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State ex rel Monroe v. Industrial Commission of Ohio9/29/2005
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
{ } Relator, Clarence Monroe, filed this original action requesting a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the commission") to vacate its order denying relator's requests for temporary total disability ("TTD") compensation and to enter orders granting said compensation.
{ } Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, the matter was referred to a magistrate of this court. On April 29, 2005, the magistrate rendered a decision, including findings of fact and conclusions of law, and therein recommended that this court grant a writ of mandamus ordering the commission to vacate its orders to the extent that they find a voluntary abandonment of employment (or that they invoke the doctrine of res judicata in finding a voluntary abandonment of employment) and to enter amended orders that adjudicate relator's requests for TTD compensation based upon the merits of the medical evidence submitted. (Attached as Appendix A.) Respondent, Sears Roebuck & Co. ("Sears"), timely filed objections to the magistrate's decision, which are now before the court.
{ } The magistrate concluded that the commission abused its discretion in finding that relator was ineligible for TTD compensation because he had voluntarily abandoned his employment when he retired from Sears in July 2002. The magistrate based this conclusion upon the magistrate's finding that relator's testimony was, at best, ambiguous, because it indicated that relator retired both because of his advancing age and because of the physical problems he was experiencing as a result of his allowed conditions.
{ } According to the magistrate, the perceived ambiguity in relator's testimony is cured by Dr. Krahe's C-84 covering the date of retirement and continuing for ten months thereafter, and by the fact that Dr. Kravanya's office notes from the time period surrounding the retirement indicate that relator was suffering from pain, edema, and difficulty standing and changing positions. This, according to the magistrate, indicates that relator's retirement was, at least in part, injury-induced. The magistrate thus concluded that, pursuant to the case of State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678, relator's retirement was not a voluntary abandonment of the work force.
{ } The magistrate noted that while the claimant always has the burden of proving that the allowed conditions are the proximate cause of his or her disability, and to produce medical evidence to that effect, the employer has the burden to prove any claim of voluntary abandonment of the work force. The magistrate concluded that, in this case, the commission impermissibly shifted the burden to relator to prove that he did not abandon the work force. The magistrate also pointed out that there is no indication that Sears ever raised the issue of voluntary abandonment at any stage of the administrative proceedings in this case, which explains why there is no evidence of record as to whether, and to what extent, relator had been working in the weeks preceding his retirement, a fact upon which the magistrate felt the staff hearing officer ("SHO") had relied in concluding that relator's retirement was not injury-induced.
{ } Thus, the magistrate recommended that we issue a writ of mandamus ordering the commission to vacate its orders to the extent that the same include findings of a voluntary abandonment, and to enter amended orders adjudicating relator's requests for TTD compensation based upon the medical evide
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