabilitation assessment from Mr.
Stephen Phillips dated 01/21/2014.
The Injured Worker was examined at the request of the
Industrial Commission of Ohio by Dr. James B. Hoover on
11/18/2013 with regard to her pending permanent total
disability application. In the opinion of Dr. Hoover, the
allowed conditions in the claim have reached maximum
medical improvement and are permanent with a resulting
20% whole person impairment.
Dr. Hoover further opined that the Injured Worker is
capable of work at a sedentary level.
Both parties to this proceeding acknowledged that the
allowed conditions in the claim have reached maximum
medical improvement and are permanent.
At today's hearing, the Employer's legal counsel raised as
part of its defense to Ms. Washington's application the
argument that her "voluntary" retirement from employment
bars her present permanent total disability application. Ohio
Revised Code, section 4123.58(D)(3).
The Staff Hearing Officer is persuaded, based upon the
preponderance of evidence in file and adduced at hearing,
that the Injured Worker's application must be denied due to
her abandonment of the entire job market by virtue of her
retirement from this Employer effective 06/01/2012.
As noted by the Ohio Supreme Court on a number of
occasions, an Injured Worker's eligibility for permanent total
disability compensation may be affected if the Injured
Worker is voluntarily retired or abandoned the job market
for reasons not related to the industrial injury. State ex rel.
Baker Material Handling Corp. v. Indus. Comm., 69
Ohio St.3d 202 (1994) and State ex rel. Black v. Indus.
Comm., 137 Ohio St.3d 75 (2013).
The courts of Ohio have recognized a two-part test for
determining whether a pre-permanent total disability
retirement bars an application for permanent total disability
benefits. This test requires that a determination be made
whether the Injured Worker's retirement was injury induced,
and whether the Injured Worker intended to abandon the
No. 14AP-445 16
entire job market. Medical evidence is most relevant in
regard to the first prong of this analysis. Evidence of
subsequently attempted work and/or job search is most
relevant in regard to the second aspect of this analysis.
When evidence of voluntary removal or retirement is
brought into issue, the Hearing Officer shall consider
evidence that is submitted of the Injured Worker's medical
condition at or near the time of removal/retirement. Ohio
Administrative Code 4121-3-34(D)(1)(d).
After conducting a thorough review of the Injured Worker's
file, and after having queried the Injured Worker regarding
her retirement decision, the Staff Hearing Officer finds that
there is no medical evidence that the Injured Worker was
advised to retire due to this industrial injury by her treating
physicians. The Injured Worker acknowledged the absence
of such medical evidence at today's hearing.
The only document submitted to file by the parties regarding
the Injured Worker's retirement application is a letter dated
03/29/2012 from Ohio PERS. The letter, which is addressed
to the Injured Worker, advised her that her "Traditional
Pension Plan retirement application was received
March 26, 2012." The letter goes on to advise the Injured
Worker that her retirement was effective June 1, 2012.
The Staff Hearing Officer further finds that the medical
evidence and vocational rehabilitation evidence, at and near
the time of the Injured Worker's retirement does not
establish that her retirement was based upon a disability
arising from this industrial injury.
By MEDCO-14 dated 03/26/2012, the Injured Worker's
treating physician, Dr. James Lehner released her to return
to work with restrictions for a period commencing
04/01/2012 and continuing through an estimated
06/30/2012. The Staff Hearing Officer finds that Dr.
Lehner's release to return to restricted employment was
consistent with the sports therapy report dated 02/28/2012.
According to that report, addressed to Dr. Lehner, the
Injured Worker had completed five and a half weeks of
prescribed work conditioning and four weeks of active
physical therapy. According to physical therapist
McGlaughlin, the Injured Worker demonstrated a "good
level of effort and compliance throughout." He further
opined that the Injured Worker "remains appropriate for
No. 14AP-445 17
continued skilled care in order to achieve the remaining
functional goals and maximize her employability."
The Injured Worker's vocational rehabilitation file was
closed effective 04/02/2012 for the reason that she "chose to
retire." A review of the closed report finds no reference
whatsoever to any recommendation by Dr. Lehner or any
other treating physician that the closure of her case was
necessary due to a medical reasons [sic].
In his report dated 06/25/2012, Dr. Lehner notes that the
Injured Worker continued to have problems and weakness,
but that he was unsure of the cause. At that time, he
recommended a cervical spine and head MRI. Again, there is
no recommendation at that point by Dr. Lehner that the
Injured Worker should retire due to disability.
A review of the file further affirms that the Employer did not
have employment within the restrictions stated by Dr.
