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State ex rel. Navistar Inc. v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

December 12, 2017

State ex rel. Navistar, Inc., Relator,
v.
Industrial Commission of Ohio and Gary E. Bisdorf, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Vorys, Sater, Seymour and Pease LLP, and Corrine S. Carman, for relator.

         Argued:

          Corrine S. Carman.

         On brief:

          Michael DeWine, Attorney General, and Cheryl J. Nester, for respondent Industrial Commission of Ohio.

         Argued:

          Cheryl J. Nester.

         On brief:

          Stanley R. Jurus Law Office, and Michael J. Muldoon, for respondent Gary E. Bisdorf.

         Argued:

          Michael J. Muldoon.

          DECISION

          SADLER, J.

         {¶ 1} Relator, Navistar, Inc., commenced this original action requesting a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order granting permanent total disability ("PTD") compensation to Gary E. Bisdorf ("claimant") and to enter a new order denying the application for PTD or, in the alternative, remand the matter for further proceedings.

         {¶ 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 the appended decision, including findings of fact and conclusions of law. The magistrate recommended we grant a limited writ ordering the commission to consider the issue of voluntary abandonment of the workforce prior to determining the merits of claimant's PTD application. Both the commission and claimant filed objections to the magistrate's decision. For the following reasons, we sustain the objection filed by the commission, overrule claimant's objection in part as moot and in part as premature, deny relator's request for a writ of mandamus as to the issue of voluntary abandonment of the workforce, and return the cause to the magistrate to consider the remainder of relator's complaint.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 3} None of the parties challenge the magistrate's findings of fact, and we adopt them as our own. A summary of pertinent facts, as more thoroughly set forth in the magistrate's decision, are as follows. Claimant sustained work-related injuries in 1971 and 2001 while employed as an assembler for relator. After each injury, claimant filed for workers' compensation benefits, and claims were allowed for both the 1971 and 2001 injuries.

         {¶ 4} In 2007, claimant moved for and a district hearing officer ("DHO") granted claimant temporary total disability ("TTD") compensation. In doing so, the DHO found that claimant had voluntarily resigned his employment with relator in 2003 but had found other employment and was performing his other job when he again became temporarily and totally disabled.

         {¶ 5} On November 25, 2015, claimant filed an application for PTD compensation with the commission based on the October 22, 2015 report of David Grunstein, D.C., which concluded that claimant's work-related injuries have resulted in claimant being permanently and totally disabled from any type of sustained remunerative employment. Claimant was then examined by physicians at the request of the commission and relator. Christopher Holzaeffel, M.D., issued a January 18, 2015 report concluding claimant is capable of returning to sustained remunerative employment. James Rutherford, M.D., issued a March 15, 2016 report concluding claimant reached maximum medical improvement concerning all allowed conditions and that based on the orthopedic claim allowances under consideration, claimant is incapable of work.

         {¶ 6} A hearing on the PTD application was held before a staff hearing officer ("SHO") of the commission on May 10, 2016. The hearing was recorded and transcribed for the record. Claimant was the sole witness to testify at the hearing. During direct examination, claimant testified he left relator's business after over 30 years of employment, then worked at a gun store for about six and one-half years until the store closed down. Claimant testified that at the gun store job he worked in sales and taught shooting classes, but he could not stand on his feet all day. On cross-examination, claimant agreed that after he worked for relator, he considered himself retired and was not actively looking for a job when he was approached about the job at the gun store and agreed that he left the gun store when it went out of business. Claimant testified he did not look for other similar work after the gun store closed because he was at the point that he could not stand anymore or sit for very long. Counsel for relator never directly asked the SHO to determine whether claimant voluntarily abandoned the workforce following the closing of the gun store.

         {¶ 7} The SHO granted claimant's application for PTD compensation based on the March 15, 2016 report of Dr. Rutherford and the October 22, 2015 report of Dr. Grunstein. The order of the SHO does not mention voluntary abandonment of the workforce. Relator filed a request for reconsideration with the commission asserting the SHO failed to consider the facts of claimant's voluntary, non-disability retirement as required by Ohio Adm.Code 4121-3-34(D)(1)(d) and asserting challenges to the reports of Dr. Rutherford and Dr. Grunstein. A three-person panel of the commission denied reconsideration.

