State ex rel. Frazier v. Conrad - 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

[Cite as State ex rel. Frazier v. Conrad, 89 Ohio St.3d 166, 2000-Ohio-127.]
THE STATE EX REL. FRAZIER, APPELLEE, v. CONRAD, ADMR., OHIO BUREAU OF
WORKERS' COMPENSATION, APPELLANT.
[Cite as State ex rel. Frazier v. Conrad (2000), 89 Ohio St.3d 166.]
Workers' compensation -- Termination of permanent total disability compensation
-- Where Industrial Commission's decision is supported by some evidence,
it cannot be disturbed in mandamus as an abuse of discretion.
(No. 98-2726 -- Submitted May 24, 2000 -- Decided June 21, 2000.)
APPEAL from the Court of Appeals from Franklin County, No. 97-APD10-
1404.

James D. Frazier, appellee, sought a writ of mandamus directing the
Industrial Commission of Ohio ("commission") to amend its order finding him
ineligible for permanent total disability compensation ("PTD") as of April 30,
1995, and to find that he qualified for PTD up until January 2, 1997. The court of
appeals granted the writ, holding that there was no evidence of record to prove that
Frazier was less than permanently and totally disabled during this period and,
therefore, that the commission had abused its discretion in denying him PTD. The
Ohio Bureau of Workers' Compensation ("bureau"), through its administrator,
appeals as of right.

Frazier injured his back while working as a truck driver for Maupin Cartage,
Inc., and he was granted PTD, to commence as of February 15, 1989. The

commission awarded this compensation based on Frazier's physical inability to
perform duties requiring more than sedentary work, as well as his functional
illiteracy and consequent inability to be rehabilitated for sedentary employment.

Frazier received PTD for a number of years. He continued to receive PTD
even though he was physically able on April 30, 1995, to begin learning how to
install siding for his brothers' construction company. Thereafter, Frazier trained
one or two days a week until, by January 1997, he was skilled enough to start
working full-time as a subcontractor for his brothers.

Frazier ultimately advised the bureau that his medical condition allowed
physical labor in a work environment, but not until January 31, 1997, when he
revealed that he had been forced to return to his worksite. Frazier provided this
information in a motion requesting that the commission dispose of the Application
for Approval of Settlement Agreement that he had filed in June 1996.1 The bureau
later denied the settlement application.

In February 1997, a telephone tip prompted the bureau to assign a
surveillance team to investigate Frazier's activities. According to their report, the
investigators videotaped Frazier on eight days in March and April 1997, and on
each occasion, they observed him performing the physically demanding tasks
necessary to install siding, including climbing ladders, measuring and cutting
materials, carrying equipment, and attaching the siding. Bureau physician Dr.

2

Anthony Williams reviewed Frazier's file evidence and an edited version of the
surveillance videotape. He concluded that "the video activities performed by the
claimant are categorically inconsistent with the receipt of permanent total disability
benefits. His observed physical capacity far exceeds that reported by previous
medical evaluators."

On April 30, 1997, the bureau investigators confronted Frazier, who
acknowledged that he had been receiving PTD while working. On the same day,
Frazier related in a signed statement that he had started learning to measure, cut,
and install siding for his brothers about two years earlier, and that he had not been
good enough to work full-time as a subcontractor until January 1997. Frazier also
expressed that he knew he was not eligible for PTD while he was working;
however, he had been in financial trouble and had needed the income. The bureau
referred the matter of Frazier's continued PTD eligibility to the commission for
further review. The commission terminated Frazier's PTD as of April 30, 1995,
and declared an overpayment, explaining:

"There is no material dispute as to the fact that the claimant returned to work
and continued to receive [PTD]. The only position presented by the claimant's
attorney is that the denial of [PTD] should not be terminated until January 1, 1997.
As of that date, the claimant states in his signed statement that he started back to
work full-time, five days a week, working 8 to 10 hour days.

3

"However, the claimant states in his signed statement that over the last two
years he trained for the job and worked one or two days a week. The claimant
states that he trained until he was good enough to work full time five days a week.
The clear implication of this statement is that the claimant needed to improve his
skill level to perform this work. The claimant does not state that he was not
physically capable of this type of work.

