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TRANSCRIPT
IN THE SUPREME COURT OF OHIO
State of Ohio ex rel. Juan L. Lackey,
Appellant,
vs.
Industrial Commission of Ohio andPenske Truck Leasing Co., LLP, et aL,
Appellees.
Case No. 09-1755
On Appeal from theFranklin County Court of Appeals
Tenth Appellate District
BRIEF OF APPELLEE PENSKE TRUCK LEASING CO., LLP
Robert M. Robenalt, Esq. (0042251)Meghan Dargay Majernik, Esq. (0075015)Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215-2538Telephone: (614) 462-2700Facsimile: (614) 462-5135E-Mail: [email protected]
Counsel for Appellee,Penske Truck Leasing Co., LLP
Thomas W. Condit (#0041299)P.O. Box 12700Cincinnati, Ohio 45212
Counsel for Appellant,Juan Lackey
Kevin J. Reis, Esq. (#0008669)Assistant Attorney General150 East Gay Street, 22"d FloorColumbus, Ohio 43215-3130
Counsel for Appellee,Industrial Commission of Ohio
CLERK OF C®URTSUPREME CQURT OF OHIO
1H2064562.1 1
Table of ContentsPaEe
1. STATEMENT OF FACTS .. ................................................................................................1
II. LAW AND ARGUMENT ..... ..............................................................................................5
Proposition of Law ...............................................................................................................5
The Industrial Commission may properly consider evidence such as theclaimant's retirement notice, the absence of contemporaneous medicalevidence causally relating the retirement to the industrial injury, and theclaimant's testimony and admitted absence of a post-retirement job searchwhen deciding that a claimant's retirement was voluntary in nature and notinjury-related ....................................................................................:.......................5
A. Lackey's notice of retirement did not reference his industrial injury and/orthe allowed conditions in his claim ..........................................................................6
B. Lack of contemporaneous medical evidence establishing that retirementwas injury-related .....................................................................................................8
C. Additional evidence, including Lackey's testimony and other submitteddocuments, reflects that Lackey's retirement was voluntary in nature ..................11
D. TTD cannot be reinstated because Lackey abandoned the entire job market........13
III. CONCLUSION .................................................................................................................15
{H2064562.1 )
Table of Authorities
Cases
State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376 ....................................... 5, 8, 9, 14
State ex rel. Brown v. Indus. Comm. (1993), 68 Ohio St.3d 45 ...................................................... 9
State ex rel. College of Wooster v. Gee, Franklin App. No. 03AP-389, 2004-Ohio-1898 ............................................................................................................................................ 9
State ex rel. Cordray v. Indus. Comm. (1990), 54 Ohio St.3d 99 ................................................. 11
State ex rel. Corman v. Allied Holdings, Inc., Tenth Dist. No. IOAP-38, 2010-Ohio-5153 .................................................................................................................................. 6
State ex rel. DeMint v. Indus. Comm. (1990), 49 Ohio St 3d 19 ................................................. 12
State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989), 45 OhioSt.3d 381 .................................................................................................................................... 6
State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693 ........................................... 11
State ex rel. Earls v. Indus. Comm., 97 Ohio St.3d 264, 2002-Ohio-6320 ................................. 8, 9
State ex rel. Eckerly v. Indus. Comm. 105 Ohio St.3d 428, 2005-Ohio-2587 .............................. 15
State ex rel. Jennings v. Indus. Comm., 98 Ohio St.3d 288, 2003-Ohio737 ..................... 13, 14, 15
State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 OhioApp.3d 145 ................................................................................................................................. 5
State ex rel. Mackey v. Dept. of Educ., Tenth Dist. No. 09AP-966, 2010-Ohio-3522 ............................................................................................................................................ 9
State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305 .............................................................................................................................. 13, 14, 15
State ex rel. Peagler v CHS-Butler Cty., Inc., Franklin App. No. 08AP-94, 2008-Ohio-5114 ................................................................................................................................ 11
State ex rel. Pinson v. Indus. Comm. 155 Ohio App.3d 270, 2003-Ohio-6074 ............................ 15
State ex rel. Quarto Mining Co. v. Forman, 79 Ohio St.3d 78, 83; 1997-Ohio-71 ........................ 9
