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State ex rel. Williams v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

March 29, 2018

State of Ohio ex rel. Ernest Williams, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

          IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Agee, Clymer, Mitchell, & Portman, and Gregory R. Mitchell, for relator.

          Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.

         Argued:

          Gregory R. Mitchell

          Kevin J. Reis.

          DECISION

          BROWN, P.J.

         {¶ 1} Relator, Ernest Williams, has filed an original action requesting this court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the April 15, 2016 order of its staff hearing officer ("SHO") denying relator's request for permanent total disability ("PTD") compensation on grounds that he voluntarily abandoned the workforce, and to enter an order finding that he reestablished eligibility for such compensation when he worked for two weeks in 2015 driving a truck.

         {¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 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, recommending this court deny relator's request for a writ of mandamus.

         {¶ 3} Relator has filed two objections to the magistrate's decision. Relator first asserts the magistrate erred in concluding the commission did not abuse its discretion in utilizing an improper standard to find voluntary abandonment. Specifically, relator challenges language in the SHO's order stating his testimony failed to represent a "good faith" effort to return to work; relator maintains no statute or administrative rule provides for such analysis. Under his second objection, relator contends the SHO erred in failing to consider medical evidence indicating he could not work due to his industrial injury.

         {¶ 4} Under Ohio law, "[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, citing State ex rel. McAtee v. Indus. Comm., 76 Ohio St.3d 648 (1996). The voluntary nature of a claimant's abandonment of the workforce "is a factual question within the commission's final jurisdiction." State ex rel. Krogman v. B&B Enters. Napco Flooring, LLC, 10th Dist. No. 14AP-477, 2015-Ohio-1512, ¶ 8, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 31 (1987).

         {¶ 5} The stipulated record in this action indicates that relator, who was injured on May 5, 1978, has filed applications for PTD compensation in 1991, 1994, 1997, 2000, and 2015. The commission denied all five applications, including the 2015 application which is the subject of this original action. Relator also moved for temporary total disability ("TTD") compensation in 2013 and, following a hearing, a district hearing officer ("DHO") issued an order denying TTD compensation. Relator filed an administrative appeal, and an SHO issued an order affirming the DHO; in that order, the SHO noted the lack of documentation of any attempt by relator to find work since at least the commission's order of 2001 in which it denied relator's request for PTD compensation and made a finding of abandonment of the workforce.

         {¶ 6} In denying relator's most recent application for PTD compensation, the SHO determined that relator had "long ago abandoned the workforce, " last working "in August of 1986." The SHO noted several earlier attempts by a rehabilitation provider to coordinate evaluations, but relator failed to present himself for appointments and failed to indicate an interest "to proceed with rehabilitation evaluations or services." The SHO further found "no persuasive evidence on record that the Injured Worker since 1986 has ever made any attempt to return to work, " and that his "testimony regarding a return to work in 2015 is not found to represent a legitimate attempt to return to work."

         {¶ 7} In addressing the issue of whether relator re-established eligibility for PTD compensation by working two weeks in 2015, the SHO noted testimony by relator "that in 2015 he called a friend and that his friend gave him a job driving a gravel truck." Relator indicated, however, "he was unable to do this job after two weeks." Noting that in the "last denial" of PTD compensation, relator "was found to be limited to sedentary work, " the SHO observed that "[d]riving a gravel truck would not be classified as sedentary work." The SHO further stated that relator's "attempt to return to work after almost three decades of inactivity is not found to represent a genuine attempt to return to work."

         {¶ 8} Upon review, the record does not support relator's contention the SHO utilized an improper standard in analyzing the issue of voluntary abandonment. The Supreme Court of Ohio has noted "[t]he question of abandonment is 'primarily [one] of intent [that] may be inferred from words spoken, acts done, and other objective facts.' " (Emphasis added.) State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio St.3d 381, 383 (1989), quoting State v. Freeman, 64 Ohio St.2d 291, 297 (1980). Similarly, it has been "held that ' "[a]n abandonment is proved by evidence of intention to abandon as well as of acts by which the intention is put into effect." ' " (Emphasis added.) Id., quoting West Park Shopping Center v. Masheter, 6 Ohio St.2d 291, 297 (1966), quoting Dalton v. Johnson, 320 S.W.2d 569, 574 (1959). Further, "[t]he presence of such intent, being a factual question, is a determination for the commission." (Emphasis added.) Id. The Supreme Court has also held that "absent extenuating circumstances, it is not unreasonable to expect a claimant to participate in efforts to return to work to the best of his or her abilities." State ex rel. Gulley v. Indus. Comm., ___ Ohio St.3d ___, 2017-Ohio-9131, ¶ 15.

