The opinion
[Cite as State ex rel. Reichley v. Indus. Comm., 2017-Ohio-2939.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
James R. Reichley,
:
Relator,
:
v. No. 16AP-263
:
Industrial Commission of Ohio (REGULAR CALENDAR)
and Cooper Tire & Rubber Co., :
Respondents. :
D E C I S I O N
Rendered on May 23, 2017
On brief: Law Offices of Thomas Tootle, and Thomas
Tootle, for relator.
On brief: Michael DeWine, Attorney General, and Shaun
Omen, for respondent Industrial Commission of Ohio.
On brief: Eastman & Smith Ltd., Richard L. Johnson, and
Lindsey K. Ohlman, for respondent Cooper Tire & Rubber
Company.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, James R. Reichley, has filed an original action requesting a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first
application for permanent total disability ("PTD") compensation ("February 2013 order")
and the January 27, 2016 order of its SHO that denied his second application for PTD
compensation ("January 2016 order"), and to enter an order that eliminates the finding
No. 16AP-263 2
that relator voluntarily abandoned the workforce and adjudicates the merits of relator's
PTD application.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny the request for a writ of mandamus.
{¶ 3} Relator has filed the following two objections to the magistrate's decision:
[I.] The record fails to contain "some evidence" to support a
finding of voluntary abandonment of the work-force (and
therefore precluding an award of permanent total disability).
The Magistrate's conclusion of law finding otherwise was in
error.
[II.] Evidence demonstrating Relator's two week return-to-
work was sufficient to establish a re-entry to the work-force.
The Magistrate's conclusion of law finding otherwise was in
error.
{¶ 4} The facts of this case, as set forth in the magistrate's decision, indicate that
relator suffered a severe injury on March 4, 1988, while employed by respondent Cooper
Tire & Rubber Company ("Cooper Tire"). Relator's claim was allowed for multiple
conditions, including partial paraplegia. Despite these injuries, in June 1989, relator
returned to work as a supervisor at Cooper Tire, and remained in that position until
October 30, 2011. Relator's post-injury work history of more than 22 years certainly
demonstrates his willingness to remain in the workforce. After leaving employment with
Cooper Tire, relator filed a first application for PTD compensation on August 14, 2012.
He subsequently filed a second application for PTD compensation on December 23, 2014.
{¶ 5} As explained in the magistrate's decision, the February 2013 order denied
relator's first PTD application on alternative bases: (1) that relator voluntarily abandoned
the workforce, and (2) that relator retained the ability to perform sustained remunerative
employment. The latter conclusion was based on the reports of Drs. Donato Borrillo and
Gerald Steinman, which constitute some evidence to support the SHO's finding.
Similarly, the January 2016 order denied relator's second PTD application on alternative
bases: (1) that relator voluntarily abandoned the workforce, and (2) that relator had not
reached maximum medical improvement for all of the allowed conditions in his claim.
No. 16AP-263 3
The latter conclusion was based on the reports of Drs. Franklin Kindl and Kurt Kuhlman,
which constitute some evidence to support the SHO's finding.
{¶ 6} Relator's mandamus complaint and objections to the magistrate's decision
only challenge the findings and conclusions with respect to voluntary abandonment of the
workforce. Relator has not challenged the alternative basis for the February 2013 order or
the January 2016 order. "If it can be said that relator has challenged only one of two
bases [for denial of a PTD application], he cannot show entitlement to a writ of
mandamus if the basis he has failed to challenge supports the commission's decision."
State ex rel. Terry v. Anderson's, Inc., 10th Dist. No. 13AP-652, 2014-Ohio-4169, ¶ 57.
See also State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP-183, 2010-
Ohio-5871, ¶ 41 ("Where the commission provides an alternative rationale for its
determination which withstands the scrutiny of mandamus review and provides an
independent basis for the commission's decision, the fact that the commission incorrectly
applied the law in a separate portion of the order does not constitute grounds for the
granting of a writ of mandamus."). Accordingly, we need not reach the issue of voluntary
abandonment; the alternative bases in each order support the commission's decision and
relator has failed to challenge those conclusions.
{¶ 7} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts. Moreover, we find that each order that relator seeks to
have vacated contained an alternative basis for the commission's decision, and that
relator has failed to challenge the alternative bases contained in those orders. Therefore,
relator is not entitled to a writ of mandamus and we overrule relator's objections to the
magistrate's decision. We adopt the magistrate's findings of fact as our own; because we
need not reach the issue of voluntary abandonment of the workforce, we do not adopt the
magistrate's conclusions of law. Accordingly, the requested writ of mandamus is hereby
denied.
Objections overruled;
writ of mandamus denied.
TYACK, P.J., and LUPER SCHUSTER, J., concur.
No. 16AP-263 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. James R. Reichley, :
Relator, :
v. : No. 16AP-263
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Cooper Tire & Rubber, Co., :
Respondents. :
MAGISTRATE'S DECISION
NUNC PRO TUNC1
Rendered on December 30, 2016
Law Offices of Thomas Tootle, and Thomas Tootle, for
relator.
Michael DeWine, Attorney General, and Shaun Omen, for
respondent Industrial Commission of Ohio.
Eastman & Smith Ltd., Richard L. Johnson, and Lindsey K.
Ohlman, for respondent Cooper Tire & Rubber, Co.
IN MANDAMUS
{¶ 8} In this original action, relator, James R. Reichley, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission") to
vacate the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first
application for permanent total disability ("PTD") compensation based on a finding that
1 This magistrate's decision replaces, nunc pro tunc, the original magistrate's decision released December 29,
2016, and is effective as of that date. This magistrate's decision deletes the word "leaving" and replaces it
with the words "returning to" in the first paragraph at page eight of the original magistrate's decision.
No. 16AP-263 5
relator voluntarily abandoned the workforce, and to enter an order that eliminates the
finding that relator voluntarily abandoned the workforce.
{¶ 9} Furthermore, relator requests that the writ order the commission to vacate
the January 27, 2016 order of its SHO that denies his second application for PTD
compensation based on a finding that he voluntarily abandoned the workforce, and to
enter an order that eliminates the finding that he voluntarily abandoned the workforce
and adjudicates the merits of the PTD application.
Findings of Fact:
{¶ 10} 1. On March 4, 1988, relator was severely injured while employed as a
"Mobile Equipment Servicer" for respondent Cooper Tire & Rubber, Co. ("Cooper Tire"), a
self-insured employer under Ohio's workers' compensation laws. On that date, while
working on tread tray wheels, the tread tray rolled over onto relator's body pinning him to
the floor.
{¶ 11} 2. The industrial claim (No. 968146-22) was initially allowed for:
Burst fracture L3 with incomplete paraplegia; compound
fracture right tibia and fibula; fracture of right calcaneus;
laceration left forehead; ulcer of heel and midfoot; claw foot,
acquired; left wrist scaphoid contusion.
