State ex rel. Navistar, Inc. v. Indus. Comm'n of Ohio

Decision Date04 March 2020
Docket NumberNo. 2018-1416,2018-1416
Citation153 N.E.3d 7,160 Ohio St.3d 7,2020 Ohio 712
Parties The STATE EX REL. NAVISTAR, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Vorys, Sater, Seymour & Pease, L.L.P., and Corrine S. Carman, Columbus, for appellant.

Dave Yost, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellee Industrial Commission of Ohio.

Stanley R. Jurus, Columbus, Law Office and Michael J. Muldoon, for appellee Gary E. Bisdorf.

Per Curiam.

{¶ 1} Appellee Industrial Commission of Ohio granted the request of appellee Gary E. Bisdorf for permanent-total-disability ("PTD") compensation. The Tenth District Court of Appeals denied the request of Bisdorf's former employer, appellant, Navistar, Inc., for a writ of mandamus ordering the commission to vacate the PTD-compensation award. Navistar appealed that judgment and moved for oral argument. During the pendency of the case before this court, Bisdorf died. We ordered Navistar to show cause why its appeal should not be dismissed as moot. Navistar responded with a motion to continue (i.e., proceed with) the case, which we grant. We affirm the Tenth District's judgment and deny Navistar's request for oral argument.


{¶ 2} Bisdorf sustained two industrial injuries during his 30 years of employment as an assembler with Navistar. His 1971 knee injury

and 2001 shoulder injury both resulted in approved workers' compensation claims and multiple surgeries. Bisdorf retired from Navistar in 2003 but worked part-time as a sales associate and firearms instructor at a gun store from 2004 to 2010.

{¶ 3} During his employment at the gun store, Bisdorf applied for a period of temporary-total-disability ("TTD") compensation for knee surgery related to his 1971 injury. The commission determined that Bisdorf had voluntarily retired from Navistar but had rejoined the workforce by accepting employment at the gun store, and it granted his request for TTD compensation. Bisdorf returned to work, but the gun store closed in 2010, and he did not seek new employment.

{¶ 4} In 2015, Bisdorf applied for PTD compensation. After a hearing before a staff hearing officer ("SHO"), the commission granted Bisdorf's application. Navistar moved for reconsideration, arguing that the commission had failed to consider evidence of Bisdorf's voluntary retirement and that the commission had relied on two medical reports—by Drs. James Rutherford and David Grunstein—that Navistar claimed were conclusory and contradictory. The commission denied Navistar's request for reconsideration.

{¶ 5} Navistar asked the Tenth District for a writ of mandamus ordering the commission to vacate its prior orders and to enter a new order denying Bisdorf's PTD-compensation application. Navistar asserted that the commission had abused its discretion in numerous ways, including by awarding PTD compensation without first ruling on whether Bisdorf had voluntarily abandoned his employment and by relying on the reports by Drs. Rutherford and Grunstein.

{¶ 6} The Tenth District's magistrate initially recommended that the court grant a limited writ ordering the commission to consider whether Bisdorf had voluntarily abandoned his employment. 2017-Ohio-8976, 2017 WL 6343559, ¶ 2. But the court sustained the commission's objections to the magistrate's recommendation and held that Navistar had failed to raise the issue of voluntary abandonment before the SHO. Id. at ¶ 20-24. The court therefore returned the case to the magistrate to consider the remaining issues that Navistar had asserted. Id. at ¶ 29. After doing so, the magistrate recommended that the court deny the writ. 2018-Ohio-3386, 2018 WL 4042869, ¶ 3. Navistar objected, but the court overruled Navistar's objections and adopted the magistrate's recommendation. Id. at ¶ 10. Navistar appealed the Tenth District's judgment to this court and moved for oral argument.

{¶ 7} On July 30, 2019, after briefing in this court was complete, Bisdorf's counsel filed a suggestion of death indicating that Bisdorf had died on July 8. We ordered Navistar to show cause why the case should not be dismissed as moot, and we permitted appellees to respond to Navistar's filing. 156 Ohio St.3d 1491, 2019-Ohio-3263, 129 N.E.3d 474. In response to the show-cause order, Navistar filed a motion to continue (i.e., proceed with) the case. The Industrial Commission and counsel for Bisdorf filed responses to Navistar's motion.

A. State of the Case After Bisdorf's Death

{¶ 8} Navistar asserts two reasons why we should proceed to decide the case. First, citing Youghiogheny & Ohio Coal Co. v. Mayfield , 11 Ohio St.3d 70, 464 N.E.2d 133 (1984), it argues that an employer's appeal from an adverse decision by the commission is not subject to dismissal due to a claimant's death. Second, without citing any authority, it argues that "the case should continue due to the precedential value of the two issues to be determined." The second argument is without merit. As the commission notes in its response, we do not issue advisory opinions. See , e.g. , State ex rel. Food & Water Watch v. State , 153 Ohio St.3d 1, 2018-Ohio-555, 100 N.E.3d 391, ¶ 29.

