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State ex rel Monroe v. Industrial Commission of Ohio9/29/2005
{ } Sears' second objection, however, is sustained, because we agree that the magistrate impermissibly substituted his own judgment for that of the commission with respect to the importance to be placed upon Dr. Kravanya's notes. The magistrate did so because he misconstrued the SHO's order. The magistrate states that the "SHO discredited relator's testimony that he retired due to his knee problems because the SHO found that 'there is no contemporaneous medical evidence showing an inability to work at the time claimant chose to retire.' Dr. Kravanya's office notes written at or near the time relator retired conflict with the SHO's finding of 'no contemporaneous medical evidence.' "
{ } In reality, the SHO discredited the C-84 because of the fact that it was issued nine months after the retirement and because, in the SHO's view, Dr. Kravanya may not have known about the fact that relator may have worked at some point between his injury and his retirement, which knowledge, the SHO speculated, might have changed the doctor's impressions memorialized in her office notes. Though this method of evaluating the issue of voluntary abandonment was an abuse of discretion, given the evidence that was before the commission, such an abuse did not require the magistrate to examine the content of Dr. Kravanya's notes, and to weigh the importance of them, with respect to the voluntary abandonment issue.
{ } The SHO felt "compelled" to find a voluntary abandonment because the C-84 covering a time period beginning just before relator retired was not issued by the physician contemporaneously with the retirement, but was issued roughly nine months later. This was an abuse of discretion. In wandering far from this basic legal premise and straying into an evaluation of the evidence and speculation as to the SHO's thought processes with respect to that evidence, the magistrate erred. Accordingly, we sustain Sears' second objection.
{ } Sears' third objection is sustained because, in our view, the magistrate incorrectly concluded that the SHO impermissibly shifted the burden of proof to relator with respect to the issue of voluntary abandonment. The magistrate quoted a portion of the SHO's order regarding the lack of employment records in the file. But we note that the SHO clearly expected that if these were to be submitted, the employer, not relator, should submit them.
{ } Moreover, unlike the magistrate, we do not infer from the language of the order that the SHO "wanted to know how much work relator missed between the April 21, 2002 injury and the July retirement in order to assess whether the left knee condition might have motivated relator's decision to retire," which, if true, would call into question whether the SHO impermissibly placed the burden of proving involuntariness upon relator. Rather, because relator testified that he "was unclear as to what periods he worked or may have missed from work between the date of injury and his July retirement, and because of "a lack of knowledge on Dr. Kravanya's part that claimant may have been working during some of the disability period that she has certified," the SHO was persuaded that those office notes and Dr. Krahe's C-84, issued nine months after the retirement, do not militate against a finding of voluntary abandonment. The SHO did not, however, improperly allocate the burden of proof. Accordingly, we sustain Sears' third objection.
{ } Nonetheless, because we agree with the magistrate's ultimate conclusion -- that the commission abused its discretion and erred as a matter of law in concluding that the record compelled a finding of voluntary abandonment -- we adopt the magistrate's decision, with the modification
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