{¶ 12} 3. Following some recovery from the injury, relator was able to ambulate
with the use of bilateral leg braces and forearm crutches.
{¶ 13} 4. In June 1989, relator returned to work as a supervisor at Cooper Tire.
He maintained his employment as a supervisor until he left his employment with Cooper
Tire on October 30, 2011.
{¶ 14} 5. Relator applied for social security disability benefits. He began receiving
the benefits in April 2012.
{¶ 15} 6. On March 29, 2012, attending physician Stephen J. Freshwater, M.D.,
wrote:
James Reichley had a work related burst fracture of L3 in
March 1988 which resulted in severe cauda equina
compression and paraplegia. He has had increased pain in
his buttocks and legs beginning in August last year. Narcotic
pain medications were not effective for controlling his pain.
He had a CT of the lumbar spine in September 2011 showing
diffuse circumferential and internal dense calcifications of
No. 16AP-263 6
the thecal sac between L3 and S2. His films were evaluated
by Jason Schroeder, M.D. who did not believe there was any
surgical procedure that could begin to help the changes
present. He has been seeing Thomas Kindl, M.D. at Midwest
Pain Treatment Center. He's had several different injections
which have not made much difference with his pain. He is
worse if he has to stand for more than a few minutes at a
time, walk more that 50 feet, or sit for a prolonged period of
time. Given this progression of his problem, I do not believe
that he can return to work at Cooper Tire in his former
capacity or in any available job with his current limitations. I
believe that he qualifies for a total permanent disability.
{¶ 16} 7. On May 10, 2012, Thomas Kindl, M.D., relator's pain management
physician, wrote:
[T]o a reasonable degree of medical certainty, I do not
believe that Mr. Reichley is a candidate to return to work at
his former employer in any reasonable capacity, given his
functional and medical limitations. I believe that his
condition is unlikely to change over the following 12-month
period of thereafter. I believe he therefore qualifies for total
permanent disability.
{¶ 17} 8. On August 14, 2012, relator filed his first PTD application. In support,
relator submitted the March 29, 2012 report from Dr. Freshwater.
{¶ 18} 9. On the PTD application, relator indicated that he was currently receiving
social security disability benefits which started in April 2012.
{¶ 19} 10. On October 3, 2012, at the request of Cooper Tire, relator was examined
by neurologist Gerald S. Steiman, M.D. In his five-page narrative report dated October 7,
2012, Dr. Steiman opined:
Mr. Reichley's history, medical record review, and physical
exam provide credible evidence he is now at the point where
he is unable to perform his prior job activity without
restrictions. Clearly, he is able to return to a sedentary job
activity but I do not believe he would be able to perform
three hours of walking and two hours of standing. A job
activity should be one in which he sits most of the day with
intermittent and occasional standing and short distance
walking. For longer distances a cart would be necessary.
No. 16AP-263 7
{¶ 20} 11. On November 6, 2012, at the commission's request, relator was
examined by Donato J. Borrillo, M.D. In his seven-page narrative report dated
November 8, 2012, Dr. Borrillo opined:
Mr. Reichley is extremely motivated and admirably
ambitious, having returned to work after a significant
traumatic injury and having retired in 2011.
Notwithstanding his retirement from the workforce, Mr.
Reichley is capable of sedentary duty. His lumbar condition
prevents [him] from lifting greater than this amount, and he
requires ADA access for his Loftstrand crutch use and AFO
use. Furthermore, because of his back injury and incomplete
paraplegia, he is unable to bend, crawl, climb, walk on
uneven surfaces, or kneel safely. He requires a sit or stand
option.
{¶ 21} On a form captioned "Physical Strength Rating," Dr. Borrillo indicated by
his mark that relator is capable of "sedentary work."
{¶ 22} Under "[f]urther limitations," in the space provided, Dr. Borrillo wrote in
his own hand: "ADA access [with] crutch use."
{¶ 23} 12. At the request of Cooper Tire, Al Walker, a certified vocational
evaluation specialist, prepared a document captioned "Vocational Assessment and
Transferrable Skills Analysis Report."
{¶ 24} In his 16-page report dated January 14, 2013, Walker concluded:
In summary, Mr. Reichley's demonstrated work history and
his projected physical limitations, directly related to his
allowed conditions of his workers' compensation claims, do
allow for selective job placement. His work history has been
skilled demonstrating his ability to learn and function
adequately at higher levels of vocational competency. It is
important to understand that this vocational evaluation can
only show if an individual has sufficient residual physical
and mental capacities to meet the demands of particular
jobs. It is not possible to factor in motivation or the
willingness of an individual to do what is necessary to
overcome the barriers they face. Dr. Borrillo and Dr. Steiman
both state that Mr. Reichley is capable of full time physical
work activity. No psychological limitations were identified.
Taking into consideration the medical examinations,
transferable skills analysis and labor market analysis there
are numerous jobs for which Mr. Reichley has demonstrated
No. 16AP-263 8
the aptitudes and abilities, general educational development
and physical capabilities to perform.
{¶ 25} 13. On February 19, 2013, an SHO heard relator's first PTD application.
The hearing was recorded and transcribed for the record.
{¶ 26} 14. At the hearing, the following exchange occurred between the hearing
officer and relator:
Q. There is no doubt it was a significant injury; after the
injury you were able to go back to work and did work for a
number of years?
A. I did.
Q. With Cooper, and you quit or left work what year?
A. Well, I --
Q. Left the work force entirely?
A. For the entirety, 2011.
Q. 2011, okay.
A. And the beginning of November of 2011 from severe back
pain, and so I was off going to pain management. He gave me
some injections, and then it seemed like I had to get more
injections into the back trying to solve that problem. My leg
pain had worsened.
Q. And that was Dr. Kindl?
A. Dr. Kindl. I was to the point of not being able to sleep. It
used to be I could go to sleep and it wouldn't bother me, and
now it wakes me up.
Q. Okay. You got social security disability?
A. Yes.
(Tr. at 4-5.)
{¶ 27} 15. At the hearing, the following exchange occurred between counsel for
Cooper Tire and relator:
Q. Let me ask you, would you be willing to do vocational
retraining?
No. 16AP-263 9
A. If he thinks, yeah, I guess, I could, but I guess I don't
know whether that's going to gain anything, because by the
time you go to vocational instructions or whatever, if they
send you to college, aren't we talking two to four years, and
by that time I am going to be 57, 58 years old, just about into
the social security retirement.
Q. But your response is that you would be willing to do
vocational restraining [sic]?
