VIED. f lu) MAR MAR 0 4 ZU13. CLERK OF COURT SUPREME COURT OF OHi CLERK 0^ COURT SUPREM. COURT OF OHIO. Case No.

Transcription

1 .^^ IN THE SUPREME COURT OF OHIO State of Ohio ex rel. Thomas Kempinski, V. Relator-Appellee, Industrial Commission of Ohio, and Respondent-Appellee, Ameritech-Ohio SBC/Ameritech, Respondent-Appellant. Case No On Appeal From the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. loap-1144 f lu) MAR CLERK 0^ COURT SUPREM. COURT OF OHIO MERIT BRIEF OF APPELLANT AMERITECH-OHIO SBC/AMERITECH Fred J. Pompeani, Esq. ( ) (COUNSEL OF RECORD) Rebecca A. Kopp, Esq. ( ) Porter Wright Morris & Arthur, LLP 925 Euclid Avenue, Suite 1700 Cleveland, Ohio (216) ; (216) (fax) fpompeani@porterwright.com rkopp@porterwright.com COUNSEL FOR RESPONDENT- APPELLANT AMERITECH-OHIO SBC/AMERITECH MAR 0 4 ZU13 VIED CLERK OF COURT SUPREME COURT OF OHi Michael H. Gruhin, Esq. ( ) (COUNSEL OF RECORD) Gruhin & Gruhin One Chagrin-Highlands 2000 Auburn Drive NE, 2"d Floor Beachwood, OH (216) ; (216) (fax) litigation@gruhin.com COUNSEL FOR RELATOR-APPELLEE THOMAS KEMPINSKI REMA A. INA, ESQ. ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22 d Floor Columbus, Ohio (614) ; (614) (fax) Rema.Ina@ohioattomeygeneral.gov COUNSEL FOR RESPONDENT-APPELLEE INDUSTRIAL COMMISSION OF OHIO CLEVELAND/421435v.1

2 TABLE OF CONTENTS..... iii TABLE OF AUTHORITIES... STATEMENT OF FACTS...1 A. STATEMENT OF THE CASE B. STATEMENT OF FACTS...3 ARGUMENT...: PROPOSITION OF LAW NO. 1: THE IN ORDER TO COMPLY WITH SPE ^FICALLYDSTAT^E T HE EVIDENCEL COMMISSION IS REQUIRED TO RELIED UPON AND BRIEFLY EXPLAIN THE REASONING FOR ITS DECISION; THE COMMISSION IS NOT REQUIRED TO STATE WHICH MEDICAL EVIDENCE WAS UPPOON, BO REACH ITS CONCLUSION WHICH HAS IN FACT A. The Standard of Review...7 B. The Court Of Appeals Incorrectly Created A New Standard, Contrary to Noll, Which Requires The Commission To Specifically Identify What Medical 8 Evidence Has Been Relied Upon... Page PROPOSITION OF LAW NO. 2: A VOLUNTARY RETIREMENT WHICH IS NOT INDUCED BY THE ALLOWED CONDITIONS IN A WORKERS' COMPENSATION CLAIM PRECLUDES ENTITLEMENT TO TEMPORARY TOTAL DISABILITY 14 C OMPEN S ATION CONCLUSION PROOF OF SERVICE... APPENDIX...21 a. Date Stamped Notice of Appeal to the Supreme Court... A-1 of Court of Appeals... A-4 b. Judgment Entry and Decision... A- 9 c. Magistrate's Decision d. Final Order of Industrial Commission... A- 27 e. SIPP Documents... A - 31 f. R.C A- 37 -ii- CLEVELAND/421435v.1

3 TABLE OF AUTHORITIES PAGE CASES 10th Dist. App. No. 09AP-534, 2010-Ohio-790 State ex rel. Alston v. Interpak, Inc.,...8 (1987), 34 Ohio St.3d State ex rel. Ashcraft v. Indus. Comm. (1983), 6 Ohio St.3d 28...:..8 State ex rel. Berger v. McMonagle (1997), 77 Ohio St. 3d State ex rel. Bradley v. Indus. Comm....7 State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18 State ex rel. Buttolph v. Gen. Motors Corp., Terex Div.(1997), 79 Ohio St.3d (1986), 26 Ohio St.3d State ex rel. Elliott v. Indus. Comm. 10th Dist. App. No. 03AP-379, 2004-Ohio , 15,16 State ex rel. Furrie v. Indus. Comm., 2012-Ohio-2468, 2012 Ohio App. 9 State ex rel. Infocision Mgmt. Corp. v. Hartson, LEXIS ^^^^^^^^^^^^ State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d (2010), 124 Ohio St.3d , 17 State ex rel. Jorza v. Indus. Comm. (1987), 29 Ohio St.3d State ex rel. Lewis v. Diamond Foundry Co. (1995), 72 Ohio St.3d State ex rel. Louisiana-Pacific v. Indus. Comm. (1983), 6 Ohio St. 3d State ex. rel. Mitchell v. Robbins & Myers, Inc. (1991), 57 Ohio St.3d , 3, 7, 8, 9,14 State ex rel. Noll v. Indus. Comm. (1996), 74 Ohio St.3d State ex rel. Pass v. C.S.T. Extraction Co. (1997), 78 Ohio St.3d State ex rel. Pleban v. Indus. Comm. (1967), 11 Ohio St.2d State ex rel. Pressley v. Indus. Comm. (1982), 69 Ohio St. 2d State ex rel. Ramirez v. Indus. Comm. 133 Ohio St.3d 249, 2012-Ohio State ex rel. Rouan v. Indus. Comm., - iii - CLEVELAND/421435v.1

4 (1990), 50 Ohio St.3d State ex rel. Smith v. Indus. Comm. (1981), 68 Ohio St.2d , 9 State ex rel. Teece v. Indus. Comm. (1990), 48 Ohio St.3d State ex rel. White Consolidated Industries v. Indus. Comm. 35 Ohio St.3d State ex rel. Yerain v. City ofjackson (1988), (1987), 31 Ohio St.3d Stephenson v. Indus. Comm. STATUTES R.C iv- CLEVELAND/421435v.1

5 STATEMENT OF FACTS A. STATEMENT OF THE CASE The instant case is before this Honorable Court upon the appeal of right of Appellant Ameritech-Ohio SBC/Ameritech ("Employer"), which was brought under Supreme Court Practice Rule 2.1(A)(1) because the case originated in the Franklin County Court of Appeals. The issues for decision involve whether the final order of the Industrial Commission of Ohio ("Commission") properly denied Appellee-Claimant Thomas Kempinski ("Claimant") temporary total disability compensation ("TTC") and sufficiently enumerated the reasons for its decision under the Noll standard, and whether a claimant who was receiving non-occupational benefits and treatment, and who then voluntarily retired and accepted an incentive retirement package, is precluded from entitlement to TTC for the time periods before and after the voluntary retirement date. This is an issue of first impression for this Honorable Court concerning whether a claimant who was receiving non-occupational benefits and treatment, and who then voluntarily retired and accepted an incentive retirement package, is entitled to TTC for the time periods preceding and subsequent to the voluntary retirement date. By way of procedural history, on or about January 7, 2008, Claimant filed a C-84 requesting TTC commencing January 4, (Stipulated Evidence No. 7). In response, on January 10, 2008, Employer denied this request. (Stipulated Evidence No. 8). Claimant did not dispute this denial and did not file a motion requesting further compensation at that time. Claimant then began receiving non-occupational short-term disability up until he elected to voluntarily retire. On or about December 28, 2008, Claimant voluntarily retired from his CLEVELAND/421435v.1

6 employment with Employer by accepting a Supplemental Income Protection Program ("SIPP") benefit. (Stipulated Evidence No. 49). On or about April 7, 2009, Claimant filed a C-86 motion requesting TTC beginning January 4, (Stipulated Evidence No. 54). Employer rejected this request and the matter was referred to the Commission. On October 1, 2009, a District Hearing Officer denied Claimant's request for TTC on the ground that Claimant had voluntarily retired. (Stipulated Evidence No. 34). Claimant appealed and in a February 22, 2010 order, a Staff Hearing Officer denied Claimant's request for TTC, finding that Claimant's voluntary retirement precluded payment of TTC. (Stipulated Evidence No. 41). Claimant appealed to the Commission. Following a hearing on May 25, 2010, the full Commission issued an order which denied TTC from January 4, 2008 through December 28, 2008 due to a lack of contemporaneous medical proof relating the alleged disability to the allowed conditions in the claim. The Commission further determined that Claimant's voluntary retirement on December 28, 2008 precluded the payment of TTC from December 28, 2008 forward. (See Commission Order at A - 27 and also Stipulated Evidence No. 45). Claimant sought a writ of mandamus. In its Answer filed on January 10, 2011, the Commission prayed that Claimant's request for the issuance of a writ of mandamus be denied, and also denied Claimant's allegations that he was entitled to TTC. Thereafter, the Commission filed its brief, therein stating that its final order did not comply with Noll and agreeing that a limited writ should be granted. The Magistrate's Decision found that the Commission's denial of TTC violated Noll and recommended that the court of appeals issue a writ of ma.ndaynus ordering the Commission to vacate its order and to enter a new order adjudicating Claimant's motion for TTC. The Magistrate found it premature for the court of appeals to address whether Claimant's retirement -2- CLEVELAND/421435v.1

7 was voluntary. (See Magistrate's Decision at A - 9). Employer filed objections to the Magistrate's decision. The court of appeals adopted the Magistrate's decision as its own, granting a writ of mandamus ordering the Commission to vacate its order and to enter a new order in compliance with Noll that adjudicates Claimant's motion for TTC. (See Court of Appeals Decision at A - 4). B. STATEMENT OF FACTS Employer is self-insured for workers' compensation purposes. Claimant was injured while working for Employer on August 21, As of the date of his filing a motion for TTC, Claim No. L was recognized for the conditions of "low back strain left; herniated disc L4, L5 and L5-S1; degenerative disc at L4-S1, and foraminal stenosis."1 On January 4, 2008, Claimant discontinued working at Employer and began receiving non-occupational short term disability compensation. (Stipulated Evidence Nos. 6, 7, 42, 46). On or about January 7, 2008, Claimant filed a C-84 of Dr. Stephen Bernie requesting TTC from January 4, 2008 through an estimated return to work date of February 10, (Stipulated Evidence No. 7). In response, Employer denied the request in correspondence dated January 10, 2008, which was sent to Claimant and his attorney. (Stipulated Evidence No. 8). Claimant did not dispute this denial or file a motion requesting further compensation at the time. (Stipulated Evidence No. 42). No hearing took place on the C-84. Id. As a result, the request for TTC remained denied. Thereafter, Claimant underwent surgery on January 29, (Stipulated Evidence No. 10). Claimant did not submit a request for authorization of this surgery, nor a request for payment of the surgery or his post-s-argical treatment w'-th Dr. Keppler in his workers' accepted the condition of "epidural fibrosis levels L5-S 1 aka post laminectory ' AT&T syndrome" at the October 1, 2009 District Hearing. (Stipulated Evidence No. 34). On July 28, 2010, AT&T accepted the condition of "RSD of the left leg and foot." -3- CLEVELAND/421435v.1