State ex rel. Rademacher v. Marriott Internatl., Inc., 101 Ohio St.3d 390, 2004-Ohio-1672 ............................................................................................................................ 9, 13
State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630 ................................................. 5
{H2064562.1 1 ii
State ex rel. Raul Estremera v. TRW, Franklin App. No. 05AP-619, 2006-Ohio2604 .......................................................................................................................................... 11
State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44 .............................. 5, 8
State ex rel. Salyers v. Techneglas, Inc., Franklin App. No. 03AP-173, 2004-Ohio-555 .................................................................................................................................. 15
State ex rel. Schlegel v Stykemain Pontiac Buick GMC, Ltd, 2008-Ohio-5303 ........................... 11
State ex rel. Scott v. Indus. Comm. (1988), 40 Ohio St.3d 47 ........................................................ 8
State ex rel. Smith v. Indus. Comm. (1990), 50 Ohio St.3d 45 ..................................................... 15
State ex rel. Superior's Brand Meats, Inc. v. Indus. Comm., 78 Ohio St.3d 409,1997-Ohio-9 ............................................................................................................................... 9
State ex rel. White Consol. Industries v. Indus. Comm. (1990), 48 Ohio St.3d 17 ..................... 6, 8
State ex rel. Wiley v Whirlpool Corp., Franklin App. No. 02AP-340, 2002-Ohio-6558 ...................................................................................................................................... 6, 12
State ex rel. Williams v. Coca-Cola Ent., Franklin App. No. 04AP-270, 2005-Ohio-5085 ............................................................................................................................ 6, 14
Statutes
Ohio Revised Code § 4123.511(E) ............................................................................................... 11
Ohio Revised Code § 4123.52 ........................................................................................................ 3
Ohio Revised Code § 4123.56 ...................................................................................................... 14
(N2064562.1 }
I. STATEMENT OF FACTS
Juan L. Lackey ("Lackey") was employed by Penske Truck Leasing Co., LP ("Penske')
as a truck driver. On June 5, 2001, Lackey injured his left knee, in the course of his employment
with Penske, while climbing down from a truck. Penske certified the claim for a left knee strain.
Thereafter, Lackey's claim was additionally allowed for the conditions of medial meniscus tear
and patellofemoral syndrome left knee. Lackey underwent surgery for these conditions on June
24, 2003, and returned to work as a truck driver for Penske in August, 2003.
On July 27, 2004, while Lackey was still performing his duties as truck driver, he
submitted his retirement notice. (R. 14). This retirement was through the Western Conference of
Teamsters Pension Trust, and was a certification of complete severance and termination of
employment with Penske, effective October 31, 2004. (R. 14). Lackey's signature on this form
certified that he intended to perform no further service for Penske in any capacity after the
effective date of his retirement. (R. 14). On that same day, July 27, 2004, Lackey filed a motion
to additionally allow his claim for degenerative changes and chondromalacia of the left knee
(R.11). Lackey did not submit any additional materials to Penske, including medical evidence,
indicating that he was not capable of performing his duties as truck driver. In fact, Lackey
continued to drive for Penske up until his retirement became effective on October 31, 2004.
Records from Dr. Bilbo surrounding that time period reflect only that "there is a possibility that
these conditions could progress as a result of the knee injury and subsequent surgery." (R. 10).
One month later, on August 31, 2004, Lackey's attorney sent a letter to a Penske
representative asserting that:
After a long discussion with Mr. Lackey this weekend, I am writing to address animportant issue that may govern future benefits in this claim. *** Mr. Lackey'sdecision 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 this
[H2O64562.1
1
knee injury he would likely continue to drive until he reached a 30 yearretirement.
Mr. Lackey is likely to seek some form of light duty employment after hisretirement ftom the Teamsters Union consistent with his physical limitations. Mr.Lackey does not want his premature retirement to be construed as a "voluntary"exit from the work force at age 59 (R. 15).
This letter was written after Mr. Lackey made his retirement decision and submitted the above-
referenced retirement notice to his employer. It was not accompanied by any medical evidence
supporting Attorney Condit's representations that Mr. Lackey was retiring primarily because of
the increasing severity of his left knee pain. The letter was clearly written in anticipation of
defending against any allegations that Lackey's retirement was voluntary in nature. (Appellant's
Merit Brief p. 3).
