State ex rel. Williams v. Indus. Comm.

[Cite as State ex rel. Williams v. Indus. Comm., 2014-Ohio-1490.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Carolyn Williams,
:
Relator,
:
v. No. 13AP-407
:
The Industrial Commission (REGULAR CALENDAR)
of Ohio and St. Vincent :
Charity,
:
Respondents.
:
D E C I S I O N
Rendered on April 8, 2014
Shapiro, Marnecheck & Palnik, and Matthew A. Palnik, for
relator.
Michael DeWine, Attorney General, and Sandra E.
Pinkerton, for respondent Industrial Commission of Ohio.
Dinsmore & Shohl, LLP, and Michael L. Squillace, for
respondent St. Vincent Charity.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relator, Carolyn Williams, has filed an original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order denying her application for temporary total disability
("TTD") compensation and to enter an order granting the compensation.
No. 13AP-407 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate, who issued the appended decision,
including findings of fact and conclusions of law, recommending that the requested writ
be denied. The magistrate found that the commission did not abuse its discretion in its
determining that any loss of earnings was not due to relator's allowed condition, but was
instead due to her decision not to return to the workforce.
{¶ 3} Relator has filed objections to the magistrate's decision, in which she
challenges the magistrate's finding that she voluntarily abandoned the workforce,
asserting that her separation from employment was injury induced. Relator also argues
that the magistrate's factual findings fail to acknowledge that her treating doctors never
released her to return to work.
{¶ 4} In the findings of fact, the magistrate noted that relator was unable to
return to her former position of employment in 2001 and that she received TTD
compensation from July 17, 2001 through June 22, 2004, at which time such
compensation was terminated because her allowed conditions reached maximum medical
improvement. As further noted by the magistrate, relator did not make any attempt to
return to work and, in March 2005, she filed an application for permanent total disability
("PTD") compensation. The commission denied relator's application for PTD
compensation finding that her allowed physical conditions permitted her to perform
sedentary work, and that her allowed psychological condition was not work prohibitive.
After her application for PTD compensation was denied, relator did not seek employment;
rather, five years later she underwent back surgery and applied for a new period of TTD
compensation.
{¶ 5} Relator's arguments that her physician did not release her to her former
position and that her separation from employment was injury induced are not dispositive.
As noted by the magistrate, the evidence before the commission indicated that, although
she could not return to her former position of employment, (1) relator was physically
capable of performing sedentary work, (2) the allowed psychological condition was not
work prohibitive, and (3) there was no evidence relator had sought to return to the
workforce or seek work within her physical restrictions. Accordingly, the commission did
not abuse its discretion in finding that any loss of earnings was not due to relator's
No. 13AP-407 3
allowed conditions and that she voluntarily abandoned the workforce. See, e.g., State ex
rel. Roxbury v. Indus. Comm., 138 Ohio St.3d 91, 2014-Ohio-84 (where claimant's TTD
compensation terminated because allowed physical condition reached maximum medical
improvement and subsequent request for PTD compensation was denied, commission did
not abuse its discretion in denying request for reinstatement of TTD compensation where
evidence indicated relator remained physically capable of sedentary work, the allowed
psychological condition was not disabling, and relator failed to seek other work).
Relator's objections are therefore overruled.
{¶ 6} Based upon this court's independent review, we adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law. In accordance
with the magistrate's decision, we deny relator's request for a writ of mandamus.
Objections overruled; writ denied.
DORRIAN and O'GRADY, JJ., concur.
______________________
[Cite as State ex rel. Williams v. Indus. Comm., 2014-Ohio-1490.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Carolyn Williams,
:
Relator,
:
v. No. 13AP-407
:
The Industrial Commission (REGULAR CALENDAR)
of Ohio and St. Vincent :
Charity,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on October 10, 2013
Shapiro, Marnecheck & Palnik, and Mathew Palnik, for
relator.
Michael DeWine, Attorney General, and Sandra E.
Pinkerton, for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 7} Relator, Carolyn Williams, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied her application for temporary total
No. 13AP-407 5
disability ("TTD") compensation and ordering the commission to find that she is entitled
to that compensation.
Findings of Fact:
{¶ 8} 1. Relator sustained a work-related injury on December 24, 1997 and her
workers' compensation claim has been allowed for the following conditions:
Aggravation of pre-existing foraminal encroachment severe
right side of L5-S1, moderate towards left side of L4-5 & L5-
S1 and mild to moderate towards right side of L4-5; L5/S1
disc herniation; depressive disorder.
