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In The Supreme Court Of Ohio
State of Ohio ex rel. Juan L. Lackey,
Appellant,
V.
Case Number 09-1755
On Appeal from theIndustrial Connnission of Ohio Franklin County Courtand Penske Truck Leasing Co. LLP . of Appeals, Tenth
Appellate DistrictAppellees.
MERIT BRIEF OF THE APPELLANT JUAN L. LACKEY
Thomas W. Condit (#0041299)
ATTORNEY AT LAW
P.O. Box 12700Cincinnati, OH 45212513-731-1230(513) 731-7230 (fax)Counsel for Appellant Juan L. Lackey
Robert M. Robenalt, Esq.Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215Counsel for Appellee Penske
Kevin J. Reis, Esq.Assistant Attorney General150 E. Gay Street, 22d FloorColumbus, Ohio 43215Counsel for Appellee Administrator
^' 'pr3 Pl ¢^i ^ i l
CLERK OF COURTSUPREME COURT OF OHi®
Table of Contents
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement of Facts .............................................................1
A. Involuntary Retirement: Mr. Lackey Opts To Retire From Teamsters DuringContested Litigation Over Industrial Injury That Employer Viewed As A SafetyHazard .................................................................1
B. Administrative Hearings Find that Mr. Lackey Had Voluntarily Retired. ......... 5
C. Mandamus Action Filed in the Franklin County Court of Appeals . . . . . . . . . . . . . . . 5
Argument ....................................................................6
Proposition of Law No. IWhen an Injured Worker Opts for an Early Retirement While Litigating a DisputedIndustrial Injury Because of Pain and Safety Hazards Caused by the Injury, TheRetirement is Involuntary and the Injured Worker is not Precluded from ReceivingTemporary Total Disability Benefits if the Disputed Allowance is Later Resolved inhis Favor . .............................................................. 6
Proposition of Law No. IIIt is an Abuse of Discretion for the Industrial Commission to Conclude That anInjured Worker Voluntarily and Permanently Retired From The Workforce WhenThere is Unrebutted Evidence of Medical Disability and Unrebutted Expression bythe Injured Worker of an Intention to Re-Enter the Workforce when Healthy ......... 10
A. Medical And Non-Medical Evidence Bearing on the Retirement
Decision . ....................................................... 11
B. Lack of Job Search As Evidence Bearing on the Retirement Decision...... 12
Conclusion ..................................................................14
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Addendum
Notice of Appeal(10/5/09)Judgement(8/20/09
i
Decision(8/20/09Decision(2/23/09Order(2/1006)Order(3/13/06)Order(4/706)Order(7/17/07)Ohio R.C. 4123.56
ii
TABLE OF AUTHORITIES
CASES PAGE
State ex rel Baker v. Indus. Comm. (2000),89 Ohio St.3d 376, 732 N.E.2d 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State ex rel. Crisp v. Indus. Comm. (1992),64 Ohio St.3d 507, 1992-Ohio-128, 597 N.E.2d 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State ex rel. Elliott v. Indus. Comm. (1986)26 Ohio St. 3d 76, 497 N.E.2d 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State ex rel. Lewis v. Diamond Foundry Co. (1987),29 Ohio St.3d 56, 505 N.E.2d 962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State ex rel Pierron v. Indus. Comm,120 Ohio St.3d 40, 2008-Ohio-5245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State ex rel. Pressley v. Indus. Comm. (1967),11 Ohio St. 2d 141, 228 N.E.2d 631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State ex rel. Rockwell International v. Indus. Comm. ( 1988),40 Ohio St.3d 44, 531 N.E.2d 678 (syllabus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State, ex rel. Superiors Brand Meats, Inc. v. Indus Comm.78 Ohio 3d 409, 1997-Ohio-9, 678 N.E.2d 565 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State ex rel. Teece v. Indus. Comm. ( 1981),68 Ohio St.2d 165, 429 N.E.2d 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State, ex rel. White Consol. Industries v. Indus. Comm. ( 1990),48 Ohio St. 3d 17, 548 N.E.2d 926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State ex rel Wiley v. Whirlpool Corp.,100 Ohio St.3d 110, 2003-Ohio-5100, 796 N.E.2d 925 . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State ex rel Williams v. Coca-Cola Ents., Inc.111 Ohio St.3d 491, 2006-Ohio-6112, 857 N.E.2d 136 . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iii
STATEMENT OF FACTS
A. Involuntary Retirement: Mr. Lackey Opts To Retire From TeamstersDuring Contested Litigation Over Industrial Injury That EmployerViewed As A Safety Hazard.
On June 5, 2001, Relator-Appellant Juan L. Lackey sustained an injury in the course
of and arising out of employment with Penske Truck Leasing Co., LP ("Penske") when he
twisted his left knee while climbing down from a truck. (Doc 31-33 Stipulation of Evidence:
First Report of Injury; p. 0001.)1 Penske certified the claim for "left knee strain." BWC
Employer Certification; p 0002.)
Penske, through its Third Party Administrator Gallagher Bassett Services, Inc.
("Gallagher Bassett"), soon denied any further authorization for medical care. (Letter dated
10/10/02; p. 0004.) Mr. Lackey subsequently filed a C-86 motion to amend his claim to
include medial meniscus tear and patellofemoral syndrome, left knee. (p. 0005.) Penske
opposed the motion, which was referred to the Industrial Commission of Ohio
("Connnission") for a hearing. On April 30, 2003, Mr. Lackey's motion was granted by a
Commission District Hearing Officer ("DHO"). (DHO Order; p. 0007.) Mr. Lackey had
surgery for the newly allowed conditions on June 24, 2003 and was off work until August
2003. (Affidavit of Juan L. Lackey, para. 5; p. 0040.)
Mr. Lackey returned to work but had continuing left knee pain that made it difficult
for him to get in and out of his truck and difficult to operate the clutch. In fact, when he was
stopped in traffic Mr. Lackey would often shift into neutral gear to relieve his left knee of the
` The majority of the references to the record are to 75 pages of Stipulated Evidence thatwere divided into three separate docket entries, 31, 32, 33. These docements arereferenced by the page number they were given within the Stipulated Evidence, i.e.p.0001.
1
stress of holding the clutch down. When Mr. Lackey's terminal manager learned about that
he informed Mr. Lackey that such a practice was possibly a safety hazard. (Lackey
Affidavit, para. 6. p. 0040.)
Meanwhile, Mr. Lackey was diagnosed with additional medical conditions arising
from his industrial injury: degenerative changes and chondromalacia of the left knee. (Dr.
Bilbo Letter dated 7/21/04 p. 0010.) Facing more litigation, and in light of his continuing
knee pain and the potential safety risk identified by his terminal manager, Mr. Lackey
decided in Summer 2004 to take an early retirement from the Teamsters Union. (Lackey
Affidavit, para. 7-10; p. 0041.)
On July 27, 2004, two significant and related events occurred:
a. Mr. Lackey filed a C-86 motion with the BWC seeking to have his claimamended to include degenerative changes and chondromalacia of the leftknee. (C-86 Motion; p. 0011); and
b. Mr. Lackey signed his retirement papers with the Teamsters, to be effectiveon October 31, 2004. (Certification of Complete Severance andTermination of Employment; p. 0014.)
Mr. Lackey's sole and unrebutted reasons for retiring were stated in his affidavitz,
giving historical context dating back to his first surgery in 2003:
5. I had surgery for the newly allowed conditions on June 24, 2003 and was off
work until August 2003.
6. I returned to work and continued driving into the year 2004 but my left knee
continued to be a problem. I had difficulty getting in and out of my truck and
difficulty operating the clutch. In fact, when I was stopped in traffic I would
2 Mr. Lackey's affidavit was filed in support of his appeal to the IndustrialCommissioners on Apri13, 2006 after the Staff Hearing Order, in various ways, ignoredand distorted his unrebutted verbal testimony at the March 13, 2006 SHO hearing. All ofthe facts in this affidavit, which were never rebutted in any way by Penske, weretherefore before the Commission when it decided to deny further review of the SHO's"voluntary abandonment" decision.
2
often shift into neutral gear to relieve my left knee from the stress of holding
the clutch down. When my terminal manager learned of this practice, he told
me that it was possibly a safety hazard.
7. Additional conditions were diagnosed in my left knee but they were again
contested by Penske. My doctor suggested that another surgery may be
necessary but I had no way of knowing when that might be approved. I filed a
motion to amend this claim again on July 27, 2004, this time to include
conditions diagnosed as "degenerative conditions" and "Grade III
Chondromalacia" of the left knee. Penske opposed the amendment.
8. Meanwhile, it had been frustrating all along that there was poor
communication between my doctor's office (Dr. Bilbo & Dr. Heis) and
Penske's representative (Gallagher Bassett). Dr. Bilbo's office often would
tell me that Penske was not responding to requests for authorization of care,
while Gallagher Bassett (according to my attorney) would deny having
received such requests. I cannot say who was to blame for that problem, but
there seemed to be long periods of time when nothing was accomplished.
9. During the Summer of 2004, I made the decision to retire early (effective
October 31, 2004) rather than to continue functioning in such pain and
operating my truck in an unsafe manner.... I confirmed to [my attorney]
that I was retiring early only because of my knee injury and that I would
have kept working toward a 30-year retirement were it not for my knee
injury....
(Lackey Affidavit, para. 5- 9; p. 0041.)
Anticipating a future accusation that Mr. Lackey had retired voluntarily, Mr.
Lackey's counsel sent a letter to Gallagher Bassett on August 31, 2004, a full two months
before the retirement became effective. The letter stated in part:
After having a long discussion with Mr. Lackey this weekend, I am writing toaddress an important issue that may govern future benefits in this claim.Specifically, Mr. Lackey has applied for retirement, to be effective, October 31,2004, based upon his 27 years with the Teamsters Union. Mr. Lackey's
3
decision to retire at this time is driven primarily by the increasing severity of hisleft knee pain. Mr. Lackey specifically stated to me that in the absence of thisknee injury he would likely continuing driving until he reached a 30 yearretirement.
(Letter of counsel; p. 0015.)
Penske opposed Mr. Lackey's motion to amend the claim to include the additional
allowances of left knee degenerative changes and chondromalacia. (Gallagher Bassett Letter
dated 9/8/04; p. 0016.) Contested hearings on the motion were held on November 4, 2004
(DHO) and on December 14, 2004 (SHO). Both hearing officers granted Mr. Lackey's
motion to amend the claim. (Commission Orders; p. 0017,0019.)
hi October 2005, Mr. Lackey's physician of record (Dr. Bilbo) submitted a request
for left knee surgery. (Bilbo C-9; p. 0022.) After surgery was approved, Mr. Lackey filed a
C-86 motion seeking payment of temporary total disability compensation beginning
November 16, 2005 (date of surgery) and continuing. (C-86 Motion; p. 0024 to 0027.)
Penske opposed the motion. (Letter of Gallagher Bassett (1/11/06); R. 0028.) Before the
motion was heard, Mr. Lackey was already participating in a post surgery rehabilitation
program (supervised by Genex) that confirmed Mr. Lackey's goal and desire of returning to
work in some capacity. (Genex Progress Report #3; R. 0030-0032.)
