State ex rel. Pretty Products, Inc. v. Industrial Commission

[This opinion has been published in Ohio Official Reports at 

77 Ohio St.3d 5

.]




   THE STATE EX REL. PRETTY PRODUCTS, INC., APPELLANT, v. INDUSTRIAL
                      COMMISSION OF OHIO ET AL., APPELLEES.
  [Cite as State ex rel. Pretty Products, Inc. v. Indus. Comm., 

1996-Ohio-132

.]
Workers’      compensation—Application            for    temporary      total    disability
        compensation—Finding by Industrial Commission that claimant did not
        voluntarily abandon position of employment—Order remanded to
        commission by Supreme Court for further explanation and clarification
        when order is vague.
      (No. 94-1845—Submitted July 24, 1996—Decided October 23, 1996.)
   APPEAL from the Court of Appeals for Franklin County, No. 93APD05-682.
                                  __________________
        {¶ 1} On two different occasions, appellee-claimant, Maxine Dansby,
injured her low back in the course of and arising from her employment for
appellant-relator, Pretty Products, Inc., a self-insured employer. The first incident
occurred in February 1990. Relator states that it certified the claim, which was
allowed for “sprain/strain lumbosacral.” After a period of absence from work,
claimant returned to her job at Pretty Products, Inc.
        {¶ 2} On November 8, 1990, claimant again left work and went to the
hospital because of low back pain. Claimant saw her attending physician, Dr.
Alfred H. Magness, for treatment. In a series of medical excuse slips, Dr. Magness
certified that claimant was unable to return to her former job. The last of these
medical slips certified that claimant could return to work on March 1, 1991.
        {¶ 3} Claimant did not return to work on Friday, March 1, 1991, nor did she
then produce an excuse slip that extended her disability. Claimant did not report to
work on the following Monday or Tuesday, and, consequently, she was terminated
pursuant to a provision in the union/management agreement. Relator states that
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although claimant eventually contacted her union representative about filing a
grievance to challenge her discharge, claimant did not file a grievance because it
would have been considered untimely.
       {¶ 4} In June 1991, claimant moved appellee Industrial Commission for
temporary total disability (“TTD”) compensation beginning November 8, 1990,
based on the first claim. In support of the motion, she submitted a June 8, 1991 C-
84 “Physician’s Report Supplemental” that was based on an April 26, 1991 exam
and that certified claimant as temporarily totally disabled beginning November 8,
1990, to an estimated return-to-work date of August 1, 1991.
       {¶ 5} In August 1991, claimant filed a second workers’ compensation claim
alleging that she had injured her low back, neck and shoulders on November 8,
1990. Relator refused to certify this claim, however, contending that it was a
“reoccurrence” of the first claim. In October, claimant filed a motion in the second
claim requesting TTD compensation from November 8, 1990.                  Claimant
alternatively requested wage loss compensation in the event that TTD
compensation was denied. On November 25, 1991, a district hearing officer heard
the allowance and wage compensation issues of the second claim, and issued an
order allowing claimant’s back injury as an “aggravation [of] pre-existing
lumbosacral sprain/strain.”     Finding that claimant’s discharge constituted a
voluntary abandonment of her former position of employment, the district hearing
officer denied both TTD and wage loss compensation beyond March 4, 1991. The
regional board of review affirmed the district hearing officer’s order in the second
claim. On further appeal by claimant, staff hearing officers modified the district
hearing officer’s order “to the extent that Temporary Total Disability compensation
is payable from 3/5/91 to [sic] and to continue based on submission of medical
proof. It is found that the claimant did not voluntarily abandon her former position
of employment on 3/4/91 for the reason that she did not timely submit an excuse
slip from her doctor.” Relator’s motion for reconsideration was denied.




