State v. B&B Enters. Napco Flooring, LLC

• Decision Date: 21 April 2015
• Docket Number: No. 14AP-477,14AP-477
• Court: Ohio Court of Appeals
• Parties: State of Ohio ex rel. Joseph E. Krogman, Relator, v. B&B Enterprises Napco Flooring, LLC and Industrial Commission of Ohio, Respondents.

2015 Ohio 1512

State of Ohio ex rel. Joseph E. Krogman, Relator, v. B&B Enterprises Napco Flooring, LLCand Industrial Commission of Ohio, Respondents.

No. 14AP-477

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

April 21, 2015

(REGULAR CALENDAR)

DECISION

Lisa M. Clark, for relator.

Michael DeWine, Attorney General, and Colleen C. Erdman, for respondent Industrial Commission of Ohio.

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

HORTON, J.

{¶ 1} Relator, Joseph E. Krogman, filed this original action in mandamus seeking a writ ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his request for temporary total disability ("TTD") compensation and ordering the commission to consider the merits of his application for such compensation.

{¶ 2} This court referred the matter to the magistrate pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate has rendered a decision that includes findings of fact and conclusions of law and recommends that this court deny relator's request for a writ of mandamus. The decision of the magistrate is attached as an appendix to this decision of the court. Relator has filed objections to the magistrate's decision, and the matter is now before the court for an independent reviewbased upon the stipulated evidence, the magistrate's decision, and the memoranda presented by the parties in support of and opposition to the relator's objections.

{¶ 3} The commission's denial of TTD compensation in this case is based upon a finding that relator had voluntarily abandoned the workforce. Relator's original claim relates to a 2003 traffic accident occurring in the course and scope of his employment. At various times over the ensuing years, relator has received TTD compensation, which terminated upon subsequent assessments determining that relator's allowed medical conditions had reached maximum medical improvement ("MMI").

{¶ 4} In 2012, relator applied for permanent total disability ("PTD") compensation. The commission denied PTD. The commission found that, based upon allowed conditions and nonmedical factors, relator was able to engage in sustained remunerative employment at the time of his application.

{¶ 5} Relator underwent further surgery in 2013, prompting the present application for TTD compensation. The commission's denial is based on workforce abandonment and cites the evidence demonstrating that appellant had not worked since 2004, and had made no effort to participate in vocational rehabilitation or otherwise improve his ability to gain re-employment since he last worked.

{¶ 6} Relator's objections to the magistrate's decision assert that the magistrate incorrectly applied State ex rel. Brown v. Indus. Comm., 68 Ohio St.3d 45, 48 (1993), and State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996), in finding that the commission was not obligated to provide a specific date upon which relator had voluntarily abandoned the workforce. Relator asserts that, in the absence of such a specifically defined date of alleged withdrawal from the workforce, he is deprived of the opportunity to demonstrate that he lacked the physical capacity for employment at the time of the alleged abandonment.

{¶ 7} We find that the magistrate has correctly interpreted the pertinent law and applied it to the facts in the present case. The cases cited by appellant are job termination cases, which are subject to a specific date of termination of employment, rather than workforce withdrawal cases. We have consistently held, in conformity with governing Supreme Court cases, that workforce abandonment cases can develop over an extended period of years and involve assessment of many events. Such cases are not tied to aspecific date of explicit abandonment of the workforce. We maintain the distinction that job abandonment and workforce abandonment cases are not susceptible to identical treatment, and that a claimant may be found to have involuntarily abandoned a specific employment, but subsequently have voluntarily abandoned the workforce. In doing so, we apply State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245 and its progeny, as developed in the magistrate's decision.

{¶ 8} The voluntary nature of abandonment of the workforce is a factual question within the commission's final jurisdiction. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987). The issue before us is whether the record contains some evidence to support the commission's determination that relator voluntarily abandoned the workforce over the intervening years between his last employment and his latest TTD application, regardless of whether his 2004 cessation of employment was voluntary or not. The recitation of evidence in the magistrate's decision establishes that there was some evidence to support the commission's determination in this respect.

{¶ 9} Following our independent review of the magistrate's decision and the record, we overrule relator's objections to the magistrate's decision and adopt the magistrate's findings of fact and conclusions of law as our own. We deny the requested writ of mandamus.

