31rt tyje 6upreme Court of Yjto

Transcription

1 ^. R 31rt tyje 6upreme Court of Yjto STATE ex rel. HONDA OF AMERICA MFG., INC., ^ V. Appellant, INDUSTRIAL COMMISSION OF OHIO, et al., Appellees. Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 11AP-528 MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO ROBERT A. MINOR ( ) Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, Ohio (614) Tel. (614) Fax. raminor@,vor ^ s. com Counsel for Appellant, Honda of America Mfg., Inc. MICHAEL DEWINE ( ) Ohio Attorney General PATSY A. THOMAS ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22"d Floor Columbus, Ohio (614) Tel. (614) Fax. Patsy ThomaskOhioAttorneyGeneral.gov Counsel for Appellee, Industrial Commission of Ohio MM 0 U RT c9 ^ C%upI OF Hla FRANK A. VITALE ( ) Law Office of Stanley Jurus 1375 Dublin Road Columbus, Ohio (614) Tel. (614) Fax. s.jurus gatt.net Counsel for Appellee, Robert L. Corlew

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION...:...1 STATEMENT OF THE FACTS...1 LAW AND ARGUMENT...4 PROPOSITION OF LAW...4 When an injured worker's temporary and total disability compensation is terminated and the injured worker later involuntarily retires due to the industrial injuries; the injured worker is eligible for temporary and total disability if the injured worker again becomes temporarily and totally disabled as a result of the industrial injuries....4 CONCLUSION...11 CERTIFICATE OF SERVICE...12 i

3 TABLE OF AUTHORITIES Cases State ex rel. Bing v. Indus. Comm. 61 Ohio St.3d 424 (1991)... 5 State ex rel. Carkido v. Indus. Comm. 10'' Dist. No. 10AP-27, 2011-Ohio State ex rel. Corman v. Allied Holdings, Inc. 132 Ohio St.3d 202, 2012-Ohio State ex rel. Elliott v. Indus. Comm. (1986) Ohio St.3d 76 4 State ex rel. Hoffman v. Rexam Beverage Can Co. 10th Dist. No. 11AP-533, 2012-Ohio , 10 State ex rel. McCoy v. Indus. Comm. 97 Ohio St.3d 25, 2002-Ohio , 9 State ex rel. Pierron v. Indus. Comm. 5, Ohio App.3d 168, 2007-Ohio-3292 (10th Dist.)... State ex rel. Pressley v. Indus. Comm. (1967) Ohio St.2d State ex rel. Staton v. Indus. Comm. (2001) Ohio St.3d State ex rel. Teece v. Indus. Comm. (1981) Ohio St.2d 165 4, 10 State ex rel. White Consolidated Industries v. Indus. Comm. (1990) Ohio St.3d 17 6 State ex rel. Yancey v. Firestone Tire & Rubber Co. (1997) Ohio St:3d ii

4 Authorities R.C ,9 R.C (A)... 5 R.C Ohio Adm.Code (A)(1)... 5 iii

5 INTRODUCTION This case arose as an original action in mandamus in the Court of Appeals. Appellant, Honda of America Mfg., Inc. ("Honda"), alleged that Appellee, Industrial Commission of Ohio ("commission"), abused its discretion when it reinstated temporary total disability ("TTD") compensation after Appellee, Robert Corlew ("Corlew") had retired and following Corlew's reconstructive surgery. Corlew was receiving TTD compensation until his allowed conditions reached maximum medical improvement ("MMI"). He eventually retired from Honda due to his industrial injury. Corlew testified that he desired to return to the work force but his industrial injuries precluded him from doing so. The commission found Corlew's testimony credible and persuasive and found that Corlew's retirement was involuntary. The commission's decision is based on some evidence in the administrative record. The lower court correctly held that the commission did not abuse its discretion and denied the requested extraordinary writ of mandamus. STATEMENT OF THE FACTS On December 5, 2003, Corlew was injured in the course of and arising out of his employment with Honda. (Stipulated Evidence at page 105, hereinafter "R. "). His claim was allowed for the following conditions: "contusion of right wrist; right wrist tendonitis; trifibrocartilage tear; carpi ulnaris subsheath tear; and anxiety disorder." (R. 1). As a result of the allowed conditions, Corlew began receiving TTD compensation. (R. 95). Waleed N. Mansour, M.D., conducted an independent medical exam ("IME") of Corlew on December 19, 2007, and opined Corlew's allowed conditions had reached MMI. (R. 95). On January 31, 2008, Sudha Thompson, M.D., Corlew's physician of record, completed a C-84 disability form, opining that Corlew was unable to work due to the allowed conditions in the claim. (R. 99). A 1

