State Ex Rel. Black v. Industrial Commission

[Cite as State ex rel. Black v. Indus. Comm., 137 Ohio St.3d 75, 2013-Ohio-4550.]
THE STATE EX REL. BLACK, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO
ET AL.; PARK OHIO INDUSTRIES, INC., APPELLANT.
[Cite as State ex rel. Black v. Indus. Comm., 137 Ohio St.3d 75,
2013-Ohio-4550.]
Workers’ compensation—Permanent-total-disability compensation—Voluntary
retirement—Abandonment of the workforce—Court of appeals’ judgment
granting a limited writ of mandamus reversed—Writ denied.
(No. 2012-1163—Submitted July 9, 2013—Decided October 17, 2013.)
APPEAL from the Court of Appeals for Franklin County, No. 10AP-1168,
2012-Ohio-2589.
____________________
Per Curiam.
{¶ 1} Appellant, Park Ohio Industries, Inc., appeals from the judgment
of the Tenth District Court of Appeals granting a limited writ of mandamus that
ordered the Industrial Commission to vacate its order denying permanent-total-
disability compensation to appellee, Billy G. Black, and to enter a new order that
properly determines whether Black is eligible for permanent-total-disability
compensation, after he has retired from the workforce.
{¶ 2} Because the record contained some evidence to support the
commission’s decision that Black’s retirement was voluntary and not injury-
induced, we hold that the commission did not abuse its discretion when it
determined that Black was ineligible for permanent-total-disability compensation.
Therefore, we reverse the judgment of the court of appeals and deny the writ.
{¶ 3} Black was employed as a press operator for Park Ohio, a self-
insured employer, when he injured his lower back on October 17, 2000. He was
seen by Dr. Elizabeth Mease, who diagnosed lumbar strain and placed him on
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modified activity with restrictions. He returned to work two days later and was
assigned to clean bathrooms. After a few hours, he returned to Dr. Mease, who
indicated that Black should not engage in any activity.
{¶ 4} On November 10, 2000, Dr. Mease authorized Black to return to
work with restrictions and referred him to Dr. Mark Panigutti, an orthopedic
physician. Black saw Dr. Panigutti on November 15, 2000, and again on
December 11, 2000.
{¶ 5} On December 11, Dr. Panigutti opined that Black had not yet
reached maximum medical improvement, but that his prognosis was good. He
authorized Black to return to work on December 13, 2000, with weight and
standing restrictions for one month, and after one month, to return to full duty.
Also on December 11, Black notified his employer that he intended to retire on
February 28, 2001.
{¶ 6} Black returned to work on modified duty on December 13, 2000.
On January 22, 2001, Black saw Dr. Panigutti for back pain and a possible hernia.
Dr. Panigutti increased Black’s weight restrictions based in part on complaints of
pain unrelated to his back injury.
{¶ 7} Black worked until February 9, 2001. He retired on February 28,
2001, at the age of 55 with 38 years of service. At no time following his
retirement did Black pursue vocational training or seek other employment. In
September 2001, he began receiving Social Security disability benefits. The
record does not contain an explanation of the reasons for granting these benefits,
but Black testified in 2009 that they may have included, in part, his lack of
education and medical conditions not related to his industrial injury.
{¶ 8} On August 14, 2009, Black applied for permanent-total-disability
compensation. Following a hearing on July 1, 2010, a hearing officer denied his
application. The hearing officer noted that there was no medical evidence that
any physician had advised Black to retire because of his previously allowed
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January Term, 2013
injuries and that Black had not worked or looked for work since his retirement on
February 28, 2001. Thus, the hearing officer concluded that Black’s retirement
was both voluntary and an abandonment of the entire workforce, making him
ineligible for subsequent permanent-total-disability compensation.
{¶ 9} Black sought a writ of mandamus in the Tenth District Court of
Appeals, alleging that the commission had abused its discretion and arbitrarily
denied his request for permanent-total-disability compensation.
