State ex rel. Quarto Mining Co. v. Foreman

• Decision Date: 18 June 1997
• Docket Number: No. 95-248,95-248
• Citation: 679 N.E.2d 706,79 Ohio St.3d 78
• Parties: The STATE ex rel. QUARTO MINING COMPANY, Appellant, v. FOREMAN et al., Appellees.
• Court: Ohio Supreme Court

Page 78

79 Ohio St.3d 78

679 N.E.2d 706

The STATE ex rel. QUARTO MINING COMPANY, Appellant, v. FOREMAN et al., Appellees.

No. 95-248.

Supreme Court of Ohio.

Submitted March 18, 1997.

Decided June 18, 1997.

Hanlon, Duff, Paleudis & Estadt Co., L.P.A., and John G. Paleudis, St. Clairsville, for appellant.

Larrimer & Larrimer and David H. Swanson, Columbus, for appellee Glen Foreman.

Betty D. Montgomery, Attorney General, and Melanie Cornelius, Assistant Attorney General, for appellee Industrial Commission of Ohio.

PER CURIAM.

This appeal raises two issues. The first question presented is whether the commission, in evaluating claimant's application for PTD compensation, abused its discretion by failing to initiate the issue of whether claimant's retirement precludes his eligibility for PTD compensation. This question can also be framed in terms of whether the employer waived the retirement issue by not raising it administratively. The second issue is whether the cause should be remanded for further consideration on the basis that the medical reports upon which the commission relied do not constitute "some evidence" of PTD, or the commission failed to adequately explain and/or apply claimant's nonmedical disability factors.

I

It is important to understand initially that the question in this case is not, as the employer claims, about whether an issue must be raised by some "formal procedure" or placed on some "formal record" before the commission. The employer nowhere denies that it failed to raise the retirement issue administratively. Nor does the employer claim to have raised the issue administratively at all, by any means, "formal" or otherwise, during either the proceedings culminating in the order of June 15, 1993, or in any of the proceedings leading to the two prior commission orders denying PTD compensation. Instead, the essence of the employer's first three arguments, properly construed, is that the issue raises itself by virtue of being manifest in the record.

"Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed." Goldberg v. Indus. Comm. (1936), 131 Ohio St. 399, 404, 6 O.O. 108, 110, 3 N.E.2d 364, 367. See, also, State ex rel. Moore v. Indus. Comm. (1943), 141 Ohio St. 241, 25 O.O. 362, 47 N.E.2d 767, paragraph three of the syllabus; State ex rel. Gibson v. Indus. Comm. (1988), 39 Ohio St.3d 319, 320, 530 N.E.2d 916, 917 (rule that issues not previously raised are waived is applicable in an appeal from a denial of a writ of mandamus). Nor do appellate courts have to consider an error which the complaining party "could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Williams (1977), 51 Ohio St.2d 112, 117, 5 O.O.3d 98, 101, 364 N.E.2d 1364, 1367.

These rules are deeply embedded in a just regard to the fair administration of justice. They are designed to afford the opposing party a meaningful opportunity to respond to issues or errors that may affect or vitiate his or her cause. Thus, they do not permit a party to sit idly by until he or she loses on one ground only to avail himself or herself of another on appeal. In addition, they protect the role of the courts and the dignity of the proceedings before them by imposing upon counsel the duty to exercise diligence in his or her own cause and to aid the court rather than silently mislead it into the commission of error. Id., 51 Ohio St.2d at 117, 5 O.O.3d at 101, 364 N.E.2d at 1367. See, also, State v. Driscoll (1922), 106 Ohio St. 33, 38-39, 138 N.E. 376, 378.

The employer, however, essentially seeks a dispensation or relaxation of these rules in proceedings before the commission. However, there is nothing about the purpose of workers' compensation legislation or the character of the proceedings before the commission that would justify such action. As Professor Larson explains, "evidentiary and procedural rules usually have an irreducible hard core of necessary function that cannot be dispensed with in any orderly investigation of the merits of a case." 2B Larson, Workmen's Compensation Law (1996) 15-4, Section 77A.10. Thus, "when the rule whose relaxation is in question is more than a merely formal requirement and touches substantial rights of fair play, the relaxation is no more justified on a compensation appeal than on any other. Such a rule is that forbidding the raising on appeal of an issue that has not been raised below * * *." (Emphasis added.) Id. at 15-101, 15-103, Section 77A.83. (The term "below" is used broadly by Professor Larson to include issues not raised at the administrative level. Id. at 15-103 to 15-116, fn. 46, Section 77A.83.)

