State Ex Rel. Cerena N. Mackey v. Dep't Of Educ.
| Decision Date | 29 July 2010 |
| Docket Number | No. 09AP-966,09AP-966 |
| Citation | 2010 Ohio 3522 |
| Parties | State ex rel. Cerena N. Mackey,Relator, v. Department of Education and Industrial Commission of Ohio, Respondents. |
| Court | Ohio Court of Appeals |
Michael J. Muldoon, for relator.
Richard Cordray, Attorney General, and Charissa D. Payer, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
{¶1} Relator, Cerena N. Mackey, filed an original action in mandamus requesting this court to issue a writ of mandamus requiring respondent, Industrial Commission of Ohio ("commission"), to vacate its order granting the request for reconsideration filed by her employer, Ohio Department of Education ("DOE"), andultimately denying her permanent total disability ("PTD") compensation, and to order the commission to find that she is entitled to that compensation.
{¶2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this decision, recommending that this court deny the requested writ.
{¶3} In brief, relator's claim for a work-related injury was allowed in 1985. Additional claims were allowed in 1998 and 2007. Relator retired from DOE in 2005 at the age of 65, after working for DOE for 36 years.
{¶4} In 2008, relator applied for PTD compensation. Following a hearing in March 2009, a staff hearing officer ("SHO") granted her application based on the allowed physical conditions.
{¶5} DOE filed a request for reconsideration by the full commission, arguing that the SHO had not considered whether relator's removal from the work force was voluntary. Following a hearing in August 2009, the commission determined that the SHO had made a mistake of law by failing to address the issue of voluntary retirement. On the merits of relator's application for PTD compensation, the commission denied compensation on the grounds that relator had abandoned the work force voluntarily. Alternatively, the commission also concluded that relator was capable of performing sedentary employment.
{¶6} On mandamus, relator argued to the magistrate that the commission erred by determining that the SHO made a mistake of law and abused its discretion by finding that relator abandoned the work force voluntarily. The magistrate addressed theseissues, concluded that the commission did not err, and denied relator's request for a writ.
{¶7} In her objection, relator again argues that the SHO did not make a mistake of law, as the parties made arguments and presented evidence regarding voluntary retirement at the hearing before the SHO. Although the SHO's order did not discuss the issue, relator contends that the SHO "obviously" rejected DOE's argument that relator retired voluntarily. Relator also contends that the commission abused its discretion in determining that relator retired voluntarily, as she presented evidence to the contrary. On both counts, we disagree.
{¶8} First, we agree with the magistrate's analysis of the SHO's order. If a claimant becomes permanently disabled after retiring, a voluntary retirement will preclude the payment of PTD compensation if the retirement was voluntary and constituted an abandonment of the entire work force. State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202, 215, 1994-Ohio-437. Here, although the parties discussed and presented evidence regarding whether relator retired voluntarily, the SHO did not discuss or decide the issue in the order. By failing to decide this issue, the SHO made a mistake of law. State ex rel. Hayes v. Indus. Comm., 10th Dist. No. 01AP-1087, 2002-Ohio-3675 (concluding it was an abuse of discretion for an SHO to fail to address the issue of voluntary retirement where the employer had presented the issue; the full commission did not abuse its discretion by invoking its continuing jurisdiction to address the issue). See also State ex rel. Chrysler Corp. v. Indus. Comm. (1991), 62 Ohio St.3d 193, 196 ().
{¶9} Second, we also agree with the magistrate that the commission did not abuse its discretion by denying PTD compensation. Relator offered no medical evidence contemporaneous with her retirement to show that her retirement was involuntary. While relator offered the 2008 report of James E. Lundeen, Sr., M.D., in support of her application, other medical evidence showed that relator was not disabled permanently. The commission has discretion to determine questions of credibility and the weight to be given evidence. State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165, 168-69. Here, the commission rejected relator's explanation for her retirement, considered the medical evidence and the lack of work restrictions prior to her retirement, and determined that relator retired voluntarily at age 65. Because there is some evidence to support the commission's decision to deny PTD compensation, we conclude that the commission did not abuse its discretion.
