State ex rel. LTV Steel Co. 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

[Cite as State ex rel. LTV Steel Co. v. Indus. Comm., 94 Ohio St.3d 467, 2002-Ohio-1363.]

THE STATE EX REL. LTV STEEL COMPANY, APPELLEE, v. INDUSTRIAL
COMMISSION OF OHIO, APPELLEE; HARUBIN, APPELLANT.
[Cite as State ex rel. LTV Steel Co. v. Indus. Comm. (2002), 94 Ohio St.3d
467.]
Workers' compensation -- Application for permanent total disability
compensation cannot be denied on ground that claimant rejected a bona
fide job offer, when -- Ohio Adm.Code 4121-3-34(D)(1), construed and
applied.
(No. 00-1824 -- Submitted November 27, 2001 -- Decided March 27, 2002.)
APPEAL from the Court of Appeals for Franklin County, No. 99AP-1054.
__________________

PFEIFER, J. In 1984, John W. Harubin injured his back while working as
a laborer for LTV Steel. His claim was allowed for "bilateral lumbar
radiculopathy." Since then, he has suffered from persistent back pain and has
undergone surgery.

Harubin worked intermittently until 1991, when he apparently qualified
for temporary total disability compensation ("TTD"). His TTD ended in August
1994 after Dr. Cynthia Taylor determined that Harubin had reached maximum
medical improvement. She reported that Harubin was capable of work under the
following restrictions: "He will require sedentary type work that does not involve
any repetitive lifting. He is able to lift up to 20 pounds on an occasional basis.
He needs freedom to sit and stand as needed for his low back pain. He is unable
to perform prolonged standing activities."

In July 1995, Harubin applied for permanent total disability compensation
("PTD") while under Dr. Atef A. Eltomey's care. The Industrial Commission
("commission") granted this compensation beginning on January 15, 1997, the

SUPREME COURT OF OHIO
day Dr. Sheldon Kaffen, an orthopedic surgeon, reported that Harubin was unable
to engage in any sustained remunerative employment. The commission also
denied PTD for the preceding period commencing with Harubin's last TTD
payment. It found that in 1995, LTV Steel had offered Harubin a light-duty job
that was within Harubin's physical restrictions at the time the offer was made, and
that since Harubin had rejected the offer, PTD was precluded for the interim
period.

LTV Steel then filed for the instant writ in the court of appeals, asserting
that Ohio Adm.Code 4121-3-34(D)(1)(e) precluded Harubin's PTD award. LTV
Steel also contested the commission's award for a variety of other reasons,
including the commission's allegedly unjustified denial of LTV Steel's motion to
depose Dr. Kaffen and its failure to find that surveillance videotapes established
Harubin's continued physical capacity to work in the job LTV Steel offered him.
The Court of Appeals for Franklin County granted the writ and found that the
commission had abused its discretion in granting PTD after Harubin rejected a job
offer within his medical restrictions. The court of appeals considered the Ohio
Adm.Code 4121-3-34(D)(1)(e) issue dispositive and, thus, did not address LTV
Steel's ancillary arguments. The cause is now before this court upon an appeal as
of right.

Ohio Adm.Code 4121-3-34(D)(1) specifies that its "guidelines shall be
followed by the adjudicator in the sequential evaluation of applications for
permanent total disability compensation." Division (D) lists the circumstances
under which a claimant can be found to qualify as permanently and totally
disabled. The enumerated circumstances (apart from those relevant to a statutory
R.C. 4123.58[C] loss) state that PTD shall be denied if, after a hearing, the
adjudicator finds that (1) the claimant is engaged in sustained remunerative
employment, (2) the claimant is medically able to return to his or her former job,
(3) the claimant voluntarily removed himself or herself from the workforce, (4)
2

January Term, 2002
the claimant has refused a bona fide job offer of sustained remunerative
employment within his or her capabilities, (5) the claimant's condition is
temporary, (6) the claimant's advanced age is the sole or primary obstacle to
sustained remunerative employment, or (7) a nonallowed condition is the cause of
the claimant's inability to perform sustained remunerative employment. Ohio
Adm.Code 4121-3-34(D)(1)(b) through (i). If the claimant clears these hurdles,
the adjudicator next determines whether nonmedical or vocational factors
preclude a PTD award under division (D)(2).

