State ex rel. AT & T, Inc. v. McGraw

895 N.E.2d 842, 120 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedOctober 15, 2008
DocketNo. 2007-1646
StatusPublished
Cited by5 cases

This text of 895 N.E.2d 842 (State ex rel. AT & T, Inc. v. McGraw) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. AT & T, Inc. v. McGraw, 895 N.E.2d 842, 120 Ohio St. 3d 1 (Ohio 2008).

Opinion

Per Curiam.

{¶ 1} Appellee David McGraw, now 78 years old, was declared permanently and totally disabled in 1986. Recognized by his rural community as an expert in muzzle-loading firearms, McGraw and his wife, Mary, have been muzzle-loading enthusiasts for decades, and much of their social life revolves around these activities. We must determine whether his involvement with Stumptown Muzzle-loading Supplies (“SMS”) after he was declared to be permanently and totally disabled warrants the termination of those benefits and a declaration of overpayment and fraud.

{¶ 2} SMS began in the mid-1980s when Mary was approached by a neighbor with the idea of building a shooting range on some of their adjoining land. In 1990, the McGraws’ garage was converted into a small machine shop with a counter/service area in front. The machines were owned first by Gary Parsons and later by Keith Phillips, who succeeded Parsons as SMS’s gunsmith.

{¶ 3} SMS was originally a three-person partnership of Mary McGraw, Gary Parsons, and Aan Shepherd. Ill health and travel distance eventually caused Parsons and Shepherd to leave the partnership, and by 1997, Mary was sole proprietor of SMS.

{¶ 4} Ml of the business, ammunition, and firearms licenses (and accounts) were in Mary’s name. McGraw and Mary were listed as “responsible persons” for the Bureau of Mcohol, Tobacco, Firearms, and Explosives, meaning they had “the power to direct the management and policies of the applicant pertaining to explosive materials.” Mary testified that her husband’s designation was technical and was confined to the handling of black powder.

[2]*2{¶ 5} SMS did not advertise and did not have a phone. There was only a sign outside with the SMS name and McGraw’s nickname, which was included because of his local name recognition. Hours were posted on the door in compliance with federal firearms-licensing requirements.

{¶ 6} Gary Parsons stated that McGraw “tinkered around” in the shop a lot. McGraw confirmed that he enjoyed being in the shop most days because he “could talk to the guys that come in. Friends would come in.” There is no evidence that McGraw did any machine work or gunsmithing. Parsons stated that Parsons did most of the work involving the building of muzzle-loaders. Phillips eventually took over those duties when Parsons left. Additional testimony revealed that McGraw, who was renowned for making muzzle-loaders, including the parts, by hand, did not know how to make them by machine. Moreover, he has end-stage glaucoma in both eyes and has been legally blind since 1998.

{¶ 7} Bureau investigators posing as gun enthusiasts twice visited SMS. These visits consisted primarily of small talk about guns and ammo. McGraw discussed some pistols that he had recently sold and invited one of the investigators to bring in an allegedly defective gun, telling them he would “take a look at it.” He also sold a small item to the investigators on each occasion.

{¶ 8} Financially, investigation revealed that the SMS bank account listed Mary as sole proprietor. Bank records did not show any transfer from the business account to the McGraws’ personal account, and there were no checks written from the business account to McGraw.

{¶ 9} Appellant, AT & T, Inc., the amenable employer in this case, filed a motion for termination of compensation and declarations of fraud and overpayment with appellee Industrial Commission of Ohio. Before a staff hearing officer, AT & T argued that McGraw’s activities were incompatible with his receipt of permanent total disability compensation. The staff hearing officer was not persuaded. In a lengthy order, the hearing officer found that McGraw’s activities were neither remunerated nor inconsistent with his physical restrictions. The staff hearing officer was ultimately persuaded by “claimant’s assertion that he was merely keeping busy with permitted sedentary activity related to a hobby he has had for over 50 years” and concluded that McGraw “was not engaged in nor capable of sustained remunerative employment from 05/02/1997 to date.” (Emphasis sic.) Reconsideration was denied.

{¶ 10} AT & T filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion in failing to terminate permanent total disability compensation and declare overpayment and fraud. AT & T argued that if McGraw could interact with customers for free as a hobby, he could do so for pay, and was thus capable of sustained remunerative employment. The court of appeals disagreed, holding that there was no [3]*3evidence that McGraw was capable of engaging in the disputed activities on a sustained basis. The writ was accordingly denied. State ex rel. AT & T, Inc. v. McGraw, Franklin App. No. 06AP-1103, 2007-Ohio-3794, 2007 WL 2153210.

{¶ 11} This cause is now before this court on appeal as of right.

{¶ 12} Permanent total disability compensation cannot be paid to a claimant who is (1) engaged in sustained remunerative employment, (2) medically able to engage in sustained remunerative employment, or (3) engaged in activities so medically inconsistent with the purported disability as to impeach the medical evidence underlying the award. State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, ¶ 16. AT & T does not allege that McGraw was paid for his activities, nor does it allege that those activities are medically incompatible with the claimed disability. It instead relies on Lawson’s second criterion and argues that if McGraw can perform these activities as a volunteer, he is medically capable of doing them for pay. This activity, according to AT & T, demonstrates a medical capacity for sustained remunerative employment that should bar permanent total disability compensation.

{¶ 13} Two responses have been offered. The first is that McGraw’s activities do not constitute work. The second is that even if they do, there is no evidence that McGraw can do them on a sustained basis. The commission relied on the former, the court of appeals on the latter, and both have merit.

{¶ 14} Addressing the commission’s position first, two cases are particularly meaningful. Lawson was also a case involving the termination of permanent total disability compensation and involved a claimant who had performed civic, but largely sedentary, activities in connection with his position as a village councilman. The bureau learned of this situation in the claimant’s small community and succeeded in having permanent total disability compensation stopped.

{¶ 15} In reinstating compensation, we addressed the mentality that seemed to underlie the commission’s termination order:

{¶ 16} “One of the most enduring (though not often explicitly stated) misconceptions about PTD is that once it is granted, the recipient must thereafter remain virtually housebound. This is a fallacy. PTD exempts no one from life’s daily demands. Groceries must be purchased and meals cooked. Errands must be run and appointments kept. The yard must be tended and the dog walked. Where children are involved, there may be significant chauffeur time. For some, family and friends shoulder much of the burden. Others, on the other hand, lack such support, leaving the onus of these chores on the PTD claimant.

{¶ 17} “These simple activities can nevertheless often generate considerable controversy.

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Bluebook (online)
895 N.E.2d 842, 120 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-at-t-inc-v-mcgraw-ohio-2008.