I1YUJe '*uprleme Court of Obi

Transcription

1 I1YUJe '*uprleme Court of Obi STATE OF OHIO, ex rel. VIKING FORGE CORPORATIOIV, Relator-Appellant, vs. INDUSTRIAL COMMISSION OF OHIO, et a1., Respondents-Appellees. Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 11 AP-226 MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO CI-IRISTOPHER J. SHAW ( ) 1487 Belle Avenue Lakewood, Ohio (216) Tel. (216) Fax Cjshawlaw@cox.net Counsel for Appellant, Viking Forge Corp. MICHAEL DEWINE ( ) Ohio A.ttorney General ANDREW ALATIS ( ) Assistant Attoriiey General 150 East Gay Street, 22nd Floor Columbus, Ohio (614) Tel. (866) Fax Andrew.Al atis@ohioattorney0eneral. gov Counsel for Appellee, Industrial Commission of Ohio MARK S. WEINBERGER ( ) Gibson & LoNNTy 234 Portage Trail PQBox535 Cuyahoga Fa1ls, Ohio (330) Tel. (330) Fax Michellecngr@yahoo.com < <>^^;.- _...,. ^.;-... Counsel for Appellee, Kelly Perry

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODU CTION STATEMENT OF THE FACTS AND CASE... 1 ARGUM:ENT Appellee's Proposition of Law No The Industrial Commission does not abuse its discretion in granting an injured worker TTD compensation when its decision is suported by some evidence , Appellee's Proposition of Law No. 2 : The determination of whether an injured worker has voluntarily abandoned his former position of employment is a matter within the discretion of the Industrial Commission and such determination will not be disturbed in mandamus absent an abuse of the Industrial Commission's diseretion Appellee's Proposition of Law No. 3: The Industrial Commission does not err when it grants TTD compensation consistent with State ex rel. Mitchell v. Robbins & Myers, Inc CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Cases State ex rel. Allerton v. Indais. Con2m. 69 Ohio St.2d 396; 433 N.E.2d 396 ( 1982)... 6 State ex rel..alxnendingey v. Indus. Corrarn. 10th Dist. Franklin No. 12AP State ex rel. Baker v. Indus. Comm. 89 Ohio St.3d 376; 732 N.E.2d 355 (2000) State ex rel. Burley v. Coil Packing, Inc. 31 Ohio St.3d 18; 508 N.E.2d 936 (1987)... 11, 14 State ex rel. C'ommercial Lovelace!l%fotor Freight v. Lancaster 22 Ohio St.3d 191; 489 N,E.2d 288 (1986) State ex rel. Consolidation Coal Co. v, Indus, Comm. 58 Ohio St.2d 127; 388 N.E.2d 1382 (1979), ,, State ex r el. Cordray v. Inclus. Comm. 54 Ohio St.3d 99; 561 N.E.2d 917 (1990) State ex rel..l)onijancic v. Indus. Comm. 69 Ohio St.3d 693; 635 N.E.2d 372 (1994) State ex rel. Elliott v: Indus. Comm. 26 Ohio St.3d 76; 497 N.E.2d 70 (1986) State ex rel. Louisiana-Pacific C'orporcrtion v, Indus. Comm. 72 Ohio St.3d 401; 650 N.E.2d 469 (1995)... 10, 11, 13 State ex rel. McKnabb v. Indus. Comm. 92 Ohio St.3d. 559; 752 N.E.2d 254 (2001) , 11 State ex rel. Mitchell v. Robbins & Myers, Inc. 6 Ohio St.3d 481; N.E.2d 721 (1983)... 13,14 State ex rel. Mobley v. Indus. Comm. 78 Ohio St.3d 579; 679 N.E.2d 300 (1997) State ex r el, ltlfoss v. Indus. Comm. 75 Ohio St.3d 414; 662 N.E.2d 364 (1996)... 8 ii

