RWE COURT OF OFfIO CLERK OF COURT p,N 2 2 2013 in on his Honda pension benefits, Mr: Corlew underwent surgery. SR at 44. On February 9, 2010, Mr. Corlew requested TTD beginning December

E

IN THE SUPREME COURT OF OHIO

State, ex rel. Honda of America Mfg., Inc.,

Supreme Court 12-1499

Appellant,

V.

Industrial Commission of Ohioand Robert Corlew,

Appellees.

BRIEF OF APPELLANT, HONDA OF AMERICA MFG., INC.

Robert A. Minor (0018371)Vorys, Sater, Seymour and52 East Gay StreetColumbus, Ohio 43215Telephone: (614) 464-6410Facsimile: (614) 464-6350E-mail: [email protected]

Patsy Thomas (0063312)Pease LLP Assistant Attorney General

Workers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215-3130Telephone: (614) 466-6696Facsimile: (614) 728-9535E-mail: [email protected]

Attorney for Appellant,Honda of America Mfg., Inc.

0p,N 2 2 2013

CLERK OF COURTRWE COURT OF OFfIO

Attorney for Appellee,Industrial Commission of Ohio

Frank A. Vitale (0068588)Law Office of Stanley Jurus1375 Dublin RoadColumbus, Ohio 43215Telephone: (614) 486-2814Facsimile: (614) 486-8580E-mail: [email protected]

Attorney for Appellee,Robert L. Corlew

TABLE OF CONTENTS

Page

1. STATEMENT OF THE ISSUE .................................................................................1

II. STATEMENT OF THE CASE ...................................................................................1

Ill. STATEMENT OF THE FACTS ................................................................................1

A. General Background Facts ..........................................................................1

B. Mr. Corlew's Participation in the Medically Inactive TransitionProgram and Subsequent Retirement .........................................................2

C. The December 29, 2009 Surgery and Request for Temporary Total

Disability Compensation .............................•••••••.•••.•••.•••.••.•••.•••.••..••••.•••..••.•3

D. The Commission's Orders ...........................................................................3

IV. LAW AND ARGUMENT .. ........................................................................................5

Standard of Review ...........................:................................................................... 5

Proposition of Law :...............................................................................................6

A Claimant Who Has Not Suffered a Loss In Earnings Due tothe Industrial Injury Is Not Entitled To An Award of TemporaryTotal Disability Compensation ....................................................................6

An award of temporary total disability is to indemnifyclaimants for lost earnings sustained as a direct result of anindustrial injury .................................................................................6

V. CONCLUSION ......................................................................................................12

CERTIFICATE OF SERVICE .........................................................................................13

APPENDIX

Notice of Appeal .......................................................................................................... A-1

Judgment Entry of the Court of Appeals ...................................................................... A-4

Decision of the Court of Appeals ................................................................................. A-5

Industrial Commission Decisions ............................................................................... A-21

R.C. 4123.56 .............................................................................................................. A-29

TABLE OF AUTHORITIESPaae

CASES

State , ex rel. Ashcraft , v. Indus. Comm. ( 1987), 34 Ohio St.3d 42 ..................................7

State , ex rel. Bunch, v. Indus. Comm. ( 1980), 62 Ohio St.2d 423 ...................................7

State , ex rel. Carkido, v. Indus. Comm., 2011-Ohio-4051 -(10th Dist., August 16,2011 ) .......................................................... .................................................:............8

State , ex rel . Corman , v . Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579 .......................................................:..................................................................9

State, ex rel. Gross, v. Indus. Comm. (2007), 115 Ohio St.3d 249 ..................................7

State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39 ....................................5

State, ex rel. McCoy, v Dedicated Transport, Inc. (2002), 97 Ohio St.3d 25 ...............6, 7

State, ex rel Pepsi-Cola Bottling Co., v. Morse (1995), 72 Ohio St.3d 210 .....................5

State, ex rel. Pierron, v. Indus. Comm., (2008) 120 Ohio St.3d 40 ................................11

State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.3d 141 ................................5

State, ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630 .............................7, 9

State, ex rel. Rubin, v. Indus. Comm. (1938), 134 Ohio St. 12 ........................................7

State, ex rel. Staton, v. Indus. Comm. (2001), 91 Ohio St.3d 407 .............................7, 10

State, ex rel. Stephenson, v. Indus. Comm. (1987), 31 Ohio St.3d 167 ..........................9

State, ex rel Thompson, v. Roadway Express, Inc. (1984), 12 Ohio St.3d 76 ................6

State, ex rel. White, v. U.S. Gypsum Co. (1990), 49 Ohio St.3d 134 ...............................5

White Motor Corp. v. Moore (1976), 48 Ohio St.2d 156 ...................................................6

ii

STATUTES

R.C. 4123 .........................................................................................................................6

R.C. 4123.54(A) ... ............................................................................................................6

R.C. 4123.56(A) .......................................................................................................5, 7, 9

.........................................................................2R.C. 4123.56(B) ......................................

CONSTITUTIONAL PROVISIONS

Article II, Section 35, of the Ohio Constitution ..................................................................6

OTHER AUTHORITIES

Fulton, Phillip J., OHIO WORKERS' COMPENSATION LAW, § 9.4 (3rd Ed. 2008) .....................7

iii

I. STATEMENT OF THE ISSUE:

The Industrial Commission abused its discretion when it awarded temporary total

disability compensation to Appellee Robert Corlew because Appellee sustained no

economic loss caused by the industrial injury during the period for which compensation

was ordered paid.

II. STATEMENT OF THE CASE:

This action in mandamus was instituted by Appellant, Honda of America Mfg.,

Inc. ("Honda"), challenging an Order of Appellee, Industrial Commission of Ohio

("Commission") awarding temporary total disability ("TTD") to Appellee Robert Corlew

("Mr. Corlew"). The Commission's Order constituted an abuse of discretion because it

is contrary to law. At the time Mr. Corlew sought temporary total disability benefits, he

had left work, had not worked in over a year, and was not looking for work. The

Commission awarded TTD to Mr. Corlew beginning December 29, 2009 and to

continue, despite evidence that Mr. Coriew did not suffer a temporary economic loss

directly and proximately caused by his industrial injury during that period. Accordingly,

the purpose for an award of TTD had not been met.

Ill. STATEMENT OF THE FACTS:

A. General Background Facts.

Mr. Corlew began his employment with Honda in February 1988. Stipulated

Record ("SR") at 105. He was injured on December 5, 2003, his claim was assigned

Claim No. 03-886205, and his claim was allowed for "right wrist contusion and

tendonitis, TFCC tear, extensor carpi ulnaris subsheath, and anxiety disorder." SR at 1,

105. Mr. Corlew received various periods of TTD until February 29, 2008, when he was

found to have reached maximum medical improvement ("MMI") by a district hearing

officer ("DHO"). SR at 95. Mr. Corlew initially appealed the MMI finding, but later

withdrew his appeal. SR at 88. Honda subsequently offered him vocational

rehabilitation. However, he refused the services and Honda closed the rehabilitation file

in March 2008. SR at 90-91.1

B. Mr . Corlew's Participation in the Medically Inactive TransitionProgram and Subsequent Retirement.

Honda created the Medically Inactive Transition Program ("MIT") to assist

associates who are unable to work for an extended period of time due to a work or non-

work related medical condition. Complaint at ¶ 17. Specifically, an associates enters

MIT after he has been unable to work for six months. Id. While in MIT, an associate

may be eligible to receive long-term disability ("LTD") benefits. Id. When an associate

has been in MIT for 130 weeks, Honda's LTD Carrier evaluates the associate to

determine whether he remains eligible for LTD benefits. Id. IF an associate is unable to

return to work at Honda after 130 weeks and remains eligible for LTD benefits ( meaning

he is not capable of any gainful occupation), he may continue in MIT until he reaches

208 weeks of leave. If an associate is unable to return to work at Honda after 130

weeks and is not eligible for LTD benefits (meaning he is capable of working at some

occupation outside of Honda), his employment at Honda ends.

1 There is nothing in the record that suggests any intent on the part of Mr. Corlew to re-enter theworkforce. If, for example, he had applied for wage loss compensation, R.C. 4123.56(B) ) would require

his engaging in a good faith job search and an intent to resume working could be implied from such a

search. The materials from the Medically Inactive Transition program reveal his being made aware ofvocational rehabilitation, return to work, educational reimbursement, and other opportunities to aid his

return to work. See, e., SR at 75-77. There is no indication that Mr. Coriew pursued any of the offeredopportunities and no assertion can be fairly made that Mr. Corlew ever intended to go back to work.

2

Mr. Corlew participated in the MIT program at various times during his

employment, the last period beginning in December 2006. SR at 73-74. In December

2008, after 130 weeks in MIT, Honda's LTD carrier determined that Mr. Coriew was not

entitled to ongoing LTD benefits because he was capable of gainful employment outside

of Honda. SR at 79. As a result, he was no longer eligible to participate in the MIT

program and therefore his employment at Honda ended. Id. At this time, he enrolled in

a post-retirement medical plan and elected to begin receiving his pension benefits. SR

at 66-70. Mr. Corlew was not receiving any form of workers' compensation indemnity

benefits at the time of his retirement.

C. The December 29, 2009 Surgery and Request for Temporary Total

Disability Compensation.

