State ex rel. Liposchak v. Industrial Commission

Per Curiam. Claimant’s mesothelioma undeniably arose from his employment at Wheeling-Pittsburgh Steel. Claimant’s mesothelioma undeniably prevents sustained remunerative employment. Medical impairment notwithstanding, permanent total disability may nonetheless be foreclosed if it is found that claimant voluntarily removed himself from the labor market prior to his permanent total disability application. State ex rel. Baker Material Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202, 631 N.E.2d 138. Claimant initially challenges Baker’s applicability. He alternatively argues that he never voluntarily abandoned the work force. For the reasons to follow, we order the commission to vacate its permanent total disability denial and to enter an order that declares claimant to be permanently and totally disabled. The existence of a causal relationship between an allowed condition and an inability to work underlies all successful requests for disability compensation. Problems can arise when another factor independently contributes to the inability to return to relevant employment. We have characterized these factors as either involuntary or voluntary, with the latter precluding permanent total disability compensation when it constitutes an abandonment of the entire job market. Baker, supra, at paragraph two of the syllabus. In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533, we classified as “voluntary,” a departure from the work force that was precipitated by the claimant’s imprisonment. We reasoned: “While a prisoner’s incarceration would not normally be considered a ‘voluntary’ act, one may be presumed to tacitly accept the consequences of his voluntary acts. When a person chooses to violate the law, he, by his own action, subjects himself to the punishment which the state has prescribed for that act.” Id. at 44, 517 N.E.2d at 535. In State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202, 1204, we noted that “ * * * firing can constitute a [196] voluntary abandonment of the former position of employment. Although not generally consented to, discharge, like incarceration, is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character.” We recognize that claimant was not technically fired, but resigned in lieu of such disciplinary action. This distinction is irrelevant. We do find, however, two significant distinctions between this case and both Watts and Ashcraft. First, claimant suffers from a condition with an extremely long latency period. As noted in State Indus. Ins. Sys. v. Jesch (1985), 101 Nev. 690, 692, 709 P.2d 172, 174, mesothelioma, at a minimum, has a latency period of twenty-five to thirty years. Latency periods of up to forty years are not uncommon. On at least two prior occasions we have recognized the unique workers’ compensation problems that can arise from long-latency occupational diseases. See Caruso v. Aluminum Co. of Am. (1984), 15 Ohio St.3d 306, 15 OBR 436, 473 N.E.2d 818; Jacobs v. Teledyne, Inc. (1988), 39 Ohio St.3d 168, 529 N.E.2d 1255. Second, claimant did not have an allowed workers’ compensation claim for his occupational disease at the time he left Wheeling-Pittsburgh Steel. Again, his mesothelioma did not arise for another twelve years. Viewing these factors together, we decline to extend the reasoning that underlies Watts and Ashcraft to these facts. Unquestionably, claimant committed an extremely serious offense by taking a gun to work, irrespective of the plant’s location in what he perceived to be an unsafe area. Nevertheless, we cannot find that in so doing, the claimant tacitly surrendered a right that did not exist and could not be foreseen. Accordingly, a writ of mandamus is granted. Writ granted. Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Wright and Cook, JJ., dissent.