State ex rel. Reliance Elec. Co. v. Wright - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Reliance Elec. Co. v. Wright, 92 Ohio St.3d 109, 2001-Ohio-108.]

THE STATE EX REL. RELIANCE ELECTRIC COMPANY, APPELLANT, v. WRIGHT
ET AL., APPELLEES.
[Cite as State ex rel. Reliance Elec. Co. v. Wright (2001), 92 Ohio St.3d 109.]
Workers' compensation -- Application for permanent total disability
compensation -- Claimant diagnosed with pneumoconiosis years after
retirement -- Industrial Commission's award of compensation not in
error where claimant's condition had not yet arisen or become manifest
at the time he withdrew from the labor market.
(No. 99-2110 -- Submitted March 27, 2001 -- Decided June 27, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98APD12-1617.
__________________

ALICE ROBIE RESNICK, J. The relevant facts in this case are undisputed.
Claimant-appellee, Glen C. Wright, began employment as a core maker for
appellant, Reliance Electric Company ("Reliance") in 1952. He continued in that
capacity until the plant at which he was working closed in December 1986.
Wright then received unemployment compensation for six months following his
layoff, after which he took a regular (nondisability) pension from Reliance at age
fifty-nine. In 1987, Wright also applied for Social Security disability benefits,
which were granted and paid from June 3, 1988, until Wright reached the age of
sixty-five on October 3, 1992. It appears that none of the medical conditions that
rendered Wright disabled for purposes of Social Security benefits was received or
contracted in the course of, and arising out of, his employment with Reliance.

In January 1995, Wright filed a workers' compensation claim, which was
disallowed for chronic obstructive pulmonary disease. On October 16, 1996,
Wright was diagnosed with pneumoconiosis. On January 30, 1997, Wright filed a
workers' compensation claim for the occupational disease pneumoconiosis, which

SUPREME COURT OF OHIO
was allowed. On January 27, 1998, Wright filed an application for permanent and
total disability ("PTD") compensation with appellee, Industrial Commission of
Ohio ("commission"). The commission granted the application and awarded
Wright PTD compensation from December 17, 1997, and continuing pursuant to
R.C. 4123.58(A). In its order, the commission stated:

"The Staff Hearing Officer finds and orders that the Employer's
contention that the Claimant voluntarily abandoned his former position of
employment by retiring on or about 12/16/1986 is specifically denied. The Staff
Hearing Officer finds and orders that the Claimant did not voluntarily abandon his
former position of employment by retiring on or about 12/16/1986 due to
Claimant's own testimony at hearing indicating he had no choice as said division
of the above-stated Employer Col-Pump was shutting its facility down forcing the
Claimant to file for Social Security Disability. Therefore, based upon the
foregoing, the Staff Hearing Officer concludes that Claimant's retirement on
12/16/1986 was not voluntary thus finding the Claimant remain[s] eligible for
permanent total disability benefits granted herein."

On December 21, 1998, Reliance filed a complaint in mandamus
requesting the Court of Appeals for Franklin County to issue a writ directing the
commission to vacate its order granting Wright's application for PTD
compensation and to issue a new order indicating that such benefits be denied.
The complaint was referred to a magistrate, who recommended that the court
deny the requested writ of mandamus. The magistrate determined that "the
commission's stated rationale for finding claimant's retirement `involuntary' was
not within its discretion." Nevertheless, she concluded that returning this matter
to the commission for further consideration of the decision to retire in 1987 was
unnecessary. In particular, the magistrate found that because he unknowingly
contracted a condition with a long latency period at the workplace, claimant did
not surrender his eligibility for PTD compensation when he retired. The court of
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January Term, 2001
appeals overruled Reliance's objections to the contrary, adopted the magistrate's
decision as its own pursuant to Civ.R. 53(E)(4)(b), and denied the writ.

The cause is now before this court pursuant to an appeal as of right.

The issue presented by this appeal is whether the commission abused its
discretion in finding that Wright remained eligible for PTD compensation under
the circumstances of this case.