On April 10, 2009, Mr. Corlew requested surgery in his claim. SR at 53. Honda

approved the surgery based on the opinion of its examining expert, Dr. Gula. SR at 47,

49-50, 58. On December 29, 2009, a full year after leaving the workforce and cashing-

in on his Honda pension benefits, Mr: Corlew underwent surgery. SR at 44. On

February 9, 2010, Mr. Corlew requested TTD beginning December 29, 2009 and to

continue, based upon C-84s of Drs. May and Stutzman filed January 14, 2010 and

January 21, 2010. SR at 26.

D. The Commission's Orders.

Mr. Corlew's request for TTD was granted by a DHO on April 29, 2010. SR at

22. Honda appealed and the matter went before a staff hearing officer ("SHO") on

June 24, 2010. SR at 20. The SHO affirmed the DHO's decision and granted the

requested period of TTD. SR at 20. The hearing officers relied upon the operative

report and the reports of Drs. May and Stutzman. SR at 20, 22. Honda timely filed a

3

third-level appeal, which the Commissioners accepted for hearing. SR at 13. The

matter came before the full Commission on August 12, 2010. SR at 1. The

Commission affirmed the DHO and SHO Orders and granted TTD. SR at 1, 3. The

Order stated in pertinent part:

It is the finding of the Commission that the Injured Worker.again became temporarily and totally disabled on12/29/2009, the date he had surgery for conditions allowedin this claim. This decision is based on the operative reportof 12/29/2009 and the C-84 Request for [TTD] signed byDesmond Stutzman, D.O., on 01/21/2010.

SR at 1. Honda did not dispute the need for the surgery nor the fact that Mr. Corlew

again experienced a period of temporary impairment after the surgery. Rather, Honda

focused on whether Mr. Corlew suffered an economic loss as result of the surgery

which was performed over a year after he left the workforce. On that issue, the

Commission wrote:

At hearing, the Employer argued that there must be aneconomic loss directly caused by an industrial injury in orderfor disability compensation to be awarded, and that theInjured Worker had not demonstrated an economic loss.The Commission rejects the Employer's position and findsthe Injured Worker is eligible for reinstatement of [TTD].

SR. at 1. Before fully explaining the rationale for its conclusion, however, the

Commission noted:

The Employer argued that because the Injured Worker wasnot receiving any compensation on 12/29/2009 he was notsuffering any economic loss directly caused by the industrialinjury, so he is not eligible to receive [TTD]. The Employerclarified its position, stating it is not making any argumentrelated to voluntary abandonment, refusal of a good faith joboffer, nor voluntary retirement. The Employer also statedthat it is not arguing that the Injured Worker continued to beat [MMI] on 12/29/2009. The Employer conceded that,medically, the Injured Worker was again temporarily totallydisabled as a result of the surgery performed on that date.

4

The narrow issue argued by the Employer is that there mustbe an economic loss directly caused by the industrial injuryfor disability compensation to be awarded and that theInjured Worker has not demonstrated such loss.

SR at 2. Although the Commission correctly framed the issue, it then relied on parts of

R.C. 4123.56(A), for its analysis and conclusion. Looking to that statute the

Commission concluded that "[t]he statute does not contain any requirement that the

Injured Worker must be suffering an economic loss at the time the allowed industrial

condition again becomes temporarily and totally disabling." SR at 2. The Commission

then added that "[t]he statute is clear, however, that the termination of [TTD] does not

preclude the payment of [TTD] at another point in time if the Injured Worker again

becomes temporarily totally disabled." SR at 2. The Commission did not address

whether a claimant who is not earning wages at the time he experiences a temporary

impairment is entitled to receive TTD compensation to replace such non-existent

"wages."

IV. LAW AND ARGUMENT:

Standard of Review.

It is well-settled that to be entitled to a writ of mandamus, a relator must establish

a clear legal right to the relief sought. State, ex rel. Pressley, v. Indus. Comm. (1967),

11 Ohio St.3d 141. Where the Commission misapplies or misinterprets the relevant

law, the Commission commits an abuse of discretion and the issuance of a writ of

mandamus is appropriate. State, ex rel Pepsi-Cola Bottling Co., v. Morse (1995), 72

Ohio St.3d 210; State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St.2d 39; Stat

ex rel. White, v. U.S. Gypsum Co. (1990), 49 Ohio St.3d 134.

5

Proposition of Law:

A Claimant Who Has Not Suffered a Loss In Earnings Due to the IndustrialIniury Is Not Entitled To An Award of Temporary Total DisabilityCompensation.

An award of temporary total disability is to indemnify aclaimant for lost earnings sustained as a direct result of anindustrial iniury.

At the time of his surgery on December 29, 2009, Mr. Corlew had been out of the

workforce for over a year, was not activeiy looking for a job, and evidenced no intention

of re-entering the workforce. Thus, he did not suffer an economic loss entitling him to

TTD. The basic purpose of the Ohio workers' compensation system is to compensate

workers for losses occasioned by injuries sustained in the workforce. Article II, Section

35, Ohio Constitution. R.C. § 4123.54(A) provides in pertinent part:

Every employee, who is injured ... is entitled to receive,either directly from the employee's self insuring employer ...the compensation for loss sustained on account of the injury,occupational disease, or death ... (Emphasis)

This Court has held: "In order to establish a right to workmen's compensation ... it is

necessary for.the claimant to show ... that his injury arose out of and in the course of

employment, but also that a direct or proximate causal relationship existed between his

injury and his harm or disability." White Motor Corp. v. Moore (1976), 48 Ohio St.2d 156

(emphasis added); State, ex rel. Thompson, v. Roadway Express, Inc. (1984), 12 Ohio

St.3d 76.

It is universally accepted that "[a]II forms of death and disability benefits provided

by R.C. Chapter 4123 are intended to compensate for'loss sustained on account of the

injury."' State, ex rel. McCoy, v. Dedicated Transport, Inc. (2002), 97 Ohio St.3d 25, 33,

citing R.C. § 4123.54(A). Indeed, "[f]or purposes of compensability, a causal

6

relationship must exist between the employee's industrial injury and the loss that the

requested benefit is designed to compensate." McCoy, 97 Ohio St.3d at 33. This

fundamental principle likewise applies to awards of TTD. State, ex rel. Staton, v. Indus.

Comm. (2001), 91 Ohio St.3d 407. It is well-established that the purpose of an award of

TTD is to compensate the disabled worker for loss of earnings resulting from the

disability. State, ex rel. Bunch, v. Indus. Comm. (1980), 62 Ohio St.2d 423; McCoy, 97

Ohio St.3d at 33, citing Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 634 (TTD

compensation is defined as compensation for wages lost where a claimant's injury

prevents a return to the former position of employment); and State ex rel. Ashcraft, v.

Indus. Comm. (1987), 34 Ohio St.3d 42, 44 ("TTD benefits are designed 'to compensate

an injured employee for the loss of earnings which he incurs while the injury heals."').

See also State ex rel. Gross, v. Indus. Comm. (2007), 115 Ohio St.3d 249, 250 ("Gross

II") (citing Ashcroft). Given the underlying purpose of TTD, the McCoy Court wrote:

In order to qualify for TTD compensation, the claimant mustshow not only that he or she lacks the medical capability ofreturning to the former position of employment but that acause-and-effect relationship exists between the industrialinjury and an actual loss of earnings. In other words, it mustappear that, but for the industrial injury, the claimant wouldbe gainfully employed.

McCoy, 97 Ohio St.3d at 33 (emphasis). Thus, it follows that in order to recover an

award for loss of earnings (i.e., TTD), a claimant must first actually suffer a loss of

earnings for which such recovery may be had.2

2 This is why an employee who receives wages or sick leave benefits during a period of TTD sustains noloss and, therefore, has no right to compensation for the disability. Fulton, Phillip J., OHIO WORKERS'COMPENSATION LAW, § 9.4 (3rd Ed. 2008) ("Fulton"), citing State, ex rel. Rubin v. Indus. Comm. (1938),134 Ohio St. 12. Indeed, "[i]f the employee receives temporary nonoccupational accident and sicknessinsurance benefits from an insurance program fully funded by the employer, R.C. § 4123.56(A) permitsthe employee to receive [TTD] only to the extent that such compensation exceeds the nonoccupationalaccident and sickness benefits received." Fulton, § 9.4

7

This principle is demonstrated in a case from the Court of Appeals for the Tenth

Appellant District, State ex rel. Carkido, v. Indus. Comm., 2011-Ohio-4051 (10th Dist.,

August 16, 2011). In Carkido, the claimant sustained a work=related injury on

October 14, 1998, and her claim was allowed for left knee conditions. On November 8,

1998, the claimant underwent surgery, and subsequently returned to work. In May

1999, the claimant sustained serious injuries in an unrelated motor vehicle accident and

was unable to return to work. She received Social Security disability ("SDD") until 2002,

when she became re-employed with another employer. While she worked the majority

of 2002, she did not work thereafter and, again, began receiving SSD in 2003. Id: at

¶ 14. In 2006, the claimant's claim was additionally allowed to include "aggravation of

pre-existing osteoarthritis of the left knee." She later requested surgery, which was

approved by the Commission in 2008 and performed in May 2009. Id. at ¶ 20.

Following the surgery, the claimant sought TTD. A DHO denied the request, in

part, because "[w]hile she underwent surgery for an allowed condition in [the] claim, any

disability arising from such treatment did not disable her from work as she was not

working at the time of the surgery." Id. at ¶ 23. An SHO affirmed for a number of

reasons, including that the claimant "was not working at the time of her new period of

disability in 2009. In fact, her own Affidavit suggests that she had been out of the work

force for nearly a six year period of time, during which she was receiving [SSD]." Id. at

¶30.