{¶ 9} 2. On October 10, 2001, relator filed a C-84 motion asking for the payment
of TTD compensation.
{¶ 10} 3. Following a hearing, relator was awarded TTD compensation beginning
July 17, 2001 and continuing.
{¶ 11} 4. Relator continued to receive TTD compensation until June 22, 2004
when, following a hearing before a district hearing officer ("DHO"), her allowed
conditions were found to have reached maximum medical improvement ("MMI").
{¶ 12} 5. The DHO's order terminating her TTD compensation was affirmed
following a hearing held on August 3, 2004 before a staff hearing officer ("SHO").
{¶ 13} 6. Further appeal was refused by order of the commission mailed
September 8, 2004.
{¶ 14} 7. On March 22, 2005, relator filed an application for permanent total
disability ("PTD") compensation.
{¶ 15} 8. Following a January 25, 2007 hearing before an SHO, relator's request
for PTD compensation was denied. The SHO relied on medical evidence to find that
relator was capable of performing at a sedentary work level and that her allowed
psychological condition was not work prohibitive. Thereafter, the SHO discussed the
non-medical disability factors and found that she was capable of performing some
sedentary employment:
The claimant is presently 52 years old. She has three years of
college at the University of Akron in nursing. She also has
training as a cosmetologist and has also worked as a home
No. 13AP-407 6
health aide. She was working as a nurse assistant in a
hospital from September, 1994 until July, 2001.
She had two MRI diagnostic tests, the first performed in
1999 and a repeat in December, 2001. At one point surgery
was recommended and she was found maximum medically
improved based on Dr. Ghanma's 08/29/2003 exam unless
she had surgery for the disc. However, no surgery has been
performed and there is medical in the file that indicates that
she is not a surgical candidate.
The rehabilitation records indicate physical therapy and
psychotherapy treatments as well as exercise on a nautilus
type machine. There is presently no rehabilitation services
being performed nor are they being asked for.
There is a report by Thomas Nimburger dated 09/12/2005
and an addendum by Deanna Arbucle dated 12/12/2005.
Both are vocational consultants. After evaluating the
claimant's age, education and past work experience, they
indicated that there are several jobs within the economy that
claimant is capable of accessing. Some of these jobs include
telephone operator, telephone answering service operator,
appointment clerk, and surveillance system monitor. These
are all semi-skilled or unskilled jobs at the sedentary level.
Also submitted to the file were vacancies by local employers
for these types of positions.
The adjudicator finds that the claimant's educational level is
an asset to employment. Three years of college is sufficient
for many entry level positions. Her age of 52 is considered to
be a neutral factor. She is not too old for further training if
she becomes interested. Her past work experience has been
quite varied including nursing assistant from 1992 through
2001 and a home health aide from 1982 to 1990 and a
hospital aide at a state hospital from 1978 to 1987 and
further training in auto mechanics, cosmetology and with
adult vocational services in 1992.
The adjudicator finds that the allowed medical conditions
preclude the injured worker from her past work activities.
However, she is still capable of working in a sedentary
capacity. The only vocational evidence in the file indicates
that there are jobs within the local economy that are within
the injured worker's residual functional capacity. Therefore,
No. 13AP-407 7
her disability is partial not total. The injured worker remains
capable of sustained remunerative employment. Therefore,
this application is denied.
{¶ 16} As such, although the SHO agreed that relator could not return to her
former position of employment, the SHO concluded that she was not precluded from all
employment.
{¶ 17} 9. Relator did not return to work after her application for PTD
compensation was denied nor did she seek other employment.
{¶ 18} 10. Approximately five years later, on August 30, 2012, relator underwent
back surgery. Relator had sought and received authorization to have this surgery.
{¶ 19} 11. On September 5, 2012, relator filed a motion asking that she be paid
TTD compensation beginning the date of her surgery and continuing.
