[Cite as State ex rel. Montanez v. ABM Janitorial Servs., Inc., 2013-Ohio-4333.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel. Edgard Montanez, :
Relator, :
v. : No. 12AP-364
ABM Janitorial Services, Inc. and : (REGULAR CALENDAR)
The Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on September 30, 2013
Shapiro, Marnecheck, Reimer & Palnik, and Matthew
Palnik, for relator.
Willacy, Lopresti & Marcovy, and Thomas P. Marotta, for
respondent ABM Janitorial Midwest, Inc.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, P.J.
{¶ 1} Relator, Edgard Montanez, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its May 24, 2011 order to the extent that it retroactively terminates temporary
total disability ("TTD") compensation, declares an overpayment, and orders recoupment
No. 12AP-364 2
of the compensation from February 3 to September 3, 2010. Relator also seeks to compel
the commission to enter an amended order reinstating TTD compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. Although the magistrate made
extensive factual findings, we briefly summarize the key facts so that the legal issues
presented can be more easily understood.
Facts and Procedural History
{¶ 3} Relator injured his shoulder in June 2006 while working for respondent,
ABM Janitorial Services, Inc. ("ABM"). His claim was allowed for "sprain right
shoulder/arm; tear right rotator cuff." Relator was also employed by Almostfamily
("AF"), a home health care agency, in June 2006. Relator's employment with ABM
terminated for reasons unrelated to his injury on August 30, 2006. However, relator
continued to work for AF.
{¶ 4} In October 2009, AF terminated relator's employment due to relator's
conviction of two disqualifying offenses. Approximately four months later, relator
underwent arthroscopic surgery for the repair of his right rotator cuff tear. Thereafter,
relator moved for TTD compensation and ABM initially agreed to the payment of TTD.
{¶ 5} However, on June 9, 2010, ABM moved for termination of relator's TTD
based upon a Medco-14 form filed by relator's surgeon indicating that relator could return
to work with restrictions. ABM later amended its motion to include voluntary
abandonment of his job with AF as a basis to terminate TTD. Following a hearing, the
district hearing officer ("DHO"), issued an order finding that relator had voluntarily
abandoned his employment with AF and declared an overpayment of TTD compensation
since February 3, 2o10, and denied further TTD. Relator appealed that decision.
{¶ 6} Following a December 14, 2010 hearing, a staff hearing officer ("SHO")
vacated the DHO's order for reasons not relevant here, but nevertheless found that TTD
terminated as of the date of the hearing on the basis that relator voluntarily abandoned
his position of employment with AF. The SHO also determined that it lacked jurisdiction
to adjudicate the request for overpayment of TTD for the period February 3, 2010 through
December 14, 2010. ABM appealed that decision to the three-member commission.
No. 12AP-364 3
{¶ 7} The commission retroactively terminated TTD compensation, declared an
overpayment from February 3 to September 3, 2010, and ordered recoupment. The
commission based its decision on its finding that relator voluntarily abandoned his
employment with AF when he was discharged by AF for disqualifying conduct and did not
obtain subsequent employment. Relator then commenced this action in mandamus
contending that the commission abused its discretion.
{¶ 8} The magistrate found that the commission did not abuse its discretion by
allowing ABM to amend its June 9, 2010 motion to raise the issue of voluntary
abandonment, but that it did abuse its discretion in finding relator ineligible for TTD
compensation based upon his voluntary abandonment of his employment with AF.
Therefore, the magistrate has recommended that we grant relator's request for a writ of
mandamus.
Commission's Objections
{¶ 9} The commission has filed objections to the magistrate's decision. In its first
objection, the commission contends that the magistrate erred in finding the commission
abused its discretion when it found that relator's voluntary abandonment of his
employment with AF disqualified him from receiving TTD compensation for the period
following his right shoulder surgery in connection with his allowed claim with his former
employer ABM. We disagree.
{¶ 10} This court recently addressed the issue raised in the commission's first
objection in State ex rel. Cline v. Abke Trucking, Inc., 10th Dist. No. 10AP-888, 2012-
Ohio-1914 and State ex rel. MedAmerica Health Sys., Corp. v. Brammer, 10th Dist. No.
11AP-904, 2012-Ohio-4416. We held in both of these cases that "a voluntary
abandonment of subsequent employment does not relate back and transform an
involuntary departure from the original employer into a voluntary departure so as to
render the employee ineligible for TTD compensation." MedAmerica at ¶ 5-7; Cline at
¶ 14-15.
