[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Vonderheide v. Multi-Color Corp., Slip Opinion No. 2019-Ohio-1270.]




                                           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. 2019-OHIO-1270
       THE STATE EX REL. VONDERHEIDE, APPELLEE , v. MULTI-COLOR
    CORPORATION ET AL.; INDUSTRIAL COMMISSION OF OHIO, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Vonderheide v. Multi-Color Corp., Slip Opinion
                                   No. 2019-Ohio-1270.]
Workers’ compensation—Temporary total disability—Industrial Commission’s
        conclusion that claimant was not in active workforce when she underwent
        knee surgery was supported by evidence in record—Court of appeals’
        judgment granting writ of mandamus and ordering commission to vacate
        decision reversed.
    (No. 2018-0832—Submitted February 19, 2019—Decided April 9, 2019.)
      APPEAL from the Court of Appeals for Franklin County, No. 16AP-493,
                                      2018-Ohio-1714.
                                    ________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellant, Industrial Commission, denied the request of appellee,
Sharon Vonderheide, for temporary-total-disability (“TTD”) compensation. The
Tenth District Court of Appeals granted Vonderheide’s petition for a writ of
mandamus and ordered the commission to vacate its decision. The commission
asks this court to reverse that judgment. Vonderheide requests oral argument. We
reverse the Tenth District’s judgment and deny the motion for oral argument.
                  I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Vonderheide sustained injuries while working at Multi-Color
Corporation in 1992. Her workers’ compensation claim was approved for a variety
of back, leg, and knee conditions. In 2001, she had a right total knee replacement.
In 2002, Vonderheide began receiving Social Security retirement benefits. That
same year, the commission determined that Vonderheide had reached maximum
medical improvement. In 2003, she entered a vocational rehabilitation program but
withdrew from it after several months.
       {¶ 3} In testimony before the commission, Vonderheide stated that after
2002, she worked primarily at her family farm in Brown County, approximately 90
minutes from her residence in Cincinnati. The farm raised cows and grew tobacco;
working with her husband (who lived at the farm) and others, Vonderheide rode on
the back of a tractor and planted tobacco seeds, stripped tobacco leaves from their
stalks, separated the leaves into three different grades, drove a tractor to cut hay,
and raked hay. At the end of each year, her husband gave her a portion of the farm’s
net profits as payment for these activities.
       {¶ 4} After Vonderheide’s husband died in 2009, however, she sold all the
cattle and leased the farmland to others. Though her son stated in an affidavit that
Vonderheide had continued with activities including farming and stripping tobacco
until July 2012, Vonderheide testified that after she sold the cows and leased out
the farmland, her activity at the farm involved tasks such as mowing the grass and



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picking up trash in the yard. The record contains transcripts of Vonderheide’s tax
returns for tax years 2004 through 2007 and 2009 through 2012, showing that her
income varied significantly from year to year.
       {¶ 5} In July 2012, Vonderheide had surgery on her right knee. She had a
follow-up surgery in November 2012. In March 2014, Vonderheide requested TTD
compensation commencing July 31, 2012. The commission denied the request,
finding that Vonderheide had not met her burden to establish that she was in the
workforce and had wages to replace as of that date. The commission noted that the
evidence regarding Vonderheide’s farm work was conflicting, but it ultimately
concluded that the farm was a passive investment at which Vonderheide sometimes
performed chores and that this did not constitute evidence that Vonderheide was in
the workforce as of the date on which she was requesting that her TTD
compensation begin.
       {¶ 6} Vonderheide filed a mandamus petition asking the Tenth District to
order the commission to vacate its decision and grant her request for TTD
compensation. A Tenth District magistrate recommended that the court deny the
writ, and Vonderheide objected. The court of appeals sustained the objection and
granted the writ, holding that the commission’s decision was not based on “some
evidence” and therefore constituted an abuse of discretion. 2018-Ohio-1714, 111
N.E.3d 773, ¶ 34-35. The commission appeals the Tenth District’s decision.
                                 II. ANALYSIS
       {¶ 7} When reviewing a claim for a writ of mandamus in a workers’
compensation case, a court’s role is to determine whether the commission has
abused its discretion. See State ex rel. Packaging Corp. of Am. v. Indus. Comm.,
139 Ohio St.3d 591, 2014-Ohio-2871, 13 N.E.3d 1163, ¶ 29. The commission is
the exclusive finder of fact and has sole responsibility to evaluate the weight and
credibility of the evidence. State ex rel. Perez v. Indus. Comm., 147 Ohio St.3d
383, 2016-Ohio-5084, 66 N.E.3d 699, ¶ 20. So long as the commission’s order is