8 compensation claim. 2 (Stipulated Evidence No. 51). Claimant underwent another surgery on July 9, (Stipulated Evidence No. 18). Again, Claimant did not submit a request for authorization of the surgery nor a request for his post-surgical treatment in his workers' compensation claim. 3(Stipulated Evidence No. 51). Claimant admitted in Relator's brief filed in the court of appeals that the payment for these surgeries was through his private health insurance. Following the C-84 filed by Dr. Bernie on January 7, 2008, there was no further C-84 filed until February 8, 2010, when Dr. Keppler's C-84 was filed alleging disability from January 14, 2008 to an estimated date of March 1, Claimant received non-occupational disability benefits from January 10, 2008 through December 10, (Stipulated Evidence No. 46). In December 2008, Employer experienced a surplus of employees. On or about December 5, 2008, Employer offered many employees, including Claimant, participation in the Supplemental Income Protection Program ("SIPP"). (Stipulated Evidence No. 47). As part of its SIPP program, an AT&T employee voluntarily retires and receives financial compensation in addition to other accrued benefits, and another AT&T employee is placed in the job position of the retired employee. (Stipulated Evidence No. 50). SIPP payments are based on the number of years of service with AT&T. (Stipulated Evidence No. 48). 2 Treatments occurring on February 12, 2008 (Stipulated Evidence No. 11), March 13, 2008 (Stipulated Evidence No. 12), March 31, 2008 (Stipulated Evidence No. 13), and April 24, 2008 (Stipulated Evidence No. 16) were not authorized in the workers' compensation claim. 3 Treatments occurring on August 15, 2008 (Stipulated Evidence No. 19), August 21, 2008 (Stipulated Evidence No. 20), October 9, 2008 (Stipulated Evidence No. 21), October 30, 2008 (Stipulated Evidence No. 22), November 20, 2008 (Stipulated Evidence No. 23), and January 15, 2009 (Stipulated Evidence No. 24) were not authorized in the workers' compensation claim. -4- CLEVELAND/421435v.1

9 On December 11, 2008, Claimant accepted participation in the SIPP program and executed an employee acknowledgement form attesting; "I DO elect to voluntarily terminate my employment with AT&T and ACCEPT SIPP benefits. I understand that my last day on the AT&T payroll will be December 29, 2008." (Stipulated Evidence No. 49, emphasis added). Based on Claimant's years of service with AT&T, he received $31, in SIPP payments. (See Stipulated Evidence No. 48 and see also SIPP documents at A - 31.) After his voluntary retirement, Claimant filed a C-86 motion on or about April 3, 2009, requesting TTC commencing January 4, 2008 and to continue. (Stipulated Evidence No. 54). In support of the motion, Claimant submitted the January 3, 2008 MEDCO-14 from Dr. Bernie (Stipulated Evidence No. 6) disabling Claimant from January 4, 2008 through February 8, 2008, and the January 7, 2008 C-84 from Dr. Bernie (Stipulated Evidence No. 7) disabling Claimant from January 4, 2008 through February 10, Two years later, on February 8, 2010, Claimant submitted the C-84 from Dr. Keppler backdating Claimant's disability from January 14, 2008 through an estimated return to work date of March 1, (Stipulated Evidence No. 40). Employer has always maintained that Claimant's request for TTC was NOT due to the allowed conditions in the claim. Based on Claimant's motion, an initial hearing was held on October 1, (Stipulated Evidence No. 35.) The District Hearing Officer denied TTC, finding that Claimant had voluntarily retired from his employment with AT&T and therefore was precluded from receiving TTC. (Stipulated Evidence No. 34). Claimant appealed and an appeal was held on Febr^aary 22, (Stipulated Evidence No. 42). The Staff Hearing Officer affirmed the District Hearing Officer's order, finding that -5- CLEVELAND/421435v.1

10 Claimant had voluntarily retired on December 31, 2008 and was therefore not eligible for the payment of TTC beyond that date.4 (Stipulated Evidence No. 41). Claimant appealed and a hearing was held before the full Commission on May 25, (Stipulated Evidence No. 45). Despite Claimant's counsel's statement on the record that the period of time at issue was December 28, 2008 forward, at the hearing he renewed the request for payment of TTC from January 4, 2008 forward. Id. Hence, the Commission addressed the requests as two separate periods of time: January 4, 2008 through Claimant's voluntary retirement on December 28, 2008, and then the period of time from December 28, 2008 through May 25, Id. In addressing the time period of January 4, 2008 through December 28, 2008, the Commission order stated: The payment of temporary total disability compensation from 01/04/2008 through 12/28/2008, inclusive, is specifically denied due to a lack of contemporaneous medical proof relating the disability from the allowed conditions to the period at issue. (Id.). In its order, the Commission explicitly stated its finding, the evidence relied upon in reaching its decision, and the reasoning for its conclusion with respect to the time period of January 4, 2008 through December 28, In addressing the time period beyond December 28, 2008, the Commission order stated: Therefore, it is the finding of the Commission that the Injured Worker voluntarily abandoned the workforce when he accepted the SIPP incentives for his financial 4 Claimant alleges that Staff Hearing Officer's order is misleading by stating that Ciaimant's counsel withdrew the request for TTC from January 4, 2008 through December 31, However, in reading the transcript, Claimant's counsel states that Claimant is not eligible for TTC for that period as he was receiving short term disability benefits. Claimant's counsel specifically stated that the hearing was to adjudicate the period of time from December 28, 2008 to the present. Despite these statements on the record, at the May 25, 2010 hearing before the full Commission, Claimant's counsel renewed the request for TTC from January 4, 2008 through the present. -6- CLEVELAND/421435v.1

11 advantage. Furrie v. Indus. Comm., 10th Dist. App. No. 03AP-370, 2004-Ohio Therefore, temporary total disability compensation is specifically denied from 12/29/2008 through 05/25/2010. (Id.). In its order, the Commission stated its findings and the reasoning for its conclusion with respect to the time period after December 28, In the present appeal before this Honorable Court, Employer asserts that the Commission's order at issue correctly denied Claimant's request for TTC. First, Claimant failed to meet his burden of proof that his disability between January 4, 2008 and December 28, 2008 was causally related to his workers' compensation claim. Second, Claimant voluntarily retired from his employment with Employer on December 28, 2008, and is therefore precluded from receiving TTC. Further, the Commission explained in detail its reasoning for denying the requested TTC and stated what evidence it relied upon in reaching its decision; hence, the Commission order complied with Noll. ARGUMENT PROPOSITION OF LAW NO. 1: IN ORDER TO COMPLY WITH THE NOLL STANDARD, THE INDUSTRIAL COMMISSION IS REQUIRED TO SPECIFICALLY STATE THE EVIDENCE RELIED UPON AND BRIEFLY EXPLAIN THE REASONING FOR ITS DECISION; THE COMMISSION IS NOT REQUIRED TO STATE WHICH MEDICAL EVIDENCE WAS RELIED UPON, BUT ONLY THAT EVIDENCE WHICH HAS IN FACT BEEN RELIED UPON TO REACH ITS CONCLUSION. A. The Standard of Review This Court has repeatedly asserted that a writ of mandamus will not be granted if an order of the Industrial Commission is supported by "some evidence." See State ex rel. Yerain v. City of Jackson (1988), 35 Ohio St.3d 13; State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18. In requesting a writ of mandamus, a claimant must establish that "(1) the relator has a clear legal right to the relief prayed for; ( 2) that respondent is under a clear legal duty to perform -7- CLEVELAND/421435v.1

12 the act requested; and (3) that relator has no plan and adequate remedy in the ordinary course of law." State ex rel. Alston v. Interpak, Inc., 10t" Dist. App. No. 09AP-534, 2010-Ohio-790, citing State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28. A clear legal right to a writ of mandamus exists where a claimant demonstrates that the Commission abused its discretion by entering an order which is not supported by some evidence in the record. State ex rel. Elliott v. Indus. Comm'n. (1986), 26 Ohio St.3d 76. Where the record contains some evidence to support the Commission's findings, an abuse of discretion did not occur and a writ of mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56. The Commission, as the fact finder, clearly has discretion to determine questions of credibility and the weight of the evidence. State ex rel. Teece v. Indus. (1981), 68 Ohio St.2d 165. The burden of proof is upon the claimant, who must Comm'n. State ex rel. Pressley v. Indus. demonstrate a clear legal right to such extraordinary relief. Comm'n. (1967), 11 Ohio St.2d 141. E1 Ci115 B. '1'he t;ourt vi Which Re uires The Commission To S ecificall tif y What Medical Evidence Has Been Relied Unon. "In any order of the Industrial Commission granting or denying benefits to a claimant, the commission must specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision." State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203. The Noll doctrine requires the Commission to prepare orders which are fact-specific and contain reasons explaining its decision. Id. The judgment of the court of appeals below improperly expanded the holding of Noll by requiring the Commission to specifically enumerate which medical evidence is relied upon by the Commission. Conversely, under Noll the Commission is free to rely upon non-medical -8- CLEVELAND/421435V.1

13 evidence as the basis for its decision. Hence, the court of appeals in effect created a new standard which requires the Commission to state which medical evidence was relied upon in reaching its conclusion. Contrary to the court of appeals decision, the Noll doctrine requires the Commission to simply articulate the reasoning for its decision. The Commission is not required to state which medical evidence was relied upon. Conversely, the Commission is to enumerate "only that evidence which has been relied upon to reach its conclusion." State ex rel. Buttolph v. Gen. Motors Corp., Terex Div.(1997), 79 Ohio St.3d 73, citing State ex. rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, 483. The court of appeals' contention that Commission was required to detail what medical evidence was found to be unpersuasive is misguided. Such a contention flies in the face of the precedent established by this Court. As a general rule, the Commission is not required to cite all of the evidence it reviewed, medical or otherwise. The Commission obviously must consider the evidence before it, but is "not required to list each piece of evidence that it considered in its order." Id. Moreover, the Commission is the "exclusive evaluator of the weight and credibility to be given the evidence and it is immaterial whether other evidence, even if greater in quantity and/or quality, supports a conclusion which is contrary to the commission's." State ex rel. Infocision Mgmt. Corp. v. Hartson, 2012-Ohio-2468, 2012 Ohio App. LEXIS 2165, citing Teece; State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (1996). Hence, the court of appeals decision improperly interpreted Noll. The Commission's concession in its merit brief that i ts order did not comply with the Noll doctrine does not automatically mean this conclusion is accurate or correct. Rather, the proper test under Noll involves a review of the reasoning contained in the Commission's order. To be in -9- CLEVELAND/421435v.1

14 the Commission need only state the tangible and/or intangible elements of compliance with Noll, proof relied upon to reach its conclusion. The Commission must articulate the proof or absence of proof it relied upon, and is not limited to stating which medical evidence it relied upon. In fact, in many cases the Commission's decision is not based on medical evidence. For instance, in requests for permanent and total disability compensation, the Commission's decision may hinge upon the non-medical factors of claimant's age, education, work record and other factors. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Further, in adjudicating requests for TTC, the Commission may rely upon evidence such as timecards, pay stubs, written policies, termination letters and testimony in determining whether compensation is appropriate. See, e.g., State ex Nel. Louisiana-Pacific v. Indus. Comm. (1995), 72 Ohio St.3d 401 (evidence of a violation of a written work rule precludes TTC); State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42 (evidence of incarceration precludes TTC). In this case, the Commission clearly articulated the evidence it relied upon and its reasoning in denying TTC for the period of January 4, 2008 through December 28, In its order, the Commission stated in pertinent part: The payment of temporary total disability compensation from 01/04/2008 through 12/28/2008, inclusive, is specifically denied due to a lack of contemporaneous medical proof relating the disability from the allowed conditions to the period at issue. The Injured Worker had low back surgery on 01/29/2008 and on 07/09/2008. The bills for these surgeries were filed by the Injured Worker with, and paid under, his non-occupational insurance. During the period the Injured Worker was off work as a result of these surgeries, the Injured Worker elected to receive non-occupational, short-term disability payments from the Employer. To further support its argument that the Injured Worker's surgeries and disability were non-occupational, the Employer pointed out that it had denied the Injured worker's request for temporary total disability compensation for the period of disability in question. The Injured worker did not protest the denial of temporary total disability compensation. Finally, the Employer argues that there is no sufficiently persuasive medical evidence on file that alters the previous formal -10- CLEVELAND/421435v.1