         {¶ 8} On November 15, 2016, relator filed with this court a complaint for a writ of mandamus. In the complaint, relator asserted that "the [c]ommission abused its discretion by awarding PTD without first ruling on the issue of claimant's voluntary retirement, an issue raised by [relator], as required by Ohio Admin Code §4121-3-34(D)(1)(d), " because an employee who voluntarily retires is ineligible for PTD under R.C. 4123.58(D)(3). (Compl. for Writ of Mandamus at 4-5.) Relator alternatively asserted that the commission's reliance on the opinions of Dr. Rutherford and Dr. Grunstein is error because the respective reports are "conclusory, contradictory, " and "do not restrict the opinions therein to medical impairment." (Compl. for Writ of Mandamus at 5.) As a result, relator contended the reports of Dr. Rutherford and Dr. Grunstein are not "some evidence" to support the award of PTD compensation. (Compl. for Writ of Mandamus at 5.) Relator additionally asserted the SHO abused his discretion in not exploring certain factors or considering vocational evidence.

         {¶ 9} The magistrate issued his decision on June 22, 2017. In it, the magistrate found that given relator's counsel elicited testimony from claimant that could support a finding he voluntarily abandoned the workforce following the closing of the gun store, and given the extensive body of developing case law regarding the defense of workforce abandonment that the commission is expected to be familiar with, relator clearly raised the issue of voluntary workforce abandonment. Therefore, the magistrate recommended this court issue a writ of mandamus ordering the commission to vacate its order awarding PTD compensation and to enter an order that determines whether claimant voluntarily abandoned the workforce following the closing of the gun store. The magistrate further specified that if the commission determines the claimant voluntarily abandoned the workforce, the commission should deny PTD compensation, and if the commission determines that claimant did not voluntarily abandon the workforce, it should address the merits of the PTD application.

         {¶ 10} As previously indicated, both the commission and claimant filed objections to the magistrate's decision.

         II. OBJECTIONS

         {¶ 11} The commission sets forth the following objection:

The magistrate erred in finding that the Industrial Commission of Ohio was under an legal obligation to address the issue of voluntary abandonment of the workforce when the employer failed to raise that issue as an affirmative defense at the administrative hearing.

         {¶ 12} Claimant did not delineate specific objections but, rather, "strongly object[s] to the Magistrate's recommendation in this case." (Claimant's Objs. at 2.) In his memorandum in support of his objection, claimant asserts the commission did not abuse its discretion because relator waived the affirmative defense of voluntary abandonment, the record did not support abandonment of the workforce, and the award of PTD compensation was proper.

         III. DISCUSSION

         A. Commission's Objection

         {¶ 13} Under its sole objection, the commission contends the magistrate erred in finding the commission was under a legal obligation to address the issue of voluntary abandonment of the workforce when the employer failed to raise that issue as an affirmative defense at the administrative hearing.

         {¶ 14} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the objected matter " 'to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.' " State ex rel. William E. v. Indus. Comm., 10th Dist. No. 12AP-205, 2013-Ohio-1017, ¶ 6, quoting Civ.R. 53(D)(4)(d). In order to be entitled to a writ of mandamus, relator must establish a clear legal right to the relief sought, a clear legal duty on the part of the respondent to perform the requested act, and the lack of an adequate remedy in the ordinary course of law. Id. at ¶ 9. This is a "heavy burden" that must be supported by proof that is "plain, clear, and convincing." Id. Thus, absent clear and convincing proof that relator raised the issue of voluntary abandonment of the workforce before the SHO, relator cannot establish the SHO had a clear legal duty to address that issue. Id. at ¶ 11.

         {¶ 15} "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 Black v. Indus. Comm., 137 Ohio St.3d 75, 2013-Ohio-4550, ¶ 14. State ex rel. Jenkins v. Indus. Comm., 10th Dist. No. 16AP-534, 2017-Ohio-7896, ¶ 4; Ohio Adm.Code 4121-3-34(D)(1)(d). "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." Black at ¶ 14, citing State ex rel. Cinergy Corp./Duke Energy v. Heber, 130 Ohio St.3d 194, 2011-Ohio-5027, ¶ 5.

         {¶ 16} Pertinent administrative guidelines "expressly require the hearing officer to address the issue of voluntary abandonment." State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223, 2014-Ohio-1904, ¶ 20, citing Ohio Adm.Code 4121-3-34(D)(1)(d). However, a hearing officer is only required to address issues that are properly raised. Id. at ¶ 21 (noting the failure to raise an argument to the hearing officer constitutes waiver), citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81-83 (1997); Jenkins at ¶ 3-5 (stating voluntary abandonment of the workforce is an affirmative defense and specifically rejecting the proposition that issue of voluntary abandonment is always a part of a PTD determination).

