THE STATE EX REL. KINNEAR DIVISION, HARSCO CORPORATION, APPELLEE AND CROSS-APPELLANT, V. INDUSTRIAL COMMISSION OF OHIO; DRUGGAN, APPELLANT AND CROSS-APPELLEE.
No. 94-2390
SUPREME COURT OF OHIO
January 15, 1997
77 Ohio St.3d 258 | 1997-Ohio-40
ALICE ROBIE RESNICK, J.
Submitted October 8, 1996. APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No. 93APD08-1068.
Porter, Wright, Morris & Arthur and Karl J. Sutter, for appellee and cross appellant.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, for appellant and cross-appellee.
{¶ 3} On March 22, 1990, Druggan, at age sixty-eight, applied for “Normal Retirement Pension” benefits under his employee pension plan, which Harsco granted. The plan also offered a “Permanent Disability Retirement Pension” for those who qualified. Druggan explained on his pension application that he had not worked since February 25, 1986 because of “Workers [sic] Comp Disability.”
{¶ 4} On October 7, 1991, Druggan applied for permanent total disability (“PTD”) compensation with the Industrial Commission of Ohio (“commission”). In support of his PTD application, Druggan attached a report from Dr. Gerard M. Papp, dated January 3, 1990, opining that Druggan was not “capable of sustained gainful employment as a tool and dye [sic] maker,” and a report from Dr. Guluzian, dated October 2, 1991, in which Dr. Guluzian certified that Druggan “is now permanently and totally disabled from all gainful employment.” Druggan’s application was placed on the “Eaton docket,” and Dr. Guluzian continued to submit C-84s certifying Druggan as temporarily and totally disabled (and Harsco continued to pay TTD compensation based thereon), pending a hearing on Druggan’s PTD application scheduled for August 25, 1992.
{¶ 5} The matter was heard on that date by a staff hearing officer (“SHO”), who issued an “interlocutory order” finding that Druggan is permanently and totally disabled and awarding PTD compensation from August 26, 1992 to December 6, 1992. Also on August 25, 1992, Druggan’s claim was amended to include “[a]ggravation of pre-existing degenerative disc disease at L3-4, L4-5, L5-S1.”
{¶ 6} In January 1993, Harsco filed a vocational report dated December 30, 1992 from Parman & Associates, Inc., a rehabilitation consulting firm, which opined that Druggan had the ability to perform sustained remunerative
{¶ 7} On April 7, 1993, the commission heard Druggan’s application for PTD compensation. A court reporter was present and a transcript of the proceedings was prepared and made part of the record. At the hearing, Harsco’s counsel alerted the commission to the fact that the vocational report filed in January had not been addressed in the statement of facts, resubmitted it for review, and outlined the critical portions of the report. Also, Harsco’s counsel argued that PTD benefits should be denied because Druggan retired in the spring of 1990. The following colloquy then took place between Stewart R. Jaffy, Druggan’s counsel, and Commissioners Donald M. Colasurd, James L. Mayfield and Richard Geltzer:
“MR. COLASURD: The decision finds the claimant permanently and totally disabled. Mr. McAllister and Mr. Levitt voted no.
“MR. JAFFY: I think because of that recent Supreme Court ruling that Mr. Sutter referred to it’s necessary to have a finding that the retirement was not a voluntary retirement.
“MR. COLASURD: I agree with you. I personally do not believe that this man’s retirement was voluntary. I believe that he was removed from the work force based on his industrial injury of February 26, 1986.
“MR. MAYFIELD: I concur with that.
“MR. GETZLER [sic]: I agree.”
“The reports of Doctor(s) Guluzian, Seeder, Gatens and Riccio were reviewed and evaluated. This order is based particularly upon the reports of Doctor(s) Guluzian, Seeder, Gatens and Riccio, evidence in the file and/or evidence adduced at the hearing.
“Claimant is a 71 year old male, who was 64 at the time of the injury. Claimant has an 11th grade education. Claimant worked as a tool and dye [sic] maker for 41 years for the employer of record before the injury. Claimant’s only other job was in the Army from 1943-45. Dr. Gatens found a 40% permanent partial impairment of the body as a whole and opines that the industrial injury permanently prevents claimant from returning to his former position of employment. Dr. Guluzian found claimant to be permanently and totally disabled from all gainful employment. Dr. Seeder found claimant to have reached maximum medical improvement and that claimant is not capable of unrestricted work activities. Dr. Riccio found claimant to be permanently and totally disabled. Thus the medical evidence indicates the claimant’s allowed conditions significantly limits [sic] his ability to engage in gainful work activity. The Commission determines that, at best, the claimant can only engage in sedentary work. However, considering the claimant’s advanced age, education, lack of transferrable [sic] job skills and 41 year work history with the employer of record, claimant is found to be permanently and totally disabled and his IC-2 Application is granted.”
