State ex rel. Kinnear Division v. Industrial Commission

77 Ohio St. 3d 258

Opinions

Alice Robie Resnick, J.

In any order granting or denying benefits, the commission must specifically state which evidence and only that evidence it relied upon to reach its conclusion, and briefly explain the reasoning or basis for its decision. This court will not search beyond the face of the commission’s order for some evidence to support its decision. State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245; State ex rel. Basham v. Consolidation Coal Co. (1989), 43 Ohio St.3d 151, 152, 541 N.E.2d 47, 48; State ex rel. Frigidaire Div., Gen. Motors Corp. v. Indus. Comm. (1988), 35 Ohio St.3d 105, 518 N.E.2d 1194, paragraphs one and two of the syllabus; State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, 6 OBR 531, 533-534, 453 N.E.2d 721, 724.

In State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm. (1994), 71 Ohio St.3d 139, 142, 642 N.E.2d 378, 380, we made it clear that “the need for adequate evidentiary explanation and identification [is not confined] to questions of pure award or denial of compensation. All matters affecting the rights and obligations of the claimant or employer merit an explanation sufficient to inform the parties and potentially a reviewing court of the basis for the commission’s decision.” (Emphasis sic.)

Retirement taken before an employee becomes permanently and totally disabled can affect the employee’s right to PTD compensation, “if the retirement is voluntary and constitutes an abandonment of the entire job market.” State ex rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 631 N.E.2d 138, paragraph two of the syllabus. Contrary to Druggan’s assertions, the mere fact that an employee is continuously disabled from the date of his injury until the day he retires does not, in itself, render the issue of retirement irrelevant. Baker makes clear that the determinative temporal event is the employee’s permanent total disability. Retirement taken while claimant is disabled, but not permanently and totally disabled, may still affect the claimant’s eligibility for PTD compensation. Thus, the nature and extent of a claimant’s pre-PTD retirement are issues upon which the commission’s order must provide adequate evidentiary explanation and identification.

Druggan applied for retirement on March 22,1990 and began receiving pension benefits in May 1990. It was not until approximately two years and five months later that a SHO on August 26, 1992, terminated .Druggan’s TTD compensation and issued an interlocutory order awarding PTD compensation. There is no evidence in the record to indicate that Druggan became permanently and totally disabled prior to his retirement. Druggan purports to have evidence of preretirement PTD by virtue of the report from Dr. Papp dated January 3, 1990, which, Druggan claims, shows that Dr. Papp “had already indicated that T do not feel that this patient is capable of sustained gainful employment.’ ” However, Druggan’s quotation is incomplete. Dr. Papp actually stated that he does “not feel that this patient is capable of sustained gainful employment as a tool and dye [sic ] maker.” (Emphasis added.)

Accordingly, it was incumbent upon the commission to determine whether Druggan’s retirement was “voluntary” and whether it “constitute^] an abandonment of the entire job market,” state the evidence on which it relied, and briefly explain the reasoning for its decision.

It was also incumbent upon the commission, in this case, to indicate in its order that it had considered all of the relevant vocational evidence submitted for review. In its April 7, 1993 order, the commission did not recite only that evidence upon which it relied. It also listed the evidence it considered. By so doing, the commission brought upon itself the obligation to indicate that it had indeed considered all relevant vocational evidence. State ex rel. Lovell v. Indus. Comm. (1996), 74 Ohio St.3d 250, 252-253, 658 N.E.2d 284, 287; State ex rel. Balvin v. Youghiogheny & Ohio Coal Co. (1994), 70 Ohio St.3d 163, 165, 637 N.E.2d 907, 908-909; State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327, 329, 631 N.E.2d 1057, 1059; State ex rel. Cupp v. Indus. Comm. (1991), 58 Ohio St.3d 129, 129-130, 568 N.E.2d 1214, 1215.

The commission’s April 7, 1993 PTD order is silent as to the nature and extent of Druggan’s retirement and, therefore, is deficient under Mitchell and Noll. Moreover, the order lists the evidence considered by the commission, but omits the vocational evidence from this list; thus, it is deficient under Fultz and Cupp. Accordingly, we affirm the appellate court’s decision and order the commission to enter a new order which addresses the retirement issue and indicates consideration of the vocational evidence, including the Parman & Associates, Inc. report and Dr. Riccio’s February 8,1993 response thereto. See fn. 2.