On December 14, 2004, Lackey's 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." (R. 19). There was no evidence submitted at that time, such as
office notes or C-84s, indicating that Mr. Lackey was disabled from employment. A C-9 for
surgery was submitted by Lackey's treating physician, Dr. Bilbo, on October 18, 2005, almost
one year after the effective date of Lackey's retirement. (R. 22).
Lackey underwent surgery for the medial meniscus tear and the patellofemoral syndrome
on November 16, 2005. On December 28, 2005, he filed a motion for TTD compensation
beginning November 16, 2005 (the date of the surgery) and to continue until he was released to
return to work. There is no evidence that Lackey returned to any kind of work after his
retirement became effective on October 31, 2004. Lackey's motion for TTD benefits was heard
by a District Hearing Officer ("DHO") of the Commission on February 10, 2006. The DHO's
order denied the motion noting as follows:
(H2064562.1 ) 2
The District Hearing Officer finds that the injured worker voluntarily retired fromhis former position of employment on 10/31/2004 based on the retirement formsigned by the injured worker on file.
The District Hearing Officer further finds that this retirement constitutes avoluntary abandonment of employment.
The District Hearing Officer finds that the injured worker took a full retirementand not a disability retirement. Further, the District Hearing Officer finds thatthere is no medical evidence indicating that the injured worker's retirement was inany way related to the industrial accident of 06/05/2001. (R. 35).
Lackey appealed, and on March 13, 2006, a Staff Hearing Officer ("SHO") affirmed the
denial of TTD compensation, finding as follows:
The Staff Hearing Officer finds that the injured worker applied for retirementthrough his union based on 27 years of employment effective 10/31/2004. Theinjured worker testified at hearing that he has not sought employment since hisretirement and would be penalized financially should he become re-employedthrough a reduction of retirement benefits.
The Staff Hearing Officer finds that the injured worker's retirement effective10/31/2004 was a voluntary retirement and the injured worker has no intention ofreturning to employment based on his retirement. The Staff Hearing Officer findsthat such voluntary retirement makes the injured worker ineligible to receive thepayment of temporary total disability compensation in this claim. Accordingly,the injured worker's request for the payment of temporary total disabilitycompensation from 11/16/2005 through the present time and continuing is denied.
This order is based on the retirement paperwork contained in the claim file andthe injured worker's testimony at hearing (R.37).
Lackey appealed to the Commission and submitted an affidavit purporting to correct the
SHO's interpretation of his testimony from that hearing (R.40). However, his appeal was
refused (R. 44).
On April 11, 2007, Lackey filed a motion for the Commission to invoke its continuing
jurisdiction under R.C. § 4123.52 to reconsider the conclusion that he had voluntarily retired and
to order the payment of TTD compensation, based upon his assertion that the SHO's order was
factually and legally erroneous (R. 48). On June 14, 2007, his motion was denied by order of an
(H2O64562.1 ) 3
SHO, finding that there was no mistake of law or fact (R. 59). Lackey then filed a Notice of
Appeal from that order, asserting that the SHO's decision not to exercise continuing jurisdiction
was a mistake of law. This request for reconsideration was denied by the full Commission (R.
74).
On April 1, 2008, Lackey filed an appeal with the Franklin County Court of Appeals,
Tenth District, seeking a writ of mandamus ordering the Industrial Commission to award TTD
benefits beginning November 16, 2005. The Parties filed the Stipulated Evidence (Doc. No. 31,
32, 33), with relevant documents from the administrative record. On February 23, 2009, a
Magistrate of the Court of Appeals issued his decision denying the writ and affirming the
Industrial Conunission's denial of TTD benefits. (Appellant's Merit Brief, Appx. 7-29). Lackey
filed objections, which the Court of Appeals overruled. (Appellant's Merit Brief, Appx. 3-6). In
adopting the Magistrate's decision, the Court of Appeal's concluded that:
The commission properly considered the retirement document, the absence ofcontemporaneous medical evidence documenting the causal relationship betweenLackey's injury and his retirement, the admitted absence of a post-retirement jobsearch, and Lackey's testimony during the proceedings. *** [T]here was someevidence in the record supporting the factual findings of the district hearingofficer and the staff hearing officer.