A. If that is what it takes, I guess, but I think with my age
and the distance, I am not so sure, I am kind of on the fence,
yes and no. I don't know whether I would benefit from it, and
I feel like by going to school or going to do anything like that,
you are not going to get much more years out of me. And
you're right about retirement, yes, I have made up my mind
to retire, and also made up my mind years ago that I was
going to start collecting social security at 62 and not wait
until 70, because my dad died at 70 and I decided I was not
going to do that. So by being on the fence of what you are
saying, I am not sure whether it would be a good thing or a
bad thing.
(Tr. at 30.)
{¶ 28} 16. Following the February 19, 2013 hearing, the SHO issued an order
denying the PTD application. The SHO's order provides alternative bases for denial of the
PTD application: (1) that relator voluntarily abandoned the workforce and is thus
ineligible for PTD compensation, and (2) that relator retains the ability to perform
sustained remunerative employment. The SHO's order of February 19, 2013 explains:
There is a single claim in this application for permanent and
total disability benefits. The injury occurred on 03/04/1988,
at that time, the Injured Worker was employed as a mobile
equipment servicer with the Employer of Record. At that
time he was working on tread tray wheels and the tread tray
rolled over the Injured Worker pinning him to the floor. He
suffered a burst fracture at L3 with incomplete paraplegia. A
compound fracture of the right tibia and fibula. A fracture of
the right calcaneus. And a laceration of the left forehead. All
of these conditions were certified by the Employer at the
time of the original injury. Later, the Self-Insuring Employer
certified ulcer of the heel and midfoot; claw foot, acquired
and left wrist scaphoid contusion.
No. 16AP-263 10
In spite of the significant injury, the Injured Worker was able
to return to work with the Employer of Record in a different
position, as a supervisor in June of 1989. He continued to
work with the Employer of Record in this position until he
left work on 10/30/2011. At that time, he took disability
retirement.
Related to the allowed physical conditions within this claim,
the Injured Worker was evaluated by an Industrial
Commission Specialist, Donato Borrillo, M.D. Dr. Borrillo
examined the Injured Worker on 11/06/2012, and in a report
of 11/08/2012 Dr. Borrillo opined that Mr. Reichley is
capable of working at sedentary duty. Dr. Borrillo also
opined that the allowed conditions were at maximum
medical improvement.
The Injured Worker was also evaluated by a physician of the
Employer's choice. On 10/07/2012 Gerald Steiman, M.D.,
evaluated the Injured Worker on behalf of the Employer. Dr.
Steiman offered no significant opinion regarding maximum
medical improvement for the allowed physical conditions.
However, Dr. Steiman did opine that Mr. Reichley is capable
of performing sedentary work duties but would be unable to
return to his position of employment as a supervisor, that he
has been performing for the last twenty-three years,
secondary to the need to stand for two hours and walk for
three hours as part of the job duties.
This Staff Hearing Officer finds Dr. Borrillo to be persuasive
that the Injured Worker is, in fact, [at] maximum medical
improvement for the allowed physical conditions within this
claim.
Further, this Staff Hearing Officer finds the reports of Drs.
Borrillo and Steiman to be persuasive that the residual
impairments secondary to the allowed conditions within this
claim prevent Mr. Reichley from returning to his prior
position of employment and from returning to work at his
secondary position of employment as a supervisor. The
reports of Drs. Borrillo and Steiman are found to be
persuasive that the residual actions limit Mr. Reichley to a
sedentary work position limiting him to exerting up to ten
pounds of force occasionally and negligible amounts of force
frequently. The physicians are found persuasive that Mr.
Reichley would be capable of sedentary work which involves
sitting most of the time but may involve walking or standing
for brief periods of time.
No. 16AP-263 11
This Staff Hearing Officer finds that Mr. Reichley does retain
the physical capacity for sedentary work.
The issue of Mr. Reichley's retirement was raised.
***
Mr. Reichley's retirement was, at least in part, disability
related. He was able to obtain Social Security Disability
Benefits. However, at hearing Mr. Reichley did testify that he
was planning on retiring at age sixty-two. He went on to
indicate he had no interest in returning to the workforce and
when question[ed] about vocational rehabilitation he was
equivocal as he was not planning on working past age sixty-
two.
Mr. Reichley is currently fifty-five years of age and was fifty-
four at the time he left the workforce. His age at worst, is a
neutral factor. In fact, it could be viewed as a positive factor
as he could, potentially, spend ten years, or more, in the
workforce should he choose. Mr. Reichley can read, write
and do basic math. He has a High School diploma. As such,
he has the basic tools for entering the workforce at an entry
level. Further, he has a long work history with the Employer
of Record which is a positive factor, as Employer's value
long-term Employees. He also has supervisory skills which
are a positive factor. A vocational rehabilitation evaluation
was performed by Al Walker, M.S. CVE-R, ABVE/AE on
01/15/2013. Mr. Walker, based upon the reports of Drs.
Borrillo and Steiman, indicated with a transferable skills
analysis and a labor market analysis there were numerous
jobs Mr. Reichley was potentially able to perform.
Specifically, Mr. Walker listed at least thirty jobs in the
sedentary work category ranging from skilled, to semi
skilled, to unskilled for which Mr. Reichley is qualified to
perform at the entry level.
Mr. Reichley left his prior position of employment based
upon allowed condition impairments. This finding is
supported by the Employer examination performed by Dr.
Steiman. However, the testimony of Mr. Reichley gives rise
to the question of whether Mr. Reichley chose to not return
to the workforce at a different level of employment.
***
No. 16AP-263 12
This Staff Hearing Officer finds the testimony of Mr.
Reichley clearly indicated that he left the workforce in 2011
without any intent to return to the workforce in a lesser,
sedentary capacity. This Staff Hearing Officer finds Mr.
Reichley abandoned the workforce and not merely the
previous job.
This Staff Hearing Officer finds that Mr. Reichley has the
basic tools and knowledge set for a return to work at entry
level sedentary work at a clerical level.
This Staff Hearing Officer finds no vocational preclusion to
re-training or skills enhancement to increase Mr. Reichley's
vocational potential. The Ohio Courts have indicated that the
Industrial Commission may consider a failure of the Injured
Worker to undertake rehabilitation or training that would
permit a return to work. The relevant vocational inquiry is
"whether the claimant may return to the job market by using
past employment skills or those skills which may be
reasonably developed." State ex rel. Speelman v. Industrial
Comm., (1992) 73 Ohio App.3d 757, 762. In State ex rel.
Bowling v. National Can Corp. (1996), 77 Ohio St.3d 148, the
Ohio Supreme Court indicated that an injured worker must
be held to a standard of accountability to both the Industrial
Commission and the courts, when despite the opportunity
for further education or advancement of skills, the Injured
Worker has not done so. Mr. Reichley, when he found he
could no longer perform his supervisory position, retired and
did not pursue further educational or skills enhancement.
