Summary
In White Consolidated, the commission determined that the claimant did not voluntarily retire based upon some evidence in the form of a doctor's report and an affidavit supplied by the claimant.
Summary of this case from State ex Rel. Furrie v. Indus. Comm.Opinion
No. 88-1210
Submitted September 26, 1989 —
Decided January 10, 1990.
Workers' compensation — Injury-induced retirement not "voluntary," when.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-468.
Appellant-claimant ("claimant"), James H. Peterson, was injured while in the course of and arising from his employment with appellee, White Consolidated Industries, a self-insured employer. Following allowance of his workers' compensation claim, claimant began receiving temporary total disability compensation. On April 1, 1986, while still receiving temporary total compensation, he retired. Appellee then asked the Industrial Commission ("commission"), appellant, to determine whether the claimant should receive temporary total compensation subsequent to his retirement.
The commission ordered compensation to continue, finding that:
"[T]he claimant's retirement was not voluntary but was due to the allowed condition in this claim. The Staff Hearing Officers refer to the claimant's affidavit of 7-22-86 as support for this finding as well as the 2-22-85 report of Dr. F.S. Boumphrey."
Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that the commission had abused its discretion in finding that claimant's retirement was involuntary and in continuing temporary total compensation on that basis. The appellate court issued the writ, finding that:
"* * * [V]oluntary retirement contemplates a situation where the claimant chooses on his own without coercion or pressure by the employer to retire. His subjective reason, albeit found to relate to pain or disability from the allowed injury, does not change the retirement from a voluntary retirement to an involuntary retirement."
Both claimant and the commission appeal to this court as a matter of right.
Baran, Piper, Tarkowsky Fitzgerald Co., L.P.A., John Tarkowsky and Kevin J. Reis, for appellee.
Anthony J. Celebrezze, Jr., attorney general, and James A. Barnes, for appellant Industrial Commission.
William R. Hamelberg, for appellant Peterson.
Squire, Sanders Dempsey, Preston J. Garvin, William J. Wahoff and Helen Mac Murray, urging affirmance for amicus curiae, Ohio Chamber of Commerce.
We begin by noting that the appellate court's opinion was issued prior to our decision in State, ex rel. Rockwell Internatl., v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. There, we specifically rejected the characterization of "voluntary retirement" presented below, holding instead that:
"When a claimant's retirement is causally related to an industrial injury, the retirement is not `voluntary' so as to preclude eligibility for temporary total disability compensation." Id. at paragraph one of the syllabus.
The voluntary nature of retirement is a factual question within the commission's final jurisdiction. State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 58 O.O. 2d 70, 278 N.E.2d 24. So long as the commission's decision is supported by "some evidence," there has been no abuse of discretion and mandamus will not lie. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Upon review, we find that Dr. Boumphrey's February 22, 1985 report and the claimant's affidavit are "some evidence" supporting the commission's determination that claimant's retirement was not voluntary.
Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
HOLMES, J., dissents.