a A IN THE SUPREME COURT OF OHIO State, ex rel. Honda of America Mfg., Inc Appellant, vs. Industrial Commission of Ohio and Robert Corlew, et al., Appellees. ) ) ) ) ) ) ) ) ) ) Supreme Court Case No. 12-1499 BWC Claim No. 03-886205 On Appeal From The Franklin County Court Appeals, Tenth Appellate District Case No. 11AP-528 BRIEF OF RESPONDENT-APPELLEE, ROBERT CORLEW Robert A. Minor (00183 71) Vorys, Sater, Seymour and Pease LLP 52 East Gay Street Columbus, Ohio 43215 Tel: (614) 464-6410 Fax: (614) 464-6350 Email: [email protected]Attorney for Appellant, Honda of America Mfg., Inc. FRED tEH 19 2013 CLERK OF COURT SUPREME COURT OF 014'U Patsy Thomas (0063312) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio 43215-3130 Tel: (614) 466-6696 Fax: (614) 728-9535 Email : dknapp @ag. state. ohio. us Counsel for Appellee, Industrial Commission of Ohio Frank A. Vitale (0068588) Law Office of Stanley R. Jurus 1375 Dublin Road Columbus, Ohio 43215 Tel: (614) 486-8935 Fax: (614) 486-8580 Email: [email protected]Counsel for Appellee, Robert Corlew
Transcript
a A
IN THE SUPREME COURT OF OHIO
State, ex rel. Honda of America Mfg., Inc
Appellant,
vs.
Industrial Commission of Ohioand Robert Corlew, et al.,
Appellees.
))))))))))
Supreme Court Case No. 12-1499
BWC Claim No. 03-886205
On Appeal From The Franklin County CourtAppeals, Tenth Appellate DistrictCase No. 11AP-528
BRIEF OF RESPONDENT-APPELLEE, ROBERT CORLEW
Robert A. Minor (00183 71)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetColumbus, Ohio 43215Tel: (614) 464-6410Fax: (614) 464-6350Email: [email protected]
Attorney for Appellant,Honda of America Mfg., Inc.
FREDtEH 19 2013
CLERK OF COURTSUPREME COURT OF 014'U
Patsy Thomas (0063312)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215-3130Tel: (614) 466-6696Fax: (614) 728-9535Email : dknapp @ag. state. ohio. us
Counsel for Appellee,Industrial Commission of Ohio
Frank A. Vitale (0068588)Law Office of Stanley R. Jurus1375 Dublin RoadColumbus, Ohio 43215Tel: (614) 486-8935Fax: (614) 486-8580Email: [email protected]
Counsel for Appellee,Robert Corlew
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................. ii
I. STATEMENT OF THE ISSSUE ..................................................... 1
II. STATEMENT OF THE CASE ....................................................... 1
III. STATEMENT OF THE FACTS ...................................................... 2
IV. LAW AND ARGUMENT ............................................................. 5
Respondent Commission did not abuse its discretion in findingthat Respondent Mr. Corlew was entitled to TTD by rejectingRelator Honda's argument that he did not suffer a claimrelated economic loss. Although Relator Honda asserts it is notmaking a voluntary abandonment argument, it has misappliedvoluntary abandonment case law and language to assert itsposition that Mr. Corlew did not sustain economic loss . ............ 6
State ex rel. Bing v. Indus. Comm. (1991), 61 Ohio St.3d 424 .............................8
State ex rel. Blabac v. Indus. Comm. ( 1990), 87 Ohio St.3d 113 ............................7
State ex rel. Carkido v. Indus. Comm., 2011-Ohio-4051(10th Dist., August 16, 2011) ................................................ 9, 10, 11
State ex rel. Chrysler Corp. v. Indus. Comm. (1998), 81 Ohio St.3d 158 ................8
State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster(1986), 22 Ohio St.3d 191 .............................................................5
State ex rel. Corman v. Allied Holdings, Inc. (2012), 132 Ohio St.3d 202.........11, 12
State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm.(1989), 45 Ohio St.3d 381 .......................................................... 8,9
State ex rel. Haylette v. Ohio Bureau of Workers' Comp. (1999), 87 OhioSt.3d 325 ..............................................................................:....5
State ex rel. Jeany v. Indus. Comm., Franklin App. No. 02AP-159,........................................................52002-Ohio-6029 . . . . . . . . . . . . . . . . . .