         {¶ 9} In the instant action, notwithstanding the SHO's reference to "good faith, " the order indicates the commission properly applied Ohio law, including a consideration of intent, in determining the issue of voluntary abandonment. The evidence before the commission and cited by the SHO indicates relator was capable of engaging in sustained remunerative employment but that he never attempted rehabilitation following his injury in 1978, nor did he seek any type of work over an approximately 30-year span. As noted, relator argued he re-entered the workforce in 2015. As to the issue of whether relator reestablished eligibility for PTD compensation by working as a truck driver, the evidence before the SHO was that relator had contacted a friend who "gave him a job driving a gravel truck, " a job which relator testified he was "unable to do * * * after two weeks." The SHO, in addressing the facts and circumstances presented, observed that the job relator obtained from his friend was not classified as one within his sedentary restrictions. [1]

         {¶ 10} In addressing the issue of abandonment, the commission has discretion to consider all the evidence before it in determining a claimant's intent, "including the weight and credibility of that evidence." State ex rel. Rockey v. Sauder Woodworking Co., 10th Dist. No. 09AP-888, 2011-Ohio-1590, ¶ 17. Here, in finding an intent to voluntarily abandon the workforce, the SHO considered the conduct and choices by relator, including his ability to engage in sustained remunerative employment, his lack of interest in pursuing rehabilitation opportunities, the absence of any evidence that he had worked or made an attempt to return to work for approximately 30 years, and the fact that his only attempt at employment since 1978 involved a position not within his work restrictions. It was within the province of the commission to assess the credibility of the evidence, including the testimony of relator, in making that determination. Upon review, there was some evidence to support the commission's finding that relator voluntarily abandoned the workforce.

         {¶ 11} Relator also contends the commission failed to consider medical evidence indicating he was unable to work due to his injury. The magistrate, however, considered relator's arguments regarding the report of Dr. Sai Gutti, noting the commission was not required to accept the July 2015 report as some evidence supporting PTD compensation. Further, the threshold issue before the commission was whether relator, having voluntarily abandoned the workforce years before, had re-entered the workforce by working two weeks in 2015. As set forth above, there was some evidence to support the commission's determination on that issue, including findings of the SHO that relator was, according to medical evidence, limited to sedentary work but that he sought employment not within those restrictions.

         {¶ 12} Upon consideration of the objections, and having independently reviewed the magistrate's decision, we overrule relator's objections to the magistrate's decision and adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the recommendation of the magistrate, the requested writ of mandamus is denied.

         Objections overruled; writ denied.

          KLATT and BRUNNER, JJ., concur.

         APPENDIX

         Rendered on October 6, 2017

         MAGISTRATE'S DECISION

          KENNETH W. MACKE, MAGISTRATE

         {¶ 13} In this original action, relator, Ernest Williams, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the April 15, 2016 order of its staff hearing officer ("SHO") that denies his November 16, 2015 application for permanent total disability ("PTD") compensation on grounds that he voluntarily abandoned the workforce and is, thus, ineligible for the compensation, and to enter an order finding that relator re-established eligibility for the compensation when he worked for two weeks in 2015 driving a truck. Relator requests that the writ order the commission to adjudicate the application on the merits in the absence of a finding that relator voluntarily abandoned the workforce. Findings of Fact:

         {¶ 14} 1. On May 5, 1978, relator injured his lower back and right hand while employed as a construction laborer for respondent Werner Maintenance & Construction Co., a state-fund employer. The injury occurred when he fell down some steps. He was 25 years of age on the date of injury. (Date of birth is January 4, 1953.)

         {¶ 15} 2. The industrial claim (No. 78-19479) is allowed for "contusion lumbosacral area; contusion right hand; degenerative disc L4-5; disc bulge L4-5."

         {¶ 16} 3. Relator has filed five applications for PTD compensation. His first application was filed on November 18, 1991.

         {¶ 17} 4. Earlier, by letter dated September 11, 1987, relator was informed by the commission's rehabilitation division:

Please accept this letter as a closure to your Rehabilitation File with this agency. This action is based on our inability to coordinate evaluations for you with the J. Leonard Camera Center of Columbus, Ohio. It is my understanding that two previous appointments have been made for you with the J. Leonard Camera staff in order to properly assess your physical, psychological, and vocational status. Both times you have not shown nor did you call to cancel.

         {¶ 18} 5. Following a March 15, 1994 hearing, two SHO's issued an order denying the first PTD application. The order explains:

This order is based particularly upon the reports of Commission Physical Medicine examiner ...

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