[Cite as State ex rel. Rouan v. Indus. Comm., 133 Ohio St.3d 249, 2012-Ohio-4639.]




     THE STATE EX REL. ROUAN, APPELLANT, v. INDUSTRIAL COMMISSION
                             OF OHIO ET AL., APPELLEES.

                    [Cite as State ex rel. Rouan v. Indus. Comm.,
                        133 Ohio St.3d 249, 2012-Ohio-4639.]
Workers’ compensation—Temporary total disability compensation—Disability
         retirement—Voluntary abandonment of the work force—Court of appeals’
         judgment denying benefits affirmed.
   (No. 2011-0775—Submitted August 21, 2012—Decided October 11, 2012.)
              APPEAL from the Court of Appeals for Franklin County,
                             No. 10AP-36, 2011-Ohio-1897.
                                 ___________________
         Per Curiam.
         {¶ 1} When determining whether an employee’s retirement bars a
subsequent request for temporary total disability compensation (“TTC”), two
considerations predominate: (1) was the retirement precipitated by the workplace
injury and (2) did the claimant remain in the work force after retiring? Appellant,
Patricia Rouan, unsuccessfully sought postretirement TTC and now challenges
that denial in this court.
                                          FACTS
         {¶ 2} Rouan began receiving TTC in 2004 after hurting her leg at work.
Several months later, she filed a disability-retirement application with the Ohio
Public Employees Retirement System.               The application attributed Rouan’s
inability to work exclusively to “major depressive disorder”—a condition that
appellee Industrial Commission of Ohio had specifically disallowed as part of her
claim.
                             SUPREME COURT OF OHIO




       {¶ 3} During the processing of her retirement application, Rouan
continued to receive TTC for her allowed knee and leg conditions. In mid-May
2005, Rouan’s doctor indicated that these conditions had reached maximum
medical improvement, and pursuant to R.C. 4123.56(A), TTC was stopped. At
approximately the same time, Rouan’s retirement application was approved with a
retroactive retirement date of February 1, 2005. Rouan left the work force and
has not worked since.
       {¶ 4} In 2007, Rouan filed an application for permanent total disability
compensation (“PTD”). The commission denied the application after finding that
Rouan’s allowed conditions did not preclude sustained remunerative employment.
She later successfully moved for the additional allowance of two arthritic knee
conditions, and a request for renewed TTC followed.
       {¶ 5} The commission denied TTC after finding that Rouan had
voluntarily abandoned the work force when she took disability retirement for a
condition that was unrelated to her workplace injury. The Court of Appeals for
Franklin County agreed and denied Rouan’s request for a writ of mandamus.
Rouan now appeals to this court as a matter of right.
                                    DISCUSSION
       {¶ 6} A claimant who permanently abandons the work force for reasons
unrelated to the workplace injury cannot collect TTC. State ex rel. Corman v.
Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579, 970 N.E.2d 929, ¶ 1,
citing State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245,
896 N.E.2d 140, ¶ 9. As the court explains in Corman, “TTC compensates
claimants ‘for the loss of earnings which he [or she] incurs while the injury heals.’
State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42, 44, 517 N.E.2d 533
(1987). There ‘can be no lost earnings, however, or even a potential for lost
earnings, if the claimant is no longer part of the active work force.’ Pierron at
¶ 9.” Id. at ¶ 5. See also State ex rel. Rockwell Internatl. v. Indus. Comm., 40




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                               January Term, 2012




Ohio St.3d 44, 45-46, 531 N.E.2d 678 (1988) (a claimant who retires for reasons
unrelated to his or her injury cannot receive TTC, since it is the claimant’s own
action, not the industrial injury, that prevents a return to the former position of
employment).
         {¶ 7} It is undisputed that Rouan permanently left the work force after
she retired. The evidence also indicates that her retirement was not related to her
workplace injury, but was instead based on a “major depressive disorder” that had
been specifically disallowed in her claim.      Under Corman and Pierron, the
commission did not abuse its discretion in refusing to reinstate TTC.
         {¶ 8} Rouan, nevertheless, contends that she cannot be deemed to have
voluntarily abandoned the entire work force when she took disability retirement in
2005. Citing State ex rel. Brown v. Indus. Comm., 68 Ohio St.3d 45, 623 N.E.2d
55 (1993), Rouan argues that a claimant who is temporarily and totally disabled at
the time of retirement cannot be deemed to have voluntarily abandoned the work
force.
         {¶ 9} In Brown, the claimant was incarcerated after the commission had
awarded him PTD. As a result of his incarceration, the commission suspended
Brown’s PTD under the theory that his incarceration amounted to a voluntary
abandonment of his former job. We found that the commission’s suspension of
PTD was contrary to law. Because Brown was permanently and totally disabled
before his incarceration, his injury—not his imprisonment—had permanently
removed him from the work force. Id. at 49. We reasoned that “once a worker
has been declared permanently and totally disabled he or she is incapable of
returning to work.” Id. at 48. Accordingly, we held that a claimant like Brown
who has a permanent and total disability is incapable of abandoning the work
force because the claimant has already been permanently removed from the work
force by reason of his or her injury. Id. at 48-49. We also stated, however, that a
“claimant can abandon a former position or remove himself or herself from the



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work force only if he or she has the physical capacity for employment at the time
of abandonment or removal.” Id. at 48.
       {¶ 10} Brown does not advance Rouan’s cause for two reasons. First,
unlike the claimant who suffered the workplace injury in Brown, Rouan suffered a
temporary but not a permanent disability. Rouan’s leg injury foreclosed a return
to her former job, but it did not medically disqualify her from other employment.
Two years after her disability retirement was approved, Rouan filed an application
for PTD. The commission denied her application, finding that Rouan’s allowed
conditions did not preclude sustained remunerative employment. Thus, unlike the
claimant in Brown, whose abandonment of the work force could only be deemed
involuntary because of his permanent and total disability, Rouan voluntarily
removed herself from the work force by taking disability retirement, because she
still had the physical ability to work.
       {¶ 11} Second, as noted, the claimant’s decision in Brown to engage in
criminal activity could not be considered a voluntary abandonment of his former
job because his industrial injury—as demonstrated by his receipt of PTD—had
removed him from the work force before his incarceration did. Hence, Brown’s
incarceration did not negate the “causal relationship between the work-related
injury suffered by [Brown] and his * * * absence from the work force.” Id. at 49.
       {¶ 12} In contrast, there is only one reason why Rouan did not return to
the work force: she suffers from a “major depressive disorder,” a condition that is
unrelated to her workplace injury. Her disability retirement negated the causal
relationship between her work-related injury and her absence from the work force.
Thus, she cannot take advantage of the reasoning upon which Brown is based,
rendering her reliance on that decision misplaced.
       {¶ 13} Pursuant to Corman and Pierron, we affirm the judgment of the
court of appeals.
                                                               Judgment affirmed.




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                                January Term, 2012




       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                               __________________
       Schiavoni, Schiavoni, Bush & Muldowney, Shawn R. Muldowney, and
Joseph J. Bush III, for appellant.
       Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney
General, for appellee Industrial Commission of Ohio.
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Elizabeth M.
Phillips, Assistant Prosecuting Attorney, for appellee Mahoning County.
                            ______________________




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