State ex rel. McCoy v. Dedicated Transport, Inc. (2002), 97 Ohio St.3d 25...........6, 7
State ex rel. Moore v. Malone (2002), 96 Ohio St.3d 417 ....................................5
State ex rel. Nye v. Indus. Comm. (1986), 22 Ohio St.3d 75 .................................7
State ex rel. Pierron v. Indus. Comm. (2008), 120 Ohio St.3d 40 .....................11, 12
State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.3d 63 ................................7
State ex rel. Rubin v: Indus. Comm. (1938), 134 Ohio St. 12 ................................6
State ex rel. Staton v. Indus. Comm.. (2001), 91 Ohio St.3d 407 ..........................10
State ex rel. Taylor v. Indus. Comm.. (2002), 150 Ohio App.3d 314 ......................5
ii
State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165 ...........................9
iii
I. STATEMENT OF THE ISSUE:
This mandamus action arises from an order of the Industrial Commission of Ohio that
within its discretion awarded Appellee Robert Corlew temporary total disability compensation
based upon a finding that his claim allowances resulted in his involuntary departure of
employment and once again rendered him temporarily totally disabled based upon claim related
surgery and rejected Relator-Honda's defenses.
II. STATEMENT OF THE CASE:
Respondent-Appellee, Robert Corlew (Mr. Corlew), received an injury in the course and
scope of and arising out of his employment with Relator-Appellant, Honda of America Mfg., Inc.
("Honda"). The claim was recognized for injuries and compensation was authorized. Pursuant
to statute, Mr. Corlew filed a request to reinstate temporary total disability compensation ("TTD")
from the date he underwent claim related surgery on December 29, 2009 and to continue. Prior
to Mr. Corlew undergoing claim related surgery, he received various periods of TTD until it was
terminated by Respondent-Appellee Industrial Commission of Ohio ("Commission") based upon
a finding of maximum medical improvement ("MMI") on February 29, 2009. Mr. Corlew was
provided claim related restrictions that precluded him from working in any capacity thus he was
unable to work and suffered an economic loss. The Commission heard Mr. Corlew's request and
reinstated TTD. It is upon the decision of the Commission that Honda filed a request for
mandamus with the Court of Appeals, Tenth Appellate District. The matter was heard by a
Magistrate who recommended that the writ be denied. The Full Court reviewed the decision of
the Magistrate and confirmed the denial of Honda's request for writ of mandamus finding Mr.
Corlew was entitled to TTD. It is from that decision that Honda has filed the notice of appeal
with this Honorable Court.
1
III. STATEMENT OF THE FACTS:
This case arises out of a claim under the Ohio Workers' Compensation Act. On
December 5, 2003 Mr. Corlew was injured in the course of and arising out of his employment at
Honda as a production associate. (Stip. 105) His injury was assigned Claim No. 03-886205 and
was ultimately recognized for "contusion of right wrist, right wrist tendonitis, carpi ulnaris sub
sheath tear, trifibrocartilage tear and anxiety disorder. (Stip. 1) Mr. Corlew received various
periods of TTD until February 29, 2008 when District Hearing Officer ("DHO") order of the
Commission determined that the claim allowances reached MMI. (Stip. 95)
At the time Mr. Corlew's TTD was terminated, he treated with Dr. Thompson at
HealthPartners, Inc. who certified his disability. On January 31, 2008, Dr. Thompson completed
a C84 disability form providing his opinion that claim allowances precluded all employment by
answering no to the question in box seven, "[i]s the injured worker able to return to other
employment including light duty, alternative work, modified work or transitional work?" (Stip.