This Staff Hearing Officer finds pursuant to the Ohio
Supreme Court case law, particularly within State ex rel.
Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250,
permanent total disability compensation is compensation of
last resort, to be awarded only when all reasonable avenues
of accomplishing a return to sustained remunerative
employment have failed. Thus it is not unreasonable to
expect an Injured Worker to participate in return to work
efforts to the best of his or her ability, or to take the initiative
to improve re-employment potential.
For the above reasons, the application for permanent and
total disability filed 08/14/2012 is denied.
{¶ 29} 17. On April 12, 2013, the three-member commission mailed an order
denying relator's request for reconsideration.
No. 16AP-263 13
{¶ 30} 18. On December 7, 2014, Dr. Freshwater wrote:
James Reichley had an industrial accident in March 1988
involving a burst fracture of L3 which resulted in severe
cauda equina compression and paraplegia. Due to increasing
pain beginning about August 2011, total permanent disability
was recommended. * * *
Due to continued pressure from his employer and a sense of
despair/worthlessness related to not working, Mr. Reichley
consented to return to a clerical job with his employer in
October 2014. He states that his job duties were primarily
sitting at a desk and performing data entry. Within two
weeks, he discovered that he could not tolerated [sic] the
pain across his low back radiating into his legs which was
worsened by sitting even for short periods of time. He notes
that he cannot walk very far because of back pain nor can he
stand for any length of time due to back pain and the leg
braces. Since the two-week trial, he has not worked.
There is no amount of pain medication, therapy, or surgery
which will alleviate his pain and allow him to do a sitting,
standing or walking job. As stated previously, it is my
opinion that he is totally and permanently disabled.
{¶ 31} 19. On December 9, 2014, Dr. Kindl wrote:
Mr. James Reichley has been evaluated and treated by the
undersigned pursuant to back and leg condition. As you
recall, he suffered an L3 burst fracture with resultant
paraplegia.
Despite near complete loss of leg use he has remained active
with respect to remunerative labor. His physical limitations
have precipitated the need for the use of bilateral one point
[walking] devices to maintain [mobility].
The protracted use of the bilateral one point walking devices
has precipitated compensatory shoulder discomfort which is
likely a sequela of the repetitive misuse accelerating
degenerative change as a result of carrying near total body
weight on the upper extremities. The likelihood of osseous
and soft tissue derangement is high.
In summary, Mr. Reichley presents with near complete
paralysis of his legs after an L3 burst fracture. He has been
reliant on upper extremity weight bearing for years which
No. 16AP-263 14
has caused progressive shoulder deterioration. He is no
longer able to support his body weight on two canes.
I therefore indicate that to a reasonable degree of medical
certainty Mr. Reichley does present with substantial physical
barriers to performing remunerative labor. This condition is
permanent to a greater than 50% degree of certainty.
Improvement is not expected.
{¶ 32} 20. On December 23, 2014, relator filed his second PTD application. In
support, relator submitted the December 7, 2014 report of Dr. Freshwater and the
December 9, 2014 report of Dr. Kindl.
{¶ 33} 21. Also, relator submitted wage statements from R & R Chinchilla, Inc.
showing that he was employed from September 28, 2014 through October 25, 2014.
{¶ 34} Relator was paid biweekly at $10 per hour. During the first biweekly period,
relator worked 40 hours and received gross pay of $400. During the second biweekly
period, relator worked 35 hours and received gross pay of $350.
Additional Claim Allowances
{¶ 35} 22. Earlier, on May 10, 2013, relator moved for additional allowances in the
claim.
{¶ 36} 23. Following a July 26, 2013 hearing, a district hearing officer ("DHO")
issued an order additionally allowing the claim for "bilateral supraspinatus tendon tear;
bilateral shoulder impingement syndrome."
{¶ 37} 24. Cooper Tire administratively appealed the DHO's order of July 26,
2013.
{¶ 38} 25. Following a September 6, 2013 hearing, an SHO issued an order
additionally allowing the claim for "bilateral supraspinatus tendon tear; bilateral shoulder
impingement syndrome."
{¶ 39} 26. On October 4, 2013, another SHO mailed an order refusing the
employer's appeal from the SHO's order of September 6, 2013.
{¶ 40} 27. On January 5, 2015, relator moved for an additional claim
allowance─"bicipital tenosynovitis left."
{¶ 41} 28. On January 9, 2015, an SHO issued an "Ex Parte Order," stating:
Injured Worker's IC-2 Application for Permanent Total
Disability, filed 12/23/2014, is continued because the
No. 16AP-263 15
Injured Worker's C-86 motion requesting an additional
allowance, filed 01/05/2015 and received 12/22/2014 by
Self-Insured Employer, must be processed prior to
consideration of the Injured Worker's IC-2, pursuant to Ohio
Adm.Code 4121-3-34.
The Injured Worker's C-86 motion requesting an additional
allowance, filed 01/05/2015, is referred for processing.
Thereafter, the IC-2 should be referred to the Industrial
Commission for adjudication.
{¶ 42} 29. Following a February 17, 2015 hearing, a DHO issued an order
additionally allowing the claim for "bicipital tenosynovitis, left."
{¶ 43} 30. The employer administratively appealed the DHO's order of
February 17, 2015.
{¶ 44} 31. Following a May 11, 2015 hearing, an SHO issued an order stating that
the DHO's order of February 17, 2015 is "modified." However, the May 11, 2015 order of
the SHO additionally allowed the claim for "bicipital tenosynovitis left."
{¶ 45} 32. On June 10, 2015, another SHO mailed an order refusing the
employer's appeal from the SHO's order of May 11, 2015.
{¶ 46} 33. Earlier, on December 3, 2014, relator underwent left shoulder surgery
that was performed by orthopaedic surgeon Michael R. Tremains, M.D.
{¶ 47} Dr. Tremains performed an arthroscopic rotator cuff repair, a subacromial
decompression, an arthroscopic Mumford procedure, and a biceps tenotomy.
{¶ 48} 34. On February 4, 2015, at the request of Cooper Tire, relator was
examined by Douglas C. Gula, D.O. Dr. Gula examined only for the allowed conditions
related to the left shoulder.
{¶ 49} 35. On August 10, 2015, Dr. Gula issued an addendum to his February 4,
2015 report. In his addendum, Dr. Gula opined:
In my medical opinion, Mr. Reichley is capable of
performing work in the sedentary category when considering
my examination of the left shoulder that was performed on
February 4, 2015.
