State Ex Rel. Ronald R. Corman v. Allied Holdings Inc

• Decision Date: 21 October 2010
• Docket Number: No. 10AP-38,10AP-38
• Parties: State ex rel. Ronald R. Corman, Relator, v. Allied Holdings, Inc. and The Industrial Commission of Ohio, Respondents.
• Court: Ohio Court of Appeals

State ex rel. Ronald R. Corman, Relator,

v.Allied Holdings, Inc. and The Industrial Commission of Ohio, Respondents.

No. 10AP-38

COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

FILED: October 21, 2010

DECISION

Clements, Mahin & Cohen, L.P.A., Co., William E. Clements and Paul A. Lewandowski, for relator.

Scott, Scriven & Wahoff, LLP, William J. Wahoff and Richard Goldberg, for respondent Allied Holdings, Inc.

Richard Cordray, Attorney General, and Charissa D. Payer, for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.

{¶1}Relator, Ronald R. Corman, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying relator's request to reinstate his temporary total disability ("TTD") compensation. Relator also requests this court to order the commission to findthat his retirement was not voluntary and to award him TTD compensation beginning March 30, 2009.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is attached hereto. The magistrate found that there was some evidence to support the commission's determination that relator's retirement from the work force was voluntary. The magistrate also found that even if relator's March 2009 surgery constituted a new and changed circumstance, the commission did not abuse its discretion in determining that relator voluntarily abandoned the work force when he retired, and that the reinstatement of TTD compensation was not warranted. Therefore, the magistrate has recommended that we deny relator's request for a writ of mandamus.

{¶3} Relator has filed objections to the magistrate's decision. Citing primarily State ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, State ex rel. Reitter Stucco v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499, and State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5, 1996-Ohio-132, relator first argues that a claimant can abandon a former position of employment or remove himself from the work force only if he has the physical capacity to return to his former position of employment at the time of the abandonment or removal. Because he was receiving TTD compensation and was unable to return to his former position of employment when he retired from Allied Holdings, Inc. ("Allied"), relator argues that his retirement from Allied was not voluntary. Therefore, relator argues that he was entitled to TTD compensation six years later due to a new and changed circumstance involving his industrial injury. We disagree.

{¶4} It is well-established that TTD compensation is intended to compensate an injured worker for the loss of earnings incurred while the industrial injury heals. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, ¶9, citing State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44. However, there can be no lost earnings, or even a potential for lost earnings, if the claimant is voluntarily no longer part of the active work force. Id. A claimant who voluntarily leaves the entire labor market "no longer incurs a loss of earnings because he is no longer in a position to return to work." Ashcraft at 44. Under these circumstances, there simply is no causal relationship between the industrial injury and the voluntary decision to leave the entire work force. Consequently, when the reason for leaving the labor market is unrelated to the industrial injury, TTD compensation is foreclosed. Pierron at ¶9, citing State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44. This principle applies even when the claimant's separation from a specific employer is deemed involuntary. Pierron at ¶11.

{¶5} The distinction between a decision to retire from a particular employer and a decision to leave the work force entirely was highlighted in Pierron. Pierron suffered an industrial injury in 1973. The claim was allowed and Pierron's doctor imposed medical restrictions that were incompatible with Pierron's former position of employment. The employer offered Pierron a light-duty position consistent with those restrictions, and Pierron accepted the offer. Pierron continued to work in that position for the next 23 years.

{¶6} In 1997, the employer informed Pierron that it was eliminating his light-duty position. It was undisputed that the employer did not offer Pierron an alternate position. Instead, the employer gave Pierron the option to retire or be laid off. Pierron chose retirement.

{¶7} In the years that followed, Pierron remained unemployed except for a brief part-time stint as a flower delivery person. In late 2003, Pierron moved for TTD compensation. The commission denied Pierron's request.