{¶ 20} 12. The matter was heard before a DHO on November 29, 2012. The DHO
denied the request for TTD compensation finding that relator did not seek any
employment after her application for PTD compensation was denied and finding that
she had evidenced an intent to voluntarily abandoned the workforce. As such, the DHO
found that her lack of wages was not due to the allowed conditions in her claim but was
due to her decision not to return to work. Specifically, the DHO's order states:
The District Hearing Officer finds the Injured Worker
voluntarily abandoned the workforce when she volitionally
chose to not seek employment in spite of the fact that
medical previously relied upon by the Industrial Commission
supported that she was capable of physical work activity at
the sedentary work capacity and that her psychological
allowance in this claim was not work-prohibitive.
The District Hearing Officer does not find the issue as to
reinstatement is contingent on the standard for payment of
temporary total disability compensation versus permanent
and total disability compensation, but rather why the Injured
Worker has failed to re-enter the work force subsequent to
medical evidence supporting that she was capable of doing
the same.
Counsel for the Employer argued that the Injured Worker
last worked in July 2001 and was subsequently denied
No. 13AP-407 8
permanent and total disability compensation by the
Industrial Commission on 01/25/2007.
Additionally, the Injured Worker was found to have reached
maximum medical improvement on the allowed conditions
in this claim effective 06/22/2004.
The Injured Worker testified that subsequent to her last date
worked in July, 2001, she has never returned to the
workforce, nor has ever applied for any potential job with
any employer. The Injured Worker testified that she did not
seek employment because she was physically unable to work.
Counsel for the Employer argued that the evidence
supported that the Injured Worker was capable of sedentary
employment with respect to her physical conditions and that
the psychological condition was not work-prohibitive in any
capacity.
Counsel for the Employer argued that the Injured Worker's
departure from the entire workforce was not motivated by
her industrial injury, but rather a lifestyle choice given the
fact that the evidence supported she was capable of
sedentary employment. While the District Hearing Officer
concurs with the Injured Worker's counsel that there was no
finding of voluntary abandonment in regard to this claim
prior to today's hearing, the District Hearing Officer finds
that the Injured Worker has made no attempt whatsoever to
re-enter the workforce in over 11 years, despite the fact that
the evidence does not support the Injured Worker's
allegation that she is unable to work as a result of her
industrial injuries.
The District Hearing Officer finds the fact that the Injured
Worker has never applied for a single job in over 11 years
demonstrates her intent to abandon the entire labor market.
The District Hearing Officer is not persuaded that a nexus
exists between the Injured Worker's departure from the
workforce and her allowed conditions in this claim.
The District Hearing Officer does not find that the Injured
Worker's lack of earnings at the time of her
surgery/requested period of disability are the result of her
psychological condition, nor was she precluded from
No. 13AP-407 9
returning to work in a sedentary capacity based on the
allowed conditions in this claim.
{¶ 21} 13. Relator appealed and the matter was heard before an SHO on
January 10, 2013. The SHO vacated the prior DHO order and found that relator's surgery
constituted new and changed circumstances justifying the reinstitution of a period of TTD
compensation. The SHO also noted that there had never been a finding that relator
voluntarily left the workforce for reasons unrelated to the allowed conditions in her claim
and there had never been a finding that she had been able to return to her former position
of employment. The SHO concluded:
No evidence of an "abandonment of employment" was
presented at today's (01/10/2012 [sic]) hearing, other than a
suggestion that the simple passage of time since the date last
worked (July 2001) permits an inference that an
abandonment of employment has occurred. The Staff
Hearing Officer finds no legal authority for such a
proposition.
{¶ 22} 14. Relator's employer, St. Vincent Charity, appealed and the matter was
heard before the commission on March 12, 2013. The commission vacated the prior SHO
order and denied relator's request for TTD compensation finding that there was no
evidence of a medical inability to perform other work in the years since she last worked
and since her application for PTD compensation had been denied and, as such, she had no
lost wages to replace. Specifically, the commission stated:
The Injured Worker previously received temporary total
disability compensation until it was determined, by Staff
Hearing Officer order issued 09/08/2004, that the allowed
conditions were at maximum medical improvement.
Thereafter, the Injured Worker sought permanent total
disability compensation. In an order issued 01/27/2007, a
Staff Hearing Officer determined the Injured Worker was
capable of sustained remunerative employment at the
sedentary level. Despite these findings, the Injured Worker
did not return to the workforce or seek work within her
physical restrictions.
On 08/30/2012, the Injured Worker underwent an
authorized surgery consisting of a laminectomy and fusion.
No. 13AP-407 10
The Injured Worker requests temporary total disability
compensation beginning 08/30/2012 and continuing.