99) Dr. Thompson continued to extend Mr. Corlew's restrictions that precluded all employment
when he re-examined him on February 28, 2008 (Stip. 97) and March 6, 2008. (Stip 94) On
March 6, 2008, Dr. Thompson indicated that he was referring Mr. Corlew to Dr. Stuzman, a hand
surgeon for further treatment recommendations. (Stip. 94)
Mr. Corlew became dissatisfied with Dr. Thompson in March 2008, and requested Dr.
Charles B. May to become his physician of record. Dr. May referred Mr. Corlew to Dr.
Stutzman, who evaluated him on July 28, 2008. (Stip. 56-57) Dr. Stutzman opined that Mr.
Corlew's right wrist necessitated corrective surgery. Honda originally disallowed the request for
surgery pending a defense medical examination. (Stip. 62) Dr. Gula performed a defense
medical evaluation of Mr. Corlew on April 29, 2009 and agreed with Dr. Stutzman that the
2
proposed surgical procedure was "medically necessary and appropriate for the allowed
conditions in this claim." (Stip. 58-61) On May 18, 2009, Honda approved surgery (Stip. 50-52)
which was completed by Dr. Stutzman on December 29, 2009. (Stip. 44-46)
Prior to Mr. Corlew undergoing surgery, it was determined that he was medically unfit to
return to his former position of employment, and was placed in Honda's Medically Inactive
Transition Program ("MIT") in December 2006 in an effort to return to work at Honda and
maintain his status as an employee. The purpose of the MIT program is to facilitate an
employee's return to employment at Honda. Mr. Corlew specifically agreed and complied with
all of the MIT program requirements that include, "submission to all MIT-related care,
rehabilitation, case management, medical treatments and appointments, and attendance at all
MIT-related meetings." (Stip. 73-74) Upon meeting all of the MIT requirements and after 130
weeks of disability, Honda specifically determined that Mr. Corlew is not LTD "any occupation"
eligible and in accordance with the plan his employment was going to be terminated by Honda
on December 31, 2008. (Stip. 79) In order to avoid being terminated by Honda, Mr. Corlew
signed a separation agreement on December 16, 2008. (Stip. 83-85)
As a result of his December 29, 2009 surgery, Mr. Corlew was again TTD. He filed a
motion with the Ohio Bureau of Workers' Compensation on February 9, 2010 requesting TTD
be awarded from date of surgery December 29, 2010 and to continue. (Stip. 26) Mr. Corlew
submitted C-84 disability forms completed by Dr. May dated January 14, 2010 (Stip. 27) and Dr.
Stutzman dated January 21, 2010. (Stip. 29) On April 29, 2010, DHO order awarded TTD.
(Stip. 22) Honda appealed DHO decision and Staff Hearing Officer ("SHO") order date June 24,
2010 affirmed the award of TTD. (Stip. 20-21) Honda filed a third level appeal, which the
Commission accepted for hearing. (Stip. 13)
3
On August 12, 2010, the full Commission heard Honda's appeal. (Stip. 1-3) The
Commission's order stated in pertinent part:
The Injured Worker testified that he retired from his former position because ofthe industrial injury. Further, the Injured Worker testified that he desires to returnto the workforce, but that his industrial injury precludes him from doing so. TheCommission finds these statements persuasive; the Injured Worker neithervoluntarily retired, nor voluntarily abandoned the workforce.
(Stip. 2) In addition, the Commission concluded based upon Honda's admissions:
The Employer clarified its position, stating it is not making any argument relatedto voluntary abandonment, refusal of a good faith job offer, nor voluntaryretirement. The Employer also stated that it is not arguing that the InjuredWorker continued to be at maximum medical improvement on 12/29/09. TheEmployer conceded that, medically, the Injured Worker was again temporarilytotally disabled as a result of the surgery performed on that date.
(Stip. 1-3) The Commission within its discretion relied upon some medical evidence that Mr.