{¶ 9} As to the first argument, while an injured worker's claim for benefits abates upon his death, Ohio Adm.Code 4123-5-21, this court held in Youghiogheny that "[a]n employer's appeal, pursuant to R.C. 4123.519, from an adverse ruling by the Industrial Commission is not subject to dismissal due to the death of the employee during the pendency of the appeal," id. at syllabus. In reaching this conclusion, this court reasoned that under former R.C. 4123.519, the employer was entitled to recover from the state surplus fund any benefits that had been improperly disbursed to the claimant before his death. Id. at 72, 464 N.E.2d 133. The state (which was already a party to the proceedings in the form of the Administrator of the Bureau of Workers' Compensation) therefore became a real party in interest and could proceed in place of the claimant to protect the surplus fund. Id.

{¶ 10} In response to Navistar's motion, the commission asserts that Youghiogheny does not apply here because that case involved a direct appeal to the court of common pleas under former R.C. 4123.519 (now R.C. 4123.512 ), while this case involves an original action in mandamus. But this distinction is of no import, because the reasoning underlying this court's conclusion in Youghiogheny applies equally to a mandamus action. R.C. 4123.512(H)(1) broadly provides, "If, in a final administrative or judicial action , it is determined that payments of compensation or benefits, or both, made to or on behalf of a claimant should not have been made, the amount thereof shall be charged to the [state] surplus fund account." (Emphasis added.) The plain language of this statute encompasses actions in mandamus such as this. Youghiogheny 's framing of its holding in terms of an appeal reflected the facts of that particular case, not a statutory limitation.

{¶ 11} Notably however, since 2006, self-insured employers like Navistar have had the ability to opt out of participation in the state surplus fund, and if they do opt out, then they are not entitled to reimbursement from the fund. See R.C. 4123.512(H)(3) ; Am.Sub.S.B. No. 7, 151 Ohio Laws, Part I, 1019, 1071-1072 (amending R.C. 4123.512(H) ). The record before this court does not indicate whether Navistar opted out of participation in the fund.

{¶ 12} But regardless of whether it participates in the surplus fund, Navistar, as a self-insured employer, must pay to the state an annual assessment to the safety-and-hygiene fund and must also pay administrative costs. R.C. 4123.35(J). The amount of each assessment depends on the amount that Navistar paid out in workers' compensation benefits during the prior year. Id. And "any amount that is determined not to have been payable to * * * a claimant in any final administrative or judicial proceeding," R.C. 4123.35(L), may be excluded from the employer's paid compensation for the year, Ohio Adm.Code 4123-17-32(B). See also R.C. 4123.512(H)(1). The outcome of this appeal will therefore affect the amount of the assessment that Navistar is required to pay to the state. Accordingly, as in Youghiogheny , 11 Ohio St.3d 70, 464 N.E.2d 133, a continuing controversy remains and the commission's arguments on the merits serve to protect the state's interests in Navistar's annual assessment (and the surplus fund, if applicable). We therefore proceed to the merits of Navistar's appeal.

B. Mandamus Standard

{¶ 13} Mandamus relief is appropriate only if the relator establishes "a clear legal right to the relief requested, a clear legal duty on the part of the commission * * * to provide the relief, and the lack of an adequate remedy in the ordinary course of the law." State ex rel. Baker v. Indus. Comm. , 143 Ohio St.3d 56, 2015-Ohio-1191, 34 N.E.3d 104, ¶ 12. In matters before it, the commission is the exclusive evaluator of the weight and credibility of the evidence. State ex rel. LTV Steel Co. v. Indus. Comm. , 88 Ohio St.3d 284, 287, 725 N.E.2d 639 (2000). Therefore, "[t]o be entitled to an extraordinary remedy in mandamus, the relator must demonstrate that the [commission] abused its discretion by entering an order not supported by any evidence in the record." State ex rel. WFAL Constr. v. Buehrer , 144 Ohio St.3d 21, 2015-Ohio-2305, 40 N.E.3d 1079, ¶ 12. The relator must make that showing by clear and convincing evidence. Id.

C. Navistar's Propositions of Law

{¶ 14} Navistar asserts three propositions of law. First, it argues that the commission abused its discretion by failing to address evidence of Bisdorf's voluntary retirement. Second, it argues that the reports of Drs. Rutherford and Grunstein show that Bisdorf could have worked four hours a day and that the commission abused its discretion by failing to consider various...

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