Thereafter, on October 5, 2009, Lackey filed a Notice of Appeal with this Court.
(H2064552.1 1 4
II. LAW AND ARGUMENT
Proposition of Law
The Industrial Commission may properly consider evidence such as the claimant'sretirement notice, the absence of contemporaneous medical evidence causallyrelating the retirement to the industrial injury, and the claimant's testimony andadmitted absence of a post-retirement job search when deciding that a claimant'sretirement was voluntary in nature and not injury-related.
Temporary total disability is defined as a disability which prevents a worker from
returning to his former position of employment. State ex rel. Ramirez v. Indus. Comm. (1982),
69 Ohio St.2d 630, syllabus. An industrial injury prevents a worker's return to his former
position of employment where, but for the industrial injury, he would return to such former
position of employment. "However, 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 temporary total disability benefits since it is his own action, rather than the
industrial injury, which prevents his returning to such former position of employment." State ex
rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, syllabus. In the
case at bar, Lackey voluntarily took an early retirement that precluded his returning to his
position of employment with Penske.
Where a claimant has voluntarily relinquished his job, he is deemed to have accepted the
consequence of being without wages for a period of time and is not eligible to receive TTD
compensation. State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376. However, where
the conduct is causally related to the injury, the termination of employment is not voluntary.
State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44. Furthermore,
depending on the circumstances, a claimant who voluntarily resigned may be eligible for TTD
compensation in the future if he accepts new employment and then experiences a temporary and
total loss of earnings due to his allowed conditions. Baker, supra.
(H2064562.1 ) 5
The voluntary nature of a claimant's abandonment is a factual question which revolves
around his intent at the time he retired. State ex rel. White Consol. Industries v. Indus. Comm.
(1990), 48 Ohio St.3d 17; State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm.
(1989), 45 Ohio St.3d 381, 383. In some cases, a claimant's own actions, rather than the work-
related injury, may result in the claimant's inability to return to the former position of
employment. State ex rel. Corman v. Allied Holdings, Inc., Tenth Dist. No. 10AP-38, 2010-
Ohio-5153, ¶46. The presence of such intent, being a factual question, is a determination within
the final jurisdiction of the Commission. Id.; State ex rel. Williams v. Coca-Cola Ent., Franklin
App. No. 04AP-270, 2005-Ohio-5085, ¶ 9. So long as there is "some evidence" to support that
factual finding, mandamus will not lie. Burley, v. Coil Packing, supra.
A. Lackey's notice of retirement did not reference his industrial injury and/orthe allowed conditions in his claim
In determining the claimant's intent, weight can be given to the retirement form and/or
notice itself See State ex rel. Corman v. Allied Holdings, Inc., Tenth Dist. No. 10AP-38, 2010-
Ohio-5153 (holding that Commission properly relied upon claimant's retirement notice when
determining that his retirement was voluntary in nature). When the retirement documents and/or
notice does not specify an injury-related cause, the retirement may be interpreted as voluntary.
State ex rel. Wiley v Whirlpool Corp., Franklin App. No. 02AP-340, 2002-Ohio-6558, ¶ 10.
While such documents are not conclusive in nature, they are evidentiary materials that the
commission may consider when determining whether a departure from a job was caused by the
allowed conditions or was voluntary. Id., ¶ 45.
For example, in the recently decided Corman matter, the appellate court determined that
the Commission could properly rely upon a claimant's retirement notice when ascertaining
whether the retirement was voluntary or involuntary in nature. In that case, the injured worker
[p20635621 1 6
suffered a knee injury while working as a car hauler and underwent 3 different knee surgeries.
The claimant was not released to return to work after the various surgeries and he continued to
receive temporary disability benefits for a lengthy period of time. On Apri17, 2003, the claimant
sent a letter to his retirement fund requesting retirement, effective April 1, 2003. Corman at ¶26.
The claimant retired and three months later was found to have reached maximum medical
improvement. Id. at ¶27. TTD benefits were terminated at that time. Id. The claimant began
receiving retirement benefits and did not argue that he was entitled to any on-going TTD
compensation. Id. at ¶51.