Generally, a workers' compensation claimant is entitled to PTD
compensation under R.C. 4123.58 where the medical impairment due to the
allowed conditions in the claim, either alone or in conjunction with nonmedical
disability factors, prevents the claimant from engaging in sustained remunerative
employment. Moreover, any impairment caused by nonallowed medical
conditions, even if independently work-preclusive, cannot defeat the claimant's
eligibility for PTD compensation. Regardless of nonallowed disabling conditions,
the claimant's entitlement to PTD compensation is dependent upon the
establishment of a causal relationship between the allowed conditions themselves
and the requisite degree of disability. See State ex rel. Waddle v. Indus. Comm.
(1993), 67 Ohio St.3d 452, 454, 619 N.E.2d 1018, 1020; State ex rel. Fields v.
Indus. Comm. (1993), 66 Ohio St.3d 437, 440, 613 N.E.2d 230, 232; State ex rel.
Wean United, Inc. v. Indus. Comm. (1993), 66 Ohio St.3d 272, 274, 611 N.E.2d
828, 829; State ex rel. Galion Mfg. Div., Dresser Industries, Inc. v. Haygood
(1991), 60 Ohio St.3d 38, 40, 573 N.E.2d 60, 62; State ex rel. Paragon v. Indus.
Comm. (1983), 5 Ohio St.3d 72, 76, 5 OBR 127, 128, 448 N.E.2d 1372, 1376. In
this case, it is undisputed that Wright's pneumoconiosis independently prevents
him from engaging in sustained remunerative employment.

Nevertheless, the existence of a causal relationship between an allowed
condition and an inability to perform sustained remunerative employment is not
always determinative of the claimant's eligibility for PTD compensation. In a
limited sense, a claimant's pre-PTD voluntary abandonment of the labor force can
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be perceived as an intervening act that breaks the nexus between an allowed
condition and PTD. Thus, 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, we held, "An employee who retires prior to becoming permanently and
totally disabled is precluded from eligibility for permanent total disability
compensation only if the retirement is voluntary and constitutes an abandonment
of the entire job market."

According to Reliance, Wright's layoff, retirement, and application for
Social Security disability benefits constitute a voluntary abandonment of the
entire job market; and since these events occurred before Wright's
pneumoconiosis became disabling, they should preclude Wright's eligibility for
PTD compensation. The commission, on the other hand, found that these events
were precipitated by the closing of the plant in December 1986 and in this appeal
continues to insist that Wright "did not voluntarily abandon the work force, where
his separation from employment was due to the plant closing."

These arguments are irrelevant because the principle that pre-PTD
voluntary withdrawal from the job market precludes eligibility for PTD
compensation has no application in cases involving long-latent occupational
diseases that arise after the claimant abandons the job market. In this situation,
we have expressly refused to find that "the claimant tacitly surrendered a right
that did not exist and could not be foreseen." (Emphasis sic.) State ex rel.
Liposchak v. Indus. Comm. (1995), 73 Ohio St.3d 194, 196, 652 N.E.2d 753, 755.
See, also, State ex rel. Vansuch v. Indus. Comm. (1998), 83 Ohio St.3d 558, 700
N.E.2d 1286.

In this case, Wright suffers from an occupational disease with an
extremely long latency period. As stated by the magistrate, "[T]here are Ohio
decisions establishing that silicosis is a type of pneumoconiosis that occurs in
foundry workers exposed to silica dust, and it has a very long latency period,
4

January Term, 2001
similar to the latency of asbestosis, as described in Vansuch, supra. See, e.g.,
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]; Moore v. Natl. Castings, Inc. (Sept. 3, 1993), Lucas App. No. L-92-331,
unreported [1993 WL 332332]; Delamotte v. Midland Ross (1978), 64 Ohio
App.2d 159 [18 O.O.3d 117, 411 N.E.2d 814]. The magistrate concludes that
silicosis and pneumoconiosis have an extremely long latency period." The parties
have not disputed these findings.