15 designation of the period of disability as non-occupational. The Commission agrees. (Stipulated Evidence No. 45.) As demonstrated by the above-quoted language of the Commission order, there is substantial evidence relied upon by the Commission in support of its reasoning. This is not a situation where the parties or the Court are left to guess the rationale underlying the Commission's decision. Rather, in a lengthy and detailed order, the Commission explicitly outlined the reasoning for its decision, including: Claimant failed to submit contemporaneous medical proof relating the disability from 1/4/2008 to 12/28/2008 to the allowed conditions in the claim; Bills from Claimant's low back surgeries on 1/29/2008 and 7/9/2008 were filed and paid under his non-occupational insurance; Claimant elected to receive non-occupational, short-term disability payments from 1/10/2008 through 12/10/2008; Claimant's request for temporary total disability compensation from 1/4/2008 through 2/10/2008 was denied by AT&T and the Claimant did not protest the denial; and, No medical evidence on file alters the prior designation of the period of 1/4/2008 to 2/10/2008 as non-occupational. Hence, the Commission did specifically state that the medical evidence was insufficient to support an award of TTC from January 4, 2008 through December 28, 2008, based on the facts that Claimant underwent surgeries paid under his non-occupational insurance, and his receipt of non-occupational disability payments. This reasoning complies with Noll. In rejecting Employer's position that the receipt of non-occupational benefits precludes the receipt of TTC, the court of appeals is essentially re-weighing the evidence before the Commission. However, the Commission is tasked with weighing evidence, and here the Commission found Claimant's evidence unpersuasive CLEVELAND/421435V.1

16 The court of appeals wrongly concluded that the Commission is unable to determine that Claimant's receipt of non-occupational benefits constitutes substantial evidence that a period of disability is non-occupational in nature. On the contrary, the Commission, as the ultimate arbiter of disability, could have properly determined that the receipt of non-occupational benefits constitutes substantial evidence of a non-occupational disability and that the evidence failed to establish that the requested period of disability is causally related to the allowed conditions in the claim. The Commission is vested with the job of adjudicating whether the evidence establishes a period of disability that is causally related to the allowed conditions in the claim. In this case, the Commission found that the receipt of non-occupational disability benefits was evidence showing that Claimant was not entitled to TTC. This finding is supported by the facts that Claimant submitted medical bills under his personal health insurance and proceeded to file for non-occupational short term disability rather than TTC. These facts support the Commission's finding that there is a lack of contemporaneous medical proof relating the alleged period of disability to the allowed conditions in the claim. In addition, during the time period between January 4, 2008 through December 28, 2008, Claimant, his physician Dr. Keppler, and Employer all took action on the basis that Claimant was treating for conditions not caused by the claim. Thus, the Commission evaluated Dr. Keppler's office notes for treatment not paid under the claim and determined that they did not establish a disability caused by the allowed conditions in the claim. This was absolutely within the purview of the Commission's authority and jurisdiction. The Magistrate's conclusion ignores the fact that Claimar.t's surgeries were paid for by his personal health insurance and that he was on non-occupational short term disability. By definition, an individual receives non-occupational benefits for conditions not related to the -12- CLEVELAND/421435V.1

17 individual's employment. And by receiving benefits for conditions not related to his employment, Claimant cannot be disabled due to his work injury for the same period of time for the same conditions. Claimant's anticipated contention that the medical documentation supports his entitlement to compensation misses the point. To be entitled to compensation, the evidence must establish a causal connection between the medical treatment and the period of disability. Here, the Commission came to the conclusion that the treatment was not causally related to the claim by stating that Claimant failed to submit contemporaneous medical proof relating the disability from January 4, 2008 to December 28, 2008 to the allowed conditions in the claim. Indeed, during the period surrounding the surgeries, Claimant did not submit contemporaneous proof relating the surgeries to his workers' compensation claim. Instead, he indicated that his surgeries were non-occupational. These are explicit and clear reasons for the Commission's order. The Commission order thereby indicated that it did not find the C-84s from Dr. Bernie and Dr. Keppler to be persuasive. Claimant's previous reliance on the statutory provision addressing the payment of TTC and sickness and accident benefits for the same period of time is mistaken. The statute addresses to be paid, not whether or not a claimant would be entitled to such benefits. only how the TTC is On the other hand, the Commission is the actual adjudicator as to whether a R.C (A). claimant is entitled to benefits, and in this matter the Commission found that Claimant was not entitled to benefits. awarded pursuant to R.C when a claimant's injury Under Ohio law, TTC is State ex rel. Ramirez v. Indus. Comm. prevents a return to the former position of employment. (1982), 69 Ohio St. 2d 630. The claimant must present reliable medical evidence that his -13- CLEVELAND/421435v.1

18 disability is caused solely by allowed conditions in the claim. State ex rel. Bradley v. Indus. (1997), 77 Ohio St. 3d 239. The burden is on the claimant to establish entitlement to Comm. (1997), 78 Ohio St.3d 406. Here, the Commission TTC. State ex rel. Pleban v. Indus. Comm. found that by his receipt of non-occupational short term disability benefits, Claimant is precluded from receiving TTC. This finding by the Commission is supported by the evidence in the record, and the Commission had the specific authority to decide this issue. In sum, the Commission's order is in compliance with Noll. The evidence in the record and cited by the Commission shows that Claimant was not working due to non-occupational reasons. Moreover, Claimant simply failed to meet his burden of proof that his disability was related to the allowed conditions in the claim. Thus, the Commission properly explained why Claimant is not entitled to the requested TTC from January 4, 2008 through December 28, Further, as shown by the face of the order itself, the Commission order with respect to the time period following December 28, 2008 complies with Noll in that the reasons for the Commission's decision are clearly articulated. PROPOSITION OF LAW NO. 2: A VOLUNTARY RETIREMENT WHICH IS NOT INDUCED BY THE ALLOWED CONDITIONS IN A WORKERS' COMPENSATION CLAIM PRECLUDES ENTITLEMENT TO TEMPORARY TOTAL DISABILITY COMPENSATION. Both the Magistrate and the court of appeals found it premature to address the question whether the Commission abused its discretion in determining that Claimant's retirement was voluntary. However, the substantial weight of the evidence demonstrates that the Commission correctly determined that Claimant was not entitled to TTC after December 29, 2008 due to his voluntary retirement. Hence, the Commission's finding should stand CLEVELAND/421435v.1

19 Claimant voluntarily retired from his employment with AT&T effective December 29, 2008, and is precluded from receiving any TTC. In deciding this issue, the Commission correctly evaluated the standard for a voluntary retirement and determined Claimant was not entitled to TTC. A claimant is not entitled to TTC when his own actions, for reasons unrelated to the industrial injury, preclude him from returning to his former position of employment. State ex 133 Ohio St.3d 249, 2012-Ohio-4639; State ex rel. Jones & rel. Rouan v. Indus. Comm., (1985), 29 Ohio App.3d 145. Voluntary abandonment of Laughlin Steel Corp. v. Indus. Comm. the former position of employment bars eligibility for TTC. Id. A retirement from employment is not voluntary if the claimant retired for reasons directly related to work-related injuries. State ex rel. White Consolidated Industries v. Indus. Comm. (1990), 48 Ohio St.3d 17. A retirement is voluntary and precludes any TTC when the retirement is for financial reasons and not due to the allowed conditions in a claim. State ex rel. Furrie v. Indus. Comm., 10th Dist. App. No. 03AP-379, 2004-Ohio It is very evident in the record that Claimant executed documentation demonstrating his intent to voluntarily retire from his employment with AT&T. Claimant does not dispute that he signed his name to documentation explicitly stating: "I DO elect to voluntarily terminate my employment with AT&T and ACCEPT SIPP benefits. I understand that my last day on the AT&T payroll will be December 29, 2008." (Stipulated Evidence No. 49, emphasis added). This documentation is direct proof of Claimant's intent to voluntarily leave the workforce. Conversely, there is no evidence in the record showing that Claimant was forced to leave his position of employment. the claimant chose to retire based on his 30 years of service with the employer. In Furrie, In that case, there was no evidence in the medical records that he was forced to retire due to the -15- CLEVELAND/421435V.1

20 allowed conditions in the claim. Therefore, the court concluded that the claimant retired for reasons unrelated to his injuries, and his retirement amounted to a voluntary abandonment of his former position of employment, disqualifying him from TTC. Id. Here, the Commission found Furrie to be persuasive in determining Claimant is not entitled to TTC. Furrie is analogous to the present case. Claimant underwent two nonoccupational surgeries in the year preceding his voluntary retirement. Like Furrie, there is no evidence that Claimant's physician of record recommended retirement due to the allowed conditions in the claim. As in Furrie, there is no medical evidence that Claimant was forced to retire due to the allowed conditions in the claim. Additionally, Claimant admitted he received the financial incentive of $31, in return for accepting the SIPP package. He further admitted that if he did not accept the SIPP package, he would have retired in January 2009 the added financial incentive. Therefore, the Commission's order in the present case is without consistent with Furrie and reasons cited by the Furrie opinion. Furrie is Claimant's anticipated argument that he took a disability retirement and inapplicable has no merit. In actuality, he exercised his option to accept the financial incentives offered with the SIPP package offered to multiple employees. The evidence shows that Claimant's retirement was for financial reasons. Therefore, his retirement was voluntary and precludes the payment of the requested TTC. Claimant has argued that State ex rel. Jorza v. Indus. Comm. (2010), 124 Ohio St.3d 264 supports his position. However, in Jorza, this Court remanded the matter to the Commission for a decision as to the status of the claimant's disability at the time of a buy-out. Thus, this Court did not reach an ultimate conclusion. More importantly, the Commission correctly distinguished the present case from the facts -16- CLEVELAND/421435v.1

