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State ex rel. Cleveland Browns Football Co. LLC v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

March 9, 2017

State ex rel. Cleveland Browns Football Co., LLC, Relator,
v.
Industrial Commission of Ohio and Ryan Pontbriand, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          Fisher & Phillips, LLP, and Scott W. Gedeon, for relator.

          Scott W. Gedeon.

          Michael DeWine, Attorney General, and Eric J. Tarbox, for respondent, Industrial Commission of Ohio.

          John R. Smart.

          DECISION

          BRUNNER, J.

         {¶ 1} Relator, Cleveland Browns Football Co., LLC ("the club"), is a professional sports franchise domiciled in Ohio and a self-insured employer under the Ohio workers' compensation laws. Respondent, Ryan Pontbriand, was a skilled football player the club employed at the time he incurred an injury during a league game in 2005. Pontbriand applied for a determination of percentage of permanent partial disability ("PPD") on May 30, 2013. The club has filed this original action requesting this Court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the commission"), to vacate its August 19, 2014 order, resulting from its January 23, 2014 hearing, holding that Pontbriand's PPD application was timely filed and referring it to the Ohio Bureau of Workers' Compensation ("BWC").

         {¶ 2} The club asserts that Pontbriand's claim is a medical claim subject to a six-year statute of limitations that expired on May 11, 2012, as provided by former R.C. 4123.52. In a two-to-one decision, the commission found that Pontbriand's claim is not a medical claim but a lost time claim subject to a ten-year statute of limitations, also set forth in former R.C. 4123.52, and that the his claim was filed before the ten years had expired.

         {¶ 3} This Court referred this matter to a magistrate pursuant to Civ.R. 53(C) and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended that this Court deny the club's request for a writ of mandamus.

         {¶ 4} On December 22, 2015, the club filed its objections to the magistrate's decision. The commission filed its memorandum contra the objections on January 15, 2016.

         {¶ 5} After reviewing the magistrate's decision, conducting an independent review of the record pursuant to Civ.R. 53, and giving due consideration of the club's objections, we overrule the club's objections and adopt the magistrate's findings of fact and conclusions of law as our own.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 6} Pontbriand sustained an injury on November 27, 2005 in the performance of his services as a professional football player for the club. At the time of his injury, Pontbriand was under a five-year NFL player contract ("the contract") with the club. Paragraph two of the contract relates to Pontbriand's duties as a player, as follows:

EMPLOYMENT AND SERVICES. Club employs Player as a skilled football player. * * * Player will report promptly for and participate fully in Club's official mandatory mini-camp(s), official preseason training camp, all Club meetings and practice sessions, and all pre-season, regular season, and post-season football games scheduled for or by the Club. If invited, Player will practice for and play in any all-star football games sponsored by the League.

(Feb. 3, 2015 Stipulation of Evidence at 33.) Paragraphs eight, nine, and ten of the contract relate to Pontbriand's physical condition, provide for provisions in the event of injury, and interface with workers' compensation, respectively:

8.PHYSICAL CONDITION. Player represents to Club that he is and will remain himself in excellent physical condition. Player will undergo a complete physical examination by the Club physician upon Club request, during which physical examination Player agrees to make full and complete disclosure of any physical or mental condition known to him which might impair his performance under this contract and to respond fully and in good faith when questioned by the Club physician about such condition. If Player fails to establish or maintain his excellent physical condition to the satisfaction of the Club physician, or make the required full and complete disclosure to the Club physician, then Club may terminate this contract.
9. INJURY. Unless this contract specifically provides otherwise, if Player is injured in the performance of his services under this contract and promptly reports such injury to the Club physician or trainer, then Player will receive such medical and hospital care during the term of this contract as the Club physician may deem necessary, and will continue to receive his yearly salary for so long, during the season of injury only and for no subsequent period covered by this contract, as Player is physically unable to perform the services required of him by this contract because of such injury. * * *
10.WORKERS' COMPENSATION. Any compensation paid to Player under this contract or under any collective bargaining agreement in existence during the term of this contract for a period during which he is entitled to workers' compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability will be deemed an advance payment of workers' compensation benefits due Player, and Club will be entitled to be reimbursed the amount of such payment out of any award of workers' compensation.