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based on some evidence in the record, a court should not find an abuse of discretion.
Id.; Packaging Corp. at ¶ 29.
            A. Some Evidence Supported the Commission’s Decision
       {¶ 8} “Temporary total disability compensation is intended to compensate
an injured worker for the loss of earnings incurred while the industrial injury heals.”
State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, 896
N.E.2d 140, ¶ 9. “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.” Id.
       {¶ 9} The Tenth District began its analysis by asserting that “the traditional
understanding of what constitutes being a part of the active workforce for the
purpose of awarding TTD benefits has not taken into account inherent differences
in farm employment from other types of employment as applied to the facts
contained in the record.” 2018-Ohio-1714, 111 N.E.3d 773, at ¶ 29. To remedy
this, the Tenth District turned to an article describing how the United States
Department of Labor’s Bureau of Labor Statistics counts farm workers in its
Current Population Survey (“CPS”).         Id. at ¶ 30, citing Bowler and Morisi,
Understanding the Employment Measures from the CPS and CES Survey, Monthly
Lab.Rev.    23,   24,   26    (Feb.   2006),   available    at   https://www.bls.gov/
opub/mlr/2006/02/art2full.pdf (accessed Mar. 5, 2019).           The Tenth District
concluded that the CPS survey would have counted Vonderheide as employed and
that the commission abused its discretion by failing to recognize this. Id. at ¶ 31.
       {¶ 10} The Tenth District erred when it created a new standard to determine
whether farm workers are in the active workforce based on whether the CPS survey
would count them as employed. No authority supports the use of guidelines for a
federal population survey to determine eligibility for Ohio workers’ compensation
benefits. More importantly, applying the CPS survey’s standard would count
claimants as employed for purposes of TTD-compensation eligibility in violation
of principles espoused in Ohio’s workers’ compensation caselaw.



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       {¶ 11} The CPS survey has a “broad definition of employment.” Bowler
and Morisi at 24. That definition includes workers performing as little as one hour
of work during the week that serves as the survey’s reference period, without regard
to the regularity of their work in any other week. Id. at 24, 26. It also includes
unpaid “family workers” working in family-owned businesses. Id.
       {¶ 12} Workers who sustain an industrial injury, leave their former position
of employment, reenter the workforce, and become temporarily and totally disabled
due to the original injury while working at their new job can qualify for TTD
compensation under Ohio law. State ex rel. McCoy v. Dedicated Transport, Inc.,
97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, syllabus. This rule applies
equally to those who reenter the workforce as family-business workers, including
farmers. But to be eligible for TTD compensation, those workers, like any others,
must be actively engaged in gainful employment. See Pierron, 120 Ohio St.3d 40,
2008-Ohio-5245, 896 N.E.2d 140, at ¶ 9-11; McCoy at ¶ 40. That is to say, their
work—though it may be full- or part-time—must be regular, not sporadic. See,
e.g., State ex rel. Brown v. Indus. Comm., 10th Dist. Franklin No. 14AP-722, 2015-
Ohio-2923, ¶ 17-18, citing Pierron at ¶ 4, 10-11; State ex rel. Dishman v. Indus.
Comm., 10th Dist. Franklin No. 07AP-613, 2008-Ohio-3291, ¶ 40. And they must,
on account of that work, receive earnings that will be lost due to their industrial
injury. See Pierron at ¶ 9; McCoy at ¶ 40.
       {¶ 13} Applying Pierron, the commission concluded that at the time she
underwent knee surgery in July 2002, Vonderheide’s farm was a passive
investment, she was not in the active workforce, and she therefore had no wages to
replace. The commission’s decision was supported by evidence in the record. First,
Vonderheide had chosen to begin receiving Social Security retirement benefits in
2002, at age 62. This court has considered the choice to seek retirement benefits as
evidence that a claimant was no longer in the workforce. State ex rel. Floyd v.
Formica Corp., 140 Ohio St.3d 260, 2014-Ohio-3614, 17 N.E.3d 547, ¶ 24 (“Had




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Floyd intended to return to the workforce after leaving Formica, he had no reason
to file for retirement benefits at that time”). Second, while Vonderheide testified
that she made a few attempts to find a job after 2002, her testimony did not include
any such efforts leading up to 2012—leaving only her farm as a possible source of
work. Third, after her husband’s death in 2009, Vonderheide had sold the farm’s
cattle and leased its land out to be farmed by others. Fourth, the tax records that
Vonderheide submitted do not specify whether her earnings came from farm work
or rents. And finally, the tax records show that Vonderheide’s earnings fluctuated
greatly from year to year both before and after her husband’s death and that she
earned more in some of the years that she physically did little work at the farm than
she did in some of the years in which she performed more work at the farm.
        {¶ 14} As the commission acknowledged, the record also contained
evidence that supported Vonderheide’s claim.         However, “[a]n order that is
supported by ‘some evidence’ will be upheld. It is immaterial whether other
evidence, even if greater in quality and/or quantity, supports a decision contrary to
the commission’s.” State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373,
376, 658 N.E.2d 1055 (1996). The Tenth District erred by disregarding this
directive.
             B. Vonderheide Has Not Shown a Need for Oral Argument
        {¶ 15} Finally, we deny Vonderheide’s motion for oral argument. In a
direct appeal such as this, the granting of oral argument is subject to this court’s
discretion. S.Ct.Prac.R. 17.02(A). We typically do not grant oral argument unless
the case involves (1) a matter of great public importance, (2) complex issues of law
or fact, (3) a substantial constitutional issue, or (4) a conflict among courts of
appeals. See State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Indus. Comm.,
148 Ohio St.3d 212, 2016-Ohio-7988, 69 N.E.3d 728, ¶ 23. Vonderheide presents
no argument in support of her request for oral argument; accordingly, she identifies




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nothing that makes this case more complex or important than the many other
workers’ compensation appeals that this court has resolved without oral argument.
                              III. CONCLUSION
       {¶ 16} For the reasons set forth above, we reverse the judgment of the court
of appeals and deny the motion for oral argument.
                                                               Judgment reversed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and STEWART,
JJ., concur.
       DONNELLY, J., dissents.
                              _________________
       Clements, Taylor, Butkovich & Cohen, L.P.A., Co., and Edward Cohen, for
appellee.
       Dave Yost, Attorney General, and John Smart, Assistant Attorney General,
for appellant.
                              _________________




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