supreme court of ohio counsel for appellee ......assistant attorney general 150 e. gay street, 22d...
TRANSCRIPT
In The Supreme Court Of Ohio
State of Ohio ex rel. Juan L. Lackey,
Appellant,
V.
Case Number 09-1755
On Appeal from the
Industrial Commission of Ohio : Franklin County Courtand Penske Truck Leasing Co. LLP . of Appeals, Tenth
Appellate District
Appellees.
REPLY BRIEF OF THE APPELLANT JUAN L. LACKEY
Thomas W. Condit (#0041299)ATTORNEY AT LAWP.O. Box 12700Cincinnati, OH 45212513-731-1230(Si3) 73ii230 (fax)Counsel for Appellant Juan L. Lackey
Robert M. Robenalt, Esq.Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215Counsel for Appellee Penske
Kevin J. Reis, Esq.Assistant Attorney General150 E. Gay Street, 22d FloorColumbus, Ohio 43215Counsel for Appellee Administrator
JAN ^ 5 Hi`l
CLERK O F COURTSUPREME COURT OF OHIO
Table of Contents
.......................... mTable of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ^ ^ ^
Summary and Comments on Factual Record . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . I
Reply Argument ...............................................................4
1. The Affidavit of Juan L. Lackey Was Before the Industrial CommissionWhen it Exercised its Discretion Not to Hear Mr. Lackey's Appeal From TheSHO Order Denying TTD, and It is Therefore Properly Before this Court forConsideration . .................................................... 4
II. Penske and the Commission Have Conflated and Muddied the ArgumentsRelevant to Medical Evidence, Involuntary Retirement, and TTD . . . . . . . . . . . . . 5
1. Periods of TTD Claimed By Mr. Lackey Are Fully Supported ByContemporaneous Medical Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . : . . 6
2. Proof of Involuntary Retirement Has Never Carried the Requirementof Medical Certification of Disability Stahis : . . . . . . . . . . . . : . . . . . . . . . 6
M. Continued Employment and/or Efforts to Obtain Employment Have NeverBeen'a Prerequisite for Involuntary Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion ...................................................................9
Certificate of Service . . . . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . 10
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TABLE OF AUTHORITIES
CASES PAGE
State ex rel. Cordray v. Indus. Comm. (1990),54 Ohio St.3d 99 ........................................................5
State ex rel. 7?omjancic v. Indus. Comm. (1994),69 Ohio St.3d 693 ..........:............................................5
State ex rel. Reliance Electric Co. v. Stevens,2004-Ohio-1779, 2004 Ohio App. LEXIS 1582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
State ex rel. Rockwell International v. Indus. Comm. (1988),40 Ohio St.3d 44, 531 N.E.2d 678 (syllabus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
State ex rel Wiley v. Whirlpool Corp.,100 Ohio St3d 110, 2003-Ohio-5100, 796 N.E.2d 925 . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATUTES
R.C.4123.511(c) .............................................................. 4
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Relator-Appellant Juan L. Lackey ("Mr. Lackey") hereby replies to the Briefs of
Appellees Penske Truck Leasing Co., LLP ("Penske") and Industrial Commission of Ohio
("Commission").
SUMMARY AND COMMENTS ON FACTUAL RECORD
A review of the briefs filed by Penske and the Commission confirm the following:
1. There is no evidence in the record to support the conclusion that Mr. Lackey retired
for reasons unrelated to his 2001 industrial injury.
2. The evidence in the record that supports Mr. Lackey's contention that he retired
because ofhis 2001 industrial injury includes:
a. The letter of Mr. Lackey's attorneyI, written to Penske's representative and filed with
the Ohio Bureau of Worker's Compensation ("BWC") more than two months before
the effective retirement date, announcing to all interested parties why Mr. Lackey was
opting for an early retirement. (Letter of counsel; p. 0015.)
b. The medical opinion letter of Mr. Lackey's doctor, written one week prior to Mr.
Lackey's retirement decision, opining that Mr. Lackey had asymptomatic pre-existing
degenerative changes and chondromalacia of the left knee that were "aroused by the
6/5/01 injury" and that "there is a possibility that these conditions could progress as a
result of the knee injury and subsequent surgery." (Dr. Bilbo Letter dated 7/21/04; p.
0010.) '
1 It goes without saying that Mr. Lackey's attomey was serving as Mr. Lackey's agentand, having actively represented Mr. Lackey for several years by then, was speakingwith authority for him in that letter. Far from posing as some form of a medicalevidence (as the Court of Appeals suggested), the attomey letter was an unambiguousstatement of the reason why Mr. Lackey opted for an early retirement and it was willfullyignored by all those preferring to fabricate their own reasons in order to deny benefits toMr. Lackey.