Objections overruled; writ of mandamus denied.

DORRIAN and LUPER SCHUSTER, JJ., concur.

APPENDIX

MAGISTRATE'S DECISION

Rendered on December 16, 2014

Lisa M. Clark, for relator.

Michael DeWine, Attorney General, and Colleen C. Erdman, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 10} In this original action, relator, Joseph E. Krogman, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the August 7, 2013 order of its staff hearing officer ("SHO") that denies relator's request for temporary total disability ("TTD") compensation beginning April 4, 2013 based upon a finding that relator is ineligible for the compensation because he has voluntarily abandoned the workforce, and to enter an order that adjudicates the merits of the application for TTD compensation.Findings of Fact:

{¶ 11} 1. On May 15, 2003, relator was injured while operating his work van that he had stopped at a traffic light. Relator's vehicle was rear ended by another vehicle. At the time of the injury, relator was employed as a supervisor and installer for respondent B&B Enterprises, Napco Flooring, LLC ("B&B Enterprises"), a state-fund employer.

{¶ 12} 2. The industrial claim (No. 03-889337) is allowed for:

Right trapezius strain; right elbow avulsion fracture; right lateral epicondylitis; right carpal tunnel syndrome; right shoulder rotator cuff tendonitis; right shoulder subacromial bursitis; right shoulder impingement syndrome; right triceps tendonitis; C6-7 disc protrusion; aggravation of pre-existing degenerative disc disease of the cervical spine; labral tear right shoulder.

{¶ 13} 3. Relator last worked in January, 2004.

{¶ 14} 4. On March 15, 2006, the Ohio Bureau of Workers' Compensation ("bureau") moved for termination of TTD compensation on grounds that the allowed conditions had reached maximum medical improvement ("MMI").

{¶ 15} 5. Following a July 17, 2006 hearing, a district hearing officer ("DHO") granted the bureau's motion. The DHO terminated TTD compensation as of July 17, 2006 based upon a finding that the allowed conditions of the claim had reached MMI.

{¶ 16} 6. On February 22, 2007, relator underwent surgery relating to the allowed conditions of the claim.

{¶ 17} 7. On April 4, 2007, the bureau issued an order reinstating TTD compensation as of the surgery date. The bureau's order was not administratively appealed.

{¶ 18} 8. On August 27, 2007, the bureau moved for termination of TTD compensation. In support, the bureau submitted an August 1, 2007 report from Donald Carruthers, M.D., who opined that the allowed conditions had reached MMI.

{¶ 19} 9. Following a September 27, 2007 hearing, a DHO issued an order granting the bureau's August 27, 2007 motion. The DHO terminated TTD compensation as of September 27, 2007 on grounds that the allowed conditions had reached MMI.

{¶ 20} 10. On May 25, 2012, relator filed an application for permanent total disability ("PTD") compensation.

{¶ 21} 11. Following an October 2, 2012 hearing, an SHO mailed an order on October 6, 2012 denying the PTD application.

{¶ 22} For the determination of residual functional capacity, Ohio Adm.Code 4121-3-34(B)(4), the SHO relied upon a report from Dr. Burton dated August 3, 2012, who opined that relator is able to perform light-work activity. Specifically, the SHO determined that the industrial injury precludes a return to the former position of employment, but nevertheless, permits sedentary and light-work.

{¶ 23} The SHO then addressed the non-medical factors:

A review of the Injured Worker's past work experience demonstrates that the Injured Worker has been employed in skilled work activity in the past. The Hearing Officer finds that the Injured Worker's ability to engage in skilled employment in the past demonstrates that the Injured Worker would be able to engage in at least un-skilled entry-level employment in the future. The Injured Worker's ability to master this type of skilled employment demonstrates that the Injured Worker has an aptitude for retraining and would benefit from on-the-job training and would be able to learn to perform different types of work.

A review of the Injured Worker's past work history demonstrates that the Injured Worker is able to apply information received through training and apply it to a work setting. The Injured Worker's past work experience has demonstrated that he has the ability to supervise the work of others, oversee various activities of a project including organizing materials and employees, keeping track of information and keeping abreast of various methods and technologies. The Injured Worker's past work experience has also demonstrated the Injured Worker's ability to make estimates and bids regarding jobs to be completed as well as the ability to use a

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