On July 16, 2003, claimant filed a motion seeking to have his claim additionally allowed
for "aggravation of pre-existing osteoarthritis of the right knee." Id at ¶29. The claim was
additionally allowed in January, 2004. He did not seek either TTD or wage loss compensation at
that time. Rather, it was not until he had surgery for his additionally allowed conditions on
March 30, 2009, that he requested TTD compensation be reinstated. Id. at ¶30-32. In support of
his request, the claimant submitted an affidavit alleging that he retired due to his right knee
injury. Id. at ¶36. The claimant's TTD benefits were denied by the Commission based upon a
finding that his retirement was voluntary. Id. at ¶62.
The court of appeals upheld the denial of benefits and explained that even though the
claimant was unable to return to his former position of employment at the time he retired, the
issue was whether or not he voluntarily retired and abandoned the entire job market. Id. at ¶60.
This question is factual in nature and within the Commission's final jurisdiction. Id. at ¶64. The
claimant's intent may be inferred from "words spoken, acts done, and other objective facts." Id.
Because Corman's notice of retirement did not reference his injury or the allowed conditions,
the court concluded that:
(H2O64562.1 J 7
[t]here is nothing in this notice alone upon which the commission could rely tofind that his retirement was related to his allowed conditions. Instead, the onlyconclusion which can be inferred from this piece of evidence is that [claimant's]retirement was voluntary.
Id. at ¶65. Furthermore, the court explained that the Commission could properly exercise its
discretion to judge the credibility of the claimant's hearing and affidavit testimony and determine
the weight to be given that testimony. Id. at ¶64-66.
Similar to the Corman case discussed above, Lackey took a "length of service" retirement
from the Teamsters Union, wholly independent of Penske, and submitted a "Certification of
Complete Severance and Termination of Employment." Lackey's retirement notice fails to
mention any injury. In fact, there was no documentation, medical or otherwise, submitted by
Lackey at the time he provided his notice of retirement indicating that his retirement was in any
way related to his industrial injury. Therefore, the Commission did not abuse its discretion by
relying, in part, on Lackey's retirement notice to find that the retirement was voluntary. See
Corman, supra; (R. 14).
B. Lack of contemporaneous medical evidence establishing that retirement wasinjury-related
Furthermore, it is well established that a key requirement of TTD eligibility is "the
presence of medical evidence substantiating a causal relationship between the allowed conditions
and the alleged inability to return to the relevant position of employment." State ex rel. Earls v.
Indus. Comm., 97 Ohio St.3d 264, 2002-Ohio-6320, ¶ 8, citing Baker. Medical evidence is
critical to the detennination of whether a retirement was injury-induced. State ex rel. Scott v.
Indus. Comm. (1988), 40 Ohio St.3d 47, 48-49; see also State ex rel. White Consol. Industries v.
Indus. Comm. (1990), 48 Ohio St.3d 17, and Rockwell. The claimant must show that he was
already disabled when the separation occurred. State ex rel. Brown v. Indus. Comm. (1993), 68
(H2064562.1 ) 8
Ohio St.3d 45, 49. Obviously, there is no evidence that Lackey was disabled at the time of his
retirement.
While the claimant does not have the burden to disprove a voluntary abandonment of the
former position of employment in order to show entitlement to TTD compensation, State ex rel.
College of Wooster v. Gee, Franklin App. No. 03AP-389, 2004-Ohio-1898, ¶ 38, citing State ex
rel. Superior's Brand Meats, Inc. v. Indus. Comm., 78 Ohio St.3d 409, 1997-Ohio-9, he does bear
the burden to persuade the Commission that there is a proximate causal relationship between his
work-connected injuries and disability, and to produce medical evidence to this effect. State ex
rel. Quarto Mining Co. v. Forman, 79 Ohio St.3d 78, 83; 1997-Ohio-71. "Where a claimant
establishes a prima facie causal connection based upon medical evidence, the burden should then
properly fall upon the employer to raise and produce evidence on its claim that other
circumstances independent of the claimant's allowed conditions caused him to abandon the job
market." Id. In the present matter, Lackey failed to make a prima facie causal connection based
upon medical evidence.