4 State ex rel. h7oll v. Indus. Comm. 57 Ohio St.3d 203; 567 N.E.2d 245 (1991) State ex rel. Ohio Treatment Alliance v. Paasewe 99 Ohio St.3d 18; 788 NE.2d 1035 (2003) State ex rel. Pass v. C.S.T. Extraction Co. 74 Ohio St.3d 373; 658 N.E.2d 1055 (1996)... 6 State ex rel. Pressley v. Indus. Comm. 11 Ohio St.2d 141; 228 N.E.2d 631 (1967)..., State ex rel. Quarto Mining Co. v. Foreman 79 Ohio St.3d 78; 679 N.E.2d 706 (1997) State ex rel. Ramirez v. Indus. Comm. 69 Ohio St.2d 630; 433 N.E.2d 586 (1982)......, ,... 6 State ex Yel. Scouler v. Indus, Comm. 10th Dist. Franklin App. 06AP-325, 2007-Ohio State ex rel. Smith v. Superi.or's Brand Mwats, Inc. 76 Ohio St.3d 408; 667 N.E.2d 1217 (1996).., State ex rel. Stephenson v. Indus. Comm. 31 Ohio St.3d 167; 509 N.E.2d 946 (1987)... 6, 9, 13 State ex rel. T eece v. Indus. Comm. 68 Ohio St.2d 165; 429 NE.2d 433 (1981) State ex rel. Thomas v. Indus. Comm. 42 Ohio St.3d 31; 536 N.E.2d 1159 (1989) State ex rel. Yahtie City Dept. Stores v. Indus. Comm. 97 Ohio St.3d 187; 777 N.E.3d 251 (2002-Ohio-5810) State ex rel. Ifaddle v. Indus. Comm. 67 Ohio St.3d 452; 619 N,E.2d 1018 (1993) ,9 Other Authorities R.C. 4123,56(A) T11

5 INTRODUCTION This case arose as an original action in mandamus in the Tenth District Court of Appeals. The Court of Appeals denied the request of Appellant, Viking Forge Corp. ("Viking"), for a writ of mandamus ordering the Appellee, Industrial Commission of Ohio ("commission''), to vacate its June 19, 2009, order granting Appellee's, Kelly Perry ("Perry"), request for temporary total disability ("TTD") compensation. For the following reasons, and consistent with thewell-reasotled decision of the Court of Appeals, Viking's requested writ of mandamus must be denied and the Court of Appeals decision affirmed. STATEMENT OF THE FACTS AND CASE On September 26, 2008, Perry was injured in the course of and arising out of his employment with Viking. (Viking's Appendix at page 41., hereinafter "App. _"). His claim was allowed for "amputation distal, left thumb, amputation tip, right thumb, fracture middle/proximal phalanx, hand-open, left thumb, and open wound finger-complicated, left thumb." (App. 36). On the day of his injury; Perry was taken to an urgent care location but then trans.ferred to a hospital emergency room. (Second Supplement to Appellee's Brief at page 52; hereinafter "SS. _"). Perry sustained serious injuries to his right thunlb and his left thumb was amputated. (SS. 54). On the same day of his injury, Drew Engle, M.D,, performed surgery to repair both the right and left thumb. Id. Dr. Engle found that Perry was totally disabled from working from the date of his injury through November 30, (SS. 2-5). Based on Dr. Engle's restrictions of no use of the left hand and no lifting over 10 pounds, Peny returned to light duty on December 1, (Supplement to Appellant's Brief at pages 6-7; hereinafter "S. _"), Also on December 1, 1