Lehner. The record further affirms that because there was no
employment available with the Employer of record within
the stated restrictions of Dr. Lehner, the Injured Worker
decided to remain on sick leave until her retirement benefits
were to commence. There is no medical evidence from that
time supporting the need for the Injured Worker to retire
due to any disability arising from this claim.
The primary evidence relied upon by the Injured Worker in
arguing that her retirement was based upon disability, and
thus related to her industrial injury was her testimony today.
The Injured Worker testified that: "I know in my heart I
couldn't work," and "that it was due to my injury." The
Injured Worker testified that she thus decided to retire due
to her injury. The Injured Worker also testified that she has
made no effort whatsoever at returning to any employment
since her retirement.
The Staff Hearing Officer does not find the bare testimony of
the Injured Worker to be persuasive in the face of the
documentary record from the time at and near the time of
her retirement which establishes clearly her retirement was
non-disability related.
Based upon the foregoing evidence and analysis, the Staff
Hearing Officer orders that the Injured Worker's application
for permanent total disability compensation be denied due to
No. 14AP-445 18
her voluntary abandonment of employment consisting of her
retirement.
This order is based upon the evidence and analysis set forth
herein, as well as upon the statutory authority and code
provision cited herein, and the case authority cited herein.
(Emphasis sic.)
{¶ 54} 32. On April 16, 2014, the three-member commission mailed an order
denying relator's request for reconsideration of the SHO's order of March 5, 2014.
{¶ 55} 33. On June 3, 2014, relator, Elizabeth A. Washington, filed this mandamus
action.
Conclusions of Law:
{¶ 56} Three issues are presented: (1) whether a medical inability to return to her
former position of employment at Montgomery County precluded a commission finding
that relator voluntarily abandoned her employment based upon the principle set forth in
Pretty Prods. and its progeny, (2) whether the SHO's order complies with Ohio Adm.Code
4121-3-34(D)(1)(d)'s requirement that "the adjudicator shall consider evidence that is
submitted of the injured worker's medical condition at or near the time of
removal/retirement," and (3) whether the commission abused its discretion in
determining that relator voluntarily abandoned the workforce subsequent to her
retirement at Montgomery County.
{¶ 57} The magistrate finds: (1) a medical inability to return to her former position
of employment at Montgomery County precluded a commission finding that relator
voluntarily abandoned her employment based upon the principle set forth in Pretty
Prods. and its progeny, (2) the SHO's order does not comply with Ohio Adm.Code 4121-3-
34(D)(1)(d), and (3) the commission abused its discretion in determining that relator
voluntarily abandoned the workforce subsequent to her retirement at Montgomery
County.
{¶ 58} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
No. 14AP-445 19
Basic Law
{¶ 59} Paragraph two of the syllabus of State ex rel. Baker Material Handling
Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994), states:
[Two] An employee who retires prior to becoming
permanently and totally disabled is precluded from eligibility
for permanent total disability compensation only if the
retirement is voluntary and constitutes an abandonment of
the entire job market.
Id. at 202.
{¶ 60} Ohio Adm.Code 4121-3-34(D) sets forth the commission's guidelines for the
adjudication of PTD applications.
{¶ 61} Ohio Adm.Code 4121-3-34(D)(1)(d), states:
If, after hearing, the adjudicator finds that the injured
worker voluntarily removed himself or herself from the work
force, the injured worker shall be found not to be
permanently and totally disabled. If evidence of voluntary
removal or retirement is brought into issue, the adjudicator
shall consider evidence that is submitted of the injured
worker's medical condition at or near the time of
removal/retirement.
{¶ 62} The commission may characterize retirement as voluntary based on a lack
of contemporaneous medical evidence of disability. State ex rel. Cinergy Corp./Duke
Energy v. Heber, 130 Ohio St.3d 194, 2011-Ohio-5027, ¶ 7. However, it is not required to
do so because there may be other evidence that substantiates the connection between
injury and retirement. Id.{¶ 63} This court has held that the commission may find that a retirement was
injury-induced in the absence of evidence that a physician advised the worker to retire.
State ex rel. Hart v. Indus. Comm., 10th Dist. No. 12AP-77, 2013-Ohio-1155, ¶ 14, citing
this court's decision in State ex rel. Black v. Indus. Comm., 10th Dist. No. 10AP-1168,
2012-Ohio-2589, ¶ 18, reversed on other grounds State ex rel. Black v. Indus. Comm., 137
Ohio St.3d 75, 2013-Ohio-4550; State ex rel. AT&T Teleholdings, Inc. v. Indus. Comm.,
10th Dist. No. 11AP-369, 2012-Ohio-3380, ¶ 19.