{¶8} Pierron filed an action in mandamus seeking an order compelling the commission to award TTD compensation. In affirming this court's decision to deny mandamus relief, the court stated:

* * * The commission found that after Pierron's separation from Sprint/United, his actions-or more accurately inaction-in the months and years that followed evinced an intent to leave the work force. This determination was within the commission's discretion. Abandonment of employment is largely a question " 'of intent * * * [that] may be inferred from words spoken, acts done, and other objective facts.' " State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989), 45 Ohio St.3d 381, 383, 544 N.E.2d 677, quoting State v. Freeman (1980), 64 Ohio St.2d 291, 297, 18 O.O.3d 472, 414 N.E.2d 1044. In this case, the lack of evidence of a search for employment in the years following Pierron's departure from Sprint/United supports the commission's decision.

We recognize that Pierron did not initiate his departure from Sprint/United. We also recognize, however, that there was no causal relationship between his industrial injury and either his departure from Sprint/United or his voluntary decision to no longer be actively employed. When a departure from the entire work force is not motivated by injury, we presume it to be a lifestyle choice, and as we stated in State ex rel. PepsiCola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210, 216, 648 N.E.2d 827, workers' compensation benefits were never intended to subsidize lost or diminished earnings attributable to lifestyle decisions. In this case, the injured worker did not choose to leave his employer in 1997, but once thatseparation nevertheless occurred, Pierron had a choice: seek other employment or work no further. Pierron chose the latter. He cannot, therefore, credibly allege that his lack of income from 2001 and beyond is due to industrial injury. Accordingly, he is ineligible for temporary total disability compensation.

Id. at ¶10-11.

{¶9} Pursuant to Pierron, when a claimant's departure from the entire work force is not motivated by the industrial injury, the claimant is ineligible for TTD compensation because any loss of income is not causally related to the industrial injury. Pierron does not conflict with the principle set forth in Pretty Prods., OmniSource, and Reitter Stucco, that a claimant remains eligible for TTD compensation if the claimant is still disabled at the time of the claimant's departure from his employer, regardless of whether the departure is voluntary or involuntary. As noted in Pierron, there is a significant difference between a claimant's voluntary or involuntary separation from a particular employer at a time when the claimant is still disabled, and a claimant's voluntary decision to leave the entire work force.

{¶10} Here, the question is not whether relator was entitled to retain his TTD compensation after he retired from Allied. In fact, after relator retired from Allied, he continued to receive TTD compensation until several months later when the commission determined he was at maximum medical improvement. Rather, the issue is whether relator is entitled to TTD compensation six years later when there is some evidence that relator had retired from the entire work force. Given these circumstances, we find that the magistrate correctly applied the holding in Pierron. Therefore, we overrule relator's objections.

{¶11}Lastly, relator argues that the magistrate erred when she went beyond the decision of the commission in finding that relator's surgery did not constitute a new and changed circumstance. Because relator misreads the magistrate's decision, we disagree.

{¶12} Contrary to relator's contention, the magistrate did not find that relator's surgery did not constitute a new and changed circumstance. Although the point could have been more clearly stated, the magistrate found that even if relator's surgery constituted a new and changed circumstance, the commission did not abuse its discretion when it denied relator TTD compensation. On page 21 of the magistrate's decision, the magistrate states that the commission did not abuse its discretion in finding that relator never intended to return to the work force. Therefore, even if relator's surgery could be considered a new and changed circumstance, the reinstatement of TTD compensation was not warranted because relator did not lose any wages. For the reasons previously stated, we find no error in the magistrate's analysis and we overrule relator's last objection.

{¶13} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's findings of fact and conclusions of law as clarified herein. In accordance with the magistrate's decision, we deny relator's request for a writ of mandamus.

Objections overruled; writ of mandamus denied.

BRYANT and McGRATH, JJ., concur.

APPENDIX

MAGISTRATE'S DECISION

Rendered on June 22, 2010

IN MANDAMUS

{¶14}Relat...