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c. The C-86 motion filed by Mr. Lackey on the day he signed his retirement paper
seeking to have his claim amended for the additional medical conditions diagnosed by
Dr. Bilbo. (C-86Motion; p 0011.)
d. The two 2005 hearing orders (DHO and SHO) amending Mr. Lackey's claim to
include the additional medical conditions diagnosed in Dr. Bilbo's 7/21/04 letter.
(Commission Orders; p. 0017, 0019.)
e. Dr. Bilbo's October 2005 request for approval to perform left knee surgery. (Bilbo C-
9; p. 0022.)
f. Mr. Lackey's C-86 motion seeking payment of temporary total disability
compensation beginning November 16, 2005 (date of surgery) and continuing. (C-86
Motion; p. 0024 to 0027.)
g. The Genex Progress Report #3, published while Mr. Lackey was participating in post
surgery rehabilitation program, confirming Mr. Lackey's goal and desire of returning
to work in some capacity. ( Genex Progress Report #3; p. 0030-0032.)
h. Operative report of May 15, 2006 knee replacement surgery. (Operative Report, p.
0049.)
i. Mr. Lackey's Affidavit, filed in support of his appeal to the Industrial Commission on
April 3, 2006. (Affidavit ofJuan L. Lackey, p. 0040-42.)
3. Remarkably, neither Penske's brief nor the Comnussion's brief mentioned the
central fact driving Mr. Lackey's decision to retire early - the comment from his terminal
manager that his driving technique (releasing clutch while stopped in traffic) could have
posed a safety hazard. (Affidavit ofJuan L. Lackey, p. 0040, paragraphs 6, 9.) Having
never presented any witness or counter-affidavit to challenge the accuracy of Mr. Lackey's
account, the Appellees can only act as if that (inconvenient) injury-related reason for
retirement does not exist.
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4. There are only two docunients in the record that Penske and the Commission
posit as "some evidence" of Mr. Lackey's intent tosetire in 2004. Neither document can, in
good faith, be construed that way:
a. Penske cites to the retirement document signed by Mr. Lackey, (Certification of
Complete Severance and Termination of Employment; p. 0014,) as evidence of a
voluntary retirement. Yet, that document sheds no light at all on why Mr. Lackey
retired. It is utterly silent as to disability status and all other medical issues, and
there is no evidence in the record to suggest that medical issues were even relevant
to a Teamsters retirement or to the completion of that document. Yet, that absence
of evidence did not deter Penske from fabricating a negative inference against Mr.
Lackey for failing to submit medical or other documentation "indicating that his
retirement was in any way related to his industrial injury. (Penske Brief, p. 8.)
Penske's argument mirrors the conclusion in the 2/10/06 DHO Order, (pR. 0035)
that Mr. Lackey "took a full retirement and not a disability retirement." Like the
hearing officers, Penske is unfazed by the complete lack of evidence that a
"disability retirement" option was ever presented to Mr. Lackey by the Teamsters
Union, or that such an option even existed.
b. Penske cites to the (Genex Progress Report #3; p. 0030-0032) generated while Mr.
Lackey was rehabilitating in January 2006, as evidence that Mr. Lackey voluntarily
==y'retired and had no intention of seeking altemative work. There a.re iwo reasons wL..
the Genex document does not constitute such evidence. First, the document clearly
records Mr. Lackey's desire to return to work. Second, if one accepts for the sake of
argument Penske's conclusion that Mr. Lackey's distaste for driving automatic trucks
(suggested "per Dr. Heis"), (p. 0031,) at lower pay was evidence that he did not
intend to work again, it would require the conclusion that the physical limitations
caused by the injury drove his retirement decision.
In summary, the Commission and Penske have worked hard to suggest that the
Commission merely resolved conflicting evidence against Mr. Lackey when it denied TTD
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benefits, but there were no fact disputes resolved by the Commission. There were only
conflicting interpretations of unrebutted evidence, juiced up with completely unsupported
negative inferences to deny Mr. Lackey his rightful benefits.
REPLY ARGUMENT
Saddled with a record barren of any evidence that Mr. Lackey had voluntarily retired,
Penske and the Commission are reduced to defending the "discretion" of Commission
hearing officers to ignore uncontradicted evidence while making inferences from half-truths.
The record before this Court contains (i) no conflicting testimony, (ii) no conflicting medical
opinions, and (iii) no other credibility battles of any kind. Ultimately, this case is about the
extent to which Commission hearing officers will be permitted to arbitrarily disregard
uncontradicted evidence to arrive at tortured conclusions.