{¶ 11} The commission attempts to distinguish both Cline and MedAmerica on the
ground that they involved successive employment, not concurrent employment as
presented here. We do not find this difference significant. Although it is true that relator
worked concurrently for ABM and AF at one time, AF became the successive employer
No. 12AP-364 4
when relator left his employment with ABM. As both Cline and MedAmerica indicate,
relator's voluntary abandonment of his job with AF did not transform his involuntary
departure from ABM into a voluntary abandonment of that job. In addition, we are not
persuaded by the commission's argument that the issue presented here is analogous to the
calculation of average weekly wage when there is concurrent employment. The
calculation of average weekly wage when there is concurrent employment sheds no light
on whether the voluntary abandonment of a job with a subsequent employer disqualifies a
claimant from receiving TTD for an allowed claim with an earlier employer. Based upon
Cline and MedAmerica, we overrule the commission's first objection.
{¶ 12} In its second objection, the commission contends that the magistrate erred
in holding that the commission abused its discretion when it terminated TTD and
declared an overpayment. Citing State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d
428, 2005-Ohio-2587, ¶ 9, the commission argues that to be eligible for TTD, "the
industrial injury must remove the claimant from his or her job. This requirement
obviously cannot be satisfied if claimant had no job at the time of the alleged disability."
(Emphasis sic.) Therefore, the commission argues that relator was ineligible for TTD
because he was not employed when he had surgery on February 3, 2010. Again, we
disagree.
{¶ 13} This court held in MedAmerica and Cline that the language from Eckerly
quoted by the commission refers to a claimant's complete abandonment of the
workforce, not just unemployment at the time of the alleged disability. Therefore,
Eckerly does not support the commission's objection. Nor did ABM argue that relator
voluntarily abandoned the workforce after his employment with AF was terminated.
For these reasons, we overrule the commission's second objection.
{¶ 14} In its third objection, the commission contends that even if it incorrectly
found relator ineligible for TTD, the magistrate erred by granting a full writ rather than
a limited writ. The commission argues that it should be allowed to determine the issue
of TTD in light of Cline and MedAmerica, which were issued after the commission's
denial of TTD in this case. Because the application of Cline and MedAmerica is
determinative of relator's eligibility for TTD, there is no reason to remand this matter to
the commission. Therefore, we overrule the commission's third objection.
No. 12AP-364 5
ABM's Objections
{¶ 15} ABM has also filed objections to the magistrate's decision. In its first
objection, ABM contends that Cline and MedAmerica are factually distinguishable and
are not dispositive of the issue of relator's eligibility for TTD compensation. We
disagree.
{¶ 16} ABM's argument confuses the concepts of abandonment of a job with the
abandonment of the workforce. Here, there has been no finding that relator voluntarily
abandoned his job with ABM. In fact, ABM did not initially contest relator's eligibility
for TTD, suggesting that ABM conceded that relator's separation from ABM was not
voluntary. Even when ABM subsequently contested relator's eligibility for TTD, it did
not do so on the basis that relator's separation from ABM was due to his voluntary
abandonment of his job. Instead, ABM based its argument solely on the fact that relator
voluntarily abandoned his job with AF. As we held in Cline and MedAmerica, "a
voluntary abandonment of subsequent employment does not relate back and transform
an involuntary departure from the original employer into a voluntary departure so as to
render the employee ineligible for TTD compensation." MedAmerica at ¶ 5. Although
relator was ineligible for TTD during the period he was employed by AF, his voluntary
abandonment of his job with AF did not affect his eligibility for TTD based upon an
allowed claim with ABM. Cline; MedAmerica.
{¶ 17} Although ABM also argues that relator was ineligible for TTD at the time
he applied because he was not employed, ABM concedes that relator never left the
workforce. Because relator never left the workforce, he remained eligible for TTD
compensation based upon his allowed claim with ABM, even though he was unemployed
at the time he sought the compensation.
{¶ 18} For these reasons, we overrule ABM's first objection.
{¶ 19} In its second objection, ABM contends the magistrate erred by raising the
nature of relator's separation from ABM in his decision because relator did not raise this
issue. ABM's argument reflects a fundamental misunderstanding of the magistrate's
analysis.
{¶ 20} The magistrate simply noted that ABM never asserted that relator
voluntarily abandoned his job with ABM. Therefore, there was no reason for the
No. 12AP-364 6
magistrate to consider in his legal analysis the possibility that relator had voluntarily
abandoned his job with ABM. Nor was there any reason for the relator to raise this non-
issue. In the absence of an argument supported by record evidence that relator
voluntarily abandoned his job with ABM, the magistrate correctly characterized the
relator's separation from ABM as involuntary. Therefore, we overrule ABM's second
objection.