{¶ 9} Harsco filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion by granting Druggan’s application for PTD compensation. Harsco sought a writ of mandamus “compelling the Industrial Commission to vacate its previous order and issue an order denying Respondent Druggan’s application for permanent total disability benefits.” The appellate court, however, issued a limited writ ordering
{¶ 10} This cause is before the court upon an appeal and cross-appeal as of right.
ALICE ROBIE RESNICK, J.
{¶ 11} In any order granting or denying benefits, the commission must specifically state which evidence and only that evidence it relied upon to reach its conclusion, and briefly explain the reasoning or basis for its decision. This court will not search beyond the face of the commission’s order for some evidence to support its decision. State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245; State ex rel. Basham v. Consolidation Coal Co. (1989), 43 Ohio St.3d 151, 152, 541 N.E.2d 47, 48; State ex rel. Frigidaire Div., Gen. Motors Corp. v. Indus. Comm. (1988), 35 Ohio St.3d 105, 518 N.E.2d 1194, paragraphs one and two of the syllabus; State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 483-484, 6 OBR 531, 533-534, 453 N.E.2d 721, 724.
{¶ 12} In State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm. (1994), 71 Ohio St.3d 139, 142, 642 N.E.2d 378, 380, we made it clear that “the need for adequate evidentiary explanation and identification [is not confined] to questions of pure award or denial of compensation. All matters affecting the rights and obligations of the claimant or employer merit an explanation sufficient to inform
{¶ 13} Retirement taken before an employee becomes permanently and totally disabled can affect the employee’s right to PTD compensation, “if the retirement is voluntary and constitutes an abandonment of the entire job market.” State ex rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 631 N.E.2d 138, paragraph two of the syllabus. Contrary to Druggan’s assertions, the mere fact that an employee is continuously disabled from the date of his injury until the day he retires does not, in itself, render the issue of retirement irrelevant. Baker makes clear that the determinative temporal event is the employee’s permanent total disability. Retirement taken while claimant is disabled, but not permanently and totally disabled, may still affect the claimant’s eligibility for PTD compensation. Thus, the nature and extent of a claimant’s pre-PTD retirement are issues upon which the commission’s order must provide adequate evidentiary explanation and identification.
{¶ 14} Druggan applied for retirement on March 22, 1990 and began receiving pension benefits in May 1990. It was not until approximately two years and five months later that a SHO on August 26, 1992, terminated Druggan’s TTD compensation and issued an interlocutory order awarding PTD compensation. There is no evidence in the record to indicate that Druggan became permanently and totally disabled prior to his retirement. Druggan purports to have evidence of preretirement PTD by virtue of the report from Dr. Papp dated January 3, 1990, which, Druggan claims, shows that Dr. Papp “had already indicated that ‘I do not feel that this patient is capable of sustained gainful employment.’” However, Druggan’s quotation is incomplete. Dr. Papp actually stated that he does “not feel that this patient is capable of sustained gainful employment as a tool and dye [sic] maker.” (Emphasis added.)
{¶ 16} It was also incumbent upon the commission, in this case, to indicate in its order that it had considered all of the relevant vocational evidence submitted for review. In its April 7, 1993 order, the commission did not recite only that evidence upon which it relied. It also listed the evidence it considered. By so doing, the commission brought upon itself the obligation to indicate that it had indeed considered all relevant vocational evidence. State ex rel. Lovell v. Indus. Comm. (1996), 74 Ohio St.3d 250, 252-253, 658 N.E.2d 284, 287; State ex rel. Balvin v. Youghiogheny & Ohio Coal Co. (1994), 70 Ohio St.3d 163, 165, 637 N.E.2d 907, 908-909; State ex rel. Fultz v. Indus. Comm. (1994), 69 Ohio St.3d 327, 329, 631 N.E.2d 1057, 1059; State ex rel. Cupp v. Indus. Comm. (1991), 58 Ohio St.3d 129, 129-130, 568 N.E.2d 1214, 1215.
{¶ 17} The commission’s April 7, 1993 PTD order is silent as to the nature and extent of Druggan’s retirement and, therefore, is deficient under Mitchell and Noll. Moreover, the order lists the evidence considered by the commission, but omits the vocational evidence from this list; thus, it is deficient under Fultz and Cupp. Accordingly, we affirm the appellate court’s decision and order the commission to enter a new order which addresses the retirement issue and indicates consideration of the vocational evidence, including the Parman & Associates, Inc. report and Dr. Riccio’s February 8, 1993 response thereto. See fn. 2.
