State ex rel. Floyd v. Formica Corp. (Slip Opinion) ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Floyd v. Formica Corp., Slip Opinion No. 2014-Ohio-3614.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-3614THE STATE EX REL. FLOYD, APPELLANT, v. FORMICA CORPORATION ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as State ex rel. Floyd v. Formica Corp.,
Slip Opinion No. 2014-Ohio-3614.]
Workers’ compensation—Temporary-total-disability compensation—Voluntary
abandonment of the work force—Court of appeals’ judgment denying a
writ of mandamus affirmed.
(No. 2013-0042—Submitted May 13, 2014—Decided August 27, 2014.)
APPEAL from the Court of Appeals for Franklin County, No. 11AP-928,
2012-Ohio-5769.
____________________
Per Curiam.
{¶ 1} The claimant-appellant, Darwin Floyd, applied for temporary-total-
disability compensation in 2010, almost ten years after he had left his
employment with appellee Formica Corporation. Appellee Industrial
Commission determined that Floyd was no longer eligible to receive temporary-
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total-disability compensation because he had abandoned the entire job market
when he left Formica and retired. The commission denied his application.
{¶ 2} Floyd sought relief in mandamus in the Tenth District Court of
Appeals. The court of appeals concluded that the commission had not abused its
discretion, because the evidence supported its decision that Floyd had voluntarily
abandoned the workforce in 2001 after his employment with Formica ended. The
court denied Floyd’s request for an extraordinary writ.
{¶ 3} We agree and affirm the judgment of the court of appeals.
Facts
{¶ 4} On March 11, 2000, Darwin Floyd was injured while working for
the Formica Corporation, a self-insured employer. A worker’s compensation
claim was allowed for various shoulder conditions. Following surgery on his left
shoulder, he returned to light-duty work in September 2000, until his light-duty
assignment ended on January 21, 2001. At that time, Formica no longer had any
position to accommodate Floyd’s medical restrictions, so he began receiving
temporary-total-disability compensation. Shortly afterward, Floyd, at age 63,
applied for and began receiving Social Security retirement benefits, effective
April 2001.
{¶ 5} Floyd’s temporary-total-disability compensation continued until
June 21, 2006, when the commission determined that his condition had reached
maximum medical improvement and terminated his compensation.1 A year later,
he applied for permanent-total-disability benefits but withdrew his application.
Following additional surgery on July 18, 2008, Floyd began receiving temporary-
1
“Maximum medical improvement” is defined as “a treatment plateau * * * at which no
fundamental functional or physiological change can be expected within reasonable medical
probability in spite of continuing medical or rehabilitative procedures.” Ohio Adm.Code 4121-3-
32(A)(1). Temporary-total-disability compensation terminates when a claimant reaches maximum
medical improvement. R.C. 4123.56.
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total-disability compensation until the commission concluded that his condition
had again reached maximum medical improvement on May 26, 2009.
{¶ 6} Floyd’s current request for temporary-total-disability
compensation followed surgery on November 26, 2010. A staff hearing officer
denied his request, finding that Floyd was ineligible because he was not in the
workforce as of November 26, 2010. The order stated:
The Staff Hearing Officer notes that in 2001, the Injured Worker
was working for the Employer on a light duty basis when the Self-
Insuring Employer informed the Injured Worker they no longer
had light duty work available for him. The Staff Hearing Officer
finds that the Injured Worker was placed on temporary total
disability and later was found to have reached maximum medical
improvement for the recognized conditions in the claim. The
Injured Worker testified that he had not worked anywhere since he
had stopped working in 2001 when there was no light duty work
available. He applied for and began receiving social security
retirement benefits in May, 2001. Although the Injured Worker
testified at the hearing he would have kept working for the
Employer if light duty work had remained available, he
acknowledged he did not attempt to return to work anywhere else
after 2001.
{¶ 7} The hearing officer found that there was no evidence that Floyd
had tried to find any employment since 2001. According to the hearing officer,
who cited State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-
5245, 896 N.E.2d 140, Floyd’s failure to look for any other employment was
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evidence that he did not intend to reenter the workforce after leaving Formica,
thus making him ineligible for further compensation. The commission agreed.
{¶ 8} Floyd filed a complaint for a writ of mandamus. A magistrate
determined that it was “insufficient for the commission to find that [Floyd] has
not worked or searched for work since 2001 without reliance upon medical
evidence that relator was medically capable of employment.” 2012-Ohio-5769,
¶ 85. The magistrate recommended that the court issue a writ ordering the
commission to appropriately determine Floyd’s eligibility for temporary-total-
disability compensation.
{¶ 9} In a split decision, the court of appeals sustained objections to the
magistrate’s decision filed by the commission and Formica. The appellate court
concluded that in light of the claimant’s having received Social Security
retirement benefits in 2001, the commission had properly addressed the issue of
voluntary abandonment. The court further concluded that the evidence supported
the commission’s decision that Floyd intended to voluntarily abandon the
workforce in 2001 when his employment with Formica ended. The court denied
the writ.