In a well-reasoned decision, the California appellate court in Bohn v. Watson (1954), 130 Cal.App.2d 24, 37, 278 P.2d 454, 462, applied these rules to proceedings before the Real Estate Commissioner of Los Angeles County. The court refused to consider an issue not raised administratively, despite the fact that the lower court, upon an action for a writ of mandate, considered the issue. The court held that the issue was not properly injected into the claim by virtue of the lower court's consideration. In so holding, the court aptly explained:

"It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or 'skeleton' showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. * * * The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play. Had [appellant] desired to avail herself of the asserted bar of limitations, she should have done so in the administrative forum, where the commissioner could have prepared his case, alert to the need of resisting this defense, and the hearing officer might have made appropriate findings thereon." (Citations omitted.) See, also, Foster v. Bozeman City Comm. (1980), 189 Mont. 64, 68, 614 P.2d 1072, 1074 ("The facts do not permit us to extricate [relator] from the situation he helped to create."); Shakin v. Bd. of Med. Examiners (1967), 254 Cal.App.2d 102, 111, 62 Cal.Rptr. 274, 282; Harris v. Alcoholic Beverage Control Appeals Bd. (1961), 197 Cal.App.2d 182, 187, 17 Cal.Rptr. 167, 170-171.

To do as the employer suggests would not only deny the claimant a meaningful opportunity to respond, but would also conflict with the court's directive that "[the commission] is not to be regarded as an adversary of the claimant as in other litigation." Miles v. Elec. Auto-Lite Co. (1938), 133 Ohio St. 613, 616, 11 O.O. 339, 341, 15 N.E.2d 532, 534. It would also open the door to forcing an already overworked commission to comb the files of every PTD case in search of issues that could potentially be raised by both sides at the hearing table. In addition, it would waste judicial and administrative resources by permitting a party to secure another bite at the PTD apple based upon the commission's failure to consider an issue or correct an error upon which the party remained silent.

These concerns apply with particular force in the case sub judice. The circumstances which the employer claims preclude PTD compensation occurred some two years prior to the commission's first order and eight and one-half years prior to its June 15, 1993 order. The record has contained references to claimant's retirement since as early as April 25, 1986. Had the employer raised the issue during the 1987 proceedings, it may well have avoided the processing of two more PTD applications and two additional hearings before a total of seven commissioners over a six-year span. A claimant cannot relitigate a prior finding that he had voluntarily retired. State ex rel. Crisp v. Indus. Comm. (1992), 64 Ohio St.3d 507, 597 N.E.2d 119. Instead, the employer sat idly by at each successive hearing, allowing the commission each time to determine the extent of claimant's disability on other grounds. Then, when it finally lost administratively in 1993, the employer raised the issue for the first time in a complaint in mandamus to the court of appeals.

Utilizing another approach, the employer seems to be trying to argue that the commission's responsibility to initiate the issue of claimant's retirement arises by virtue of claimant's duty to prove that his disability is causally related to his employment. In so arguing, the employer merges those cases which provide that pre-PTD retirement precludes eligibility for PTD compensation, with cases holding that a finding of PTD cannot be based, in whole or in part, on nonallowed conditions. The suggestion here is that, since it is claimant's burden to prove that his disability is causally related to allowed conditions in the claim, it is necessarily claimant's burden to prove that nonallowed conditions played no part in his decision to retire.

The argument is misguided. The claimant's burden is to persuade the commission that there is a proximate causal relationship between his work-connected injuries and disability, and to produce medical evidence to this effect. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 575 N.E.2d 828; State ex rel. Basham v. Consolidation Coal Co. (1989), 43 Ohio St.3d 151, 541 N.E.2d 47; Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1; Aiken v. Indus. Comm. (1944), 143 Ohio St. 113, 28 O.O. 50, 53 N.E.2d 1018. The claimant's burden in this regard does not extend so far as to require him to raise, and then eliminate, other possible causes of his disability. This is not a case in which the cause remains unexplained, as in slip-and-fall cases. Here, the claimant has produced direct medical evidence linking...