However, as late as Apri12006 Mr. Lackey had not sought employment since his
10/31/04 retirement and he explained why in his affidavit:
13. During the 12+ months from my 10/31/04 retirement date until my 11/16/05surgery, I did not seek employment because my knee pain was getting worseand I saw no point in seeking employment with that disability and when Imight be approved for surgery at any time.
(Lackey Affidavit, para. 13; p. 0041)
4
B. Administrative Hearings Find that Mr. Lackey Had Voluntarily Retired.
Mr. Lackey's C-86 motion for TTD was heard and denied by a DHO on February 10,
2006 and by an SHO on March 13, 2006. (Appx. p.30-33.) Both denials were grounded in
the finding that Mr. Lackey had voluntarily retired. A subsequent appeal to the Industrial
Commissioners was denied in Apri12006. (Appx. p.34.)
Mr. Lackey's rehabilitation from the first knee surgery was only moderately
successful and a total knee replacement was ultimately approved. The knee replacement
surgery was performed on May 15, 2006. (Operative Report, R. 0049.) On April 11, 2007
Mr. Lackey filed another C-86 motion seeking payment of TTD compensation from the May
15 surgery date but also requesting the Commission to exercise its continuing jurisdiction to
grant TTD dating back to the 11/16/05 surgery by revisiting its finding that Mr. Lackey had
voluntarily retired. (C-86 Motion; p. 0048 to 0058.)
On May 21, 2007, a Commission SHO heard and denied the C-86 motion and
declined to exercise continuing jurisdiction regarding the previous orders denying TTD.
(SHO Order, p. 0059.) On July 2, 2007, Mr. Lackey appealed again to the Commission, p.
0063 - 0073, which denied reconsideration on August 3, 2007. (Appx. p. 38.)
C. Mandamus Action Filed in the Franklin County Court of Appeals.
On April 1, 2008, Mr. Lackey filed an action in the Franklin County Court of
Appeals, Tenth Appellate District, seeking a writ of mandamus compelling the Industrial
Commission of Ohio to pay temporary total disability compensation to Mr. Lackey for his
two post-surgery periods beginning November 16, 2005 and May 15, 2006.
On October 14, 2008, the parties filed the Stipulated Evidence (Doc #31, 32,33) with
the relevant documents from the administrative proceedings. On February 23, 2009, a
Magistrate of the Court of Appeals issued a Magistrate's Decision denying the writ. (Appx.
5
7-29) On March 9, 2009, Mr. Lackey filed timely objections to the Magistrate's Decision.
(Doc 44) On August 20, 2009, the Court of Appeal issued a Decision and Judgment Entry
(Appx. 3-6) sustaining and adopting the Magistrate's Decision. On October 5, 2009, Mr.
Lackey filed a Notice ofAppeal with this Court. (Appx. 1-2.)
ARGUMENT
Proposition of Law No. I
When an Injured Worker Opts for an Early Retirement WhileLitigating a Disputed Industrial Injury Because of Pain and SafetyHazards Caused by the Injury, The Retirement is Involuntary andthe Injured Worker is not Precluded from Receiving TemporaryTotal Disability Benefits if the Disputed Allowance is LaterResolved in his Favor.
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. Rockwell International v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d
678 (syllabus); State ex rel Williams v. Coca-Cola Ents., Inc. 111 Ohio St.3d 491, 2006-
Ohio-6112, 857 N.E.2d 136. In Rockwell, the Supreme Court established that the question of
voluntary retirement turns on the reason for the retirement and specifically whether it was
injury related:
A disability determination does not hinge on the resolution of whether aClaimant resigned or was involuntarily removed from [his] position. Instead,the determination rests omwhether the fact that relator left [his] employmentwas causally connected to [his] injury....
Id. at 46
If the retirement is injury-induced it is not voluntary and does not act as a bar to
future TTD. State, ex rel. White Consol. Industries v. Indus. Comm. (1990), 48 Ohio St. 3d
6
17, 548 N.E.2d 926; State ex rel. Crisp v. Indus. Comm. (1992), 64 Ohio St.3d 507, 1992-
Ohio-128, 597 N.E.2d 119. On the other hand, a voluntary retirement may preclude a
claimant from receiving TTD to which he might otherwise be entitled, if by such retirement
the claimant has voluntarily removed himself permanently from the work force. State ex rel
Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376, 380, 732 N.E.2d 355 (original emphasis)
(hereinafter "Baker IT').
The holding of Baker II extended TTD eligibility to claimants who leave their former
position of employment to accept other employment and later claim TTD benefits under the
original injury. The clear implication of the Baker 77 analysis and holding is that prior
thereto, involuntary retirees were deemed TTD-eligible without finding new employment.
The question of abandonment is primarily one of intent. State ex rel Wiley v.
Whirlpool Corp., 100 Ohio St.3d 110, 2003-Ohio-5100, 796 N.E.2d 925, and the burden
of proof to demonstrate that an injured worker has abandoned the work force rests with
the employer or the administrator. State, ex rel. Superiors Brand Meats, Inc. v. Indus
Comm. 78 Ohio 3d 409, 1997-Ohio-9, 678 N.E.2d 565. What the Commission has been
permitted to do in this case in the name of "discretion" turns the employer's burden of
proof on its head.
There is no evidence anywhere in this record to support any finding, any inference, or
any conclusion that Mr. Lackey retired from the Teamsters in 2004 for a reason other than
the burdens imposed by his 2001 industrial knee injury. By giving "deference" to the result-
oriented speculations of Commission heanng officers, the Court of Appeals3 has broken new
3 Any discussion herein about the Court of Appeals' decision obviously relates to theMagistrate's Decision as adopted by the Court of Appeals.
7
ground on "job abandonment" jurisprudence and converted the "some evidence" rule into the
"speculative possibilities" rule. This is not a case where Mr. Lackey has come down on the
wrong side of a "credibility" battle, because there never was a credibility battle and never any
testimony or documentary evidence4 presented that challenged anything asserted by Mr.
Lackey. Rather, the Court of Appeals has deferred to the pro-employer speculation and
hairsplitting theories of the Commission, all of which has rewarded Penske for pushing the
falsehood that Mr. Lackey voluntarily retired for reasons unrelated to his knee injury.
Among other things, the Court of Appeals' deference to Penske's argument reflects a
poor grasp on the limited choices that injured workers actually face in the Ohio Workers'
Compensation system. Mr. Lackey had but two options if he was to remove himself as a
safety hazard5 from the road: (i) he could stop working and apply for an early retirement to
insure a flow of household income, or (ii) he could stop working and apply for TTD for a
non-allowed condition, thereby gambling that he would win those issues somewhere down
the road and recover retroactive TTD compensation (presumably in time to pay his
bankruptcy attorney), or maybe not win anything and go permanently uncompensated for
those months off of work. That Mr. Lackey chose the route that insured his financial survival
4 The only document ever referred to as proof of Mr. Lackey's alleged voluntaryretirement was the one-page retirement document titled Certificate of CompleteSeverance and Termination of Employment. (Stip Ev. p. 0014.) Although that documentis silent about disability issues and lacks any content that sheds light on Mr. Lackey'sintention or desire to retire permanently from the work force, the Court of Appeals gaveits blessing to the Commission's reliance upon it "for support of its decision." (Appx., p.24-25. Goodbye, "some evidence" rule.
5 The Commission's and the Court of Appeal's blithe disregard of this safety issue as alegitimate and injury-driven reason for an involuntary retirement is shocking. And lest itbe passed off as merely an adverse "credibility" determination, it should be clear thatPenske had plenty of opportunities to produce Mr. Lackey's terminal manager to rebutthe safety contention, and did not do so. It is unrebutted.
8
is not evidence that his decision was not related to his knee injury, yet the Commission has
treated it as such while giving no weight to any of the actual evidence.
Finally, three points must be made about the Court of Appeals' deference to the
Commission. First, the Connnission (and the SHO in particular) was permitted to
improperly merge the two very distinct concepts of why Mr. Lackey retired from the
Teamsters (voluntariness) and what he intended to do after he retired (permanence). The
Magistrate's Decision cites no caselaw to support this line of thinking. Even in State ex rel
Pierron v. Indus. Comm, 120 Ohio St.3d 40, 2008-Ohio-5245, the Supreme Court stated:
"The key point***is that the injured workers' separation and departure from the work force
is wholly unrelated to his work injury." Pierron at para 6, Appx. at p. 18. The worker in
Pierron was charged with voluntary abandonment only after he elected a retirement option
from a post-injury light duty job that he had held for 23 years! The Pierron Court therefore
assumed as true the very fact (voluntariness) that Mr. Lackey has always denied in this case.
Contrary to the Court of Appeals' characterization, therefore, Pierron is not only not
"instructive" but inapposite to this case where the retirement decision was driven by safety
concerns and unresolved medical issues.
Second, the facts upon which the SHO relied to find voluntary abandonment had
nothing to do with voluntariness: (i) Mr. Lackey had not looked for work (true); and (ii) Mr.
Lackey would be financially penalized should he become re-employed (partially true). It is
unclear how aggressively Mr. Lackey was expected to job hunt while he was preparing for
and recovering from surgery. It was, however, a post-retirement reality that Mr. Lackey
would be penalized if he obtained Teamsters related work. This did not preclude other kinds
9
of non-penalized work if he could find it. How these two findings were combined for a
conclusion that Mr. Lackey's retirement was unrelated to his injury is a mystery.
Finally, aside from the fact that the injury-related reason for Mr. Lackey's retirement
is factually uncontradicted, Mr. Lackey did have designs on returning to the work force in
some capacity. True to form, however, the SHO did not even mention the Genex
rehabilitation report, published 10 days before the DHO hearing and 40 days before the SHO
hearing, specifically documenting Mr. Lackey's desire to return to work and the
rehabilitation case manager's opinion that it was unlikely that Mr. Lackey could return to
truck driving. (Stipulated Evidence p. 0030) As is discussed in more detail below, it simply
cannot be within the Commission's discretion to ignore uncontradicted evidence placed right
before its eyes and to create legal novelties from evidence that does not exist.
Proposition of Law No. II
It is an Abuse of Discretion for the Industrial Commission toConclude That an Injured Worker Voluntarily and PermanentlyRetired From The Workforce When There is Unrebutted Evidenceof Medical Disability and Unrebutted Expression by the InjuredWorker of an Intention to Re-Enter the Workforce when Healthy.
All of the case law and argument that appears under Proposition of Law No. I is
incorporated herein fully by reference.
In order to obtain a writ of mandamus as a remedy from a determination of the
Industrial Commission, Mr. Lackey must show that he has a clear legal right to the relief
sough and that the Conunission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 228 N.E.2d 631. A clear legal right to
a writ of mandamus exists where the relator shows that the Commission abused its discretion
by entering an order that is unsupported by any evidence in the record. State ex rel. Elliott v.
10
Indus. Comm. (1986) 26 Ohio St. 3d 76, 497 N.E.2d 70. On the other hand, where the
record contains some evidence to support the Commission's findings, there is no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co.