Druggan insists, however, that we should examine the transcript of the April 7, 1993 PTD proceedings to find the information we seek instead of remanding the cause. The rules surrounding the need for adequate evidentiary explanation and identification are not to be taken lightly. Their genesis and evolution occurred in response to a persistent bureaucratic problem involving frustratingly vague orders. Their purpose is a salutary one of ensuring that the parties have notice and the reviewing courts have something meaningful to review. The commission’s findings become the basis for allegation of error. Without clarity, the parties are afforded little or no insight into the basis for decision, and the reviewing court is severely hampered in its task of discerning whether the record supports the commission’s decision. See, generally, Noll, supra; Mitchell, supra. We are reluctant, therefore, to relax the requirements and allow the commission to be heard outside the strict confines of the particular order at issue.

This is not to say that there may never be an appropriate case in which to review a transcript of the decisional proceedings in lieu of remand.³ This, however, is not such a case. While the transcript discloses that three commissioners voted that retirement was involuntary in this case, it fails to disclose the reasoning for this decision, and certainly discloses no commonality in reasoning. Similarly, while the Parman & Associates vocational report was clearly submitted and argued on the record, the transcript does not disclose any questions by the commissioners in regard thereto, nor any statements of rejection or indication of consideration. Thus, it is necessary to remand the cause for further consideration.

In its cross-appeal, Harsco seeks a writ ordering the commission to deny Druggan’s PTD application. Harsco claims that there is not “some evidence” in the file to support an award of PTD compensation. In support, Harsco advances two arguments. The first argument is that since Druggan chose a “Normal Retirement Pension,” the evidence necessarily reflects that Druggan “voluntarily abandoned any possible desire to return to work at Harsco while he was still temporarily disabled from his work.”

The mere fact of retirement does not ipso facto preclude a claimant from receiving compensation. Voluntary retirement will bar compensation, but injury-induced or involuntary retirement will not. See Baker, supra, 69 Ohio St.3d 202, 631 N.E.2d 138, paragraphs two and three of the syllabus; State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678, syllabus; State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533, 535. In order for retirement to preclude PTD compensation, the retirement must be taken before the claimant became permanently and totally disabled, it must have been voluntary, and it must have constituted an abandonment of the entire job market. Baker, supra, paragraphs two and three of the syllabus.

Druggan was injured on February 26, 1986. His injury prevented him from returning to his former position at Harsco as a tool and die maker. Druggan had been disabled over a continuous four-year period when he applied for his retirement pension on March 22, 1990. He wrote on his pension application that February 25, 1986, the day before his injury, was the last day he had worked, because of “Workers [sic] Comp Disability.” These facts constitute some evidence that Druggan’s retirement was involuntary or injury-induced.

Furthermore, there are some questions regarding Druggan’s retirement that remain unexplored. Harsco’s claim that Druggan’s retirement was voluntary is based on the contention that Druggan chose normal retirement rather than disability retirement. In other words, Harsco reasons that if Druggan retired because of disability, he would have chosen disability retirement. This, of course, assumes that Druggan had a choice, i.e., that disability retirement was an available option. However, the only disability retirement listed as an option on the pension application was “Permanent Disability Retirement Pension.” (Emphasis added.) As Harsco has so carefully pointed out, however, Druggan was temporarily and totally disabled at the time of his application for pension benefits. Thus, depending upon the definition of “permanent” in the pension contract, disability retirement may not have been a viable option, thereby undercutting Harsco’s claim that Druggan’s retirement was voluntary by virtue of his having rejected that option.

Moreover, the record is silent as to whether and, if so, when Harsco moved to terminate TTD compensation payments to Druggan. As the record stands, Harsco continued to pay Druggan TTD compensation over the next two and one-half years following Druggan’s retirement, with no extent-of-disability motion pending. Yet, if Druggan’s retirement was voluntary, that fact alone would have precluded further TTD compensation. Since one would expect Harsco to have attempted in some way to terminate TTD compensation immediately following an employee’s voluntary retirement, an inquiry into why it had continued to pay Druggan for another two and one-half years may shed some light on the nature of Druggan’s pension retirement.

Last, regardless of whether Druggan’s retirement from Harsco was voluntary, there would still remain the issue of whether it constituted an abandonment of the entire job market.

In light of the foregoing, we conclude that there is some evidence to support a finding that Druggan’s retirement was not voluntary and/or did not constitute an abandonment of the entire job market. Accordingly, we affirm the judgment of the court of appeals as to this issue.

