[Cite as State ex rel. Mackey v. Ohio Dept. of Edn., 130 Ohio St.3d 108, 2011-Ohio-4910.]




      THE STATE EX REL. MACKEY, APPELLANT, v. OHIO DEPARTMENT OF
           EDUCATION; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
                 [Cite as State ex rel. Mackey v. Ohio Dept. of Edn.,
                        130 Ohio St.3d 108, 2011-Ohio-4910.]
Workers’ compensation—Permanent total disability—Voluntary retirement—
        Continuing jurisdiction—R.C. 4123.52.
(No. 2010-1405—Submitted September 21, 2011—Decided September 29, 2011.)
      APPEAL from the Court of Appeals for Franklin County, No. 09AP-966,
                                     2010-Ohio-3522.
                                   _________________
        Per Curiam.
        {¶ 1} Appellant, Cerena N. Mackey, challenges appellee’s, Industrial
Commission of Ohio’s, denial of her application for permanent total disability
(“PTD”) compensation.           Her application was heard in March 2009 by a
commission staff hearing officer. The parties agree that during the hearing,
Mackey’s 2005 retirement was discussed extensively. The order that followed,
however, did not address the issue and did not indicate whether Mackey’s
retirement was voluntary or involuntary. It simply discussed the medical evidence
presented and concluded that Mackey was permanently and totally disabled.
        {¶ 2} Mackey’s employer, the Ohio Department of Education, moved for
reconsideration, alleging that the hearing officer had made a clear mistake of law
in failing to determine whether Mackey’s retirement was voluntary or
involuntary. The commission agreed, granted the reconsideration motion, and set
the matter for a hearing on the merits.
        {¶ 3} Addressing the retirement issue at the hearing that followed, the
commission found that Mackey’s retirement from the workforce was unrelated to
                              SUPREME COURT OF OHIO




her industrial injury and was hence voluntary. It noted that Mackey had retired at
age 65 with 36 years of state service. It also emphasized the lack of evidence of
medical treatment from 2001 through 2005, which the commission felt
undermined the credibility of Mackey’s assertion that she retired because of the
pain and irritability generated by her allowed conditions. Relying on State ex rel.
Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 631
N.E.2d 138, the commission found that Mackey’s voluntary retirement foreclosed
PTD compensation, and it vacated the award.
        {¶ 4} Mackey filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion both in
reopening the issue of PTD eligibility and in ultimately denying her application.
The court of appeals disagreed and denied the writ, prompting Mackey’s appeal to
this court as of right.
        {¶ 5} The commission can invoke continuing jurisdiction under R.C.
4123.52 to correct a clear mistake of law. State ex rel. Nicholls v. Indus. Comm.
(1998), 81 Ohio St.3d 454, 692 N.E.2d 188. The staff hearing officer’s failure to
determine whether Mackey’s retirement was voluntary or involuntary is a clear
mistake of law because it is critical to Mackey’s eligibility for a PTD award. As
we held in Baker Material Handling, a claimant who voluntarily retires from the
workforce prior to becoming permanently and totally disabled cannot receive
PTD compensation. Id. at paragraph two of the syllabus. The commission did
not, therefore, abuse its discretion in reopening the issue of Mackey’s PTD
eligibility in order to consider the effect of her retirement upon it.
        {¶ 6} The commission also did not abuse its discretion in finding that
Mackey’s retirement was voluntary. Recently, in State ex rel. Lackey v. Indus.
Comm., 129 Ohio St.3d 119, 2011-Ohio-3089, 950 N.E.2d 542, we upheld a
determination that a retirement was voluntary based in part on an absence of




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medical evidence indicating that when the claimant applied for retirement, his
ability to perform his regular duties was impaired by his industrial injury.
       {¶ 7} Accordingly, the judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                               __________________
       Michael J. Muldoon, for appellant.
       Michael DeWine, Attorney General, and Charissa D. Payer, Assistant
Attorney General, for appellee.
                            ______________________




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