{¶ 50} 36. On August 26, 2015, at the commission's request, relator was examined
by Kurt A. Kuhlman, D.O. In his five-page narrative report, Dr. Kuhlman listed the
allowed conditions of the claim:
No. 16AP-263 16
Burst fracture L3 with incomplete paraplegia; compound
fracture right tibia and fibula; fracture of right calcaneus;
laceration left forehead; ulcer of heel and midfoot; claw foot,
acquired; left wrist scaphoid contusion; bilateral
supraspinatus tendon tear; bilateral shoulder impingement
syndrome; bicipital tenosynovitis, left.
{¶ 51} Page five of Dr. Kuhlman's report states:
ANSWER TO QUESTIONS: After performing a thorough
history and physical examination, as well as review of
multiple medical records, I can answer the following
questions with a reasonable degree of medical certainty and
probability.
[One] Has the Injured worker reached maximum medical
improvement with regard to each specified allowed
condition? Briefly describe the rationale for your opinion. If
yes, then please continue to items #2 and #3.
a. Regarding burst fracture L3 with incomplete
paraplegia, compound fracture right tibia and
fibula, fracture right calcaneus, laceration left
forehead, ulceration of heel and midfoot, clawfoot
acquired, left wrist scaphoid contusion, left
supraspinatus tendon tear, left shoulder
impingement syndrome, bicipital tenosynovitis left,
the patient has reached maximum medical improvement. He
has underwent extensive work up and treatment including
multiple surgeries. His symptoms are not changing
significantly at this time with respect to these allowed
conditions. Therefore, he has reached maximum medical
improvement.
b. Regarding right supraspinatus tendon tear, right
shoulder impingement syndrome, he has not reached
maximum medical improvement. This is because he is
scheduled for surgery on the right shoulder in November
2015. After his left shoulder surgery in December 2014, he
did make definite improvement. Therefore, I am optimistic
his right shoulder will improve after surgery as well.
Therefore, he has not reached maximum medical
improvement with respect to these allowed conditions.
[Two] Based on the AMA Guides, 5th Edition, and with
reference to the Industrial Commission Medical
Examination Manual, provide the estimated percentage of
No. 16AP-263 17
whole person impairment arising from each allowed
condition. Please list each condition and whole person
impairment separately, and then provide a combined whole
person impairment. If there is no impairment for an
allowed condition, indicate 0 percent. Following the
Industrial Commission guidelines, I was instructed not to
answer this question because he has not reached maximum
medical improvement for all of the allowed conditions of this
claim. I would consider reevaluating this claim six months
after his scheduled right shoulder surgery in November 2015
as he will probably be maximally medically improved at that
time.
[Three] Complete the enclosed physical strength rating. In
your narrative report provide a discussion setting forth
physical limitations resulting from the allowed conditions.
Following the Industrial Commission guidelines, I was
instructed not to answer this question because he has not
reached maximum medical improvement for all of the
allowed conditions of this claim.
(Emphasis sic.)
{¶ 52} 37. On December 9, 2015, relator underwent right shoulder surgery
performed by Dr. Tremains. Dr. Tremains performed a right shoulder arthroscopic
rotator cuff repair, an arthroscopic subacromial decompression, an arthroscopic
Mumford procedure, and an arthroscopic biceps tenotomy.
{¶ 53} 38. On January 27, 2016, relator's second PTD application was heard by an
SHO. The hearing was recorded and transcribed for the record. On February 10, 2016,
the SHO mailed an order denying relator's second PTD application. The SHO's order of
January 27, 2016 explains:
First and foremost, this Hearing Officer finds the Injured
Worker voluntarily abandoned the entire job market. This
Hearing Officer finds the Injured Worker filed a prior
08/14/2012 application for permanent total disability which
was addressed by a Staff Hearing Officer order issued
02/27/2013. The Staff Hearing Officer found the Injured
Worker to have voluntarily removed himself from the work
force. It was found that the Injured Worker had worked for
the Employer of record, as a supervisor, until he left his
employment on 10/30/2011, at which time, he took disability
retirement. The testimony of the Injured Worker was
memorialized by the prior Staff Hearing Officer order
No. 16AP-263 18
indicating the Injured Worker testified that he was planning
on retiring at the age of 62, had no interest in returning to
the work force, and when he was questioned about
vocational rehabilitation he was equivocal as he was not
planning on working past the age of 62. This Hearing Officer
finds it notable that the Injured Worker's current application
for permanent total disability, filed 12/23/2014, indicates he
is not interested in rehabilitation services and does not
desire to undergo a rehabilitation evaluation. From the
Injured Worker's testimony and application for permanent
temporary disability, this Hearing Officer finds the Injured
Worker worked two weeks, doing data entry, for a business
named R & R Chinchilla during the period 10/06/2014 to
10/21/2014. He testified that he left this employment due to
having a progression of low back pain with neurological pain
radiating to his hips and legs. However, this Hearing Officer
finds the claim file does not contain any contemporaneous
medical documentation indicating Injured Worker was
removed from and/or disabled from doing this work.
This Hearing Officer finds the Injured Worker's two week
return to employment in October of 2014 did not cure his
voluntary abandonment of the work force so as to establish
his eligibility for temporary total disability compensation or
permanent total disability compensation. The Supreme
Court of Ohio in State ex rel. McCoy v. Dedicated Transport,
Inc., 97 Ohio St.3d 25, 2002-Ohio-5305 held that an Injured
Worker who abandons his or her former position of
employment will be eligible to receive temporary total
disability compensation if he or she re-enters the work force
and, due to the original industrial injury, becomes
temporarily and totally disabled while working at his or her
new job. This Hearing Officer finds no evidence that the
Injured Worker became temporarily and totally disabled
while working for R & R Chinchilla in October of 2014,
including any request for payment of temporary total
disability compensation contemporaneous to leaving this
position. Thus, this hearing Officer finds the Injured Worker
did not cure his voluntary abandonment so as to establish his
eligibility for permanent total disability should he be found
to be permanently and totally disabled subsequent to
October of 2014.
In addition, the Injured Worker's application for permanent
total disability is denied for the reason that this Hearing
Officer does not find the Injured Worker to have reached
maximum medical improvement for all of the allowed
No. 16AP-263 19
conditions in this claim. This Hearing Officer finds in
support of the Injured Worker's application for permanent
total disability, the Injured Worker submitted a 12/09/2014
report of Franklin Kindl, M.D. wherein he opined the Injured
Worker to present with near complete paralysis of his legs
after an L3 burst fracture for which he is relying on upper
extremity weight bearing for years which has caused
progressive shoulder deterioration. He indicated the Injured
Worker is no longer able to support his body weight onto
canes. He opined the Injured Worker to have substantial
physical barriers to performing remunerative labor and his
condition is permanent. This Hearing Officer finds the
Injured Worker recently had right shoulder arthroscopic
rotator cuff repair with subacromial decompression,
Mumford procedure, biceps tenotomy and debridement of
the subscapularis and labral rim. At hearing, the Injured
Worker acknowledged that once he healed up from his
shoulder surgeries, the goal was for him to be able to use
crutches again.
