State ex rel. Sours v. MGQ, Inc.

Docket Number22AP-31
Decision Date21 November 2023
Citation2023 Ohio 4289
PartiesState ex rel. Larry Sours, Relator, v. [MGQ, Inc.] et al., Respondents.
CourtOhio Court of Appeals

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

On brief:

Schaffer and Associates, L.PA., and Thomas J. Schaffer; The Law Office of Carla Lombardo, LLC, and Carla A. Lombardo, for relator.

Eastman & Smith LTD., Sarah E. Pawlicki, and Melissa A Ebel, for respondent MGQ, Inc.

Dave Yost, Attorney General, and Anna Isupova, for respondent Industrial Commission of Ohio.

DECISION

DORRIAN, J.

{¶ 1} Relator, Larry Sours, filed this original action in mandamus seeking a writ compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying relator's application for permanent total disability ("PTD") compensation and to enter an order granting such compensation. 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 a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends this court deny the request for a writ of mandamus. Having determined the magistrate correctly concluded the commission's order was supported by some evidence, we overrule Sours's objections to the magistrate's decision and deny the writ.

{¶ 2} Sours has filed the following two objections to the magistrate's decision:

[I.] THE MAGISTRATE ERRORED IN FINDING THE INDUSTRIAL COMMISSION'S ORDER IS SUPPORTED BY SOME EVIDENCE.
[II.] THE MAGISTRATE ERRORED IN FAILING TO FIND THE BWC WAIVED ITS RIGHT TO RAISE THE AFFIRMATIVE DEFENSE OF ABANDONMENT OF THE WORKFORCE/NOT WORKING FOR REASONS UNRELATED TO THE ALLEGED CONDITIONS IN THE CLAIM.

{¶ 3} Sours has not set forth a specific objection challenging the magistrate's findings of fact. Having independently reviewed the record, we adopt the magistrate's findings as our own.

{¶ 4} As set forth in more detail in the magistrate's decision, Sours sustained a workplace injury on July 18, 2015, in the course of his employment with respondent MGQ, Inc. A workers' compensation claim was allowed for multiple conditions. Sours returned to work in a light-duty position in June 2016, but stopped working in that role after three weeks because using a computer and wearing bifocals increased his symptomatology. Sours filed an application for PTD compensation in August 2016, which was denied in December 2016.[1] In February 2017, Sours sought to amend his claims to add certain psychological conditions and sought temporary total disability ("TTD") compensation. The amendment to his claim and request for TTD compensation was granted in May 2017, and TTD compensation for the psychological conditions continued until June 2019 when he was found to have reached maximum medical improvement ("MMI") on those conditions. Also in June 2019, the Bureau of Workers' Compensation ("BWC") issued an order allowing a claim for substantial aggravation of pre-existing degenerative changes at L5-S1, and awarded TTD compensation on that condition which was paid until September 2020.

{¶ 5} On October 5, 2020, Sours filed an application for PTD compensation. Following a hearing on March 25, 2021, a staff hearing officer ("SHO") of the commission denied the PTD application. The SHO found that subsequent to denial of his prior PTD application, Sours failed to return to employment and made no further attempts at vocational rehabilitation. The SHO concluded that Sours's inability to work was not related to his allowed conditions but was the result of his decision not to return to the workforce. Sours then filed a complaint in mandamus in this court.

{¶ 6} A relator seeking a writ of mandamus as a remedy from a commission decision must demonstrate that he/she has a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Rouch v. Eagle Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986). A clear legal right to a writ of mandamus exists when the commission abuses its discretion by entering an order not supported by some evidence. State ex rel Elliott v. Indus. Comm., 26 Ohio St.3d 76, 79 (1986).

{¶ 7} Sours argues in his first objection that the magistrate erred by finding the commission's order was supported by some evidence. Sours asserts the SHO failed to acknowledge that additional conditions were granted after the denial of his 2016 PTD application and that he received TTD compensation for those conditions. Sours further argues the magistrate erred by concluding the SHO considered all allowed conditions, including those allowed after the initial PTD denial, and asserts the general language in the order indicating the SHO had considered all evidence was insufficient to meet the standards for denial of a claim.