Corlew was once again rendered TTD as a result of claim related surgery; determined that Mr.
Corlew did not voluntarily retire or abandoned the workforce; and rejected Honda's argument of
"no economic loss". (Stip. 1-3)
It is from the order of the Commission that Honda filed a complaint of mandamus in the
Court of Appeals, Tenth Appellate District. After submission of briefs this matter was heard on
oral argument by a Magistrate assigned by the Court of Appeals. The Magistrate rendered a
decision on March 21, 2012 denying Honda's request for writ of mandamus. Honda then filed
an objection to the Magistrate's decision. That mater was heard by the Full Court who issued a
decision on July 24, 2012, denying Honda's objections to the Magistrate's decision and
affirming the same. It is from that decision that Honda has filed this Notice of Appeal to this
Honorable Court.
4
IV. LAW AND ARGUMENT:
Standard of Review.
"A writ of mandamus is an extraordinary remedy." State ex rel. Haylette v. Ohio Bureau
of Workers' Comp. (1999), 87 Ohio St.3d 325, 334. In order to be entitled to a writ of
mandamus, a relator must establish: (1) a clear legal right to the requested relief, (2) a
corresponding clear and legal duty on the part of the Commission, and (3) the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Moore v. Malone (2002), 96
Ohio St.3d 417, 420. "A clear legal right to a writ of mandamus exists where the relator shows
that the Commission abused its discretion by entering an order which is not supported by any
evidence in the record." State ex rel. Taylor v. Indus. Comm. (2002), 150 Ohio App.3d 314. An
abuse of discretion is defined as:
[n] ot merely error in judgment, but perversity of will, passion, prejudice, partialityor moral delinquency. An abuse of discretion will be found only where thereexists no evidence upon which the Commission could have based its decision.
State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster (1986), 22 Ohio St.3d 191,
193. "In mandamus, relator has the burden of proof to demonstrate an abuse of discretion."
State ex rel. Jeany v. Indus. Comm., Franklin App. No. 02AP-159, 2002-Ohio-6029, at 552.
Here, Honda cannot meet this burden as the Commission did not abuse its discretion as the order
is supported by some evidence and it did not make any mistakes of fact or law.
5
Proposition of Law:
Respondent Commission did not abuse its discretion in finding that Respondent Mr.
Corlew was entitled to TTD by rejecting Relator Honda's argument that he did not
suffer a claim related economic loss. Although Relator Honda asserts it is notmaking a voluntary abandonment argument, it has misapplied voluntary
abandonment case law and language to assert its position that Mr. Corlew did not
sustain economic loss.
Honda asserts that Mr. Corlew did not suffer an economic loss entitling him to TTD
when he underwent claim approved surgery on December 29, 2009. Mr. Corlew previously
received TTD until it was terminated by the Commission on February 29, 2008 based upon a
finding of MMI. It is important to note that at the time Mr. Corlew's TTD was terminated he
was provided claim related restrictions that precluded him from returning to gLny employment.
The stipulated record reflects that those restrictions were never changed through the date of
surgery. Thus, it cannot be disputed that Mr. Corlew sustained loss of earnings as a result of his
industrial injury.
It is well accepted that in order for any benefits to be compensable, "a causal relationship
must exist between the employee's industrial injury and the loss that the requesting benefit is
designed to compensate." State ex rel. McCoy v. Dedicated Transport, Inc. (2002), 97 Ohio
St.3d 25, 33. However, Honda fails to address the meaning of loss of earnings as it relates to an
injured worker's entitlement to TTD. This Court defined loss in context of TTD, simply as a
"loss of wages". State ex rel. Rubin v. Indus. Comm. (1938), 134 Ohio St. 12, 16. Since Rubin,
this Court has addressed loss of earnings to mean that:
The claimant must show not only that he or she lacks the medical capability ofreturning to the former position of employment but a cause-and-effect relationshipexists between the industrial injury and an actual loss of earnings. In other words,it must appear that, but for the industrial injury, the claimant would be gainfully
employed.