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                                 January Term, 1996




         {¶ 6} Relator filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion in
awarding TTD compensation beyond March 5, 1991. The court of appeals upheld
the staff hearing officers’ findings and denied the writ.
         {¶ 7} This cause is now before this court upon an appeal as of right.
                               __________________
         Emens, Kegler, Brown, Hill & Ritter and Ronald L. Mason, for appellant.
         Betty D. Montgomery, Attorney General, and Cheryl J. Nester, Assistant
Attorney General, for appellee Industrial Commission.
         Larrimer & Larrimer, Terrence W. Larrimer and David H. Swanson, for
appellee Maxine Dansby.
                               __________________
         MOYER, C.J.
         {¶ 8} This case presents the question of whether the Industrial Commission
abused its discretion by finding that the claimant did not voluntarily abandon her
position of employment, and that further temporary total disability compensation
should be awarded. Because of the vagueness of the commission’s order, we must
remand for further explanation and clarification of the reasoning supporting that
order.
         {¶ 9} The receipt of temporary total disability (“TTD”) compensation rests
on a claimant’s inability to return to his or her former job as a direct result of an
industrial injury. State ex rel. Ramirez v. Indus. Comm. (1982), 

69 Ohio St.2d 630

,

23 O.O.3d 518

, 

433 N.E.2d 586

, syllabus.              However, eligibility may be
compromised when the claimant is no longer employed at that job. Once a claimant
is separated from the former position of employment, future TTD compensation
eligibility hinges on the timing and character of the claimant’s departure.
         {¶ 10} The timing of a claimant’s separation from employment can, in some
cases, eliminate the need to investigate the character of departure. For this to occur,




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                             SUPREME COURT OF OHIO




it must be shown that the claimant was already disabled when the separation
occurred. “[A] claimant can abandon a former position or remove himself or
herself from the work force only if he or she has the physical capacity for
employment at the time of the abandonment or removal.” State ex rel. Brown v.
Indus. Comm. (1993), 

68 Ohio St.3d 45, 48

, 

623 N.E.2d 55, 58

.
        {¶ 11} However, such situations are not common, and inquiry into the
character of departure is the norm. While voluntary departure generally bars TTD
compensation, an involuntary departure does not. State ex rel. Rockwell Internatl.
v. Indus. Comm. (1988), 

40 Ohio St.3d 44

, 

531 N.E.2d 678

. In the instant case, the
commission found that claimant’s departure was involuntary. Review of the
commission’s order, however, is hindered because it is susceptible of several
different interpretations.
        {¶ 12} For example, one possible interpretation of the commission’s
statement that “claimant did not voluntarily abandon her former position of
employment on 3/4/91 for the reason that she did not timely submit an excuse slip
from her doctor” could be that the separation was not voluntary because firings are
per se involuntary. If this is indeed the commission’s reasoning, it is wrong. As
this court has recently held, the underlying facts and circumstances of each case
determine whether a departure by firing may be voluntary or involuntary. State ex
rel. Smith v. Superior’s Brand Meats, Inc. (1996), 

76 Ohio St.3d 408

, 411, 

677 N.E.2d 1217

, 1219.
        {¶ 13} Another possible reading of the commission’s order is that the
commission modified the district hearing officer’s order based on the belief that
termination for unexcused absence could not support a finding of voluntary
abandonment. This, too, is incorrect. In State ex rel. Louisiana-Pacific Corp. v.
Indus. Comm. (1995), 

72 Ohio St.3d 401

, 

650 N.E.2d 469

, the claimant, as in the
present case, was fired for violating a policy prohibiting three consecutive
unexcused absences. We held that the claimant’s discharge was voluntary, stating,




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                                January Term, 1996




“we find it difficult to characterize as ‘involuntary’ a termination generated by the
claimant’s violation of a written work rule or policy that (1) clearly defined the
prohibited conduct, (2) had been previously identified by the employer as a
dischargeable offense, and (3) was known or should have been known to the
employee.” Id. at 403, 

650 N.E.2d at 471

. However, there is an important
distinction between Louisiana-Pacific and this case. In the former, there was no
evidence that the claimant’s absences were due to industrial injury, while in this
case there is.   Whether this distinction is ultimately outcome-determinative,
however, cannot be decided absent clarification of the commission’s reasoning.
       {¶ 14} A third possible interpretation of the commission’s order is that the
commission found that claimant had been fired because of her industrial injury. If
that indeed was the case, a finding of involuntary departure could be sustained.

Rockwell, supra.

      Again, however, without clarification, judicial review can
proceed no further.
       {¶ 15} Given the possibility that any of these interpretations could reflect
the commission’s reasoning, the judgment of the court of appeals is reversed and
the cause is remanded to the commission for clarification.
                                                                 Judgment reversed
                                                               and cause remanded.
       RESNICK, PFEIFER, COOK and STRATTON, JJ., concur.
       DOUGLAS and F.E. SWEENEY, JJ., dissent and would affirm the judgment of
the court of appeals.
                               __________________




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