         {¶ 17} If the issue of voluntary retirement or abandonment of the workforce is raised, a hearing officer's failure to address the issue constitutes a mistake of law justifying the commission's decision to reconsider the matter. State ex rel. Stevens v. Indus. Comm., 142 Ohio St.3d 313, 2015-Ohio-1352, ¶ 17, citing Ohio Adm.Code 4121-3-34(D)(1)(d); State ex rel. Mackey v. Ohio Dept. of Edn., 130 Ohio St.3d 108, 2011-Ohio-4910, ¶ 5; State ex rel. Hayes v. Indus. Comm., 10th Dist. No. 01AP-1087, 2002-Ohio-3675, ¶ 4.

         {¶ 18} Conversely, if the issue of voluntary retirement or abandonment of the workforce is not raised, and the SHO nonetheless addresses the issue for the first time in its order, the commission abuses its discretion and may violate due process protections afforded to the parties. See Jenkins at ¶ 5 (holding the commission violated claimant's due process rights by denying his PTD application on the basis of voluntary workforce abandonment where the issue was not raised at the hearing). In this context, due process demands a claimant have sufficient notice an issue has been raised and an opportunity to present evidence on that issue. Id.

         {¶ 19} Resolution of this case centers on what actions sufficiently raise the issue of voluntary retirement or abandonment of the workforce when contesting a claimant's request for PTD compensation. Relator implies that under Ohio Adm.Code 4121-3- 34(D)(1)(d) and the commission's "obligation to know and apply the relevant case law, " relator sufficiently raised the issue by producing evidence that may support claimant's voluntary departure from the workforce prior to his application for PTD compensation. (Relator's Memo. in Opp. to Commission's Objs. at 3.) Ohio Adm.Code 4121-3- 34(D)(1)(d) 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.

(Emphasis added.)

         {¶ 20} First, as previously discussed, the issue of whether the injured worker voluntarily removed himself or herself from the workforce must be raised and is subject to waiver. Jenkins at ¶ 3-5. Furthermore, the second sentence of Ohio Adm.Code 4121-3-34(D)(1)(d) plainly guides the hearing officer to consider certain specific medical evidence that is submitted if evidence of voluntary removal or retirement is brought into issue. It does not state a standard to decide whether the defense of voluntary abandonment is raised before the SHO. We decline to read more into the rule than it states.

         {¶ 21} Second, case law suggests that while counsel for the employer need not state "magic words" to raise voluntary retirement or workforce abandonment as an issue, the issue is not considered raised simply because evidence that may support a finding of voluntarily workforce abandonment exists in the record. (Memo. Contra Commission's Objs. at 5.) See, e.g., State ex rel. Mackey v. Dept. of Edn. & Indus. Comm., 10th Dist. No. 09AP-966, 2010-Ohio-3522, ¶ 8, 16, affd, 2011-Ohio-4910 (considering the issue of voluntary retirement to be sufficiently raised where, at the hearing, the parties discussed claimant's retirement, her employer argued the retirement was voluntary, and evidence was presented on the issue); Quarto Mining at 81-82 (finding even though the record contained evidence of retirement, the commission did not abuse its discretion by not addressing a claimant's possible voluntary retirement where the employer had failed to raise the issue in the administrative hearing); State ex rel. Garrison v. Indus. Comm., 10th Dist. No. 08AP-419, 2009-Ohio-2898, ¶ 44.

         {¶ 22} In this case, it is undisputed that until its motion for reconsideration, relator did not argue claimant voluntarily retired after the gun store closed and abandoned the workforce, did not ask the SHO to determine whether claimant had voluntarily retired or removed himself from the workforce, or otherwise invoked the administrative statute corresponding to this issue. At the hearing, counsel for relator did elicit testimony from claimant about his work history after retiring from relator's business and why claimant did not look for work after the gun store closed. The commission, faced with relator's request for reconsideration contending claimant's voluntary retirement should have been addressed, denied relator's motion for reconsideration. The magistrate, on the other hand, believed claimant's testimony, in the context of pervasive case law discussing workforce abandonment, "clearly raised" the issue, and, therefore, the commission had a duty to address the issue. (Mag.'s Decision at ¶ 77.)