Temporary total disability compensation is confined to
situations in which a working Injured Worker is prevented
from doing his or her job by an industrial injury. State ex rel.
Eckerly v. Indus. Comm., 105 Ohio St.3d, 2005-Ohio-2587,
828 N.E.2d 97. The purpose of temporary total disability
compensation is to compensate for loss of earnings. State ex
rel. Glenn v. Indus. Comm., 122 Ohio St.3d 483, 2009-Ohio-
3627, 912 N.E.2d 592, ¶ 7. There can be no lost earnings or
even a potential for lost earnings, if the Injured Worker is no
longer part of the active work force. State ex rel. Pierron v.
Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, 896
N.E.2d 140, ¶ 9.
In accordance with State ex rel. Lackey v. Indus. Comm., 129
Ohio S.3d 119, 2011-Ohio-3089, 950 N.E.2d 542, the
Commission acknowledges the Injured Worker's initial
separation from employment was injury induced. However,
the Injured Worker's lack of effort to seek alternative
employment supports the conclusion that she has foreclosed
the possibility of employment and has, therefore, abandoned
the entire workforce. As noted in State ex rel. Corman v.
Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579,
970 N.E.2d 929:
As in Pierron, there was no evidence of a medical inability to
perform other work in the years between Corman's departure
from Allied Holdings and his request for TTC, so Corman
had the same choice as Pierron-seek other employment or
work no further. When Corman elected the latter, he
eliminated the possibility of, or potential for, lost wages. He
cannot, therefore, credibly assert that he has lost income due
to his industrial injury.
The Commission likewise finds the Injured Worker is not
eligible for temporary total disability compensation, and it is
denied from 08/20/2012 to 03/12/2013.
(Emphasis sic.)
{¶ 23} 15. Thereafter, relator filed the instant mandamus action in this court.
No. 13AP-407 11
Conclusions of Law:
{¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 25} In the present case, the medical evidence is clear: relator is not able to
return to her former position of employment and has not been able to do so since July
2001. Because she was unable to return to her former position of employment, relator
received TTD compensation from July 17, 2001 through June 22, 2004, when her TTD
compensation was terminated based upon a finding that her allowed conditions had
reached MMI.
{¶ 26} After her TTD compensation was terminated, relator did not make any
attempts to return to work. Instead, approximately one year later, in March 2005, she
filed an application for PTD compensation. In January 2007, the commission denied
relator's application for PTD compensation finding that her allowed physical conditions
permitted her to perform sedentary work and her allowed psychological condition was
not work prohibitive. In analyzing the non-medical disability factors, the commission
noted that relator was 52 years of age, had studied nursing in college for 3 years, had
training as a cosmetologist and as a home health aide. The commission determined that
her age was a neutral factor and that her education and work experience were assets to
her ability to become re-employed. The SHO noted that there was vocational evidence
indicating that there were jobs within the local economy within her residual functional
capacity.
{¶ 27} After her application for PTD compensation was denied, relator did not
seek employment. Instead, five years later, relator underwent back surgery and applied
for a new period of TTD compensation.
{¶ 28} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
No. 13AP-407 12
{¶ 29} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the
weight to be given evidence are clearly within the discretion of the commission as fact
finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 30} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2)
claimant's treating physician has made a written statement that claimant is able to
return to the former position of employment; (3) when work within the physical
capabilities of claimant is made available by the employer or another employer; or (4)
claimant has reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus.
Comm., 69 Ohio St.2d 630 (1982).
{¶ 31} In denying her application for TTD compensation, the commission cited
the Supreme Court of Ohio's decision in State ex rel. Pierron v. Indus. Comm., 120 Ohio
St.3d 40, 2008-Ohio-5245, ¶ 9. In that case, the court stated:
Temporary total disability compensation is intended to
compensate an injured worker for the loss of earnings
incurred while the industrial injury heals. State ex rel.
Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517
N.E.2d 533. There can be no lost earnings, however, or even
a potential for lost earnings, if the claimant is no longer part
of the active work force. As Ashcraft observed, a claimant
who leaves the labor market "no longer incurs a loss of
earnings because he is no longer in a position to return to
No. 13AP-407 13
work." When the reason for this absence from the work force
is unrelated to the industrial injury, temporary total
disability compensation is foreclosed. State ex rel. Rockwell
Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531
N.E.2d 678. As we stated in State ex rel. Baker v. Indus.