{¶ 10} The dissenting judge agreed with the magistrate that the case
should be returned to the commission to determine whether Floyd was medically
capable of working after his light-duty position ended.
{¶ 11} Floyd’s appeal is before this court as of right.
Legal Analysis
{¶ 12} To be entitled to extraordinary relief in mandamus, Floyd must
establish that he has a clear legal right to the relief requested and that the
commission has a clear legal duty to provide it. State ex rel. Rouch v. Eagle Tool
& Machine Co., 26 Ohio St.3d 197, 198, 498 N.E.2d 464 (1986). To do so, Floyd
must demonstrate that the commission abused its discretion by entering an order
not supported by the evidence in the record. State ex rel. Avalon Precision
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January Term, 2014
Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846 N.E.2d
1245, ¶ 9. Thus, the issue before the court is whether the commission’s order
denying temporary-total-disability compensation was supported by evidence in
the record that Floyd had voluntarily abandoned the entire job market and was no
longer eligible for compensation when he applied in 2010.
A. Temporary Total Disability
{¶ 13} R.C. 4123.56 provides for compensation for temporary total
disability when an industrial injury prevents a claimant from performing the
duties of his position of employment. State ex rel. Baker v. Indus. Comm., 89
Ohio St.3d 376, 380, 732 N.E.2d 355 (2000). The purpose is to compensate the
injured worker for lost earnings during a period of disability while an injury heals.
State ex rel. Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 2013-
Ohio-4538, 998 N.E.2d 442, ¶ 14.
B. Effect of Abandonment of Employment on Eligibility
{¶ 14} An injured worker’s eligibility for temporary-total-disability
compensation depends not only on whether the claimant is unable to perform the
duties of the position of employment, but also on whether the claimant continues
to be a part of the active workforce. Baker at 380. Because temporary-total-
disability compensation is intended to compensate an injured worker for the loss
of earnings while the industrial injury heals, a claimant who is no longer part of
the workforce can have no lost earnings. Pierron, 120 Ohio St.3d 40, 2008-Ohio-
5245, 896 N.E.2d 140, ¶ 9; State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d
42, 43-44, 517 N.E.2d 533 (1987).
{¶ 15} A claimant who voluntarily retires for reasons unrelated to the
industrial injury may no longer be eligible for temporary-total-disability
compensation to which he otherwise might be entitled if, by retiring, he has
voluntarily removed himself permanently from the workforce. Baker at 383.
Moreover, if the departure is related to the industrial injury, “it is not necessary
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for the claimant to first obtain other employment, but it is necessary that the
claimant has not foreclosed that possibility by abandoning the entire workforce”
in order to remain eligible for temporary-total-disability compensation. State ex
rel. Lackey v. Indus. Comm., 129 Ohio St.3d 119, 2011-Ohio-3089, 950 N.E.2d
542, ¶ 11; Baker at 383-384.
{¶ 16} Thus, the critical issue for postretirement eligibility for temporary-
total-disability compensation is whether the injured worker permanently
abandoned the entire job market after retirement. This is a factual question for the
commission that depends primarily on what the claimant intended. State ex rel.
Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio St.3d 381, 383, 544
N.E.2d 677 (1989). The commission may infer a claimant’s intent “ ‘ “from
words spoken, acts done, and other objective facts.” ’ ” Id., quoting State v.
Freeman, 64 Ohio St.2d 291, 297, 414 N.E.2d 1044 (1980), quoting United States
v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). The commission must consider all
relevant circumstances existing at the time of the alleged abandonment, including
evidence of the claimant’s intention to abandon the work place as well as acts by
which the intention is put into effect. Id.C. Inaction or Failure to Seek Employment as Evidence of Abandonment
{¶ 17} A claimant’s failure to search for other employment following
retirement may be evidence that he or she has permanently abandoned the entire
workforce. Pierron, 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140, ¶ 10.
In Pierron, the claimant was working in a light-duty position when his employer
gave him the option to retire or be laid off. Pierron retired and, other than a brief
part-time job, never worked again. Six years after he retired, Pierron filed for
temporary-total-disability compensation. The commission concluded that he was
no longer eligible because he had voluntarily abandoned his employment. This
court upheld the commission’s decision. The court reasoned that Pierron’s failure
to search for employment in the years that followed his retirement was evidence
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that he had intended to leave the entire workforce; thus, he could not allege that
any lack of income was due to his industrial injury. Id., ¶ 10-11.
