In The Supreme Court Of Ohio

State of Ohio ex rel. Juan L. Lackey,

Appellant,

V.

Case Number 09-1755

On Appeal from the

Industrial Commission of Ohio : Franklin County Courtand Penske Truck Leasing Co. LLP . of Appeals, Tenth

Appellate District

Appellees.

REPLY BRIEF OF THE APPELLANT JUAN L. LACKEY

Thomas W. Condit (#0041299)ATTORNEY AT LAWP.O. Box 12700Cincinnati, OH 45212513-731-1230(Si3) 73ii230 (fax)Counsel for Appellant Juan L. Lackey

Robert M. Robenalt, Esq.Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215Counsel for Appellee Penske

Kevin J. Reis, Esq.Assistant Attorney General150 E. Gay Street, 22d FloorColumbus, Ohio 43215Counsel for Appellee Administrator

JAN ^ 5 Hi`l

CLERK O F COURTSUPREME COURT OF OHIO

Table of Contents

.......................... mTable of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ^ ^ ^

Summary and Comments on Factual Record . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . I

Reply Argument ...............................................................4

1. The Affidavit of Juan L. Lackey Was Before the Industrial CommissionWhen it Exercised its Discretion Not to Hear Mr. Lackey's Appeal From TheSHO Order Denying TTD, and It is Therefore Properly Before this Court forConsideration . .................................................... 4

II. Penske and the Commission Have Conflated and Muddied the ArgumentsRelevant to Medical Evidence, Involuntary Retirement, and TTD . . . . . . . . . . . . . 5

1. Periods of TTD Claimed By Mr. Lackey Are Fully Supported ByContemporaneous Medical Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . : . . 6

2. Proof of Involuntary Retirement Has Never Carried the Requirementof Medical Certification of Disability Stahis : . . . . . . . . . . . . : . . . . . . . . . 6

M. Continued Employment and/or Efforts to Obtain Employment Have NeverBeen'a Prerequisite for Involuntary Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Conclusion ...................................................................9

Certificate of Service . . . . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . 10

i

TABLE OF AUTHORITIES

CASES PAGE

State ex rel. Cordray v. Indus. Comm. (1990),54 Ohio St.3d 99 ........................................................5

State ex rel. 7?omjancic v. Indus. Comm. (1994),69 Ohio St.3d 693 ..........:............................................5

State ex rel. Reliance Electric Co. v. Stevens,2004-Ohio-1779, 2004 Ohio App. LEXIS 1582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

State ex rel. Rockwell International v. Indus. Comm. (1988),40 Ohio St.3d 44, 531 N.E.2d 678 (syllabus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

State ex rel Wiley v. Whirlpool Corp.,100 Ohio St3d 110, 2003-Ohio-5100, 796 N.E.2d 925 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES

R.C.4123.511(c) .............................................................. 4

ii

Relator-Appellant Juan L. Lackey ("Mr. Lackey") hereby replies to the Briefs of

Appellees Penske Truck Leasing Co., LLP ("Penske") and Industrial Commission of Ohio

("Commission").

SUMMARY AND COMMENTS ON FACTUAL RECORD

A review of the briefs filed by Penske and the Commission confirm the following:

1. There is no evidence in the record to support the conclusion that Mr. Lackey retired

for reasons unrelated to his 2001 industrial injury.

2. The evidence in the record that supports Mr. Lackey's contention that he retired

because ofhis 2001 industrial injury includes:

a. The letter of Mr. Lackey's attorneyI, written to Penske's representative and filed with

the Ohio Bureau of Worker's Compensation ("BWC") more than two months before

the effective retirement date, announcing to all interested parties why Mr. Lackey was

opting for an early retirement. (Letter of counsel; p. 0015.)

b. The medical opinion letter of Mr. Lackey's doctor, written one week prior to Mr.

Lackey's retirement decision, opining that Mr. Lackey had asymptomatic pre-existing

degenerative changes and chondromalacia of the left knee that were "aroused by the

6/5/01 injury" and that "there is a possibility that these conditions could progress as a

result of the knee injury and subsequent surgery." (Dr. Bilbo Letter dated 7/21/04; p.

0010.) '

1 It goes without saying that Mr. Lackey's attomey was serving as Mr. Lackey's agentand, having actively represented Mr. Lackey for several years by then, was speakingwith authority for him in that letter. Far from posing as some form of a medicalevidence (as the Court of Appeals suggested), the attomey letter was an unambiguousstatement of the reason why Mr. Lackey opted for an early retirement and it was willfullyignored by all those preferring to fabricate their own reasons in order to deny benefits toMr. Lackey.

