State v. Indus. Comm. 169

172 Ohio App. 3d 168, 2007 Ohio 3292

• Court: Ohio Court of Appeals
• Decided: June 28, 2007
• Docket: No. 06AP-391.
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] {¶ 1} In this original action, relator, Richard Pierron, asks this court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order denying him temporary total disability ("TTD") compensation on the grounds that he had voluntarily abandoned his employment with respondent Sprint/United Telephone Company ("employer") and to enter an order granting that compensation.

{¶ 2} The court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that this court grant a writ ordering the commission to adjudicate relator's claim. (Attached as an appendix.)

{¶ 3} In brief, relator sustained an industrial injury in 1973, when he fell from a telephone pole while working for the employer. After spinal-fusion surgery, he returned to a light-duty position with the employer in 1974. He worked in that light-duty position until 1997, when the employer informed relator that his position was being phased out and that he would be laid off. Relator took regular retirement and has since received a pension from the employer.

{¶ 4} As we detail below, relator presented evidence that after his retirement, he worked about five hours per week delivering flowers during some period of time in 1997 and 1998.

{¶ 5} On June 17, 2003, relator moved for the allowance of additional conditions and for TTD compensation. In support, he cited the June 5, 2003 report of Robert Fantasia, D.C., who had begun treating relator in 1990. Dr. Fantasia concluded that medical conditions beyond those allowed originally were present and that these conditions were the direct and proximate result of relator's 1973 injury. Gerald S. Steiman, M.D., also examined relator and concluded that relator's medical conditions created a significant work impairment.

{¶ 6} A district hearing officer ("DHO") issued an order allowing the additional conditions, granting TTD compensation beginning June 5, 2003, and finding that relator's departure from his 1997 and 1998 flower-delivery job was involuntary and related to his 1973 injury. Upon review, a staff hearing officer ("SHO") also allowed the additional conditions, but denied TTD compensation on grounds that relator's 1997 retirement was voluntary. On appeal, as detailed in the magistrate's decision, the commission denied TTD compensation, with one member dissenting.

{¶ 7} In this original action, the magistrate found that relator had not voluntarily left his employment when he retired in 1997. Having determined that relator had not abandoned his employment voluntarily, the magistrate recommended issuance of a writ ordering the commission to consider the medical evidence of relator's alleged disability.

{¶ 8} The employer submitted five objections, three of which essentially argue that the magistrate erred in determining that relator's retirement was involuntary. The commission similarly argued that relator's retirement was voluntary because it was unrelated to his injuries and was not employer-initiated, that relator abandoned the entire labor market when he retired, and that he was not eligible for TTD compensation.

{¶ 9} Under R.C. 4123.56(A), TTD compensation is awarded during the period of healing and recovery following an industrial injury. It is well established, however, that when a claimant's voluntary actions, rather than an industrial injury, cause a loss of wages, the claimant may not be eligible for TTD compensation regardless of whether he can show a temporary and total disability. State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376, 732 N.E.2d 355.

{¶ 10} In this case, the employer argues that relator's voluntary retirement in 1997, and not his industrial injury, caused his loss in wages; relator argued that the retirement was not voluntary. This court has previously explained the considerations involved in determining whether TTD compensation should be awarded to a claimant who alleges that he retired from a job involuntarily. In State ex rel. Williams v.Coca-Cola Ent., Inc., Franklin App. No. 04AP-1270, 2005-Ohio-5085, 2005 WL 2364957, at ¶ 8-9, affirmed,111 Ohio St.3d 491, 2006-Ohio-6112, 857 N.E.2d 136, we stated:

When dealing with TTD compensation, the first determination that must be made is whether or not the relator's departure from, or abandonment of, his employment was voluntary. If his abandonment was involuntary (which includes retirement taken because of industrial injuries), TTD compensation would be appropriate. State ex rel. Wooster College v. Gee, Franklin App. No. 03AP-389, 2004-Ohio-1898 [2004 WL 798452], at ¶ 36-37. On the other hand, if his abandonment was voluntary (which includes retirement for non-industrial injuries), TTD compensation is generally inappropriate.