On appeal, the court noted that the claimant "was required to demonstrate that

the allowed conditions in her claim were the cause of this most recent period of

disability." id. at ¶ 36. The court acknowledged that the claimant "is correct in arguing

8

that the surgery was necessitated because of the allowed conditions in her claim.

However, the [claimant] still had the burden of proving that she suffered a loss of wages

as a result of the surgery." Id. at ¶ 37 (emphasis). Because the claimant left the work

force in 2002, and was not working at the time of the May 2009 surgery, she did not

3suffer an economic loss directly related to her 1998 industrial injury.

In State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-

2579, this Court decided a case very similar to this case. The Court held that where the

possibility of or potential for lost wages was eliminated, the injured worker could not

assert credibly that he had lost income due to the industrial injury. That is the situation

with this case. There is nothing to support any argument that Mr. Corlew's economic

situation was changed by the surgery that he had undergone some years after he left

the workforce. There was simply no loss of earnings caused by the surgery. His

economic situation was the same before and after his surgery. Where there is no

temporary loss of earnings attributable to an industrial injury, there is no reason to look

back to review the reason for the claimant's leaving the workforce in a case involving

temporary total disability compensation.4

3 Although the Court discussed voluntary abandonment in its analysis, it did not need to. As an initialmatter, the claimant did not suffer an economic loss which would entitle her to TTD and reliance upon thevoluntary abandonment defense was unnecessary.

4 In contrast, if Mr. Corlew later applied for permanent total disability compensation, there might beoccasion to examine whether his permanent departure from the workplace had been voluntary orinvoluntary. This highlights the distinction between this case and situations involving claims to permanenttotal disability compensation. Temporary total disability compensation is measured, in part, on the abilityof the injured worker to perform actual jobs. That is, an injured worker is not entitled to temporary totaldisability compensation when he regains the capability of performing the duties and responsibilities of hisformer position of employment. See, e.g_, State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d630. Similarly, an injured worker is not entitled to temporary total disability compensation when actualwork within its physical capabilities is offered to him. See e.g„ R.C. 4123.56(A). Permanent totaldisability compensation is designed to compensate the injured worker who is unable to perform anysustained remunerative employment, not necessarily available work. See e.c., State, ex rel. Stephenson,v. Indus. Comm. (1987), 31 Ohio St.3d 167. Whether an injured worker should be entitled to permanent

9

When a temporary loss of earnings is directly caused by an injury, then Ohio law

would permit a claimant to be compensated for the loss, most likely via temporary total

disability benefits. Where, however, as here, an injured worker's economic situation is

completely unaffected by an event in his workers' compensation claim (such as surgery)

and he experiences no resultant loss of earnings, then "one could not credibly allege the

loss of wages for which temporary total disability is meant to compensate." Staton,

supra.

Mr. Corlew did not sustain an economic loss directly attributable to the industrial

injury during the period for which benefits were sought and awarded. Rather,

Mr. Corlew's condition was found to be at MMI in February 2008. Thereafter, he

participated in the MIT program until December 2008. When he was no longer eligible

to receive LTD benefits his employment at Honda ended and he chose to cash-in on his

pension benefits. Over a year later, he underwent surgery. Thereafter, he experienced

a period of temporary impairment. However, Mr. Corlew's period of temporary

impairment did not result in any economic loss. At the time of the surgery, Mr. Corlew

was not working or looking for work.5 His economic position therefore remained the

same before and after the surgery.

total disability compensation might make an inquiry into the voluntary versus involuntary nature of hisleaving the workforce relevant. This would be because, of course, in such an instance the injuredworker's loss could be occasioned by the industrial injury or it could be caused by his leaving theworkplace voluntarily. However, in Mr. Corlew's situation, the surgery had no impact on his economicsituation and there was no economic loss to be compensated. Whether he left work voluntarily orinvoluntarily is irrelevant to whether he sustained an economic loss as a result of his undergoing surgery.

5 Indeed, there is no evidence to suggest that Mr. Corlew had ever made any attempt to look for work orre-enter the workforce after his employment at Honda ended. Mr. Corlew's decision to reject Honda'soffer of a vocational rehabilitation program, and his decision to cash-in on his Honda pension benefitsfurther demonstrates that he never intended to re-enter the workforce.

10

The Commission failed to recognize the fundamental question-whether

Mr. Corlew sustained any economic loss in 2009 as a result of his injury. Because

Mr. Corlew did not, and cannot, establish that his surgery in 2009 resulted in a loss of

earnings, he was not entitled to TTD and the Commission's Order awarding same was

an abuse of discretion. See e.,g„ State, ex rel. Pierron, v. Indus. Comm. 120 Ohio St.3d

40, 2008-Ohio-5245.

11

V. CONCLUSION:

As set forth above, the Commission's Order of August 12, 2010 contains a clear

error: the Commission awarded indemnity compensation where there was no loss.

Accordingly, Honda requests that the Court issue a writ directing the Commission to

vacate its Order of August 12, 2010 granting TTD.

Respectfully submitted,

obert A. Minor (0018371)VORYS, SATER, SEYMOUR AND PEASE LLP52 East Gay StreetColumbus, Ohio 43215Telephone: (614) 464-6410Facsimile: (614) 464-6350E-mail: raminor(cDvorys.com

Attorneys forAppellant,Honda of America Mfg., Inc.

12

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Brief of Relator was

served via regular U.S. mail, postage pre-paid, this 1-2o, I day of January, 2013,

upon the following:

Frank A. VitaleLaw Office of Stanley Jurus1375 Dublin RoadColumbus, Ohio 43215

Patsy ThomasAssistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215-3130

A. Minor

131 !21 /2013 15571930

APPENDIX

IN THE SUPREME COURT OF OHIO

State of Ohio ex rel., = 12-

SupremeHonda of America Mfg., Inc.,

Court No.:

vs.

Appellant,

Industrial Commission of Ohio,

and

Robert Corlew,

Appellees.

i4 9 9

Appeal from the Tenth AppellateDistrict, Franklin County, Ohio

Case No. 11AP-528

NOTICE OF APPEAL OF APPELLANTHONDA OF AMERICA MFG., INC.

Robert A. Minor (0018371)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-6410Fax: (614) 719- 4874E-mail: raminor(cr^vorys.com

Attorney for Appellant,Honda of America Mfg., Inc.

FIEDAUG 31 2G1Z

CLERK OF COURTSUPREME COURT OF OHI®

Gerald H. Waterman (0020243)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"d FloorColumbus, Ohio 43125Telephone: (614) 466-6696Facsimile: (614) 752-2538E-mail:qerald waterman aC^ohioattorneyoenerai.etov

Counsel for Appellee,Industrial Commission of Ohio

Frank A. Vitale (0068588)Law Office of Stanley Jurus1375 Dublin RoadColumbus, Ohio 43215Telephone: (614) 486-2814Facsimile: (614) 486-8580E-mail: s.iurusCa)att.net

Attorney for Appellee,Robert L. Corlew

A-1

NOTICE OF APPEAL OF APPELLANTHONDA OF AMERICA MfG., INC.

Appellant Honda of America Mfg., Inc., hereby gives notice of its appeal to the

Supreme Court of Ohio from the judgment of the Franklin County Court of Appeals,

Tenth Appellate District, entered July 24, 2012, in the case styled State, ex rel. Honda

of America Mfg Inc., v. Industrial Commission of Ohio, et al., Case No. 11AP-528. A

copy of said Entry is attached hereto in accordance with Ohio S.Ct. R. 2.2(B)(2). This

case originated in the Court of Appeals and this appeal is therefore an appeal as of

right.

Appellant hereby requests that this case be scheduled for oral argument in

accordance with Ohio S.Ct. R. 9.

Respectfully submitted,

^ •obe A. Minor (0018371), Counsel of RecordORYS SATER SEYMOUR AND PEASE LLP

52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-6410Fax: (614) 719- 4874E-mail: raminor(W-vorys.com

Counsel for Appellant,Honda of America Mfg., Inc.

2

A-2

CERTIFICATE OF SERVICE

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to

counsel for Appellee Robert L. Coriew, Frank A. Vitale, Law Office of Stanley Jurus,

1375. Dublin Road, Columbus, Ohio 43215 and to counsel for Appellee Industrial

Commission of Ohio, Gerald H. Waterman, Assistant Attorney General, Workers'

Compensation Section, 150 East Gay Street, 22"d Floor, Columbus, Ohio 43215, this

.9 day of August, 2012.

L^kR bert A. Minor

3

8!28/2012 145561.04 A-3

. • :-- - ` i.^ i `.. .....__f^' - ,

,. , .. ^^; . _ ..

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT `ry` ^ v il` 24 PM 12' 46

i.:i..:..̀ i'„`, i.vtlik^s

State of Ohio ex rel. Honda of AmericaMfg., Inc.,

Relator,

V.

Industrial Commission of Ohio andRobert Corlew,

Respondents.

No. 11AP-528

(REGULAR CALENDAR)

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

July 24, 2012, the objections to the decision of the magistrate are overruled, the decision

of the magistrate is approved and adopted by the court as its own, and it is the judgment

and order of this court that the requested writ of mandamus is denied. Costs shall be

assessed against relator.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 faflure to appear notice of this

judgment and its date of entry upon the journal.