21 in Jorza. In Jorza, the claimant had a pending TTC request at the time of accepting a buy-out, whereas here Claimant did not have a pending request for TTC at the time of retirement. Hence, Jorza is distinguishable from the instant case and is inapplicable. Here, Claimant was not receiving TTC at the time of his retirement. Thus, at that time Claimant voluntarily elected to retire, and no medical evidence supported his allegation that he was disabled due to the allowed conditions in his claim. At the time of his executing the SIPP documentation, there was no determination by the self-insured employer or the Commission that he was disabled due to the allowed conditions in the claim. Hence, Jorza provides no support for Claimant's position. On the other hand, AT&T's position finds additional support in State ex rel. Smith v. Indus. Comm. ( 1990), 50 Ohio St.3d 45. There, this Court held that when a claimant is not receiving TTC during the time period preceding the retirement, even when the claimant's condition may worsen after retirement, "it does not transform what was initially a voluntary noninjury retirement into an involuntary one." Thus, this Court has held that a claimant must be on TTC at the time of retirement for a retirement to be deemed involuntary. Here, Claimant was not receiving TTC at the time of his voluntary retirement. Moreover, at the time he accepted the SIPP benefit, he had not filed a request for TTC for the period of time preceding his voluntary retirement. He was not disabled due to the allowed conditions in his claim at the time of his retirement. Therefore, the Smith decision is directly in line with the Commission's order and supports AT&T's position. Claimant's anticipated argument that but ior the Commission's decision to deny TTC from January 4, 2008 through December 23, 2008, he would have otherwise been on TTC is off base. Rather, the proper analysis must focus on what was happening at the time of retirement CLEVELAND/421435v.1

22 In the present case, Claimant did not have a pending request for TTC at the time of his voluntary retirement, nor did he submit any paperwork at or near the time of his voluntary retirement indicating he was disabled for his workers' compensation claim. Moreover, Claimant did not submit any evidence that a physician recommended retirement due to his workers' compensation claim. Accordingly, there is a distinct lack of proof that Claimant was disabled due to the allowed conditions in the claim at the time of his retirement. Under the above-noted instruction and directive from this Court, the evidence here supports the Commission's finding that Claimant's retirement was voluntary. It is anticipated Claimant will also contend that the July 16, 2009 report of Dr. Zellers (Stipulated Evidence No. 31) supports his entitlement to TTC and also indicates that his retirement was injury induced. However, the Commission was free to reject Dr. Zellers' report in its evaluation of the evidence. The analysis of the evidence is the Commission's province. The bottom line is that the record contains substantial evidence supporting the Commission's findings regarding both periods of TTC at issue, including the Commission's determination that Claimant's retirement was in fact voluntary. In short, the evidence in the record shows that the allowed conditions did not induce the retirement. Specifically, no physician opined that Claimant should retire due to the allowed conditions in the claim, and Claimant did not submit a request for TTC at or near the time of his acceptance of the SIPP incentives. The record shows that the Commission evaluated the relevant factors, including Claimant's financial incentive, in determining his retirement was voluntary. In the end, the Commission, as the arbiter of disability, concluded that Claimant voluntarily retired and was precluded from receiving TTC. In doing so, the Commission stated the evidence relied upon in reaching this conclusion and the reasons for its conclusion. The -18- CLEVELAND/421435v.1

23 Commission's finding is supported by substantial evidence in the record. Overall, the record shows that Claimant voluntarily retired from his employment with AT&T and is therefore precluded from receiving TTC. CONCLUSION Wherefore, for the foregoing reasons Appellant AT&T respectfully requests this Honorable Court to reverse the judgment of the court of appeals and to deny the requested writ of mandamus in its entirety. The Commission's order is supported by "some evidence" and the order complies with Noll. Claimant is barred from entitlement to the requested TTC due to lack of contemporaneous medical proof and his voluntary retirement. Hence, there is no entitlement to a writ of mandamus, and the Commission's final order should stand. Respectfully submitted, Fred J. mpeani ( ) Rebe a A. Kopp ( ) Po er Wright Morris & Arthur LLP 925 Euclid Avenue, Suite 1700 Cleveland, Ohio (216) ; Fax No. (216) fpompeani@porterwright. com rkopp@porterwright.com Counsel for Appellant Ameritech-Ohio SBC/Ameritech -19- CLEVELAND/421435v.1

24 PROOF OF SERVICE The undersigned hereby certifies that the foregoing has been served thisl^ day of March, 2013, on: Michael Gruhin, Esq. Gruhin & Gruhin 2000 Auburn Drive NE, 2"d Floor Beachwood, OH Attorney for Relator-Appellee Thomas Kempinski Rema A. Ina, Esq. Assistant Attorney General Ohio Attorney General's Office Workers' Compensation Section 150 East Gay Street, 22"a Floor Columbus, Ohio Attorney for Respondent-Appellee Industrial Commission of Ohio -20- CLEVELAND/421435v.1

25 APPENDIX -21- CLEVELAND/421435v.1

26 ,l 1 IN THE SUPREME COURT OF OHIO State of Ohio ex rel. Thomas Kempinski, V. Relator-Appellee, Industrial Commission of Ohio, Respondent-Appellee, On Appeal From the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No.10AP-1144 I and Ameritech-Ohio SBC/Ameritech, Respondent-Appellant. NOTICE OF APPEAL OF APPELLANT AMERITECH-OHIO SBC/AMERITECH FRED J. POMPEANI, ESQ. ( ) REBECCA A. KOPP, ESQ. ( ) Porter Wright Morris & Arthur, LLP 925 Euclid Avenue, Suite 1700 Cleveland, Ohio (216) ; (216) (fax) fpompeani@porterwright.com rkopp@porterwright.com Attorneys for Respondent-Appellant Ameritech-Ohio SBC/Ameritech RL I so dlc 3 G W2 CLERK OF COURT SUmmE cdurt OF OHlO MICHAEL H. GRUHIN, ESQ. ( ) Gruhin & Gruhin One Chagrin-Highlands 2000 Auburn Drive NE, 2 d Floor Beachwood, OH (216) ; (216) (fax) litigation@gruhin.com Attorney for Relator-Appellee Thomas Kempinski REMA A. INA, ESQ. ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22 d Floor Columbus, Ohio (614) ; (614) (fax) Rema.ina@ohioattorneygeneral.gov Attorney for Respondent-Appellee Industrial Commission of Ohio CLEVELAND/ A-1

27 j. 1 NOTICE OF APPEAL OF APPELLANT AMERITECH-OHIO SBC/AMERITECH Appellant Ameritech-Ohio SBC/Ameritech hereby gives Notice of Appeal to the Supreme Court of Ohio from the judgment of the Franklin County Court of Appeals, Tenth Appellate District, entered in Court of Appeals Case No. loap-1144 on September 17, 2012, a copy of which judgment is attached hereto. Also attached is the Decision of the Franklin County Court of Appeals. This is an appeal of right under Supreme Court Practice Rule 2.1(A)(1) because this case originated in the Franklin County Court of Appeals. Respectfully submitted, Fred J. P mpeani ( ) Rebe a A. Kopp ( ) Po er Wright Morris & Arthur LLP 925 Euclid Avenue, Suite 1700 Cleveland, Ohio (216) Fax No. (216) fpompeani@porterwright.com rkopp@porterwright.com Counsel_for_Appellant Ameritech-Ohio SBC/Ameritech CLEVELAND/418104v.1 A-2

28 PROOF OF SERVICE The undersigned hereby certifies that the foregoing has been served this ^ ZI day of October, 2012, on: Michael Gruhin, Esq. Gruhin & Gruhin 2000 Auburn Drive NE, 2 d Floor Beachwood, OH Attorney for Relator-Appellee Thomas Kempinski Rema A. Ina, Esq. Assistant Attorney General Ohio Attorney General's Office Workers' Compensation Section 150 East Gay Street, 22"d Floor Columbus, Ohio Attorney for Respondent-Appellee Industrial Commission of Ohio A-3 CLEVELAND/418104v.1

29 (0 J IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT qt ti CL m (1) N qrl O a 0 I State of Ohio ex rel. Thomas Kempinski, vv. Relator, No. ^.oap-xi44 of Ohio (REGULAR CALENDAR) Industrial Commission and Ameritech-Ohio SBC/Ameritech, Respondents. JUDGMENT E1^RY Por the reasons stated in the decision of this court rendered herein on September 11, 2032, the objections to the decision of the magistrate are overruled, we adopt the magfstrate's decision as our own with regard to the findings of fact and conclusions of law, and grant relator's request for a writ of mandamus ordermg the commission to vacate its order of May 25, 2010, to the extent it denies temporary total disability ("TTD") compensation, and to enter a new order in compliance with State ex Comm., 57 Ohio St.3d 203 (iggi) that adjudicates relator's motion for rei. NoU v. Indus. 'r'i'd compensation. Costs are assessed against respondents. 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 failure to appear, notice of this judgment and its date of entry upon the journal. Judge Susan Rown, P.J. JudgefLisit L. Sadler ^'i" - ju-dg 'e Judith L. Frei A-4

30 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT!9` 56 j I.`.^ State of Ohio ex rel. Thomas Kempinski, Relator, V. Industrial Commission of Ohio and Ameritech-Ohio SBC/Ameritech, No.1oAP-i144 (REGULAR CALENDAR) Respondents. D E C I S I 0 N Rendered on September,li, 2012 Gruhin & Gruhin, and Michael H. Gruhin, for relator. Michael DeWine, Attorney General, and Rema A. Ina, for respondent Industrial Commission of Ohio. Porter Wright Morris & Arthur, LLP, Fred J. Pompeani, and Rebecca A. Kopp, for respondent Ameritech-Ohio SBC/Ameritech. IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION BROWN, P.J. 1} Relator, Thomas Kempinski, has filed an original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying relator temporary total disability ("TTD") compensation for the period of January 4, 20o8 through December 28, 2oo8, based upon A-5

31 No. loap the commission's finding of a lack of contemporaneous medical proof relating to the disability from the allowed conditions to the period at issue, and denying TTD compensation after December 28, 20o8, on the grounds that relator allegedly voluntarily retired from his employment with respondent, Ameritech-Ohio SBC/Ameritech ("Ameritech"). { 2} The matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. On December 22, 2010, the magistrate issued the appended decision, including findings of fact and conclusions of law, recommending that this court issue a writ of mandamus ordering the commission to vacate its May 25, 2010 order to the extent that it denies TTD compensation, and to enter a new order that adjudicates relator's April 7, 2009 motion for TTD compensation. { 3} Ameritech has filed objections to the magistrate's decision, asserting that the magistrate erred in concluding that the commission's May 25, 2010 order denying 'ITD compensation violates State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). Ameritech further argues that the magistrate erred in concluding that relator could be entitled to TTII compensation despite the fact he received non-occupational short-term disability payments and that his surgeries were paid for under his non-occupational insurance. Ameritech also challenges the magistrate's conclusion that the commission's finding of a lack of contemporaneous medical proof is not supported by some evidence in the record. { 4} In its brief submitted to the magistrate in response to relator's request for mandamus, the commission "concede[d]" that its order did not specifically state what medical evidence it was relying upon, and did not explain why the medical evidence was inadequate. (Commission Brief at ii.) The magistrate framed the primary issue in this action as whether the commission "correctly concedes" that its May 25, 2010 order denying TTD compensation beginning January 4, 20o8 violates the dictates of Noll. (Magistrate's Decision at 15.) { 5} In Noll, the Supreme Court of Ohio directed the commission to "speeifically state what evidence has been relied upon, and briefly explain the reasoning for its decision," noting that "[a]n order of the commission should make it readily apparent from the four corners of the decision that there is some evidence supporting it." Id. at 2o6. A-6

