[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm., Slip Opinion No. 2014-Ohio-1894.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-1894
THE STATE EX REL. HONDA OF AMERICA MANUFACTURING, INC., APPELLANT,
            v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
   it may be cited as State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm.,
                         Slip Opinion No. 2014-Ohio-1894.]
Workers’ compensation—Temporary-total-disability compensation—Involuntary
        retirement—Claimant entitled to compensation when there is evidence that
        claimant retired because of the industrial injury and no evidence that
        claimant abandoned the workforce.
     (No. 2012-1499—Submitted October 22, 2013—Decided May 7, 2014.)
     APPEAL from the Court of Appeals for Franklin County, No. 11AP-528,
                                   2012-Ohio-3335.
                               ____________________
        Per Curiam.
        {¶ 1} Honda of America Manufacturing, Inc., appeals the judgment of
the Tenth District Court of Appeals denying its request for a writ of mandamus
                             SUPREME COURT OF OHIO




that would require the Industrial Commission to vacate its award of temporary-
total-disability compensation to Honda’s former employee, Robert Corlew.
         {¶ 2} For the reasons that follow, we affirm.
Facts and Procedural Background
         {¶ 3} Corlew began working for Honda in 1988. On December 5, 2003,
he was injured while working. His workers’ compensation claim was allowed for
contusion and tendonitis of the right wrist and related injuries, as well as for
anxiety disorder.
         {¶ 4} Honda, a self-insured employer, paid Corlew temporary-total-
disability compensation at various times until February 29, 2008, when a district
hearing officer determined that his allowed conditions had reached maximum
medical improvement and terminated Corlew’s compensation.           Honda then
offered Corlew the opportunity for vocational-rehabilitation services, but Corlew
chose not to participate.
         {¶ 5} Between December 2006 and December 2008, Corlew participated
in Honda’s Medically Inactive Transition Program (“MIT”), a recovery-and-
treatment program for employees who are unable to work for an extended period
of time due to a medical condition. For some of the time that he was in the
program, Corlew received long-term-disability benefits.
         {¶ 6} After 130 weeks in the MIT program, Honda’s long-term-disability
insurance carrier evaluated Corlew and determined that he was no longer eligible
for ongoing benefits because he was capable of gainful employment outside of
Honda.     There being no position available at Honda, Corlew retired as of
December 31, 2008.
         {¶ 7} On December 29, 2009, Corlew underwent surgery on his wrist.
He applied for temporary-total-disability compensation to be paid during his
postsurgical recovery. A district hearing officer awarded benefits and a staff
hearing officer affirmed that decision.




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                               January Term, 2014




       {¶ 8} Honda appealed to the full commission. At the hearing, Honda’s
representative stated that Corlew’s long-term-disability benefits ended when it
was determined that he could return to some type of work outside of Honda and
that in lieu of termination, the claimant decided to take an age-based retirement.
Corlew testified that he retired because of his industrial injury and that he wanted
to return to work, but his injury prevented him from doing so.
       {¶ 9} The commission found Corlew’s testimony persuasive and
concluded that he had not voluntarily retired or abandoned the workforce. The
commission noted that Honda did not argue voluntary abandonment, refusal of a
good-faith job offer, voluntary retirement, or maximum medical improvement.
The commission rejected as unsupported by law Honda’s sole argument that the
claimant must sustain an economic loss to be eligible for temporary-total-
disability compensation. Instead, the commission concluded that Corlew had met
the statutory requirements for temporary total disability and granted his request
for compensation.
       {¶ 10} Honda filed a complaint in the Tenth District Court of Appeals for
a writ of mandamus. Honda alleged that the commission’s order contained a clear
mistake of law and constituted an abuse of discretion because the claimant had
failed to demonstrate that he suffered a loss of earnings caused by his industrial
injury during the period he was claiming to be disabled.
       {¶ 11} The magistrate concluded that the commission did not abuse its
discretion when it awarded compensation for temporary total disability. The
magistrate agreed with the commission that Corlew’s retirement had been due to
his industrial injury and thus was involuntary and that Corlew wanted to return to
work but was unable to do so as a result of the conditions allowed in his claim.
The magistrate noted that Honda did not argue that the retirement was voluntary
or that Corlew had abandoned the entire workforce.                 The magistrate
recommended that the appellate court deny Honda’s request for a writ.