6
McCoy at 33. Moreover, this Court addressed loss of earnings by finding:
[t]emporary total disability compensation compensates for loss of earnings. State
ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.3d 63, 23 O.O. 3d 518, 433N.E. 2d 586. Accordingly, TTC [TTD] is unavailable to one who has returned to
work, i.e., is earning wages.
State ex rel. Blabac v. Indus. Comm. ( 1990), 87 Ohio St.3d 113, 115. In Blabac, the injured
worker was unable to continue working at his former position of employment at Titanium Metals
Corporation and moved for TTD. However, Mr. Blabac was employed as a scuba instructor
during the period he requested TTD. In denying Mr. Blacbac's request for TTD, this Court
found that granting an award:
would permit the payment of temporary total disability benefits to a claimant whohas chosen to return to full-time work at a job other than his former employment.In such a case, the claimant is no longer suffering the loss of earnings for whichtemporary total disability benefits are intended to compensate.
Id. at 116, citing State ex rel. Nye v. Indus. Comm. (1986), 22 Ohio St.3d 75.
Clearly, loss of earnings in the context of TTD simply places the requirement that an
injured worker is not working, (i.e. not earning any wages during the same period he/she receives
TTD) and that the inability to work is related to the claim allowances. Contrary to Honda's
assertions, there are no requirements that an injured worker must work up to the date of surgery
(i.e. date TTD is to begin) in order to qualify for TTD. Mr. Corlew unquestionably suffered loss
of earnings related to his industrial injury as it caused his departure from employment and
prevented him from working in any capacity. Honda conceded at the Commission hearing that
Mr. Corlew met the medical criteria to receive TTD. (Stip 2) Thus, there is no dispute that Mr.
Corlew's claim allowances prevented him from performing the job duties required of his former
position of employment that resulted in his loss of earnings.
7
Although the Commission made a prior finding of MMI as of February 29, 2009, the
Commission retains continuing jurisdiction for reinstatement of TTD if new and changed
circumstances exist. State ex rel. Bing v. Indus. Comm. (1991), 61 Ohio St.3d 424, 426. This
Court held that a "flair up" or an exacerbation of an allowed condition would qualify as a new
and changed circumstance that would support a finding of a new period of TTD. Id at 427. In
addition, this Court held that a claim related surgery can be evidence of new and changed
circumstances sufficient to reinstate TTD after a previous declaration of MMI. State ex Nel.
Chrysler Corp. v. Indus. Comm. (1998), 81 Ohio St.3d 158, 169. It is undisputed that Mr.
Corlew's claim allowances rendered him TTD once again on December 29, 2009 as Honda
agreed before the Commission that, "medically the Injured Worker was again temporarily totally
disabled as a result of the surgery performed on that date." (Stip. 2). Additionally, the
Commission relied upon some medical to support its finding awarding TTD.
In its order granting TTD, the Commission specifically analyzed whether there were any
defenses that would bar compensation including voluntary abandonment and found none exists.
At the Commission hearing, Honda advised it that "is not making any argument related to
voluntary abandonment, refusal of good faith job offer, nor voluntary retirement." (Stip 2)
However, it appears that is now making a voluntary abandonment argument by asserting:
[a]t the time of his surgery on December 29, 2009, Mr. Corlew had been out ofthe workforce for over a year, was not actively looking for a job and evidenced nointention of re-entering the workforce. Thus, he did not suffer an economic loss
entitling him to TTD.
(Honda brief at pg. 6) Nevertheless, Mr. Corlew did not voluntarily abandon the workforce. The
question of voluntary abandonment is a factual question, centered on the +injured worker's intent
at the time of departure. State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm. (1989),
8
45 Ohio St.3d 381, 383. Furthermore, the determination of the injured worker's intent is a
factual question to be made by the Commission. Id.