Wright allegedly withdrew from the labor market sometime between the
end of 1986 and the middle of 1988. At that time, however, there was no
indication that Wright either suffered from or had a compensable claim for
pneumoconiosis. He was not diagnosed with pneumoconiosis until 1996, and he
had no allowed workers' compensation claim for pneumoconiosis until 1997.
Thus, under Liposchak and Vansuch, Wright could not have surrendered his
eligibility for PTD compensation by voluntarily abandoning the job market in
1986, 1987, or 1988. Accordingly, we agree with the magistrate that it would be
pointless to force the commission to further consider whether Wright voluntarily
withdrew from the labor force at a time when such a departure could not have
affected his eligibility for PTD compensation.

Nevertheless, Reliance argues that we should distinguish Liposchak and
Vansuch and apply State ex rel. Consolidation Coal Co. v. Yance (1992), 63 Ohio
St.3d 460, 588 N.E.2d 845. After considering Reliance's arguments, however, we
reach the opposite conclusion, i.e., that Liposchak and Vansuch are applicable,
while Yance is distinguishable.

According to Reliance, the present cause is distinguishable from
Liposchak and Vansuch because, at the time that Wright developed
pneumoconiosis, he "was already unable to engage in sustained remunerative
employment as a result of non-allowed conditions." Quoting from the dissenting
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opinion in Liposchak, 73 Ohio St.3d at 196-197, 652 N.E.2d at 756 (Cook, J.,
dissenting), Reliance appears to argue that since Wright no longer possessed any
earning capacity at the time his pneumoconiosis arose, he could not sustain any
future compensable wage loss and thus had no basis for receiving PTD
compensation. We disagree.

The circumstances that precipitate a work-force departure are irrelevant
under Liposchak and Vansuch when the departure itself occurs before the onset or
allowance of the claimant's industrial condition. The argument that a work-force
departure due to nonallowed disabling conditions invalidates a claim for
prospective wage loss is, in this context, no different from the argument that any
other withdrawal from the work force precludes such a claim. Thus, even if we
assume, without deciding, that a claimant's departure from the work force due to
nonallowed disabling conditions can be characterized as voluntary for purposes of
precluding PTD compensation under Baker, supra, paragraph two of the syllabus,
we still could not find that Wright surrendered his eligibility for PTD
compensation. Otherwise, we would effectively overrule Liposchak and Vansuch,
which is what Reliance is really proposing by urging us to follow the reasoning of
the Liposchak dissent. Nevertheless, we remain convinced that a denial of PTD
compensation in these cases runs contrary to the purpose of workers'
compensation and produces an unjust result.

Reliance also argues that Yance is controlling because "Wright retired
before even alleging that he had an occupational disease." In Yance, the claimant
retired two days before he filed a claim for coal miner's pneumoconiosis, and the
commission awarded temporary total disability payments from the date of
claimant's retirement. Two years and nine months later, the commission awarded
PTD compensation but failed to consider the effect of claimant's retirement. The
court reasoned:
6

January Term, 2001

"In this case, the circumstances precipitating claimant's retirement are
particularly relevant since claimant retired before even alleging that he had an
occupational disease. If claimant voluntarily removed himself from the
workplace for reasons unrelated to his industrial condition, he is ineligible for
permanent total disability, even if his condition later deteriorates to the point
where claimant would be medically unable to work." Id., 63 Ohio St.3d at 461-
462, 588 N.E.2d at 847.

Obviously, the court's analysis in Yance cannot survive our subsequent
holdings to the contrary in Liposchak and Vansuch. Yet, despite its analysis, the
court in Yance achieved a result that is consistent with our later holdings. While
the claimant in Yance may have technically retired two days before filing an
occupational disease claim, the particular facts in that case readily disclose that
the claimant's occupational disease had already arisen at the time of his
retirement. In contrast, our holdings in Liposchak and Vansuch are, by definition,
limited to those situations where, as here, the claimant's condition had not yet
arisen or become manifest at the time he or she withdrew from the labor market.
Accordingly, we find Yance to be distinguishable on its facts and reject Reliance's
arguments to the contrary.