{¶ 21} In its third and final objection, ABM contends that the magistrate erred by
not recommending a limited writ to allow the commission to address the nature of
relator's termination from ABM. We disagree.
{¶ 22} When relator first applied for TTD compensation, ABM did not contest
relator's eligibility even though it was aware of the circumstances surrounding relator's
loss of employment with ABM. As previously noted, ABM never asserted that relator's
separation from his employment with ABM was voluntary. Because ABM never
contested relator's eligibility for TTD based upon the nature of his separation with ABM,
we overrule relator's third objection.
{¶ 23} Following an independent review of this matter, we find that the
magistrate has properly determined the facts and applied the appropriate law.
Therefore, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. In accordance with the magistrate's decision,
we grant relator's request for a writ of mandamus.
Objections overruled; writ of mandamus granted.
TYACK and DORRIAN, JJ., concur.
No. 12AP-364 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel. Edgard Montanez, :
Relator, :
v. : No. 12AP-364
ABM Janitorial Services, Inc. and : (REGULAR CALENDAR)
The Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on February 25, 2013
Shapiro, Marnecheck, Reimer & Palnik, and Matthew
Palnik, for relator.
Willacy, Lopresti & Marcovy, and Thomas P. Marotta, for
respondent ABM Janitorial Midwest, Inc.
Michael DeWine, Attorney General, and Eric Tarbox, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 24} In this original action, relator, Edgard Montanez, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its May 24, 2011 order to the extent that, on eligibility grounds, it retroactively terminates
temporary total disability ("TTD") compensation and declares an overpayment and orders
No. 12AP-364 8
recoupment of the compensation from February 3 to September 3, 2010, and to enter an
amended order reinstating TTD compensation.
Findings of Fact:
{¶ 25} 1. On June 16, 2006, relator injured his right shoulder and arm while
employed as a maintenance worker for respondent ABM Janitorial Services, Inc.
("ABM"), a self-insured employer under Ohio's workers' compensation laws.
{¶ 26} 2. The industrial claim (No. 06-859413) is allowed for "sprain right
shoulder/arm; tear right rotator cuff."
{¶ 27} 3. As early as 2004, relator was also employed by Almostfamily, a home
health care agency. Annually, Almostfamily required its employees, including relator, to
sign a one-page form captioned "Criminal Offense Statement." On April 1, 2009, as in
earlier years, relator signed the form which states:
You may not begin employment until you have signed and
submitted this statement.
You will be fingerprinted for a Bureau of Criminal
Investigation and Identification records check.
I (Printed Name) , hereby declare that I have never
been convicted of or pleaded guilty to any of the criminal
offenses listed on the back [of] this form. I agree to inform
the Administrator or Human Resource Coordinator in
writing if, while employed by Almostfamily, I am ever
formally charged with, convicted of or plead guilty to any of
the offenses listed on the back of this form. Such notification
must be within 14 calendar days of the charge, conviction, or
guilty pleas. I understand that failure to notify the
Administrator or Human Resources Coordinator may result
in me being dismissed from Almostfamily may result in me
being dismissed from Almostfamily employment. [Sic.]
{¶ 28} 4. The back of the form lists "Designated Offenses that Disqualify
Employment of a Person in a Position that is Responsible for the Care, Custody, or control
of a Child." The back of the form also lists "Designated Offenses that Disqualify
Employment of a person in a position that is Responsible for the Direct Care of an Older
Adult." Under each category, the form lists R.C. 2907.09, public indecency as a
disqualifying offense.
No. 12AP-364 9
{¶ 29} 5. For reasons that are unclear, in August 2006, ABM terminated relator's
employment. However, relator continued his employment with Almostfamily.
{¶ 30} 6. On August 31, 2009, in the Parma Municipal Court, relator was
convicted of the offenses of public indecency and disorderly conduct. Relator was fined
and placed on probation. The offenses were committed on April 24, 2009.
{¶ 31} 7. By letter dated October 22, 2009, Almostfamily informed relator of his
termination:
This letter is a follow up to our conversation on 10/21/2009.
Your fingerprints confirmed that you were convicted of a
disqualifying offense twice this year. According to Almost
Family policy, this is grounds for immediate termination.
This termination was effective as of October 21, 2009.