6 2008, Dr. Engle requested an additional allowance for comminuted open fracture left thumb (diagnosis code ) and complicated laceration left thumb (diagnosis code 883.1), which were approved by Viking on February 25, (SS. 56, 60). In January 2009, Dr. Engle requested silicone digicaps to protect the ends of Perry's finger stumps. (S. 57). Dr. Engle progressively decreased Perry's lifting restrictions and ultimately permitted Perry to return to work without restrictions on February 4, (S. 9), During his gradual return to fully duty, Perry continued to report numbness and occasional pain and discomfort. (S. 20). Even when Dr. Engle returned him to full duty, Dr. Engle noted that Perry continued to experience skin thickening, pain, and numbness. (S. 21). Dr. Engle requested a prosthetic left thumb on February 13, 2009 due to the functional shortening of Perry's left thumb. (SS. 59, 61). Ultimately, Viking's managed care organization approved the left thumb prosthesis, although well after the commission had adjudicated the TTD issue, (SS. 63). Contrary to Viking's interpretatiori, Dr. Engle did not release Perry from all medical care on February 18, Rather, Dr. Engle stated that, "no further intervention is anticipated from my [surgical] standpoint." (S. 21). Moreover, Dr. Engle anticipated that Perry would continue treatment with an occupational specialist and possible receipt of a prosthetic thumb. Id. Dr. Engle saw Perry on March 18, 2009, after his alleged release from care, for continuing discomfort and "phantom symptomology... where he feels like he is grabbing for something and he does not have sufficient Iength to do the task." (S. 22), Dr. Engle then referred Perry to the occupational medicine division of his practice. Id. Perry's occupational medicine consultation was approved on March 31, 2009, and he consulted with Steven Rodgers, M.D., seven days later, on April 7, (SS. 64). At that time, Perry filed a change of physician form from Dr. Engle 2

7 to Dr. Rodgers. (S. 17), Dr. Rodgers found that Perry had continued significant pain in his right thumb but little pain in his left thumb unless it was bumped. When his left thumb was bumped he suffered severe pain and hypersensitivity. (SS. 64). Dr. Rodgers took Perry off work with restricted duty of no use of his left hand. (SS. 66). He certified Perry temporarily and totally disabled starting on April 7, 2009, and continuing. (S. 18). Dr. Rodger recommended over-thecounter medications for pain, continued pursuit of the request for a left thumb prosthetic, a functional capacity evaluation for bilateral upper extremities and vocational rehabilitation. (SS. 65). The functional capacity evaluation and vocational rehabilitation was approved three days after Dr. Rodgers' request. (SS. 49). 'fhese restrictions coaitinued through June 12, (SS ). Perry requested TTD compensation starting on April 7, At the request of the Bureau of Workers' Compensation ("bureau"), Gregory Jewell, M.D., reviewed Perry's medical history. He opined that Perry was not temporarily and totally disabled because, despite his ability to return to a light duty job, he had no job to which he could return. Dr. Jewell noted that the hand surgeon did not believe additional therapy was necessary and released him from care. (SS. 50). A district hearing officer ("DHO") for the commission found that Perry was not entitled to TTD compensation because he had returned to his former employment until his termination one month before the disability period. (App. 36). However, the Dl-lO did not consider voluntary abandonment. Id. The DHO relied on Dr. Jewell's review, which noted that Perry was functioning reasonably well but had no job to which he could return. (App. 37). The DHO detailed Perry's gradual return to work at full duty. Id. unpersuasive to support the requested period of disability. The DHO found that the evidence was Id. Perry appealed. 3

8 A staff hearing officer ("SHO") for the commission vacated the DHO order and granted Perry TTD compensation for the requested period and continuing upon continued medical proof. (App. 39). The SHO relied on Perry's testimony that as a"ford [sic: forge] press operator... there were three positions on this press and that at the time of the injury as far as light duty was concerned he was working within his restrictions." Id. The SHO accepted Perry's explanation that he had not violated a written work rule to cause the incident that resulted in his discharge. 'I'he SHO found that Perry "was working on the second position when...a coworker came up and prohibited him from moving a piece of the equipment out of the way which was destroyed by the press that he was operating." Id. The SHO concluded that Perry did not violate a work rule to cause the incident and, despite the employer's argument, that Perry did not abandon his employment. Id. I'he SHO further relied on the medical documentation provided by Dr. Rodgers and Perry's testimony. (App. 40). The SHO noted that, while "Dr. Engle could no longer provide any services for [Perry, he] at that time went to see Dr. Rodgers who indicated in a C-84 that [Perry] was still temporarily and totally disabled." Id. The commission refused Viking's appeal. (App. 41). Viking requested reconsideration. With that request, Viking submitted additional evidence, including a letter from its Human Resources Manager, a job description, certain pages of the Policies and Procedures Manual of Viking, and Perry's acknowledgement of receipt of the manual. (S ). The commission denied Viking's reconsideration request. (App ). Viking then filed the underlying action in mandamus in the Court of Appeals, asserting that the commission's orders are invalid. An appointed magistrate for the Court of Appeals found Perry's testimony was some evidence to support the commission's finding that he did not voluntarily abandon his employment. (App , ^*.[ 57-69). However, the magistrate also 4