32 No. 1oAP { 6} In the instant action, the magistrate concluded that the. order did not comply with NoII. More specifically, the magistrate determined that the commission's finding of a lack of contemporaneous medical proof of disability was not supported by some evidence, as the commission failed to adjudicate the issue of whether C-84s completed by several physicians established TTD, and the order failed to indicate what medical evidence the commission deemed unpersuasive. The magistrate also rejected the implication in the commission's order that relator could not have been temporarily and totally disabled during the relevant time period because of evidence he received nonoccupational short-term disability payments/benefits.l { 7} Ameritech's contention that the commission could have properly determined that a claimant's receipt of non-occupational benefits constitutes substantial evidence that a period of disability is non-occupational in nature is not persuasive. Under the provisions of R.C , "temporary total disability is defined as a disability which prevents a worker from returning to his former position of employment." State ex rel. Ramirez U. Indus. Comm., 69 Ohio St.2d 630, syllabus. As recognized by the magistrate, while R.C provides for an offset of temporary non-occupational accident insurance benefits paid by the employer against workers' compensation benefits, the receipt of non-occupational payments itself is not dispositive of an injured worker's claim for TTD compensation. Rather, the commission, as ultimate arbiter of disability, determines whether the evidence establishes that a requested period of disability is causally related to allowed conditions. Further, we agree with the magistrate's conclusion (and the commission's admission) that the order fails to explain, contrary to Noll, what specific evidence the commission relied upon to support its order. We conclude, however, that" we need not determine whether the medical evidence, including the C-84s and physician office notes,. undermines the commission's finding of a lack of contemporaneous medical proof of disability during 20o8 and leave analysis of the evidence to the commission. 1 In light of the magistrate's recommendation that the matter be remanded to the commission to again consider relator's entitlement to TFD compensation, the magistrate deemed it premature to address the issue of whether the commission abused its discretion in determining that relator's retirement was voluntary. A-7

33 No. ioap { 8} Upon examination of the magistrate's decision, an independent review of the record, pursuant to Civ.R 53, and consideration of Ameritech's objections, we find that the magistrate has properly determined the facts and the applicable law. Accordingly, we overrule Ameritech's objections and adopt the magistrate's decision as our own, including the findings of fact and conclusions of law. In accordance with the magistrate's recommendation, we grant a writ of mandamus ordering the commission to vacate its order of May 25, 2010, to the extent it denies TTD compensation and to enter a new order, in compliance with Noll, that adjudicates relator's motion for TTD compensation. Objections overruled, writ of mandamus granted. SADLER and FRENCH, JJ., concur. a A-8

34 No. loap APPENDIX IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Thomas Kempinski, V. Relator, Industrial Commission of Ohio and Ameritech-Ohio SBC/Ameritech, No. ioap-1144 (REGULAR CALENDAR). Respondents. MAGISTRATE'S DECISION Rendered on December 22,.2010 Gruhin & Gruhin, and Michael H. Gruhin, for relator. Michael DeWine, Attorney General, and Derrick Knapp, for respondent Industrial Commission of Ohio. Porter Wright Morris & Arthur, LLP, Fred J. Pompeani, and Rebecca A. Kopp, for respondent Ameritech-Ohio SBC/Ameritech. in 1vIANDAMJS { 9} In this original action, relator, Thomas Kempinski, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order to the extent that it denies temporary total disability ("TTD") compensation for A-9

35 No. ioap the period January 4 through December 28, 2oo8 on grounds that allegedly there is no contemporaneous medical proof relating disability to the industrial injury, and to the extent that it denies 'ITD compensation after December 28, 2oo8 on grounds that allegedly relator voluntarily retired from his employment with respondent Ameritech- Ohio SBC/Ameritech ("Ameritech"). Findings of Fact: { On August 21, iggi, relator injured his lower back while employed as a service technician for Ameritech, a self-insured employer under Ohio's workers' compensation laws. { 11} 2. The industrial claim (No. L ) is allowed for: Low back strain left; herniated disc L4, L5 and L6-S1; degenerative disc at L4-through Si; foraminal stenosis; epidural fibrosis, levels L5-Si (aka post-laminectomy syndrome). { 12} 3. Following a period of TTD, relator returned to work at Ameritech in July 2007 at a modified job. { 13} 4. On December 20, 2oo7, attending physician Stephen R. Bernie, M.D., wrote: Mr. Kempinski returns to the office with increasing pain in his lower back. He continues to work for AT&T, but on light duty. He has difficulty getting to work because of the sitting for a long period of time in his car. He recently saw Dr. Kim of the Collis Orthopedic Group, who re-evaluated him and evaluated the recent MRI scan and suggested that he see a colleague in the group to evaluate pain referring from the piriformis muscle and possibly need to decompress the sciatic nerve. After evaluation, if this is not the case, Dr. Kim will perform a spinal surgery. *** * * * He will continue working with restrictions. We will obtain a C-9 for evaluation of his sciatic nerve. He will continue taking Percocet (lo/65o, every 4-6 hours as needed for pain). He will have a follow-up visit in the next 2-3 weeks. A-10

36 No. ioap { 14} 5. On January 3, 2oo8, Dr. Bernie completed a C-84 certifying TTD beginning January 4, 2oo8 to an estimated return-to-work date of February 11, 2oo8. { 15} 6. By letter dated January 10, 2oo8, Ameritech disputed the C-84 and indicated that an employer medical examination would be scheduled. { 16} 7. On January 29, 20o8, relator underwent a surgical procedure performed by Louis Keppler, M.D. In his operative report, the surgery is described as "[e]xploration and decompression of sciatic nerve." { 17} 8. On July 9, 2oo8, relator underwent another surgery performed by Dr. Keppler. In his operative report, the surgery is described as "[l]eft L4 hemilaminotomy, medial facetectomy, with intertransverse and intercanalicular approach to disk herniation for diskectomy; intraoperative use of microscope." { 18} 9. In an August 15, 20o8 office note, Dr. Keppler wrote: HISTORY: I spoke to him over the phone. He is still having some persistent numbness in his left leg. He says the OxyContin take away his back pain but he has this numbness in his left leg. { 19} io. In an August 21, 2oo8 office note, Dr. Keppler wrote: HISTORY: He comes in today after undergoing discectomy done about six weeks ago. I had a conversation with him on the phone. We increased his Lyrica. That seems to have helped with his numbness in his leg. He says this past week it seems to have improved. The numbness is not as severe. PHYSICAL EXAMINATION: Dr. Keppler went in and discussed with him his options. He himself notedi that he is doing better. We are going to continue to observe him and observe the numbness he is having. { 20} li. In an office note dated October 9; 2oo8, Dr. Keppler wrote: Tom Kempinski still has persistent leg pain. His EMG is not showing significant change. It does show evidence of L5-Si radiculopathy. This may represent permanent nerve injury. I am recommending that a new MRI scan be performed as well as an MRI of the hip and pelvis to insure there is no further compression on the nerves. If that is the case, then it may be reasonable to refer him to Dr. Blades for A-11

37 No. ioap consideration of spinal cord stimulator. He understands all this and we'll proceed with the testing In an office note dated October 30, 2oo8, Dr. Keppler wrote: Thomas Kempinski comes in today after undergoing MRI. It does show enlargement and increased signal in the left L5-S1 nerve root which corresponds to his left leg pain. Dr. Keppler went over his findings with him. He spent a couple days at St. John's for pain management and said he got much accomplished there. Next time he'll see us at St. Vincent's. Dr. Keppler would like him to undergo a decreasing Prednisone taper. We'll start at 6o and work our way down, 40/40, 20/2o and then io. He'll give us a call on Monday to let us know how he is doing. I also gave him Vistoril that he is to take with his Percocet and we'll see how he responds to that. * * * { 22} 13. In an office note dated November 20, 2oo8, Dr. Keppler wrote: HISTORY: He comes in today having selective nerve root blocks done by Dr. Keppler. He did get relief, and he was also put on a tapering dose of Medrol. He is getting relief. Pain is starting to resurface. PLAN: He would like to undergo caudal block. So we will schedule him to flood the area to see if we can get some relief while he is still having relief with the cortisone. So we will need to get this scheduled as soon as possible. Dr. Keppler feels he would benefit with this, so we will get this scheduled as soon as possible. * * ^ { 23} 14. In an office note dated January 15, 2oog, Dr. Keppler wrote: Thomas Kempinski persists with pain in his leg. He has had a good trial of conservative management with respect to Lyrica and analgesic medication. He has had his nerve compressed starting at the sciatic nerve both extraforaminally as well as within the canal. He has MRI evidence oi' radiculitis. I am recommending that he visit with Dr. Michael Stanton-Hicks, a specialist in chronic nerve pain and I have phone[d] Dr. Stanton-Hicks today about Mr. Kempinski's condition. I will await Dr. Stanton-Hicks report. A-12

38 No. ioap { 24} 15. On January 15, 2009, Dr. Keppler wrote a letter to relator: { 25} 16. I spoke to Dr. Michael Stanton-Hicks at the Cleveland Clinic with respect to your problem. * * * I would like Dr. Stanton- Hicks to examine you and evaluate your condition and determine if there he can offer you some help with the use of a spinal cord stimulator to treat your persistent nerve pain. Ameritech records indicate that relator was paid "wage replacement benefits" for the period January 1o through December 10, 20o8. { 26} 17. The record contains the terms of an agreement or contract between Ameritech and the Communications Workers of America ("union") effective April 4, 2004 through April 4; Section of the contract provides: Supplemental Income Protection Program If during the term of this Agreement, the Company notifies the Union in writing that a force surplus condition may exist as defined in Section: Force Adjustment, below, and said force surplus cannot be eliminated through force rearrangement, the Company shall offer Supplemental Income Protection Program (SIPP) benefits as follows: (A) Prior to a formal declaration of surplus, SIPP shall be offered to employees, in seniority order, in an anticipated Surplus Work Group, and to the extent necessary to eliminate the anticipated surplus. These employees will have four (4) working days to respond to the offer. Employees accepting SIPP as outlined above shall be required to remain with the Company until that date determined by management to be the employee's severance date in order for the employee to receive the SIPP payment. (B) An employee's election to leave the service of the Company and receive Supplemental Income Protection Program benefits may not be revoked By letter dated December 5, 2oo8, Ameritech offered relator an opportunity to participate in the Supplemental Income Protection Plan ("SIPP"). The letter informed relator that he had until Thursday, December 11, 2oo8 at 5:00 p.m. A-13

39 No. i.oap central time to accept the SIPP offer by returning a signed "SIPP Employee Acknowledgement Form" to Ameritech's human resources office On December 11, 2oo8, relator signed the "SIPP Employee Acknowledgeinent Form" and timely returned it to Ameritech. Relator signed his name under the following pre-printed language: (Emphases sic.) I DO elect to voluntarily terminate my employment with AT&T and ACCEPT SIPP benefits. I understand that my last day on the AT&T payroll will be December 28, 2oo8. { 29} 20. Pursuant to relator's timely acceptance of Ameritech's SIPP offer, relator received a lump-sum payment of $31,000 that corresponded to his 32 years of service On April 7, 20o9, relator moved for an additional claim allowance and for TTD compensation beginning January 4, { 31} 22. On May 29, 20o9, at Ameritech's request, relator was examined by Gordon Zellers, M.D. In his seven-page narrative report dated July 16, 2009, Dr. Zellers opined: [U]pon acknowledging the patient's persistent symptom complex, it must be concluded that his claim-related complaints preclude him from being able to resume his original full-time, full-duty work activities as a building servicer as he would be unable to tolerate the lifting and/or prolonged ambulatory activities required of him by that occupation. At this point in time, any attempt to return to the work environment would need to be in direct compliance with the following claim-related physical limitations: [One] Sedentary labor activities only. [Two] A two pound maximum lifting limit on an occasional, as tolerated basis only. [Three] No prolonged sitting, standing or ambulating. [Four] This patient must be permitted to change body positions on a p.r.n. basis. A-14