{¶ 18} In Lackey, 129 Ohio St.3d 119, 2011-Ohio-3089, 950 N.E.2d 542,
this court agreed with the commission that the claimant’s failure to look for work
in the 17 months after he retired from his former position was evidence that he
had retired from the entire labor market. Id., ¶ 12. The court reasoned that when
Lackey filed for retirement, there was no evidence that he was medically unable
to work, id, ¶ 13; thus, he would have been eligible for postretirement temporary-
total-disability compensation only if he were gainfully employed elsewhere and
unable to perform the duties of that job because of his industrial injury, id., ¶ 15.
{¶ 19} Likewise, in State ex rel. Corman v. Allied Holdings, Inc., 132
Ohio St.3d 202, 2012-Ohio-2579, 970 N.E.2d 929, the claimant voluntarily retired
from employment while he was receiving temporary-total-disability compensation
for a 2002 industrial injury. When his condition reached maximum medical
improvement (and compensation was terminated by law), he did not obtain other
work. In 2009, Corman applied to have temporary-total-disability compensation
reinstated, but the commission denied his request on the basis that he had
voluntarily retired and never again looked for work. This court agreed, reasoning
that like Pierron, Corman chose to not work; consequently, he could not allege a
loss of wages as the result of his industrial injury. Id., ¶ 7.
{¶ 20} The commission’s findings in the case before us are consistent
with those in Pierron, Lackey, and Corman. Like Corman, Floyd was receiving
temporary-total-disability compensation when he began receiving retirement
benefits. Both Corman and Floyd eventually reached maximum medical
improvement. Neither produced evidence that he was medically unable to
perform other work and neither made any effort to find other employment. The
commission, consistent with Pierron, found that neither one remained eligible for
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temporary-total-disability compensation, because they had permanently
abandoned the workforce.
D. The Commission’s Order was Supported by the Evidence
{¶ 21} Floyd contends that he was not required to look for work while he
was receiving temporary-total-disability compensation and that during those
periods he was not receiving compensation, he was not medically able to work.
The numerous surgeries he underwent after leaving Formica in 2001, he argues,
prevented him from performing any gainful employment.
{¶ 22} There is no requirement under R.C. 4123.56 that a claimant must
search for alternative employment during periods of temporary total disability,
and the commission’s order did not impose such a duty on Floyd. Nevertheless,
even for those periods after the commission found that his condition had reached
maximum medical improvement in 2006 and in 2009, there was no evidence that
Floyd intended to reenter the workforce.2 Floyd even applied for permanent total
disability in 2007, but later withdrew his application.3
{¶ 23} Instead, the evidence demonstrates that when Floyd left Formica
he was medically capable of light-duty work. Floyd had been performing light-
duty work at Formica until the position was no longer available. He began
receiving temporary-total-disability compensation because he could not return to
his former position at Formica and Formica had no light-duty position available.
2
The commission twice determined that Floyd’s condition reached maximum medical
improvement—in 2006 and 2009. A third-party administrator for Formica had agreed to pay
temporary-total-disability compensation in 2008 following an additional surgery. It does not
appear from the record that the issue of voluntary abandonment was raised at that time. Each
application is considered separately, and the claimant is required to establish temporary total
disability at the time of each application. See State ex rel. Yellow Freight Sys., Inc. v. Indus.
Comm., 81 Ohio St.3d 56, 689 N.E.2d 30.
3
“Permanent total disability” is the inability to perform sustained remunerative employment as a
result of the allowed conditions in the claim. Ohio Adm.Code 4121-3-34(B)(1).
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But there was no medical evidence at that time that he was no longer capable of
doing light-duty work.
{¶ 24} The evidence further demonstrated that he applied for and began
receiving retirement benefits. Within months of leaving Formica, Floyd applied
for Social Security retirement benefits, although he was receiving temporary-
total-disability compensation at the time. He was not required to apply for Social
Security benefits; rather, this was a personal choice. Had Floyd intended to return
to the workforce after leaving Formica, he had no reason to file for retirement
benefits at that time.
{¶ 25} The evidence also demonstrates that he chose not to seek other
work when his temporary-total-disability compensation terminated. After he
began receiving retirement benefits in 2001, Floyd did not look for other
employment before applying for temporary-total-disability compensation in 2010.
When he reached maximum medical improvement and his temporary-total-
disability compensation was statutorily terminated, Floyd had a choice to either
search for other work or to no longer work. He admitted that he did not attempt to
work anywhere else.
{¶ 26} Thus, the court of appeals properly determined that the
commission’s order was supported by evidence in the record that Floyd had
already abandoned the entire workforce when he applied for temporary-total-
disability compensation in 2010.
{¶ 27} Consequently, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Casper & Casper and Douglas W. Casper, for appellant.
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Michael DeWine, Attorney General, and Latawnda N. Moore, Assistant
Attorney General, for appellee Industrial Commission.
Dinsmore & Shohl, L.L.P., and Joan M. Verchot, for appellee Formica
Corporation.
_________________________
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