6 hearing was held before a district hearing officer ("DHO") on February 29, 2008, and the DHO found Corlew's allowed conditions had reached MMI. His TTD compensation was terminated. (R. 95). On March 10, 2008, Corlew agreed to participate in Honda's vocational rehabilitation services because Honda could not accommodate his medical restrictions. (R. 92). Twenty-four days later, on April 3, 2008, Honda closed Corlew's vocational rehabilitation file due to Corlew's inability to schedule a meeting within the time frame mandated by Honda. (R. 90). Due to Corlew's continued physical complaints associated with the allowed conditions, Corlew's new physician of record, Charles B. May, D.O., referred him for a consultation with a surgeon, Desmond J. Stutzman, D.O. (R. 86) On July 28, 2008, Dr. Stutzman recommended reconstructive surgery. (R ). In 2006, Corlew began participating Honda's Medically Inactive Transition ("MIT") program, and continued to do so until December, (R ). Following termination of his TTD compensation, Corlew began receiving long term disability ("LTD") benefits through the MIT program. ( R. 79). After completion of 130 weeks in Honda's MIT program, Corlew's allowed conditions continued to prevent him from working at Honda; however, Honda determined that Corlew was not disabled from "any occupation." (R. 79). Corlew was terminated from the MIT program, his LTD was terminated and his employment was going to be terminated by Honda on December 31, (R. 79). Corlew was eligible for retirement under Honda's pension provisions and, because his allowed conditions prevented him from working, he elected to do so effective December 31, (R ). On March 17, 2009, Dr. May completed a C-9 requesting authorization for reconstructive surgery. (R. 62). Honda denied the request for reconstructive surgery, pending an independent 2

7 medical examination ("IME"). Id. On behalf of Honda, Douglas Goula, D.O., conducted an IME on Apri129, 2009 and opined: Based upon the allowed conditions of the claim and the fact that Mr. Corlew has not been pain free since the surgical intervention of 2004, it is my opinion that the request for reconstruction of distal radioulnar joint and/or with ulnar shortening or ligament reconstruction and post-operative physical therapy is medically necessary and appropriate for the allowed conditions in this claim. This is based upon the abnormality with regard to the TFCC and the extensor carpi ulnaris as described. (R. 58). With Honda's approval, Dr. Stutzman performed reconstructive surgery on December 29, (R ). Corlew filed a motion on December 9, 2010, requesting TTD compensation beginning on the date of the surgery, which Honda denied. (R. 26). Corlew's request was heard by a DHO on April 29, 2010, and the DHO issued an interlocutory order taking the matter under advisement. (R. 24). Subsequently, the DHO issued an order granting Corlew's request for TTD compensation. (R. 22). Honda appealed and a staff hearing officer ("SHO") affirmed the award of TTD compensation. (R. 20). Honda's final appeal was to the full commission and the commission issued an order granting Corlew's request for TTD compensation. (R. 1). After giving consideration to the circumstances surrounding Corlew's retirement, the commission also noted "[Corlew] testified that he retired from his former position of employment because of the industrial injury [and] *** that he desires to return to the workforce, but that his industrial injury precludes him from doing so." (R. 1). The commission found Corlew's testimony credible and persuasive and that he "neither voluntarily retired, nor voluntarily abandoned the workforce." Id. Honda filed an action in mandamus in the Court of Appeals, Tenth Appellate District, requesting the court to find the commission abused its discretion by awarding Corlew TTD compensation. On March 21, 2012, a magistrate for the court rendered a decision denying 3