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        {¶ 12} Honda filed objections to the magistrate’s decision, arguing that
the magistrate had failed to address the issue raised, i.e., whether a claimant must
first prove a loss of earnings to be eligible for temporary-total-disability
compensation.        The court of appeals, however, overruled Honda’s objection,
adopted the magistrate’s decision, and denied the writ of mandamus.
        {¶ 13} This cause is now before the court on an appeal as of right.
Analysis
        {¶ 14} This case involves Corlew’s postretirement request for temporary-
total-disability compensation to be paid during his postsurgical recovery period.
The narrow issue advanced by Honda is whether a claimant who has not suffered
a loss in earnings due to the industrial injury is entitled to an award of temporary-
total-disability compensation. According to Honda, Corlew had been retired for
one year at the time of the surgery and was not looking for a job, and there was no
evidence that he intended to reenter the workforce.        Honda has consistently
maintained that regardless of whether Corlew’s retirement was voluntary or
involuntary, he was not eligible for temporary-total-disability compensation,
because he suffered no economic loss that could be directly attributed to his
industrial injury.
        {¶ 15} The court of appeals concluded that when considering a
postretirement request for temporary-total-disability compensation, the relevant
issue is whether the claimant voluntarily or involuntarily retired.       10th Dist.
Franklin No. 11AP-528, 2012-Ohio-3335, ¶ 7.           Our case law supports this
conclusion. State ex rel. Lackey v. Indus. Comm., 129 Ohio St.3d 119, 2011-
Ohio-3089, 950 N.E.2d 542; State ex rel. Corman v. Allied Holdings, Inc., 132
Ohio St.3d 202, 2012-Ohio-2579, 970 N.E.2d 929. In Lackey, we addressed a
claimant’s request for postretirement temporary-total-disability compensation
following knee surgery. We clarified that “[e]ligibility for compensation under
these circumstances depends on whether the separation from employment was




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                                January Term, 2014




injury-induced.” Id. at ¶ 11. And if the retirement is related to the injury, it is not
necessary for the claimant to first obtain other employment, but it is necessary
that the claimant has not foreclosed that possibility by abandoning the entire
workforce. Id.; Corman at ¶ 7.
       {¶ 16} Here, the court of appeals concluded that the commission had
properly addressed the relevant issue of Corlew’s retirement and had determined
that the record contained evidence that Corlew retired because of his industrial
injury, but that there was no evidence that he had abandoned the entire workforce.
       {¶ 17} We agree and therefore affirm the judgment of the court of
appeals.
                                                                  Judgment affirmed.
       PFEIFER and O’NEILL, JJ., concur.
       O’CONNOR, C.J., and LANZINGER, J., concur in judgment only.
       O’DONNELL, KENNEDY, and FRENCH, JJ., dissent.
                              ____________________
       LANZINGER, J., concurring in judgment only.
       {¶ 18} On first blush, the dissent’s argument holds some appeal. The
typical claimant who receives temporary-total-disability compensation is one who
is still employed but unable to work due to a workplace injury.              It seems
incongruent that someone who has retired can be eligible for this award. But we
have previously held that if the decision to retire is causally related to the
workplace injury, an employee’s retirement is involuntary, and temporary-total-
disability compensation may be awarded if there is some evidence that the
employee had intended to remain in the workforce. State ex rel. Lackey v. Indus.
Comm., 129 Ohio St.3d 119, 2011-Ohio-3089, 950 N.E.2d 542, ¶ 11; State ex rel.
Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44, 46, 531 N.E.2d 678
(1988). In other words, but for the workplace injury, the claimant would have
been gainfully employed and earning wages.