{¶ 64} Two related cases involving TTD compensation are relevant here to the
commission's adjudication of the PTD application.
No. 14AP-445 20
{¶ 65} In Pretty Prods., TTD compensation was denied on voluntary abandonment
grounds. Claimant, Maxine Dansby, had been terminated from her employment for her
failure to produce a medical excuse slip that extended her disability. In granting a writ of
mandamus ordering the commission to clarify its earlier order, the Pretty Prods. court
pronounced:
The timing of a claimant's separation from employment can,
in some cases, eliminate the need to investigate the character
of departure. For this to occur, it must be shown that the
claimant was already disabled when the separation occurred.
"[A] claimant can abandon a former position or remove
himself or herself from the work force only if he or she has
the physical capacity for employment at the time of the
abandonment or removal." State ex rel. Brown v. Indus.
Comm. (1993), 68 Ohio St.3d 45, 48, 623 N.E.2d 55, 58.
Id. at 7.
{¶ 66} In State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71,
2008-Ohio-499, the court clarified the rationale set forth in Pretty Prods. and explained
the relationship to State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d
401 (1995):
Pretty Prods. was decided shortly after Louisiana–Pacific.
In Pretty Prods., we held that the character of the employee's
departure—i.e., voluntary versus involuntary—is not the only
relevant element and that the timing of the termination may
be equally germane. In Pretty Prods., we suggested that a
claimant whose departure is deemed voluntary does not
surrender eligibility for temporary total disability
compensation if, at the time of departure, the claimant is still
temporarily and totally disabled. Id., 77 Ohio St.3d at 7, 670
N.E.2d 466; State ex rel. OmniSource Corp. v. Indus.
Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41,
¶ 10. Thus, even if a termination satisfies all three
Louisiana–Pacific criteria for being a voluntary termination,
eligibility for temporary total disability compensation
remains if the claimant was still disabled at the time the
discharge occurred.
Id. at ¶ 10.
No. 14AP-445 21
First Issue
{¶ 67} Relator argues that the bureau's September 13, 2012 order awarding TTD
compensation beginning June 1, 2012—an order that was not administratively appealed—
bars the commission from determining that she voluntarily abandoned her employment
at Montgomery County when it is undisputed that her OPERS retirement began June 1,
2012. Relator cites to Pretty Prods. for support of the argument. Relator further argues
that the principles of res judicata and collateral estoppel require that the commission give
effect to the bureau's TTD award in the adjudication of the PTD application.
{¶ 68} Relator's argument is flawed because the record undisputedly shows that
the retirement application was received by OPERS on March 26, 2012, some two months
prior to the bureau's TTD award. Thus, relator's decision to retire was obviously made on
or before March 26, 2012. In fact, relator discussed her retirement decision at her March
26, 2012 visit with Dr. Lehner.
{¶ 69} However, the record undisputedly shows that relator and her employer
executed two agreements for salary/wage continuation covering the period from February
27 to April 20, 2012. In the view of the magistrate, the execution of the salary/wage
continuation agreement bars the commission from finding a voluntary abandonment of
employment under the rationale set forth in Pretty Prods. and Reitter Stucco.
{¶ 70} Accordingly, based upon the above analysis, it is clear that the commission
abused its discretion in finding that relator voluntarily abandoned her employment at
Montgomery County.
Second Issue
{¶ 71} The second issue, as earlier noted, is whether the SHO's order complies with
Ohio Adm.Code 4121-3-34(D)(1)(d)'s requirement that "the adjudicator shall consider
evidence that is submitted of the injured worker's medical condition at or near the time of
removal/retirement."
{¶ 72} The magistrate finds that the SHO's order of March 5, 2014 strongly
suggests that the March 26, 2012 report (office note) of Dr. Lehner was not considered
even though it is clearly evidence of relator's medical condition at or near the time of
relator's decision to retire. Again, the March 26, 2012 report, states:
No. 14AP-445 22
Ms. Washington returned today and there were a few things
that we had to talk about with her back. She is possibly going
to retire here in the near future. She does not feel that she
can do the kind of work that she has been doing with the
special needs clients tha[t] she deals with because, every
once in a while, one will get combative and she does not
think that she can handle them. She is going to try to seek
retirement. We have an evaluation with the work hardening
people and they say that she has maxed out well enough that
she probably could go back to work pretty soon. I would still
put her on some restrictions. The problem is just the
situation where there is a possibly combative person. It could
be somebody in the room that she is working with or even
the one next door and she is called over to help out and she
just does not feel that she is capable of doing that. I cannot
really fault her for that at this point.