8 Honda's request for a writ of mandamus. Honda filed objections and on July 24, 2012, the lower court issued a decision adopting the magistrate's decision as its own and denied Honda's request for a writ of mandamus. It is from the lower court's decision that Honda has brought this action. PROPOSITION OF LAW LAW AND ARGUMENT When an injured worker's temporary and total disability compensation is terminated and the injured worker later involuntarily retires due to the industrial injuries, the injured worker is eligible for temporary total disability compensation if the injured worker again becomes temporarily and totally disabled as a result of the industrial injuries. To be entitled to a writ of mandamus, Honda must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists where Honda shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the commission's decision is supported by some evidence, it cannot be disturbed in mandamus as an abuse of discretion. State ex rel. Yancey v. Firestone Tire & Rubber Co., 77 Ohio St.3d 367 (1997). Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). R.C (A) states: [t]he termination of temporary total disability, whether by order or otherwise, does not preclude the commencement of temporary total disability at another point in time if the employee again becomes temporarily totally disabled. This statute does not contain any requirement that Corlew must be suffering an economic loss at the time his allowed industrial injury again became temporarily totally disabling. Honda is 4

9 attempting to add language to this statute that is clearly not present. R.C provides that workers' compensation statutes "* ** shall be liberally construed in favor of employees" and this Court has consistently been "*** unwilling to read language into R.C (A) which makes it harder for claimants to qualify." State ex rel. Bing v. Indus. Comm., 61 Ohio St.3d 424, 427 (1991). Under R.C , Corlew is eligible for TTD compensation after termination of a prior period of TTD compensation, once it is determined that his allowed conditions prevented him from returning to his former position of employment. "For purposes of compensability, a causal relationship must exist between the employee's industrial injury and the loss that the requested benefit is designed to compensate." State ex rel. McCoy v. Indus. Comm., 97 Ohio St.3d 25, 2002-Ohio-5305, 35. Further, it must be determined whether Corlew's retirement was voluntary and whether Corlew intended to abandon the entire work force. State ex rel. Pierron v. Indus. Comm., 172 Ohio App.3d 168, 2007-Ohio-3292 (10'' Dist.). An "involuntary retirement," for purposes of the voluntary abandonment doctrine is a retirement that is causally related to the industrial injury. Id. Here, as the commission's order reflects, consideration of the actions taken by Honda and Corlew between termination of TTD on February 19, 2008, up to the surgery on December 29, 2009, is required. (R. 1). MMI is defined as: a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within a reasonable medical probability in spite of continuing medical or rehabilitative procedures. Ohio Adm.Code (A)(1). On February 19, 2008, the commission determined Corlew's allowed conditions had reached MMI. Thus, the allowed conditions were no longer temporary but they were permanent and were not going to get any better. The allowed conditions still 5

10 prevented Corlew from working so he continued to participate in Honda's MIT program and began receiving LTD. (R. 78). A Honda associate is entitled to participate in its MIT program when the associate is "unable to work for an extended period of time due to a work or nonwork related medical condition." (Honda's Brief, p. 2, emphasis added). "When an associate has been in the MIT program for 130 weeks, Honda's LTD carrier evaluates the associate to determine whether [the associate] remains eligible for LTD benefits." (Honda's Brief, p. 2). Corlew completed 130 weeks in the MIT program and, on December 16, 2008, a Honda plant administration representative completed a MIT 130 Week Separation of Employment Checksheet ("checksheet"). (R. 79). Based on the checksheet, Corlew's LTD was being terminated effective December 12, 2008, his employment with Honda was being terminated, and his benefits provided by Honda would end on December 31, Id. Honda admitted at the SHO hearing that Corlew left employment with Honda under circumstances that constituted an involuntary separation. (R. 2). Thus, Corlew's allowed conditions prevented him from being employed at Honda. Corlew, being eligible for retirement, involuntarily retired from Honda effective December 16, (R. 68). "When a claimant's retirement is causally related to an industrial injury, the retirement is not `voluntary' so as to preclude eligibility for temporary total disability compensation." State ex rel. White Consolidated Industries v. Indus. Comm., 48 Ohio St.3d 17 (1990) (citations omitted). Approximately three months after involuntarily retiring, Corlew began the process of obtaining approval from Honda to have reconstructive surgery as a result of continued problems with the allowed conditions. (R. 62). Corlew did not break the causal connection between his work-related injury and any future loss of wages. But for the allowed conditions in the claim, Corlew would be working. These facts support the commission's decision's that Corlew did not voluntary retire from Honda. In situations where a 6