(1987), 29 Ohio St.3d 56, 505 N.E.2d 962. 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. (1981), 68 Ohio St.2d 165, 429 N.E.2d 433.
The Court of Appeals upheld the Commission's conclusion that Mr. Lackey's
retirement was voluntary only by turning a blind eye to actual evidence and by speculating
about non-existent evidence in two areas: medical evidence and job search. Both are
addressed below to demonstrate the Commission's abuse of discretion.
A. Medical And Non-Medical Evidence Bearing on the Retirement Decision.
The Court of Appeals sided with Penske's argument that "there is a lack of medical
evidence contemporaneous with the retirement to show that the retirement was injury
induced. There are no C-84's or other medical records showing that [Mr. Lackey] became
disabled while employed with Penske, or that he was having difficulty working." (Appx. p.
22-23.) This head-in-the-sand view of Mr. Lackey's medical history should, for two reasons,
be rejected as within the legitimate discretion of the Commission.
First, nowhere in the case law is there a requirement of medical certification of a
disability status in order for a retirement to be deemed involuntary. Mr. Lackey has been
blindsided by this novelty. That the Court of Appeals deems such medical evidence "highly
relevant" does not make it a necessary condition for an involuntary retirement.
Second, as noted above, Mr. Lackey filed a motion to amend his claim for new
conditions on the same day that he signed his retirement papers (7/27/04). Mr. Lackey's
11
motion was supported by the 7/21/04 letter of Dr. Bilbo, dated six days earlier and opining
that "there is a possibility that these conditions could progress as a result of the knee injury
and subsequent surgery...." (Stip Evidence p 0010.) Mr. Lackey was therefore pursuing
additional benefits consistent with the assertion in his affidavit that his knee was still a
problem, and when the TTD issue was heard the Commission hearing officers knew that the
claim had been amended and that the newly allowed conditions had, in fact, ripened into a
surgical necessity and'TTD status. Combined with the 8/31/041etter of his counsel, p. 0015,
explaining Mr. Lackey's retirement decision ("increasing severity of his left knee
pain...likely to seek some form of light duty employment after his retirement from the
Teamsters Union...: ') to Gallagher Bassett two full months before the retirement was
effective, there was plenty of contemporaneous evidence, medical and non-medical, to
support a finding of involuntary retirement. That the Commission failed to do so suggests
that it has a predisposition on this issue that was not going to be influenced by the evidence.
B. Lack of Job Search As Evidence Bearing on the Retirement Decision.
The Court of Appeals also upheld the Commission's conclusion that Mr. Lackey's
failure to look for work after his retirement from the Teamsters Union constituted evidence
of his intent to permanently retire from the workforce. In doing so, the Court of Appeals
again validated groundless speculation as a basis for permanently denying compensation to
Mr. Lackey.
The facts matter. Mr. Lackey's retirement became effective on October 31, 2004.
His claim was amended per SHO Order in mid-December 2004. He did not get surgery
approval until November 2005 and later needed a knee replacement in May 2006. During a
significant period prior to the hearings, therefore, Mr. Lackey had an unrebutted medical
12
impediment to seeking employment. Neither the DHO nor the SHO even mentioned that in
their orders. (Appx. 30, 32.) Instead, they imputed damaging motives to W. Lackey without
any evidence of it.
Nor did either hearing officer correctly address or analyze the contractual impediment
in the Teamsters retirement plan that prevented Mr. Lackey from taking certain jobs. The
DHO did not mention it and the SHO got it wrong by erroneously suggesting that Mr.
Lackey would lose retirement benefits were he to become re-employed (thereby imputing to
Mr. Lackey a motivation for not seeking work). The Commission ultimately ignored Mr.
Lackey's attempt to expose the SHO's error:
The SHO comments about the reduction of my retirement benefits ismisleading because my benefits would only be affected if I accept aTeamster related position. My retirement benefits would not be affected,however, if I can obtain other kinds of work which I still hope to do if myknee injury allows it. Having been forced into early retirement by myinjury, I have no intention of violating my retirement plan.
(Lackey Affidavit, para. 14c; p. 0042.)
The Court of Appeals concluded that the SHO's error was not an abuse of discretion
even though it formed the basis for the SHO's erroneous conclusion about the extent to
which Mr. Lackey's job opportunities were contractually impeded. The Commission is not
entitled to unfettered discretion to get the facts wrong on the way to erroneous legal
conclusions.
13
CONCLUSION
For all of the foregoing reasons, the judgment of the Court of Appeals should be
reversed and this case should be remanded with instructions for the Court of Appeals to issue
a writ of mandamus ordering the Industrial Commission to vacate its previous orders and to
grant Mr. Lackey's requests for temporary total disability compensation for his post-surgery
periods of disability.
Respectfully submitted,
^O ' dzk
Thomas W. Condit (#0041299)P.O. Box 12700Cincinnati, Ohio 45212(513) 731-1230(513) 731-7230 (fax)Counsel For Appellant
14
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Brief of Appellant was served by First Class
U.S. Mail this 12th day of October 2010 upon the following counsel for Appellees:
Robert M. Robenalt, Esq. Kevin J. Reis, Esq.Schottenstein, Zox & Dunn Assistant Attorney General250 West Street 150 E. Gay Street, 22°a FloorColumbus, Ohio 43215 Columbus, Ohio 43215Counsel for Appellee Penske Counsel for Appellee Administrator
Thomas W. Condit, Attorney
15
IN THE SUPREME COURT OF OHIO
STATE OF OFIIO ex ret. Juan L. Lackey : Case No.
Appellant
vs
INDUSTRIAL COMMISSION OF OHIO:andPENSKE TRUCK LEASING
Appellees
Appeal From the Franklin CountyCourt of Appeals, Tenth AppellateDistrict (Case No. 0$AP-262)
NOTICE OF APPEAL OF APPELLANT JUAN L. LACKEY
Appellant Juan L. Lackey hereby gives notice of appeal to the Supreme Court of
Ohio from the judgment of the Franklin County Court of Appeals, 'Tenth Appellate
District, entered in Court of Appeals Case No. 08AP-262 on August 20, 2009. This
appeal comes from an original action in mandamus filed in the Franklin County Court of
Appeals. A copy of the Court of Appeals Judgment Entr,v is attached hereto.
Respectfully submitted,
I ti'LL, Cj
Thomas W. Condit (#0041299)P.O. Box 12700Cincinnati, Ohio 45212(513) 731-1230(513) 731-7230 (fax)Counsel For Appellant
:t^1Go ^b41^'3l^
1.
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Notice of Appeal was served by First Class
U.S. Mail this 30`i' day of September 2009 upon the following counsel for Appellees:
Robert M. Robenalt, Esq. Kevin J. Reis, Esq.Schottenstein, Zox & Dunn Assistant Attomey General250 West Street 150 E. Gay Street, 22"d FloorColumbus, Ohio 43215 Columbus, Ohio 43215Counsel for Appellee Penske Counsel for Appellee Administrator
Thomas W. Condit, Attomey
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Juan L. Lackey,
Relator,
v. : No. 08AP-262
Industrial Commission of Ohio and : (REGULAR CALENDAR)Penske Truck Leasing Co. LLP,
Respondents.
JUDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
August 20, 2009, the decision of the magistrate is approved and adopted by this court,
and it is the judgment and order of this court that the requested writ of mandamus is
denied. Costs assessed against retator.
Within three (3) days from the filing hereof, the clerk of this court is hereby
ordered to serve upon all parties not in default for failure to appear notice of this
judgment and its date of entry upon the journal.
Judge John A. Connor ^---
'^'ll^C^^l^Judge Ju^ith L. French
J
Judge Lisa Sadler
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Juan L. Lackey,
Relator,
V.
2Gu9 til,'G 20 Fr'i 12: 100; :.^ ^^^•;;,
No. 08AP-262
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Penske Truck Leasing Co. LLP,
Respondents.
D E C I S I O N
Rendered on August 20, 2009
Thomas W. Condit, for relator.
Richard Cordray, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Schottenstein, Zox & Dunn, Robert M. Robenalt and
William J. McDonald, for respondent Penske Truck Leasing
Co., LLP.
IN MANDAMUSON OBJECTIONS TO THE MAGISTRATE'S DECISION
CONNOR, J.
{¶1} Relator, Juan L. Lackey, commenced this original action requesting a writ
of mandamus ordering respondent, Industrial Commission of Ohio ('commission"), to
H
No. 08AP-262 2
vacate its order denying his motion for temporary total disability ("TTD") compensation,
and to enter an order granting the motion.
{¶2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate has rendered a
decision, including findings of fact and conclusions of law, which is appended to this
decision. In the decision, the magistrate recommended that this court deny relator's
request for a writ.
{¶3} Relator has filed timely objections to the magistrate's decision.
Respondent, Penske Truck Leasing Co., LLP ("employer"), and the commission filed
memoranda supporting the magistrate's decision.
{1J4} In his objections, relator essentially presents the same arguments
previously raised before and addressed by the magistrate. Specifically, relator argues
that the record does not support a finding of a voluntary and permanent retirement.
Further, relator argues that a claimant should not be required to ensure that there is
contemporaneous medical evidence documenting the causal relationship between an
injury and a retirement.
{¶5} Regarding these arguments, the magistrate held that the commission
properly considered the retirement document, the absence of contemporaneous medical
evidence documenting the causal relationship between relator's injury and his retirement,
the admitted absence of a post-retirement job search, and relator's testimony during the
proceedings. See State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42; State
ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44; State ex rel.
Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989), 45 Ohio St.3d 381; State ex
15
No. 08AP-262 3
rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245. After considering
these factors, the magistrate held that there was some evidence in the record supporting
the factual findings of the district hearing officer and staff hearing officer. As a result, the
magistrate held that the commission acted within its discretion when it determined
relator's intent to leave his position and the workforce. Accordingly, the magistrate
recommended we deny relator's request for a writ.
(¶6) After an examination of the magistrate's decision, as well as an
independent review of the record, we find that the magistrate sufficiently discussed and
determined the issues raised by relator. We therefore overrule relator's objections to the
magistrate's decision and adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law contained therein. As a result, we deny relator's
request for a writ of mandamus.
Objections oven-uled; writ denied.
FRENCH, P.J., and SADLER, J., concur.
^
No. O8AP-262
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Juan L. Lackey,
Relator,
V. No. 08AP-262
Industrial Commission of Ohio and (REGULAR CALENDAR)Penske Truck Leasing Co. LLP,
Respondents.
MAGISTRATE'S DECISION
Rendered February 23, 2009
Thomas W. Condit, for relator.
Richard Cordray, Attorney General, and Kevin J. Reis, forrespondent Industrial Commission of Ohio.
Schottenstein, Zox & Dunn, Robert M. Robenalt andWilliam J. McDonald, for respondent Penske Truck LeasingCo., LLP.
4
IN MANDAMUS
{¶7} In this original action, relator, Juan L. Lackey, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its order
denying his motion for temporary total disability ("TTD") compensation beginning
^
No. 08AP-262 5
November 16, 2005 on grounds that he voluntarily abandoned his employment, and to
enter an order granting the motion.