{¶ 10} A magistrate determined that Dr. Panigutti’s December 11, 2000
office note—describing Black as unable to perform his regular job duties but able
to perform light or modified job duties with certain restrictions for a month—was
medical evidence that Black’s decision to retire “could have been” induced by his
industrial injury. 10th Dist. Franklin No. 10AP-1168, 2012-Ohio-2589, ¶ 55.
According to the magistrate, the December 11, 2000 note was “medical evidence
upon which the commission could have relied in determining whether the job
abandonment was injury induced,” and thus it was clearly inaccurate for the
commission, through its staff hearing officer, to declare that “ ‘[t]here is no
medical evidence that [the retirement] was induced by the industrial injury.’ ” Id.
at ¶ 56.
{¶ 11} The magistrate also concluded that the commission appeared to
improperly shift the burden of proof to Black when it stated that there was no
medical evidence that a physician had advised Black to retire, strongly suggesting
that the lack of medical evidence was a determinative factor in its decision to
deny benefits. Consequently, the magistrate recommended that the court of
appeals issue a limited writ of mandamus ordering the commission to enter a new
order that properly determined Black’s eligibility. Id. at ¶ 57-59.
{¶ 12} Both Park Ohio and the commission filed objections to the
magistrate’s recommendation, and Black responded to those objections. The
court of appeals overruled the objections and issued a limited writ ordering the
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commission to vacate the order denying benefits based on ineligibility and enter
an order that properly determines Black’s eligibility for permanent-total-disability
compensation.
{¶ 13} Park Ohio filed an appeal as of right.
{¶ 14} A claimant’s eligibility for permanent-total-disability
compensation may be affected if the claimant has voluntarily retired or abandoned
the job market for reasons not related to the industrial injury. State ex rel. McAtee
v. Indus. Comm., 76 Ohio St.3d 648, 670 N.E.2d 234 (1996); State ex rel.
Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44, 531 N.E.2d 678 (1988).
Thus, the character of the employee’s retirement—whether voluntary or
involuntary—is critical to the commission’s analysis of a claimant’s right to
permanent-total-disability compensation. State ex rel. Cinergy Corp./Duke
Energy v. Heber, 130 Ohio St.3d 194, 2011-Ohio-5027, 957 N.E.2d 1, ¶ 5.
{¶ 15} Park Ohio appeals the court of appeals’ decision requiring the
commission to redetermine the character of Black’s retirement. According to
Park Ohio, the commission did consider evidence of Black’s medical condition at
or near the time of his retirement and, based on its review of that evidence,
concluded that no physician had advised him to retire and that his retirement was
not induced by his industrial injury. The commission specifically considered Dr.
Panigutti’s report of January 22, 2001, the date most contemporaneous with
Black’s retirement:
There is no medical evidence that any physician advised
the Injured Worker to retire as a result of the allowed injuries. The
Injured Worker saw his treating orthopedist in January 2001. At
the time the lifting restriction was increased to fifty pounds due to
groin pain which the doctor stated was unrelated to the Injured
Worker’s back condition.
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January Term, 2013
{¶ 16} According to Park Ohio, this statement in the commission’s order
demonstrated that the hearing officer had reviewed the medical evidence as
required by Ohio Adm.Code 4121-3-34(D)(1)(d) and had concluded that the
evidence did not support Black’s assertion that his retirement was induced by his
industrial injury.
{¶ 17} Next, Park Ohio contends that the commission did not
wrongfully shift the burden of proof from Park Ohio to Black. Park Ohio
maintains that the lack of medical evidence that Black’s retirement was injury-
induced was simply a factual finding based on the evidence produced and
reviewed, i.e., Dr. Panigutti’s January 2001 report and Black’s notice of intent to
retire submitted after he was released to return to work on December 11, 2000.
Park Ohio argues that this evidence, along with Black’s failure to work or to look
for work following his retirement, demonstrated that Park Ohio had met its
burden of proving that Black had voluntarily abandoned the workforce. State ex
rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 83, 679 N.E.2d 706 (1997).