40 No.1oAP [Five] This patient must be permitted to use his cane for all standing/ambulatory activities. [Six] No climbing activities. [Seven] No above groundwork should that environment pose a threat to the patient's safety. [Eight] No bending activities. [Nine] No squatting activities. [Ten] No repetitive activities involving the left lower extremity. [Eleven] This patient should not be exposed to vibratory stimuli. [Twelve] This patient should not be permitted to perform safety sensitive work activities while under the influence of sedative type medications. { 32} 23. On August 13, 2009, at the request of Ameritech's counsel, Dr. Zellers issued an addendum to his July 16, 2oog report: Despite this patient's compliance with very aggressive medical care, which has included multiple surgical procedures and extensive rehabilitation, his overall recovery as it relates to his lumbosacral spine region has been poor. At the time of my previous consultation, the patient was experiencing persistent, constant low back discomfort with refractory lower extremity radicular complaints and, objectively, his physical examination findings were consistent with his subjective presentation. As emphasized in the Conclusion Section of my previous report, the patient's treating physicians have ruled out the pursuit of any further surgical intervention. As a result, at this point in time, the patient's only remaining treatment option is to pursue aggressive pain management modalities. { 33} 24. On October 1, 2oo9, relator's April 7, 2009 motion was heard by a district hearing officer ("DHO"). The hearing was recorded and transcribed for the record. Following the hearing, the DHO issued an order additionally allowing the claim, A-15

41 No.1oAP but denying TTD compensation beginning January 4, 2oo8 on grounds that relator had voluntarily retired. The DHO's order explains the denial of TTD compensation: The request for Temporary Total Disability Compensation from 01/04/20o8 through the present, and to continue upon proof, is denied. The Hearing Officer finds that the Injured Worker was receiving short-term disability up until he voluntarily retired on 12/31/2oo8. The Injured Worker received a buyout of additional money as an incentive for accepting this retirement. The Injured Worker returned to work one day in order to receive his retirement. Thus, the Hearing Officer finds that the Injured Worker benefited financially from his retirement and the retirement was voluntary. { 34} 25. Relator administratively appealed the DHO's order of October 1, { 35} 26. On December 23, 2oo9, relator executed an affidavit stating: Prior to my industrial accident, my job classification with AT&T was Service Technician. This included climbing ladders, going up telephone poles, all duties related to telephone service repair and/or installation. Due to the work injury sustained in this claim, AT&T assigned me to light duty. My classification was changed to Helper.. In that position, I assisted the service technician, but I did no climbing, no lifting, or other duties of a service technician. As of January 2oo8, I had been working for AT&T approximately 31 years. In August, 2oo6, I was taken off work and received Temporary Total Disability payments in this claim. My Temporary Total stopped in July, 2007, when I was found to be 1VIMI. I returned to work, in a light duty capacity because of the allowed work injury back conditions. My back got progressively worse from July, I tried to keep working, but towards the end of 2007 and the beginning of January 2008, my back condition deteriorated to the point where I was in constant pain. I was having difficulty standing and walking. I was unable to perform light duty work. I went to see my doctor and was told I needed lumbar surgery to alleviate my pain. A-16

42 No.1oAP-1i44 13 My doctor completed a C84, certifying I could not work. I filed the C84 in order to receive funds while I recuperated from surgery. AT&T denied the C84. As a result of the denied C84, I knew that AT&T would fight every aspect of my claim. I could not wait and play the workers' compensation game. I couldn't survive waiting for the hearing process to get approval for my temporary total disability or surgery. I decided that I would put "everything" through my employee disability policy and health insurance. I needed immediate medical treatment to get fixed up as soon in order to stop the pain and my incapacity. I needed immediate money to pay my bills while I recovered from surgery. Dr. Keppler submitted disability forms to AT&T. I was paid through the disability division of AT&T from January 4, 2oo8 through December 11, 2oo8. In November 20o8, I started calling AT&T disability to find out if AT&T would place me on long term disability. I knew that the short term disability would expire after 12 months. November 2oo8 was my l.ith-month on short term disability. I was told that because of my years of service, in excess of 30., AT&T could unilaterally decide to place me on retirement. I wanted the long term disability so I could return to work when I was able. I desperately wanted to get onto long term disability because, under that plan, once the doctor felt I could return to light duty, AT&T would have to take me back to work. I never intended to retire from AT&T. I kept calling to find out what AT&T was going to do. Towards the end of November and beginning of December 2008, I kept calling for status as to long term disability. I was getting concerned that I was going to be placed on forced retirement. On December 5, 2oo8, AT&T issued a letter stating that I had until December 11, 2oo8 at 5:00 PM to inform AT&T whether I wanted to take SIPP. The letter stated that an answer was required prior to the deadline and, that once chosen, the decision was final. A-17

43 No.1oAP Because I was unable to get an answer from AT&T regarding the long term disability, I was terrified that, at any time after December iith, I could be told that I was being placed on forced retirement due to years of service and I would lose the SIPP funds in the amount of $31, Prior to December. 7, 20o8, the approximate date I received the AT&T SIPP letter, at no time did I seek, inquire, or initiate retirement from employment. As set forth above,. I had no desire to retire from AT&T. I wanted to return to light duty work when released by my doctor. { 36} 27. On February 8, 2010, Dr. Keppler completed a C-84 on which he certified TTD from January 14, 2oo8 to an estimated return-to-work date of March 1, { 37} 28. On February 22, 2o1o, relator's administrative appeal was heard by a staff hearing officer ("SHO"). The heariiig was recorded and transcribed for the record Following the February 22, 201o hearing, the SHO mailed an order on February 27, 2010 affirming the DHO's order. The SHO's order explains: The Staff Hearing Officer affirms the District Hearing Officer order which granted in part and denied in part the Injured Worker's C-86 motion. Injured Worker's counsel withdrew the request for consideration of payment of temporary total compensation from 01/04/2oo8 through 12/31/2oo8 as the Injured Worker received short-term disability benefits for this period and any award of temporary tnsatio he had already been exceed the amount of compe... paid under the disability plan. The Staff Hearing Officer finds that the. self-insuring employer has ACCEPTED the claim for "EPIDURAL FIBROSIS, LEVELS L5-S1 (AKA POST-LAMINECTOMY SYNDROME)" based on the 07/16/2ooy report of. Dr. Zellers, '_rhe Staff Hearing Officer concurs with the finding of the District Hearing Officer that the Injured Worker voluntarily retired on 12/31/2oo8 and therefore is not eligible for the payment of temporary total compensation beyond that date. In December, 20o8, the employer offered a financial incentive to employees eligible for a traditional years of service retirement (the implication being that the A-18

44 No.1oAP-1i44 15 (Emphases sic.) plan was designed to reduce the size of the employer's work force). Mr. Kempinski testified that he was nearing the end of his short-term disability period and seeking a conversion to long term disability which would have potentially allowed him to return to work at some future date. He indicated that he was awaiting a response with respect to his long term disability status when the employer's financial incentive to retire package was offered. With the deadline for acceptance upon him and uncertain of his disability or retirement prospects, he stated that he accepted the financial inducement to retire. The Staff Hearing Officer finds that the Injured Worker elected to voluntarily retire on 12/3i/2oo8. The Staff Hearing Officer finds that the Injured Worker was presented with a set of financial options and that he chose the option which he perceived was the most financially advantageous (given his particular circumstances). There is no evidence to suggest that the Injured Worker was forced or coerced to accept the incentive package (the same package was offered to other eligible employees based on years of service). The Staff HearingOfficer finds that the Injured Worker voluntarily retired based on his decision to accept the employer's financial incentive to retire #and therefore is precluded from receiving payment of temporary total compensation. { 39} 30. Relator administratively appealed the SHO's order of February 22, { Following a May 25, 2o1o hearing, the three-member commission, in a two-to-one vote, issued an order that vacates the SHO's order of February 22, 2010, recognizes an additional claim allowance, and denies TTD compensation beginning January 4, 2oo8. As to the issue of TTD compensation, the commission's order explains: At hearing before the Commission, the Injured Worker's attorney renewed the request for the payment of temporary total disability compensation from 01/04/2oo8 through the present, and to continue upon the submission of appropriate medical proof. Payment of temporary total disability compensation from 01/04/2oo8 through 12/28/ 2 o8 requires a determination of whether the Injured Worker's receipt of short-term disability benefits over this period was A-19

45 No.1oAP in lieu of temporary total disability compensation. Payment of temporary total disability compensation after 12/28/2oo8 requires a determination of whether the Injured Worker's retirement was voluntary or involuntary. The payment of temporary total disability compensation from 01/04/20o8 through 12/28/2oo8, inclusive, is specifically denied due to a lack of contemporaneous medical proof relating the disability from the allowed conditions to the period at issue. The Injured Worker had low back surgery on 01/29/2oo8 and on 07/09/2oo8. The bills for these surgeries were filed by the Injured Worker with, and paid under, his non-occupational insurance. During the period the Injured Worker was off work as a result of these surgeries, the Injured Worker elected to receive nonoccupational, short-term disability payments from the Employer. To further support its argument that the Injured Worker's surgeries and disability were non-occupational, the Employer pointed out that it had denied the Injured Worker's request for temporary total disability compensation for the period of disability in question. The Injured Worker did not protest the denial of temporary total disability compensation. Finally, the Employer argues. that there is no sufficiently persuasiwe medical evidence on file that alters the previous formal designation of the period of disability as non-occupational. The Commission agrees. During the time the Injured Worker was receiving shortterm disability benefits, the Employer offered the workforce, including the Injured Worker, a Supplemental Income Protection Program (SIPP) benefit. By offering SIPP, the Employer was attempting to reduce its workforce due to economic factors. Under SIPP, a worker could elect to voluntarily retire in exchange for a financial incentive. For the Injured Worker, the financial incentive was $31,000.00, in addition to his retirement package. The Injured Worker was free to accept, or reject, the SIPP benefit by 12/11/2o08. The Injured Worker testified at hearing that when he was offered SIPP, he was near the end of his eligibility for shortterm disability benefits. The Injured Worker had contacted the Employer in November and requested to be placed on non-occupational long-term disability. At the time he was offered SIPP, he was awaiting a decision on his application for long-term disability benefits. The Injured Worker further testified that if he was approved to receive long-term A-20