{¶ 73} Given that the March 26, 2012 report of Dr. Lehner is not mentioned in the
SHO's order of March 5, 2014, the following portions of the order strongly suggest that
the March 26, 2012 report of Dr. Lehner was not considered.
{¶ 74} The 12th paragraph of the SHO's order (as quoted above), states in full:
After conducting a thorough review of the Injured Worker's
file, and after having queried the Injured Worker regarding
her retirement decision, the Staff Hearing Officer finds that
there is no medical evidence that the Injured Worker was
advised to retire due to this industrial injury by her treating
physicians. The Injured Worker acknowledged the absence
of such medical evidence at today's hearing.
{¶ 75} The 17th paragraph of the SHO's order states in full:
In his report dated 06/25/2012, Dr. Lehner notes that the
Injured Worker continued to have problems and weakness,
but that he was unsure of the cause. At that time, he
recommended a cervical spine and head MRI. Again, there is
no recommendation at that point by Dr. Lehner that the
Injured Worker should retire due to disability.
{¶ 76} The 18th paragraph of the SHO states in full:
A review of the file further affirms that the Employer did not
have employment within the restrictions stated by Dr.
Lehner. The record further affirms that because there was no
employment available with the Employer of record within
the stated restrictions of Dr. Lehner, the Injured Worker
decided to remain on sick leave until her retirement benefits
No. 14AP-445 23
were to commence. There is no medical evidence from that
time supporting the need for the Injured Worker to retire
due to any disability arising from this claim.
{¶ 77} Pertinent here is the decision of the Supreme Court of Ohio in State ex rel.
Scouler v. Indus. Comm., 119 Ohio St.3d 276, 2008-Ohio-3915, wherein it held that a
commission order denying TTD compensation was an abuse of discretion for the failure to
consider Dr. Gutheil's questionnaire. The court explained:
The second concern relates to the commission's lack of
reference to Dr. Gutheil's questionnaire. Under most
circumstances, such an omission would be inconsequential.
As appellees correctly indicate, the commission need only
enumerate the evidence relied upon to reach its decision.
State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio
St.3d 481, 483–484, 6 OBR 531, 453 N.E.2d 721. The
commission is not required to list or cite evidence that has
been considered and rejected or explain why certain
evidence was deemed unpersuasive. State ex rel. DeMint v.
Indus. Comm. (1990), 49 Ohio St.3d 19, 20, 550 N.E.2d 174.
There is, however, an important exception to this general
rule. When the commission, for whatever reason, elects to
list all evidence before it, but omits a particular document
from that recitation, we will presume that the document was
overlooked. State ex rel. Fultz v. Indus. Comm. (1994), 69
Ohio St.3d 327, 329, 631 N.E.2d 1057. If that document
could influence the outcome of the matter in question, we
will return the matter to the commission for further
consideration. Id.The order now at issue does not contain an actual itemized
list of the evidence as Fultz did. Nevertheless, the order
states, "All relevant evidence was reviewed and considered."
In addition, the order did discuss all of the evidence
presented except for Dr. Gutheil's questionnaire. We
consider this to be significant, because the tenor of the
commission's order is that there is no evidence that certifies
disability before September 20, 2005. But Dr. Gutheil's
responses do allege disability prior to that date, so it is
important that the commission also consider that document.
Id. at ¶ 16-18.
No. 14AP-445 24
{¶ 78} Analysis begins with the observation that the SHO states there is no medical
evidence that a physician advised relator to retire when Dr. Lehner states in his March 26,
2012 report following a discussion of relator's decision to retire: "I cannot really fault her
for that at this point."
{¶ 79} Arguably, it can be said that Dr. Lehner did not actually advise relator to
retire. Nevertheless, his stated agreement with her retirement decision is consistent with
and similar to an advisement. To state that there is no physician advisement to retire
without a mention of the March 26, 2012 report strongly suggests that the report was not
considered.
{¶ 80} Moreover, the SHO's order is flawed for suggesting that a physician's
advisement to retire is a prerequisite for a finding of an involuntary retirement. This
court has held to the contrary. Hart.
{¶ 81} In the 17th paragraph of the order, the SHO is focused upon the June 25,
2012 report of Dr. Lehner issued weeks after the June 1, 2012 effective date of the
retirement and months after the March 26, 2012 retirement discussion with Dr. Lehner.
Under the circumstances, one would not expect Dr. Lehner to recommend retirement
after the retirement became effective. Thus, the 17th paragraph of the order is seriously
flawed for suggesting that the lack of a recommendation in the June 25, 2012 report of Dr.