11 claimant's retirement is involuntary, a claimant remains eligible for TTD compensation. Here, the lower court did not err in determining: [t]he voluntary nature of Corlew's departure from Honda is a factual question which centers around his intent at the time of retirement and must be determined by the commission. *** [C]onsideration must be given to all relevant circumstances existing at the time of the alleged abandonment. *** Because the commission looks at the intent of the injured worker, the commission can find that an injured worker who involuntarily retires from his or her former position of employment yet wants to be working at the time he or she is temporarily and totally disabled does qualify for TTD compensation because, but for the allowed conditions in the claim, that injured worker would be working. (Decision, pp. 10 and 11, citations omitted). In State ex rel. Hoffman v. Rexam Beverage Can Co., 10th Dist. No. 11AP-533, Ohio-2469, the issue presented to the court below is similar to the issue here. Hoffman received TTD compensation until his allowed conditions reached MMI. Approximately three months after the MMI determination, Hoffman retired. Sixteen months after retiring, he underwent surgery and sought TTD compensation beginning the date of surgery. Hoffman's request for TTD compensation was denied. The commission determined that Hoffman voluntarily retired. The lower court found that the commission did not abuse its discretion. Also, the lower court held that in similar factual situations "where a claimant is not receiving TTD compensation, retires, and then thereafter seeks reinstatement of TTD compensation, * * * if the commission makes the determination that the claimant's retirement was voluntary, then the [claimant is] not entitled to an award of TTD compensation. Conversely, if the commission determines that the [claimant's] departure from the workplace is involuntary, the [claimant] remains eligible for an award of TTD compensation." Id. at 79. As in Hoffman, Corlew was not receiving TTD compensation, retired, and thereafter sought reinstatement of TTD compensation. However, unlike the commission's decision in Hoffman, the commission determined Corlew's departure 7

12 from the workplace was involuntary. Based on lower court's decision in Hoffman, Corlew is eligible for an award of TTD compensation because the commission determined his departure from the workplace was involuntary. (R. 1). Honda's reliance on State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579, is misplaced. Corman's claim was allowed for a 2002 knee injury, and he applied for and received TTD compensation. When his allowed conditons reached MMI, the commission terminated Corman's TTD. After his TTD was terminated, Corman retired from his employment. In 2009, six years after he retired, Corman underwent a total knee replacement surgery and re-applied for TTD compensation. The commission found his retirement was not injury-induced but was voluntary, despite his testimony to the contrary. This Court denied Corman's request for a writ of mandamus, holding: [T]there was no evidence of a medical inability to perform other work in the years between Corman's departure from Allied Holdings and his request for TTC, so Corman had [a choice to] seek other employment or work no further. When Corman elected the latter, he eliminated the possibility of, or potential for, lost wages. He cannot, therefore, credibly assert that he has lost income due to his industrial injury. Id. Here, Honda is attempting to massage this Court's holding in Corman to fit the current facts. Honda miscontrues this Court's holding by stating: [W]here the possibility of or potential for lost wages was eliminated, the injured worker could not assert credibly that he had lost income due to the industrial injury. That is the situation with this case. There is nothing to support any argument that Mr. Corlew's economic situation was changed by the surgery that he had undergone some years after he left the workforce. (Honda's Brief, p. 9). Honda fails to recognize that the commission in Corman had determined that Corman's retirement was not injury induced but was voluntary. Corman, 132 Ohio St.3d 202, 2. Here, the commission determined Corlew's retirement was injury induced and therefore involuntary. This is a significant difference between Corman and this case. As the 8