Findings of Fact:
{¶8} 1. On June 5, 2001, relator injured his left knee while employed as a truck
driver for respondent Penske Truck Leasing Co., LLP ("Penske"), a self-insured employer
under Ohio's workers' compensation laws. On that date, relator twisted his left knee while
climbing down from a truck. Penske initially certified the claim (No. 01-828193) for "left
knee strain."
{¶9} 2. On March 3, 2003, relator moved for additional allowances in the claim.
Following an April 30, 2003 hearing, a district hearing officer ("DHO") issued an order
additionally allowing the claim for "medial meniscus tear, left knee [and] patellofemoral
syndrome, left knee." Apparently, the DHO's order of April 30, 2003 was not
administratively appealed.
{¶10} 3. On June 25, 2003, relator underwent left knee surgery. The procedure
is described in the June 25, 2003 operative report of James T. Bilbo, M.D.:
``* EUA, arthroscopy, partial medial meniscectomy withchondroplasty medial femoral condylar articular surface leftknee.
Partial lateral meniscectomy left knee.
Chondroplasty patellar articular surface left knee.
(¶11) 4. On July 21, 2004, Dr. Bilbo wrote:
I do feel that Mr. Lackey had degenerative changes andchondromalacia of his knee that preexisted the 6/5/01industrial injury; however, based on his history of noproblems or symptoms prior to the industrial injury, it is myopinion within reasonable certainty that these conditionswere dormant and nondisabiling until aroused by the 6/5/01
(9
No. 08AP-262 6
injury. Since there is a possibility that these conditions couldprogress as a result of the knee injury and subsequentsurgery, I recommend proceeding with getting his claimamended to include these conditions.
{¶12} 5. On July 27, 2004, citing Dr. Bilbo's July 21, 2004 report, relator, through
counsel, moved for additional claim allowances.
{¶13} 6. On July 27, 2004, relator signed a document captioned "Western
Conference of Teamsters Pension Trust[,] Certification of Complete Severance and
Termination of Employment" ("Teamsters Pension Certification"). On the form, relator
listed October 31, 2004 as his last day of work and the actual termination date for his
employment with Penske.
{¶14} Immediately above relator's signature, the pre-printed form states:
I DO HEREBY CERTIFY UNDER PENALTY OF PERJURYTHAT BEFORE MY PENSION EFFECTIVE DATE:
• I have or will have stopped all work (whether or not asa Teamster) with the employer listed above; and
• I have or will have completely severed and terminatedmy employment relationship with the employer listedabove; and
• I do not currently intend to return to work for theemployer listed above in any capacity.
(Emphasis sic.)
{¶iS} The form required that Penske complete the bottom portion. A Penske
representative signed the form on July 28, 2004. Penske also listed October 31, 2004 as
the employment termination date.
{¶16} 7. By letter dated August 31, 2004, relator's counsel informed Penske's
third-party administrator ("TPA") Gallagher Bassett Services, Inc. ("Gallagher Bassett"):
After having a long discussion with Mr. Lackey this weekend,I am writing to address an important issue that may govern
Ci
No. 08AP-262 7
future benefits in this claim. Specifically, Mr. Lackey hasapplied for retirement, to be effective October 31, 2004,based upon his 27 years with the Teamsters Union. Mr.Lackey's decision to retire at this time is driven primarily bythe increasing severity of his left knee pain. Mr. Lackeyspecifically stated to me that in the absence of this kneeinjury he would likely continue driving until he reached a 30year retirement. .
Mr. Lackey is likely to seek some form of light dutyemployment after his retirement from the Teamsters Unionconsistent with his physical limitations. Mr. Lackey does notwant his premature retirement to be construed as a"voluntary" exit from the work force at age 59.
{¶171 8. Following a December 14, 2004 hearing, a staff hearing officer ("SHO")
granted relator's July 27, 2004 motion to the extent that the claim was additionally allowed
for "aggravation of pre-existing degenerative changes of the left knee and aggravation of
pre-existing grade III chondromalacia of the left knee."
{1118} 9. On October 18, 2005, Dr. Bilbo completed a C-9 requesting
authorization for further left knee surgery. On October 21, 2005, Penske's TPA,
Gallagher Bassett, approved the C-9 request.
{¶19} 10. On November 16, 2005, relator underwent left knee surgery performed
by Forest T. Heis, M.D. According to the November 16, 2005 operative report of Dr. Heis,
the following procedure was performed:
* * * Left knee arthroscopic partial medial and lateral menis-cectomies.
* * * Left knee arthroscopic debridement and chondroplastyof the patella and 5 x 5 mm loose body removal from thesuprapatellar pouch (separate compartment).
{¶20} 11. On December 27, 2005, Dr. Heis completed a C-84 certifying TTD from
November 16, 2005 to an estimated return-to-work date of March 27, 2006.
1.0
No. 08AP-262 °
{¶21} 12. On December 28, 2005, citing the operative report and C-84 from Dr.
Heis, relator, through counsel, moved for TTD compensation beginning November 16,
2005.
{¶22} 13. Genex Services, Inc. ("Genex") is the medical care organization
involving relator's industrial claim. In a report dated January 19, 2006 to Gallagher
Bassett, a Genex case manager wrote that, as of January 11, 2006, "claimant wants to
return to work." It is further written that on January 13, 2006:
Met with the claimant and his wife prior to the appointmentwith Dr. Heist [sic]. I then attended the visit with Dr. Heist[sic]. Dr. Heist [sic] stated the claimant was not yet at[maximum medical improvement]. The claimant stated thathe is not pleased with the surgical results. He expectedbetter pain relief. He brought up the possibility of a total kneereplacement. He states he wants to return to work, he wantsto be pain free and have the strength and range of motion toreturn to work. Dr. Heist [sic] and I explained that he may notbe able to do that and because he is retired, Penske is notresponsible for returning him to work. Dr. Heist [sic] sug-gested a rest from physical therapy and the introduction of aNeoprene knee sleeve. The claimant is scheduled to returnto Dr. Heist [sic] on 02/10/2006.
{¶23} 14. On February 10, 2006, a DHO heard relator's December 28, 2005
motion for TTD compensation. Following the hearing, which was not recorded, the DHO
issued an order denying the motion:
The injured worker's motion requesting Temporary TotalDisability Compensation for the period of 11/16/2005 to thepresent and continuing is denied.
The District Hearing Officer finds that the injured workervoluntarily retired from his former position of employment on10/31/2004 based on the retirement form signed by theinjured worker on file.
The District Hearing Officer further finds that this retirementconstitutes a voluntary abandonment of employment.
^^
No. 08AP-262 9
The District Hearing Officer finds that the injured worker tooka full retirement and not a disability retirement. Further, theDistrict Hearing Officer finds that there is no medicalevidence indicating that the injured worker's retirement wasin anyway related to the industrial accident of 06/05/2001.All evidence on file was reviewed.
This order is based on the injured worker's retirement formdated 07/27/2004.
{¶24} 15. Relator administratively appealed the DHO's order of February 10,
2006.
{¶25} 16. Following a March 13, 2006 hearing, an SHO issued an order affirming
the DHO's order, The SHO's order explains:
The Staff Hearing Officer finds that the injured workerapplied for retirement through his union based on 27 yearsof employment effective 10/31/2004. The injured workertestified at hearing that he has not sought employment sincehis retirement and would be penalized financially should hebecome re-employed through a reduction of retirementbenefits.
The Staff Hearing Officer finds that the injured worker'sretirement effective 10/31/2004 was a voluntary retirementand the injured worker has no intention of returning toemployment based on his retirement. The Staff HearingOfficer finds that such voluntary retirement makes the injuredworker ineligible to receive the payment of temporary totaldisability compensation in this claim. Accordingly, the injuredworker's request for the payment of temporary total disabilitycompensation from 11/16/2005 through the present time andcontinuing is denied.
This order is based on the retirement paperwork contained inthe claim file and the injured worker's testimony at hearing.
{¶26} 17. Relator filed an administrative appeal from the SHO's order of
March 13, 2006. In support of his appeal, relator submitted his affidavit executed April 3,
2006:
le
No. 08AP-262
* * * I am the injured worker in Ohio BWC Claim No. 01-828193 based upon an injury that I sustained on June 5,2001 while I was employed by Penske Truck Leasing("Penske"). I am providing this affidavit in support of mymotion for payment of temporary total disability (TTD), andspecifically to rebut the previous findings by Commissionhearing officers that I had voluntarily retired from my positionwith Penske and the Teamsters Union in 2004.
* * * I was a full-time member of the Teamsters Union from1979 until my retirement in 2004. I was employed byPenske, or a company later purchased by Penske, fromapproximately 1991 until my retirement in 2004.
* * * My left knee was healthy prior to my June 5, 2001 injury.In fact, in November 2000 I passed a physical exam that wasconducted at the Ohio Military Induction Center as arequirement to my application to transfer to the ArmyReserves. I had served in the Naval Reserves since 1978.
* * * My industrial claim was originally recognized only for aleft knee strain. However, my knee did not heal over timeand in fact became progressively worse. After I retained anattorney to represent me, I managed to win a hearing onApril 30, 2003 that amended this claim to include "medialmeniscus tear" and "patellofemoral syndrome."
* * * I had surgery for the newly allowed conditions onJune 24, 2003 and was off work until August 2003.
* * * I returned to work and continued driving into the year2004 but my left knee continued to be a problem. I haddifficulty getting in and out of my truck and difficultyoperating the clutch. In fact, when I was stopped in traffic Iwould often shift into neutral gear to relieve my left kneefrom the stress of holding the clutch down. When myterminal manager learned of this practice, he told me that itwas possibly a safety hazard.
* * * Additional conditions were diagnosed in my left knee butthey were again contested by Penske. My doctor suggestedthat another surgery may be necessary but I had no way ofknowing when that might be approved. I filed a motion toamend this claim again on July 27, 2004, this time to includeconditions diagnosed as "degenerative conditions" and
10
No. 08AP-262
"Grade III Chondromalacia" of the left knee. Penske oppos-ed the amendment.
* * * Meanwhile, it had been frustrating all along that therewas poor communication between my doctor's office (Dr.Bilbo & Dr. Heis) and Penske's representative (GallagherBassett). Dr. Bilbo's office often would tell me that Penskewas not responding to requests for authorization of care,while Gallagher Bassett (according to my attorney) woulddeny having received such requests. I cannot say who wasto blame for that problem, but there seemed to be longperiods of time when nothing was accomplished.
* * * During the summer of 2004, I made the decision toretire early (effective October 31, 2004) rather than tocontinue functioning in such pain and operating my truck inan unsafe manner. However, my attorney informed me thatthere were important legal ramification[s] to taking an earlyretirement and I confirmed to him that I was retiring earlyonly because of my knee injury and that I would have keptworking toward a 30-year retirement were it not for my kneeinjury. My attorney informed me that he would write a letterto Penske's representative confirming that I was retiring earlyonly because of me knee injury.
* * * My retirement took effect on October 31, 2004, while themotion to amend my claim was still pending.