Lehner is evidence that the retirement was not injury-induced.
{¶ 82} In the 18th paragraph of the order, the SHO seems to state that there is no
contemporaneous medical evidence supporting an injury-induced retirement during the
time relator was on sick leave. Relator was paid sick leave through May 31, 2012.
Apparently, she was placed on sick leave following the April 20, 2012 termination of the
salary/wage continuation agreement, although the sick leave start date is not entirely
clear. In any event, the March 26, 2012 report of Dr. Lehner is clearly medical evidence of
an injury-induced retirement that is contemporaneous with the date of the actual
retirement decision. Accordingly, the 18th paragraph of the SHO's order is seriously
flawed.
{¶ 83} Based upon the above analysis, the magistrate concludes that the
commission abused its discretion by failing to comply with Ohio Adm.Code 4121-3-
No. 14AP-445 25
34(D)(1)(d)'s requirement that "the adjudicator shall consider evidence that is submitted
of the injured worker's medical condition at or near the time of removal/retirement."
Third Issue
{¶ 84} The third issue, as previously noted, is whether the commission abused its
discretion in determining that relator voluntarily abandoned the workforce subsequent to
her retirement at Montgomery County.
{¶ 85} In the March 5, 2014 order, following the determination that relator's
abandonment of her employment at Montgomery County was not injury-induced and
therefore was voluntary, the SHO further determined that relator voluntarily abandoned
the workforce based upon relator's hearing testimony "that she made no effort whatsoever
at returning to any employment since her retirement."
{¶ 86} Relator's retirement was effective June 1, 2012. On November 21, 2012,
some five to six months after the effective retirement date, relator underwent her third
low back surgery performed by Dr. Lehner. On August 19, 2013, some nine months after
her third low back surgery, relator filed her PTD application.
{¶ 87} Moreover, the SHO's order never actually adopted the November 18, 2013
report of Dr. Hoover who opined that the allowed conditions of the industrial claim
medically permit sedentary work.
{¶ 88} Thus, the question before the SHO was whether relator, who at best can
only perform sedentary work, could be expected to search for sedentary employment
during the period beginning June 1, 2012 to August 19, 2013, a period of some 14-15
months when, during the period, she underwent major low back surgery as a result of her
industrial injury.
{¶ 89} The SHO's order of March 5, 2014, is seriously flawed for failing to consider
the impact of relator's third low back surgery on her ability to search for, at best,
sedentary employment. Accordingly, the SHO's determination that relator abandoned the
workforce was an abuse of discretion.
{¶ 90} In rendering the above analysis, the magistrate relies upon State ex rel.
Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, and its progeny.
No. 14AP-445 26
{¶ 91} In Pierron, the claimant, Richard Pierron, chose to retire in 1997 after
Sprint/United informed him that his light-duty warehouse position was being eliminated
and that he was not being offered an alternate position. The Pierron court recognized
that Pierron did not initiate his departure from Sprint/United and that there was no
causal relationship between his industrial injury and his departure from Sprint/United.
Because Pierron chose not to seek other employment following his retirement, the court
held that he had voluntarily abandoned the workforce. By his own inaction over the years
following his separation from Sprint/United, Pierron evinced an intent to leave the
workforce.
{¶ 92} In AT&T Teleholdings, following the commission's award of TTD
compensation, the employer filed a mandamus action in this court. In upholding the
commission's award despite the employer's claim that the claimant (Deborah Warner)
had voluntarily abandoned the workforce, this court compared the facts in that case with
those in Pierron. This court noted that, in Pierron, a four-year period expired between
retirement and the claim for a new period of TTD. This court pointed out that, in the case
at bar, only one year had passed between the claimant's retirement and the proposed
effective date of the claimant's second period of TTD during which the evidence supports
the conclusion that the claimant continued to experience injury-related pain and
decreased range of motion. Id. at ¶ 33, fn2.
{¶ 93} Accordingly, based upon the above analysis, the magistrate concludes that
the commission abused its discretion in determining that relator voluntarily abandoned
the workforce subsequent to her retirement at Montgomery County.
{¶ 94} Accordingly, for all of the above reasons, it is the magistrate's decision that
this court issue a writ of mandamus ordering the commission to vacate the March 5, 2014
order of its SHO that denied relator's application for PTD compensation and to enter an
order consistent with this magistrate's decision that determines whether relator
voluntarily abandoned the workforce, and if not, renders a determination on the merits of
the application.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 14AP-445 27
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).