Judge Lisa . Sadl r

,̂

Ju g gy E

W?aJudge G. G A-4


TENTH APPELLATE DISTRICT


V.

Relator,

Industrial Commission of Ohio andRobert Corlew,

Respondents.

: ., _ i

No.11AP-528

(REGULAR CALENDAR)

D E C I S I O N

Rendered on July 24, 2012

Vorys, Sater, Seymour & Pease LLP, and RobertA. Minor, for

relator.

Michael DeWine, Attorney General, and Derrick Knapp, for

respondent Industrial Commission of Ohio.

Law Office of Stanley Jurus, and Frank A. Vitale, for

respondent Robert Corlew.

IN MANDAMUSON OBJECTION TO TIiE MAGISTRATE'S DECISION

SADLER, J.{¶ 1} In this original action, relator, Honda of America Mfg., Inc., seeks a writ of

mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to

vacate its order awarding temporary total disability ("TTD") compensation to respondent,

Robert Corlew ("claimant"), and ordering the commission to find that he is not entitled to

that compensation.

A-5

No.1iAP-528 2

{¶ 2} Pursuant to Civ.R 53 and Loc.R. 12(M) of the Tenth District Court of

Appeals, we referred this matter to a magistrate who issued a decision, including findings

of fact and conclusions of law, which is appended hereto. The magistrate determined that

the commission did not abuse its discretion when it awarded TTD compensation to

claimant. Therefore, the magistrate has recommended that we deny relator's request for a

writ of mandamus.

1. BACKGROUND

{¶ 3} Claimant suffered a work-related injury in 2003 and received various

periods of TTD compensation until it was determined that his allowed physical conditions

had reached maximum medical improvement ("MMI"). Based on the finding of MMI,

claimant's TTD compensation was terminated effective February 29, 2oo8. Thereafter,

claimant was told his employment with relator would end on December 31, 2oo8, with the

termination of relator's medically inactive transition program. Therefore, claimant

elected to retire.

{¶ 4} In 2oog,- clai.mant's. request for authorization for surgery was approved and

surgery was performed in December 2009. Claimant sought TTD compensation from the

date of surgery to an estimated return-to-work date in 2o11. Following a hearing, a

district hearing officer granted claimant's request for TTD compensation, and a staff

hearing officer affirmed. The matter was heard before three members of the commission

who determined claimant's request for TT'D compensation should be granted.

II. RELATOR'S OBJECTION

{¶ 5} Relator has filed an objection to the magistrate's decision arguing that the

magistrate failed to focus on the proper issue presented. According to relator, the

magistrate focused on the issue of voluntary abandonment of employment, instead of the

issue raised by relator which is whether one has to suffer economic loss in order to be

entitled to TTD compensation. We disagree with relator's characterization of the

magistrate's decision. The magistrate appropriately explored the relevant issues, thereby

establishing that the position advanced by relator is not supported by law.

{¶ 6} In State ex rel. Hoffman v. Rexam Beverage Can Co., loth Dist. No. 1iAP-

533, 2012-Ohio-2469, this court reviewed the commission's denial of a post-retirement

request for TTD compensation. Like claimant, the injured worker in Hoffman suffered a

A-6

No. 11AP-528 3

work-related injury and received TTD compensation until the conditions were determined

to have reached MMI. Approximately three months after the MMI determination, the

injured worker retired. Sixteen months after retiring, the injured worker underwent

surgery and sought TTD compensation from the date of the surgery. The requested

compensation was denied in Hoffman because the commission determined the injured

worker's retirement was voluntary. Speaking through the magistrate, this court stated

that in circumstances where a claimant is not receiving TTD compensation, retires, and

then thereafter seeks reinstatement of TTD compensation, "[i]f the cominission makes the

determination that the claimants' retirement was voluntary, then the claimants are not

entitled to an award of TTD compensation. Conversely, if the commission determines

that the claimants' departure from the workplace is involuntary, the claimants remain

eligible for an award of TTD compensation." Id. at ¶ 79.

{¶ 7} As the magistrate stated in her decision, there are a number of cases in

which TTD compensation has been reinstated after retirement, and the relevant inquiry is

whether or not the retirement is voluntary. Here,. the record contains evidence that

claimant retired because of the industrial injury that also precluded him from returning to

the work force. Thus, we conclude the magistrate correctly addressed the pertinent issues

and overrule relator's objection to the magistrate's decision.

III. CONCLUSION{¶ 8} Following an independent review of this matter, we find that the magistrate

has properly determined the facts and applied the appropriate law. Therefore, we

overrule relator's objection 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. In accordance with the magistrate's decision, we deny relator's request for a writ

of mandamus.

BRYANT and TYACK, JJ., concur.

Objection overruled;writ ofmandamus denied.

A-7

No.11AP-528 4

APPENDIX


TENTH APPELLATE DISTRICT


Relator,

V.

Industrial Commission of Ohio andRobert L. Corlew,

No.11AP-528

(REGULAR CALENDAR)

Respondents. •

MAGISTRATE'S DECISION

Rendered on March 21, 2012

Vorys, Sater, Seymour & Pease LLP, and Robert A. Minor,

for relator.

Michael DeWine, Attorney General, and Derrick L. Knapp,for respondent Industrial Commission of Ohio.

Law Office of Stanley Jurus, and Frank A. Vitale, forrespondent Robert L. Corlew.

IN MANDAMUS

{¶ 9} Relator, Honda of America Mfg., Inc., has filed this original action

requesting that this court issue a writ of mandamus ordering respondent Industrial

Commission of Ohio ("commission") to vacate its order awarding temporary total

A-8

No.11AP-528 5

disability ("TTD°) compensation to respondent Robert L. Corlew ("claimant"), and

ordering the commission to find that he is not entitled to that compensation.

Findings of Fact:

{¶ 10} 1. Claimant began his employment with Honda in February 1988.

{^ 11} 2. Claimant sustained a work-related injury on December 5, 2003, and his

workers' compensation claim has been allowed for the following conditions: "Contusion

of right wrist; right wrist tendonitis; carpi ulnaris sub sheath tear; trifibrocartilage tear;

anxiety disorder."{¶ 12} 3. Claimant received various periods of TTD compensation until

February 29, 2008, when his 1TD compensation was terminated following a February 29,

20o8 hearing before a district hearing officer ("DHO"), who found that claimant's allowed

physical conditions had reached maximum medical improvement ("MMI").

{¶ 13} 4. Between December 20o6 and December 2oo8, claimant participated in

Honda's medically inactive transition program ("MIT"). The MIT program provides an

injured worker with periods of disability compensation while the injured worker pursues.

various rehabilitation efforts. It is undisputed that claimant participated in the MIT

program and completed his various assignments.

{¶ 14} 5. In March 20o8, Honda offered claimant some type of vocational

rehabilitation. Claimant initially indicated that he was willing to participate but needed to

discuss the matter with his attorney. As such, the case was closed on grounds that

claimant was not interested in the program at that time.

{¶ 15} 6. After the MIT program ended in December 2008, claimant was informed

that his employment with Honda would end December 31, 2oo8.

{¶ 16} 7. Because he was eligible to retire, claimant elected to do so.

{¶ 17} 8. In March 2009, claimant's treating physician, Charles B. May, D.O., filed

a C-9 requesting authorization for surgery.

{¶ 18} 9. Honda initially denied the request pending an independent medical

examination ("IME") by its examining expert, Dr. Goula, who opined that the requested

surgery was medically necessary and appropriate.

A-9

No.11AP-5286

{¶ 19} io. In an ex parte order mailed June 18, 2009, it was determined that

Honda had approved the request for surgery, as follows:

It is hereby the finding of the Hearing Officer that the Self-Insuring tmployer has accepted the Injured Worker's C-86filed 04/14/20o9 requesting authorization of C-9 dated03/17/2009 for surgery, reconstruction, distal radial ulnarjoint with either ulnar shortening or ligament reconstructionwith a palmus longus tendon graft, Orthopedic Surgeon, Dr.

Stutzman.

{¶ 20} 11. The surgery was performed on December 29, 2009 by Desmond J.

Stutzman, D.O.{¶ 21} 12. On February 9, 2010, claimant filed a motion seeking an award of TTD

compensation beginning December 29, 2oog and continuing based on C-84s submitted

by Drs. May and Stutzman. Those C-84s requested the payment of TTD compensation

from December 29, 2009 through an estimated return-to-work date of October 19, 2011.

{¶ 22} 13. The request for TTD compensation was heard before a DHO on

April 29, 201o. The DHO issued an interlocutory advisement order taking the matter of

advisement, as follows:This claim is taken under advisement for further review,consideration, and research by the District Hearing Officerprior to publishing of a final order. The file is referred toDistrict Hearing officer Charney.

The Self-Insuring. Employer is hereby ordered to complywith the above findings.

This order is interlocutory in nature and not subject toappeal.

{^ 231 14. Thereafter, the DHO determined that TTD compensation should be

paid beginning December 29, 2oo9 based on the operative report from Dr. Stutzman of

the same date, Dr. Stuzman's January 21, 2010 C-84, Dr. May's January 14, 2010 C-84,

and the various office notes and C-gs in the file from Dr. May.

