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State ex rel Jeany v. Cleveland Concrete Construction11/5/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
. Aldo Jeany filed this action in mandamus seeking a writ which compels the Industrial Commission of Ohio ("commission") to vacate its orders denying him permanent total disability ("PTD") compensation and which compels the commission to enter a new order granting the compensation.
. In accord with Loc.R. 12(M), the case was referred to a magistrate to conduct appropriate proceedings. (Attached as Appendix A.) The parties stipulated the pertinent evidence and filed briefs. The magistrate issued a magistrate's decision and a corrected magistrate's decision which both recommend that we deny relief.
. Counsel for Mr. Jeany has filed objections to the magistrate's decision. Counsel for the commission has filed a memorandum in response. The case is now before the court for a full, independent review following oral argument by the parties.
. In 1956, Mr. Jeany injured his back at work. Despite his injury, he continued to work at his trade as a cement mason until November 1983. He stopped working on his 64th birthday. He began receiving pension benefits and Social Security .
. In 1985, Mr. Jeany was diagnosed as suffering from knee problems resulting from his many years of working on his knees while finishing cement. His workers' compensation claim was eventually expanded to include bilateral peroneal nerve palsy.
. In 1993, Mr. Jeany applied for permanent partial disability based upon impaired earning capacity. He was denied an award based upon a finding that he voluntarily retired and a finding that he could return to his former occupation as a cement mason.
. In 1996, Mr. Jeany applied for permanent total disability ("PTD") compensation . His application was denied based upon a finding that Mr. Jeany had voluntarily retired, as determined in the earlier proceedings. The staff hearing officer who considered the application on its merits expressly rejected an argument that a prior stipulation in the lawsuit which resulted in the recognition of the peroneal nerve palsy was binding on the parties on the issue of PTD compensation. That stipulation was to the effect that Mr. Jeany's departure from employment had not been voluntary, but had resulted from his back and knee problems.
. The central issue before us is whether the commission somehow made a mistake in its findings with respect to Mr. Jeany's departure from employment. We cannot find that the commission erred.
. The commission had a valid basis for determining that Mr. Jeany voluntarily retired, whether or not he could realistically have been expected to be able to return to the job of cement mason at age 74, as found by an SHO in 1994. Certainly, 64 is a common age for people to retire in our culture. Also, 64 is an age at which many in the construction trade may want to leave the heavy physical demands of construction work, not to mention the adverse Ohio weather for work outdoors. Some evidence clearly supported the commission's finding.
. We also are unwilling to force stipulations made in a separate lawsuit upon similar parties in subsequent litigation. Simplifying litigation for purposes of narrowing the scope of the litigation is a practical necessity and should not be thwarted by fears that the stipulations are going to be binding for all later litigation.
. With those comments, we overrule the objections to the magistrate's decision. We adopt the findings of fact and conclusions of law contained in the magistrate's decision and deny the request for a writ of mandamus.
Obje
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