{¶ 32} 8. On February 3, 2010, relator underwent arthroscopic shoulder surgery
for the repair of his right rotator cuff tear. The surgery was performed by Kim L. Stearns,
M.D.
{¶ 33} 9. On March 1, 2010, physician of record Cyril E. Marshall, M.D., certified a
period of TTD beginning February 3, 2010 to an estimated return-to-work date of May 3,
2010. The certification was based upon the shoulder surgery.
{¶ 34} 10. On the March 1, 2010 C-84, relator indicated by his mark that he had
been receiving unemployment compensation from October 2009 to "[p]resent."
{¶ 35} 11. On March 8, 2010, relator moved for TTD compensation. In support,
relator submitted the March 1, 2010 C-84 from Dr. Marshall.
{¶ 36} 12. By letter dated March 17, 2010, ABM's third-party administrator
informed the Ohio Bureau of Workers' Compensation ("bureau"):
[T]he employer agrees with the motion filed 3/8/10 by
claimant's attorney requesting payment of Temporary Total
Disability from 2/3/10 to current and continuing based on
medical records. As the employer agrees with the Motion,
there is no need to refer for hearing.
(Emphasis sic.)
{¶ 37} 13. On May 27, 2010, Dr. Stearns completed a form captioned "Physician's
Report of Work Ability" ("Medco-14").
No. 12AP-364 10
{¶ 38} 14. On June 9, 2010, ABM moved for termination of TTD compensation
based upon Dr. Stearns' Medco-14. ABM stated in its motion:
Employer requests Temporary Total Disability benefits be
terminated based upon the MEDCO-14 from claimant's
surgeon, Dr. Stearns. Per Dr. Stearns, claimant is able to
return to work with restrictions at this time, thereby making
claimant ineligible for payment of Temporary Total
Disability per Ohio BWC rules & guidelines.
{¶ 39} 15. On July 15, 2010, ABM's June 9, 2010 motion was heard by a district
hearing officer ("DHO"). Following the hearing, the DHO issued an "interlocutory
continuance order" stating:
This hearing is continued in order to adjudicate issues that
arose from this hearing on the Employer's Motion regarding
the issue of temporary total compensation. Reset on the
Employer's Motion along with the issues of Abandonment
and Overpayment. Please allow for a one hour docket slot
and interpreter for the Injured Worker.
The continuance is agreed to by the parties and does not
violate the time constraints set forth in R.C. 4123.511.
{¶ 40} 16. Following a September 7, 2010 hearing, the DHO issued an order
finding that relator had voluntarily abandoned his employment with Almostfamily, and
declaring an overpayment of TTD compensation paid since February 3, 2010. The DHO's
order explains:
It is the order of the District Hearing Officer that the C-86
Motion filed by Employer on 06/09/2010 is granted to the
extent of this order.
The Hearing Officer notes that this hearing was previously
set on 07/15/2010 on the Employer's Motion to Terminate
Temporary Total Compensation. During that hearing and
through questioning of the Injured Worker, the question of
abandonment became apparent as the Injured Worker
testified that he lost his job due to some reason non-injury
related. After further questioning of the Injured Worker and
counsel for both parties searching the internet during the
hearing, some criminal activity was revealed. At that time,
the Employer's counsel requested termination of temporary
total compensation based upon the defense of abandonment
and that an overpayment be declared for the temporary total
No. 12AP-364 11
compensation that the Self-Insuring Employer unilaterally
began paying on 02/03/2010 as the result of a surgery. The
Injured Worker's counsel objected to proceeding on the
Employer's counsel's request based on lack of notice. Despite
the fact that abandonment can be raised at anytime at a
hearing in which temporary total compensation is at issue,
due to the possible overpayment issue, the Hearing Officer
reset the hearing on the issue of Overpayment and
Abandonment in order that all parties were on notice as to
the issues involved in the ongoing temporary total and so
that both parties could obtain further documentation if
deemed appropriate.
At the present hearing, Injured Worker's counsel argued that
the Industrial Commission lacked continuing jurisdiction as
the Self-Insuring Employer did not file a written motion and
that District Hearing Officer's do not have jurisdiction over
continuing jurisdiction issues. The Hearing Officer finds that
the defense of abandonment does not require specific notice.