{¶ 24} 15. Honda appealed and the matter was heard before a staff hearing officer

("SHO") on June 24, 201o. The SHO also determined that TTD compensation should be

awarded, stating:

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No. 11AP-528

It is the finding and order of the Staff Hearing Officer thatthe Injured Worker's C-84 request for temporary totalcompensation filed 01/28/2010, is granted. It is the findingand order of the Staff Hearing Officer that the InjuredWorker underwent a surgical procedure on 12/29/2009which is causally related to the allowed conditions in thisclaim. The Staff Hearing Officer finds that the date ofsurgery and a usual and customary recuperative period hascaused the Injured Worker to be temporarily disabled andincapable of returning to any form of employment. It istherefore the order of the Staff Hearing Officer thattemporary total disability compensation benefits from12/29/2009 through 03/28/201o, and continuing uponsubmission of appropriate medical evidence documentingthe Injured Worker's disability to be due to the allowedconditions in this claim, are to be paid less any benefitspreviously received. This order is based upon the operativereport dated 12/29/2009 from Dr. Stutzman, the C-84 dated01/28/2o1o and treatment notes from Dr. May.

7

The Self-Insuring Employer is hereby ordered to complywith the above findings.

{¶ 25} 16. Honda appealed, and the matter was heard before three members of the

commission on August 12, 2o1o. At the hearing, Honda's entire argument was based on

its contention that TTD compensation was not payable to claimant because he was not

experiencing an economic loss. Honda clarified its position at the hearing indicating that

it was not making any argument related to voluntary abandonment, refusal of a good-faith

job offer, or voluntary retirement, nor that claimant continued to be at MMI. In fact,

Honda conceded that, medically, claimant was again temporarily and totally disabled as a

result of the surgery, performed on that date. The only issue raised by Honda was that

there must be an economic loss before TTD compensation can be awarded. Claimant

testified that he retired from Honda because of the industrial injury and that he wanted to

return to the workforce, but his allowed conditions precluded him from doing so. As such,

claimant argued that his separation from employment was involuntary and that he was,

therefore, still eligible to receive TTD compensation because it was undisputed that the

allowed conditions in his claim were causing him to be disabled.

A-11

No.11AP-5288

{¶ 26} 17. The commission rejected Honda's argument and determined that TTD

compensation should be paid, as follows:

The Employer proffered no case law or statutory authority tosupport its position, nor has the Commission found any suchauthority, other than that pertaining to an Injured Worker'sreceipt of wages in lieu of temporary total disabilityconipensation. See e g State ex rel. Rubin v. Indus. Comm.(1938), 134 Ohio St. 12. The Injured Worker has not worked,received wages or received any temporary total disabilitycompensation since 12/16/2oo8, nor has he received anyother benefits related to his industrial injury since that date.The Injured Worker did receive his retirement benefits.

R.C. 4123.56(A) specifically states "(t)he termination oftemporary total disability, whether by order or otherwise,does not preclude the commencement of temporary totaldisability at another point in time if the employee againbecomes temporarily totally disabled." The statute does notcontain any requirement that the Injured Worker must besuffering an economic loss at the time the allowed industrialcondition again becomes temporarily totally disabling. Thestatute is clear, however, that the termination of temporarytotal disability compensation does not preclude the paymentof temporary total disability compensation at another pointin time if the Injured Worker again becomes temporarilytotally disabled. The Injured Worker, who had his temporarytotal disability compensation terminated by IndustrialComnlis5ion order on 02/29/20o8, again becametemporarily totally disabled 12/29/2009, the date he hadsurgery. Consequently, by statute, temporary total disabilitycompensation is granted beginning 12/29/2009. It isundisputed that the Injured Worker was unable to return tohis former position of employment, that he was not working,that his condition temporarily worsened, and that he was notreceiving wages. The Employer's "no economic loss" theorybars temporary total disability compensation only if theInjured Worker's retirement benefits are considered a wagereplacement. The Commission is aware of no authority forsuch conclusion when an Injured Worker's retirement isinjury induced. To the contrary, the statute itself coordinatesthe simultaneous receipt of temporary total disabilitycompensation and social security retirement benefits. See

R.C. 4123.66(D).

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No.11AP-528

Therefore, the Commission concludes that the InjuredWorker has met the statutory requirements for temporarytotal disability compensation.

The self-insuring Employer is hereby ordered to comply withthe above findings.

9

{¶ 27} 18. Thereafter, Honda filed the instant mandamus action in this court.

11281 i9. The matter is currently before the magistrate for determination.

Conclusions of Law:{¶ 29} Honda argues that TTD compensation is defined as compensation for wages

lost where a claimant's injury prevents a return to the former position of employment.

State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982); State ex rel. Ashcraft v.

Indus. Comm., 34 Ohio St.3d 42 (1987). Citing State ex. rel. McCoy v. Dedicated

Transport, Inc., 97 Ohio St.3d 25 (2002), Honda argues that, as such, in order to qualify

for an award of TTD compensation, claimant was required to prove not only that he

lacked the medical capacity to return to his former position of employment but that there

was a causal relationship between the industrial injury and an actual loss of earnings.

{¶ 30} For the reasons that follow, the magistrate finds that the commission did

not abuse its discretion by finding that claimant was entitled to an award of TTD

compensation because his retirement was due to the. allowed conditions in his claim and,

therefore, involuntary; that he had desire to return to work; and that it was undisputed

that the allowed conditions in his claim rendered him temporarily totally disabled.

{¶ 31} R.C. 4123.56 has been defined as compensation for wages lost when a

claimant's injury prevents a return to the former position of employment. Ramirez.

Where an employee's own actions, for reasons unrelated to the injury, preclude him or her

from returning to their former position of employiuent, he or she is not entitled to TTD

benefits, since it is the employee's own actions, rather than the injury, that precludes

return to the former position of employment. State ex rel. Jones & Laughlin Steel Corp.

v. Indus. Comm., 29 Ohio App.3d 145 (loth Dist.1985).

{¶ 32} When determining whether an injury qualifies for TTD compensation, a

two-part test is used. The first part of the test focuses on the disabling aspects of the

injury. The second part of the test determines if there are any factors, other than the

A-13

No. 11AP-528 10

injury, which would prevent claimant from returning to his or her former position of

employment. Ashcraft. However, only a voluntary abandonment precludes the payment

of 'ITD compensation. State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d

44 (1988). As such, voluntary abandonment of a former position of employment can, in

some instances, bar eligibility for TTD compensation.

{¶ 33} The voluntary nature of any claimant's departure from the workforce or

abandonment is a factual question which centers around the claimant's intent at the time

of retirement. In State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Cornm., 45

Ohio St.3d 381(1989), the Supreme Court of Ohio stated that consideration must be given

to all relevant circumstances existing at the time of the alleged abandonment. Further,

the court stated that the determination of such intent is a factual question which must be

determined by the commission.

{¶ 34} If it is determined that a claimant's retirement from a job was voluntary,

TTD compensation can be awarded only if the claimant has re-entered the workforce and,

due to the allowed conditions from the industrial injury, becomes temporarily and totally

disabled while working at the new job. McCoy. However, a claimant's complete

abandonment of the entire workforce precludes the payment of TTD compensation all

together. Jones & Laughlin Steel Corp. and State ex rel. Baker v. Indus. Comm., 89 Ohio

St.3d 376 (2000).

11[351 Honda's reliance on McCoy is misplaced. In McCoy, the Ohio Supreme

Court determined that, where an injured worker voluntarily retires, that injured worker

becomes eligible for TTD compensation only ifhe or she re-enters the workforce and, as a

result of the original industrial injury, becomes temporarily and totally disabled while

working at that new job.

{¶ 36} McCoy would apply here only if claimant had voluntarily retired from his

employment with Honda. However, Honda does not contest the involuntariness of

claimant's retirement. Further, Honda does not dispute that claimant is temporarily and

totally disabled as a result of the allowed conditions in the claim. Honda is, however,

misapplying the holding from McCoy here.

{¶ 37} There are many cases which could be cited where injured workers were

found to have involuntarily retired from their former position of employment, had not

A-14

11No.11A.P-528

returned to work, were rendered temporarily and totally disabled due to the allowed

conditions in the claim, and were awarded TTD compensation in spite of the fact that,

because they were not working, they had no lost wages. Because the commission looks at

the intent of the injured worker, the commission can find that an injured worker who

involuntarily retires from his or her former position of employment yet wants to be

working at the time he or she is temporarily and totaIly disabled does qualify for TTD

compensation because, but for the allowed conditions in the claim, that injured worker

would be working.

{¶ 38} Specifically, in State ex rel. Reliance Elec. Co. v. Wright, 92 Ohio St.3d 1og

(2001), the claimant, Leon Stevens, sustained a work-related injury in 1986. In September

1998, Stevens underwent surgery for a total right knee replacement. In March 1ggg, his

treating physician certified TTD beginning December ig, 1997 to an estimated return-to-

work date of April 1, 1999; however, Stevens was able to return to light-duty work. In May

1999, Stevens elected to take an age and service retirement; however, approximately one

month prior to his retirement, the employer closed its plant.

{¶ 39} In February 2002, Stevens underwent a second total knee replacement and

his treating physician completed another C-84 certifying that Stevens was temporarily

totally disabled from December 19, 1997 to the present and again indicated that, while

Stevens was unable to return to his former position of employment, he could return to

light-duty employment.{¶ 40} Because the employer refused to pay TTD compensation, Stevens filed a

motion and ultimately the commission determined that he was entitled to that period of

TTD compensation based upon a finding that his retirement had not been voluntary.