Id. . at 34.

         {¶ 7} On October 28, 2005, Pontbriand underwent a lumbar spine MRI at the club's request, which resulted in the following medical finding: "IMPRESSION; LARGE CENTRAL AND RIGHT SIDED HERNIATION L5-S1." Id. at 6. The clinic note of October 31, 2005 indicates that the evaluating physician cleared Pontbriand to play football, but indicated that his condition would be re-evaluated if he had any increase in weakness or pain. On November 27, 2005, Pontbriand was re-evaluated for low back pain and disc herniation. The evaluating physician determined Pontbriand's condition had deteriorated and recommended surgical intervention. Pontbriand underwent surgery on December 6, 2005 for "[r]ight-sided L5-S1 microdiskectomy." Id. at 9.

         {¶ 8} It is undisputed that Pontbriand was unable to play in the five regularly scheduled football games held on December 4, 11, 18, and 24, 2005 and January 1, 2006 as a result of his back injury and surgery. It is also undisputed that the club continued to pay Pontbriand his regular salary under the terms of the contract during the time that he was unable to play in football games and was recovering from his December 6, 2005 surgery.

         {¶ 9} Pontbriand was examined January 9, 2006, at which time the examining physician wrote the following:

I do not want [Pontbriand] doing any active resistance exercises just yet. He can do some stretching and aerobic exercises and supported upper extremity exercises. I will see him again in approximately 3 months' time prior to the next football season. He is heading back to Houston for the remainder of the year. He can continue his rehab there and in 4 weeks slowly progress into a resistance program.

Id. at 10. Follow-up examinations indicated that Pontbriand's surgery had resulted in a "complete resolution of symptoms." Id. at 11. The club paid Pontbriand's medical bills, paying the last medical bill on May 11, 2006.

         {¶ 10} In June 2007, Pontbriand filed with BWC a First Report of an Injury, Occupational Disease or Death ("FROI-1"), listing November 27, 2005 as the date of injury. Id. at 1. On June 19, 2007, the club, acting in its capacity as a self-insured employer, certified Pontbriand's claim for "L5-S1 Disc Herniation." Id. at 58-59.

         {¶ 11} On May 30, 2013, Pontbriand filed an Application for Determination of Percentage of Permanent Partial Disability or Increase of Permanent Partial Disability ("C-92") under R.C. 4123.57(A). (Stipulation of Evidence at 24.) The club objected to Pontbriand's claim on the grounds that it had been filed beyond a six-year statute of limitations. The club filed with BWC a form on which it indicated that the claim was "medical only, " not "lost time, " and should be dismissed as untimely filed. Id. at 25. The club also indicated on the form that the last payment for Pontbriand's medical services was May 11, 2006.

         {¶ 12} By order mailed June 11, 2013, BWC dismissed Pontbriand's application as barred by the expiration of the six-year statute of limitations.

         {¶ 13} Pontbriand administratively appealed BWC's June 11 order, and a district hearing officer ("DHO") heard the appeal on July 29, 2013. In an order dated August 1, 2013, the DHO found that Pontbriand's claim was not subject to a six-year statute of limitations, but was subject to a ten-year statute of limitations that had not expired:

[DHO] finds this is a lost time claim, as the Injured Worker was unable to perform the duties of his former position of employment as a football player for the Cleveland Browns and missed five games in 2005 due to the allowed condition in the claim. The Employer paid his salary in lieu of temporary total disability compensation. Even though the Injured Worker continued to attend team meetings and practices and conducted his post-operative rehabilitation at the Employer's rehabilitation facilities, there is no dispute he missed five games due to the industrial injury. Since he was unable to perform the duties of his former position of employment for five games, this constitutes the claim as lost time.
As such, the applicable statutory closure period is ten years from the last date of compensation or medical benefits. In this claim, the payment of a medical bill was 05/11/2006.
Therefore, the C-92 application, filed on 05/30/2013, was timely filed and shall be referred to the [BWC] for processing.