Further, the Self-Insuring Employer orally amended the
Motion to terminate temporary total compensation to
include abandonment and overpayment at the 07/15/2010
hearing. The Hearing Officer had the Employer's counsel
write what was reflected at that hearing on a copy of the
original motion in order to satisfy the Injured Worker's
counsel that there was nothing in writing, despite the fact
that was the purpose of the reset hearing. All parties were on
notice 07/15/2010 as to the issues at hand. The hearing
notice further put the parties on notice. The Hearing Officer
finds that the Injured Worker and his counsel were afforded
due process as they were informed on more than one
occasion what the content of the next hearing would entail.
Further, since there is no formal order ordering the Self-
Insuring Employer to pay temporary total compensation, to
entertain the proper payment of temporary total
compensation does not fall under a continuing jurisdiction
issue in the sense that the Injured Worker's counsel has
portrayed. The Employer's counsel has properly raised the
defense on the proper payment of temporary total
compensation and the ongoing payment of temporary total
compensation.
The Hearing Officer finds that the Injured Worker
abandoned his employment due to his voluntary act of
criminal activity. As the result of this activity, the Injured
Worker was terminated from his employment at Almost
Family in October 2009. The Injured Worker's termination
No. 12AP-364 12
was in response to a written work policy in which failure to
report conviction of certain offenses may lead to termination.
The Injured Worker was aware of this policy and signed
annual Criminal Offense Statements which indicated that if
he was ever charged, convicted or plead guilty to any number
of charges he is required to notify the Employer within 14
days. Failure to do so may result in termination.
The Injured Worker failed to notify his Employer of the two
convictions in 2009. Thus, when the Employer found out
about them through the annual background check, the
Injured Worker was terminated from his employment from
Almost Family. The Hearing Officer finds that this is a
voluntary act that led to the termination of the Injured
Worker. The Injured Worker never returned to the work
force after his termination in October 2009 and before his
surgery in February 2010. Therefore, the Injured Worker is
not entitled to receive temporary total compensation in this
claim at this time. As a result, the Hearing Officer finds that
the temporary total compensation paid beginning
02/03/2010, through the present, is declared overpaid as it
was improperly paid. The Self-Insuring Employer relied
upon the credibility of the Injured Worker that he was legally
entitled to receive compensation in this claim when it
unilaterally began paying compensation as the result of his
surgery.
Despite the ineligibility of temporary total, the Hearing
Officer also finds that the Injured Worker has reached
maximum medical improvement for the allowed conditions
of this claim. Therefore, temporary total compensation is
terminated as of today's hearing of 09/07/2010 based upon
the 08/25/2010 report of Dr. Ghanma dated 08/25/2010.
{¶ 41} 17. By letter dated September 7, 2010 to the commission, relator's counsel
declared:
I believe it is necessary to document what transpired today at
Mr. Montanez's hearing as Mr. Montanez could not afford to
have a court reporter present.
The origins of today's hearing stem from Mr. Montanez's
receipt of temporary total disability (TTD) which began after
his February 3, 2010 surgery. The self-insured employer
(ABM) had been paying temporary total disability as it had
accepted Mr. Montanez's March 8, 2010 motion and, per its
March 17, 2010 correspondence. On June 9, 2010, however,
No. 12AP-364 13
ABM filed a motion requesting that the Industrial
Commission find Mr. Montanez maximum medically
improved (MMI). This motion was original [sic] heard on
July 15, 2010 when DHO Augusta raised the issue of
voluntary abandonment after she learned that Mr. Montanez
was receiving unemployment compensation, as indicated on
the C-84's filed along with his March 8, 2010 motion
requesting TTD, prior to his receipt of TTD. At said hearing
the undersigned argued that the commission was without
jurisdiction to hear any issue other than that raised by the
employer's motion, i.e. MMI. The hearing officer then
concluded the hearing without providing any guidance as to
the outcome of said hearing and weeks later issued an
interlocutory continuance order unilaterally continuing the
hearing in addition to unilaterally adding issues to be heard
at the rescheduled hearing other than those raised by ABM
in its Jun[e] 9, 2010 motion.
At today's rescheduled MMI hearing, the undersigned once
again argued that the Industrial Commission was without
jurisdiction to hear new issues raised by the DHO as the
employer had not filed a request for the Industrial
Commission to exercise continuing jurisdiction, per R.C.
4123.52, to revisit the previously adjudicated issue of Mr.
Montanez's entitlement to TTD. In response to this
argument, the hearing officer stated that the employer had
filed a written motion. I disagreed. In response, the hearing
officer stated that the previous motion was amended orally at
the last hearing which was why said hearing was reset. I
disagreed. In response, the hearing officer printed off a
paper, handed it [to] the employer's attorney and had them
write down the motion it wanted heard. The employer's
attorney then wrote something down and handed it back to
the hearing officer. I was not shown what the employer's
attorney wrote nor was I given a copy.
