State ex rel. Roberts v. Indus. Comm'n of Ohio

Decision Date01 November 2016
Docket NumberNo. 15AP-892,15AP-892
Citation2016 Ohio 7570
PartiesThe State ex rel. Ronald W. Roberts, Relator, v. Industrial Commission of Ohio and City of Columbus, Respondents.
CourtOhio Court of Appeals

(REGULAR CALENDAR)

DECISION

On brief: Jon Goodman Law, LLC, and Jon H. Goodman, for relator.

On brief: Michael DeWine, Attorney General, and Andrew J. Alatis, for respondent Industrial Commission of Ohio.

On brief: Richard C. Pfeiffer, Jr., City Attorney, and Susan E. Thompson, for respondent City of Columbus.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.

{¶ 1} Relator, Ronald W. Roberts, initiated this action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order in which the commission exercised its continuing jurisdiction and denied his request for working wage loss ("WWL") compensation and to award that compensation.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued the appended decision, which includes findings of fact and conclusions of law. The magistrate concluded that the commission abused its discretion when it invoked its continuing jurisdiction and vacated the Staff Hearing Officer's ("SHO") order granting Roberts's request for WWL compensation. Thus, the magistrate recommends this court issue a writ of mandamus ordering the commission to reinstate the SHO's order and award WWL compensation to Roberts.

{¶ 3} The commission has filed the following objections to the magistrate's decision:

[1.] The Magistrate erred in finding the commission abused its discretion when it exercised continuing jurisdiction based on a mistake of law in the SHO order.
[2.] The Magistrate erred in substituting her own legal standard in place of the existing Statute and Regulations for Ohio working wage loss compensation.
[3.] The Magistrate's Decision voids the clear requirements of the Statute and Administrate Code and requires the commission to disregard current legal standards and apply a newly created standard of "maximum mental and physical level." In her decision, the Magistrate even concedes that her new standard is not at all in the existing law but "can be," and "should be considered as well."
[4.] The Magistrate erred in failing to determine if Roberts's request for WWL compensation complied with the requirements set forth in Ohio Adm.Code 4125-1-01(D).

{¶ 4} Because they are interrelated, we address together all four of the commission's objections. By its objections, the commission asserts the magistrate erred in concluding that it abused its discretion in exercising its continuing jurisdiction to deny Roberts WWL compensation based on its finding that the SHO committed a clear mistake of law. The commission argues that the SHO committed a clear mistake of law in excusing Roberts from searching for suitable and comparably paying employment as required under Ohio Adm.Code 4125-1-01(D)(1)(c). We disagree.

{¶ 5} The commission's power to reconsider a previous decision derives from its general grant of continuing jurisdiction under R.C. 4123.52. State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97, 99 (2002). The commission may exercise continuing jurisdiction when one of the following prerequisites is present: "(1) new and changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal." State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 14. Here, the commission identified a purported clear mistake of law as the basis for its continuing jurisdiction. However, because the SHO did not commit a clear mistake of law, the commission abused its discretion in exercising its continuing jurisdiction on that basis.

{¶ 6} R.C. 4123.56(B) provides for compensation for wage loss for persons unable to return to a former position of employment due to a workplace injury or occupational disease but still able to do some work. State ex rel. Oldaker v. Indus. Comm., 143 Ohio St.3d 405, 2015-Ohio-2569, ¶ 8. If eligible, the injured worker may be entitled to receive a percentage of the difference between the prior and current income for up to 200 weeks. Id. Entitlement to wage-loss compensation requires a claimant to demonstrate the allowed conditions actually caused wage loss. Id. Pursuant to Ohio Adm.Code 4125-1-01(D), a claimant must provide evidence that he has made a "good faith effort to search for suitable employment which is comparably paying work." Former Ohio Adm.Code 4125-1-01(D)(1)(c)1; see Oldaker at ¶ 9. "Suitable employment" is "work which is within the claimant's physical capabilities." Former Ohio Adm.Code 4125-1-01(A)(7). "Comparably paying work" is "employment in which the claimant's weekly rate of pay is equal to or greater than the average weekly wage received by the claimant in his or her former position of employment." Former Ohio Adm.Code 4125-1-01(A)(8).