1

c. The C-86 motion filed by Mr. Lackey on the day he signed his retirement paper

seeking to have his claim amended for the additional medical conditions diagnosed by

Dr. Bilbo. (C-86Motion; p 0011.)

d. The two 2005 hearing orders (DHO and SHO) amending Mr. Lackey's claim to

include the additional medical conditions diagnosed in Dr. Bilbo's 7/21/04 letter.

(Commission Orders; p. 0017, 0019.)

e. Dr. Bilbo's October 2005 request for approval to perform left knee surgery. (Bilbo C-

9; p. 0022.)

f. Mr. Lackey's C-86 motion seeking payment of temporary total disability

compensation beginning November 16, 2005 (date of surgery) and continuing. (C-86

Motion; p. 0024 to 0027.)

g. The Genex Progress Report #3, published while Mr. Lackey was participating in post

surgery rehabilitation program, confirming Mr. Lackey's goal and desire of returning

to work in some capacity. ( Genex Progress Report #3; p. 0030-0032.)

h. Operative report of May 15, 2006 knee replacement surgery. (Operative Report, p.

0049.)

i. Mr. Lackey's Affidavit, filed in support of his appeal to the Industrial Commission on

April 3, 2006. (Affidavit ofJuan L. Lackey, p. 0040-42.)

3. Remarkably, neither Penske's brief nor the Comnussion's brief mentioned the

central fact driving Mr. Lackey's decision to retire early - the comment from his terminal

manager that his driving technique (releasing clutch while stopped in traffic) could have

posed a safety hazard. (Affidavit ofJuan L. Lackey, p. 0040, paragraphs 6, 9.) Having

never presented any witness or counter-affidavit to challenge the accuracy of Mr. Lackey's

account, the Appellees can only act as if that (inconvenient) injury-related reason for

retirement does not exist.

2

4. There are only two docunients in the record that Penske and the Commission

posit as "some evidence" of Mr. Lackey's intent tosetire in 2004. Neither document can, in

good faith, be construed that way:

a. Penske cites to the retirement document signed by Mr. Lackey, (Certification of

Complete Severance and Termination of Employment; p. 0014,) as evidence of a

voluntary retirement. Yet, that document sheds no light at all on why Mr. Lackey

retired. It is utterly silent as to disability status and all other medical issues, and

there is no evidence in the record to suggest that medical issues were even relevant

to a Teamsters retirement or to the completion of that document. Yet, that absence

of evidence did not deter Penske from fabricating a negative inference against Mr.

Lackey for failing to submit medical or other documentation "indicating that his

retirement was in any way related to his industrial injury. (Penske Brief, p. 8.)

Penske's argument mirrors the conclusion in the 2/10/06 DHO Order, (pR. 0035)

that Mr. Lackey "took a full retirement and not a disability retirement." Like the

hearing officers, Penske is unfazed by the complete lack of evidence that a

"disability retirement" option was ever presented to Mr. Lackey by the Teamsters

Union, or that such an option even existed.

b. Penske cites to the (Genex Progress Report #3; p. 0030-0032) generated while Mr.

Lackey was rehabilitating in January 2006, as evidence that Mr. Lackey voluntarily

==y'retired and had no intention of seeking altemative work. There a.re iwo reasons wL..

the Genex document does not constitute such evidence. First, the document clearly

records Mr. Lackey's desire to return to work. Second, if one accepts for the sake of

argument Penske's conclusion that Mr. Lackey's distaste for driving automatic trucks

(suggested "per Dr. Heis"), (p. 0031,) at lower pay was evidence that he did not

intend to work again, it would require the conclusion that the physical limitations

caused by the injury drove his retirement decision.

In summary, the Commission and Penske have worked hard to suggest that the

Commission merely resolved conflicting evidence against Mr. Lackey when it denied TTD

3

benefits, but there were no fact disputes resolved by the Commission. There were only

conflicting interpretations of unrebutted evidence, juiced up with completely unsupported

negative inferences to deny Mr. Lackey his rightful benefits.

REPLY ARGUMENT

Saddled with a record barren of any evidence that Mr. Lackey had voluntarily retired,

Penske and the Commission are reduced to defending the "discretion" of Commission

hearing officers to ignore uncontradicted evidence while making inferences from half-truths.

The record before this Court contains (i) no conflicting testimony, (ii) no conflicting medical

opinions, and (iii) no other credibility battles of any kind. Ultimately, this case is about the

extent to which Commission hearing officers will be permitted to arbitrarily disregard

uncontradicted evidence to arrive at tortured conclusions.