Despite there being no jurisdiction to do so, I was forced to
proceed on the merits of the case regarding the Industrial
Commission's own motion regarding Mr. Montanez's alleged
voluntary abandonment, but do not feel that Mr. Montanez
was afforded a fair hearing.
What I argued at both hearings and what I believe needs to
happen for the Industrial Commission to have jurisdiction
over the issue of voluntary abandonment is that the self-
insured employer must file a formal written motion
requesting that the Commission exercise continuing
No. 12AP-364 14
jurisdiction pursuant to R.C. 4123.52. This motion must be
fully adjudicated and if the Commission finds that the
employer can meet the requirements of R.C. 4123.52 and
that continuing jurisdiction is appropriate, the issue of Mr.
Montanez's entitlement to TTD can be revisited. This,
however, was not done. At no time during the hearing did the
employer's attorney or the hearing officer address any of the
requirements necessary for the Industrial Commission to
exercise continuing jurisdiction.
Mr. Montanez was not afforded due process under the law
and I cannot sit by and watch what occurred without
documenting what transpired.
{¶ 42} 18. By letter dated September 22, 2010, ABM's counsel responded to the
September 7, 2010 letter of relator's counsel:
I would like to provide you with my recollection of the
events, as they differ from Mr. Palnik's in several respects.
The employer's original motion to terminate temporary total
disability benefits was based upon the records of Dr. Stearns,
claimant's surgeon, who opined that he could return to work.
However, at the District Hearing Officer hearing on July 15,
2010, the plaintiff testified, on cross examination, that he
was terminated from his employment at Almost Family (a
home health care service company) in October 2009. This
was several months before the commencement of his most
recent period of temporary total disability benefits which
began on February 3, 2010, following surgery. I questioned
Mr. Montanez about the reason for his termination, but he
refused to answer, stating only that I should speak to his
lawyer, which I took to mean his criminal lawyer. A quick
check of the Cleveland Municipal Court online docket
revealed that Mr. Montanez had been convicted of "indecent
exposure" in March of 2009.
Thereafter, I orally moved that the employer's motion be
amended to include the defense of voluntary abandonment
of employment and requested that an overpayment be
declared. Mr. Palnik then argued that the District Hearing
Officer did not have the jurisdiction to hear this new issue
and declined to waive notice. Ms. Augusta granted my
motion, adjourned the hearing and subsequently the matter
was re-set for hearing on the additional issues of voluntary
abandonment and overpayment.
No. 12AP-364 15
At the September 7th hearing, Mr. Palnik again objected to
jurisdiction. Ms. Augusta recounted the events at the
previous hearing, including my oral motion, and, so the
record would be clear, requested that I memorialize my
previous oral motion, in writing, on a copy of the employer's
original C-86 motion. The District Hearing Officer then
indicated that she had jurisdiction to hear the merits of the
employer's motion and Mr. Palnik proceeded.
In short, all parties were on notice of the issues to be
addressed at the September 7th, 2010 hearing. Further, I
believe that District Hearing Officer Augusta is correct in
asserting that there is no issue of continuing jurisdiction.
Finally, I do not believe that Mr. Montanez was denied due
process as all parties were aware of the issues to be heard. In
the period between the two hearings, I requested and
received an administrative subpoena for the claimant's
employment records from Almost Family, which revealed the
reason for his discharge: He had two criminal convictions
which were discovered during an annual records check and
failed to report these convictions, contrary to company
policy.
{¶ 43} 19. Relator administratively appealed the DHO's order of September 7,
2010.
{¶ 44} 20. Following a December 14, 2010 hearing, a staff hearing officer ("SHO")
mailed an order on December 30, 2010 that vacates the DHO's order of September 7,
2010. The SHO's order explains:
It is the order of the Staff Hearing Officer that the C-86, filed
06/09/2010, is granted to the extent of this order.