9 found that the April 7, 2007 office note and C-84 from Dr. Rodgers was not some evidence to support 'rtd compensation. (.App. 30, 32-34, ^J 57, 70-81). Based on these findings, the magistrate recommended that the requested wtrit be granted. (App. 30, 35, ^ 58, 81). All parties filed objections. (App. 8, ^ 2). 'I'he Court of Appeals overruled Viking's objection that the commission abused its discretion in finding Perry did not voluntarv abandon his employment. (App. 8, 4-5). The Court of Appeals also overruled the first objection of Perry and the commission that the magistrate failed to include certain pertinezlt findings of fact. (App. 3-4, T7-11). Perry's and the commission's third objection, that "Dr. Rodgers' finding that Perry had increased pain and loss of sensation on the right thumb and hypersensitivity of the left thumb along with the doctor's intended actions for treatment supports the conumission's award of a new period of temporary total disability following Perry's return to work," was sustained by the Court of Appeals. (App. 9-12, ^j 9, 12-18). The Court of Appeals then ruled that, in sustaining respondents' third objection, their second objection was moot. (App. 12,^ 19). Viking's request for a writ of mandamus was denied by the Cotrrt of Appeals. (App. 12, 20). Viking now appeals to this Court. ARGUMENT For a party to obtain a writ of mandamus, the party must demonstrate that it has a clear legal right to the relief sought and that the commission had a clear legal duty to provide such relief. State ex i el. Pressley v. Indus. Comfn., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967). To establish a basis for mandamus relief, the petitioner must show that the commission acted contrary to law or abused its discretion by issuing an order that is not supported by some evidence in the administrative record. State ex rel. Elliott v. Indus. Coman., 26 Ohio St.3d 76, 78-79, 497 N.E.2d 70, 72 (1986). 5

10 The determination of disputed facts is within the final jurisdiction of the commission, subject to cot-rection in mandamus upon a showing of a gross abuse of discretion. State ex rel. Allerton v. Indus. Comm., 69 Ohio St.2d 396, 433 N.E.2d 396 (1982). It is fundamental that a writ of mandamus will iiot be granted if an order of the commission is supported by "some evidence." State ex rel. Pass v. C.S.T Extraction Co., 74 Ohio St.3d 373, 376, 1996-Ohio-126, 658 N.E.2d 1055 (1996). ln State ex rel. Stephenson v. Indus. Comin., 31 Ohio St.3d 167, 170, 509 N.E.2d 946, 949 (1987), the Ohio Supreme Court stated: It is basic law, without need of citation, that the Industrial Commission has considerable discretion in the performance of its duties; that its actions are presumed to be valid and performed in good faith and judgment, unless shown to be otherwise; and that so long as there is some evidence in the file to support its findings and orders, this court will not overturn such. An abuse of discretion has been defined as "not merely error of judgment but perversity of will, passion, prejudice, partiality, or moral delinquency. [citation omitted.] An abuse of discretion will be found only when there exists no evidence upon which the Commission could have based its decision. [citation onxitted.]" State ex rel. Commercial Lovelace lvotor Freight v. Lancaster, 22 Ohio St.3d 191, 193, 489 N.E.2d 288, 290 (1986). Here, the law and evidence unquestionably support the commission's decision. Appellee's Proposition of Law No. 1: The Industrial Commission does not abuse its discretion in granting an injured worker TTD compensation when its decision is suported by some evidence. The issue in this case is Perry's entitlement to TTD compensation. In order to be eligible for TTD compensation, a claimant must show that the industrial injury results in a temporary condition that prevents him from returning to his former position of employment. State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630, 433 N.E2d 586 (1982); State ex Nel. Thomas v. Indus. Comm., 42 Ohio St.3d 31, 536 N.E.2d 1159 (1989). A claimant must always show the 6

