IN THE SUPREME COURT OF OHIO STATE of OHIO, EX REL. DARWIN FLOYD, Appellant, Case No. 2013-0042 Court of Appeals Case No. 11AP-928 V. INDUSTRIAL COMMISSION OF OHIO, and ON APPEAL FROM THE FRANKLIN COUNTY COURT OF APPEALS, TENTH APPELLATE DISTRICT FORMICA CORPORATION, Appellees. MERIT BRIEF OF APPELLEE FORMICA CORPORATION Douglas W. Casper (0010663) Casper & Casper 3420 Atrium Blvd., Suite 160 Middletown OH 45005 dcasper@casperlaw.com Attorney farappellant, Darwin Floyd Joan M. Verchot (0037142) Dinsmore & Shohi, LLP 255 East Fifth Street, Suite 1900 Cincinnati, Ohio 45202 joan.verchot@dinslaw.cqm Attarney forappel`lee, Formica Corporation...,. ^ ^:...,,..,,,. Latwanda Moore, Esq. (0084037) Assistant Attorney General Office of the Attorney General Workers' Compensation Section 150 E. Gay Street, 22"a Floor Columbus OH 43215-3130 Iatawnda.moore@ohioattorneygeneraP.gov Attarney for Appellee, Industrial Commission of Ohio....-...SC%:^:. 'li.
TABLE OF CONTENTS TABLE OF AUTHORITiES...,... ii 1. STATEMENT OF THE CASE,...e............... 1 II. STATEMENT OF FACTS...............1, 2, 3, 4 191. LAW &ARGUMENT......,... 4, 5, 6, 7, 8, 9 A. Appellant is not eligible for temporary total disability compensation when he intended to abandon the workforce... 4 B. The exercise of continuing jurisdiction by the ICO after an MMI finding is not an automatic entitlement to TTD...... 7 V. CC?NCLUSION............ 9 VI. CERTIFICATE C3f SERVICF......... 10 i
TABLE OF AUTHORITIES State, ex ref. Corman v, Allied Holdings, Inc., 10`h Dist. No. 10AP-38, 2010-Ohio-5153... 4 State, ex rel. Pierron v. Indus. Comm. (2008), 120 Ohio St. 3d 40, 2008-Ohio-5245...4, 6 State, ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St. 3d 42, 44 et seq.... 4 State, ex rel. Ramirez v. lndus. Comm. (1982), 69 Ohio St. 2d 630, 634, et seq... 5 State, ex rei. Corman v. Allied Holdings, Inc., 132 Ohio St. 3d 202, 2012-Ohio-2579... 6 State, ex rel. Lackey v. Indus. Comm. (2011), 129 Ohio St. 3d 119, 2011-Ohio 3089... 6 State, ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989), 45 Ohio St. 3d 381... 7 State, exrel. Angell Manufacturing Company v. Long (10th App. Dist. 2003), 2003-Ohio-6469 at P. 39...................8, 9 State, ex rel. Staton v. frtdus: Comm. (2001), 91 Ohio St. 3d 407............ 9 STATUTES: Ohio Revised Code 4123.52................ 8 ii
1. STATEMENT OF THE CASE This case is an appeal of an original mandamus action in the Tenth District Court of Appeals. Appellant Darwin Floyd ("Floyd") alleged that the industriai Commission of Ohio ("ICn") abused its discretion in denying his request for temporary total disability compensation. Appellees Formica Corporation ("Formica") and the Industrial Commission of Ohio argued there was ample evidence upon which the Industrial Commission relied in denying temporary total disability compensation. The Industrial Commission weighed the evidence presented and reached the correct conclusion in its orders denying temporary total disability compensation. Appellant Floyd challenged this decision in the Tenth District Court of Appeals. The Magistrate ruled that the ica did abuse its discretion in denying temporary total disability compensation, however, upon objections to the Magistrate's order, the Court overturned the Magistrate's decision and sustained Formica's and ICO's objections thereby denying the Appeliant's requested writ of mandamus. This is an appeal of right from the Tenth District's order. If. STATEMENT OF THE FACTS On March 11, 2000, Darwin Floyd sustained an injury to his shoulders while working as a trim and sand flipper for Formica Corporation, a self-insured employer. As a result of his injury, Floyd filed a workers' compensation claim that was assigned Claim No. 00-371680 and was eventually allowed for the conditions of sprain bilateral shoulder, rotator cuff dislocation bilateral shoulder, tendinitis bilateral shoulder, adhesive capsulitis bilateral shoulder, necrosis humeral head of the left shoulder and septic arthritis of the right shoulder (Supp. P. 3). Not all 1
of these diagnoses were recognized at the initial allowance of the claim, however, afl were recognized later on in the claim. After his injury, Floyd continued to work in a light-duty capacity for Formica. He had a surgery on his left shoulder on August 14, 2000 to repair the torn rotator cuff (Supp P. 13). As a result of his surgery, Floyd received a period of temporary disability compensation. He returned to work in a light-duty position from November, 2000 until January 21, 2001 when Formica informed Floyd that the light-duty position was no longer available. He was laid off and began receiving TTD compensation (Supp. P. 5), Floyd then filed for and received Social Security Retirement benefits starting April 2001 (Supp P. 12). Over the next several years, Floyd had multiple surgeries to his left and