The voluntary nature of relator's abandonment is a factual question which revolves around relator's intent at the time he retired. The Supreme Court of Ohio has directed: "All relevant circumstances existing at the time of the alleged abandonment should be considered. * * * The presence of such intent, being a factual question, is a determination for the commission." State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989), 45 Ohio St.3d 381, 383, 544 N.E.2d 677.

{¶ 11} Once it is determined that a claimant's retirement from a job was voluntary, an award of TTD compensation becomes less likely, but it is not precluded entirely. Instead, a claimant who voluntarily retired will be eligible to receive TTD compensation, pursuant to R.C. 4123.56, if he or she reenters the work force and, due to the original industrial injury, becomes temporarily and totally disabled while working at that new job. State ex rel. McCoy v. DedicatedTransport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305,776 N.E.2d 51, at ¶ 39-40.

{¶ 12} However, a claimant's complete abandonment of the entire work force will preclude TTD compensation altogether.Baker, 89 Ohio St.3d at 380, 732 N.E.2d 355; Stateex rel. Jones Laughlin Steel Corp. v. Indus.Comm. (1985), 29 Ohio App.3d 145, 147, 29 OBR 162,504 N.E.2d 451 ("voluntary retirement may preclude a claimant from receiving temporary total disability benefits to which he otherwise might be entitled, if by such retirement the claimant has voluntarily removed himself permanently from the work force"). This is so "because the purpose for which TTD was created (compensation for loss of income during temporary and total disability) no longer exists." Baker,89 Ohio St.3d at 380, 732 N.E.2d 355. Thus, we must consider not only whether a claimant's retirement from a specific job was voluntary, but also whether, by retiring, the claimant intended to abandon the entire work force.

{¶ 13} With these principles in mind, we turn to relator's claim, and the magistrate's conclusion, that relator's retirement was involuntary.

{¶ 14} The magistrate concluded that relator's retirement was involuntary because the employer gave relator a choice between a layoff and retirement, a choice the magistrate found to be no real choice at all. As the magistrate explained, inState ex rel. B.O.C. Group, Gen. Motors Corp. v. Indus.Comm. (1991), 58 Ohio St.3d 199, 202, 569 N.E.2d 496, the court found that an "employer-initiated departure is still considered involuntary as a general rule. * * * The lack of a causal connection between termination and injury has no bearing where the employer has laid off the claimant." We cannot disagree with this well-established principle: when an employer lays off an employee, the resulting departure is involuntary.

{¶ 15} Here, however, the employer did not lay off relator. Instead, the employer gave relator a choice between a layoff (an employer-initiated departure) and regular retirement (an employee-initiated departure). We cannot conclude (and note that the magistrate did not hold) that an employer's act of offering retirement as an alternative to a layoff creates an involuntary departure as a matter of law. Instead, consistent with Williams and the Ohio Supreme Court cases on which it relies, the voluntary nature of relator's retirement remains a factual question that "revolves around relator's intent at the time he retired." Williams, 2005-Ohio-5085, 2005 WL 2364957, at ¶ 9.

{¶ 16} In Williams, the commission had found the relator's retirement to be unrelated to his industrial injury and entirely voluntary. While the relator introduced evidence that his retirement was involuntary because it was related to his industrial injury to his left knee, this court concluded that "there was also some evidence that his retirement was unrelated to his left knee injuries. The choice between the two was properly made by the fact finder, and we will not now disturb that result." Id. at ¶ 12.

{¶ 17} The Ohio Supreme Court affirmed, stating:

An involuntary retirement does not foreclose [TTD] compensation. State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. But while [the claimant's] retirement may have been involuntary in the sense that it was due to circumstances beyond his control, it lacks the element that would preserve his eligibility for [TTD] compensation — a causal relationship to his industrial injury. Id. Accordingly, the commission did not abuse its discretion in denying [TTD] compensation.

