State ex rel. Navistar, Inc., Relator,
Industrial Commission of Ohio and Gary E. Bisdorf, Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Sater, Seymour and Pease LLP, and Corrine S. Carman, for
Corrine S. Carman.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
Stanley R. Jurus Law Office, and Michael J. Muldoon, for
respondent Gary E. Bisdorf.
Michael J. Muldoon.
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.
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
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
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
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
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
10} As previously indicated, both the commission and
claimant filed objections to the magistrate's decision.
11} The commission sets forth the following
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.
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
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
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,
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, ¶
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-
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
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
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
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
28} Accordingly, we overrule claimant's
objection in part as moot and in part as premature.
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
sustained; cause remanded.
P.J., and LUPER SCHUSTER, J., concur.
on June 22, 2017
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
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'
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 ...