right shoulders. He received temporary total disability compensation until June 21, 2006 when he was declared MMI by the ICO (Supp P. 1). Floyd thereafter underwent two other surgeries at his doctor's recommendation. In a letter dated July 11, 2007, Samer Hasan, M.D. found that Mr. Floyd was permanently and totally disabled from all work due to his industrial injuries (Supp Pgs. 26-27). Thereafter, Mr. Floyd filed an application for permanent and total disability benefits. (Supp Pgs. 28-35). Mr. Floyd later dismissed the permanent and total disability application on November 30, 2007 because of surgery recommended by Dr. Hasan (Supp P. 38). In February, 2008, Floyd underwent left shoulder replacement surgery (Supp P. 16). Floyd was paid temporary total disability compensation during his recovery period starting on February 15, 2008 (Supp Pgs. 7-8). The self-insured employer exercised its right to an independent medical examination with Joseph Marino, M.D. on March 27, 2009. At that time, 2
Dr. Marino found that the Appellant had reached maximum medical improvement (Supp Pgs. 13-22); The Industrial Commission found he reached MMI on May 26, 2009 (Supp Pgs. 42-43). In November, 2010, Floyd underwent a total right shoulder replacement surgery (Supp P. 16). He filed a C-84 form on December 17, 2010 requesting payment of temporary total disability compensation from November 26, 2010 through February 26, 2011 as a result of this shoulder surgery (Supp P. 74-75). The District Hearing Officer denied Floyd's request finding that the "injured worker is not eligible for the payment of temporary total disability compensation because he is not in the workforce as of November 26, 2010" (Supp. Pgs. 74-75), On appeal to the staff level on March 31, 2011, the Staff Hearing Officer affirmed the District Hearing Officer's finding that Floyd abandoned the workforce (Supp Pgs. 76-77). The Staff Hearing Officer order noted that: The Staff Hearing Officer notes that this industrial injury occurred in March, 2000. The Injured Worker had undergone several surgical procedures. The Staff Hearing Officer notes that in 2001, the Injured Worker was working for the Employer on a light-duty basis when the Seif-insuring Employer informed the injured Worker they no longer had light-duty work available for him. The Staff Hearing Officer finds that the Injured Worker was placed on temporary total disability and later was found to have reached maximum medical improvement for the recognized conditions in the claim. The Injured Worker testified that he had not worked anywhere since he had stopped working in 2001 when there was no light-duty work avai9able. He applied for and began receiving Social Security Retirement benefits in May, 2001. Although the Injured Worker testified at the hearing he would have kept working for the Employer if light-duty work had remained available, he acknowledged he did not attempt to return to work anywhere else after 2001 (Supp Pgs. 76-77). Thereafter, Floyd filed an appeal to the full Industrial Commission of Ohio which found that it did not have continuing jurisdiction over this matter and issued a refusal order (Supp P. 78). Floyd subsequently filed an action in the Tenth District Court of Appeals asserting the 3
Industrial Commission abused its discretion when it denied temporary total disability compensation beginning November 26, 2010. The Magistrate issued a decision granting Floyd's request for the writ of mandamus (Appellant's Appendix Ex. C). Upon timely objections to the Magistrate's decision, the Tenth District Court of Appeals sustained Formica and the ICO's objections in a decision dated December 6, 2012. The Court relied upon State, ex rel. Corman v. Allied Holdings, Fnc., 10th Dist. No. 10AP-38, 2010-Ohio-5153 when it appropriately framed the issue as not whether he was entitled to retain TTD compensation after retirement, but rather, whether the injured worker was "entitled to TTD compensation six years later when there is some evidence that Relator had retired from the entire workforce" (Appellant's Appendix Ex. B11). The Court of Appeals also relied on State, ex rel Pierron v. Indus. Comm. (2008), 120 Ohio St. 3d 40, 896 N.E.2d 140 finding that Floyd's application for and receipt of Social Security Retirement benefits beginning in 2001 and Floyd's testimony that he had not worked or sought work since his 2001 departure from Formica constituted some evidence to support the ICO determination (Appellant's Appendix Ex. B13), Thereafter, Floyd filed an appeal of right from the Tenth District's order to this Court (Appellant's Appendix Ex. A). Ill. LAW & ARGUMENT A. Appellant is not eligible for temporary total disability compensation when he intended to abandon the workforce. it is well-settled that, when a claimant voluntarily removes himself from the workforce, he no longer incurs a loss of earnings because he is no longer in a position to work. See, State, ex rel. Ashcraft v. indus. Comm. (1987), 34 Ohio St. 3d 42, 44 et seq. Since temporary total 4
