State ex rel. Kinnear Div., Harsco Corp. v. Indus. Comm.

Decision Date15 January 1997
Docket NumberNo. 94-2390,94-2390
Citation77 Ohio St.3d 258,673 N.E.2d 1290
PartiesThe STATE ex rel. KINNEAR DIVISION, HARSCO CORPORATION, Appellee and Cross-Appellant, v. INDUSTRIAL COMMISSION OF OHIO; Druggan, Appellant and Cross-Appellee.
CourtOhio Supreme Court

On February 26, 1986, claimant-appellant and cross-appellee, Harold W. Druggan, received an injury in the course of and arising out of his employment with appellee and cross-appellant, Kinnear Division of Harsco Corporation ("Harsco"). Harsco, a self-insured employer, initially certified Druggan's workers' compensation claim for "[m]id and low back sprain." Thereafter, Druggan's attending physician, John H. Guluzian, D.O periodically submitted C-84 forms, entitled "Physician's Report Supplemental," to Harsco certifying that Druggan was temporarily and totally disabled. Based on Dr. Guluzian's C-84s, Harsco made temporary total disability ("TTD") compensation payments to Druggan. 1

On March 22, 1990, Druggan, at age sixty-eight, applied for "Normal Retirement Pension" benefits under his employee pension plan, which Harsco granted. The plan also offered a "Permanent Disability Retirement Pension" for those who qualified. Druggan explained on his pension application that he had not worked since February 25, 1986 because of "Workers [sic] Comp Disability."

On October 7, 1991, Druggan applied for permanent total disability ("PTD") compensation with the Industrial Commission of Ohio ("commission"). In support of his PTD application, Druggan attached a report from Dr. Gerard M. Papp, dated January 3, 1990, opining that Druggan was not "capable of sustained gainful employment as a tool and dye [sic] maker," and a report from Dr Guluzian, dated October 2, 1991, in which Dr. Guluzian certified that Druggan "is now permanently and totally disabled from all gainful employment." Druggan's application was placed on the "Eaton docket," and Dr. Guluzian continued to submit C-84s certifying Druggan as temporarily and totally disabled (and Harsco continued to pay TTD compensation based thereon), pending a hearing on Druggan's PTD application scheduled for August 25, 1992.

The matter was heard on that date by a staff hearing officer ("SHO"), who issued an "interlocutory order" finding that Druggan is permanently and totally disabled and awarding PTD compensation from August 26, 1992 to December 6, 1992. Also on August 25, 1992, Druggan's claim was amended to include "[a]ggravation of pre-existing degenerative disc disease at L3-4. L4-5, L5-S1."

In January 1993, Harsco filed a vocational report dated December 30, 1992 from Parman & Associates, Inc., a rehabilitation consulting firm, which opined that Druggan had the ability to perform sustained remunerative employment. 2 On March 12, 1993, an attorney in the commission's legal section prepared a statement of facts, but omitted mention of the vocational report from Parman & Associates, Inc.

On April 7, 1993, the commission heard Druggan's application for PTD compensation. A court reporter was present and a transcript of the proceedings was prepared and made part of the record. At the hearing, Harsco's counsel alerted the commission to the fact that the vocational report filed in January had not been addressed in the statement of facts, resubmitted it for review, and outlined the critical portions of the report. Also, Harsco's counsel argued that PTD benefits should be denied because Druggan retired in the spring of 1990. The following colloquy then took place between Stewart R. Jaffy, Druggan's counsel, and Commissioners Donald M. Colasurd, James L. Mayfield and Richard Geltzer:

"MR. COLASURD: The decision finds the claimant permanently and totally disabled. Mr. McAllister and Mr. Levitt voted no.

"MR. JAFFY: I think because of that recent Supreme Court ruling that Mr. Sutter referred to it's necessary to have a finding that the retirement was not a voluntary retirement.

"MR. COLASURD: I agree with you. I personally do not believe that this man's retirement was voluntary. I believe that he was removed from the work force based on his industrial injury of February 26, 1986.

"MR. MAYFIELD: I concur with that.

"MR. GETZLER [sic]: I agree."

On April 7, 1993, the commission issued its findings of fact and order which explained, in relevant part, that:

"The reports of Doctor(s) Guluzian, Seeder, Gatens and Riccio were reviewed and evaluated. This order is based particularly upon the reports of Doctor(s) Guluzian, Seeder, Gatens and Riccio, evidence in the file and/or evidence adduced at the hearing.