Williams, 111 Ohio St.3d 491, 2006-Ohio-6112,857 N.E.2d 136, ¶ 8.

{¶ 18} Here, the commission made a factual determination that relator's retirement was voluntary based on two factors: first, whether the employer induced the retirement; and second, whether relator's industrial injuries caused him to retire.

{¶ 19} First, as to inducement by the employer, the commission found: "The injured worker's choice to retire was his own. He could have accepted a layoff and sought other work but he chose otherwise." Admittedly, there is little evidence in the stipulated record before us to support the commission's finding; in particular, our record does not include the hearing transcripts. And we note that a six-year delay between retirement and an application for benefits would impede any examination of a claimant's intentions at the time of retirement.

{¶ 20} Nevertheless, "we need only find some evidence in the record to support the commission's determination that relator's departure was voluntary." Williams, 2005-Ohio-5085, 2005 WL 2364957, at 1110. The commission's order cites "the evidence submitted by the parties and the evidence in the file." Before this court, the commission cites relator's own affidavit, which states that relator "took a `regular' retirement," albeit for reasons rejected by the commission. The commission also argues:

[Relator] could have chosen to force [the employer] to lay him off. In that case, he would have maintained his entitlement to [TTD] benefits, he would have been eligible for unemployment compensation benefits under [R.C. Chapter 4141] and, if he found work that paid less than he made at [the employer], he would be entitled to two hundred weeks of wage loss compensation (R.C. 4123.56). Alternatively, he could forego these possible benefits and choose to retire and receive a pension. The evidence before the Commission was that [relator] chose to retire.

{¶ 21} Questions of credibility and the weight to be given evidence are within the commission's discretion as fact-finder.State ex rel. Teece v. Indus. Comm. (1981),68 Ohio St.2d 165, 22 O.O.3d 400, 429 N.E.2d 433. Thus, while the evidence is sparse, we conclude that there is some evidence in the record to support the commission's determination that relator's retirement was voluntary.

{¶ 22} Second, as to whether relator's injuries caused the retirement, relator contends that his injuries prevented him from performing the lineman job he held when he was injured in 1973 and forced him to hold a light-duty position, which the employer phased out in 1997; thus, in relator's view, his 1973 injuries "caused" his 1997 retirement. We do not accept this attempt at establishing a causal connection, for purposes of TTD eligibility, between relator's injuries and his decision to retire. As the commission found, there is "no medical evidence in the file that the injured worker was temporarily disabled at the time he elected to retire from his job with this employer." Thus, the commission did not abuse its discretion in finding no causal connection between relator's injuries and his retirement, or in concluding that relator's retirement was voluntary.

{¶ 23} The commission's finding that relator's retirement was voluntary does not end the matter of TTD compensation, however. As we stated at the outset, only complete abandonment of the entire work force precludes subsequent TTD compensation altogether. And when a claimant demonstrates that subsequent to his voluntary retirement, he reentered the work force and suffered a temporary disability while on that new job, that claimant again becomes eligible for TTD compensation. Relator fails on both accounts.

{¶ 24} First, relator attempted to show that he did not intend to abandon the entire work force by presenting evidence that he re-entered the work force shortly after his retirement. Relator's affidavit states that he worked at a job delivering flowers from April 1997 to March 1998 and was paid $3.00 per hour for his work. A facsimile transmission from the flower business owner states that relator worked "for approximately 6 months. He made deliveries as needed; perhaps 5 hrs. a week." However, the commission found that this part-time work at below-minimum wages did not demonstrate relator's intent to remain in the work force, as the commission concluded that "there is no evidence whatsoever that the injured worker sought any viable work during any period of time since he retired."