For the foregoing reasons, we find that despite its reasoning, the
commission correctly determined that Wright remained eligible for PTD
compensation under the circumstances of the case.

Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.

DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

LUNDBERG STRATTON, J., dissenting. I believe that the award of
permanent and total disability benefits ("PTD") to this claimant constitutes an
7

SUPREME COURT OF OHIO
award of damages rather than compensation for the loss of earning capacity that
PTD is intended to replace. Therefore, I must respectfully dissent.

The majority reasons that, despite the claimant's voluntary abandonment
of the entire labor force some eleven years prior to his diagnosis of
pneumoconiosis, an award of PTD is justified due to the long latency period for
the disease. The majority relies on what I believe to be the flawed analysis in
State ex rel. Liposchak v. Indus. Comm. (1995), 73 Ohio St.3d 194, 652 N.E.2d
753.

The fact is that this claimant, although involuntarily out of his prior job
due to the closing of the Reliance plant in 1986, was still capable of sustained
remunerative employment at that time. He allegedly looked for work while
receiving unemployment compensation but then elected to take a regular
retirement. This was an intentional, willing, and voluntary act of removing
himself from the entire labor force. For various nonallowed medical conditions,
he applied for and was awarded Social Security disability in 1988.

More than eleven years later, he applied for PTD based on a diagnosis of
pneumoconiosis. However, I believe that he was ineligible for PTD because any
medical impairment from his occupational disease was not preventing him from
engaging in sustained remunerative employment because he had retired. State ex
rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202,
631 N.E.2d 138; See, also, State ex rel. Liposchak, 73 Ohio St.3d at 196-197, 652
N.E.2d at 755-756 (Cook, J., dissenting). When he applied for PTD, this claimant
had already left the labor force and had no loss of earning capacity. "If claimant
voluntarily removed himself from the workplace for reasons unrelated to his
industrial condition, he is ineligible for permanent total disability, even if his
condition later deteriorates to the point where claimant would be medically unable
to work." State ex rel. Consolidation Coal Co. v. Yance (1992), 63 Ohio St.3d
460, 461-462, 588 N.E.2d 845, 847.
8

January Term, 2001

Therefore, this claimant's PTD award may be characterized as one for
damages only. This court has repeatedly stressed that PTD is to compensate for
loss of earning capacity. It is not intended to be a damages award. Baker, 69 Ohio
St.3d at 210, 631 N.E.2d at 145; State ex rel. Stephenson v. Indus. Comm. (1987),
31 Ohio St.3d 167, 170, 31 OBR 369, 372, 509 N.E.2d 946, 949.

I believe that the majority is opening another Pandora's Box by creating
such an exception for occupational diseases with long latency periods without
considering whether the claimant remains in the labor force. I fail to see why a
claimant who suffers from an occupational disease with a long latency period
should be treated differently from a claimant whose prior injury worsens after the
claimant has voluntarily removed himself or herself from the work force. The
majority's opinion today approves a PTD award under the former circumstances;
however, case law prohibits PTD in the latter situation. Contrary to the majority's
conclusion, the circumstances that precipitate a work-force departure are relevant
when a claimant is seeking PTD compensation for future wage loss. Therefore, I
would reverse the judgment of the court of appeals.

MOYER, C.J., and COOK, J., concur in the foregoing dissenting opinion.
__________________

Porter, Wright, Morris & Arthur and Christopher C. Russell, for
appellant.

Tablack, Wellman, Jeren, Hackett & Skoufatos Co., L.P.A., John A. Jeren,
Jr., and Edward Hartwig, for appellee Glen C. Wright.

Betty D. Montgomery, Attorney General, and Thomas L. Reitz, Assistant
Attorney General, for appellee Industrial Commission of Ohio.
__________________
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