{¶ 18} Whether a claimant has voluntarily retired or has abandoned the
workforce is a question of fact for the commission to determine. State ex rel.
Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140,
¶ 10. This court has described the question of abandonment as “ ‘primarily * * *
[one] of intent * * * [that] may be inferred from words spoken, acts done, and
other objective facts.’ ” State ex rel. Diversitech Gen. Plastic Film Div. v. Indus.
Comm., 45 Ohio St.3d 381, 383, 544 N.E.2d 677 (1989), quoting State v.
Freeman, 64 Ohio St.2d 291, 297, 414 N.E.2d 1044 (1980). Accordingly, the
commission must consider all relevant circumstances, including evidence of the
claimant’s medical condition at or near the time of departure from the workforce,
if submitted, and any other evidence that would substantiate a connection between
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the injury and retirement. Ohio Adm.Code 4121-3-34(D)(1)(d); Cinergy Corp.,
130 Ohio St.3d 194, 2011-Ohio-5027, 957 N.E.2d 1, ¶ 7.
{¶ 19} The commission is exclusively responsible for evaluating the
weight and credibility of the evidence. State ex rel. Burley v. Coil Packing, Inc.,
31 Ohio St.3d 18, 20-21, 508 N.E.2d 936 (1987). If the commission’s order is
supported by some evidence in the record, then the commission has not abused its
discretion and mandamus is not appropriate. Id. at 21.
{¶ 20} Here, the commission focused on Black’s return to work and the
contemporaneous notice of his intent to retire in two months. The order
specifically referred to his return to work on December 13, 2000, two days after
he had decided to retire. The order also addressed Black’s subsequent visit to Dr.
Panigutti in January 2001, when the doctor increased Black’s weight restrictions
due to pain unrelated to his industrial injury. Based on this evidence, the
commission concluded that there was no medical evidence submitted at or around
the time Black announced his planned retirement that a physician had advised him
to retire. The commission did not abuse its discretion by basing its determination
that Black’s retirement was voluntary in part on the failure to present evidence
that he had retired because he was unable to perform his job due to his injuries.
See State ex rel. Mackey v. Ohio Dept. of Edn., 130 Ohio St.3d 108, 2011-Ohio-
4910, 955 N.E.2d 1005, ¶ 6.
{¶ 21} In addition, the order noted that Black’s last day of work was on
February 9, 2001, that he had officially retired on February 28, 2001, and that he
had neither worked nor looked for work since his retirement. Based on these
facts, the commission concluded that Black’s retirement was not only voluntary
but also was an abandonment of the entire workforce. See State ex rel. Baker
Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202, 631 N.E.2d 138(1994), paragraph two of the syllabus (employee whose retirement is voluntary
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January Term, 2013
and an abandonment of the entire job market is ineligible for permanent-total-
disability compensation).
{¶ 22} A reviewing court’s role is to determine whether there is some
evidence in the record to support the commission’s decision. When doing so, a
court must not substitute its judgment for that of the commission or second-guess
the commission’s evaluation of the evidence. State ex rel. Guthrie v. Indus.
Comm., 133 Ohio St.3d 244, 2012-Ohio-4637, 977 N.E.2d 643, ¶ 11. That is
what the appellate court has done in this case. The court of appeals did not find a
lack of evidence to support the commission’s decision, but rather determined that
the commission had misconstrued the evidence considered. The court erred in
doing so.
{¶ 23} Because the record contained some evidence to support the
commission’s decision that Black’s retirement was voluntary and not injury-
induced, we hold that the commission did not abuse its discretion when it
determined that Black was ineligible for permanent-total-disability compensation.
Consequently, we reverse the judgment of the court of appeals and deny the writ.
Judgment reversed
and writ denied.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Michael DeWine, Attorney General, and Stephen Plymale, Assistant
Attorney General, for Industrial Commission.
Fisher & Phillips, L.L.P., Daniel P. O’Brien, and Mark E. Snyder, for
appellant.
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