* * * On 11/4/04 and 12/14/04, respectively, a CommissionDistrict Hearing Officer and a Commission Staff HearingOfficer granted the motion to amend my claim to include"aggravation of pre-existing degenerative changes of the leftknee and aggravation of pre-existing Grade III Chondro-malacia of the left knee."
* * * For reasons not clear to me, it again took a long time forsurgery to be approved. I finally had surgery on Novem-ber 16, 2005, and my claim for TTD begins from that dateforward. In spite of my diligent efforts, my post-surgeryrehabilitation has not gone well. Dr. Heis is now requesting atotal knee replacement. Penske has put that request on holdpending additional medical review. I have no idea when thatissue will be resolved.
11
* * * During the 12+ months from my 10/31/04 retirementdate until my 11/16/05 surgery, I did not seek employment
No. 08AP-262
because my knee pain was getting worse and I saw no pointis [sic] seeking employment with that disability and when Imight be approved for surgery at any time.
*"' The Staff Hearing Officer's (SHO) decision from the3/13/06 hearing ignored or mischaracterized importantevidence relating to why I retired:
a. Attached hereto as Exhibit A and incorporated herein fullyby reference is a copy of my attorney's August 31, 2004letter to Gallager Bassett giving advance notice to Penskeand the BWC of the reasons for my early retirement. Thisletter was presented and argued to the SHO at the March13, 2006 hearing, yet it was not even mentioned as a factorin the SHO decision.
12
b. The SHO also ignored the evidence that I still want toreturn to work in some capacity. For example, my desire towork is specifically referenced in multiple Medical CaseManagement (MCM) reports filed by Genex, whosevocational rehabilitation specialist has been intimatelyinvolved in my post-surgery rehabilitation. A copy of theinitial MCM report (one day post-surgery) is attached heretoas Exhibit B and incorporated herein fully by reference, andaccurately notes (bottom p. 3) that "he would like to return togainful employment." Subsequent MCM reports also recordmy desire to return to work in some capacity.
c. The SHO comments about the reduction of my retirementbenefits is misleading because my benefits would only beaffected if I accept a Teamster related position. Myretirement benefits will not be affected, however, if I canobtain other kinds of work, which I still hope to do if my kneeinjury allows it. Having been forced into an early retirementby my injury, I have no intention of violating my retirementplan.
{¶27} 18. On April 11, 2006, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of March 13, 2006.
(¶28) 19. On April 11, 2007, relator, through counsel, moved that the commission
exercise R.C. 4123.52 continuing jurisdiction over its SHO's order of March 13, 2006.
16
No. 08AP-262 13
Relator asserted that the commission had reached "the factually and legally erroneous
conclusion that [injured worker] had 'voluntarily retired.' "
{¶29} 20. In support of his April 11, 2007 motion, relator submitted a May 15,
2006 operative report from Dr. Heis describing a"[I]eft total knee arthroplasty" performed
on May 15, 2006.
{¶30} 21. In further support of his April 11, 2007 motion for the exercise of
continuing jurisdiction, relator submitted C-84s from Dr. Heis dated March 20 and June 6,
2006 and January 29, 2007. Together, the C-84s certify TTD from November 16, 2005 to
an estimated return-to-work date of May 7, 2007.
{¶31} 22. In further support of his April 11, 2007 motion, relator submitted a
series of office notes from Dr. Heis beginning May 25 through December 15, 2006. The
office note dated May 25, 2006 reads:
* * * He returns today for his first postoperative visit after histotal knee arthroplasty. He is doing very well and has nocomplaints. He notes that all of the pain that he was havingpreoperatively is completely gone. * * *
The office note of December 15, 2006 reads:
* * * He is doing well, his examination is unchanged. TheFCE [functional capacities evaluation] put a lifting limit onhim for 50 pounds and that seems about appropriate wherehe is now. He still has about another five or six months untilhe is a year out. I am going to follow the recommendationsof the FCE, have him continue with an independent exerciseprogram. I will allow him to return to work, with somerestrictions[.] * * *
{¶32} 23. In his April 11, 2007 motion for the exercise of continuing jurisdiction,
relator also requested that the commission "alternatively" pay TTD compensation
beginning May 15, 2006, the date of the total knee replacement.
No. O8AP-262 14
{¶33} 24. Following a May 21, 2007 hearing, an SHO issued an order denying
relator's April 11, 2007 motion:
The injured worker's motion requests that the IndustrialCommission exercise its continuing jurisdiction to correct analleged mistake of fact in the Industrial Commission orderdated 03/13/2006. The alleged mistake of fact is that theorder indicates that the injured worker voluntarily retired fromemployment. Because of this finding, the injured worker hassubsequently been denied temporary total disability compen-sation.
The Staff Hearing Officer finds those situations in which it isappropriate to exercise continuing jurisdiction are few. TheStaff Hearing Officer finds that it is appropriate to exercisecontinuing jurisdiction to correct an obvious mistake of law orfact, in the presence of fraud or in the presence of newlydiscovered evidence which could not have been discoveredpreviously with the exercise of due diligence.
The Staff Hearing Officer finds that none of thecircumstances exist. The injured worker argues that there isa mistake of fact. The Staff Hearing Officer finds that theappropriate manner for challenging the mistake in questionis through appeals in the administrative process, or ifnecessary, in the courts.
{¶34} 25. On August 3, 2007, the three-member commission, one member
dissenting, denied relator's request for reconsideration of the SHO's order of May 21,
2007.
{¶35} 26. On April 1, 2008, relator, Juan L. Lackey, filed this mandamus action.
Conclusions of Law:
{¶36} Two issues are presented: (1) did the commission abuse its discretion in
determining that relator voluntarily abandoned his employment with Penske, and (2) did
the commission abuse its discretion in denying relator's motion for the exercise of
continuing jurisdiction?
No. 08AP-262 15
{¶37} The magistrate finds: (1) the commission did not abuse its discretion in
determining that relator had voluntarily abandoned his employment with Penske, and (2)
the commission did not abuse its discretion in denying relator's motion for the exercise of
continuing jurisdiction.
{¶38} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
{¶39} Analysis begins with the observation that the SHO's order of March 13,
2006 affirms the DHO's order of February 10, 2006.
{¶40} The DHO's order concludes that the retirement constitutes a voluntary
abandonment of employment. To support the conclusion, the DHO identified two
findings: (1) that relator took a "full retirement and not a disability retirement," and (2)
there is "no medical evidence" indicating that the retirement was related to the industrial
injury.
{¶41} In affirming the DHO's order, the SHO states reliance on relator's hearing
testimony which the SHO summarizes in the order. According to the SHO, relator
testified that he has not sought employment since his retirement and that his retirement
benefits would be reduced should he become reemployed. Based upon the summarized
hearing testimony, the SHO concludes that relator has no intention of returning to
employment.
{¶42} The record before this court supports all the factual findings of the DHO and
the SHO. That is, there is some evidence to support the factual findings. Moreover,
together, the factual findings support the ultimate conclusion of the SHO that the
No. 08AP-262 16
retirement constitutes a voluntary abandonment of employment that renders relator
ineligible for TTD compensation.
{¶43} Historically, this court first held that, where the employee has taken action
that would preclude his returning to his former position of employment, even if he were
able to do so, he is not entitled to continued l-fD benefits since it is his own action, rather
than the industrial injury, which prevents his returning to his former position of
employment. State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio
App.3d 145. The Jones & Laughlin rationale was adopted by the Supreme Court of Ohio
in State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, wherein the court
recognized a"two-part test" to determine whether an injury qualified for TTD
compensation. Ashcraft at 44. The first part of the test focuses upon the disabling
aspects of the injury whereas the latter part determines if there are any other factors,
other than the injury, whichi prevent the claimant from returning to his former position of
employment. Id.
{¶44} In State ex rel. Rockwell Intematl. v. Indus. Comm. (1988), 40 Ohio St.3d
44, the court held that an injury-induced abandonment of the former position of
employment, as in taking a retirement, is not considered to be voluntary.
{¶45} In State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989),
45 Ohio St.3d 381, the court held that a claimant's acceptance of a light-duty job did not
constitute an abandonment of his former position of employment. The Diversitech Gen.
court stated, at 383:
**' The question of abandonment is "primarily `[one] ofintent "'* [that] may be inferred from words spoken, actsdone, and other objective facts. '*' All relevant circum-
No. 08AP-262 17
stances existing at the time of the alleged abandonmentshould be considered." ' " '
{¶46} An injured worker who has voluntarily abandoned his employment may
thereafter reinstate his TTD entitlement. State ex rel. McCoy v. Dedicated Transport, Inc.,
97 Ohio St.3d 25, 2002-Ohio-5305. The syllabus of McCoy states:
A claimant who voluntarily abandoned his or her formerposition of employment or who was fired under circum-stances that amount to a voluntary abandonment of theformer position will be eligible to receive temporary totaldisability compensation pursuant to R.C. 4123.56 if he orshe reenters the work force and, due to the original industrialinjury, becomes temporarily and totally disabled while work-ing at his or her new job.
{¶47} In State ex rel. Jennings v. Indus. Comm., 98 Ohio St.3d 288, 2003-Ohio-
737, the court clarified its holding in McCoy. In Jennings, the court reemphasized that a
claimant who has abandoned his or her former job does not reestablish TTD eligibility
unless the claimant secures another job and was removed from subsequent employment
by the industrial injury.
{¶48} Recently, the Supreme Court of Ohio decided State ex rel. Pierron v. Indus.
Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, a case that is instructive here.
{¶49} Richard Pierron was seriously injured in 1973 while working as a telephone
lineman for Sprint/United Telephone Company ("Sprint/United"). Thereafter,
Sprint/United offered him a light-duty warehouse job consistent with his medical
restrictions, and he continued to work in that position for the next 23 years.
{¶50} In 1997, Sprint/United informed Pierron that his light-duty position was
being eliminated. Sprint/United did not offer him an alternative position, but gave him the
option to retire or be laid off. Pierron chose retirement,
z c.
No. 08AP-262 18
{¶51} In the years that followed, Pierron remained unemployed except for a brief
part-time stint as a flower delivery person. In late 2003, he moved for TTD compensation
beginning June 2001. The commission denied the motion finding that Pierron had
voluntarily abandoned his former position of employment. In its decision, the commission
wrote:
[T]he injured worker voluntarily abandoned the work forcewhen he retired in 1997. Despite the dissent's attempt tocharacterize the departure from the work force asinvoluntary, there is no evidence whatsoever that the injuredworker sought any viable work during any period of timesince he retired. The injured worker's choice to retire was hisown. He could have accepted a lay-off and sought otherwork but he chose otherwise. It is not just the fact of theretirement that makes the abandonment voluntary in thisclaim, as the passage of time without the injured workerhaving worked speaks volumes. The key point * * * is thatthe injured worker's separation and departure from the workforce is wholly unrelated to his work injury.
Industrial Commission decision, quoted in Pierron, at ¶6.