On 08/26/2015, an independent medical examination was
conducted on behalf of the Industrial Commission by Kurt
Kuhlman, D.O. He acknowledged that the Injured Worker
was scheduled for right shoulder surgery, believed to be in
November of 2015. Dr. Kuhlman indicated that he was
optimistic that the Injured Worker's right shoulder would
improve after surgery as well. Dr. Kuhlman concluded that
the Injured Worker had not reached maximum medical
improvement with respect to his right supraspinatus tendon
tear and right shoulder impingement syndrome. This
Hearing Officer finds no medical evidence that the Injured
Worker has reached maximum medical improvement for the
allowed right shoulder conditions. Lastly, this Hearing
Officer does not find a persuasive opinion from any
physician supporting the Injured Worker to be permanently
and totally disabled as a result of any of the recognized
physical conditions which do not pertain to the right
shoulder.
Based on the aforementioned findings, this Hearing Officer
does not find sufficient medical evidence that the Injured
Worker is permanently and totally disabled, and if the
medical evidence had established that the Injured Worker
was permanently and totally disabled, this Hearing Officer
does not find the Injured Worker eligible for permanent total
disability benefits based on the finding that he has
voluntarily abandoned the work force. Therefore, the Injured
No. 16AP-263 20
Worker's application for permanent total disability, filed
12/23/2014, is denied.
{¶ 54} 39. On April 7, 2016, relator, James R. Reichley, filed this mandamus
action.
Conclusions of Law:
{¶ 55} Two issues are presented: (1) whether the SHO's order of February 19, 2013
contains an abuse of discretion in finding that relator voluntarily abandoned the
workforce at the time he left work at Cooper Tire on October 30, 2011; and (2) whether
the finding of workforce abandonment in the SHO's order of January 27, 2016 constitutes
an abuse of discretion by failing to find that relator re-established PTD eligibility by
working at R & R Chinchilla, Inc. for a four-week period during September and October
2014.
Basic Law─PTD─Workforce Abandonment
{¶ 56} Ohio Adm.Code 4121-3-34 provides the commission's rules for the
adjudication of PTD applications.
{¶ 57} Thereunder, Ohio Adm.Code 4121-3-34(D) provides guidelines for the
adjudication of PTD applications.
{¶ 58} Ohio Adm.Code 4121-3-34(D)(1) (d) currently provides:
If, after hearing, the adjudicator finds that the injured
worker voluntarily removed himself or herself from the work
force, the injured worker shall be found not to be
permanently and totally disabled. If evidence of voluntary
removal or retirement is brought into issue, the adjudicator
shall consider evidence that is submitted of the injured
worker's medical condition at or near the time of
removal/retirement.
{¶ 59} Paragraphs two and three of the syllabus of State ex rel. Baker Material
Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994) state:
An employee who retires prior to becoming permanently and
totally disabled is precluded from eligibility for permanent
total disability compensation only if the retirement is
voluntary and constitutes an abandonment of the entire job
market. * * *
An employee who retires subsequent to becoming
permanently and totally disabled is not precluded from
No. 16AP-263 21
eligibility for permanent total disability compensation
regardless of the nature or extent of the retirement.
{¶ 60} Two cases involving PTD are instructive.
{¶ 61} In State ex rel. Black v. Indus. Comm., 137 Ohio St.3d 75, 2013-Ohio-4550,
the claimant, Billy G. Black, applied for PTD compensation following an industrial injury.
The commission's denial of PTD compensation prompted Black to file a mandamus action
in this court. Ultimately, on appeal, the Supreme Court of Ohio upheld the commission's
denial of the application.
{¶ 62} Black was employed as a press operator for Park Ohio, a self-insured
employer, when he injured his lower back on October 7, 2000. Dr. Elizabeth Mease
diagnosed lumbar strain and placed Black on modified duty with restrictions. When he
returned to work two days later, he was assigned to clean bathrooms. After a few hours,
he returned to Dr. Mease who indicated that Black should not engage in any activity.
{¶ 63} On November 10, 2000, Dr. Mease authorized Black to return to work with
restrictions and referred him to Dr. Mark Panigutti, an orthopedic physician.
{¶ 64} On December 11, 2000, Dr. Panigutti 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.
{¶ 65} Also, on December 11, 2000, Black notified his employer that he intended to
retire on February 28, 2001.
{¶ 66} 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.
{¶ 67} The court, in Black, states:
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.
No. 16AP-263 22
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
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.
Id. at ¶ 7-8.
{¶ 68} In its opinion, the court, in Black, sets forth basic law instructive on the
issue before the court:
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, 1996 Ohio 297, 670 N.E.2d 234
(1996); State ex rel. Rockwell Internal. 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.
***
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
No. 16AP-263 23
substantiate a connection between 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.
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, 31 Ohio B. 70,
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.
Id. at ¶ 14, 18-19.
{¶ 69} The court, in Black, concluded:
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.
Id. at ¶ 23.
{¶ 70} In State ex rel. Kelsey Hayes Co. v. Grashel, 138 Ohio St.3d 297, 2013-
Ohio-4959, the claimant, Arthur Grashel applied for and obtained PTD compensation.
Grashel's employer, Kelsey Hayes Company, filed an original action in this court in which
it contended that Grashel had voluntarily abandoned the workforce and was thus
ineligible for PTD compensation.
{¶ 71} This court granted the writ ordering the commission to rehear the matter
and to consider whether Grashel had voluntarily abandoned the workforce when he
retired in 2004. Id. at ¶ 10.
{¶ 72} Following a September 1, 2009 hearing, a commission SHO again awarded
PTD compensation. Id. at ¶ 11.
{¶ 73} The hearing officer concluded that Grashel had left the workforce due to the
allowed conditions in his claim.
{¶ 74} Kelsey Hayes filed another mandamus in this court. This court denied the
writ and Kelsey Hayes appealed as of right to the Supreme Court of Ohio.
No. 16AP-263 24
{¶ 75} In reversing the judgment of this court and granting the writ, the court, in
Kelsey Hayes explained:
Kelsey Hayes further maintains that not only did Grashel
voluntarily retire in 2004 but he also failed to seek other
employment or vocational training, thereby abandoning the
entire job market and making himself ineligible for
compensation for permanent total disability. State ex rel.
Baker Material Handling Corp, 69 Ohio St.3d 202, 1994
Ohio 437, 631 N.E.2d 138, paragraph two of the syllabus.