46 No.1oAP disability benefits, he would be permitted to return to work once he was medically released by his physician. The Injured Worker asserted that as a result of the inaction on the longterm disability application, and the deadline for accepting or rejecting the SIPP incentive approaching, the Injured Worker elected to accept the financial incentives under the SIPP program and the $31, lump sum payment. There is no medical evidence, dated on or around, the month of December 20o8, from the Injured Worker's treating physician advising the Injured Worker to retire due to the allowed conditions. The Injured Worker agreed that the last day upon which he would be on the Employer's payroll was 12/28/2oo8. The Commission understands the difficulty of the Injured Worker's situation regarding the deadline for accepting the SIPP and the outstanding long-term disability application; however, the Commission finds that the Injured Worker did elect to retire rather than wait for the final decision on his pending application. There is no evidence in file that the SIPP was directed only to the Injured Worker to unfairly force him.from the workforce. The SIPP was a workforcewide employment tool utilized by the Employer under the Union Contract - between SBC Midwest and the Communications Workers of America. The unfortunate timing of the SIPP does not render the Injured Worker's decision involuntary. The Injured Worker's voluntary retirement on 12/28/2oo8 precludes the payment of temporary total disability compensation. The instant situation is distinguished from State ex rel. Jorza v. Indus. Comm., 124 Ohio St.3d 264, 2o1o-Ohio-119. In Jorza; the Supreme Court remanded the case to the Commission for clarification of the injured worker's disability status when her employment with the employer ended due to her acceptance of an incentive buyout. The injured worker therein had a pending application for the payment of temporary total disability compensation when her employment ended. In the instant case, the Injured Worker did not have any pending request for the payment of temporary total disability, compensation when he accepted the workforce reduction incentive. As set forth above, the Injured Worker has specifically been found not temporarily and totally disabled due to the allowed conditions at the time of his election to retire and to accept the additional financial incentive of $31,ooo.oo. Further, the Injured Worker A-21

47 No.1oAP believed, and testified at hearing, that if his long-term disability was denied, he would be forced to retire due to his seniority of over 31 years of service in January, 2oo9, and if he did not accept the SIPP, he would have lost out on the $31, incentive. Therefore, it. is the finding of the Commission that. the Injured Worker voluntarily abandoned the workforce when he accepted the SIPP incentives for his financial advantage. Furrie v Indus. Comm.t loth Dist. App. No. o3ap-370, 2004-Ohio Therefore, temporary total disability, compen-sation is specifically denied from 12/29/2oo8 through 05/25/2010. { On mandamus action. December 10, 2010, relator, Thomas Kempinski, filed this Conclusions of Law: { 42} The main issue is whether the commission correctly concedes in this action that its May 25, 2010 order denying TTD compensation beginning January 4, 2oo8 violates State ex rel. Noll v. Indus. Comm. (199i), 57 Ohio St.3d 203. { 43} Finding that the cciminission's order does violate Noll, it is the magistrate's decision that this court issue a writ of mandamus, as more fully explained below.. { 44} The commission's order denies TTD compensation for the period January 4 through December 28, 2oo8 and then, based upon its finding that relator voluntarily retired, denies TTD compensation beyond December 28, 2oo8. { 45} As earlier noted, on January 3, 20o8; Dr. Bernie completed a C-84 certifying TTD beginning January, 4, 2o08 to an estimated return-to-work date of February 11, Also, on February 8, 201o, Dr. Keppler completed a C-84 on which he certified TTD from January 14, 2oo8 to an estimated return-to-work date of March 1, Thus, the initial period of TTD at issue, i.e., January 4 through December 28, 2oo8, was covered by the C-84s from Drs. Bernie and Keppler. It was the duty of the commission to adjudicate the question of whether those C-84s persuasively established TTD. The commission did not indicate in its order that it actually adjudicated the C-84s. { 46} In fact, the C-84s from Drs, Bernie and Keppler are not even mentioned in the commission's order. Rather, the commission's order states that TTD compensation A-22

48 No. 1oAP-1144 ig from January 4 through December 28, 2oo8 "is specifically denied due to a lack of contemporaneous medical proof relating the disability from the allowed conditions to the period at issue." { 47} Dr. Bernie's C-84 dated January 3, 20o8 undermines the commission's belief that no contemporaneous medical proof exists. Dr. Bernie certified TTD at the very beginning of the period of his certification. { 48} While the C-84 of Dr. Keppler completed February 8, 201o may, at first blush, appear to not be contemporaneous with the period being certified, Dr. Keppler's office notes show frequent ongoing office visits during the period of the certification. { 49} Dr. Keppler's office notes during the year 20o8, as well as his two operative reports describing surgeries on January 29 and July 9, 2oo8, completely undermine the commission's finding of a lack of contemporaneous medical proof of disability during 2oo8. { 50} Thus, the commission's finding of a lack of contemporaneous medical proof is not supported by some evidence in the record before this court. { 51} The commission's: order then states that the commission agrees with the employer-ameritech -who "argues that there is no sufficiently persuasive medical evidence on file that alters the previous formal designation of the period of disability as non-occupational." { 52} What medical evidence did the commission determine was not sufficiently persuasive, and why was the medical evidence found unpersuasive? The commission's order does not tell us. This is a clear violation of Noll, the syllabus of which states: In any order of the Industrial Commission granting or denying benefits to a claimant, the commission must specifically state what evidence has been relied upon, and briefly explain the reasoning for its decision. {t 53} It is indeed well settled that the commission need not list the evidence it considered. State ex rel. Fultz v. Indus. Comm., 69 Ohio St.3d 327,1994-Ohio-426; State ex rel. Buttolph v. Gen. Motors Corp., Terex Div., 79 Ohio St.3d 73, 1997-Ohio-34 State ex rel. Lovell However, the commission must cite the evidence upon which it relies. State ex rel. Mitchell v. v. Indus. Comm., 74 Ohio St.3d 250, 1996-Ohio-321, citing A-23

49 No. loap Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481. Also, the commission cannot issue an order that evades judicial review. Here, the commission's order does just that. That is, while declaring that "there is no sufficiently persuasive medical evidence on file," we are not told what evidence was found to be unpersuasive or why it was found so The commission's order suggests that, despite the medical evidence of disability relating to the industrial injury, relator cannot be held to have been temporarily and totally disabled because he received so-called "non-occupational short-term disability payments from the employer" and because his two surgeries in 20o8 were paid for under "his non-occupational insurance." This suggestion is erroneous. { 55} R.C (A) provides: If any compensation under this section has been paid for the same period or periods for which temporary nonoccupational accident and sickness insurance is or has been paid pursuant to an insurance policy or program to which the employer has made the entire. contribution or payment for providing insurance or under a nonoccupational accident and sickness program fully funded by the employer, compensation paid under. this_ section for the period or periods shall be paid'only to the extent by which the payment or payments exceeds the amount of the nonoccupational insurance or program paid o`r payable. Offset of the compensation shall be made only upon the prior order of the bureau or industrial commission or agreement of the claimant. { 56} In the magistrate's view, the commission here succinctly and correctly explains the fallacy of Ameritech's argument as adopted in the commission's order regarding the non-occupational disability payments and the payment of the surgeries by private insurance: * * * The fact that Kempinski's surgeries were paid for by his health insurance and that he was on short-term disability has no bearing on his entitlement to have a request for TTC addressed on the merits of the medical evidence. AT&T is arguing that since medical bills were paid for outside of the claim that meets the commission's duty to "specifically state that the medical evidence was insufficient to support an award of' 1TC. * * * This assertion is without merit because who pays medical bills has nothing to do with deciding if the A-24

50 No.1oAP medical evidence contained in the actual records are related to the allowed conditions or not. Receiving short-term disability is not a "formal designation" of a time period as "non-occupational" and does not preclude an adjudication of a request for TTC on the merits. It is unclear what is meant by "previous formal designation" of the requested period as non-occupational. The commission is the agency that decides whether or not a requested time period of TTC is related to allowed conditions in a claim, and the commission had not previously done so. As long as a request for TTC is timely submitted the commission has a legal duty to adjudicate the request. Receiving short-term disability only has an effect on the amount of TFC that can be paid if awarded due to the offset provision of R.C (A)G1 The record reflects that Kempinski would not have received additional money from a TTC payment because the short term disability payments were more than what he would have received for 'ITC payments. This case, however, shows that situations exist where adjudicating a request for TTC on the merits of the medical evidence has implications for an Injured Worker beyond the amount of an offset. As such, Kempinski was entitled to have his request for TTC decided on the merits of the medical evidence. (Commission's Response to Ameritech's Supplemental Brief, at 2-3.) { 57} Thus, because the commission's denial of TTD compensation beginning January 4, 2oo8 violates Noll, this court must issue a writ of mandamus ordering the commission to again determine relator's entitlement to TTD compensation. { 58} As earlier noted, the commission's denial of TTD compensation beyond December 28, 2oo8 was premised upon its finding that relator had voluntarily retired from his employment at Ameritech. { 59} The magistrate finds that it would be premature for this court to address the question of whether the commission abused its discretion in determining that relator's retirement was voluntary. If the commission were to determine on remand that relator was temporarily and totally disabled at the time he elected to retire, the retirement cannot A-25

51 No. ioap be voluntary. State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5, Ohio-132. { 60} Accordingly, it is the magistrate's decision that this court issue a writ of mandamus ordering the commission to vacate its May 25, 2010 order to the extent that it denies TTD compensation and, in a manner consistent with this magistrate's decision, enter a new order that adjudicates relator's April 7, 2009 motion for TTD compensation. s1s Kenneth W. Macke KENNETH W. MACKE MAGISTRATE NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusigny m&ether or not specifically designated as "a -fmding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b)- A-26

52 D23 OMabdobWConudaba RECORD OF PROCEEDINGS Claim Bu+abera L Claafls Heard. L L!-ACC-61-COv PCN: Thostas A. Rempinski 1liaflq8 H. RSMPIliSR ltea'ison NOSS LU IQ RIDCSVZI.LB oh FINDtNGS M LEa L JUL 2 2 ZdfO Date of Injury: 8/21/1941 tiok nusiber '-1 This dlalm has been previoasly aliowad for: LOM NM g'1'a}ll1 7.serO 101k1}I71'1'HP 7D19C b4. LS 1111D LS-Y17 dsfi40187virv8 DISC LT L4-2nOty= 611 ZOA>ILTAbL STp06Y67 1iP2DUS7 L?ISROO16, LlVkii6 L9-81 Ulti. poat-llqmictor= SY1p/tfJlSj).?has matter +as heard an 05/25/2010, before the Ir:dustriai Cosmiasion purauant to the proviaione of R.C. Sectiooa , and dt11.52 on the followiaq: wppr&l filed by injured porker on 03/12/2010. issue 1) }ldditional Al1a+mce - SPICiURA4 ti8tt09is LBVYLi+6 L5-81 (l RA POST LdU[LBSG9OMY SYHOROM) 9} Tempozary Total Aisability ivotiees vere msiled to the Iniured Workar, the eoploysr, their raapective representetives aod LUe Administrator of tha Busean of Norkers' Qcmpensation not less than fourteen (14) days prior to thaa date, and the folla inq vera preaent at the bearinqa 1LPPWMp1aCS lor T[Og IITJOSED Nl7RS3Rr llr. Michael Gruhio APMRAXM PO9 "M HMpLpygR= Ms. Lisa Reid AP@8J18ANC8 P98 TRS Aallilfl8'L'RJ TOR: 610 AppearaaCe 1IP7 f0y BY: Mr. giceqlso, Mr 1lbrams, Mr. Taylor 05/25/ it is the deciaion of the Yndustrial Comaissicn that ehe iniuted xorker's appeel, L1ed 03/ , is taken under advisesros+t for further review and disrussion and that an order be issued without further hearinu fter further reviaw and discuasion, it is the finding of the 05/25/2010 -] industrial Cor.roissicn that the xniured xorker'a appeal, filed 03/12/2010, is denied and the Staff Hearing Officer order, issued 02/27/2010, is vacared. it is the or:ler of the Cosmission that the =siiured llarker'a C-96 motiaa, filed 04/07/2009, is granted in part and denied in part. The Cemission finds the Mploycr has accepted the elaim for the request.ed additional allowance of RPLD1fR1W PI8Rp6IS, L6PISL6 L5-93 (Ai11 post-lamim6c2^0w SYNDROM3) based on the 07/16/2009 report Erom Oordan Zcllers. M.A. 'rharefore, the t7omtssion orders the alaia forms3ly tional]y raaoqnissd for BPI7uBAL KJ.aROBIB. LSV81 B L3-61 (?LRA add. i-09i =3.MIk'w"':M!y S%NDAOM8) At hearin0 before the Coamission, the Injured Markar's altorney renewed the reqaeat Eor the aa7finent of reoporary Lotal dseability compansation from 01/04/2008 thrauqh ths present, and to continue upon the a'.ibmission of appropriete medical asva'f Payment of temporary total disability compansation fron 01/C4/2008 throuo 13/28/2008 requsyes a determira:ioa of ICRP Page 1 de/th ^ A& A-27 -r-