1. The Affidavit of Juan L. Lackey Was Before the Industrial Commission
When it Exercised its Discretion Not to Hear Mr. Lackey's Appeal From The
SHO Order Denying TTD, and It is Therefore Properly Before this Court for
Consideration.
Both Penske's Brief (pp. 11-13) and the Commission's Brief (p. 7) challenge the
(Affidavit ofJuan L. Lackey, p. 0040) as being improper for this Court's consideration
because it was filed after the (3/13/06 SHO decision, p. 0037) denying TTD. Only Penske
cited any case law for that proposition, and it is inapposite.
Under R.C. 4123.511(C), the Commission has discretion to review decisions from
staff hearing officers if (i) an appeal involves issues for which the Commission desires to set
policy, (ii) the appeal involves unusual legal, medical or factual questions, (iii) there is newly
discovered evidence, or (iv) there is the possible existence of fraud in a claim. The Notice of
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Appeal form designed by the Commission for all administrative appeals; including appeals
from SHO Orders, anticipates the submission of new evidence. (See Notice of Appeal, p.
039.)
Penske cites State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693 and
State ex rel. Cordray v. Indus. Comm. ( 1990), 54 Ohio St.3d 99, for the proposition that the
Commission "has no legal duty to consider evidence that is submitted after the evidentiary
hearings have been concluded." (Penske Briefat 11.) However, both Domjancic and
Cordray were Permanent Total Disability cases with review of the SHO Orders subject only
to the standards of reconsideration set forth in IC Resolution 98-1-3 (5/6/98).
Having had full discretion to review the SHO order with the record supplemented by
Mr. Lackey's affidavit, the Commission elected not to do so. It cannot be permitted to now
stand before this Court running from the evidence it previously found so acceptable. Indeed,
this Court would do a great service for future Ohio workers' compensation litigants by using
this case to confirm that evidence filed with the Commission on appeal from an SHO
decision remains properly in the record for any subsequent mandamus action. It will relieve
injured workers, in particular, from having to hire court reporters whenever meaningr
r
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compensation is at stake to prevent the mischaracterization of non-written evidence.
II. Penske and the Commission Have Conflated and Muddied the ArgumentsRelevant to Medical Evidence, Involuntary Retirement, and TTD.
The Briefs filed by Penske and the Commission are permeated with references to
"contemporaneous medical evidence," "voluntary retirement" and "temporary total
disability." The issues must be separated because, as argued, they invite confusion.
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1. Periods of TTD Claimed By Mr. Lackey Are Fully Supported ByContemporaneous Medical Evidence.
Mr. Lackey agrees with Appellees that an injured worker has the burden of providing
the Commission with evidence of medical disability contemporaneous with any claimed
period of TTD. There can be no dispute that Mr. Lackey has provided such evidence for the
claimed period(s) of TTD in this case. Mr. Lackey first claimed TTD for the period
beginning November 16, 2005 (date of surgery), (p. 0024-27; C-86 Motion and supporting
medical documentation.) Mr. Lackey later filed a second motion seeking TTD beginning
5/15/06 (date of knee replacement). (p. 0048-58; C-86 Motion and supporting medical
documentation.) Beyond doubt, the medical evidence necessary to prove TTD for the
requested period(s) was before the Commission when TTD was denied.
2. Proof of Involuntary Retirement Has Never Carried the Requirement ofMedical Certification of Disability Status.
Unlike the issue of TTD, this Court has never held that an injured worker must
provide proof of disability contemporaneous with his retirement decision to support a finding
of involuntary retirement. Yet, reading the briefs of Penske and the Commission, one would
' -' "-think that the absence of a written opinion from Dr. Biibo is fatai to ivir. Lackay's ciaun. ivv
case law supports that position. Rather, the retirement decision must be injury related or
injury induced.
As this Court stated in State ex rel. Rockwell International v. Indus. Comm. (1988),
40 Ohio St.3d 44, 531 N.E.2d 678, "the determination rests on whether the fact that relator
left [his] employment was causally connected to [his] injury...." Id. at 46. The question of
abandonment is primarily one of intent, State ex rel Wiley v. Whirlpool Corp., 100 Ohio St.3d
110, 2003-Ohio-5100, not medical certification.
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The point of the case law governing the retirement analysis, muddied by the
Appellees' shrill demands for more medical records, is that the injury must be a factor in the
retirement decision in order for the retirement to be considered voluntary.Z Several
observations are necessary in that regard. First, Mr. Lackey did present contemporaneous
medical evidence of his knee injury and sought the amendment of his claim the very week
that he applied for the Teamsters retirement.
Second, it is significant, and possibly the most unusual aspect of this case, that Mr.
Lackey opted for early retirement before his most disabling conditions were allowed in the
claim.