1. The Affidavit of Juan L. Lackey Was Before the Industrial Commission

When it Exercised its Discretion Not to Hear Mr. Lackey's Appeal From The

SHO Order Denying TTD, and It is Therefore Properly Before this Court for

Consideration.

Both Penske's Brief (pp. 11-13) and the Commission's Brief (p. 7) challenge the

(Affidavit ofJuan L. Lackey, p. 0040) as being improper for this Court's consideration

because it was filed after the (3/13/06 SHO decision, p. 0037) denying TTD. Only Penske

cited any case law for that proposition, and it is inapposite.

Under R.C. 4123.511(C), the Commission has discretion to review decisions from

staff hearing officers if (i) an appeal involves issues for which the Commission desires to set

policy, (ii) the appeal involves unusual legal, medical or factual questions, (iii) there is newly

discovered evidence, or (iv) there is the possible existence of fraud in a claim. The Notice of

4

Appeal form designed by the Commission for all administrative appeals; including appeals

from SHO Orders, anticipates the submission of new evidence. (See Notice of Appeal, p.

039.)

Penske cites State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693 and

State ex rel. Cordray v. Indus. Comm. ( 1990), 54 Ohio St.3d 99, for the proposition that the

Commission "has no legal duty to consider evidence that is submitted after the evidentiary

hearings have been concluded." (Penske Briefat 11.) However, both Domjancic and

Cordray were Permanent Total Disability cases with review of the SHO Orders subject only

to the standards of reconsideration set forth in IC Resolution 98-1-3 (5/6/98).

Having had full discretion to review the SHO order with the record supplemented by

Mr. Lackey's affidavit, the Commission elected not to do so. It cannot be permitted to now

stand before this Court running from the evidence it previously found so acceptable. Indeed,

this Court would do a great service for future Ohio workers' compensation litigants by using

this case to confirm that evidence filed with the Commission on appeal from an SHO

decision remains properly in the record for any subsequent mandamus action. It will relieve

injured workers, in particular, from having to hire court reporters whenever meaningr

r

ul

compensation is at stake to prevent the mischaracterization of non-written evidence.

II. Penske and the Commission Have Conflated and Muddied the ArgumentsRelevant to Medical Evidence, Involuntary Retirement, and TTD.

The Briefs filed by Penske and the Commission are permeated with references to

"contemporaneous medical evidence," "voluntary retirement" and "temporary total

disability." The issues must be separated because, as argued, they invite confusion.

5

1. Periods of TTD Claimed By Mr. Lackey Are Fully Supported ByContemporaneous Medical Evidence.

Mr. Lackey agrees with Appellees that an injured worker has the burden of providing

the Commission with evidence of medical disability contemporaneous with any claimed

period of TTD. There can be no dispute that Mr. Lackey has provided such evidence for the

claimed period(s) of TTD in this case. Mr. Lackey first claimed TTD for the period

beginning November 16, 2005 (date of surgery), (p. 0024-27; C-86 Motion and supporting

medical documentation.) Mr. Lackey later filed a second motion seeking TTD beginning

5/15/06 (date of knee replacement). (p. 0048-58; C-86 Motion and supporting medical

documentation.) Beyond doubt, the medical evidence necessary to prove TTD for the

requested period(s) was before the Commission when TTD was denied.

2. Proof of Involuntary Retirement Has Never Carried the Requirement ofMedical Certification of Disability Status.

Unlike the issue of TTD, this Court has never held that an injured worker must

provide proof of disability contemporaneous with his retirement decision to support a finding

of involuntary retirement. Yet, reading the briefs of Penske and the Commission, one would

' -' "-think that the absence of a written opinion from Dr. Biibo is fatai to ivir. Lackay's ciaun. ivv

case law supports that position. Rather, the retirement decision must be injury related or

injury induced.

As this Court stated in State ex rel. Rockwell International v. Indus. Comm. (1988),

40 Ohio St.3d 44, 531 N.E.2d 678, "the determination rests on whether the fact that relator

left [his] employment was causally connected to [his] injury...." Id. at 46. The question of

abandonment is primarily one of intent, State ex rel Wiley v. Whirlpool Corp., 100 Ohio St.3d

110, 2003-Ohio-5100, not medical certification.

6

The point of the case law governing the retirement analysis, muddied by the

Appellees' shrill demands for more medical records, is that the injury must be a factor in the

retirement decision in order for the retirement to be considered voluntary.Z Several

observations are necessary in that regard. First, Mr. Lackey did present contemporaneous

medical evidence of his knee injury and sought the amendment of his claim the very week

that he applied for the Teamsters retirement.

Second, it is significant, and possibly the most unusual aspect of this case, that Mr.

Lackey opted for early retirement before his most disabling conditions were allowed in the

claim.