13 lower court correctly determined "the record contains evidence that [Corlew] retired because of the industrial injury that also precluded him from returning to the work force." (Decision, p. 3). Honda has taken an extremely narrow approach to analyzing the factual situation. Honda argues the commission abused its discretion by granting Corlew a new period of TTD compensation because, at the "time of his surgery on December 29, 2009, Mr. Corlew had been out of the workforce for over a year, was not actively looking for a job, and evidenced no intention for re-entering the workforce. Thus, he did not suffer an economic loss entitling him to TTD." (Honda's Brief, p. 6). Honda also asserts that determining whether Corlew voluntarily retired is not necessary. (Honda's Brief, p. 9 and 10). Honda's arguments are not supported by statute or established case law. Honda cites numerous cases purportedly in support of its "economic loss" argument. However, in each of those cases, the relevant inquiry was whether claimant's retirement was voluntary. In McCoy, this Court held "a claimant who voluntarily abandoned his or her former position of employment or who was fired under circumstances that amount to a voluntary abandonment of the former position will be eligible to receive temporary total disability compensation pursuant to R.C if he or she reenters the work force and, due to the original industrial injury, becomes temporarily and totally disabled while working at his or her new job." McCoy, 2002-Ohio-5305 at 40. The lower court in State ex rel. Carkido v. Indus. Comm., 10"' Dist. No. loap-27, 2011-Ohio-4051 denied claimant's request for TTD and held "the commission's decision that relator's separation from the work force was voluntary was proper." Finally, in State ex rel. Staton v. Indus. Comm., 91 Ohio St.3d 407, 409 (2001), this Court held "[t]he character of retirement is indeed relevant because if injury-related, it is involuntary and cannot bar TTD. (citation omitted). If it is not injury-related, the result may be 9

14 different." Here, the lower court did not err in determining that the relevant issue does concern voluntary abandonment of employment and not, as asserted by Honda, "whether one has to suffer economic loss in order to be entitled to TTD compensation." (Decision p. 2). As previously stated, in addition to determining if Corlew's retirement was voluntary, the commission must also determine whether Corlew intended to abandon the entire work force. Pierron, 2007-Ohio-3292, 12. During the hearing before the commission, Corlew testified he "retired from his former position because of the industrial injury. Further, [Corlew] testified that he desires to return to the workforce, but that his industrial injury precludes him from during so." (R. 2). The commission found Corlew's testimony credible and persuasive and held that he did not intent to abandon the workforce. Id. Corlew's testimony is some evidence on which the commission can rely. It is well settled that the commission sits as the trier of fact in determining whether a worker's retirement was injury induced, and therefore involuntary. Teece, 68 Ohio St.2d 165. In mandamus, it is not a court's responsibility to reconsider the facts and determine the worker's motivation in retiring. Hoffman, 2012-Ohio-2469 at 60. "Provided the commission relied on some evidence," it is not an abuse of discretion for the commission to determine that Corlew's retirement was involuntarily. Id. As the lower court determined, "the record contains evidence that claimant retired because of the industrial injury that also precluded him from returning to the work force." (Decision, p. 3). 10

15 CONCLUSION The lower court did not err in denying the request for an extraordinary writ of mandamus. The commission's order is supported by some evidence in the administrative record. The commission respectfully requests this Court to affirm the lower court's decision and deny the requested writ of mandamus. Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney Genera^ PATSA`.GIA'S ( ) Assis t Attorney General Workers' Compensation Section 150 East Gay Street, 22 d Floor Columbus, Ohio (614) Tel. (614) Fax. Patsy.Thomas@OhioAttorneyGeneral.gov Counsel for Appellee, Industrial Commission of Ohio 11

16 CERTIFICATE OF SERVICE ^D d^ay of March, 2013 to It is hereby certified that a copy of the foregoing was served on this Via U.S. Mail Robert A. Minor Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, Ohio Counsel for Appellant, Honda of America Mfg., Inc. Via U.S. Mail Frank A. Vitale Law Office of Stanley Jurus 1375 Dublin Road Columbus, Ohio Counsel for Appellee, Robert Corlew AT 1. THOqAS (606331,ssist Attorney General 12