"Claimant is a 71 year old male, who was 64 at the time of the injury. Claimant has an 11th grade education. Claimant worked as a tool and dye [sic ] maker for 41 years for the employer of record before the injury. Claimant's only other job was in the Army from 1943-45. Dr. Gatens found a 40% permanent partial impairment of the body as a whole and opines that the industrial injury permanently prevents claimant from returning to his former position of employment. Dr. Guluzian found claimant to be permanently and totally disabled from all gainful employment. Dr. Seeder found claimant to have reached maximum medical improvement and that claimant is not capable of unrestricted work activities. Dr. Riccio found claimant to be permanently and totally disabled. Thus the medical evidence indicates the claimant's allowed conditions significantly limits [sic ] his ability to engage in gainful work activity. The Commission determines that, at best, the claimant can only engage in sedentary work. However, considering the claimant's advanced age, education, lack of transferrable [sic ] job skills and 41 year work history with the employer of record, claimant is found to be permanently and totally disabled and his IC-2 Application is granted."

Harsco filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion by granting Druggan's application for PTD compensation. Harsco sought a writ of mandamus "compelling the Industrial Commission to vacate its previous order and issue an order denying Respondent Druggan's application for permanent total disability benefits." The appellate court, however, issued a limited writ ordering the commission "to vacate its April 7, 1993 order, and to enter a new order on permanent total disability that addresses the retirement issue and indicates commission consideration of all the relevant vocational evidence of record, including the reports [sic ] [of] Parman and Associates, Inc."

This cause is before the court upon an appeal and cross-appeal as of right.

Porter, Wright, Morris & Arthur and Karl J. Sutter, Columbus, for appellee and cross-appellant.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, for appellant and cross-appellee.


In any order granting or denying benefits, the commission must specifically state which evidence and only that evidence it relied upon to reach its conclusion, and briefly explain the reasoning or basis for its decision. This court will not search beyond the face of the commission's order for some evidence to support its decision. State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245; State ex rel. Basham v. Consolidation Coal Co. (1989), 43 Ohio St.3d 151, 152, 541 N.E.2d 47, 48; State ex rel. Frigidaire Div., Gen. Motors Corp. v. Indus. Comm. (1988), 35 Ohio St.3d 105, 518 N.E.2d 1194, paragraphs one and two of the syllabus; State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, 6 OBR 531, 533-534, 453 N.E.2d 721, 724.

In State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm. (1994), 71 Ohio St.3d 139, 142, 642 N.E.2d 378, 380, we made it clear that "the need for adequate evidentiary explanation and identification [is not confined] to questions of pure award or denial of compensation. All matters affecting the rights and obligations of the claimant or employer merit an explanation sufficient to inform the parties and potentially a reviewing court of the basis for the commission's decision." (Emphasis sic.)

Retirement taken before an employee becomes permanently and totally disabled can affect the employee's right to PTD compensation, "if the retirement is voluntary and constitutes an abandonment of the entire job market." State ex rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 631 N.E.2d 138, paragraph two of the syllabus. Contrary to Druggan's assertions, the mere fact that an employee is continuously disabled from the date of his injury until the day he retires does not, in itself, render the issue of retirement irrelevant. Baker makes clear that the determinative temporal event is the employee's permanent total disability. Retirement taken while claimant is disabled, but not permanently and totally disabled, may still affect the claimant's eligibility for PTD compensation. Thus, the nature and extent of a claimant's pre-PTD retirement are issues upon which the commission's order must provide adequate evidentiary explanation and identification.

Druggan applied for retirement on March 22, 1990 and began receiving pension benefits in May 1990. It was not until approximately two years and five months later that a SHO on August 26, 1992, terminated Druggan's TTD compensation and issued an interlocutory order awarding PTD compensation. There is no evidence in the record to indicate that Druggan became permanently and totally disabled prior to his retirement. Druggan purports to have evidence of preretirement PTD by virtue of the report from Dr. Papp dated January 3, 1990, which, Druggan claims, shows that Dr. Papp "had already indicated that 'I do not feel that this patient is capable of sustained gainful employment.' " However, Druggan's quotation is incomplete. Dr. Papp actually stated that he does "not feel that...

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