State ex rel. Hoffman v. Rexam Beverage Can Co.

[Cite as State ex rel. Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 2013-Ohio-
4538.]
THE STATE EX REL. HOFFMAN, APPELLANT, v. REXAM BEVERAGE CAN
COMPANY ET AL., APPELLEES.
[Cite as State ex rel. Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129,
2013-Ohio-4538.]
Workers’ compensation—Temporary-total-disability compensation—Voluntary
retirement—Abandonment of the workforce—Court of appeals’ judgment
denying benefits affirmed.
(No. 2012-1109—Submitted July 9, 2013—Decided October 16, 2013.)
APPEAL from the Court of Appeals for Franklin County, No. 11AP-533,
2012-Ohio-2469.
____________________
Per Curiam.
{¶ 1} The Industrial Commission determined that appellant, Gerald E.
Hoffman, was not eligible for temporary total disability compensation because he
had voluntarily retired and had abandoned the workforce.
{¶ 2} The Tenth District Court of Appeals denied Hoffman’s request for
a writ of mandamus. The court determined that there was some evidence in the
record that Hoffman’s retirement was voluntary; thus, the commission had not
abused its discretion when it denied Hoffman compensation based on his
ineligibility.
{¶ 3} For the reasons that follow, we affirm.
{¶ 4} Hoffman was a mechanic for Rexam Beverage Can Company; he
injured his knee while working on February 11, 2003. He had knee surgery on
July 3, 2003, and returned to work without restrictions on October 6, 2003.
{¶ 5} In 2008, Hoffman began to see Dr. Nabil Ebraheim for continuing
knee problems. On March 13, 2008, Dr. Ebraheim administered an injection into
SUPREME COURT OF OHIO
Hoffman’s right knee and released him to work with climbing and walking
restrictions. Hoffman’s employer was unable to accommodate those restrictions,
so Hoffman did not return to work. In May 2008, he was awarded temporary-
total-disability compensation as of February 13, 2008. And in October 2008, he
was awarded Social Security disability as of August 2008.
{¶ 6} On October 17, 2008, Hoffman’s wife informed his employer that
Hoffman intended to retire effective November 1, 2008. Charlotte V. Reilly, vice
president of benefits, sent Hoffman a letter with information regarding his
retirement package. Reilly notified Hoffman that he was eligible for early
retirement based on his age (63) and years of service (more than 30). Reilly also
informed Hoffman that because of his workers’ compensation status, he could not
“elect to retire and begin [his] pension benefit unless [he did] not intend to return
to work following the completion of Workers’ Compensation.” (Underlining sic.)
{¶ 7} Hoffman elected not to retire at that time, and he continued to
receive temporary-total-disability compensation.
{¶ 8} On January 23, 2009, Hoffman underwent surgery for a total knee
replacement. Dr. Ebraheim later reported that Hoffman had reached maximum
medical improvement (“MMI”) on May 1, 2009. Consequently, the Bureau of
Workers’ Compensation notified Hoffman that his temporary-total-disability
compensation was terminated effective April 30, 2009.
{¶ 9} Hoffman retired from Rexam on August 1, 2009, at age 64.
{¶ 10} On December 21, 2010, Hoffman again underwent knee surgery.
He filed for temporary-total-disability compensation from the date of the surgery.
A staff hearing officer denied the application on the basis that Hoffman had
voluntarily retired and abandoned the workforce and thus was ineligible for
temporary-total-disability compensation.
{¶ 11} Hoffman filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals alleging that the commission’s decision was not
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supported by evidence in the record and constituted an abuse of discretion. The
court of appeals denied the writ.
{¶ 12} This cause is now before this court on an appeal as of right.
{¶ 13} To be entitled to an extraordinary remedy in mandamus, Hoffman
must establish a clear legal right to the relief requested, a clear legal duty on the
part of the commission to provide the relief, and the lack of an adequate remedy
in the ordinary course of the law. State ex rel. Gen. Motors Corp. v. Indus.
Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9. Thus, if
Hoffman demonstrates that the commission abused its discretion when it
concluded that he was ineligible for compensation, a writ of mandamus may be an
available remedy. Id. “[I]n this context, abuse of discretion has been repeatedly
defined as a showing that the commission’s decision was rendered without some
evidence to support it.” State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d
18, 20, 508 N.E.2d 936 (1987).
{¶ 14} The purpose of temporary-total-disability compensation is to
compensate an injured employee for lost earnings during a period of disability
while an injury heals. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35; State ex rel. Ashcraft v. Indus.
Comm., 34 Ohio St.3d 42, 44, 517 N.E.2d 533 (1987). If the claimant leaves the
workforce for reasons unrelated to the industrial injury, there is no loss of
earnings due to the injury, and the claimant is not eligible for temporary-total-
disability compensation. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d
40, 2008-Ohio-5245, 896 N.E.2d 140, ¶ 9.
{¶ 15} Whether a claimant voluntarily retired or abandoned the workforce
after his injury is a question of fact for the commission to determine. Id. at ¶ 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.
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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
the injury and retirement. Ohio Adm.Code 4121-3-34(D)(1)(d); State ex rel.
Cinergy Corp./Duke Energy v. Heber, 130 Ohio St.3d 194, 2011-Ohio-5027, 957
N.E.2d 1, ¶ 7.
{¶ 16} The court of appeals concluded that there was some evidence in
the record to support the commission’s decision that Hoffman had voluntarily
retired. The commission relied on employer records, which stated that Hoffman’s
retirement was based on years of service, not disability. The commission also had
medical reports that Hoffman had reached MMI when he decided to retire. The
commission pointed to Hoffman’s receipt of Social Security disability benefits as
an indication that he did not intend to return to employment, and other than
Hoffman’s own testimony that he had applied for a job as a greeter at Wal-Mart,
there was no evidence that Hoffman had looked for other employment after he
retired.
{¶ 17} Hoffman also contends that in addition to having the burden to
prove that he was temporarily and totally disabled, the court of appeals
improperly placed an additional burden on him to produce evidence that he did
not abandon the workforce.
{¶ 18} The court of appeals also rejected this argument. Hoffman’s
burden was to demonstrate that he was medically entitled to the benefits and that
he had remained in the workforce and sustained a loss of earnings. See Ashcraft,
34 Ohio St.3d 42, 517 N.E.2d 533. He did not produce evidence that his
retirement was injury-induced, and he also did not produce credible evidence that
he had made an attempt to find other employment after his retirement. Instead,
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January Term, 2013
the record contained evidence that once Hoffman learned that his temporary-total-
disability compensation had been terminated, he chose to permanently retire from
Rexam.
{¶ 19} The commission is exclusively responsible for evaluating the
weight and credibility of the evidence. State ex rel. George v. Indus. Comm., 130
Ohio St.3d 405, 2011-Ohio-6036, 958 N.E.2d 948, ¶ 11; Burley, 31 Ohio St.3d at
21, 508 N.E.2d 936. It is within the commission’s discretion to rely on the
evidence that Hoffman had voluntarily retired from the workforce and was no
longer eligible for temporary-total-disability compensation.
{¶ 20} Consequently, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
O’NEILL, JJ., concur.
FRENCH, J., not participating.
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Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A.
Bowman, for appellant.
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