State Ex Rel. MacKey v. Ohio Department of Education
2011 Ohio 4910
Ohio
2011
Check Treatment

THE STATE EX REL. MACKEY, APPELLANT, v. OHIO DEPARTMENT OF EDUCATION; INDUSTRIAL COMMISSION OF OHIO, APPELLEE

No. 2010-1405

Supreme Court of Ohio

September 29, 2011

130 Ohio St.3d 108, 2011-Ohio-4910

Submitted September 21, 2011

favor of the insured, as the trial court and the court of appeals properly did. I would affirm the decision of the court of appeals. I dissent.

Chamberlain Law Firm Co., L.P.A., and Henry W. Chamberlain; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellees.

Joyce V. Kimbler, for appellant.

Elk & Elk Co., L.P.A., Peter D. Traska, and Ryan M. Harrell, urging affirmance for amicus curiae, Ohio Association for Justice.

[Cite as .]

Per Curiam.

{11} Appellant, Cerena N. Mackey, challenges appellee‘s, Industrial Commission of Ohio‘s, denial of her application for permanent total disability (“PTD“) compensation. Her application was heard in March 2009 by a commission staff hearing officer. The parties agree that during the hearing, Mackey‘s 2005 retirement was discussed extensively. The order that followed, however, did not address the issue and did not indicate whether Mackey‘s retirement was voluntary or involuntary. It simply discussed the medical evidence presented and concluded that Mackey was permanently and totally disabled.

{12} Mackey‘s employer, the Ohio Department of Education, moved for reconsideration, alleging that the hearing officer had made a clear mistake of law in failing to determine whether Mackey‘s retirement was voluntary or involuntary. The commission agreed, granted the reconsideration motion, and set the matter for a hearing on the merits.

{13} Addressing the retirement issue at the hearing that followed, the commission found that Mackey‘s retirement from the workforce was unrelated to her industrial injury and was hence voluntary. It noted that Mackey had retired at age 65 with 36 years of state service. It also emphasized the lack of evidence of medical treatment from 2001 through 2005, which the commission felt undermined the credibility of Mackey‘s assertion that she retired because of the pain and irritability generated by her allowed conditions. Relying on , the commission found that Mackey‘s voluntary retirement foreclosed PTD compensation, and it vacated the award.

{14} Mackey filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion both in reopening the issue of PTD eligibility and in ultimately denying her application. The court of appeals disagreed and denied the writ, prompting Mackey‘s appeal to this court as of right.

{15} The commission can invoke continuing jurisdiction under R.C. 4123.52 to correct a clear mistake of law. . The staff hearing officer‘s failure to determine whether Mackey‘s retirement was voluntary or involuntary is a clear mistake of law because it is critical to Mackey‘s eligibility for a PTD award. As we held in , a claimant who voluntarily retires from the workforce prior to becoming permanently and totally disabled cannot receive PTD compensation. at paragraph two of the syllabus. The commission did not, therefore, abuse its discretion in reopening the issue of Mackey‘s PTD eligibility in order to consider the effect of her retirement upon it.

{16} The commission also did not abuse its discretion in finding that Mackey‘s retirement was voluntary. Recently, in , we upheld a determination that a retirement was voluntary based in part on an absence of medical evidence indicating that when the claimant applied for retirement, his ability to perform his regular duties was impaired by his industrial injury.

{17} Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

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