{¶ 41} The employer filed a mandamus action here which was denied. Specifically,

finding that the commission's determination that Stevens' retirement was not voluntary

was supported by some evidence, this court found that the commission did not abuse its

discretion.

{¶ 42} Likewise, in State ex rel. Mid-Ohio Wood Prods., Inc. v. Indus. Comm., loth

Dist. No. o7AP-478, 2oo8-Ohio-2453, the claimant, David L. Franks, sustained a work-

related injury in April 2005. Franks was never able to return to work at Mid-Ohio

following the April 2005 injury.

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No.11AP-52812

{¶ 43} Franks continued having problems and treating for the allowed conditions.

In March 2oo6, Franks' treating physician completed a C-84 certifying a period of

disability beginning in July 2005, the date of his first examination. Because Mid-Ohio

refused to pay compensation, Franks filed a motion with the commission.

{¶ 44} Ultimately, the commission determined that Franks' departure from, the

workplace was not voluntary. Specifically, the commission relied on Franks' testimony

that he never returned to work after the injury because he was unable to do so. Mid-Ohio

sought a writ of mandamus in this court.

{¶ 45} The main issue was whether the commission could exclusively rely on

Franks' testimony to determine that his post-injury failure to return to work at Mid-Ohio

was injury-induced and thus involuntary under the standard set forth in Rockwell and its

progeny. Finding that the commission could find Franks' testimony credible, this court

concluded that the commission did not abuse its discretion in making the factual

determination that Franks' failure to return to work after his injury was due to the injury

and that TTD compensation was payable:

{¶ 46} In State ex rel. Ford Motor Co. v. Indus. Comm., loth Dist. No. o8AP-218,

2008-Ohio-6517, the claimant, Veada R. Irby, had sustained a work-related injury in April

1997. Following surgery, Irby was unable to return to her former position of employment,

but was able to return to a light-duty position at Ford until 2003.

{¶ 47} In March 2003, Irby retired from Ford. At the time, she was 58 years of age

and had completed 30 years of service. An office note from her treating physician

indicated that Irby was "retiring at the end of this year in hopes that getting off the

concrete floor will make a big difference." Id. at ¶ 14.

{¶ 48} In May 2007, Irby underwent total knee replacement surgery and requested

TTD compensation from the date of the surgery. Ford denied the request finding that she

had voluntarily retired in March 2003 and was not entitled to benefits. Irby filed a

motion with the commission seeking an award of compensation.

{¶ 49} Ultimately, the commission determined that Irby's retirement was

involuntary and relied on the aforementioned office note indicating that Irby hoped that

her retirement from employment would help to ease her symptoms of pain. As such, the

commission found that she was entitled to TTD compensation.

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No. 11AP-528 13

{¶ 50} Ford filed a mandamus action asserting that the facts surrounding Irby's

retirement were similar to the facts involving the retirement of the claimant in State ex

rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 20o8-Ohio-5245. This court rejected

Ford's argument that this court should reconsider the facts and determine the nature of

Irby's retirement. This court again stated that the nature of the claimant's retirement is a

factual question that revolves around the claimant's intent at the time of retirement and

that questions of credibility and the weight to be given evidence are within the

commission's discretion as fact finder. Because there was some evidence in the record to

support the commission's determination that Irby's retirement was involuntary, this court

upheld the determination and denied Ford's request for a writ of mandamus.

{¶ 51} On March 6, 2012, Honda submitted the recent Ohio Supreme Court

decision in State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, Slip Opinion No. 2012-

Ohio-542, in further support of its argument. However, the magistrate finds that the

Akron Paint case does not apply here.

{¶ 52} In Akron Paint, the claimant Guiseppe Gullotta, injured his back and was

unable to return to his job. After several weeks receiving TTD compensation, Gullotta

returned to light-duty work consistent with his doctor's medical restrictions.

{¶ 53} On March 14, 2007, Gullotta's treating physician found that his physical

capabilities had improved and reduced his work restrictions. Based on those new lesser

restrictions, Akron Paint increased Gullotta's job duties. Gullotta saw his treating

physician in April 2007; however, his work restrictions remained the same.

{¶ 54}. Gullotta complained to his employer about his job duties and, on April 16,

2007, Gullotta spoke with a vice-president who offered him another position, also within

his physical limitations. Gullotta indicated that he did not want that job either, and he

immediately resigned and left the premises.

{¶ 55} Four months later, Gullotta requested a period of TTD compensation

beginning in April 2007. Gullotta's request was denied by a DHO who found that Gullotta

had voluntarily abandoned his employment and removed himself from the workforce. On

appeal, an SHO vacated the DHO's order but denied the requested period of TTD

compensation for a different reason. The SHO determined that the period of disability

was not causally related to Gullotta's industrial injury but, rather, was due to his refusal to

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No. 11AP-528 14

return to his light-duty job or to accept a suitable alternative employment that Akron

Paint had offered. The SHO expressly noted that Gullotta was medically unable to return

to his former position of employment at the time he quit, so his resignation could not be

deemed a voluntary abandonment,

{¶ 56} In March 2oo8, Gullotta's claim was allowed for an additional condition,

and he filed a motion seeking TTD benefits. A DHO denied the request on grounds that

Gullotta had refused a light-duty job offer and that he had failed to present evidence that

his additionally allowed medical condition resulted in greater work restrictions.

{¶ 57} On appeal, an SHO reversed the prior DHO order and determined that

Gullotta's newly allowed medical condition constituted evidence of new and changed

circumstances.{¶ 58} Akron Paint filed a mandamus complaint in this court. Adopting the

decision of the magistrate, this court agreed that the commission had abused its

discretion when it relied on the additionally allowed medical condition as a new and

changed circumstance. This court further concluded that Gullotta had not submitted

evidence justifying a renewed period of TTD compensation in light of his previous refusal

of the light-duty job made available by Akron Paint. The court noted that, even if the

medical evidence demonstrated that Gullotta's condition had worsened since his

resignation, he "has lost no wages during the period of claimed disability for which he can

be compensated." State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, loth Dist. No.

o9AP-492, 2o1o-Ohlo-1321, ¶ 47.

{¶ 59} There is a significant distinction between Gullotta's absence from the

workforce and claimant's absence from the workforce, and this distinction renders Akron

Paint inapplicable here. Although Gullotta and claimant were both unable to return to

their former positions of employment, Gullotta was offered and refused light-duty work.

Pursuant to McCoy, and the cases which followed, because Gullotta could have been

working but was not working because he chose not to accept a light-duty job offer,

Gullotta was required to return to work before he could receive TTD compensation for a

later period of disability. At the time he sought TTD compensation, Gullotta had no wages

to replace because he refused a light-duty job offer and removed himself from the

workforce. By comparison, claimant was likewise unable to return to his former position

A-1g

No.11AP-528 15

of employment. However, claimant did not refuse a good-faith offer of work within his

restrictions. Honda informed claimant that his employment would end on December 31,

20o8. Because he was eligible to retire, claimant elected to do so.

{¶ 60} Gullotta was denied TTD compensation not based on medical evidence but,

rather, on the statutory bar of compensation when a claimant has unjustifiably refused

light-duty work made available by the employer. In such a case, the claimant must return

to some other employment before the claimant can become eligible for TTD

compensation. By comparison, it is undisputed that claimant left his employment with

Honda after several years of rehabilitation and his participation in Honda's MIT program.

Honda decided that the MIT program would terminate, and Honda did not have any

other employment to offer claimant. Because he was eligible to retire, claimant did so.

Further, claimant requested surgery soon after he retired. Very little time passed between

the date he retired and the date he requested surgery. Here, there was no evidence that

claimant had abandoned the entire workforce, and Honda has not argued otherwise. The

fact that he did not refuse an offer of alternative employment distinguishes claimant's

situation from Gullotta's situation, and the court's decision in Akron Paint does not lead

to a different conclusion here.

{¶ 61} Honda's focus is misplaced, and its argument is not supported by law.

{¶ 62} Based on the foregoing, it is this magistrate's decision that Honda has not

demonstrated that the commission abused its discretion in awarding 1 D compensation

to claimant, and this court should deny Honda's request for a writ of mandamus.

/s/ StPbG► aszie Sisca F^rvaks

STEPHANIE BISCA BROOKSMAGIST-RATE

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No. 11AP-528

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)•

16

A-20

Ohio 7adudrial Commidon

RECORD OF PROCEEDINGS

Claim Nutt:ber: 03-886205

T,T-ACC-SI-COP

PCN: 2100471 Robert L. Corlew

ROBERT L. CORLEW

6920 SHULL RD

HIIBER HEIGHTS OH 45424-1229

Claims Heardo 03-886205

FINDW'0OCT 22101U

MA{t-t}

Date of Injury: 12/05/2003

This claim has been previously ALT,OCPSD for; CONTUSION Oi RIGHT WRIST; RiGHT

WRIST TBa1DONITISf C7 ►RPI IILNAAIS S09 SHE71'TS TSARj TRIFISROCARTIIJ►G8 TSAAt

71N7CI8Tr 1TISORDER.