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                             SUPREME COURT OF OHIO




       {¶ 19} Honda failed to challenge the hearing officer’s determination that
Corlew had retired due to his workplace injury.          This leaves standing the
determination that the retirement was involuntary and makes Corlew eligible for
temporary-total-disability compensation. I therefore concur in judgment only.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                             ____________________
       KENNEDY, J., dissenting.
       {¶ 20} Respectfully, I dissent. I agree that when considering a claimant’s
postretirement request for temporary-total-disability compensation, the initial
inquiry is whether the claimant voluntarily or involuntarily retired. However,
because I believe that R.C. 4123.56(A) requires an actual wage loss, in order to
qualify for temporary-total-disability compensation the claimant must also
demonstrate an economic loss. Since Robert Corlew had no loss of earnings, he is
not entitled to temporary-total-disability compensation.         Therefore, I would
reverse the judgment of the court of appeals and issue a writ of mandamus
ordering the Industrial Commission to vacate its order granting temporary-total-
disability compensation.
       {¶ 21} The majority fails to address Honda’s proposition of law, which
raises an issue of first impression.      Honda does not challenge the factual
determination that Corlew involuntary retired as a result of an industrial injury.
Instead, Honda argues that the court of appeals made an error of law and abused
its discretion by failing to apply R.C. 4123.56(A) as written.
       {¶ 22} R.C. 4123.56 requires an actual wage loss (“an employee shall
receive sixty-six and two-third percent of the employee’s average weekly wage so
long as such disability is total”). This court has repeatedly stated that the purpose
of temporary-total-disability compensation is to compensate for the loss of
earnings while an industrial injury heals. In State ex rel. McCoy v. Dedicated




                                         6
                                 January Term, 2014




Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35, this
court stated:


                All forms of death and disability benefits provided by R.C.
       Chapter 4123 are intended to compensate “for loss sustained on
       account of the injury.”        R.C. 4123.54(A).   For purposes of
       compensability, a causal relationship must exist between the
       employee’s industrial injury and the loss that the requested benefit
       is designed to compensate.


See also State ex rel. Rouan v. Indus. Comm., 133 Ohio St.3d 249, 2012-Ohio-
4639, 977 N.E.2d 648; State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249,
2007-Ohio-4916, 874 N.E.2d 1162; State ex rel. Ashcraft v. Indus. Comm., 34
Ohio St.3d 42, 517 N.E.2d 533 (1987). Therefore, to qualify for temporary-total-
disability compensation, Corlew must show not only an industrial injury but an
actual loss of wages as a result of the injury.
       {¶ 23} At the time Corlew applied for temporary-total-disability
compensation, he had been retired and out of the workforce for one year.
Therefore, Corlew could not have suffered a loss of earnings and was ineligible
for temporary-total-disability compensation regardless of the reason for his
retirement.
       {¶ 24} Moreover, because I believe that the statute requires an actual loss
of earnings, an award of temporary-total-disability compensation absent such an
economic loss is an unauthorized damage award. This violates Article II, Section
35, of the Ohio Constitution. Ohio’s workers’ compensation laws were enacted to
provide compensation to workers who are injured in the course of employment
“in lieu of all other rights to compensation, or damages, for such death, injuries,
or occupational disease.” Id.



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                            SUPREME COURT OF OHIO




       {¶ 25} Since I believe that an award of temporary-total-disability
compensation is predicated on an actual loss of earnings, in order for a claimant to
be eligible under R.C. 4123.56 for that compensation, the claimant must establish
not only that his industrial injury is disabling but also that he has sustained an
actual economic loss.
       {¶ 26} Therefore, I respectfully dissent. I would reverse the judgment of
the court of appeals and grant a writ of mandamus ordering the commission to
vacate its order granting temporary-total-disability compensation.
       O’DONNELL and FRENCH, JJ., concur in the foregoing opinion.
                             ____________________
       Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, for
appellant.
       Michael DeWine, Attorney General, and Patsy Thomas, Assistant
Attorney General, for appellee Industrial Commission.
       Law Office of Stanley R. Jurus and Frank A. Vitale, for appellee Robert L.
Corlew.
                          _________________________




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