Id. at 28.

         {¶ 14} The club's appeal of the DHO's August 1, 2013 order was heard on September 20, 2013 by a staff hearing officer ("SHO"). In an order mailed September 27, 2013, the SHO denied the club's appeal and made the additional finding that the salary the club paid Pontbriand after his injury was an advance payment of compensation under R.C. 4123.56(C). The SHO further found that, because Pontbriand had continued to receive his salary while he was unable to play football due to the allowed condition, the club was entitled to reimbursement for payment out of any workers' compensation award as provided in paragraph ten of the contract.

         {¶ 15} The club's administrative appeal of the SHO's September 27, 2013 order was denied by a different SHO by order mailed October 22, 2013. On November 1, 2013, the club moved for reconsideration.

         {¶ 16} On January 9, 2014, the commission, voting two-to-one, mailed an interlocutory order vacating the second SHO order, issued October 22, 2013. On January 23, 2014, the commission held a hearing on the club's request for reconsideration and took the matter under advisement.

         {¶ 17} By order mailed August 19, 2014, the commission announced its finding, voting two-to-one, that the first SHO order, mailed September 27, 2013, had incorrectly stated that the salary Pontbriand continued to receive after his injury was advance payment of compensation under R.C. 4123.56(C). The commission exercised continuing jurisdiction in order to correct the SHO's error, granted the club's request for reconsideration, and vacated the SHO order mailed September 27, 2013. The commission determined that Pontbriand had received wages in lieu of temporary total disability ("TTD") compensation and, thus, the ten-year statute of limitations of former R.C. 4123.52 applied, making Pontbriand's claim for the determination of PPD timely filed, and made the following specific findings:

[Pontbriand] was a professional football player on the date of injury 11/27/2005. As a result of the injury sustained in the course and scope of his employment, the Self Insuring [club] certified the claim for L5-S1 DISC HERNIATION. On 12/06/2005, [Pontbriand] underwent a microdiskectomy for correction of the allowed condition. * * *
The [club] does not contest [Pontbriand] was unable to perform his actual football playing duties immediately subsequent to the surgery for the allowed condition. Pursuant to the contract of employment entered into between the [club] and [Pontbriand] prior to the injury, the [club] continued to pay [Pontbriand] his regular salary through the remainder of [Pontbriand's] contract. The [club] also paid the injury-related medical bills, with the last payment of a medical bill related to this claim on 05/11/2006.
* * *
The applicable law on the date of injury states a "medical only claim" has a six year statute of limitations, while a "lost time claim" has a ten year statute of limitations. The Commission finds the salary [Pontbriand] continued to receive after his date of injury and his surgery, while [Pontbriand] was disabled from playing football, was wages in lieu of temporary total disability compensation thereby rendering the instant claim a ten-year, lost time claim.
Therefore, it is the order of the Commission that the C-92, filed 05/30/2013, was timely filed. Further it is the order of the Commission that said C-92 is referred to the [BWC] for the issuance of an order addressing [Pontbriand's PPD] due to the allowed condition in the claim.

(Stipulation of Evidence at 53.)

         {¶ 18} On December 17, 2014, the club filed a complaint for a writ of mandamus with this Court. The club asserts that the commission's August 19, 2014 order is contrary to law and that the commission's factual finding is an abuse of discretion for the following reasons: (1) there is no evidence on file that Pontbriand lost wages; (2) there is no medical proof of Pontbriand's TTD; and (3) there is no evidence that Pontbriand was not capable of, and did not perform, work within his physical capabilities pursuant to the contract.

         {¶ 19} The magistrate recommends in the attached decision that this Court deny the club's request for a writ of mandamus for the reason that the commission did not abuse its discretion in finding that Pontbriand's claim is a lost time claim subject to a ten-year statute of limitations, and that his application for a determination of a PPD award was timely filed.