This matter was heard on 08(12/2010r before the Industrial Coswissionpursuant to the provisions of R.C. Sections 4121.03, 4123.511 and 4123.52

on the following:

APPEAL filed by ffisployer on 07/O1/2010.Issue: Temporary Total Disability

Notices were mailed to the injured Worker, the Employer, their respective

representatives and the Administrator of the Bureau of Workers'Compensation not less than fourteen (14) days prior to this date, and the

following were present at the hearing:

APPEARANCE FOR THE INJURED WORRER; Mr. Vitale, Mr. Corlew

APPEARANCE FOR TSE EMPLOYER: Mr. Minor, Ms. Scott, Mr. Sullivan

APPEARANCE FOR THE ADMINISTRATOR: No Appearance

HEARD BY: Mr. DiCeglio, Mr. Abrams, Ms. Taylor

08/12/2010 - It is the decision of the industrial Commission that the

Employer's appeal, filed 07/01/2010, is taken under advisement for furtherreview and discussion and that an order be issued without further hearing.

08/12/2010 - Rfter furtheP review and diacussion, it is the find-ing of the

Industrial Commission that the Employer's appeal, filed 07/01/2010, is

denied and the Staff Hearing officer order, issued 06/29/2010, is modified

as follows.

Risk Numbero 20003516-0

It is the order of the commission that temporary total disability

compensation is granted from 12/29/2009 to 03/29/2010, and to continue upon

submission of medical evidence that supports the payment of temporary total

disability compensation. It is the finding of the Commission that the

injured worker again became temporarily totally disabled on 12/29/2009, the

date he had surgery for conditions allowed in this claim. This decision is

based on the operative report of 12/29/2009 and the C-84 Request for

Temporary Total Compensation signed by Desmond Stutzman, D.O., on

01/21/2010.

At hearing, the Smployer argued that there must be an economic lossdirectly caused by an industrial injury in order for disabilitycompensation to be awarded, and that the injured worker had notdemonstrated an eeonomic loss. The Commission rejects the Employer'sposition and finds the Injured Worker ie eligible for reinstatement of

temporary total disability compensation.

8y way of history, the iajured Worker sustained his industrial injury in2003 and his olaim is allowed for the conditions of contusion of the right

ICAP Page 1 rh/tif

A-21

Ohio ina^at commisdmRECORD OF PROCEEDINGS

Claim Number: 03-886205

wrist; right wrist tendonitis; carpi ulnaris sub sheath tear;

trifibrocartilage tear; and anxiety disorder. The injured worker received

various periods of temporary total disability compensation until

02/29/2008, when the Injured Worker was determined to have reached maximum

medical improvement by District aearing Officer order issued 03/05/2008.

Following the termination of the injured Worker's temporary total

disability compensation, the Injured Worker began receiving compensation

from the Employer-sponsored long-term disability program. The Injured

Worker continued to receive long-term disability benefits until 12116/2008,

when it was determined he was no longer eligible to participate in the

program. The Employer's representative explained that Cigna, the program'a

long-term disability carrier, conducted a•130 week review• and determined

that injured Worker could return to some type of work outside the company,

so it ended the injured worker's long-term disability benefits. At that

time, because he met the necessary requirements, the injured Worker was

offered the opportunity to retire. The Injured Worker accepted the offer.

The Employer stated that the injured Worker's retirement was •age based,•

At hearing, the Injured Worker argued that the Employer failed to raise a

valid legal defense that would support the denial of temporary total

disability. The Injured Worker teatified that be retired from his former

position because of the industrial injury. Further, the Injured Worker

testified that he desires to return to the workforce, but that his

industrial injury precludes him from doing ao. The Commission finds these

statements persuasive; the Injured Worker neither voluntarily retired, nor

voluntarily abandoned the workforce.

The Employer argued that because the injured Worker was not receiving anycompensation on 12/29/2009 he was not~suffering any economic loss directlycaused by the industrial injury, so he is not eligible to receive temporarytotal disability compensation. The Employer clarified its position, statingit is not making any argument related to voluntary abandonment, refusal ofa good faith job offer, nor voluntary retirement. The Employer also statedthat it is not arguing that the Injured Worker continued to be at maximummedical improvement on 12/29/2009. The Employer conceded that, medically,the Injured Worker was aqain temporarily totally disabled aa a result ofthe surgery performed on that date. The narrow issue argued by the Employeris that there must be an economic loss directly caused by the industrialinjury for disability compensation to be awarded and that the Injured

Worker has not demonstrated such loss.

The Employer proffered no case laF or statutory authority to support its

position, nor has the Commission found any such authority, other than that

pertaining to an injured worker's receipt of wages in lieu of temporary

total disability compensation.Be P..ul,-,Snmm, (1938), 134 Ohio St.12. The Injured Worker has not worked, receivedwages or received any temporary total disability compensation since12/16/2008, nor has he received any other benefits related to hisindustrial injury since that date. The injured Worker did receive his

retirement benefits.

R.C. 4223.56(A) specifically states "(t)he termination of temporary total

disability, whether by order or otherwise, does not preclude thecommencement of temporary total disability at another point in,time if the

employee again becomes temporarily totally disabled." The statute does not

contain any requirement that the Injured Worker must be suffering an

economic loss at the time the allowed industrial condition again becomes

temporarily totally disabling. The statute is clear, however, that the

tarmination of temporary total disability compensation does not preclude

the payment of temporary total disability compensation at another point in

time if the injured Worker again becomes temporarily totally disabled. The

injured Worker, who had his temporary total disability compensation

terminated by Industrial Commiseion order on 02/29/2008, again became

temporarily totally disabled 12/29/2009, the date he had surgery.

Consequently, by statute, temporary total disability compensation is

granted beginning 12/29/2009. It is undisputed that the Injured Worker was

ICAP page 2 rh/df

A-22

Ohio TndasUcbl C.onamission



unable to return to his former position of employment, that he was notworking, that his condition temporarily worsened, and that he was notreceiving wages. The smployer's "no economic loss" theory bars temporarytotal disability compensation only if the Injured Worker's retirementbenefits are considered a wage replacement. The Cort®ission is aware of noauthority for such conclusion when an Injured Worker's retirement is injury

induced. To the contrary, the statute itself coordinates the simultaneousreceipt of temporary total disability compensation and social security

retirement benefits. See R.C. 4123.56(D).

Therefore, the Couuniesion coneludes that the Injured Worker has met thestatutory requirements for temporary total disability compensation.

The self-insuring Employer is hereby ordered to comply with the above

findings.

ANY PARTY MSY APPEAL AN ORDER OF THIS COMMISSION, OTHER THAN A DECISION AS

TO EXTENT OF DISABILITY, TO TH8 COOR? OF COMMON PLEAS WITHIN SIXTY (60)

DAYS AFTER RECEIPT OF THE ORDER, SUBJECT TO THE LIMITATIONS CONTAIN6D IN

R.C. 4123.512.

Typed By: MS/rhDate Typed: 10/14/2010

The action is based upon the motion made by Mr. DiCeglio, seconded by Mr.

Abrams, and voted on as follows:

Gary K. DiCeqlio YES Jodie M. Taylor NO,

ChairpersonComnissioner

Kevin R. Abramg YES

Commissioner

BY

14.,

Findings Mailed:

Executive Director

The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of one of the

parties, please notify the Industrial Commission.

03-886205ID No: 10017-90

Robert L. Corlew ***Stanley Jurus***6920 Shull Rd 1375 Dublin Rd

Huber Heights OH 45424-1229 Columbus OH 43215-1074

ICAP Page 3 rh/rh

A-23

Ohio hndastrw Camo®#sdun



Risk No: 20003516-0

Honda Of America Mfq Inc

Atn:Workera Comp Dept

19900 State Route 739

Marysv5.lle OH 43040-9256

ID No: 900-80

***Compmanagement, Inc.***

PO Box 884

Dublin OH 43017-6884

ID No: 20238-91Dinsmore r, Shohl255 B 5th St Ste 1900Cincinnati OH 45202-1971

ID NO: 20462-91***vorys Sater Seymour Pease***

Po Box 1008Columbus OH 43216-1008

ID No: 21483-91

RoetZel i Andrese

one Cleveland Center

1375 E 9th St Fl 9

Cleveland OH 44114-1739

BWC, LAW DIRECTOR

NOTE: INJURED WORKERS, BMPI,OYERS, AND THEIR AOTHORIZED REPRESENTATIVES MAY

REVIEW THEIR ACTIVE CLAIMS INPORMATION THROUGH THE INDIISTRIAL C014"lISSION WEB

SITE AT www.ohioic.oom. ONCE ON THE HOME PAGE OF THE WEB SITE, PLBASE CLICK

I.C.O.N. AND FOLT.OW THE INSTRIICTIONS FOR OBTAINING A PASSBTORD. ONCE YOU HAVE

OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).

ICAP Page 4 rh/rh

an tqWal appcaa=icy Cqlw=

wW /.svle. ssovid.r

A-24

Ohio Industriat Commissfon


Claim Number: 03-8862D5 Claims Heard: 03-886205

LT-ACC-SI-COVPCN: 2100471 Robert L. Corlew

ROBERT L. CORLEW

6920 SHULL RD

HUBER HSIGHTS OH 45424-1229

Date of Iniury: 12/05/2003 Risk Number: 20003516-0

This claim has been previously allowed for: CANTDSION OF RIGST NRISTt RIGHT

HRIST TBNLONITIB= CIIRPI jJLNARI6 SO8 SHE1lT1! TEARl TRI?ZBROCARTIIAOE TEAR; ANXISTY

DISORDER.

