State ex rel. Jones & Laughlin Steel Corp. v. Industrial Com'n of Ohio, 84AP-620

• Citation: 29 OBR 162,29 Ohio App.3d 145,504 N.E.2d 451
• Decision Date: 26 September 1985
• Docket Number: No. 84AP-620,84AP-620
• Court: United States Court of Appeals (Ohio)
• Parties: , 29 O.B.R. 162 The STATE, ex rel. JONES & LAUGHLIN STEEL CORP., v. INDUSTRIAL COMMISSION OF OHIO et al.

Page 145

29 Ohio App.3d 145

504 N.E.2d 451, 29 O.B.R. 162

The STATE, ex rel. JONES & LAUGHLIN STEEL CORP., v. INDUSTRIAL COMMISSION OF OHIO et al.

No. 84AP-620.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 26, 1985.

Syllabus by the Court

One who has voluntarily retired and has no intention of ever returning to his former position of employment is not prevented from returning to that former position by an industrial injury which renders him unable to perform the duties of such former position of employment. A worker is prevented by an industrial injury from returning to his former position of employment where, but for the industrial injury, he would return to such former position of employment. However, where the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability benefits since it is his own action, rather than the industrial injury, which prevents his returning to such former position of employment. Such action would include such situations as the acceptance of another position, as well as voluntary retirement.

Manchester, Bennett, Powers & Ullman Co., L.P.A., Thomas J. Travers, Jr., and Joseph R. Young, Jr., Youngstown, for relator.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson, Michael Squillace and Q. Albert Corsi, Columbus, for respondent Industrial Com'n.

Tablack, Wellman & Jeren, John A. Jeren, Jr., and Gary Zamary, Youngstown, for respondent Ernesto Rosado.

WHITESIDE, Judge.

Pursuant to Civ.R. 53 and Section 13 of Loc.R. 11 of this court, this original action in mandamus was referred to a referee, who rendered his report recommending that the requested writ of mandamus be denied.

Relator-employer, Jones & Laughlin Steel Corporation, filed objections to the referee's report contending:

"1. The Referee erred, as a matter of law, in finding that the C-84 forms submitted by Dr. Morrison constituted 'some evidence' supporting the order of the Industrial Commission affirming an award of temporary total disability benefits in the instant action.

"2. The Referee erred, as a matter of law, in finding that the Respondent-Claimant's voluntary retirement from the work force did not preclude an award of temporary total disability benefits in the instant action."

As to the first objection, whether the medical evidence reasonably permits a finding by respondent Industrial Commission that the claimant Ernesto Rosado (respondent herein) is temporarily totally disabled within the meaning of R.C. 4123.56, the referee correctly reviewed the evidence and the applicable law, and we adopt his report.

Although the report of Dr. Morrison might also support a finding that claimant is permanently and totally disabled, it most certainly supports a finding that the claimant is unable to perform the duties of his former position of employment. We do not understand relator to contend that respondent Industrial Commission should have awarded the claimant permanent total disability compensation, which the evidence also would support. Rather, we understand relator's position to be that the claimant should be awarded no compensation, despite the medical evidence that he is totally disabled from his industrial injury, based upon a contention that the temporary disability has become permanent in that claimant, in all probability, will never be able to return to his former position of employment. We do note that the medical evidence submitted by relator-employer indicated that claimant was not totally disabled but, instead, has sustained only a sixty percent permanent partial disability as a result of the industrial injury. That report also noted that claimant has not worked since his industrial injury and that he has been on regular pension since May 1, 1982.

The second objection raised by relator poses a more vexing issue. As noted above, the medical report submitted by relator states that the claimant has been on a regular pension since May 1, 1982. Relator contends that claimant's voluntary retirement from the work force precludes an award of temporary total disability benefits, even though the claimant may otherwise be eligible therefor.

The syllabus of State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 433 N.E.2d 586 , defines "temporary total disability" as "a disability which prevents a worker from returning to his former position of employment." (Emphasis added.) Thus the industrial injury must not only be such as to render the claimant unable to perform the functions of his former position of employment, but it also must prevent him from returning to that position. Accordingly, the issue before us is whether a person who has voluntarily taken himself out of the work force and abandoned any future employment by voluntarily retiring is prevented from returning to his former position of employment by an industrial injury which...