"The claimant currently works installing siding on homes. The work
requires climbing on ladders and installing the siding. It appears to be physically
demanding work. The claimant's capability of such work is inconsistent with the
status of permanent total disability." (Emphasis added.)

Frazier challenged the commission's decision by initiating this action in the
court of appeals.
__________________

Betty D. Montgomery, Attorney General, and Julie M. Lynch, Assistant
Attorney General, for appellant.

Scott M. Knisley Co., L.P.A., and David L. Knisley; and James C. Becker, for
appellee.
__________________
Per
Curiam. The court of appeals found that because Frazier had qualified
for PTD, in part, based on his functional illiteracy, he continued to qualify for this

4

compensation, even though he was physically capable of the labor-intensive duties
required to install siding. We disagree and, accordingly, reverse.

In 1989, Frazier alleged that he was permanently and totally disabled
because he could no longer perform duties requiring more than sedentary work due
to his industrial injury. Frazier also maintained that (1) his employment experience
had been entirely in the labor field as a truck driver or auto mechanic, and (2)
although he was forty-one years old, he had only a sixth grade education and,
consequently, could not be vocationally rehabilitated. The commission accepted
Frazier's arguments. It granted Frazier PTD because he could not perform
physically demanding duties and could not reasonably be taught the skill necessary
to perform sedentary ones.

The commission seized on Frazier's intellectual capacity to assess whether
he was realistically capable of sustained remunerative employment, but the
foundation for the commission's award was Frazier's purported inability to
perform tasks requiring physical labor. The bureau's surveillance and medical
reports destroyed that foundation, and the commission credited those reports. See
State ex rel. Midmark Corp. v. Indus. Comm. (1997), 78 Ohio St.3d 2, 11, 676
N.E.2d 73, 79 (Surveillance evidence that contradicts the contention that claimant
is limited to sedentary duties can justify commission in terminating PTD.). Frazier
might have submitted proof that notwithstanding his physical ability to install

5

siding, his injury-induced condition still prevented him from engaging in sustained
remunerative employment. But Frazier does not even make this claim. His
argument is, instead, that he remained permanently and totally disabled until
January 1997, because he had not acquired sufficient expertise to do physical labor
as a subcontractor.

For this reason, we agree with the court of appeals' magistrate's finding that
the physical capabilities Frazier admitted to having at least as of April 30, 1995,
constituted some evidence for the commission's having terminated his PTD on that
date. And contrary to the court of appeals' distinction, our decision is not affected
by whether Frazier was paid for the duties he performed before January 1997, or
not. As the magistrate observed, the test for Frazier's continued PTD eligibility is
not whether he actually performed sustained remunerative employment; the
standard is whether Frazier was capable of sustained remunerative employment.
State ex rel. Hartness v. Kroger Co. (1998), 81 Ohio St.3d 445, 448, 692 N.E.2d
181, 183. The evidence is uncontradicted in this case that Frazier was capable of
working at some level in the labor field.

Accordingly, we hold that the commission had some evidence for
terminating Frazier's PTD as of April 30, 1995, and for declaring an overpayment.
Where the commission's decision is supported by some evidence, it cannot be
disturbed in mandamus as an abuse of discretion. State ex rel. Yancey v. Firestone

6

Tire & Rubber Co. (1997), 77 Ohio St.3d 367, 673 N.E.2d 1374. The court of
appeals' judgment granting a writ of mandamus, therefore, is reversed.
Judgment reversed
and writ denied.

MOYER, C.J., RESNICK, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.

DOUGLAS, J., dissents.
F.E. SWEENEY, J., dissents and would affirm the judgment of the court of
appeals.
FOOTNOTE:

1.
On the settlement application, Frazier answered the question "Are you
currently working?" by marking the box for "No"; however, a discrepancy exists
as to whether Frazier may have initially answered "Yes" to this question and later,
after the application was filed, changed his response to "No."

7