This matter was heard on 06/24/2010 before Staff Hearing Officer Vicki C.singleton pursuant to the provisions of R.C. Sections 4121.35(e) and 4123.51](1))

on the followinq:

APPEAL of DHO order from the hearing dated 04/29/2010; filed by Employer on

05/27/2010.IsBue: 1) Temporary Total Disability

Notices were mailed to the Injured Worker, the Employer, their respectiverepresentatives and the Administrator of the Bureau of workers, Compensation notless than fourteen 114) days prior to this date, and the following were present

for the hearing:

RppEARANCE FOR THE INJDRED wORRER: Vitale, Injured worker

APPEARANCE FOR THE EMPLOYER: Minol', SCott, Sullivan


It is the finding and order of the Staff Hearing Officer that the Injured

worker,s C-84 reguest for temporary total compensation filed 01/28/2010, is

granted. It is the finding and order of the Staff Hearing Officer that the

Injured Worker underwent a surgical procedure on 12/29/2009 which is causally

r_elated to the allowed conditione in this claim. The Staff 8earing Offieer

finds that the date of surgery and a usual and customary recupc6rative period has

caused the Iniured Worker to be temporarily disabled and incapable of returning

to any form of employment. It is thereEore the order of the Staff Hearing

Officer that temporary total disability compensation benefits from 12/29/20D9

through 03/28/2010, aad continuing upon submission of appropriate madical

evidence documenting the Injured workerla disability to be due to the allowed

conditions in this claim, are to be paid less any benefita previously received.

This order is based upon the operative report dated 12/29/20D9 from Dr.

Stutxman, the C-84 dated 01/28/2010 and treatment notes from Dr. May.

The Self-Insuring Employer is hereby ordered to comply with the above findings.

A POS+TER OF ATTORNEY IS ON FILE FOR THE ABOVE LISTED INJVRED wORR'ER.

An IC-12 Appeal from this order may be filed within fourteen (14) days of thereceipt of the order. The IC-12 may be filed online at www.ohioic.com or theIC-12 may be sent to the Tndustrial Commission of Ohio, Dayton District Office,

1242 E Dayton-Yellow Springs Rd. Fairborn, OH 45324-6326.

ryped By: kaw

Siiol Page 1 kaw/vcs

^Q

A-25

1

• Ohio Industrial Commission



Date Typed: D6/25/2010 Vieki C. Singleton8taff Hearing Officer

Findinge Hailed: 06/29/2010Eleetronicatly signed byVicki C. Singletan

The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representat'xve of one of the

parties, please notify the Induatrial Commission.

03-886205

Robert L. Corlew

6920 Shull Rd

8uber Heighte OH 45424-1229

Risk Nor 20003515-0

Honda Of America Mfg Ine

AtnsWorkere Comp DePt


Marysville OH 43040-9256

ID NO: 10017-90***Stanley Jurue+k;1375 Dublin RdColumbus OH 43215-1074

ID No: 90D•80***Compmanagement, Inc.***PO Box 884Dublin OH 43017-6884

ID No: 20238•91Dinsmore i Shohl255 E 5th St Ste 1900Cincinnati OH 45202-1971

ID No: 20462-91**•Vorys Satar Selymour Pease***

PO Box 1008

Columbus OH 43216-1008

ID No: 21483-91Roettel 6 AndressOne Cleveland Center

2375 E 9th et F1 9


BWC, LAW DIRECTOR

NOTE: IIJJDRED WORKERS, 9MPLOYERS, AND THEIR AUTHORIZED RBPRESENTATIVES MAY

REVIEW THEIR ACTIVE CLAIMS INFORlSATION THROUGH THE INDUSTRIAL COMMISSION WEBSITE AT Mww-ohioic.aom. ONCE ON THE HOME PAGE OF THB WEB SITE, PLEASE CLICKI.C.O.N. AND FOLLOW THE INSTRUCTIONS FOR OBTAINING'A PASSWORD. ONCE YOU HAVE

OBTAINED A PASSWORD, YOU SHOULD B8 AHLE TO ACCESS'YOUR ACTIVE CLAIMIS).

SHOS Page 2 kaw/vca

An R.ppnl AppnrLunl4y Bmplnynr

nnd 9*rvic* PrcvldsrAP1

A-26

Ohio Industrial Commission


Claim Number: 03-886205LT-ACC-SI-COV

PCN: 2100471 Robert L. Corlew

Claims Heard; 03-886205

ROBERT L. CORLEW

6920 SHULL RD

HUBER HEIGHTS OH 45424-1229

Date of Injury: 12/05/2003 Risk Number: 20003516-0

This claim has been previously allowed for; CONTOSION OF RIGHT wRIST; RIGHT

WRIST TENDONITIS; CARPI ULNARIB SUB SHEATH TSAR7 TRIFIBROCARTILAGS TSARi ANXIBTY

DISORDER.

This matter was heard on 04/29/2010 before District Hearing Officer Deborah J.

Charney pursuant to the provisions of R.C. Sections 4121.34 and 4123.511 on the

following:

C-84 Request For Temporary Total Compensation filed by Injured Worker on

01/28/2010.Issue: 1) Temporary Total Disability

Notices were mailed to the Injured Worker, the Employer, their respectiverepresentatives and the Administrator of the Bureau of Workers' Compensation notless than fourteen (14) days prior to this date, and the following were present

for the hearing:

APPEARANCE FOR THE INJURED WORKER: Ms. Dougherty for Mr. Jurus, Mr. Corlew

APPEARANCE FOR THE EMPLOYER: Mr. Minor


After further review and consideration, it is the order of the District HearingOfficer that the C84, filed by the Injured worker on 01/28/2010, is granted to

the extent of this order. Specifically, the Injured Worker's request for thepayment of Temporary Total Disability Compensation in this claim is granted.Temporary Total Disability Compensation is to be paid from 12/29/2009, the dateof the Injured worker's surgery, through 03/28/2010. Further Temporary TotalDisability Compensation is to be paid upon submission of evidence supportive ofTemporary Total Disability Compensation. The District Hearing Officer finds thatthe evidence in file and presented at these proceedings supports this request,

at this time.

The District Hearing Officer first relies upon the 12/29/2009 Operative Reportfrom Dr. Stutzman. The District Hearing Officer further relies upon the C84 fromDr. Stutzman from 01/21/2010 and the C84 from Dr. May, dated 1/14/2010. The

District Hearing Officer further notes the C9s in file from Dr. May, dated11/5/2009 and multiple treatment notes in file from Dr. May from various dates.

Evidence was reviewed and considered.

The Self-Insuring Employer is hereby ordered to comply with the above findings.

An IC-12 Appeal from this order may be filed within fourteen (14) days of thereceipt of the order. The IC-12 may be filed online at www.ohioic.com or theXC-12 may be sent to the industrial Commission of Ohio, Dayton District Office,

DHOSI Page1 ch/djc

A-27

Ohio Industrial Commission



1242 E Dayton-Yellow Springs Rd, Fairborn, OH 45324-6326.

Typed By: chDate Typed: 05/12/2010 Deborah J. Charney

Date Received: 02/12/2010 District Hearing Officer

Notice of Contested Claim: 02/04/2010

Findings Mailed: 05/19/2010 Electronically signed by

Deborah J. Chamey

The parties and representatives listed below have been sent this record ofproceedings. if you are not an authorized representative of one of the

parties, please notify the Industrial Commission.

03-886205Robert L. Corlew6920 Shull RdHuber Heights OH 45424-1229

Risk No: 20003516-0Honda Of America Mfg. Inc.

Attn: Workers Comp Dept


Marysville OH 43040-9256

ID No: 10017-90

***Stanley Jurus***

1375 Dublin Rd


ID No: 900-80

***Compmanagement, Inc.***

PO Box 884

Dublin OH 43017-6884

ID No: 20238-91Dinsmore 6 Shohl255 E 5th St Ste 1900Cincinnati OH 45202-1971

ID No: 20462-91***Vorys Sater Seymour Pease***

PO Box 1008


ID No: 21483-91Roetzgl & AndressOne Cleveland Center

1375 E 9th St Fl 9


BWC, LAW DIRECTOR

NOTE: INJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY

REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THE INDUSTRIAL COMMIBSION WEB

SITE AT evww.ohioic.com. ONCE ON THE HOME PAGE OF THE WEB SITE, PLEASE CLICK

I.C.O.N. AND FOLLOW THE INSTRUCTIONS FOR OBTAINING A PASSWORD. ONCE YOU HAVE

OBTAINED A PASSWORD, YOU SHOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).

DHOSI Page 2 ch/djc

An Bquel opportunltY EvP1oYer

nnd Sr.rvlr.n Prnvldwr A-28

Lawriter - ORC - 4123.56 Compensation in case ot temporary aisaoliiLy. 1 u^^ . - -

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 minimumstatewide 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 shall

receive 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 as

defined 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 the

attending 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 ofemployment, 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 the

director 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 theemployer, 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

http://codes.ohio.gov/orc/4123.56 A-29

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 in

which 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, notto 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 in

addition to the maximum of two hundred weeks of payments allowed under division ( B)(1) of this

section. 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 excessof 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 of

compensation 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 section

and social security retirement benefits pursuant to the "Social Security Act," the weekly benefit

amount under division (A) of this section shall not exceed sixty-six and two-thirds per cent of the

statewide 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

A-30http://codes.ohio.gov/orc/4123.56

Documents

RWE COURT OF OFfIO CLERK OF COURT p,N 2 2 2013 in on his Honda pension benefits, Mr: Corlew underwent surgery. SR at 44. On February 9, 2010, Mr. Corlew requested TTD beginning December