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State ex rel. Vonderheide v. Multi-Color Corp.

Court of Appeals of Ohio, Tenth District

May 3, 2018

The State ex rel. Sharon Vonderheide, Relator,
v.
Multi-Color Corporation and Industrial Commission of Ohio, Respondents.

         IN MANDAMUS ON OBJECTION TO MAGISTRATE'S DECISION

         On brief:

          Clements, Taylor, Butkovich & Cohen LPA, Co., and Edward Cohen, for relator.

         On brief:

          Michael DeWine, Attorney General, and John Smart, for respondent Industrial Commission of Ohio.

          DECISION

          BRUNNER, J.

         {¶ 1} Relator, Sharon Vonderheide, filed this original action seeking a writ of mandamus that would order respondent, Industrial Commission of Ohio ("the commission"), to vacate the December 10, 2014 order of its staff hearing officer ("SHO") denying her application for temporary total disability ("TTD") compensation beginning July 31, 2012, and to find she is entitled to that compensation. At issue is whether the work Vonderheide performed at her family's farm qualifies as employment, such that she was a part of the active workforce immediately prior to the time for which she requested TTD compensation.

         {¶ 2} Vonderheide argues "[t]here is no proper or competent evidence of the record which supports [the commission's] denial" of the TTD compensation she requests, and, therefore, the commission abused its discretion in denying her request. (Jul. 5, 2016 Compl. at ¶ 8.)

         {¶ 3} We referred this matter to a magistrate of this Court 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. The magistrate concluded the commission did not abuse its discretion in denying Vonderheide's application for TTD compensation and decided this Court should deny Vonderheide's request for a writ of mandamus.

         {¶ 4} Vonderheide timely filed an objection to the magistrate's findings and memorandum in support. The commission timely filed a memorandum opposing Vonderheide's objection, asserting the objection lacked merit, and the magistrate had decided the matter correctly.

         {¶ 5} Having examined the magistrate's decision, conducted an independent review of the record pursuant to Civ.R. 53, and undertaken due consideration of the objection, we sustain Vonderheide's objection and grant a writ of mandamus ordering the commission to vacate the SHO's order denying TTD compensation.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶ 6} No one disputes, on June 28, 1992, Vonderheide sustained an industrial injury claim in the course of and arising out of her employment with respondent, MultiColor Corporation. Vonderheide's claim was allowed for "lumbar sprain; medial collateral left knee ligament sprain; right knee loose body/enthesopathy; popliteal cyst both knees; contusion right knee; medial meniscus tear right knee; chondromalacia right knee; osteoarthritis lower leg, bilateral; right knee infection/hardware; and right knee instability." (Compl. at ¶ 4.) Vonderheide was awarded TTD compensation. That compensation was terminated on December 23, 2002, when Vonderheide had reached maximum medical improvement ("MMI") for the industrial injury.

         {¶ 7} Vonderheide was enrolled in a vocational rehabilitation plan in 2003, but her rehabilitation file was closed on November 26, 2003 after she voluntarily withdrew from the rehabilitation program.

         {¶ 8} Vonderheide filed for and began receiving Social Security retirement benefits in August 2002 and continues to receive those benefits to the present time.

         {¶ 9} Vonderheide underwent surgery for her right knee on July 31 and November 6, 2012. Her claim was amended in January 2013 to include right knee infection/hardware.

         {¶ 10} On March 12, 2014, Vonderheide filed a motion requesting TTD compensation be reinstated beginning July 31, 2012 based upon a significant change in circumstance. In support of the motion, Vonderheide provided medical evidence from various physicians, computer generated summaries of her Ohio tax returns from 2004 through 2007, and from 2009 through 2012, and Internal Revenue Service ("IRS") tax return transcripts for the years 2009 and 2010. The IRS forms evidenced income in the form of rent/royalty/partnership/estate.

         {¶ 11} Vonderheide also supported her TTD request by providing affidavits of herself and her son, Michael Vonderheide. In her own affidavit, Vonderheide stated she had worked, sought work, or participated in vocational rehabilitation between 2002 and 2012. She described how she had worked with her husband on their farm while he was alive and how she had continued to work and help run the farm after his death. She stated she began working exclusively at the farm after her medical condition began to deteriorate in 2002. Michael Vonderheide's affidavit corroborated his mother's account of the worked she performed on the family farm. He averred, from 2003 through 2012, he had worked with his mother on their family farm year-round, during which time he had personally witnessed his mother "doing a variety of tasks involved with running and working the farm, including driving a tractor, running the business of the farm, organizing and ordering work crews, farming and stripping tobacco, etc." (M. Vonderheide Aff. at ¶ 3, Sept. 8, 2016 Stipulation of Evidence at 20950-L21.) He averred further, "[t]o my knowledge, my mother continued in this occupation until the end of July 2012 when she had serious knee surgery; to my knowledge, she has not worked on the farm since that date." Id. at ¶ 4.