         II. OBJECTIONS TO THE MAGISTRATE'S DECISION

         {¶ 20} The club presents four objections to the magistrate's decision:

1.The Magistrate erred in finding this claim to be a lost time claim despite finding that Pontbriand was paid his regular salary under his NFL player's contract.
2. The Magistrate erred in finding this a lost time claim despite finding that there was no application for temporary total disability benefits.
3. The Magistrate erred in finding this a lost time claim despite no medical proof of disability in the record.
4. The Magistrate erred in finding that a written offer of suitable employment was necessary to preclude this from being a lost time claim.

         III. LAW AND DISCUSSION

         {¶ 21} To be entitled to relief in mandamus, the club must establish (1) that it has a clear legal right to the relief prayed for, (2) that the commission is under a clear legal duty to perform the act requested, and (3) that the club has no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). To do this, the club must show that the commission abused its discretion "in this context, abuse of discretion has been repeatedly defined as a showing that the commission's decision was rendered without some evidence to support it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987).

         {¶ 22} The issue before the commission was whether Pontbriand had timely filed his application for a determination of PPD. The commission had to determine whether Pontbriand's claim was a medical only claim subject to a six-year limitation period that had expired, or a lost time claim subject to a ten-year limitation period that had not expired. We conclude that the commission's finding that Pontbriand's claim was a lost time claim subject to the ten-year limitation period involved findings of fact and of law.

         {¶ 23} The magistrate's decision sets forth the relevant statutory provisions of the workers' compensation laws in effect at the time of Pontbriand's injury. Former R.C. 4123.52 provides for a six-year limitation period regarding the payment of medical benefits and a ten-year period regarding the payment of TTD compensation under R.C. 4123.56(A) or wages in lieu of that compensation, as follows:

No modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of medical benefits under this chapter, in which event the modification, change, finding, or award shall be made within six years after the payment of medical benefits, or in the absence of payment of compensation under section 4123.57, 4123.58, or division (A) or (B) of section 4123.56 of the Revised Code or wages in lieu of compensation * * * in which event the modification, change, finding, or award shall be made within ten years from the date of the last payment of compensation * * *.

          {¶ 24} Former R.C. 4123.56(A) provides for the payment of TDD compensation and also provides:

[P]ayment shall not be made for the period when any employee has returned to work, when an employee's treating physician has made a written statement that the employee is capable of returning to the employee's former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached the maximum medical improvement.

         {¶ 25} R.C. 4123.56(C) sets forth special provisions applicable to a professional sport franchise domiciled in Ohio:

In the event an employee of a professional sports franchise domiciled in this state is disabled as the result of an injury or occupational disease, the total amount of payments made under a contract of hire or collective bargaining agreement to the employee during a period of disability is deemed an advanced payment of compensation payable under sections 4123.56 to 4123.58 of the Revised Code. The employer shall be reimbursed the total amount of the advanced payments out of any award of compensation made pursuant to sections 4123.56 to 4123.58 of the Revised Code.

         A. The Magistrate erred in finding this claim to be a lost time claim despite finding that Pontbriand was paid his regular salary under his NFL player's contract.

         {¶ 26} The club contends that the magistrate's decision ignores the "unique nature" of the NFL player's contract as it relates to Ohio's workers' compensation law. (Dec. 22, 2015 Relator's Objs. to Mag.'s Decision at 8.) The club argues that the purpose of TTD benefits is to compensate an injured worker for loss of earnings; because Pontbriand continued to receive his regular salary under the terms of his contract, he did not lose any wages or suffer any of compensable wage loss as a proximate result of his injury and thus did not experience a lost time claim.

         {¶ 27} The club argues that the absence of C-84s, Medco 14s, off work slips, or other documentary medical evidence in the record "shows that Pontbriand did not seek [TTD] benefits as he did not have any lost wages to be compensated for through the workers' compensation system." Id. The club contends that the magistrate erred in finding Pontbriand's claim to be a lost time claim, because "there was no loss of earnings and no need for Pontbriand to be made whole through the payment of [TTD] benefits." Id. . at 9.