Baker, supra, preserves TTD compensation after a voluntary departure from a position of
employment only when the claimant left the position to accept a new job and then re-aggravates
the injury while working at the new job. State ex rel. Rademacher v. Marriott Internatl., Inc.,
101 Ohio St.3d 390, 391, 2004-Ohio-1672, ¶ 10. However, "Baker does not change a basic
requirement of TTD compensation - the presentation of medical evidence supporting a causal
connection between the allowed conditions and the alleged inability to return to the relevant
position of employment." Earls, at ¶ 8.
In State ex rel. Mackey v. Dept. of Educ., Tenth Dist. No. 09AP-966, 2010-Ohio-3522,
the court of appeals upheld the denial of PTD benefits based upon the claimant's voluntary
retirement. The claimant in Mackey returned to work after undergoing injury-related surgery and
(H2064562.1 ) 9
continued to work without restrictions or limitations until she retired. In support of the
determination that the claimant's retirement was voluntary, the court noted that the claimant
"offered no medical evidence contemporaneous with her retirement to show that her retirement
was involuntary." Id. at ¶9. It explained that the Commission considered the medical evidence
and the lack of work restrictions prior to her retirement, rejected the claimant's explanation for
her retirement, and determined that the claimant voluntarily retired. Id. The court concluded
that "[b]ecause there is evidence in the record from which the commission could conclude that
relator's retirement was not related to her allowed conditions and because relator failed to
present contemporaneous medical evidence showing that her retirement was related to her
allowed conditions, the commission did not abuse its discretion in finding that relator's
retirement constituted a voluntary abandonment of the workforce and denying her PTD
compensation on that ground." Id. at ¶30.
Lackey's medical evidence fails to address the issue of whether his retirement was due to
his industrial injury. There is no medical evidence, contemporaneous with the date of Lackey's
retirement, demonstrating that he again became disabled while still employed with Penske or that
he was having difficulty working. Dr. Bilbo's July 21, 2004 report, contains no medical
evidence indicating that Lackey's knee injury is causing him any difficulty at work. The report
simply states that the degenerative conditions "could progress." (R. 10). In fact, Lackey
continued to perform his duties as truck driver until his retirement went into effect on October
31, 2004. Furthermore, Lackey's request for knee surgery was not submitted until October 18,
2005, over one year after he retired and stopped working for Penske. Thus, in light of the
foregoing factual background, the lack of medical evidence indicating that Lackey's retirement
was injury-related certainly constitutes some evidence on which the Commission could base its
decision that the retirement was voluntary in nature. See id.
(H2O64562.1 ) 10
C. Additional evidence, including Lackey's testimony and other submitteddocuments, reflects that Lackey's retirement was voluntary in nature.
The Commission's decision to deny benefits was based in part on Lackey's hearing
testimony. Lackey attempted to dispute the SHO's characterization of his testimony by
submitting an affidavit with his appeal to the full Commission, and the Commission refused his
appeal. The Commission has no legal duty to consider evidence that is submitted after the
evidentiary hearings have been concluded. State ex rel. Domjancic v. Indus. Comm. (1994), 69
Ohio St.3d 693. State ex rel. Cordray v. Indus. Comm. (1990), 54 Ohio St.3d 99. Hearings
before district and staff hearing officers are effectively as of right, but a hearing before the
Commission is discretionary. R.C. § 4123.511(E); State ex rel. Schlegel v Srykemain Pontiac
Buick GMC, Ltd, 2008-Ohio-5303, ¶ 16; State ex rel. Raul Estremera v. TRW, Franklin App. No.
05AP-619, 2006-Ohio 2604, ¶ 23.
There is no transcript of the SHO hearing and so the affidavit cannot be used to contradict
or add to his testimony before the SHO. See State ex rel. Peagler v CHS-Butler Cty., Inc.,
Franklin App. No. 08AP-94, 2008-Ohio-5114, ¶ 43-44. Therefore, either there was no testimony
before the SHO that the retirement was injury-induced, or the testimony that the retirement was
voluntary outweighed the testimony that it was injury-induced. Since there is no transcript of the
proceedings before the SHO for this court to review, the Court cannot find that the Commission
abused its discretion when the SHO found a voluntary retirement based in part on Lackey's
testimony.
