Ohio Supreme Ct. Reviews 1973 Work Comp Case in 2008

Friday, January 16, 2009 | 0

By Justice Paul E. Pfeifer

In 1973, while working as a telephone lineman for Sprint/United Telephone Company, a man named Richard Pierron was seriously injured in an on-the-job accident. Although the accident occurred more than 35 years ago, his subsequent workers' compensation claim came under review here  at the Supreme Court of Ohio  in October 2008. That, of course, leads to the natural question: Why was there such a long delay?

After his injury, Pierron's doctor imposed medical restrictions that were incompatible with his former position of employment as a lineman. Sprint/United offered Pierron a light-duty warehouse job that was consistent with those medical restrictions, and Pierron, no doubt happy for the work, accepted that position.

All was well for more than 20 years; Pierron worked his warehouse job until 1997, when Sprint/United informed him that his light-duty position was being eliminated. The company did not offer him an alternative position. Rather, he was given the option to retire or be laid off. He chose retirement.

In the years that followed, Richard Pierron remained unemployed, except for a brief part-time stint delivering flowers. Then, in 2003, six years after choosing retirement from Sprint, he filed a motion for temporary total disability compensation commencing June 17, 2001.

A district hearing officer for the Industrial Commission of Ohio which handles such matters granted the motion. But a staff hearing officer the next person up the chain of command reviewed the motion and reversed the district hearing officer's decision. In reversing the decision, the staff hearing officer concluded that Pierron had voluntarily abandoned his former position of employment when he retired.

The Industrial Commission confirmed that order. In its written report, the commission said Pierron voluntarily abandoned the work force when he retired in 1997, and that despite attempts to characterize his "departure from the work force as involuntary, there is no evidence whatsoever that the injured worker sought any viable work during any period of time since he retired. The injured worker's choice to retire was his own. He could have accepted a lay-off and sought other work, but he chose otherwise."

The report continued: "It is not just the fact of the retirement that makes the abandonment voluntary in this claim, as the passage of time without the injured worker having worked speaks volumes. The key point... is that the injured worker's separation and departure from the work force is wholly unrelated to his work injury."

After that ruling, Pierron filed a request with the Court of Appeals for Franklin County. He asked the court to compel the Industrial Commission to order compensation. The request was denied.

The court of appeals ruled that because Pierron's retirement from his light-duty warehouse job was not due to injury, his retirement could not be considered involuntary. The court also held that because Pierron worked only minimally after retirement, he clearly showed an intent to abandon the entire labor market that barred all future temporary total disability compensation.

After being denied by the court of appeals, Pierron filed an appeal with us the Supreme Court of Ohio.

Temporary total disability compensation is intended to compensate an injured worker for the loss of earnings incurred while the industrial injury heals. But there can be no lost earnings, or even a potential for lost earnings, if the person making the claim is no longer part of the active work force.

As our court observed in a workers' compensation case in 1987, a claimant who leaves the labor market "no longer incurs a loss of earnings because he is no longer in a position to return to work." When the reason for this absence from the work force is unrelated to the industrial injury, temporary total disability compensation is foreclosed.

In a workers' compensation case from 2000, we stated that when a claimant "chooses for reasons unrelated to his industrial injury not to return to any work when able to do so, that employee has abandoned both his employment and his eligibility for temporary total disability."

In Richard Pierron's case, we were confronted with this same situation. The Industrial Commission concluded that after Pierron's separation from Sprint/United, his actions or more accurately, his inaction in the months and years that followed showed a clear intent to leave the work force. This determination was within the Industrial Commission's discretion.

In a 1989 workers' compensation case, our court determined that abandonment of employment is largely a question "of intent... that may be inferred from words spoken, acts done, and other objective facts."

In this case, the lack of evidence of a search for employment in the years following Pierron's departure from Sprint/United supports the Industrial Commission's conclusion that Pierron intended to abandon the work force entirely.

We recognize that Pierron did not initiate his departure from Sprint/United. But we also recognize that there was no causal relationship between his industrial injury and his departure from Sprint/United. There was also no causal relationship between his injury and his voluntary decision to no longer be actively employed anywhere in the labor force.

When a departure from the entire work force is not motivated by injury, we presume it to be a lifestyle choice. And, as we stated in a workers' compensation case in 1995, workers' compensation benefits were never intended to subsidize lost or diminished earnings attributable to lifestyle decisions.

Richard Pierron did not choose to leave his employer in 1997, but once that separation nevertheless occurred, Pierron had a choice: he could either seek other employment or work no more. Pierron chose to work no more.

He cannot, therefore, credibly allege that his lack of income from 2001 and beyond is due to his industrial injury. Therefore, we determined by a six-to-one vote to affirm the judgment of the court of appeals that Richard Pierron is ineligible for temporary total disability compensation.

EDITOR'S NOTE: The case referred to is State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245. Case No. 2007-1460. Decided Oct. 15, 2008. Opinion Per Curiam.



By Ohio Supreme Court Justice Paul E. Pfeifer.  This article was reprinted by permission and first appeared in the Bucyrus (Ohio) Telegraph-Forum newspaper.