Mr. Corlew testified before the Commissioners, "that he retired from his former position
because of the industrial injury." (Stip 2). The Commission noted, "the injured worker testified
that he desires to return to the workforce, but that his industrial injury precludes him from doing
so." (Stip 2) The Commission found Mr. Corlew's testimony persuasive that he neither
voluntarily retired, nor voluntarily abandoned the workforce. (Stip 2) Mr. Corlew's testimony is
some evidence that his departure from employment was involuntary. "Questions of credibility
and the weight to be given evidence are clearly within the commission's discretionary powers of
fact finding." State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165. Therefore, the
Commission did not abuse its discretion in finding Mr. Corlew's departure involuntary.
In addition to Mr. Corlew's testimony, the medical records and Honda's concession
undisputedly reflects that Mr. Corlew's departure from employment was a direct result of his
industrial injury. Most importantly, Mr. Corlew's physician provided claim related restrictions
that prevented him from performing any job. It is well settled that "a claimant can abandon a
former position of employment or remove themselves from the workforce only if they have the
physical capacity for employment at the time of the abandonment or removal." State ex rel.
Corman v. Allied Holdings, Inc., Franklin App. No. 10AP-38, 2010-Ohio-5153 at ¶ 52. As Mr.
Corlew was provided claim related restrictions that precluded all forms of employment, he
lacked the ability to voluntarily abandon his former position of employment or remove himself
from the workforce.
Honda relies heavily upon State ex rel Carkido v. Indus. Comm., 2011-Ohio-4051 (10t'
Dist., August 16, 2011) to support of its position. However, the facts in Carkido are clearly
9
distinguishable from the instant case. In Carkido, the injured worker sustained a worked-related
injury on October 14, 1998 and her claim was recognized for left knee conditions. Following
claim related surgery, she returned to work until 1999, when she was involved in a serious motor
vehicle ("MVA") that resulted in her departure from work. Id. at ¶ 4. She returned to work for a
majority of 2002, and ultimately left the workforce in 2003. In 2006, injured worker's claim was
amended to include "aggravation of pre-existing osteoarthritis of the left knee." The
Commission approved left knee surgery in 2008 that was performed in May 2009. Id. at ¶ 20.
Injured worker moved for TTD based upon surgery that was denied by the Commission
based solely upon a finding of voluntary abandonment. SHO noted that Ms. Carkido did not
submit any medical evidence and/or documentation that her departures from work in 1999 and
2003 were a result of the allowed conditions in her workers' compensation claim. The Tenth
District Court of Appeals specifically concluded that "there is no medical evidence that
demonstrates relator [injured worker] departed from the work force due to allowed
conditions . . ." Id. at ¶ 6.
In fact, the Tenth District Court of Appeals determined that medical evidence supports
the Commission's decision that Ms. Carkido left the work force as a result of non-allowed
conditions caused by her MVA that is unrelated to her workers' compensation claim. Id. at ¶ 4.
It cited this Court's decision in State ex rel. Staton v. Indus. Comm. (2001), 91 Ohio St.3d 407,
"that a claimant who voluntarily leaves the work force due to non-allowed conditions cannot
later collect TTD compensation." A review of the Carkido decision reveals that the sole reason
injured worker was denied TTD was based upon the determination that her departure from
employment was not a result of her industrial injury and therefore it was a voluntary
abandonment.
10
However, in this case, unlike the facts in Carkido, it is undisputed that Mr. Corlew's
industrial injury caused his departure from work. Unlike Carkido, where the Commission made
the finding of voluntarily abandonment employment, the Commission in this case made the
finding that Mr. Corlew's departure was involuntary. Unlike Carikido, Mr. Corlew was
provided claim related restrictions that precluded M employment before his prior period of
TTD was terminated through the date he had claim related surgery. Thus, as the Carkido case is
based upon clearly distinguishable facts, it is irrelevant.