{¶10} Based on our independent review of this matter, we overrule relator's objection to the magistrate's decision. We adopt that decision, including the findings of fact and conclusions of law contained in it, as our own, except that we correct typographical errors in Findings of Fact Nos. 5 and 7. Accordingly, we deny the requested writ.
Objection overruled,
writ of mandamus denied.
{¶11} Relator, Cerena N. Mackey, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order granting the request for reconsideration filed by her employer, Ohio Department of Education, and ultimately denying her permanent totaldisability ("PTD") compensation, and ordering the commission to find that she is entitled to that compensation.
Findings of Fact:
{¶12} 1. Relator sustained a work-related injury on May 1, 1985. Relator's claim was originally allowed for "[h]erniated disc, spinal stenosis L4-5." In 1998, relator's claim was allowed for the additional condition of "anxiety state." In 2007, relator's claim was additionally allowed for "L4 over L5 degenerative anterolisthesis; L5 radiculopathy, left."
{¶13} 2. Relator returned to work for the department of education in 1986 after undergoing back surgery, and relator continued to work without restrictions or limitations until she retired in 2005 at the age of 65. Relator testified that she took a regular retirement after being employed with the department of education for 36 years. Relator also testified that she was becoming increasingly irritable around people and was having some problems walking.
{¶14} 3. Relator filed her application for PTD compensation in 2008. Relator included the September 4, 2008 report of James E. Lundeen, Sr., M.D., in support. In his report, Dr. Lundeen provided his physical findings upon examination and concluded that, based on her allowed physical conditions, relator was permanently removed from the workforce and had no potential for retraining.
{¶15} 4. At the time of the hearing on her application for PTD compensation there was other medical evidence in the record as well. Specifically: (a) The March 24, 2006 report of Donald J. Tosi, Ph.D., who noted that relator had no formal psychological/psychiatric treatment following her injury until March 2006 when shebegan treating with Dr. Friday. Dr. Tosi opined that relator's allowed psychological condition would not prevent her from returning to work in any capacity without restrictions. (b) The May 3, 2006 report of William W. Friday, Ph.D., who opined that relator suffered from major depression and general anxiety disorder. (c) The August 13, 2007 report of Gregory Z. Mavian, D.O., who recommended a course of physical therapy and stabilization of the lumbar spine, pain management and additional medications such as nerve membrane stabilizing agents. If she did not improve, Dr. Mavian indicated that he would assist in any way he could with a surgical option. (d) The October 17, 2007 report of relator's treating physician, Charles B. May, D.O. Dr. May indicated that a 2007 MRI showed worsening of relator's back condition and agreed that she would benefit from epidural injections and physical therapy. (e) The October 29, 2008 report of Gordon Zellers, M.D. Dr. Zellers provided his physical findings upon examination and opined that relator was capable of returning to the workforce with the following restrictions: sedentary to limited light duty labor activities only; ten pound maximum lifting limit on an occasional basis as tolerated; no prolonged sitting, standing or ambulating; the ability to change body positions on an intermittent basis; and that bending activities be performed only occasionally, as tolerated; no squatting; repetitive activities involving the left lower extremity on an occasional basis, as tolerated; no climbing; the ability to use her TENS unit as needed; and that relator refrain from performing safety-sensitive work activities while under the influence of sedative-type medications. (f) The December 6, 2008 report of Marianne N. Collins, Ph.D., who opined that relator's allowed psychological condition had reached maximum medical improvement ("MMI"), assessed a 12 percent whole person impairment, andconcluded that relator could return to work with no limitations. (g) The December 23, 2008 report of James H. Rutherford, M.D. After identifying the medical reports he reviewed and providing his physical findings upon examination, Dr. Rutherford opined that relator's allowed physical conditions had reached MMI, assessed a 22 percent whole person impairment, and concluded that relator could return to sedentary work activities...
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