         {¶ 12} A commission district hearing officer ("DHO") heard Vonderheide's motion for TTD compensation on October 27, 2014. The DHO denied the motion by order issued on October 30, 2014 based on findings that Vonderheide: (1) had "not provided sufficient evidence" to corroborate her testimony she was working on the family farm from November 2003 through the time period immediately prior to the requested period of TTD in this claim, (2) had "not provided sufficient evidence that she worked or tried to be employed since November, 2003, " (3) had been on Social Security retirement "since that time, " and (4) "was not removed from the workforce as a result of the newly allowed condition in this claim." (Stipulation of Evidence at 20950-L11.) The DHO concluded Vonderheide had failed to satisfy her burden of proving by a preponderance of the evidence she was entitled to the award of TTD in this claim.

         {¶ 13} A commission SHO heard Vonderheide's appeal of the DHO order on December 4, 2014. At the hearing, Vonderheide testified as to the year-round working nature of the family farm on which Vonderheide, her husband, and her son had grown hay and tobacco and, until her husband's death in 2009, raised cows. She described the work she performed on the farm before and after her husband's death. She testified how the income derived from the farming enterprise was distributed. Vonderheide also testified to her efforts to find employment away from the farm after her industrial injury. She testified she was actively working at the farm from 2009 until her surgery and had worked at the farm as recently as two weeks before the SHO hearing.

         {¶ 14} Vonderheide's son also testified at the SHO hearing as to his involvement with the farm operation, the work he had seen Vonderheide perform at the farm, and how and when the farm income was distributed.

         {¶ 15} By order issued December 10, 2014, the SHO affirmed the DHO order and denied Vonderheide's request for TTD compensation. The SHO stated the applicable legal standard as follows:

The Hearing Officer notes that [Vonderheide] has the burden of establishing with medical evidence that she is temporarily and totally disabled as a result of the allowed conditions in the claim and that she is legally entitled to the payment of [TTD] compensation because she is in the work force at the time that she is requesting compensation begin. The industrial injury must remove [Vonderheide] from the work force and the purpose of [TTD] compensation is to replace the wages she has lost.

(Stipulation of Evidence at 20950-L60.)

         {¶ 16} The SHO found Vonderheide had not established she was legally eligible for TTD compensation because she had failed to meet her burden of proof establishing she was in the active workforce and had wages to replace as of July 31, 2012. The SHO was not persuaded by Vonderheide's claim she worked at the family farm, specifically noting Vonderheide's testimony she did not live at the farm and did not receive wages on a regular basis for her work. The SHO found Vonderheide had not established her ownership of, and participation in, the family farm evidenced she was in the workforce and receiving wages. The SHO stated:

The Hearing Officer concludes that the farm was, and continues to be, a passive investment that [Vonderheide] has which she sometimes performed chores on. The Hearing Officer finds that this is not evidence that [Vonderheide] was in the work force and actively working prior to the date that she is requesting [TTD] compensation begin. The Hearing Officer finds that there were no wages to replace as of 07/31/2012. Therefore, the Hearing Officer finds that [Vonderheide] is not entitled to the payment of temporary total disability compensation. The Hearing Officer orders that the C-86 Motion is denied.
This order is based upon the lack of evidence of employment, the BWC claim notes dated 03/21/2014, [State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245; State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579; and State ex rel. Hoffman v. Rexman Beverage Can Co., 137 Ohio St.3d 129 (2013)].

Id. at 20950-L61.

         {¶ 17} Vonderheide's further appeal was refused by order of the commission mailed December 31, 2014.

         {¶ 18} On July 5, 2016, Vonderheide filed this mandamus action asserting the commission's denial of her TTD compensation request is unsupported by "proper or competent evidence of record" and constitutes an abuse of discretion. (Compl. at ¶ 8.)

         {¶ 19} The magistrate's decision discusses the law governing an award of TTD compensation:

TTD compensation awarded pursuant to R.C. 4123.56 has been defined as compensation for wages lost where a claimant's injury prevents a return to the former position of employment. Upon that predicate, TTD compensation shall be paid to a claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's treating physician has made a written statement that claimant is able to return to the former position of employment; (3) when work within the physical capabilities of claimant is made available by the employer or another employer; or (4) claimant has reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).

(App'x at ¶ 56.) The magistrate's decision indicates further "[t]here can be no lost wages, or even the potential for lost wages, if the injured worker is no longer a part of the active workforce. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245." Id. at ¶ 57.

         {¶ 20} After reciting the findings on which the SHO relied to affirm the DHO's order denying Vonderheide's request for TTD compensation, the magistrate assessed the evidence ...


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