11 existence of a direct and proximate causal relationship between his industrial injury and the claimed disability. State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452, 619 N.E.2d 1018 (1993). Evidence that a disability prevents a claimant from returning to his former position of employment is sufficient to support an award of TTD compensation. State ex rel. Consolidation Coal Co. v. Inclus. Comm., 58 Ohio St.2d 127, 388 N.E.2d 1382 (1979). Here, the SHO found that Perry was entitled to TTD compensation for the period beginning April 7, (App. 39). The SHO indicated support for his order on medical documentation from Dr. Rodgers. Id. This documentation was an April 7, 2009 BWC disability form ("C-84") and corresponding office note from Dr. Rodgers. (S. 18, SS ). Perry's surgeon, Dr. Engle released him to return to work on February 4, 2009, with no restrictiorzs. (S. 9). On March 18, 2009, while releasing Perry from active care, Dr. Engle referred Perry to occupational medicine care for a prosthetic and on-going treatinent, (S. 22). Perry changed physicians from Dr. Engle to Dr. Rodgers. (S. 18). Based on his examination of Perry, Dr. Rodgers opined that Perry was temporarily and totally disabled from April 7, 2009, to an estimated return to work date of May 8, (S. 18). The conditions listed as causing disability were "885.0, , " Ici. The conditions cited by Dr. Rodgers are allowed conditions in Perry's claim: (amputation), (open fracture proximal phalanx) and (complicated wotind of finger). (S, 17, 21). The documentation submitted and relied upon by the commission is competent evidence to make an award of TTD compensation. The commission did not abuse its discretion in granting Perry TTD compensation. Further, the Court of Appeals correctly concluded that Dr. Rodgers' C84 and corresponding office note constituted some evidence which the commission could rely on to 7

12 grant Perry's request for TTD compensation. (App. 12, 17). The Court of Appeals, in reaching this decision, specifically disagreed with the magistrate's finding that the medical documentation was not some evidence that could be relied on, based on State ex rel. Ohio Treatment Alliance v. Paasewe, 99 Ohio St.3d 18, 2003-Ohio-2249, 788 NE.2d Specifically, the Court of Appeals' opinion stated: Though this case presents a certification of TTD compensation following a termination of employment, we conclude the medical evidence, and the commission's credibility determination regarding the same, passes the scrutiny required under Paasewe. Here, claimant's surgeon, Dr. Engles, released claimant to return to work without restrictions effective February , Claimant was terminated from his employment effective March 2, Claimant was examined by Dr. Engles on February 18 and March 18, While Dr. Engles opined work restrictions and additional therapy were not prudent, Dr. Engles indicated he would "refer [claimant] to Crystal Works the occupational medicine arm of the Crystal Clinic so that they can assist him with these issues and any other ongoing care." (Magistrate's Decision, 13.) Thereafter, claimant was examined by Dr. Rodgers, who is employed by Crystal Works. Dr. Rodgers completed a C-84 certifying TTD beginning April 7, Claimant was then examined by Dr. Jewell, who opined the requested disability period was riot medically necessary. Thus, unlike Paasewe, which presented the same doctor, who without explanation certified TTD for the same period in which he previously released the claimant to work, this case presents conflicting medical evidence regarding a request for TTD compensation for a new period. "The commission is exclusively responsible for assessing the weight and credibility of evidence." State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-Ohio-6036, 11, citing State ex rel. Burleyy v. Coil Packing, Inc., 31 Ohio St.ad 18 (1987). In the within matter, the cornmission found the medical evidence of Dr. Rodgers credible. Such finding does not constitute an abuse of discretion, (App. 11, 15-17). As explained above, Viking's reliance on Stczte ex f el. Ohio Treatment Alliance, supra, is without merit, particularly since the facts in that case are distinguishable from this case, as noted by the Court of Appeals above. It is firmly established that the commission is the "exclusive evaluator of disability," and its decisions are deemed to be final. State ex rel. Iulos.s v. Indus. Comm., 75 Ohio St.3d 414, 417, 8