On 06/09/2010 the Self-Insuring Employer filed a motion
requesting that the payment of temporary total be
terminated. The reason given was that the Injured Worker
was able to return to work with restrictions. The Staff
Hearing Officer now denies this request. The fact that an
Injured Worker is able to return to some form of
employment is not a basis to terminate the payment of
temporary total. There is no evidence that the Self-Insuring
Employer has made an offer of employment to the Injured
Worker that is consistent with the work restrictions set forth
by his treating physicians. The claim was set for hearing on
the motion on 07/15/2010. The Injured Worker was present
for the hearing and testified. He indicated that after being
No. 12AP-364 16
terminated by the Self-Insuring Employer he had been hired
by a company called Almost Family. He stated that he no
longer was employed by Almost Family and had not been
since October, 2009. After further questioning the
Employer's Representative orally amended the C-86. The
Self-Insuring Employer now wanted temporary total denied
on the basis that the Injured Worker had voluntarily
abandoned his employment with Almost Family and
requested an overpayment of all temporary total paid
beginning 02/03/2010. The Injured Worker's Represen-
tative refused to waive notice of hearing and the District
Hearing Officer ordered the matter reset.
The matter was set for hearing again on 09/07/2010. At that
time the notice of hearing contained the issues "job
abandonment" and "overpayment". At the hearing the
Injured Worker's Representative objected to going forward
on the amended motion as it had not been reduced to
writing. He also argued that the new issues raised by the
Employer should be the subject of a motion pursuant to R.C.
4123.52. The parties agree that the Employer's Represen-
tative did write a brief addendum to the C-86 on a copy of
the motion that the District Hearing Officer had printed.
There, however, is no written copy of the amended motion in
the file. The Staff Hearing Officer cannot explain this, but the
parties are in agreement as to the issues raised by the
Employer. The Staff Hearing Officer finds that the Employer
did have the right, as any party does, to amend its motion
upon the receipt of new information. The District Hearing
Officer correctly reset the matter when the Injured Worker's
Representative refused to waive notice of hearing as he had
every right to do. Ideally the amended motion should have
been reduced to writing immediately.
The Staff Hearing Officer vacates the finding of the District
Hearing Officer that the Injured Worker has reached
maximum medical improvement. There has been no request
by the Employer for termination of temporary total on this
basis. Although the Employer's Representative refers to such
in his 09/22/2010 letter there is no motion that requests a
finding of maximum medical improvement. The Staff
Hearing Officer does find that the payment of temporary
total disability compensation is to terminate as of
12/14/2010 on the basis that the Injured Worker voluntarily
abandoned his former position of employment with Almost
Family. The Injured Worker was terminated due to two
criminal convictions for public indecency. When the Injured
No. 12AP-364 17
Worker was hired he was put on notice that a conviction of
this type could result in his termination. The Employer's
Representative submitted a copy of the warning signed by
the Injured Worker. This type of conviction is clearly listed
among the potential dischargeable offenses. The Staff
Hearing Officer finds that she does not have jurisdiction to
adjudicate the issue of the request for overpayment of
temporary total for the period of 02/03/2010 through
12/14/2010. Based on the holding of State ex rel. Baker v.
Industrial Commission of Ohio 89 Ohio St. 3d 376 (2000),
the Staff Hearing Officer finds that the Employer must file a
motion pursuant to [R.C.] 4123.52 as this temporary total
was paid by the Employer voluntarily and not pursuant to an
order of the Industrial Commission.
{¶ 45} 21. ABM administratively appealed the SHO's order of December 14, 2010.
{¶ 46} 22. On February 2, 2011, the commission mailed a "Notice of Acceptance of
Appeal for Hearing." The notice states:
By unanimous determination the Employer's appeal filed on
01/18/2011, from the Staff Hearing Officer order issued
12/30/2010, has been accepted for hearing to be scheduled
before a Deputy of the Commission. The parties will be
properly notified of the time and place of hearing in
compliance with the requirement contained in R.C. 4123.511.
{¶ 47} 23. On April 13, 2011, the three-member commission, on a two-to-one vote,
mailed an order stating:
On 02/16/2011 a hearing was held before a Deputy of the
Industrial Commission pursuant to the provisions of R.C.
4121.03 and 4123.511 on the Employer's appeal, filed
01/18/2011, from the Staff Hearing Officer order issued
12/30/2010.
Thereafter, the matter was presented to the members of the
Industrial Commission. After review and discussion, it is the
order of the Commission that the Employer's appeal, filed
01/18/2011, be set for hearing before the members of the
Industrial Commission.