{¶ 7} "A good faith effort necessitates the claimant's consistent, sincere, and best attempts to obtain suitable employment that will eliminate the wage loss." Former Ohio Adm.Code 4125-1-01(D)(1)(c). In determining whether a claimant has made a good-faith effort, an adjudicator must review "all relevant factors including, but not limited to" the following: the claimant's skills, prior employment history, and educational background;the number, quality, and regularity of contacts made with prospective employers; for a claimant seeking any amount of WWL compensation, the amount of time devoted to making perspective employer contacts during the period for which WWL is sought; labor market conditions; and the claimant's physical capabilities. Former Ohio Adm.Code 4125-1-01(D)(1)(c)(i)-(xv). As the magistrate noted, because this list is non-exhaustive, a claimant's mental impairment may be considered a relevant factor in evaluating that claimant's job search.

{¶ 8} Although the general rule is that a claimant seeking WWL compensation must make a good-faith effort to search for suitable and comparably paying work, a working claimant's failure to continue to seek higher paying employment may be excused in certain circumstances. State ex rel. Timken Co. v. Kovach, 99 Ohio St.3d 21, 2003-Ohio-2450, ¶ 22. For example, in State ex rel. Brinkman v. Indus. Comm., 87 Ohio St.3d 171, 174 (1999), the Supreme Court of Ohio held that the commission abused its discretion in denying WWL compensation and not excusing the claimant's failure to continue his job search after he obtained lucrative part-time work with a realistic possibility that it would become full-time. In Kovach, the court found that the commission did not abuse its discretion in excusing the claimant from engaging in a job search because the claimant continued to hold a position with his original employer, with whom he had worked for a long time, had accumulated years toward a pension, and may have qualified for additional vacation and personal days due to his longevity. Kovach at ¶ 19-28. As in Brinkman, the court in Kovach reasoned that it would be "inappropriate to ask a claimant to 'leave a good thing' solely to narrow a wage differential." Id. at ¶ 28.

{¶ 9} The commission argues that the magistrate's conclusion that the SHO did not commit a clear mistake of law is contrary to the mandate set forth in former Ohio Adm.Code 4125-1-01(D)(1)(c) and this court's decision in State ex rel. Wilson v. Indus. Comm., 10th Dist. No. 11AP-1092, 2013-Ohio-2449. In Wilson, this court found that the commission correctly concluded that the SHO had made a clear mistake of law in not applying the administrative code's job search requirement because the claimant had presented no evidence at the administrative level to demonstrate that any of the "precedential case exceptions [to the job search requirement] applied." Id. at ¶ 9. While we acknowledge that the Wilson decision strongly suggests that, unless the Supreme Court of Ohio accepted factual exception to the job search requirement applies, it is a clear mistake of law for the adjudicator to excuse a claimant from continuing to search for a job. However, subsequent case law from this court and case law from the Supreme Court indicates otherwise.

{¶ 10} In State ex rel. Republic Servs. v. Wright, Inc., 10th Dist. No. 13AP-219, 2014-Ohio-312, this court noted the Supreme Court's directive that determining whether to excuse a claimant's decision not to continue to seek comparable employment "must be made on a case-by-case basis." Id. at ¶ 8, citing State ex rel. Yates v. Abbott Laboratories, Inc., 95 Ohio St.3d 142, 2002-Ohio-2003. In Yates, the Supreme Court observed that whether a job search is necessary is a question that "is not amenable to hard-and-fast rules - - it is very dependent on circumstances." Yates at ¶ 36. Further, "the overriding concern in all of these cases - - as it has been since the seminal case of State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210, 648 N.E.2d 827 - - is the desire to ensure that a lower-paying position - - regardless of hours - - is necessitated by the disability and not motivated by lifestyle choice." Yates at ¶ 37; see Kovach at ¶ 25 ("In determining whether to excuse a claimant's failure to search for another job," the Supreme Court requires "a broad-based analysis that looks beyond mere wage loss."). Based on the necessity to review each case on its particular facts, the Wright court declined to restrict the commission's discretion in excusing the absence of a good-faith job search to the factual confines of Supreme Court cases approving an award of WWL compensation despite the absence of such a search. See Wright at ¶ 11; see also State ex rel. Whirlpool Corp. v. Indus. Comm., 10th Dist. No. 09AP-380, 2010-Ohio-255, ¶ 9 (finding that the commission reasonably determined that the claimant was not required to conduct a good-faith job search based...

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