13 1996-Ohio-306, 662 N.E.2d 364, 366. "[S]o long as there is some evidence in the file to support its findings and orders, this court will not overturn [the commission's orders]." State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170, 509 N.E.2d 946, 949 (1987). Given the aforementioned evidence relied on by the commission, the commission did not abuse its discretion in granting Perry TTD compensation. The commission properly reviewed this unique factual scenario and correctly applied the pertinent law. Perry's loss of wages is due to his industrial injury. Appellee's Proposition of Law No. 2: The determination of whether an injured worker has voluntarily abandoned his former position of employment is a matter within the discretion of the Industrial Commission and such determination will not be disturbed in mandamus absent an abuse of the Industrial Commission's discretion. TTD compensation is paid whenever, due to the industrial injury, a claimant is temporarily unable to return to his former employment. R.C (A). To prove entitlement to TTD compensation, a claimant must show a direct and proximate causal relationship between his industrial injury and the claimed temporary disability. State ex r-el. Yl'addle v. Indus. Comm., 67 Ohio St.3d 452, 619 N.E.3d 1018 (1993). Voluntary abandonment of the former position of employment breaks the causal link between the industrial injury and the disability. When a claimant leaves the work force for reasons unrelated to the industrial injury, the claimant voluntarily abandons not only his employment but also his right to TTD compensation. State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, , 732 N.E.2d 355, 359 (2000). An anvoluntary discharge may constitute a voluntary abandonment of the workforce only if the discharge meets all the necessary elements to establish the defense. A discharge is voluntary if the termination resulted from the employee's "violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a 9

14 dischargeable offense, and (3) was known or should have been known to the employee. State ex rel. Louisiana-Pacific Corporation v. Indus. Comm., 72 Ohio St.3d 401, 403, 1995-Ohio-153, 650 N.E.2d 469, 471. The written work rule must clearly outline both the prohibited conduct and the consequences of a violation to serve as a bar to TTD compensation. State ex rel. _?1rlcKnabb v. Indus. Cnmrn., 92 Ohio St.3d 559, 561, 2001-(.?hio-1285, 752 N.E.2d 254, 256. As with all affirmative defenses, the employer, Viking, had the burden of proving by a preponderance of the evidence the affirmative defense of voluntary abandonment of employment. State ex rel. Quarto lvining Co. v. I<orenaan, 79 Ohio St.3d 78, 83-84, 1997-Ohio- 71, 679 N.E.2d 706, Here, the commission found that Viking did not meet that burden. The commission, relying on Perry's testimony, found that he did not willingly "miss-spot the part" as charged in the infraction, but rather "a coworker came up and prohibited him from moving a piece of equipment out of the way which was destroyed by the press that he was operating." (App. 39). The hearing officer concluded that Perry did not violate a written work rule, and, thus, did not voluntarily abandon his position, Id. The Court of Appeals, relying on the magistrate's decision, rejected Viking's argument that Pe.rry voluntarily abandoned his employment. (App. 9, '^ 5). The magistrate found "claimant's hearing testimony, as reported by the SHO, constitutes some evidence supporting the commission's finding that claimant did not voluntarily abandon his employment at Viking Forge." (App. 30, T, 57). In citing to State ex rel. Louisiana-Pacific Corporation v. Incdus. Comm., 72 Ohio St.3d 401, 403, 1995-Ohio-153, 650 N.E.2d 469, 471, and State ex f el. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 561, 2001-Ohio-1285, 752 N.E.2d 254; 256, the magistrate stated: Relying on claimant's hearing testimony, the SHO, in effect, determined that Viking Forge was not justified in holding claimant accountable for the February 10