We agree that the evidence clearly demonstrates that Grashel
had abandoned the entire job market. After he stopped
working in September 2004, there is no evidence that he
sought other employment. He did not attempt vocational
rehabilitation despite statements from his treating physician
indicating that he could return to work in an environment
away from the fumes that had aggravated his condition. In
October 2005, Grashel testified before the commission that
he had opted to take an early social security retirement for
financial reasons after his claim for temporary-total-
disability compensation was denied in 2005.
Id. at ¶ 18-19.
Basic Law─TTD─Workforce Abandonment
{¶ 76} State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245
is the seminal case regarding denial of TTD eligibility based on voluntary workforce
abandonment where the claimant failed to look for work following an involuntary job
abandonment.
{¶ 77} Because Pierron is at the core of Cooper Tire's position in this action, a
review of that case is instructive.
{¶ 78} In Pierron, the claimant, Richard Pierron, was seriously injured in 1973
while working as a telephone lineman for Sprint/United Telephone Company
("Sprint/United").
{¶ 79} After Pierron's injury, his doctor imposed medical restrictions that were
incompatible with his former position of employment as a lineman. Sprint/United
offered Pierron a light-duty job consistent with those restrictions and Pierron continued
to work in that position for the next 23 years.
No. 16AP-263 25
{¶ 80} In 1997, Sprint/United informed Pierron that his light-duty position was
being eliminated. Sprint/United did not offer Pierron an alternative position, but did give
him the option to retire or be laid off. Pierron chose retirement.
{¶ 81} In the years that followed, Pierron remained unemployed except for a brief
part-time stint as a flower delivery person. In later 2003, he moved for TTD
compensation beginning June 17, 2001.
{¶ 82} Ultimately, the three-member commission determined that Pierron had
voluntarily abandoned the workforce when he retired in 1997. Pierron then filed a
mandamus action in this court. This court denied the writ and Pierron appealed as of
right to the Supreme Court of Ohio.
{¶ 83} In affirming the judgment of this court and, thus, upholding denial of the
writ, the Pierron court explained:
We are confronted with this situation in the case before us.
The commission found that after Pierron's separation from
Sprint/United, his actions—or more accurately inaction—in
the months and years that followed evinced an intent to leave
the work force. This determination was within the
commission's discretion. Abandonment of employment is
largely a question "'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.
(1989), 45 Ohio St.3d 381, 383, 544 N.E.2d 677, quoting
State v. Freeman (1980), 64 Ohio St.2d 291, 297, 18 O.O.3d
472, 414 N.E.2d 1044. In this case, the lack of evidence of a
search for employment in the years following Pierron's
departure from Sprint/United supports the commission's
decision.
We recognize that Pierron did not initiate his departure from
Sprint/United. We also recognize, however, that there was
no causal relationship between his industrial injury and
either his departure from Sprint/United or his voluntary
decision to no longer be actively employed. When 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, 1995 Ohio 82, 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, but once that separation nevertheless
No. 16AP-263 26
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.
Id. at ¶ 10-11.
{¶ 84} Here, Cooper Tire relies heavily on State ex rel. Floyd v. Formica Corp., 140
Ohio St.3d 260, 2014-Ohio-3614, a case that relies on Pierron.
{¶ 85} In the Floyd case under "Facts," the Supreme Court of Ohio states:
On March 11, 2000, Darwin Floyd was injured while working
for the Formica Corporation, a self-insured employer. A
workers' 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.
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. 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-total-disability
compensation until the commission concluded that his
condition had again reached maximum medical improvement
on May 26, 2009.
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
No. 16AP-263 27
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.
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, Floyd's failure to look for any other employment was
evidence that he did not intend to re-enter the workforce
after leaving Formica, thus making him ineligible for further
compensation. The commission agreed.
Id. at ¶ 4-7.
{¶ 86} In upholding the commission's decision that denied the request for TTD
compensation, the court explained:
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. Industrial Com. of Ohio, 34 Ohio St.3d 42, 43-
44, 517 N.E.2d 533 (1987).
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 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
No. 16AP-263 28
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.
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 General Plastic Film
Div. v. Industrial Com. of Ohio, 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.
Id. at ¶ 14-16.
First Issue
{¶ 87} The first issue is whether the SHO's order of February 19, 2013 contains an
abuse of discretion in finding that relator voluntarily abandoned the workforce at the time
he left work at Cooper Tire on October 30, 2011. Relator contends that the finding is not
supported by some evidence on which the SHO relied. The magistrate disagrees.
{¶ 88} Relator begins his argument by pointing out that the voluntary
abandonment issue was raised sua sponte by the SHO at the February 19, 2013 hearing,
and that the only evidence relied upon was relator's own hearing testimony. Relator
argues:
[W]hen provided with an invitation from the SHO -- through
the use of a leading question -- Reichley declined to affirm
his intent to leave the work force entirely. Instead, he merely
confirmed that he had left the work force for the entirety of
2011. Reichley's accurate testimony─that he left the work
force for the "entirety" of 2011─is "entirely" different than
leaving the workforce permanently as claimed by the SHO.
This testimony fails to act as some evidence to support the
Commission's finding.
(Emphasis sic.) (Relator's Brief at 15.)
No. 16AP-263 29
{¶ 89} In the magistrate's view, relator posits a strained interpretation of the
recorded exchange between the SHO and relator.
{¶ 90} Relator's statement "For the entirety, 2011" can be legitimately viewed as an
affirmative response to the SHO's query "Left the work force entirely?" and that it began
during the year 2011.
{¶ 91} It can be emphasized that the SHO's order of February 19, 2013 finds:
This Staff Hearing Officer finds the testimony of Mr.
Reichley clearly indicated that he left the workforce in 2011
without any intent to return to the workforce in a lesser,
sedentary capacity. This Staff Hearing Officer finds Mr.
Reichley abandoned the workforce and not merely the
previous job.
{¶ 92} The SHO was not required to give relator's hearing testimony the strained
interpretation that relator posits here. Moreover, to the extent that relator's hearing
testimony can be given two legitimate interpretations, it is the commission and its hearing
officers that weigh the evidence. Clearly, relator's testimony, as interpreted by the SHO,
provides some evidence to support the finding of a voluntary workforce abandonment.
{¶ 93} Moreover, relator's hearing testimony, as previously discussed, cannot be
viewed in isolation with his later hearing testimony on February 19, 2013. As earlier
noted, a lengthy exchange occurred between counsel for Cooper Tire and relator. That
exchange began with a question from counsel for Cooper Tire "would you be willing to do
vocational retraining?" The SHO's description of relator's testimony as "equivocal"
accurately describes the testimony. With respect to the question from counsel regarding a
willingness to undergo vocational retraining, relator stated "I am not so sure, I am kind of
on the fence, yes and no." Certainly, relator's response was equivocal.