         {¶ 28} The magistrate states in pertinent part:

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. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, ¶ 8; State ex rel. Bunch v. Indus. Comm., 62 Ohio St.2d 423, 427 (1980).
[The club's] argument ignores that the salary continuation during the period that Pontbriand missed football games, underwent surgery and rehabilitation, was is lieu of the TTD compensation that Pontbriand would statutorily be entitled to receive due to his temporary inability to return to his former position of employment.

(App'x at 103-04.)

         {¶ 29} The magistrate stated, based on the record that "the commission determined that Pontbriand received wages in lieu of TTD compensation and, thus, the ten-year limitation period of former R.C. 4123.52 applied so that the application for determination of PPD was timely filed." (App'x at ¶ 81.) The magistrate noted that the term, "wages in lieu of compensation, " as used in former R.C. 4123.52 is not defined by statute or administrative rule. The magistrate rejected the club's argument that, "Pontbriand never received wages in lieu of TTD compensation as contemplated under former R.C. 4123.52 because, allegedly, Pontbriand never had an inability to return to the former position of employment." (App'x at ¶ 83.)

         {¶ 30} The magistrate covered relevant case law in his decision: "Under R.C. 4123.56, temporary total disability is defined as a disability which prevents a worker from returning to his former position of employment." State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982), syllabus. The Ramirez court stated that "R.C. 4123.56, as excerpted above, specifically refers to the capability of an employee 'to return to his former position of employment.' 'Position' is defined by Webster's Third New International Dictionary as 'the group of tasks and responsibilities making up the duties of an employee.' " Id. . at 632.

          {¶ 31} The magistrate discussed the Supreme Court of Ohio's decision, State ex rel. Evans v. Pepsi-Cola Bottling Co. of Columbus, 22 Ohio St.3d 116 (1986), applying Ramirez in reversing this Court's judgment, stating:

Although the court of appeals in this case found that the Industrial Commission had not abused its discretion because it determined that relator was able to return to most of the responsibilities of her former position of employment on the strength of Dr. Brown's report, a close reading of that report reveals that Dr. Brown did not state that claimant was capable of returning to her former position of employment. Indeed, Dr. Brown's report states specifically that from his examination, Evans "should not be pushing against the skid on the palletizer." As we noted in State ex rel. Horne v. Great Lakes Constr. Co. (1985), 18 Ohio St.3d 79, 80, "[t]he phrase 'and unable to work' means the workers' compensation claimant is unable to return to his former position of employment. The phrase 'former position of employment' means the position the claimant held when he was injured." Thus, since the only evidence relied upon by the Industrial Commission below stated that the claimant should not perform the same task she was required to perform prior to her injury, there was no evidence upon which the Industrial Commission could rely for its determination that Evans is now able to work within the meaning of the workers' compensation statutes. Accordingly, the Industrial Commission abused its discretion, and the remedy of mandamus could be available to Evans. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St. 2d 9');">29 Ohio St. 2d 9 [58 O.O.2d 66].

Id. at 118. The magistrate appropriately followed this precedential holding.

         {¶ 32} The magistrate discussed the holding in State ex rel. Crosby v. Dept. of Mental Retardation, 38 Ohio St.3d 179 (1988), in which the Supreme Court cited its prior decision in Evans and stated, "[w]here restrictions preclude a claimant from returning to some aspect of his former job, that report cannot be relied on as 'some evidence' indicative of the ability to return to the former position of employment." Id. at 180.

         {¶ 33} In appropriately relying on these legal authorities, the magistrate found that just because Pontbriand was able to perform duties under his contract with the club other than playing in football games, wages in lieu of TTD compensation was not precluded. While playing in football games was Pontbriand's principal duty under the contract, the magistrate found in these circumstances that, "the inability to play in football games is an inability to return to the former position of employment under Ramirez regardless of whether ...


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