Third, while the medical evidence "contemporaneous with" Lackey's retirement
decision may be unsatisfactory to Penske and the Commission, the "pre and post" medical
records support that Lackey had unresolved knee problems from 2003 to 2006. He had
surgery in 2003. (Operative Note 6/25/03, p. 0009-10.) He had surgery in 2005. (Medical
Records, p. 0025-2 7.)
Finally, the suggestion from Mr. Lackey's terminal manager that Lackey's driving
habits (clearly related to his knee pain) could'be a safety hazara on tiie road would be a
strong injury-related reason for a trucker to retire absent any contemporaneous medical
opinion. 3
Z Significantly, the injury need not be the only factor in the retirement decision in order forthe retirement to be considered involuntary. See State ex rel. Reliance Electric Co. v.
Stevens, 2004-Ohio-1779, 2004 Ohio App. LEXIS 1582 (age and service retirement decision
made one month after plant closing).
3 In retrospect, it is easy to see that Mr. Lackey should have "lawyered" this claim todeath by seeking medical opinions, obtaining C-84 fonns, bringing court reporters toevery hearing, and otherwise litigating with great aggression. That he quietly applied forretirement in the face of the uncertainties of his contested claim does not change the fact
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III. Continued Employment and/or Efforts to Obtain Employment Have NeverBeen a Prerequisite for Involuntary Retirement.
An injury-induced abandonment is never considered to be voluntary. State ex rel.
RoclwellInternati. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. At least as
troubling as the Appellees' over-emphasis on the role of medical records is their over-
emphasis on the requirement that Mr. Lackey seek work as evidence of his intent. Whereas
some of the case law cited by Appellees presents a factual context where job search and/or
re-employment is relevant to TTD benefits, it is generally understood that when people retire,
for whatever reason, they leave the workforce. The misplaced emphasis on a job search
requirement reminds Lackey of the discussion that appears in State ex rel. Reliance Electric
Co. v. Stevens, 2004-Ohio-1779, 2004 Ohio App. LEXIS 1582:
The issue before the commission was whether claimant had voluntarilyabandoned his former position of employment when he took an age and serviceretirement from relator in May 1999, following his knee surgery in October1998. The issue was not, as relator suggests here, whether claimant had decidedto permanently abandon the workforce when he took his retirement. Whether ornot claimant had reentered the workforce at some point in time following theretirement was irrelevant to the issue of whether the retirement was injury-induced and, thus, involuntary under Rockwell, supra.
:--Evidence of post-retirement employment would have become relevant 11r .,̂ue
commission had determined, in the first instance, that the May 1999 retirement
was not injury-induced under Rockwell. Had the commission determined in thefirst instance that the retirement was not injury-induced, claimant could stillpreserve his TTD eligibility by showing that he had reentered the workforcefollowing the retirement, as the McCoy case indicates. Clearly, given that thecommission found that the retirement was not voluntary, claimant had noburden to show that he had reentered the workforce to preserve his TTD
eligibility.
of why he retired. His knee hurt, he could not drive his truck properly, and he did notneed a doctor to tell him that. Little did he know that a letter from his attorney,accurately stating his position months before his retirement date, would be treated like somuch trash. From what Lackey can gather, Penske and the Commission would agree that
Lackey had retired involuntarily had only Dr. Bilbo, and not attomey Condit, written that
letter.
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If the Coru-t accepts that the Commission abused its discretion by ignoring Mr.
Lackey's unrebutted contention that he retired for pain and safety reasons, in the midst of
litigation, all related to his 2001 lcnee injury, the lack of a job search is of no consequence.
CONCLUSION
For all of the foregoing reasons, the judgment of the Court of Appeals should be
reversed and this case should be remanded with instructions for the Court of Appeals to issue
a writ of mandamus ordering the Industrial Commission to vacate its previous orders and to
grant Mr. Lackey's requests for temporary total disability compensation for his post-surgery
periods of disability beginning November 16, 2005 and continuing.
Respectfully submitted,
Thomas W. Condit (#0041299)P.O. Box 12700Cincinnati, Ohio 45212(513) 731-1230(513) 731-7230 (fax)Counsel For Appellant Juan L. Lackey
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CERTIFICATE OF SERVICE
I hereby certify that a copy of this Reply Brief of Appellant was served by First
Class U.S. Mail this 5th day of January 2011 upon the following counsel for Appellees:
Robert M. Robenalt, Esq.Schottenstein, Zox & Dunn250 West StreetColumbus, Ohio 43215Counsel for Appetlee Penske
Kevin J. Reis, Esq.Assistant Attorney General150 E. Gay Street, 22"d FloorColumbus, Ohio 43215Counsel for Appellee Administrator
Thomas W. Condit, Attorney
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