15 27, 2009 incident. The SiIf_} sufficiently summarized the testxmony of the claimant which was relied upon to support the determination that claimant was not at fault. As reported by the SHO, claimant testified that "a co-worker came up and prohibited him from moving a piece of equipment out of the way which was destroyed by the press that he was operating." (App. 32, ^, 67). The commission did not abuse its discretion in finding Perry's testimony persuasive simply because Viking finds Perry's testimony lacking specific details and unsupported by other documentation. Viking's discharge of Perry does not meet the Louisiana-Pacic test for voluntary abandonment. Perry was discharged on March 2, 2009, following an incident on February 27, (S. 15). The incident report for February 27, 2009, lists the infraction as "Failure to sustain production standards an[sic] Inadequate job performance" and fitrther explained that: Summary: While operating the 2500 Erie, Kelly miss-spotted in the blocker station, this is a difficult part to miss-spot. Additional Comments: This has been an ongoing problem with Kelly. On 02/04/2009 Kelly was suspended for three days without pay. Kelly has had numerous infractions over the last several months and has shown no signs of improvement. It is my recommendation that Kelly be tenninated. Id. However, Viking failed to produce a written work rule that shows that "miss-spotting" a part is a dischargeable offense. While Viking asserts that it's February 4, 2009 incident report establishes that Perry's next infraction would result in a termination, Viking never identifies a written productiori standards work rule that defines an infraction. As stated in McKnabb, supra, the written work rule must define both the offense and the discipline. Thus, Viking never meets the first prong of the Lnuisiana-Pacific test. The commission does not abuse its discretion by rejecting an affirmative defense that Viking failed to establish. Viking failed to timely submit sufficient evidence that establishes a voluntary abandonment. The voluntary nature of abandonment is a factual question within the commission's final jurisdiction. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18,

16 N.E.2d 936 (1987). As with any other factual issue, "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., 68 Ohio St.2d 165, 169, 429 NE.2d 433, 436 (1981). Furthermore, the commission is not required to consider evidence filed after the usual administrative hearing process has been completed. Stczte ex rel. Dom,jancic v. Indus. Comnz., 69 Ohio St.3d 693, , 1994-Ohio-95, 635 N.E.2d 372, 376, citing State ex f el. Cords ay> v, Indus. Comm., 54 Ohio St.3d 99, 561 N.E.2d 917 (1990). After the commission denied Viking's appeal of the SHO order, Viking requested reconsideration and submitted pages from its policy and procedures manual. (S , 23-34, SS. 73). T'hese pages cannot be used as evidence to establish voluntary abandonment. First, they failed to include a production standards rule. Second, even if they had included the necessary rule, such evidence is untimely. As the trier of fact, the commission may, given the totality of the circumstances, choose to reject Viking's incident report and argument. "[P]ost-injury firings must be carefully scrutinized." State ex Nel. Scouler v. Indus. Comm., 10th Dist. Franklin App. 06AP-325, Ohio-2468, ^ 4, (reversed on other grounds by State ex rel. Scouler v. Indus, Comm., 119 Ohio St.3d 276, 2008-Ohio-3915, 893 N.E.2d 496). There is a "great potential for abuse in allowing a simple allegation of misconduct to preclude temporary total disability compensation;" thus, the commission must closely consider the totality of underlying facts and circumstances of each case to determine whether a discharge may be deemed a voluntary departure for TTD compensation purposes. State ex rel. Smith v. Superior's Brand Meats, Inc., 76 Ohio St.3d 408, 411, Ohio-166, 667 N.E.2d 1217, The February 27, 2009 incident report states that "Kelly has had numerous infractions over the last several months;" however, at that time, Perry had returned to work for less than 12