{¶ 25} In State ex rel. McAtee v. Indus. Comm. (1996), 76 Ohio St.3d 648, 670 N.E.2d 234, the court noted that the commission had not explicitly addressed the issue of whether the claimant had abandoned the entire work force when it determined that the claimant was not entitled to permanent total disability compensation. Nevertheless, the court affirmed that denial, stating:

[T]he commission relied on all of the evidence in the file and adduced at the hearing, and that evidence can only lead to the conclusion that [the claimant] abandoned the work force. His early retirement and receipt of Social Security benefits, his application for pension benefits, and his failure to seek other employment following his departure from [employer], all demonstrate his intent to leave the labor force.

Id. at 651, 670 N.E.2d 234.

{¶ 26} Similarly, here, the commission relied on relator's decision to retire, rather than accept a layoff, as well as his failure to seek viable employment following his departure, as evidence of his intent to abandon the entire work force. Thus, there is some evidence to support the commission's finding that relator intended to abandon the entire work force when he retired in 1997 and that therefore he is not eligible for TTD compensation.

{¶ 27} But even if relator had not intended to abandon the work force entirely, his claim for TTD compensation would fail for two additional reasons. First, only claimants who are "gainfully employed" at the time of re-injury are again eligible for TTD compensation. McCoy,97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 40. Accord Stateex rel. Jennings v. Indus. Comm., 98 Ohio St.3d 288,2003-Ohio-737, 783 N.E.2d 898, at ¶ 5. Here, we agree with respondents that relator's part-time work delivering flowers — where the evidence shows that he worked about five hours per week for some period of time in 1997 and 1998, he earned less than minimum wage, and the "employer" made no withholdings — did not constitute "gainful employment" for these purposes.

{¶ 28} Our conclusion that relator did not reenter the work force is also consistent with numerous references in his medical records (including records from 1998 and 1999) that he stopped working when he retired in early 1997. See, e.g., November 16, 1998 Ohio Rehabilitation Services Commission teledictation report ("He last worked on 3/31/97"); April 1, 1999 report by David C. Randolph, M.D., M.P.H. ("He states he has had no other employment since" retiring in April 1997); March 4, 2002 report by Aivars Vitols D.O., Inc. ("Claimant's last date of work was March 1997"); July 23, 2003 report by Dr. Steiman ("He stopped working in March 1997").

{¶ 29} Furthermore, even if relator's work delivering flowers did amount to a re-entry into the work force, relator did not show that he suffered a disability at the new job. Recognizing that an employee who voluntarily retires can again become eligible for TTD benefits if he or she reenters the work force and becomes disabled at a subsequent job, the commission found "no medical evidence that the injured worker left his job at the flower shop due to the allowed conditions in the claim. In addition, there is no medical evidence supporting disability at the time of the injured worker's employment at the flower shop."

{¶ 30} We agree with these conclusions. Relator offers the June 5, 2003 report by Dr. Fantasia, which states that relator "has been totally disabled due to this injury since we have been treating [him,]" presumably since 1990, seven years before his retirement. Relator also offers his own affidavit, in which he states that his injuries forced him to quit the flower delivery work as his "low back pain and leg problems worsened."

{¶ 31} However, as the employer notes, relator offered no contemporaneous medical evidence to support his claim that he became disabled from his flower-delivery work. And with the exception of the October 2003 C-84 signed by Dr. Fantasia, none of the medical evidence in our record refers to a re-injury when relator worked delivering flowers or to an alleged inability to do this work. Thus, the commission did not abuse its discretion in determining that relator did not reenter the work force or suffer a new period of temporary disability while at a new job.

{¶ 32} For these reasons, we sustain the commission's objection and the employer's second, third, and fourth objections. In light of our decision, we conclude that we need not address the employer's first and fifth objections. We adopt the magistrate's findings of fact as our own, except to clarify the evidence relating to relator's part-time flower-delivery employment. We sustain objections to the magistrate's conclusions of law, as discussed above, and we deny the requested writ.

Objections sustained, and writ of mandamus denied.

KLATT, J., concurs.

BRYANT, J., concurs separately.