Honda also asserts this Court's decision in State ex rel. Corman v. Allied Holdings, Inc.,
(2012), 132 Ohio St.3d 202, 2012-Ohio-2579 is very similar to this case. In reality, the facts are
easily distinguished. In Corman, the injured worker sustained a work injury in 2002. He retired
from employer Allied Holdings, Inc. a year later and never returned to work again. Unlike the
present case, the Commission made the factual finding that "Corman's retirement was voluntary
and unrelated to his injury." Id. at ¶ 2. In addition, there was a finding that "[tJhe record
contains no evidence that he was medically incapable of other work." Id. (emphasis) Finally,
there was a finding that Corman did not seek other work. This Court reviewed it previous
decision in State ex rel. Pierron v. Indus. Comm. (2008), 120 Ohio St.3d 40 and determined that
there were important similarities. Specifically, this Court noted that the Commission concluded
that the injured workers in both cases failed to provide claim related restrictions that precluded
all employment and neither made a credible effort to return to the workforce. Corman at ¶ 6. As
such, the Commission in both cases determined that the injured workers intended to permanently
leave the work force. Id.
As the injured worker in Corman retained the ability to return to the workforce but failed
to make an effort to return to work, this Court held that "he eliminated the possibility of, or
11
potential for, lost wages." Id at ¶ 7. Therefore, he was precluded from asserting "lost income
due to his industrial injury." Id.
Unlike the injured workers in the Corman and Pierron cases, Mr. Corlew was provided
claim related restrictions that eliminated the possibility of returning to the workforce. This is a
critically distinguishing factor as this Court specifically noted that the injured workers in
Corman and Pierron retained the capacity for other employment, but chose to work no further
and therefore they removed themselves from the active work force. As Mr. Corlew did not
possess the capacity to return to the workforce because of his industrial injury, he unlike the
injured workers in Corman and Pierron did not have the option of deciding whether to return to
work.
The record reflects that Mr. Corlew clearly sustained loss of earnings directly related to
his industrial injury during the periods of TTD awarded. Honda does not dispute that his
industrial injury directly caused Mr. Corlew's departure from the workforce. The Commission
within its discretion determined that Mr. Corlew did not intend to abandon the workforce. Mr.
Corlew was provided claim related restrictions that that removed him entirely from the
workforce. As his claim allowances precluded all employment, he clearly suffered claim related
loss of earnings.
Its Honda's position that as Mr. Corlew was not working or looking for work following
his involuntary retirement, he intended to abandon the entire work force. Honda's position is in
error and essentially would divest the Commission of its discretion in determining issues of fact
when considering questions of voluntary abandonment as previously provided by this Court.
12
Mr. Corlew clearly did not make a lifestyle choice to retire and not work and the
Commission did not abuse its discretion when it determined his departure from employment was
involuntary and that he met the necessary requirements for TTD.
13
3
V. CONCLUSION:
Based upon the foregoing, the Commission's order of August 12, 2010 does not contain
an abuse of discretion when it awarded Mr. Corlew TTD as some evidence supports its decision.
The Magistrate of the Tenth District Court of Appeals and the Full Court of Appeals also
properly evaluated the facts of this case and properly issued decisions conforming to the statute
and the facts of this case. As such, Mr. Corlew respectfully requests that Honda's request for
writ of mandamus be denied.
Respectfully submitted,
Frank A. Vitale (00 8588Law Office of Stanley R. Jurus1375 Dublin RoadColumbus, Ohio 43215Tel: (614) 486-8935Fax: (614) 486-8580Email: s.iurusn,att.net
Attorney for Appellee,Robert Corlew
14
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Brief of Appellee, Robert Corlew,
was served via regular U.S. Mail this 19th day of February, 2013, upon the following:
Robert A. MinorVorys, Sater, Seymour and Pease LLP52 East Gay StreetColumbus Ohio 43215
Frank A. Vitale (0068588)Law Office of Stanley R. Jurus1375 Dublin RoadColumbus, Ohio 43215Tel: (614) 486-8935Fax: (614) 486-8580Email: s jurusn,att.net
