State ex rel. Navistar, Inc. v. Indus. Comm.
2017 Ohio 8976
| Ohio Ct. App. | 2017Background
- Claimant (Bisdorf) had allowed workers' comp claims for 1971 (left knee) and 2001 (right shoulder) injuries and later sought permanent total disability (PTD) based on medical reports (Grunstein and Rutherford).
- Claimant retired from Navistar in 2003, later worked ~6½ years at a gun store until it closed in 2010; at the PTD hearing he testified he considered himself retired and did not seek work after the store closed because of physical limitations.
- At the May 10, 2016 SHO hearing claimant was the sole witness; relator (Navistar) elicited testimony about retirement and not seeking work but did not expressly ask the SHO to find voluntary workforce abandonment or invoke Ohio Adm.Code 4121-3-34(D)(1)(d).
- The SHO awarded PTD based on medical findings (Drs. Grunstein and Rutherford) and did not address voluntary abandonment; Navistar filed reconsideration arguing the SHO failed to consider voluntary retirement, attaching earlier retirement paperwork.
- The commission denied reconsideration; Navistar filed for a writ of mandamus asking the court to vacate the PTD award or remand for determination of voluntary abandonment. The magistrate recommended a writ; the appellate court reviewed objections.
Issues
| Issue | Plaintiff's Argument (Navistar) | Defendant's Argument (Commission / Bisdorf) | Held |
|---|---|---|---|
| Whether the commission was required to address voluntary workforce abandonment at the SHO level | Relator: testimony and retirement documents raised the issue; SHO had duty under Adm.Code 4121-3-34(D)(1)(d) to consider it and thus must address it before awarding PTD | Commission & Bisdorf: employer waived the affirmative defense by failing to expressly raise it at hearing; issue is waived unless properly brought into issue | Court held: Employer did not clearly and convincingly raise the issue before the SHO; commission had no clear legal duty to address it; mandamus denied on this ground (commission's objection sustained) |
| Whether the SHO abused discretion by relying on medical reports of Grunstein and Rutherford to award PTD | Navistar: medical opinions are conclusory/contradictory and not "some evidence" supporting PTD; SHO failed to consider vocational/non-medical factors | Bisdorf/Commission: medical reports support inability to perform sustained remunerative employment; non-medical factors unnecessary if medical impairment alone establishes PTD | Court did not decide on the merits of these challenges; remanded to magistrate to consider remaining claims (issue left for further proceedings) |
| Whether late-filed retirement documents (from 2007) can be treated as evidence before the SHO | Navistar: papers were in commission file (filed 2007) and support voluntary retirement argument | Commission: documents were not presented at the May 10, 2016 hearing and may not be treated as SHO evidence; commission has discretion over post-hearing filings | Court: these documents, submitted with reconsideration, are not equivalent to having been raised at the hearing and do not show the issue was administratively raised |
| Whether mandamus is an appropriate remedy | Navistar: extraordinary relief warranted because SHO committed legal error by not addressing voluntary abandonment | Commission: mandamus requires clear legal right and duty; relator failed to meet heightened burden | Court: Mandamus denied on the voluntary-abandonment question because relator failed to prove SHOs duty by clear and convincing evidence; remanded remainder to magistrate |
Key Cases Cited
- State ex rel. Black v. Industrial Commission of Ohio, 137 Ohio St.3d 75 (Ohio 2013) (voluntary retirement can affect PTD eligibility; adjudicator must consider retirement evidence when issue is raised)
- State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (Ohio 1997) (issues must be raised administratively or are waived)
- State ex rel. Baker Material Handling Corp. v. Industrial Commission, 69 Ohio St.3d 202 (Ohio 1994) (employee who retires before becoming permanently and totally disabled is precluded from PTD only if retirement was voluntary and abandoned the job market)
- State ex rel. Pierron v. Industrial Commission, 120 Ohio St.3d 40 (Ohio 2008) (voluntary abandonment renders claimant ineligible for temporary-total and permanent-total disability)
- Speelman v. Industrial Commission, 73 Ohio App.3d 757 (10th Dist. 1992) (discussing when non-medical factors need not be analyzed if medical impairment alone establishes inability to work)