{¶52} Holding that the commission did not abuse its discretion in denying Pierron
TTD compensation, the Pierron court explains:
We are confronted with this situation in the case before us.The commission found that after Pierron's separation fromSprint/United, his actions-or more accurately inaction-in themonths and years that followed evinced an intent to leavethe work force. This determination was within thecommission's discretion. Abandonment of employment islargely a question "of intent * * * [that] may be inferred fromwords spoken, acts done, and other objective facts." Stateex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm.(1989), 45 Ohio St.3d 381, 383, 544 N.E.2d 677, quotingState ex rel. Freeman (1980), 64 Ohio St.2d 291, 297, 180.O.3d 472, 414 N.E.2d 1044. In this case, the lack ofevidence of a search for employment in the years followingPierron's departure from Sprint/United supports thecommission's decision.
el
No. 08AP-262
We recognize that Pierron did not initiate his departure fromSprint/United. We also recognize, however, that there wasno causal relationship between his industrial injury and eitherhis departure from Sprint/United or his voluntary decision tono longer be actively employed. When a departure from theentire work force is not motivated by injury, we presume it tobe a lifestyle choice, and as we stated in State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210, 216,648 N.E.2d 827 workers' compensation benefits were neverintended to subsidize lost or diminished earnings attributableto lifestyle decisions. In this case, the injured worker did notchoose to leave his employer in 1997, but once thatseparation nevertheless occurred, Pierron had a choice:seek other employment or work no further. Pierron chose thelatter. He cannot, therefore, credibly ailege that his lack ofincome from 2001 and beyond is due to industrial injury.Accordingly, he is ineligible for temporary total disabilitycompensation.
19
Id. at ¶10-11.
{¶53} As previously noted, the DHO's order of February 10, 2006 presents two
findings: (1) that relator took a "full retirement and not a disability retirement," and (2) that
there is "no medical evidence" indicating that the retirement was related to the industrial
injury.
{¶54) Given that the issue before the commission was whether the retirement was
injury-induced under Rockwell lntematl., medical evidence contemporaneous with the
decision to retire would be highly relevant to the commission's determination. See, also,
State ex rel. Scott v. Indus. Comm. (1988), 40 Ohio St.3d 47 (an absence of medical
treatment for an 18-month period was relevant); State ex rel, White Consolidated
Industries v. Indus. Comm. (1990), 48 Ohio St.3d 17 (a report from a Dr. Boumphrey was
some evidence supporting an involuntary retirement).
{¶55} As Penske correctly points out here, there is a lack of medical evidence
contemporaneous with the retirement to show that the retirement was injury-induced.
ee
No. 08AP-262 20
There are no C-84s or other medical records showing that relator became disabled while
employed with Penske, or that he was having difficulty working. Moreover, relator's
request for knee surgery was submitted October 18, 2005, over one year after the
effective date of his retirement. (Penske's brief, at 8.)
{¶56} Dr. Bilbo's July 21, 2004 report pre-dates relator's signing of the Teamsters
Pension Certification by six days. While Dr. Bilbo's July 21, 2004 report is
contemporaneous with relator's decision to retire, it contains no medical evidence
indicating that the knee injury is causing relator any problems at work. The report simply
states that the degenerative changes and chondromalacia of the knee "could progress"
and that the claim should be amended to include those conditions. Clearly, the
commission was not required to read into Dr. Bilbo's July 21, 2004 report something that
is not there.
{¶57} Relator seems to suggest that counsel's August 31, 2004 letter to Gallagher
Bassett must be viewed as medical evidence showing that the retirement was injury-
induced. Clearly, statements of counsel are not medical evidence. Moreover, counsel's
reporting of what relator stated to counsel to be the situation with his knee is not medical
evidence supporting an injury-induced retirement. Even if relator's statement to his
counsel that his decision to retire was "driven primarily by the increasing severity of his
left knee pain" can be viewed as evidence, it is clearly not evidence from a medical expert
as to relator's condition at or near the time of the decision to retire. Thus, it can be said
that counsel's August 31, 2004 letter is not medical evidence supporting an injury-induced
retirement.
Z?
No. 08AP-262 21
{¶58} Given the above analysis, it is clear that the finding in the DHO's order of
February 10, 2006, that "there is no medical evidence indicating that the injured worker's
retirement was in anyway related to the industrial accident" accurately describes the
record before this court. This finding alone could have been dispositive of the
commission's determination that the retirement was not injury-induced. The finding of no
medical evidence indicating that the retirement was injury-induced is clearly some
evidence that the retirement was voluntary.
{¶59} As previously noted, the DHO's order of February 10, 2006 finds that relator
took a"full retirement and not a disability retirement." Referring to the Teamsters Pension
Certification executed by relator on July 27, 2004, relator argues that, "there is no factual
basis for construing that document as evidence that Mr. Lackey intended to permanently
retiring [sic] from the workforce." (Relator's brief, at 8.)
{¶60} Clearly, the type of retirement taken can be considered by the commission
in reaching a decision as to whether the retirement is voluntary. See State ex rel. McAtee
v. Indus. Comm. (1996), 76 Ohio St.3d 648; State ex rel. Kinnear Div., Harsco Corp. v.
Indus. Comm. (1997), 77 Ohio St.3d 258, 264.
{¶61} There is no real dispute here that relator did not take a disability retirement
through the Teamsters Pension Trust. However, we do not know whether a disability
retirement was even an option under the Teamsters plan. The record is silent on that.
Therefore, the document alone cannot be dispositive of the question of whether the
retirement was injury-induced. See Kinnear Div. However, the document need not be
dispositive for the commission to state reliance upon it for support of its decision. State
09
No. 08AP-262 22
ex rel. Wiley v. Whirlpool Corp., Franklin App. No. 02AP-340, 2002-Ohio-6558, at ¶10,
affirmed 100 Ohio St.3d 110, 2003-Ohio-5100.
{¶62} Given the above analysis, the DHO's order of February 10, 2006, as
administratively affirmed, presents a valid reason supported by some evidence to support
the commission's ultimate determination that the retirement was voluntary. Nevertheless,
the magistrate will next analyze the SHO's order of March 13, 2006.
{¶63} As previously noted, the SHO's order of March 13, 2006 states reliance on
relator's hearing testimony which the SHO summarizes. According to the SHO, relator
testified that he has not sought employment since his retirement and that his retirement
benefits would be reduced should he become reernployed. The SHO concluded that
relator has no intention of returning to employment.
{¶64} According to relator, what he "did after his retirement is quite irrelevant to
the analysis of why he retired." (Emphases sic; relator's brief, at 7.) Relator is incorrect
to suggest that his failure to seek other employment following his retirement was
irrelevant to the commission's inquiry. Pierron. What relator did or did not do after
departing employment at Penske in October 2004 was, indeed, highly relevant to the
commission's inquiry as to whether the retirement was voluntary or involuntary. Id.
{¶65} The commission's reliance upon relator's testimony that he had not sought
employment since his retirement was not an abuse of discretion. Moreover, the
testimony further supports the decision of the DHO which was administratively affirmed.
{¶66} Here, relator relies heavily upon his affidavit executed after the issuance of
the SHO's order of March 13, 2006. As previously noted, the commission, through its
SHO's order of April 11, 2006, refused to accept relator's administrative appeal from the
^^t'
No. 08AP-262 23
SHO's order of March 13, 2006. Thus, relator's affidavit was not timely submitted as
evidence to be considered by either the DHO or SHO. Moreover, it was entirely within the
commission's discretion to refuse the appeal.
{¶67} Because the hearings before the DHO and SHO were not recorded, we
have no way of knowing whether relator's affidavit accurately reflects his testimony at the
hearings. But, even if the affidavit is an accurate presentation of relator's testimony, it
does not support a finding in mandamus that the commission abused its discretion in
determining that the retirement was voluntary.
{¶68} According to relator, "it is unrebutted that Mr. Lackey retired for two closely
related reasons: (i) continuing knee pain; and (ii) the related safety issue as he drove his
truck." (Relator's brief, at 6-7.)
{¶69} Relator is incorrect to suggest that the commission was required to accept
the averments in his affidavit as true, or to accept his hearing testimony, if in fact it
conformed to the averments of the affidavit. It was clearly within the commission's fact-
finding discretion to place greater reliance on the absence of contemporaneous medical
evidence than relator's statements that it was his knee that caused him to retire.
{¶70} In the order of March 13, 2006, the SHO states that relator testified that he
"would be penalized financially should he become re-employed through a reduction of
retirement benefits." Relator describes the SHO's description of his testimony as
"misleading" because the affidavit avers that retirement benefits would not be affected if
relator finds work that is not Teamster related. (Relator's brief, at 7.)
{¶71} Again, because the proceedings were not recorded, we have no way of
knowing for sure whether refator actually testified as he avers in his affidavit. But even if
2- G
No. 08AP-.262 24
he did so testify, and even if the SHO's statement of the testimony is appropriately
clarified by the affidavit, clarification of the circumstances of the financial penalty does not
render the SHO's order an abuse of discretion.
{¶72} It is undisputed that, as of the March 13, 2006 hearing, relator had not
sought employment since his October 2004 retirement. Thus, relator did not even seek
non-Teamster-related employment that, if obtained, would not reduce his pension.
Moreover, that relator eliminated certain jobs from his consideration because of the terms
of the retirement that he accepted does not advance his claim that the retirement was
involuntary.
{¶73} Based upon the above analysis, it must be concluded that the commission
did not abuse its discretion in determining that the re#irement was voluntary and that
relator is thus ineligible for lTD compensation until he returns to the workforce.
{¶74} As previously noted, the second issue is whether the commission abused
its discretion in denying relator's motion for the exercise of continuing jurisdiction. This
issue is easily answered given that the above analysis conclusively shows that the SHO's
order of March 13, 2006 is not an abuse of discretion.
{¶75} The commission's continuing jurisdiction under R.C. 4123.52 is not
unlimited. Its prerequisites are: (1) new and changed circumstances; (2) fraud; (3) clear
mistake of fact; (4) clear mistake of law; or (5) error by an inferior tribunal. State ex ref. B
& C Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538, 541-542.
{1176} Relator alleges here that the commission's determination that he voluntarily
retired contains a clear mistake of fact and a clear mistake of law. Or, as relator puts it in
Z7
No. 08AP-262 25
his April 11, 2007 motion, the commission denied 7TD compensation on the "factually
and legally erroneous conclusion that [injured worker] had 'voluntarily retired.' "
{¶77} Here, relator argues:
``` Simply put, if this Court concludes that the Commissionabused its discretion by denying Mr. Lackey's first motion forTTD on the "voluntary retirement" theory, then it was arelated abuse of discretion for the Commission to fail tocorrect that order when asked to do so when Mr. Lackey re-applied for TTD for the period following his total kneereplacement.
(Relator's brief, at 9.)
{¶78} Given that relator has failed to show any cause for the issuance of a writ of
mandamus with respect to the SHO's order of March 13, 2006 which is a final
commission order determining that the retirement was voluntary, there can be no grounds
for the issuance of a writ of mandamus for the commission's refusal to exercise
continuing jurisdiction over the SHO's order of March 13, 2006. Simply put, there were no
grounds for the commission's exercise of continuing jurisdiction and, thus, the
commission appropriately denied relator's motion for the exercise thereof.
