State ex rel. Liposchak v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State ex rel. Liposchak v. Industrial Commission of Ohio.
[Cite as State ex rel. Liposchak v. Indus. Comm.
(1995), Ohio St.3d .]
Workers' compensation -- Application for permanent total
disability compensation -- Claimant diagnosed with
malignant mesothelioma twelve years after resigning in
lieu of disciplinary action -- Industrial Commission errs
in denying compensation when claimant suffers from a
condition with an extremely long latency period.
(No. 95-391 -- Submitted April 24, 1995 --
Decided August 16, 1995.)
In Mandamus.
Relator-claimant, Robert E. Liposchak, began working for
respondent Wheeling-Pittsburgh Steel in 1945. In 1980,
claimant was caught bringing a handgun into the plant. Faced
with disciplinary action, claimant quit. Claimant's work
activities after that are unclear. Claimant, at best, worked
sporadic odd jobs and allegedly cared for an invalid couple
until their death.
In 1992, twelve years after he quit Wheeling-Pittsburgh
Steel, claimant was diagnosed with malignant mesothelioma. A
workers' compensation claim was allowed after it was determined
that the condition arose from claimant's employment. A short
time later, claimant applied to respondent, Industrial
Commission of Ohio, for permanent total disability
compensation. The application was denied after the commission
found that:
"[C]laimant voluntarily removed himself from the active
work force. The claimant retired on 4-4-80 and has remained
unemployed to the present. Although the claimant's
representative argued that caring for the elderly couple was
employment, there was no evidence presented supporting the
existence of an employment relationship between the parties.
"Bequeathment of the home to the claimant in itself is
insufficient to establish an employer/employee relationship.
"The commission finds that the claimant removed himself
from the active workforce on 4-4-80. Therefore the claimant is
not permanently and totally disabled."

This cause is now before this court as an original action
in mandamus to compel the commission to award him permanent
total disability compensation.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy
and Marc J. Jaffy, for relator.
Betty D. Montgomery, Attorney General, and Yolanda L.
Barnes, Assistant Attorney General, for respondent.

Per Curiam. Claimant's mesothelioma undeniably arose from
his employment at Wheeling-Pittsburgh Steel. Claimant's
mesothelioma undeniably prevents sustained remunerative
employment. Medical impairment notwithstanding, permanent
total disability may nonetheless be foreclosed if it is found
that claimant voluntarily removed himself from the labor market
prior to his permanent total disability application. State ex
rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69
Ohio St.3d 202, 631 N.E.2d 138. Claimant initially challenges
Baker's applicability. He alternatively argues that he never
voluntarily abandoned the work force. For the reasons to
follow, we order the commission to vacate its permanent total
disability denial and to enter an order that declares claimant
to be permanently and totally disabled.
The existence of a causal relationship between an allowed
condition and an inability to work underlies all successful
requests for disability compensation. Problems can arise when
another factor independently contributes to the inability to
return to relevant employment. We have characterized these
factors as either involuntary or voluntary, with the latter
precluding permanent total disability compensation when it
constitutes an abandonment of the entire job market. Baker,
supra, at paragraph two of the syllabus.
In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio
St.3d 42, 517 N.E.2d 533, we classified as "voluntary," a
departure from the work force that was precipitated by the
claimant's imprisonment. We reasoned:
"While a prisoner's incarceration would not normally be
considered a 'voluntary' act, one may be presumed to tacitly
accept the consequences of his voluntary acts. When a person
chooses to violate the law, he, by his own action, subjects
himself to the punishment which the state has prescribed for
that act." Id. at 44, 517 N.E.2d at 535.
In State ex rel. Watts v. Schottenstein Stores Corp.
(1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202, 1204, we noted
that "* * * firing can constitute a voluntary abandonment of
the former position of employment. Although not generally
consented to, discharge, like incarceration, is often a
consequence of behavior that the claimant willingly undertook,
and may thus take on a voluntary character."
We recognize that claimant was not technically fired, but
resigned in lieu of such disciplinary action. This distinction
is irrelevant. We do find, however, two significant
distinctions between this case and both Watts and Ashcraft.
First, claimant suffers from a condition with an extremely
long latency period. As noted in State Indus. Ins. Syst. v.
Jesch (1985), 101 Nev. 690, 692, 709 P.2d 172, 174,
mesothelioma, at a minimum, has a latency period of twenty-five

to thirty years. Latency periods of up to forty years are not
uncommon. On at least two prior occasions we have recognized
the unique workers' compensation problems that can arise from
long-latency occupational diseases. See Caruso v. Aluminum Co.
of Am. (1984), 15 Ohio St.3d 306, 15 OBR 436, 473 N.E.2d 818;
Jacobs v. Teledyne, Inc. (1988), 39 Ohio St.3d 168, 529 N.E.2d
1255.
Second, claimant did not have an allowed workers'
compensation claim for his occupational disease at the time he
left Wheeling-Pittsburgh Steel. Again, his mesothelioma did
not arise for another twelve years. Viewing these factors
together, we decline to extend the reasoning that underlies
Watts and Ashcraft to these facts. Unquestionably, claimant
committed an extremely serious offense by taking a gun to work,
irrespective of the plant's location in what he perceived to be
an unsafe area. Nevertheless, we cannot find that in so doing,
the claimant tacitly surrendered a right that did not exist and
could not be foreseen.
Accordingly, a writ of mandamus is granted.
Writ granted.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., Wright and Cook, JJ., dissent.
Cook, J. dissenting. I respectfully dissent. Here we
have a claimant who applied for permanent total disability
compensation ("PTD") twelve years after voluntarily retiring
(albeit in order to avoid being fired) and never having
reentered the job market. According to the criteria set forth
in State ex rel. Baker Material Handling Corp. v. Indus. Comm.
(1994), 69 Ohio St.3d 202, 631 N.E.2d 138, paragraph two of the
syllabus, this claimant should be ineligible for PTD. The
majority opinion does not reach its contrary result by
determining that either of these criteria from Baker is unmet.
Rather, the latency period of mesothelioma is the factor
employed by the majority to find Liposchak eligible for PTD.
In effect, the opinion reasons that in order for the rule in
Baker to apply, the claimant needs to have known that he was
foregoing a PTD claim when retiring from the job and the job
market entirely. The fallacy with this analysis is that PTD
compensation is intended to compensate for a claimant's
probable future wage loss due to the total impairment of the
claimant's earning capacity. Id. at 212, 631 N.E.2d at 146.
While a worker may have a valid medical status for claiming
PTD, if that person has already voluntarily abandoned the job
market, the person has no future wage loss and therefore no
basis for receiving PTD. This is the logical principle that
evolves from the common law, set forth in Baker at paragraph
two of the syllabus, State ex rel. Chrysler Corp. v. Indus.
Comm. (1991), 62 Ohio St.3d 193, 580 N.E.2d 1082, and State ex
rel. CPC Group, Gen. Motors Corp. v. Indus. Comm. (1990), 53
Ohio St.3d 209, 559 N.E.2d 1330.
Accordingly, I would deny the writ of mandamus.
Moyer, C.J., and Wright, J., concur in the foregoing
dissenting opinion.