{¶ 94} Significantly, during the exchange, relator states:
And you're right about retirement, yes, I have made up my
mind to retire, and also made up my mind years ago that I
was going to start collecting social security at 62 and not wait
until 70, because my dad died at 70 and I decided I was not
going to do that.
(Tr. at 30.)
No. 16AP-263 30
{¶ 95} Relator's statement can be divided into two parts. One, that he has made up
his mind to retire, and two, he intends to start collecting social security at age 62.
{¶ 96} The SHO's finding that relator "went on to indicate he had no interest in
returning to the workforce" is supported by relator's transcribed testimony.
{¶ 97} Based on the foregoing analysis, the magistrate concludes that the SHO's
order of February 19, 2013 finding a voluntary abandonment of the workforce is
supported by some evidence and does not constitute an abuse of discretion.
Second Issue
{¶ 98} The second issue is whether the finding of a workforce abandonment in the
SHO's order of January 27, 2016 that denied the second PTD application constitutes an
abuse of discretion. That portion of the SHO's order of January 27, 2016 relevant to this
issue is repeated:
This Hearing Officer finds the Injured Worker's two week
return to employment in October of 2014 did not cure his
voluntary abandonment of the work force so as to establish
his eligibility for temporary total disability compensation or
permanent total disability compensation. The Supreme
Court of Ohio in State ex rel. McCoy v. Dedicated Transport,
Inc., 97 Ohio St.3d 25, 2002-Ohio-5305 held that an Injured
Worker who abandons his or her former position of
employment will be eligible to receive temporary total
disability compensation if he or she re-enters the work force
and, due to the original industrial injury, becomes
temporarily and totally disabled while working at his or her
new job. This Hearing Officer finds no evidence that the
Injured Worker became temporarily and totally disabled
while working for R & R Chinchilla in October of 2014,
including any request for payment of temporary total
disability compensation contemporaneous to leaving this
position. Thus, this Hearing Officer finds the Injured Worker
did not cure his voluntary abandonment so as to establish his
eligibility for permanent total disability should he be found
to be permanently and totally disabled subsequent to
October of 2014.
{¶ 99} In reaching his finding, the SHO relied heavily, if not exclusively, upon State
ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, the
syllabus of which provides:
No. 16AP-263 31
A claimant who voluntarily abandoned his or her former
position of employment or who was fired under
circumstances that amount to a voluntary abandonment of
the former position will be eligible to receive temporary total
disability 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 his or her new job.
{¶ 100} Applying its holding to the two cases before the court, the McCoy court
explains:
It is important to note that this holding is limited to
claimants who are gainfully employed at the time of their
subsequent disabilities. In contrast, every case that we
decided before Baker involved a claimant who had not only
voluntarily abandoned the former employment, but who also
had no job at the time of the subsequent period of disability.
Thus, none of our prior decisions is affected by our holding
today, and claimants in those situations will continue to be
ineligible for TTD compensation.
We now proceed to apply our holding to the facts presented
in the instant cases. In case No. 2001-0232, claimant McCoy
voluntarily abandoned his former position of employment at
Dedicated Transport on March 13, 1998, by virtue of being
justifiably fired. He sought TTD compensation beginning on
January 26, 1999, the date he was allegedly diagnosed with a
disc herniation, or alternatively on June 28, 1999, the date of
his surgery. However, there is no evidence in the record to
suggest that McCoy was gainfully employed at these times or
that he would have been employed if not for his industrial
injury. To the contrary, the record reveals that McCoy's only
employment from March 13, 1998, when he was fired, to
June 28, 1999, when he underwent surgery, consisted of
driving his cousin's truck on 12 to 15 separate days between
February 3, 1999, and April 15, 1999 for $ 12 each day.
Indeed, McCoy's attorney succinctly stated during a hearing
held on October 29, 1999, before the commission's hearing
officer that this "activity * * * did not constitute sustained
gainful employment."
Accordingly, McCoy is not eligible to receive TTD
compensation for the periods in question.
In case No. 2001-0406, claimant Brandgard voluntarily
abandoned his former position of employment at America's
No. 16AP-263 32
Body Co. on September 10, 1999, when he was justifiably
fired after testing positive for cocaine. He sought TTD
compensation from September 24, 1999, the date he
underwent surgery, to October 22, 1999, the date he returned
to work for a different employer. However, there is no
evidence in the record of this case to suggest that Brandgard
was actually employed at his new job prior to September 24,
1999, or between September 24 and October 22, 1999.
Id. at ¶ 40-43.
Here, besides its citation to McCoy, respondent-employer cites to that
portion of Pierron wherein the court notes that, in the years that followed his
involuntary retirement from Sprint/United Telephone Company, "Pierron remained
unemployed except for a brief part-time stint as a flower delivery person." Pierron at
¶ 4. That is, Pierron's brief part-time stint did not serve to re-establish eligibility for
TTD compensation.
{¶ 101} In State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-
2587, the Supreme Court of Ohio had occasion to further explain the McCoy holding:
The present claimant seemingly misunderstands McCoy. He
appears to believe that so long as he establishes that he
obtained another job -- if even for a day -- at some point after
his departure from Tech II, TTC eligibility is forever after
reestablished. Unfortunately, this belief overlooks the tenet
that is key to McCoy and all other TTC cases before and
after: that the industrial injury must remove the claimant
from his or her job. This requirement obviously cannot be
satisfied if claimant had no job at the time of the alleged
disability.
In the case at bar, there is no evidence that claimant was
employed in February 2003 when the requested period of
TTC was alleged to have begun. To the contrary, it appears
that claimant was almost entirely unemployed in the two
years after his discharge from Tech II, earning only
approximately $ 800 during that period.
Id. at ¶ 9-10.
No. 16AP-263 33
{¶ 102} The magistrate recognizes that McCoy and its progeny, including Eckerly,
are cases involving TTD compensation. That is, the cases do not adjudicate PTD
compensation.
{¶ 103} Nevertheless, the magistrate finds that the syllabus of McCoy is applicable
here where a claimant who has voluntarily abandoned the workforce seeks to reinstate his
PTD eligibility by evidence of subsequent employment.
{¶ 104} As the SHO's order of January 27, 2016 finds, relator's brief return to
employment in September and October 2014 does not show that relator permanently re-
entered the workforce nor does it re-establish eligibility for PTD compensation. While it
may be argued that relator was engaged in gainful employment during a four-week period
from September 28 through October 25, 2014, relator did not remain at the job and he
has presented no contemporaneous medical evidence that his quitting the job was
causally related to the allowed conditions of the industrial claim.
{¶ 105} Accordingly, based on the above analysis, the magistrate concludes that the
SHO's order of January 27, 2016 does not constitute an abuse of discretion in refusing to
find that relator re-established eligibility for PTD compensation by working at R & R
Chinchilla, Inc.
{¶ 106} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
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).