disability compensation is a source of wage replacement, and where there are no wages to replace, temporary total disability compensation will be barred. This fundamental principle has been long recognized by this Court. See, e.g. Ramirez v. Indus. Comm. (1982), 69 Ohio St. 2d 630, 634, et seq. Appellant has not returned to work since he was laid off by Formica in 2001. At that time, he applied for and received Social Security Retirement benefits as of April, 2001. Furthermore, Appellant testified at the ICa that he did not seek other employment since 2001. While there is no legal imperative for Appellant to look for work, his failure to seek reemployment was one of the facts the Industrial Commission weighed in denying Floyd's temporary total disability compensation (Supp Pgs. 74-77). Appellant argues that the Industrial Commission's decision required him to seek gainful employment during the time he was on T7D compensation. That directive is clearly not in the Commission's orders nor is there any evidence in the record that the Industrial Commission required Floyd to seek gainful employment. The ICO speaks through its orders and the ICO orders listed the facts which supported its conclusion that Appellant had voluntarily abandoned the workforce and was not eligible for temporary total disability compensation. The specific findings of fact by the District and Staff Hearing Officers included: "testimony that he had not worked anywhere since he had stopped working in 2001 when there was no light-duty work available. He applied for and began receiving Social Security Retirement Benefits in May, 2001 [sic]. Although the injured worker testified at the hearing he would have kept working for the employer if light-duty work had remained available, he acknowledged he did not attempt to return to work anywhere else after 2001" (Supp. Pgs. 74-75). 5
The Staff Hearing Officer went on to find the injured worker's failure to seek any other employment subsequent to the separation date is evidence that he did not intend to re-enter the workforce. Relying on State, ex rel. Pierron v. lndus. Comm. (2008), 120 Ohio St. 3d 40, 2008- hio-5245, the Staff Hearing Officer found that the facts supported the conclusion that the injured worker had abandoned the workforce by his failure to work since 2001. It specifically relied upon the testimony of the Appellant at the hearing table. (Supp, at 76-77). In State, ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St. 3d 202, 2012-Ohio-2579, this Court held that where the possibility of or potential for lost wages was eliminated, the injured worker could not assert credibly that he had lost income due to an industrial injury. When Appellant herein underwent surgery in November, 2010 and applied for temporary total disability compensation, he was not working nor had he looked for work. His potential for lost wages had been eliminated and he had not estabiished that his surgery in 2010 resulted in any loss of earnings. He cannot now argue that he is eligible for TTD to replace any wages. Appellant cites State, ex rel. Lackey v. fndus. Comrn. (2011), 129 Ohio St. 3d 119, 2011- Ohio 3089 to support his arguments. However, the Court in Lackey specifically stated that if a departure from employment is related to the injury, it is not necessary for the claimant to first obtain other employment but it is necessary that the claimant has not foreclosed the possibility of abandoning the entire workforce to be awarded TTD. The necessity Lackey requires of not foreclosing the possibility of entire workforce abandonment is key to the analysis of TTD requests. It underscores the ICO's factual determination that Floyd did foreclose the possibility of returning to employment and intended to abandon the workforce. The ICO clearly found this necessary element missing in Floyd's request and denied TTD. 6
Appellant invites this court to reweigh the facts when he compares the factual position of Lackey and his own position as it pertains to his various surgeries and medical evidence. In his attempts to again discuss the medical history of the claim, Appellant overlooks and disregards the ICO's final jurisdiction to weigh the facts, and more importantly, the ICO's determination of the Appellant's intent to abandon the workforce. The ICO weighed the Appe(lant's testimony, the facts that were presented, the documentation in the state claim file, and reached the conclusion that it was Appellant's intent to abandon the workforce. it is clearly that demonstration which bars temporary total disability compensation not an analysis of his medical history. Indeed, in State, ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989), 