Furthermore, even if the affidavit had been considered, either by timely submission to the
SHO, by the Commission's acceptance of Lackey's appeal, or by the grant of Lackey's
subsequent request for the exercise of continuing jurisdiction, the affidavit would still be subject
to comparison with the retirement form, Lackey's testimony, the lack of contemporaneous
(H2064562.1 j 11
medical evidence, and his actions after retirement. There would then simply be some evidence
for Lackey's position, and some against, which would be subject to weighing and credibility.
See Wiley, supra, at ¶10 (where the claimant submitted an affidavit at hearing to memorialize her
testimony, but also testified, and the Commission gave more credence to the substance of her
testimony than to her affidavit) and Corman, supra (court relied upon retirement documents,
claimant's testimony and medical evidence as opposed to claimant's affidavit and determined
that retirement was voluntary). It is clearly within the Commission's discretion to place greater
reliance on the absence of contemporaneous medical evidence than Lackey's affidavit and letter
from his attorney (which were both written after Lackey submitted his retirement notice) alleging
that it was Lackey's knee that caused him to retire.
Lackey's assertion that the Commission did not consider the records of Genex is also not
germane. The Commission is not required to cite all evidence considered, but only that upon
which it relies. State ex rel. DeMint v. Indus. Comm. (1990), 49 Ohio St 3d 19. Therefore, the
absence of a reference to the Genex records does not mean they were not considered.
Furthermore, the Genex records do not constitute the kind of medical evidence required to
establish a causal connection between the industrial injury and Lackey's retirement; the records
contain no medical opinion, and instead simply document Lackey's own statement, made in
January, 2006--a year and a half after he signed the retirement document. At best, the Genex
document relates only to Lackey's state of mind in 2006, and not at the time he retired from
Penske.
If anything, the Genex document reflects Lackey's hesitancy to return to the job market.
In those records, the case manager notes that Dr. Heist indicated that Lackey may be able to
return to work driving trucks that are automatic, as opposed to the clutch vehicles Lackey was
operating at the time of his retirement. However, Lackey stated that "he does not want to do this,
(H2064562.1 1 12
as Penske has no trucks that are automatic and the pay rate is lower for those positions." (R. 31).
This statement is inconsistent with Lackey's affidavit, which indicates that Lackey would like to
"obtain other kinds of work" and "return to work in some capacity" and his attorney's
correspondence which reflects that Lackey is "likely to seek some form of light duty
employment after his retirement from the Teamsters Union consistent with his physical
limitations." (R. 41-42). Contrary to Lackey's suggestions, the Genex record evidences his
intent to remain unemployed/retired.
D. TTD cannot be reinstated because Lackey abandoned the entire job market
In the present case, the court of appeals upheld the Commission's determination that
Lackey failed to establish that his retirement was related to his work injury, and, as such, found
that his retirement was voluntary in nature. The next issue to consider is whether Lackey
abandoned the entire job market, thereby, precluding his receipt of the requested TTD benefits.
A claimant who voluntarily abandons his former position of employment is only eligible
to receive TTD compensation if he re-enters the work force and, due to the original industrial
injury, becomes temporarily and totally disabled while working at his new job. State ex rel.
McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, syllabus. Under
McCoy and its progeny, a claimant who voluntarily abandons his former position of employment
can demonstrate that the voluntary abandonment was not meant to be an abandonment of the
workforce by actually re-entering the workforce following the voluntary abandonment. See
Rademacher, supra. There can be no lost earnings if the claimant is no longer part of the active
work force. Pierron, supra, at ¶ 9. In State ex rel. Jennings v. Indus. Comm., 98 Ohio St.3d 288,
2003-Ohio737, the court clarified its holding in McCoy and reemphasized that a claimant who
has abandoned his or her former job does not reestablish TTD eligibility unless the claimant
secures another job or was removed from subsequent employment by the industrial injury:
(H2064562.1 J 13
Following the lead of State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d
376, our recent decision in State ex rel. McCoy v. Dedicated Transport, Inc., 97Ohio St.3d 25, 2002-Ohio-5305, relaxed the prohibition against TTC to claimantswho had been fired from the former position of employment. At syllabus, weheld: A claimant who voluntarily abandoned his or her former position ofemployment or who was fired under circumstances that amount to a voluntaryabandonment of the former position would be eligible to receive temporary totaldisability compensation pursuant to R.C. § 4123.56 if he or she reenters the workforce and, due to the original industrial injury, becomes temporarily and totally
disabled while working at his or her new job. [Emphasis added.] We stressed,however, that "[i]t is important to note that this holding is limited to claimantswho are gainfully employed at the time of their subsequent disabilities.