Harsco’s second argument is that Druggan’s application for PTD compensation must be denied because there was no medical evidence attached thereto which could support a finding of PTD. According to Harsco, Dr. Papp’s report is not evidence of PTD because he opined only that Druggan was incapable of working as a tool and die maker, and Dr. Guluzian’s report is defective because he “continued to repudiate or equivocate his opinion” that Druggan is permanently and totally disabled by simultaneously certifying Druggan as temporarily and totally disabled. Harsco, however, does not dispute that the other medical evidence in the record supports PTD. Instead, it argues that since former Ohio Adm.Code 4121 — 3—15(G)(1) (1986-1987 Ohio Monthly Record 917, 919) required medical evidence to be submitted in support of a PTD application, the commission “abused its discretion by processing Druggan’s unsupported claim, soliciting further medical evidence from a doctor of its own choosing, and setting the claim for hearing.”

Harsco’s second argument is fundamentally flawed. First, Harsco points to no rule providing that PTD applications filed without supportive medical evidence are void ab initio. Former Ohio Adm.Code 4121-3-15(G)(l) required each PTD application to “be accompanied by medical evidence to support it.” 1986-1987 Ohio Monthly Record at 917. It did not require, and Harsco has not cited any authority which requires, that PTD applications must be accompanied by the very medical evidence upon which the commission ultimately relies in granting the application. Absent such authority, there is no reason why the application and accompanying medical evidence cannot trigger the commission’s review, allowing the commission to ultimately rely on whatever evidence comes before it at the hearing. Thus, irrespective of whether the evidence attached to Druggan’s application supported his claim, the commission had before it some medical evidence to support its decision that Druggan was permanently and totally disabled.

The second flaw in Harsco’s argument is that Dr. Guluzian’s simultaneous PTD and TTD opinions are not an example of “equivocation,” but of procedural necessity, engendered by compliance with the “Eaton docket” procedures. Those procedures necessarily contemplate the filing of C-84s by the attending physician in order to continue TTD compensation pending hearing on the PTD application. The purpose of this procedure, which this court has endorsed, is to enable eligible claimants to begin to receive PTD compensation immediately upon termination of TTD compensation. See State ex rel. Blake v. Indus. Comm. (1992), 65 Ohio , 605 N.E.2d 23, 25; State ex rel. Ford Motor Co. v. Indus. Comm. (1992), 65 Ohio St.3d 17, 21-22, 599 N.E.2d 261, 265; State ex rel. Eaton Corp. v. Lancaster (1988), 40 Ohio St.3d 404, 534 N.E.2d 46. Thus, we decline to find any equivocation in Dr. Guluzian’s reports, and instead find his October 2, 1991 report to be some medical evidence of PTD upon which the commission properly relied.

Accordingly, we find the commission’s award of PTD compensation to Druggan to be supported by some medical evidence and affirm the court of appeals as to this issue.

In light of all the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., F.E. Sweeney, Pfeifer, Cook and Stratton, JJ., concur. Douglas, J., dissents.

3

. The situation may be different if there were a single SHO who rendered the final determination on the PTD application. In that ease, a transcript of the SHO’s comments may indeed prove useful in ascertaining the grounds for the order in lieu of remand. In fact, we have required this to be done in the interest of justice where it is necessary to ascertain the basis for a lower court’s judgment, despite the rule that the court speaks only through its judgment or journal entry. Thus, we have directed the examination of lower court opinions or decisions, as well as the transcript of proceedings which contain the trial judge’s comments, in order to ascertain the reasoning of the court in entering its judgment. Joyce u Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 551 N.E.2d 172, paragraph one of the syllabus; A.B. Jac., Inc. v. Liquor Control Comm. (1972), 29 Ohio St.2d 139, 58 O.O.2d 342, 280 N.E.2d 371, paragraph two of the syllabus; Pennington v. Dudley (1967), 10 Ohio St.2d 90, 39 O.O.2d 94, 226 N.E.2d 738, paragraph one of the syllabus; Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 58 O.O. 51, 131 N.E.2d 390, paragraphs three and four of the syllabus. If the transcript truly reflected the reasoning of the decision-maker on the determinative issues, and contained a statement of evidentiary reliance and/or consideration, it may amount to a vain act to remand the cause to the commission to ascertain that very information. See State ex rel. Rodriguez v. Indus. Comm. (1993), 67 Ohio St.3d 210, 214, 616 N.E.2d 929, 932. However, it is unlikely that this could ever occur in the case where the PTD application is considered by five commissioners.