45 Ohio St. 3d 381 this Court stated that the question of whether the claimant abandoned his former position of employment is "primarily one of intent that may be inferred from words spoken, acts done and other objective facts. The presence of such intent, being a factual question, is a determination for the Commission" Id. at 383. Floyd's detailed medical history was not a consideration for the ICO under these circumstances. B. The exercise of continuing jurisdiction by the ICO after an MMI finding is not an automatic entitlement to TTD. Appellant argues that the period of temporary total disability compensation requested from November 26, 2010 and to continue is evidence that the treating physician never released him to return to work. Appellant argues that the medical evidence demonstrates that he was physically incapable of engaging in any employment due to the allowed conditions in the daim, This is the same flawed argument in the Magistrate's order that the Court of Appeals rejected. The court correctly emphasized the focus on the periods in which a claimant did not receive TTD compensation and not the periods in which [a claimant) received TTD compensation after 7
retirement. Citing Corman, Supra, the Court of Appeals recognized that a determination of one's intent at the time of retirement may still be relevant even though one is receiving TTD compensation and is unable to return to his former position of employment at the time of retirement (Appendix at B11, emphasis added), Moreover, Appellant was found by the ICO to have reached maximum medical improvement on May 26, 2009 for the allowed conditions in the claim. The obligation was then on Appellant to invoke the continuing jurisdiction of the Industrial Commission when he applied for the period of temporary total beginning on November 26, 2010 O.R.C. 4123.52. There is no question that the ICC) can modify a previous MMI order by exercising its continuing jurisdiction, however, the ICO declined to exercise it here (Supp. Pgs. 36-37). Even if it did exercise jurisdiction after its finding of MMI, it does not change the issue-analysis of workforce abandonment. The workforce abandonment doctrine would always have applied irrespective of whether the ICO exercised its continuing jurisdiction over the claim. The fundamental question would always be whether the claimant's eligibility for TTD is causally related to his injury and whether he intended to abandon the workforce therefore barring TTD. Appellant confuses the exercise of continuing jurisdiction with an automatic finding of entitlement to temporary total disability compensation. Again, Appellant is asking this Court to impermissibly reconsider the facts and reweigh the evidence and substitute its judgment for the ICO. Even considering Appellant's argument as to his medical condition and even considering his argument of his inability to return to some form of employment, he cannot credibly argue he has a loss of wages for which he is requesting temporary total disability compensation when the practical possibility of his employment no longer exists. See, State, ex 8
rel. Angell Manufacturing Company v. Long (10Y" App. Dist, 2003), 2003-Ohio-6469 at P. 39 and State, ex rel> Staton v. Indus. Comm. (2001), 91 Ohio St. 3d 407. Appellant has simply not experienced any loss of earnings due to his industrial injury and is therefore not eligibfe for TTD. IV. CONCLUSION The Tenth District Court of Appeals' decision should be upheld. There is some evidence supporting the industriaf Commission's finding that Appellant voluntarily abandoned the workforce when he evinced an intent not to return to work. The decision by the Court of Appeals followed the doctrine established by this Court in Pierron and Corman, Supra. The ICO did not abuse its discretion in denying temporary total disability compensation. There is ample evidence to support its finding. For all these reasons, Appellee Formica respectfully requests that this Court uphold the Appellate court's decision and deny Appellant's requests for a writ of mandamus. spectfully subm"tted, Joa Verchot (0037142) Di smore & Shohl LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 (513) 977-8418 - Telephone; (513) 977-8442 - Facsimile Counsel for Appellee, FormJca Corporation 9
CERTIFICATION I hereby certify that a true and correct copy of the foregoing has been served by U.S. Mail, postage prepaid, on this 5th day of June, 2013, upon the following: Douglas W. Casper, Esq. Casper & Casper 3420 Atrium Blvd., Suite 160 Middletown, OH 45005 dcasper@casperlaw.com Attorney for Appellant, Darwin Floyd Latawnda N. Moore, Esq. Assistant Attorney General Office of the Attorney General Worlcers' Compensation Section 150 E. Gay Street, 22"a Floor Columbus, OH 43215-3130 Attarney for Appellee, Industrial Commession of Ohio v.. n M, Verchot 2431176v1 10