53 D2 4 0ft rpanfibm amusilmilen RECORD OF PROCEEDINGS claia etuaber L xhetber the Injured Worker's reosipt of short-tens disability benefits over this period ++as in lieu of tenporary total disability aompensation. Pqyaieat of temporary total disability eospensatioa after 12/36/200B requires a determtaation of whetber the =njured Norker's retirement was voluntary or involuntary. The payment of temporary total disability eaepsnsation from 01/04/3008 thrcuqh 12/24/2009, inelusive, is apecifiealty denied due to a leok of conteeiporaneous medical proof relating the dassbility from the allowed ncedations to the pariad at iasue The injure8 worker bad low back suraery on 01/99/2005 and on 07/09/2008. she biils for these ourgerxey wsra filed by tha injured Korkfr rith, and paid under. has non-oecupatiasal insurance. purinp the per3od the tajured inorker Yas off work as a result of these surgeries, the 7[nfused worker eleated to receive non-ocaupational, short-taxu disability payments fram the amployer. Zo further support its argument that the Injuroad'MOrker's surgeries and disebility were non-occupational. the smployer pointed out that it had denieb the Injured Norker's raquast for temporary total disabiltty aoapenaation for the period oe disability in queetion. The lniured aforksr did not protest the denial of tme^orary total disability cospeaeation. Finally, the moploysr arques that there I. no euffieienl.ly persuasive asdiaal evidence an fiie that alters the previous formal designation of the period of disability ae pon-occupational. The comission agrees. During the time the injured lrorker vasreceiving short-tera diaability benetits. the enployer affersd the vorkeorce, inciudsog the inlured sorker, a suppleniental Incepe Prvteation Propram (SIPP) benefit. By offeriaq BLPPo thes ewployer was atteupcin{t to reduce #ts workforce due to economie factors. IInder sipp, a worker ca:ld elect to voluntarily retire:in e:doanpe for a finanaial incentive. ror the in3ured liorkarx, the Exnencaal incentive ras $31,000.00, in additian to hi,s retiremeot pa.ckaqe. The snjursd worker vas free to accept, or reject, the BIpP beneeit by 12/11/ he injured tforker testified at hearing that when he was offered gipp, he aas near the and of his eli4ib:lity for short-term disability benefits. The Iafured Worker bad ooatacted the moployer in eosember and requested to be plscod on uona'occupetioaal lonq-tarm disability. i t the time he was oefered SLPP, he was awaiting a decision on his application for lonq-tesm disability benefits. Tbe Injured Worker further testified that sf 'e wes approved to receive long-term disability beaetits, he wsuld be permitted to ratura to work once he was medically released by his phyaiaisn. The Injured Kark,er asserted thal as a result ot the inaestian cn the laasi'tesa disubiiity applicatian, end the deadline for accepting or rojectinq the slpp inoantive approaahin4, the injured f orker elected to aceept the Einenaial incentives under the BIPP IPto4ran and the 831, luaep sum payment. rhere is no aedlcal evidence, dated oe or aronnd, the montb of Cecember 2008, from the Injured olorker's treating physteien *dvising the InJured worker to retire due to tbe allovcd condations. The Injured Worker sgreed that the last day upon vhich he would be on the 8ropioyer' n payroll rae 12/78/2008 2he CarNSission understands the diefsculty of the Iniused Worlcer's sstoation re7ardin0 the deadline for accaptin0 the 6Ii+P and the outstandinq lau4-tase dlsebility applicationp however, the Cosmission finds that I.be injured tioxker did elect to retira rather than wait for the fsnal decision on his pending application. There is no evidence in file that the BIPP vas directed only to the Injured Worker to unfairly loree him from the reorktoree. The giep ves aworkforee-rade ooployuent tool utilized by the em-p; yer ylr,der, tha Ed^-iM ountract between S8C Kidvast and the Coenunieations workers of leaerica. The untortunate timing ot the BIrp does not render the Iajured Worrker' n dacisloc involu: tsry. The iniured Worker' n voluntary tetirement on 12/28/2008 precludes the pangont ot t,smporary tctsl dirabilily compensation. IGp Pa4e A-28 de/rh i^&l 9 til 3

54 D25 MamWM"ceudom _ RECORD OF PROCEEDINGS claim 6umbero L Tha instant situation is distinqusahed Erod gt+hto A. *ol erza v_ *mda n - erwm-, 134 Ohio 9t.3d Ohlo-119, in $a,csa, the 8upres{a COUet resmded the ease to the Corwissioc for al.arifi.cation of the injured workesta disability status >.hen her mployaent with the eep7oyer ended due to her aaceptsace of an ineentive buyyout. The infured worker thereia had a pending appllcation for the gayau+nt of tempwary Lotal disability compensatiori when her emplol innt ended. in the instant caae, the Iniured xorker did not have any pending request for the payment o! te,mporaly t+otal diaability acqpeasatioa +rhen he accepted the rorktoroe re aal.ion inoentive. As aet forth above, the Injured Rorker has speaitioally been Found not temporarily and totally dlsabled due to the allowed oowitaone at the iis e of his eiection to retire snd to scceft the additional finaneial incentive o[ $31, ltsrther, the Injured Worker betievsd, snd tastitied at hearinq, that if his lonq-texm disability aas denied, he tironld ba forced to retire due to his seniority of ovier 31 years of servies in Jenuary. 2009, and if be did not accept the BIPP, ho would have lost out on the $31, incentive. 7'horefoze, st ie the lirldino of the Cannisaion that the xnjurea 11os1eer voluntarily abenflcned the xorkfoeee when he accepted the 82PF inceative0 for hie financial advantaqe. --lw.r_ *pdy. C"M"_- icth biat. app. mo. 031 P-370, 9004-Ohio Ther6f0ra, teeporary total disability cavaenaatian ts epecifioaziy denild Eros 12/79/2008 throuqh 05/2b/2p10. )IxY par'iy 14AY APPBi1L 11N ORaB& OF TRB 0=:89ION, OTItBR TRAN A DSCI91CN A9 10 SXTBePt OF I1I8ABILxT7t, TO TNB COURT OF COISION PLEAB 1iITItIIa eix'ir (60) DAYB A!4'Ba RBCEIpT OF :H6 ORDBR, SUtlJgC:' TO Tkig I.II[ITATIOW9 CDA'1'AI10It1 I1T R.C Tppad 8yo x8/d! flate '8yped: 07/08/7010 Tha action is based upon the motiei:s+ade by Ns Taylor, se onded by Mr. AbramO snd voted on as follovs: ^s1, H, D3t^p^io ND Chairperson J die N. Taylor YES Camissioner xavsn R. Absaes '^$ Cossaiss ionet Fir3dir7^qG Hāiio d. A-29 ICAP paue -- ^

55 D26 obblimsuacomallwon RECORD OF PROCEEDINGS Clais 1lumher: L i - - The partisa and reprearentatives li4ted below have been oent this record of proceedings. if you are not an authorased repreiectative of one of t.e parties, pioasa notify the industrial Coswinton.,^...^.^. L Khceas N. gempinaki 5153 Keadoar ltoss Ln N Fiddaviila ON RiRk.No: B-0 Ameritcch-dhio sbc/luaeriteoh Etouston St Rn: 7P-40 9an J atonio TX ID No ltiehae.l R Geuhir Auburn Dr Fl 2 Beaahvocd CR ID Ro sedqwi4k Claims Mana4es ent Services 80 Box LexiAqton K[ ID s'o: Jems 6edqwick Pp em LexinqtoL+ R! ID Noe ninsuwie i shoht 1 S Mai4 st St t7aytoa Ott IO 1M port.er, Mrivht, MOrrit s Asthus 925 Buclid Ave Ste 1700 Cleveland OH UC, LAN DIRRCTOR NOTE. INJVRffi1 MORRMB. EXpf.OYSRS. ALID 171EIR AO:HORIZSD R$PR88b761'ATIVBS da! RRVIBII TRSIR 71'L`PIHS CiJ1IN5 INROAOU TIOB Tf[ROQGN THE IRDU16'1'RIAL C014[IA8ION MBB sitr AT ww hsaic- gw ONOIf ON THS AGiQ; OF TlCS flrs sitb. Pt.888B C6ICR =.C.O N. 71N0 po1.lon Tfs; Iti6TAVC'TIONS FOR O9PP7IINIR'C 15 PASBND1ta- OffCB YOU ABVR pbteinrd A t'abstiord. YOU sbiduf.d 8R 86LE TO ACCESS YOVR ACK'IYE CxJ IM(s). A-30 4 d!/yh 9ape IC^ P --r^^alwf aqoeemlsy `iu7m.m oavls wirrlre

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62 Lawriter - ORC Compensation in case of temporary disability. Page 1 of Compensation in case of temporary disability. (A) Except as provided in division (D) of this section, in the case of temporary disability, an employee shall receive sixty-six and two-thirds per cent of the employee's average weekly wage so long as such disability is total, not to exceed a maximum amount of weekly compensation which is equal to the statewide average weekly wage as defined in division (C) of section of the Revised Code, and not less than a minimum amount of compensation which is equal to thirty-three and one-third per cent of the statewide average weekly wage as defined in division (C) of section of the Revised Code unless the employee's wage is less than thirty-three and one-third per cent of the minimum statewide average weekly wage, in which event the employee shall receive compensation equal to the employee'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 maximum amount of weekly compensation which is equal to the lesser of the statewide average weekly wage as defined in division (C) of section of the Revised Code or one hundred per cent of the employee's net take-home weekly wage. In the case of a self-insuring employer, payments shall be for a 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 a district hearing officer pursuant to division (C) of section of the Revised Code. Payments shall continue pending the determination of the matter, however payment shall not be made for the period when any employee has returned to work, when an employee's treating physician has made a written statement that the employee is capable of returning to the employee's former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached the maximum medical improvement. Where the employee is capable of work activity, but the employee's employer is unable to offer the employee any employment, the employee shall register with the director of job and family services, 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 temporary total 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 of workers' compensation shall schedule the claimant for an examination for an evaluation to determine whether or not the temporary disability has become permanent. A self-insuring employer shall notify the 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 of the Revised Code, the bureau shall pay an amount 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 which temporary nonoccupational accident and sickness insurance is or has been paid pursuant to an insurance policy or program to which the employer has made the entire contribution or payment for providing insurance or under a nonoccupational accident and sickness program fully funded by the employer, compensation paid under this section for the period or periods shall be paid only to the extent by which the payment or payments exceeds the amount of the nonoccupational insurance or A /28/2013