Third, while the medical evidence "contemporaneous with" Lackey's retirement

decision may be unsatisfactory to Penske and the Commission, the "pre and post" medical

records support that Lackey had unresolved knee problems from 2003 to 2006. He had

surgery in 2003. (Operative Note 6/25/03, p. 0009-10.) He had surgery in 2005. (Medical

Records, p. 0025-2 7.)

Finally, the suggestion from Mr. Lackey's terminal manager that Lackey's driving

habits (clearly related to his knee pain) could'be a safety hazara on tiie road would be a

strong injury-related reason for a trucker to retire absent any contemporaneous medical

opinion. 3

Z Significantly, the injury need not be the only factor in the retirement decision in order forthe retirement to be considered involuntary. See State ex rel. Reliance Electric Co. v.

Stevens, 2004-Ohio-1779, 2004 Ohio App. LEXIS 1582 (age and service retirement decision

made one month after plant closing).

3 In retrospect, it is easy to see that Mr. Lackey should have "lawyered" this claim todeath by seeking medical opinions, obtaining C-84 fonns, bringing court reporters toevery hearing, and otherwise litigating with great aggression. That he quietly applied forretirement in the face of the uncertainties of his contested claim does not change the fact

7

III. Continued Employment and/or Efforts to Obtain Employment Have NeverBeen a Prerequisite for Involuntary Retirement.

An injury-induced abandonment is never considered to be voluntary. State ex rel.

RoclwellInternati. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. At least as

troubling as the Appellees' over-emphasis on the role of medical records is their over-

emphasis on the requirement that Mr. Lackey seek work as evidence of his intent. Whereas

some of the case law cited by Appellees presents a factual context where job search and/or

re-employment is relevant to TTD benefits, it is generally understood that when people retire,

for whatever reason, they leave the workforce. The misplaced emphasis on a job search

requirement reminds Lackey of the discussion that appears in State ex rel. Reliance Electric

Co. v. Stevens, 2004-Ohio-1779, 2004 Ohio App. LEXIS 1582:

The issue before the commission was whether claimant had voluntarilyabandoned his former position of employment when he took an age and serviceretirement from relator in May 1999, following his knee surgery in October1998. The issue was not, as relator suggests here, whether claimant had decidedto permanently abandon the workforce when he took his retirement. Whether ornot claimant had reentered the workforce at some point in time following theretirement was irrelevant to the issue of whether the retirement was injury-induced and, thus, involuntary under Rockwell, supra.

:--Evidence of post-retirement employment would have become relevant 11r .,̂ue

commission had determined, in the first instance, that the May 1999 retirement

was not injury-induced under Rockwell. Had the commission determined in thefirst instance that the retirement was not injury-induced, claimant could stillpreserve his TTD eligibility by showing that he had reentered the workforcefollowing the retirement, as the McCoy case indicates. Clearly, given that thecommission found that the retirement was not voluntary, claimant had noburden to show that he had reentered the workforce to preserve his TTD

eligibility.

of why he retired. His knee hurt, he could not drive his truck properly, and he did notneed a doctor to tell him that. Little did he know that a letter from his attorney,accurately stating his position months before his retirement date, would be treated like somuch trash. From what Lackey can gather, Penske and the Commission would agree that

Lackey had retired involuntarily had only Dr. Bilbo, and not attomey Condit, written that

letter.

8

If the Coru-t accepts that the Commission abused its discretion by ignoring Mr.

Lackey's unrebutted contention that he retired for pain and safety reasons, in the midst of

litigation, all related to his 2001 lcnee injury, the lack of a job search is of no consequence.

CONCLUSION

For all of the foregoing reasons, the judgment of the Court of Appeals should be

reversed and this case should be remanded with instructions for the Court of Appeals to issue

a writ of mandamus ordering the Industrial Commission to vacate its previous orders and to

grant Mr. Lackey's requests for temporary total disability compensation for his post-surgery

periods of disability beginning November 16, 2005 and continuing.

Respectfully submitted,

Thomas W. Condit (#0041299)P.O. Box 12700Cincinnati, Ohio 45212(513) 731-1230(513) 731-7230 (fax)Counsel For Appellant Juan L. Lackey

9

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Reply Brief of Appellant was served by First

Class U.S. Mail this 5th day of January 2011 upon the following counsel for Appellees:

Robert M. Robenalt, Esq.Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215Counsel for Appetlee Penske

Kevin J. Reis, Esq.Assistant Attorney General150 E. Gay Street, 22"d FloorColumbus, Ohio 43215Counsel for Appellee Administrator

Thomas W. Condit, Attorney

10