         {¶ 23} We disagree with the magistrate. As previously stated, relator has the burden to show, by clear and convincing evidence, its entitlement to the writ, including a clear legal right to the relief sought and a clear legal duty on the part of the commission to perform the requested act. William E. at ¶ 9. We do not find the evidence in this case clearly shows that voluntary retirement was "brought into issue, " pursuant to Adm.Code 4121-3-34(D)(1)(d), to support a writ of mandamus. Absent clear and convincing proof that relator raised the issue before the SHO, relator cannot establish that the SHO's failure to address the issue in her opinion constituted an abuse of discretion. Id. at ¶ 11. Moreover, in this close case, relator has not met its heightened burden to show the commission had a clear legal duty to reopen the matter on relator's motion for reconsideration or that relator has a clear legal right to the relief sought. Therefore, we find relator is not entitled to the extraordinary remedy of mandamus on this issue. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166 (1977) (warning mandamus is an extraordinary remedy, "to be issued with great caution and discretion and only when the way is clear").

         {¶ 24} Accordingly, we sustain the commission's objection.

         B. Claimant's Objections

         {¶ 25} As a preliminary issue, we note claimant has not delineated specific objections pursuant to Civ.R. 53(D)(3)(b)(ii). In the interest of justice, we will address claimant's objections as gleaned from the body of his memorandum in support of objections. State ex rel. Turner v. Bunting, 10th Dist. No. 15AP-605, 2016-Ohio-1325, ¶ 3. Claimant essentially contends there is no basis to find an abuse of discretion occurred in this case because relator waived the affirmative defense of voluntary abandonment of the workforce, the record did not support abandonment of the workforce, and because the commission's decision to grant claimant PTD compensation is proper.

         {¶ 26} First, we sustained the commission's objection concerning voluntary abandonment of the workforce. Therefore, claimant's objections to the magistrate's conclusions regarding this issue are moot.

         {¶ 27} Second, we find claimant's general allusion to the SHO's proper conclusion on the merits of the PTD compensation application to be premature at this time. The magistrate only considered whether voluntary workforce abandonment was raised and did not consider the remainder of relator's complaint for mandamus, which included claims of error related to the evidence in support of claimant's PTD compensation award. Therefore, pursuant to Civ.R. 53(D)(4)(b), we return the matter to the magistrate to consider the remainder of relator's complaint in the first instance.

         {¶ 28} Accordingly, we overrule claimant's objection in part as moot and in part as premature.

         IV. CONCLUSION

         {¶ 29} Following review of the magistrate's decision, an independent review of the record, and due consideration of the objections, we adopt the magistrate's findings of fact as our own but reject the magistrate's conclusions of law. We sustain the commission's sole objection and overrule claimant's objections in part as moot and in part as premature. We deny relator's request for a writ of mandamus on the question of voluntary abandonment of the workforce and remand the matter to the magistrate, pursuant to Civ.R. 53(D)(4)(b), in order for the magistrate to rule on the remainder of relator's complaint.

         Objection sustained; cause remanded.

          TYACK, P.J., and LUPER SCHUSTER, J., concur.

         APPENDIX

         Rendered on June 22, 2017

         IN MANDAMUS

         MAGISTRATE'S DECISION

          KENNETH W. MACKE, MAGISTRATE

         {¶ 30} In this original action, relator, Navistar, Inc. ("Navistar"), requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the May 10, 2016 order of its staff hearing officer ("SHO") awarding to respondent Gary E. Bisdorf ("claimant") compensation for permanent total disability ("PTD"), and to enter an order determining that claimant voluntarily abandoned the workforce, and is thus ineligible for PTD compensation. In the alternative, Navistar requests that the writ order the commission to vacate the SHO's order of May 10, 2016 on grounds that the relied upon medical reports provide no evidence that the allowed medical conditions alone prohibit sustained remunerative employment.

Findings of Fact:

         {¶ 31} 1. Claimant has two industrial claims arising from his employment as an assembler for Navistar, a self-insured employer under Ohio's workers' compensation laws.

         {¶ 32} 2. On November 7, 1971, claimant injured his left knee when a gas tank slipped and hit his left knee. The industrial claim (No. 493424-22) is allowed for "bruise left knee lower patella area; degenerative arthritis left knee; chondromalacia patella left knee."

         {¶ 33} 3. On December 19, 2001, claimant injured his right shoulder when a tool broke while he was pulling down. The claim (No. 01-880461) is allowed for "right shoulder strain; partial rotator ...


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