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State ex rel Monroe v. Industrial Commission of Ohio9/29/2005
nce presented.
{ } Sears lodges three objections to the magistrate's decision. First, it argues that the magistrate erred in reevaluating or reweighing the evidence, including relator's credibility, when such evaluation is the sole province of the commission. Next, Sears argues that the magistrate erred by substituting his own judgment for that of the commission. Specifically, Sears argues that the magistrate failed to adhere to the "some evidence" standard of review, and instead looked at the same evidence (e.g., Dr. Kravanya's notes) differently than had the commission, and ultimately reached a different conclusion as to whether some evidence exists to support the commission's voluntary abandonment finding. Finally, Sears argues that the magistrate erred in deducing that the commission impermissibly shifted the burden to relator to prove that he had not voluntarily abandoned the work force.
{ } First, we disagree with Sears that the determination whether the commission abused its discretion is dependent upon an evaluation of relator's credibility. In the commission's August 1, 2003 order, the SHO stated, " t hearing, claimant testified that he retired in July, 2002 due to his knee problems and due to the fact that he felt that it was time to retire." (Emphasis added.) Contrary to the magistrate's conclusion, the SHO did not discredit this testimony. The SHO also did not make any finding that relator was being untruthful about the reasons for his retirement. The SHO simply felt that this testimony, without evidence that a "physician was disabling [relator] from employment" contemporaneously with the retirement decision (though Dr. Krahe later issued a C-84 covering the time period from June 25, 2002), compelled a finding of voluntary abandonment.
{ } It is clear that the SHO felt that, as a matter of law, he was required to find that a voluntary abandonment had occurred, and that relator was thus ineligible for receipt of TTD compensation thereafter, because the C-84 was not completed at or near the time of the retirement decision. The magistrate disagreed, as a matter of law, that such a finding is required where, as here, the record reveals that the injured worker retired for two reasons, one of which was the allowed conditions; and when a doctor, who has examined the injured worker during the time period covered by the C-84, has certified the injured worker for TTD compensation for the time period following the retirement, even though the C-84 was issued nine months after the retirement decision was made.
{ } The disagreement between the SHO and the magistrate is a legal, not a factual disagreement. This is why we reject the portion of the magistrate's decision wherein the magistrate states, "* * * the SHO's paraphrasing of relator's testimony creates an ambiguity as to its meaning. Did relator feel it was time to retire because of his injury or simply because of his advanced age? The SHO's order leaves the answer to pure speculation. The SHO's paraphrasing of relator's hearing testimony does not provide the some evidence to support a voluntary retirement."
{ } We do not believe that the SHO's characterization of relator's testimony is ambiguous; rather, it indicates that relator had two reasons for retiring when he did. The SHO concluded that these reasons, coupled with the evidence in the file, compelled a voluntary abandonment finding, and the magistrate concluded otherwise. We agree with the magistrate's conclusion that, in the circumstances present in this case, a finding of voluntary abandonment is not compulsory. However, the magistrate did not evaluate credibility in reaching this conclusion. Accordingly, Sears' first objection is overruled.
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