17 three months following his injury and had only returned to full-duty for nine days. (S. 15, 7-10). Moreover, Viking never addressed wliether Perry's light duty restrictions, e.g. one-handed work or light lifting restrictions, caused or contributed his infractions. Thus, Viking never satisfied the three-prong I,ouisiana-Pacic test to establish that Perry's termination constituted a voluntary abandonment. "The commission is solely responsible for weighing and interpreting evidence." State ex rel. Value City Dept. Stores v. Indus. Comm., 97 Ohio St.3d 187, 2002-Ohio-5810, 777 N.E.3d 251. The court must not "micromanage the commission" or "substitute its judgment for the commission's." State ex y-el. Mobley v. Indus. CUmm., 78 Ohio St.3d 579, 584, 1997-Chio-181, 679 N.E.2d 300, 305. "[S]o long as there is some evidence in the file to support its findings and orders, this court will not overturn [the commission's orders]." State ex rel. Stephenson v. Indus. Comm., 31 OhioSt.3d 167, 170, 509 N.E.2d 946, 949 (1987). The Court of Appeals properly declined to reweigh the commission's decision as to voluntary abandonment. This Court should affirm the Court of Appeals' decision. Atrpellee's Proposition of Law No. 3: The Industrial Commission does not err when it grants TTD compensation consistent with State ex rel.lvlitchell v. Robbins & Myers, Inc. Viking's final argument is that the com.mission'sorder violates State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 453 N.E.2d 721 (1983), contending that it offered no explanation or analysis as to how its conclusion that Viking's position of voluntary abandonment was not well taken. Here, the issue in this case is Perry's entitlement to TTD compensation, The record before the commission contained sufficient evidence supporting its decision to grant TTD compensation. The commission specifically relies on the medical evidence from Dr. Rodgers and Perry's testimony. (App. 40). A commission order granting or denying benefits must 13

18 specifically state the evidence that has been relied upon. `The order must also briefly explain the reasoning for the decision. State ex rel, Mitchell v. Robbins & 1'fllyers, Inc., supra, and State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 567 N.E,2d 245 (1991). This has been done here. There has been no abuse of discretion by the commission. In State ex t el. Alrnendinger v. Indus. Comm. 10th Dist. Franklin No. 12AP-641, the lower court stated: The commission need only enumerate the evidence it relied upon to reach its decision. State ex rel. Scouler v. Indus. Cotram:, 119 Ohio St.3d 276, 2008-Ohio- 3915, ",( 16, citing State ex i el. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, (1983). The commission is not required to list or cite evidence that has been considered and rejected or explain why certain evidence was deemed unpersuasive, Id., citing State ex rel. DeMint v. Indus. Comme, 49 Ohio St.3d 19, 20 (1990). Id. at 13. 1Iere, Viking simply disagrees with the commission's finding and asks this Court to take away the constitutionally guaranteed power of the commission to be the final weigher and finder of fact. It is well settled that the commission has the exclusive authority to determine disputed facts and to weigh the evidence. "An order that is supported by `some evidence' will be upheld. It is immaterial whether some evidence, even if greater in quality and/or quantity, supports a decision contrary to the commission's." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 508 N.E.2d 936 (1987). Here, the commission's order is based on "some evidence" and, satisfies the requirements of Noll and 1fitchell. The commission did not abuse its discretion. 14

19 CONCLUSION The commission acted according to law and relied on "some evidence" in the record, namely the medical repoi-t of Dr. Rodgers and Perry's testimony, to grant Perry's request for TTD compensation. The commission is not compelled to consider documents submitted after the administrative hearing. Moreover, the commission is not required to explain its rejection of an affirmative defense when Viking fails to meet the three-prong test to establish volumtary abandonment. Viking improperly invites this Court to substitute its judgment for that of the commission. The commission acted wholly within its discretion, and "some evidence" supports its finding that Perry was entitled to TTD compensation. Accordingly, the requested writ of mandamus must be denied, as the Court of Appeals has held. Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney General,,^, ^^,., ^.. ^ ANDREW J. ALATIS ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio (614) Tel. (800) Fax Andrew.Al ati s@nhi oattorneygen eral. gov Counsel for Appellee, Industrial Commission of Ohio 15

20 ?013 to: Via U.S. Mail CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on this -Aday of December CHRISTOPHER J. SIIA.W 1487 Belle Avenue Lakewood, Ohio Counsel for Appellant, Viking Forge Corp. and MARK S. WF.INBERGER. Gibson & Lowry 234 Portage Trail POBoxS3S Cuyahoga Falls, Ohio Counsel for Appellee, Kelly Perry ANDREW J:ALATIS ( ) Assistant Attorney General 16