Ohio Adm.Code 4123-3-34(D)(1)(e), governing bona fide job offers,
states:

"If, after hearing, the adjudicator finds that the claimant is offered and
refuses and/or fails to accept a bona fide offer of sustained remunerative
employment that is made prior to the pre-hearing conference described in
paragraph (C)(9) of this rule where there is a written job offer detailing the
specific physical/mental requirements and duties of the job that are within the
physical/mental capabilities of the claimant, the claimant shall be found not to be
permanently and totally disabled."

This case is confusing because the commission reached legally conflicting
conclusions. First, it awarded PTD to Harubin commencing January 15, 1997,
knowing that such an award was not possible if Harubin had refused a qualifying
offer of employment. Ohio Adm.Code 4121-3-34(D)(1)(e). Then, the
commission denied Harubin's request for PTD from the date of the last payment
of TTD through January 14, 1997, on the basis that Harubin had refused a good-
faith job offer.

Ohio Adm.Code 4123-3-34(D)(1)(e) does not state on whose medical
opinion the employer's offer of employment is to be based. The court of appeals,
in adopting the magistrate's decision, asserted that there was some evidence in the
record (for example, Dr. Taylor's August 29, 1994 report) to support the
3

SUPREME COURT OF OHIO
commission's conclusion that when Harubin refused LTV's offer of employment,
he was physically capable of performing the job. We agree. However, there is
also some evidence in the record (for example, Dr. Kaufman's April 25, 1995
report) to support the commission's implicit conclusion that Harubin did not
refuse a qualified offer of employment because he was not capable of performing
any sustained employment. It is not necessary for us to determine which report is
more persuasive because there is dispositive factual evidence in the record.

The letter in which LTV offered a job to Harubin contained the following
sentence: "This job has been provided to your attending physician for review, as it
pertains to your existing restrictions." After receiving notice of LTV Steel's job
offer and having recently examined Harubin, Dr. Eltomey maintained that
Harubin should be evaluated for PTD because of "persistent symptomatology,
lack of improvement to different therapeutic modalities, persistent chronic left S1
radiculoneuritis, and a previous history of aggravation of his symptoms with any
minimal activity." As the dissenting judge in the court of appeals wrote, "[i]n
short, Mr. Harubin's treating neurosurgeon did not release him for the job or
agree that Mr. Harubin was medically capable of performing it." Accordingly,
despite LTV Steel's best efforts, it did not offer Harubin a qualifying job whose
refusal by Harubin would preclude PTD pursuant to Ohio Adm.Code 4121-3-
34(D)(1)(e).

Based on the record before us, we conclude that Harubin did not reject a
bona fide job offer and that his PTD claim cannot be rejected on that ground. We
reverse the judgment of the court of appeals. We remand the cause to that court
for further proceedings to determine whether the other challenges raised by LTV,
which were not ruled upon by the court of appeals, have merit.
Judgment reversed
and cause remanded.

MOYER, C.J., RESNICK and LUNDBERG STRATTON, JJ., concur.
4

January Term, 2002

DOUGLAS, J., dissents.
F.E. SWEENEY, J., dissents, would reverse the judgment of the court of
appeals, and would reinstate the order of the Industrial Commission.

COOK, J., dissents.
__________________

DOUGLAS, J., dissenting. I respectfully dissent. I find the majority
opinion to be confusing and internally contradictory particularly on the issue of
the job offer. I believe that the determination of the commission was exactly
right. I would reverse the judgment of the court of appeals and reinstate the order
of the commission.
__________________

COOK, J., dissenting. I respectfully dissent. I would affirm the judgment
of the court of appeals for the reasons stated in the court of appeals' opinion and
the decision of its magistrate.
__________________

Manos, Pappas & Stefanski Co., L.P.A., Leonard J. Pappas, James A. Neff
and Janice T. O'Halloran, for appellee LTV Steel.

Hahn & Pollock, Victor H. Hahn and Candace M. Pollock; Steward Jaffy
& Assoc. Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, for appellant.
__________________
5