Id.at¶4and5.
The case of State ex rel. Williams v. Coca-Cola Ent., Inc. Franklin App. No. 04AP-1270,
2005-Ohio-5085, is instructive, because it is factually similar to the case at bar. The claimant in
Williams was a truck driver who injured his knee. He returned to work after surgery for a
meniscectomy, but eventually needed a total knee replacement. The claimant eventually took a
length of service retirement from Coca-Cola, and did not return to the work force. When
addressing the claimant's request for TTD benefits on appeal, the appellate court held that a
reinstatement of TTD compensation is only appropriate when a voluntary departure from the
work force is followed by a re-entry into the work force and an absence from the new job is
related to the prior injury. Id., ¶ 5. It further held that:
[i]t was within the discretion of the commission as fact finder to give weight toand determine the credibility of the evidence before it. While there was someevidence to support relator's theory that he retired due to his left knee, there wasalso some evidence that his retirement was unrelated to his left knee injuries. Thechoice between the two was properly made by the fact finder, and we will notdisturb that result.
Id. at ¶ 12.
In the case at bar, the August 31, 2004, letter from Lackey's attorney was presumably
weighed against Lackey's hearing testimony. It was not an abuse of discretion for the SHO to
give more weight to the actual testimony of the Claimant than to the letter from his attorney
(H2064562.1 ) 14
which was written one month after Lackey submitted his retirement notice. Lackey admits that
he has not worked since his retirement from Penske, nor has he sought any form of employment.
Under the plain language of McCoy, he is not eligible for TTD compensation. Williams, ¶ 14.
Since McCoy, this Court has repeatedly emphasized that the claimant must be employed
and unable to work during the time period for which TTD compensation is requested. Id. See
also, Jennings, supra; State ex rel. Eckerly v. Indus. Comm. 105 Ohio St.3d 428, 429, 2005-Ohio-
2587; State ex rel. Salyers v. Techneglas, Inc., Franklin App. No. 03AP-173, 2004-Ohio-555, at
¶ 8; and State ex rel. Pinson v. Indus. Comm. 155 Ohio App.3d 270, 274, 2003-Ohio-6074. Id.
Lackey's claimed intention to return to the work force when able does not negate the fact that he
was unemployed during the period for which he is requesting TTD compensation. Jennings at ¶
14. Reinstatement of TTD benefits is not warranted because Lackey has not lost any wages. See
Corman at ¶12 (stating that even if claimant's surgery could be considered new and changed
circumstances, the reinstatement of TTD benefits was not warranted because claimant did not
lose any wages because he did not re-enter the workforce after his retirement). Along those
same lines, it has been determined that a worsening of the claimant's condition after a voluntary
retirement does not transform it into an involuntary retirement. State ex rel. Smith v. Indus.
Comm. (1990), 50 Ohio St.3d 45.
Based upon the above analysis, this Court must conclude that Commission did not abuse
its discretion when determining that Lackey's retirement was voluntary in nature and that he is,
therefore, ineligible for TTD compensation because he has not returned to the workforce.
III. CONCLUSION
For the foregoing reasons, Appellant's arguments have no merit. Appellee Penske Truck
Leasing Co., LP, respectfully requests the Court to overrule Appellant's appeal.
[H2064562A 1 15
Respectfully submitted,
Robert M. Robenalt (0042251)Meghan Dargay Majernik (0075015)Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215Telephone: (614) 462-2700Fax: (614) 462-5135
Attorneys for AppelleePenske Truck Leasing Co., LLP
{HZ0Sa562,1 ) 16
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Brief of Appellee was served via U.S. Mail this 12th day of
November, 2010 upon the following:
Thomas W. Condit, Esq. Kevin J. Reis, Esq.P.O. Box 12700 Assistant Attorney GeneralCincinnati, Ohio 45212 150 East Gay Street, 22"d Floor
Columbus, Ohio 43215-3130
Robert M. Robenalt (0042251)
(AZ064562.1 j 17