{¶79} It should be further noted that relator's April 11, 2007 motion mixes a
request for the exercise of continuing jurisdiction with a request for a new period of lTD
compensation to begin May 15, 2006. Given that relator lost his eligibility for TTD
compensation, it was appropriate that the commission deny relator's request for lTD
compensation beginning May 15, 2006.
{¶80} Accordingly, for all the above reasons, it is the magistrate's decision that
ze
No. 08AP-262
this court deny relator's request for a writ of mandamus.
/s/ K.eywtztv W. M ack.^KENNETH W. MACKEMAGISTRATE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoption of any factual findingor legal conclusion, whether or not specifically designated asa finding of fact or conclusion of law under Civ.R.53(D)(3)(a)(ii), unless the party timely and specificallyobjects to that factual finding or legal conclusion as requiredby Civ.R. 53(D)(3)(b).
26
2q
The Iudustrial CommissFoa of Ohio
RECORD OF PROCEEDINGS
Claim Number: 01-828193LT-ACC-SI-COV
PCN: 2060231 Juan L. Lackey II
JUAN L. LACKEY II5638 TAYLOR MILL RDTAYLOR MILL KY 41015-2261
Date of Injury: 6/05/2001
Claims Heard: 01-828193
^ ^^^f^B t 4 ZD06
Risk Number: 20005086-0
This claim has been previously allowed for: LEFT KNEE STRAIN; MEDIALMENISCUS TEAR, LEFT KNEE; PATELLDFEMORAL SYNDROME, LEFT KNEE; AGGRAVATION OF
PRE-EXISTING FIII I CHONDROMALACIA OF THELEFT LEFTKNEE ; AGGRAVATIONRAVATION OF
PRE-EXISTING GRADE
This matter was heard on 02/10/2006 before District Hearing Officer NormanW. Litts, Jr. pursuant to the provisions of Ohio Revised Code Section4121.34 and 4123.511 on the following:
C-86 Motion filed by Injured Worker on 12/28/2005.Issue: 1) Request For Temporary Total - 11/06/05 TO 03/27/06 AND TO CONTINUE
Notices were mailed to the injured worker, the employer, their respectiverepresentatives and the Administrator of the Bureau of Workers' Compensationnot less than 14 days prior to this date, and the following were present for
the hearing:
APPEARANCE FOR THE INJURED WORKER: INJURED WORKER AND MR. KIMEAPPEARANCE FOR THE EMPLOYER: MR. ROBENALTAPPEARANCE FOR THE ADMINISTRATOR: NO APPEARANCE
deniedficer that the C-86 Motion, filedthe Hearingby Injured Worker on 1 2/28/2005,
The injured worker's motion requesting Temporary Total DisabilityCompensation for the period of 11/16/2005 to the present and continuing is
denied.
The District Hearing Officer finds that the injured worker voluntarilyretired from his former position of employment on 10/31/2004 based on theretirement form signed by the injured worker on file.
The District Hearing Officer further finds that this retirement constitutesa voluntary abandonment of employment.
The District Hearing Officer finds that theinjured worker took a fullretirement and not a disability retirement. Further, the District HearingOfficer finds that there is no medical evidence indicating that the injuredworker's retirement was in anyway related to the industrial accident of
06/05/2001.
All evidence on file was reviewed.
This order is based on the injured worker's retirement form dated 07/27/2004.
The Self-Insured employer is hereby ordered to comply with the above
findings.
DHOSI Page 1jb/jb
The Industrial Commissiom of Ohio
RECORD OF PROCEEDINGS
Claim Number: 01-828193
An Appeal from this order may be filed within 14 days of the receipt of theorder. The Appeal may be filed online at www.ohioic.com or the Appeal(IC-12) may be sent to the Industrial Commission of Ohio,
Cincinnati District Office, 125 E. Court St., Suite 600 - 6th Floor,
Cincinnati OH 45202,
iypeo °y' u" NoFman W. Litts,Date Typed: 02/10/20D6 District HearinaDate Received: 01/21/2006Notice of Contested Claim: 01/13/2006
Findings Mailed:
The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either theinjured worker or employer, please notify the Industrial Commission.
01-828193Juan L. Lackey II5638 Taylor Mill RdTaylor Mill KY 41015-2261
Risk No: 20005086-0Penske Truck Leasing Co L PYvonne M PfennigPD Box 604Reading PA 19603
ID No: 15683-90Thomas W ConditPo Box 12700Cincinnati OH 45212
ID No: 550-80Gallagher Bassett Services IncOne Metro Place545 Metro Pl S Ste 250Dublin OH 43017-5367
ID No: 20986-91Schottenstein, Zox & Dunnp 0 Box 165020Columbus OH 43216-5020
BWC, LAW DIRECTOR
jb/jbPage 2
DHOSI
An eaNal W+W+"^n^1tY ^p^^"s
anL sm'vlCe PYOY1Eac
The &ndustrial Cnmmis,ion of Ohio
RECORD OF PROCEEDING
Claim Number: 01-828193LT-ACC-SI-COV
PCN: 2060231 Juan L. Lackey II
Claims Heard: 01-828193
JUAN L. LACKEY II5638 TAYLOR MILL RDTAYLOR MILL KY 41015-2261
Date of Injury: 6/05/2001 Risk Number: 200D5086-0
FfNDfNGS MAILEDKAR 17 i:(16
This claim has been previously allowed for: LEFT KNEE STRAIN; MEDIALMENISCUS TEAR, LEFT KNEE; PATELLOFEMORAL SYNDROME, LEFT KNEE; AGGRAVATION
A^VATION OFPRE-EXISTING
GRADE G IIIR CHONDROMALACIA OF OF THE LEFTLEFT KNEE ;KNEE.
PRE-EXISTING
matter was heard on 03/13/2D06 before Staff Hearing Officer LisaGrosse pursuant to the provisions of Ohio Revised Code Section 4121.35(B)
and 4123.511(D) on the following:
IC-12 Notice Of Appeal of oH0 order from the hearing dated 02/10/2006,filed by Injured Worker on 02/17/Z006.Issue: 1) Request For Temporary Total - 11/06/05 TO 03/27/06 AND TO
CONTINUE
Notices were mailed to the injured worker, the employer, their respectiverepresentatives and the Administrator of the Bureau of Workers'Compensation not less than 14 days prior to this date, and the following
were present for the hearing:
APPEARANCE FOR THE INJURED WORKER: Injured Worker, T. ConditAPPEARANCE FOR THE EMPLOYER: R. RobenaltAPPEARANCE FOR THE ADMINISTRATOR: No Appearance
The order of the District Hearing Officer, from the hearing dated
02/10/2006, is affirmed.
The Staff Hearing Officer finds that the injured worker applied forretirement through his union based on 27 years of employment effective10/31/2004. The injured worker testified at hearing that he has not soughtemployment since his retirement and would be penalized financially shouldhe become re-employed through a reduction of retirement benefits.
The Staff Hearing Officer finds that the injured worker's retirementeffective 10/31/2004 was a voluntary retirement and the injured worker hasno intention of returning to employment based on his retirement. The StaffHearing Officer finds that such voluntary retirement makes the injuredworker ineligible to receive the payment of temporary total disabilitycompensation in this claim. Accordingly, the injured worker's request forthe payment of temporary total disability compensation from 11/16/2005
through the present time and continuing is denied.
This order is based on the retirement paperwork contained in the claim fileand the injured worker's testimony at hearing.
An Appeal from this order may be filed within 14 days of the receipt of theorder. The Appeal may be filed online at www.ohioic.com or the Appeal(IC-12) may be sent to the Industrial Commission of Ohio,Cincinnati District Office, 125 E. Court St., Suite 600 - 6th Floor,
Page 1 sn/snSN01
The dndusl rial Comnuission of OLio
RECORD OF PROCEEDINGS
Claim Number: 01-828193
Cincinnati OH 45202.
Typed By: snDate Typed: 03/13/2006
Findings Mailed:
The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either theinjured worker or employer, please notify the Industrial Commission.
01-828193Juan L. Lackey II5638 Taylor Mill RdTaylor Mill KY 41015-2261
Risk No: 20005086-0Penske Truck Leasing Co L PYvonne M PfennigPO Box 604Reading PA 19603
ID No: 15683-90Thomas W ConditPO Box 12700Cincinnati OH 45212
ID No: 550-80Gallagher Bassett Services IncOne Metro Place545 Metro P1 S Ste 250Dublin DH 43017-5367
ID No: 20986-91Schottenstein, Zox & Dunnp 0 Box 165020Columbus 0H 43216-5020
BWC, LAW DIRECTOR
sn/snPage 2SH01
An EQUal OpWrtvnity BoRloyai
aOd 89[viCV PZCV19¢Z
The Indosirial Commis9ou of OLio
RECORD OF PROCEEDINGS
Claim Number: 01-828193LT-ACC-SI-COV
PCN: 2060231 Juan L. Lackey II
JUAN L. LACKEY II5638 TAYLOR MILL RDTAYLOR MILL KY 41015-2261
Claims Heard: 01-828193
Date of Injury: 6/05/2001
INUUS OMilsslOt!
FlN{}IFJGS mAILEa 7APA 1 1 2006
Risk Number: 20005086-0
IC-12 Notice Of Appeal filed by Injured Worker on 04/03/2006.Issue: 1) Request For Temporary Total - 11/06/05 TO 03/Z7/06 AND TO
CONTINUE
Pursuant to the authority of the Industrial Commission under Ohio RevisedCode 4123.511(E), it is ordered that the Appeal filed 04/03/2006 by theInjured Worker from the order issued 03/17/2006 by the Staff HearingOfficer be refused and that copies of this order be mailed to allinterested parties.
This appeal was reviewed by two Staff Hearing Officers on behalf of thecommission. Both Staff Hearing Officers concur with this decision.
ANY PARTY MAY APPEAL AN ORDER OF THE COMMISSION, OTHER THAN A DECISION AS
CONTAINEDWITHIN IN 60
OHIODAYS
REVISNI?T SUBJECT
THE TO COURTTHE LIMITATIONS P
LEAS
RECEIPT OF THE ORDER EDCODE 4123.512.
Date Reviewed: 04/07/2006 (DP) ^ 'Typed By: lcs Sandra RollettaDate Typed: 04/07/2006 Staff Hearing OfficerFindings Mailed:
The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either theinjured worker or employer, please notify the Industrial Commission.
01-828193 ID No: 15683-90
Juan L. Lackey II Thomas W Condit5638 Taylor Mill Rd PO Box 12700Taylor Mill KY 41015-2261 Cincinnati OH 45212
SHREFUSE Page 1lcs/lcs hSf^^It`^^!
