[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McKee v. Union Metal Corp., Slip Opinion No. 2017-Ohio-5541.]




                                           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. 2017-OHIO-5541
   THE STATE EX REL. MCKEE, APPELLANT, v. UNION METAL CORPORATION
                                    ET AL., APPELLEES.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as State ex rel. McKee v. Union Metal Corp., Slip Opinion No.
                                     2017-Ohio-5541.]
Workers’ compensation—Permanent total disability—Voluntary abandonment of
        workforce—Denial of writ of mandamus affirmed.
       (No. 2016-0509—Submitted April 4, 2017—Decided June 29, 2017.)
      APPEAL from the Court of Appeals for Franklin County, No. 15AP-414,
                                      2016-Ohio-1236.
                               _______________________
        Per Curiam.
        {¶ 1} Appellant, Stephen McKee, appeals the judgment of the Tenth
District Court of Appeals denying his request for a writ of mandamus that would
compel appellee the Industrial Commission to award him compensation for
permanent total disability resulting from his workplace injury. The court of appeals
                             SUPREME COURT OF OHIO




concluded that the evidence supported the commission’s decision that McKee was
not eligible for benefits because he had voluntarily abandoned the workforce for
reasons unrelated to his workplace injury.
        {¶ 2} For the reason that follow, we affirm the judgment of the court of
appeals.
        {¶ 3} On March 10, 1993, McKee was injured in the course and scope of
his employment as an auto welder with appellee Union Metal Corporation. His
workers’ compensation claim was allowed for cervical sprain/strain, focal spinal
stenosis due to marked degenerative disc bulge and spur formation, and neurotic
depression.
        {¶ 4} McKee applied for temporary-total-disability compensation on two
occasions. The commission denied both requests on the basis that McKee had
voluntarily abandoned his employment with Union Metal in late 1995.
        {¶ 5} McKee filed his first application for permanent-total-disability
compensation in 1999. In 2000, a staff hearing officer concluded that McKee’s
disability was not total and denied his request for benefits based on medical reports
from two physicians and a vocational assessment in the record, all of which
indicated that McKee was capable of performing entry-level work.
        {¶ 6} Fourteen years later, McKee filed a second application. A staff
hearing officer acknowledged the commission’s previous finding that McKee had
voluntarily abandoned his employment with Union Metal and noted that the record
contained no evidence that McKee had been employed after December 1995. The
hearing officer further noted that McKee’s application stated that he last worked
for Union Metal in March 1998 and that he then began receiving Social Security
disability benefits.
        {¶ 7} The staff hearing officer, relying on the prior order denying
permanent-total-disability status in 2000, the lack of evidence that McKee had
worked or even looked for work since 1998, and the fact that McKee was receiving




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Social Security disability benefits, concluded that McKee had voluntarily
abandoned the workforce and effectively retired for reasons other than the allowed
conditions in his workers’ compensation claim.           Thus, the hearing officer
determined that McKee was not eligible for permanent-total-disability benefits.
       {¶ 8} McKee filed a complaint in the Tenth District Court of Appeals asking
that court to issue a writ of mandamus compelling the commission to find that he
is eligible for permanent-total-disability benefits. McKee alleged that the evidence
established that his retirement was not voluntary but was induced by the injuries in
his claim. The court of appeals denied the writ. This matter is before the court on
McKee’s direct appeal.
       {¶ 9} Permanent total disability is “the inability to perform sustained
remunerative employment” as a result of the allowed conditions in the claim. Ohio
Adm.Code 4121-3-34(B)(1); accord State ex rel. Nissan Brake Ohio, Inc. v. Indus.
Comm., 127 Ohio St.3d 385, 2010-Ohio-6135, 939 N.E.2d 1242, ¶ 12. The burden
is on the claimant to establish that the disability is permanent and that the inability
to work is causally related to the allowed conditions. Ohio Adm.Code 4121-3-
34(D)(3)(a); accord State ex rel. LTV Steel Co. v. Indus. Comm., 65 Ohio St.3d 22,
23, 599 N.E.2d 265 (1992).
       {¶ 10} A claimant’s eligibility for permanent-total-disability compensation
may be affected if the claimant has voluntarily retired or abandoned the workforce
for reasons not related to the industrial injury. State ex rel. Black v. Indus. Comm.,
137 Ohio St.3d 75, 2013-Ohio-4550, 997 N.E.2d 536, ¶ 14. This is a factual
question for the commission to determine.           Id. at ¶ 18.     In making that
determination, the commission may consider a claimant’s inaction after leaving a
job as evidence that the claimant voluntarily decided to no longer be actively
employed. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-
5245, 896 N.E.2d 140, ¶ 11. The commission is exclusively responsible for