{¶ 18} Druggan insists, however, that we should examine the transcript of the April 7, 1993 PTD proceedings to find the information we seek instead of remanding the cause. The rules surrounding the need for adequate evidentiary explanation and identification are not to be taken lightly. Their genesis and evolution occurred in response to a persistent bureaucratic problem involving
{¶ 19} This is not to say that there may never be an appropriate case in which to review a transcript of the decisional proceedings in lieu of remand.3 This, however, is not such a case. While the transcript discloses that three commissioners voted that retirement was involuntary in this case, it fails to disclose the reasoning for this decision, and certainly discloses no commonality in reasoning. Similarly, while the Parman & Associates vocational report was clearly submitted and argued on the record, the transcript does not disclose any questions by the commissioners
{¶ 20} In its cross-appeal, Harsco seeks a writ ordering the commission to deny Druggan’s PTD application. Harsco claims that there is not “some evidence” in the file to support an award of PTD compensation. In support, Harsco advances two arguments. The first argument is that since Druggan chose a “Normal Retirement Pension,” the evidence necessarily reflects that Druggan “voluntarily abandoned any possible desire to return to work at Harsco while he was still temporarily disabled from his work.”
{¶ 21} The mere fact of retirement does not ipso facto preclude a claimant from receiving compensation. Voluntary retirement will bar compensation, but injury-induced or involuntary retirement will not. See Baker, supra, paragraphs two and three of the syllabus; State ex rel. Rockwell Internatl. v. Indus Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678, syllabus; State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533, 535. In order for retirement to preclude PTD compensation, the retirement must be taken before the claimant became permanently and totally disabled, it must have been voluntary and it must have constituted an abandonment of the entire job market. Baker, supra, paragraphs two and three of the syllabus.
{¶ 22} Druggan was injured on February 26, 1986. His injury prevented him from returning to his former position at Harsco as a tool and die maker. Druggan had been disabled over a continuous four-year period when he applied for his retirement pension on March 22, 1990. He wrote on his pension application that February 25, 1986, the day before his injury, was the last day he had worked, because of “Workers [sic] Comp Disability.” These facts constitute some evidence that Druggan’s retirement was involuntary or injury-induced.
{¶ 23} Furthermore, there are some questions regarding Druggan’s retirement that remain unexplored. Harsco’s claim that Druggan’s retirement was
{¶ 24} Moreover, the record is silent as to whether and, if so, when Harsco moved to terminate TTD compensation payments to Druggan. As the record stands, Harsco continued to pay Druggan TTD compensation over the next two and one-half years following Druggan’s retirement, with no extent-of-disability motion pending. Yet, if Druggan’s retirement was voluntary, that fact alone would have precluded further TTD compensation. Since one would expect Harsco to have attempted in some way to terminate TTD compensation immediately following an employee’s voluntary retirement, an inquiry into why it had continued to pay Druggan for another two and one-half years may shed some light on the nature of Druggan’s pension retirement.
{¶ 25} Last, regardless of whether Druggan’s retirement from Harsco was voluntary, there would still remain the issue of whether it constituted an abandonment of the entire job market.
{¶ 26} In light of the foregoing, we conclude that there is some evidence to support a finding that Druggan’s retirement was not voluntary and/or did not constitute an abandonment of the entire job market. Accordingly, we affirm the judgment of the court of appeals as to this issue.
{¶ 28} Harsco’s second argument is fundamentally flawed. First, Harsco points to no rule providing that PTD applications filed without supportive medical evidence are void ab initio. Former
{¶ 30} Accordingly, we find the commission’s award of PTD compensation to Druggan to be supported by some medical evidence and affirm the court of appeals as to this issue.
{¶ 31} In light of all the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ., concur.
DOUGLAS, J., dissents.
THE STATE EX REL. KINNEAR DIVISION, HARSCO CORPORATION, APPELLEE AND CROSS-APPELLANT, V. INDUSTRIAL COMMISSION OF OHIO; DRUGGAN, APPELLANT AND CROSS-APPELLEE.
DOUGLAS, J., dissenting.
{¶ 32} I respectfully dissent. I would reverse the judgment of the court of appeals and reinstate the order of the Industrial Commission.
Notes
“The [Parman] report lists six jobs that Mr. Druggan can immediately or without training transfer his skills to. But all of these jobs require twisting, bending, exerting force on tools, and occasionally assuming contorted positions. It is folly to suggest that a fat old man can perform these functions on a competitive basis, when he has been allowed close to a maximal allowance for his back condition.”