The Industriap Coaomission of Obio
RECORD OF PROCEEDINGS
Claim Number: 01-828193
Risk No: 20005086-0 ID No: 550-80Penske Truck Leasing Co L P Gallaher Placett Services Inc
Yvonne M Pfennig 545 Metro Pl S Ste 250PO Box 604Reading PA 19603 Dublin OH 43017-5367
ID No: 20986-91Schottenstein, Zox & DunnP 0 Box 165020Columbus OH 43216-5020
BWC, LAW DIRECTOR
SHREFUSE Page 2lcs/lcs
m saml oacc^cenf.crew^orm' ^^ J:^ ^+ ^
m,n am.vsm v^nosms
The Industrial Connuission of Ohio
RECORD OF PROCEEDINGS
Claim Number: 01-828193 Claims Heard: 01-8281931LT-ACC-SI-COV
PCN: 2071071 Juan L. Lackey II
THOMAS W CONDITPD BOX 12700CINCINNATI 04 45212-0700
Date of Injury: 6/05/2001 Risk Number 20005086-01 _
This claim hasbeen previously alloMed fort LEFT KNEE STRAIN; I^EDIALMENISCUS TEAR, LEFf KNEE; PATELLOFF]i0R'AL SYtYIRBNE, LEFT KNEE; ACsGRAYATIONOF PRE-EXISTING DEGENERATIVE CHANOES OF THE LEFT KNEE; ArtltAVATtUN OFPRE-EXISTING GRA'flE III CHONIXtINFALACIA OF 'niE LEFf KNEE.
This matter was heard on 05/21/2D07 before Staff Hearing Officefi Terri Crumpursuant to the provisions of Revised Code Section 4121.35(B) and4123.511(D) on the following:
C-86 Motion filed by Injured Worker on 04/11/Z007.Issue: 1) Continuing Jurisdiction Pursuant To O.R.C. 4123.52 ;I
Notices were mailed to the injured worker, the employer, their tespectiverepresentatives and the Administrator of the Bureau of Workers'.^Compensation not less than 14 days prior to this date, and the ollowing
were present fo i r the hearing:
APPEARANCE FOR 4HE INJURED WORKER: Injured Worker/ConditAPPEARANCE FOR `fHE EMPLOYER: WillisAPPEARANCE FOR THE ADMINISTRATOR: N/A
It is the orderi of the Staff Hearing Officer that the Injured W rker'smotion, filed oM1/11/2007, is denied.
TheinJured worker's motion requests that the Industrial Commis ionexercise its cohtinuing jurisdiction to correct ah alleged mistAe of factin the Industrial Commission order dated 03/13/2006. The allegdd mistake ^-,of fact is that the order indicates that the in.iured worker voldntarilyretired from employment. Because of this finding, the injured rlorker has ^subsequently been denied temporary total disability compensatior^. •-
The Staff Hearing Officer finds those situations in which it islappropriateto exercise continuing jurisdiction are few. The Staff HearingOfficerfinds that it is appropriate to exercise continuing Jurisdiction to correctan obvious mistake of law or fact, in the presence of fraud or in thepresence of newly discovered evidence which could not have been 'discovered -:> i•^
previously with the exercise of due diligence.
The Staff Hearing Officer finds that none of the circumstances ekist. TheinJured worker argues that there is a mistake of fact. The Staff HearingOfficer finds that the appropriate manner for challenging the mi'stake inquestion is through appeals in the administrative process, or ifinecessary,
in the courts.
The injured worker's motion is therefore denied.
SH02 Page 1
T6e Industrial Commission of 6hio
RECORD OF PROCEEDINGSClaim Number: 01-828193
Typed By: kadDate Typed: 06/14/2007
Findings Mailed: 06/16/2007
Terri CrumStaff Hearing Officer
Hleettonically signed by'lexri GYum
Theparties and representatives listed below have been sent tM s^record ofproceedings. If you are not an authorized representative of eitAAAer theinjured worker or employer, please notify the Industrial Commisslon.
01-828193Juan L. Lackey II5638 Taylor Mill RdTaylor Mill KY 41015-2261
Risk No: 20005086-0Penske Truck Leasing Co L PYvonne M PfennigPO Box 604Reading PA 19603-0604
.ID No: 15683-90Thomas W ConditPO Box 12700Cincinnati OH 45212-0700
ID No: 550-80Gallagher Bassett ServiceOne Metro Place545 Metro P1S Ste 250Dublin OH 43017-5310
ID No: 20986-91Schottenstein, Zox & Dunn250 West StColumbus OH 43215-7513
BWC, LAW DIRECTOR
SH02 • Page 2
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nc
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C.J
The Indastrial Commission of Ohio
RECORD OF PROCEEDINGS
Claim Number: 01-828193LT-ACC-SI-COV
PCN: 2071911 Juan L. Lackey II
JUAN L. LACKEY II5638 TAYLOR MILL RDTAYLOR MILL KY 41015-2261
Claims Heard: 01-828193
^r^i^rory ^oFa}+1
a^ Avg 0 3 2007
FlNDfi'IVGS M'A6UM 2
Date of Injury: 6/05/2001 Risk Number: 2D005086-0
Request For Reconsideration filed by injured worker on 07/02/2007.Issue: 1) Continuing Jurisdiction Pursuant To R.C. 4123.52
The Request for Reconsideration filed 07/02/2007, by the injured workerfrom the findings mailed 06/16/2007, is denied for the reason that therequest fails to meet the criteria of Industrial Commission Resolution No.R05-1-02 dated September 6, 2005.
Typed By: JS/bbDate Typed: 07/17/2007
The above findings and order was approved and confirmed by the majority of
the members.
( 'Q---Gary M. ITtCeglio NO
Chairperson
'-^-^Iw` YESKevin R. AbramsCommissioner
Findings Mailed:
ICRECON2
AIIC3ICU iv -1.
Page 1
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4123.56 Compensation in case of temporary disability.
(A) Except as provided in division (D) of this section, in the case of temporary disability, an employeeshall receive sixty-six and two-thirds per cent of the employee's average weekly wage so long as suchdisability is total, not to exceed a maximum amount of weekly compensation which is equal to thestatewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code, andnot less than a minimum amount of compensation which is equal to thirty-three and one-third per centof the statewide average weekly wage as defined in division (C) of section 4123.62 of the RevisedCode unless the employee's wage is less than thirty-three and one-third per cent of the minimum
statewide average weekly wage, in which event the employee shall receive compensation equal to theemployee's full wages; provided that for the first twelve weeks of total disability the employee shallreceive seventy-two per cent of the employee's full weekly wage, but not to exceed a maximumamount of weekly compensation which is equal to the lesser of the statewide average weekly wage asdefined in division (C) of section 4123.62 of the Revised Code or one hundred per cent of theemployee's net take-home weekly wage. In the case of a self-insuring employer, payments shall be fora duration based upon the medical reports of the attending physician. If the employer disputes theattending physician's report, payments may be terminated only upon application and hearing by adistrict hearing officer pursuant to division (C) of section 4123.511 of the Revised Code. Paymentsshall continue pending the determination of the matter, however payment shall not be made for theperiod when any employee has returned to work, when an employee's treating physician has made awritten statement that the employee is capable of returning to the employee's former position of
employment, when work within the physical capabilities of the employee is made available by theemployer or another employer, or when the employee has reached the maximum medicalimprovement. Where the employee is capable of work activity, but the employee's employer is unableto offer the employee any employment, the employee shall register with the director of job and familyservices, who shall assist the employee in finding suitable employment. The termination of temporary
total disability, whether by order or otherwise, does not preclude the commencement of temporarytotal disability at another point in time if the employee again becomes temporarily totally disabled.
After two hundred weeks of temporary total disability benefits, the medical section of the bureau ofworkers' compensation shall schedule the claimant for an examination for an evaluation to determinewhether or not the temporary disability has become permanent. A self-insuring employer shall notifythe bureau immediately after payment of two hundred weeks of temporary total disability and request
that the bureau schedule the claimant for such an examination.
When the employee is awarded compensation for temporary total disability for a period for which the
employee has received benefits under Chapter 4141. of the Revised Code, the bureau shall pay anamount equal to the amount received from the award to the director of job and family services and thedirector shall credit the amount to the accounts of the employers to whose accounts the payment of
benefits was charged or is chargeable to the extent it was charged or is chargeable.
If any compensation under this section has been paid for the same period or periods for whichtemporary nonoccupational accident and sickness insurance is or has been paid pursuant to aninsurance policy or program to which the employer has made the entire contribution or payment forproviding insurance or under a nonoccupational accident and sickness program fully funded by the
employer, compensation paid under this section for the period or periods shall be paid only to theextent by which the payment or payments exceeds the amount of the nonoccupational insurance or
3qhttp://codes.ohio.gov/orc/4123.56 10/12/2010
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program paid or payable. Offset of the compensation shall be made only upon the prior order of the
bureau or industrial commission or agreement of the claimant.
As used in this division, "net take-home weekly wage" means the amount obtained by dividing anemployee's total remuneration, as defined in section 4141.01 of the Revised Code, paid to or earnedby the employee during the first four of the last five completed calendar quarters which immediatelyprecede the first day of the employee's entitlement to benefits under this division, by the number ofweeks during which the employee was paid or earned remuneration during those four quarters, less
the amount of local, state, and federal income taxes deducted for each such week.
(B)(1) If an employee in a claim allowed under this chapter suffers a wage loss as a result of returningto employment other than the employee's former position of employment due to an injury oroccupational disease, the employee shall receive compensation at sixty-six and two-thirds per cent ofthe difference between the employee's average weekly wage and the employee's present earnings notto exceed the statewide average weekly wage. The payments may continue for up to a maximum oftwo hundred weeks, but the payments shall be reduced by the corresponding number of weeks inwhich the employee receives payments pursuant to division (B) of section 4121.67 Of the Revised
Code.
(2) If an employee in a claim allowed under this chapter suffers a wage loss as a result of being unableto find employment consistent with the employee's disability resulting from the employee's injury oroccupational disease, the employee shall receive compensation at sixty-six and two-thirds per cent ofthe difference between the employee's average weekly wage and the employee's present earnings, not
to exceed the statewide average weekly wage. The payments may continue for up to a maximum offifty-two weeks. The first twenty-six weeks of payments under division (B)(2) of this section shall be inaddition to the maximum of two hundred weeks of payments allowed under division (B)(1) of thissection. If an employee in a claim allowed under this chapter receives compensation under division (B)(2) of this section in excess of twenty-six weeks, the number of weeks of compensation allowableunder division (B)(1) of this section shall be reduced by the corresponding number of weeks in excess
of twenty-six, and up to fifty-two, that is allowable under division (B)(1) of this section.
(3) The number of weeks of wage loss payable to an employee under divisions (B)(1) and (2) of this
section shall not exceed two hundred and twenty-six weeks in the aggregate.
(C) In the event an employee of a professional sports franchise domiciled in this state is disabled asthe result of an injury or occupational disease, the total amount of payments made under a contract ofhire or collective bargaining agreement to the employee during a period of disability is deemed anadvanced payment of compensation payable under sections 4123.56 to 4123.58 of the Revised Code.The employer shall be reimbursed the total amount of the advanced payments out of any award ofcompensation made pursuant to sections 4123.56 to 4123.58 of the Revised Code.
(D) If an employee receives temporary total disability benefits pursuant to division (A) of this sectionand social security retirement benefits pursuant to the "Social Security Act," the weekly benefitamount under division (A) of this section shall not exceed sixty-six and two-thirds per cent of thestatewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code.
Effective Date: 07-01-2000; 2006 SB7 10-11-2006
http://codes.ohio.gov/orc/4123.56 10/12/2010