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evaluating the weight and credibility of the evidence. State ex rel. Burley v. Coil
Packing, Inc., 31 Ohio St.3d 18, 20-21, 508 N.E.2d 936 (1987).
        {¶ 11} To be entitled to extraordinary relief in mandamus, McKee must
establish that he had a clear legal right to the relief requested and that the
commission had a clear legal duty to provide it. State ex rel. Rouch v. Eagle Tool
& Machine Co., 26 Ohio St.3d 197, 198, 498 N.E.2d 464 (1986). This requires
McKee to demonstrate that the commission abused its discretion by entering an
order not supported by some evidence in the record. State ex rel. Avalon Precision
Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846 N.E.2d
1245, ¶ 9. Thus, we must determine whether the commission’s order denying
permanent-total-disability compensation was supported by evidence in the record
showing that McKee had voluntarily abandoned the workforce and was not eligible
for benefits.
        {¶ 12} The commission’s finding that McKee voluntarily withdrew from
the workforce in 1998 was supported by some evidence in the record: the
commission’s 2000 finding—based on two medical reports and a vocational
assessment—that McKee retained the capacity to perform sustained remunerative
employment, which McKee never appealed; the absence of evidence that he had
worked, had been unable to find work, or had attempted vocational retraining since
1998. Such inaction may be considered a voluntary abandonment of the workforce.
See State ex rel. Roxbury v. Indus. Comm., 138 Ohio St.3d 91, 2014-Ohio-84, 3
N.E.3d 1190, ¶ 13.
        {¶ 13} McKee maintains that he did not voluntarily abandon the workforce
but that he stopped working in 1998 on the advice of his physician and psychologist.
McKee argues, citing State ex rel. Kroger Co. v. Paysen, 109 Ohio St.3d 515, 2006-
Ohio-3057, 849 N.E.2d 289, that an injured worker has an absolute right to rely on
the advice of his physician regarding his ability to engage in gainful employment.
Thus, he argues, he remains eligible for permanent-total-disability benefits.




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                                January Term, 2017




       {¶ 14} McKee’s argument fails. The two medical reports that McKee
submitted for purposes of establishing permanent disability in the initial proceeding
in 2000 did not advise him that he must stop working. In addition, Paysen does not
support McKee’s position.       Paysen involved a claimant who was awarded
permanent-total-disability compensation after she refused to accept a light-duty job
offered by her employer. This court stated that the job offer was not consistent with
the claimant’s allowed conditions, and thus, she was not disqualified from
permanent-total-disability compensation for refusing the job offer that was contrary
to her physician’s advice. Id. at ¶ 5. These factual distinctions do not appear in
McKee’s case.
       {¶ 15} Because the commission’s order was supported by evidence in the
record, the court of appeals correctly determined that the commission did not abuse
its discretion and that mandamus is not appropriate. We affirm the judgment of the
court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                               _________________
       The Mikulka Law Firm, L.L.C., and Angela J. Mikulka, for appellant.
       Michael DeWine, Attorney General, and Amanda B. Brown, Assistant
Attorney General, for appellee Industrial Commission.
                               _________________




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