Comm. (2000), 89 Ohio St.3d 376, 380-381, 732 N.E.2d 355,
when a claimant "chooses for reasons unrelated to his
industrial injury not to return to any work when able to do
so, that employee has abandoned both his employment and
his eligibility for [temporary total disability]."
{¶ 32} Richard Pierron sustained a work-related injury and his doctor imposed
medical restrictions which were incompatible with his former position of employment.
Pierron accepted a light-duty warehouse job consistent with those restrictions and
continued to work in that position for 23 years.
{¶ 33} When his light-duty job was eliminated in 1997, Pierron was laid off. In
the years that followed, he remained unemployed except for a brief part-time stint as a
flower delivery person. In late 2003, Pierron moved for TTD compensation which the
commission denied. Id. at ¶ 11.
{¶ 34} The court affirmed the commission's decision finding that, although
Pierron "did not choose to leave his employer in 1997, * * * once that separation
nevertheless occurred, Pierron had a choice: seek other employment or work no
further."
{¶ 35} The commission also cited State ex rel. Corman v. Allied Holdings, Inc.,
132 Ohio St.3d 202, 2012-Ohio-2579. In that case, Ronald R. Corman sustained a work-
related injury in 2002, retired one year later and never worked again. There was no
evidence in the record that he was medically incapable of performing other work.
{¶ 36} In 2009, Corman requested TTD compensation which the commission
denied. Ultimately, Corman's request for a writ of mandamus was denied.
{¶ 37} Corman argued that his case was distinguishable from Pierron because
while he retired from his former position of employment because of his injury, Pierron
had never made that argument. The court disagreed, stating:
There are important similarities between the case before us
and Pierron. Both claimants sought TTC years after retiring
No. 13AP-407 14
from their former positions of employment. In those
intervening years, neither individual made a credible effort
to secure other employment. Neither claimant produced
evidence of a medical inability to perform other work during
those years, prompting the commission to conclude in each
case that the claimant had permanently left the work force.
In upholding the commission's order in Pierron, we
explained that
[w]hen a departure from the entire work force is not
motivated by injury, we presume it to be a lifestyle choice,
and as we stated in State ex rel. Pepsi-Cola Bottling Co. v.
Morse (1995), 72 Ohio St.3d 210, 216, 648 N.E.2d 827,
workers' compensation benefits were never intended to
subsidize lost or diminished earnings attributable to lifestyle
decisions. In this case, the injured worker did not choose to
leave his employer in 1997 [i.e., his job was eliminated], but
once that separation nevertheless occurred, Pierron had a
choice: seek other employment or work no further. Pierron
chose the latter. He cannot therefore credibly allege that his
lack of income from 2001 and beyond is due to industrial
injury. Accordingly, he is ineligible for temporary total
disability compensation.
[Pierron], 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d
140, at ¶ 11.
Corman's attempt to distinguish Pierron is not persuasive.
Corman contends that he retired from his former position of
employment with Allied Holdings because of his injury—a
claim that was not made in Pierron. The commission,
however, did not find that Corman's departure from Allied
Holdings was injury-induced, but even if it had, it would not
advance his cause. As in Pierron, there was no evidence of a
medical inability to perform other work in the years between
Corman's departure from Allied Holdings and his request for
TTC, so Corman had the same choice as Pierron—seek other
employment or work no further. When Corman elected the
latter, he eliminated the possibility of, or potential for, lost
wages. He cannot, therefore, credibly assert that he has lost
income due to his industrial injury.
The judgment of the court of appeals is affirmed.
Id. ¶ 6-8.
No. 13AP-407 15
{¶ 38} In the present case, relator has not worked nor has she sought any
employment since her application for PTD compensation was denied in 2007. Although it
is undisputed that relator cannot return to her former position of employment, the
commission determined that she was capable of other work. Relator never attempted to
return to work but, instead, she sought a new period of TTD compensation after
undergoing back surgery. The magistrate finds that the commission did not abuse its
discretion when it determined that any loss of earnings was not due to her allowed
conditions but was instead due to her decision not to return to the workforce.
{¶ 39} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it determined that she
had voluntarily abandoned the workforce and, as such, had no lost wages to replace.
The commission did not abuse its discretion when it denied relator's motion for TTD
compensation and, as such, this court should deny relator's request for a writ of
mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).