{¶ 8} In an order granting or denying benefits, the commission "must specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision." State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 206 (1991). We have held that a commission decision complies with those requirements if it "(1) specifies the evidence upon which the commission relied, and (2) explains the reasoning the commission used to reach its decision in such a manner as to enable meaningful judicial review." State ex rel. Altercare of Hartville Ctr., Inc. v. Ford, 10th Dist. No. 20AP-165, 2021-Ohio-4088, ¶ 7. Although the commission is required to consider all of the evidence before it, it is not required to list each piece of evidence considered in its decision. State ex rel. Digiacinto v. Indus. Comm., 159 Ohio St.3d 346, 2020-Ohio-707, ¶ 15. Instead, the commission need only list the evidence it relied on in reaching its conclusion. Id. As the magistrate noted, there is a presumption of regularity in the commission's proceedings and a presumption that the commission considered all evidence before it. Id. at ¶ 16.

{¶ 9} In this case, the SHO's order stated that all evidence was reviewed and considered in rendering the decision. The order listed all allowed conditions, including the additional conditions that were allowed after the 2016 PTD denial. The SHO found that Sours had not returned to employment after the initial PTD denial and concluded that Sours was not working for reasons unrelated to his allowed conditions. The SHO did not rely on the subsequent medical evidence and therefore was not required to list those reports in his decision. Digiacinto at ¶ 15. Compare State ex rel. Scouler v. Indus. Comm., 119 Ohio St.3d 276, 2008-Ohio-3915, ¶ 18-19 (reversing commission decision where the order stated that all evidence was reviewed and considered, and discussed all evidence presented, except for one medical questionnaire that could have supported a contrary result). Sours has not presented any specific evidence to rebut the presumption of regularity in the commission's proceedings or the presumption that the commission considered all evidence before it. See State ex rel. Setele v. Business Interlink Servs., 10th Dist. No. 03AP-560, 2004-Ohio-3306, ¶ 28 ("[R]elator has the burden of proving by specific evidence that the commission did not consider all the evidence pertaining to an application."). The SHO's decision satisfied the requirement of specifying the evidence on which he relied and explained the reasoning for the decision. Therefore, the magistrate did not err by concluding there was some evidence to support the commission's decision.

{¶ 10} Accordingly, we overrule Sours's first objection.

{¶ 11} In his second objection, Sours asserts the magistrate erred by failing to find the BWC had waived the argument that he had voluntarily abandoned the workforce or was retired or not working for reasons unrelated to his allowed conditions. Sours claims this argument could have been asserted as a defense to the 2017 or 2019 TTD compensation proceedings, and that because it was not raised in those proceedings it was waived for purposes of his 2020 PTD application.

{¶ 12} We begin by noting that the term "voluntarily abandoned" has been removed from the PTD statute. As discussed in the magistrate's decision and this court's decision in State ex rel. Columbus Distrib. Co. v. Reeves, 10th Dist. No. 21AP-399, 2023-Ohio-898, prior to September 15, 2020, the statute provided that PTD would not be awarded when an employee had retired or otherwise "voluntarily abandoned" the workforce for reasons unrelated to the employee's allowed condition. The current version of the statute provides that PTD will not be granted when "[t]he employee retired or otherwise is not working for reasons unrelated to the allowed injury or occupational disease." R.C. 4123.58(D)(3). Because Sours applied for PTD compensation in October 2020 and the SHO denied his application in March 2021, the current version of R.C. 4123.58 applies to this case. See Reeves at ¶ 57.

{¶ 13} Notwithstanding the removal of the phrase "voluntarily abandoned" from R.C. 4123.58(D)(3) the amendment to the PTD statute did not expressly supersede prior case law regarding the doctrine of voluntary abandonment in PTD cases. See Reeves at ¶ 56 ("Unlike the concomitant amendments to TTD law, the new language does not contain a legislative admonishment that all prior case law on the topic is nullified by the amendment."). Compare R.C. 4123.56(F) ("If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive [temporary total disability] compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied the...

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