{¶ 48} 24. Following a May 24, 2011 hearing, the three-member commission, on a
two-to-one vote, mailed an order that vacates the SHO's order of December 14, 2010
(mailed December 30, 2010). Based upon a finding that relator had voluntarily
abandoned his employment with Almostfamily, the commission retroactively terminated
No. 12AP-364 18
TTD compensation, declared an overpayment from February 3 to September 3, 2010, and
ordered recoupment. The commission's order of May 24, 2011 explains:
Preliminarily, the Commission rejects the Injured Worker's
request that the Employer's appeal be dismissed. Relying
upon Commission Resolution R07-1-04(C), the Injured
Worker argues the Self-Insuring Employer's failure to pay
temporary total disability compensation beyond 09/03/2010
violates the order of the Staff Hearing Officer, issued
12/30/2010. The Commission finds, however, that the Staff
Hearing Officer failed to clearly order payment of temporary
total disability compensation. The order establishes a
termination date but does not specifically award temporary
total disability. This decision is supported by the 03/17/2011
correspondence from the Bureau of Workers' Compensation
Self-Insured Department, which found the Injured Worker's
self-insured complaint on this topic invalid.
***
It is the further order of the Commission that the Employer's
C-86 motion filed 06/09/2010, requesting termination of
temporary total disability compensation is granted. The
Commission finds the Injured Worker voluntarily
abandoned his employment when he was discharged on
10/22/2009 and did not obtain subsequent employment,
barring the Injured Worker from receiving temporary total
disability compensation from 02/03/2010 to the date last
paid, 09/03/2010. Temporary total disability compensation
paid from 02/03/2010 to 09/03/2010 is declared overpaid
and ordered recouped consistent with R.C. 4123.511(K).
On 04/01/2009, the Injured Worker signed a Criminal
Offense Statement whereby the Injured Worker agreed to
notify his employer, Almost Family, of any charges or
convictions of specified offenses. This statement clearly
identified that a failure to notify Almost Family would result
in dismissal. On 10/22/2009, Almost Family terminated the
Injured Worker's employment upon its discovery that the
Injured Worker had been convicted of two disqualifying
offenses and failed to report both.
The Commission finds the Injured Worker's termination on
10/22/2009 was a voluntary abandonment of his
employment under the holding of State ex rel. Louisiana-
Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401,
thereby precluding the payment of temporary total disability
No. 12AP-364 19
compensation. The Court in Louisiana-Pacific found that a
discharge was voluntary, when termination resulted from a
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.
The Commission finds the Criminal Offense Statement
clearly defined the prohibited conduct and advised that
discharge would result therefrom. The Commission further
finds the Injured Worker was aware of this written policy as
verified by his signature of 04/01/2009.
{¶ 49} 25. On April 23, 2012, relator, Edgard Montanez, filed this mandamus
action.
Conclusions of Law:
{¶ 50} Did the commission abuse its discretion: (1) by allowing ABM to amend its
June 9, 2010 motion to terminate TTD compensation, and (2) by finding relator ineligible
for TTD compensation?
{¶ 51} The magistrate finds that the commission did not abuse its discretion by
allowing ABM to amend its June 9, 2010 motion, but it did abuse its discretion in finding
relator ineligible for TTD compensation.
{¶ 52} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
The First Issue
{¶ 53} The first issue seemingly involves a factual dispute between relator and
ABM as to what actually transpired at the July 15, 2010 hearing. It also involves relator's
challenge to the original jurisdiction of the DHO who heard the voluntary abandonment
issue on September 7, 2010 following the resetting of ABM's June 9, 2010 written motion
to terminate TTD compensation.
{¶ 54} The DHO who heard ABM's June 9, 2010 motion states in his September 7,
2010 order that ABM "orally amended the Motion to terminate temporary total
compensation to include abandonment and overpayment at the 07/15/2010 hearing."
The DHO further states that she had ABM's counsel "write what was reflected at that
hearing on a copy of the original motion in order to satisfy the Injured Worker's counsel
that there was nothing in writing."
No. 12AP-364 20
{¶ 55} Here, relator captions his argument as follows:
The Commission abused its discretion and violated Relator's
due process rights by transforming, at its own initiative, the
employer's motion to have Relator found maximally
medically improved into a motion to terminate temporary
total disability based upon voluntary abandonment.
(Relator's brief, at 9.)
{¶ 56} It is not clear whether relator is actually challenging the accuracy of the
DHO's order indicating that ABM orally amended its motion to include abandonment and
overpayment. Because the hearing was not recorded, we do not have a hearing transcript
that might be used to test the accuracy of the DHO's statement.
{¶ 57} By declaring that "at its own initiative," the commission "transformed"
ABM's June 9, 2010 written motion seems to suggest a claim from relator that the DHO
may have invited ABM's oral motion to amend—not that ABM actually failed to orally
amend.
{¶ 58} Even if the DHO invited ABM's oral motion to amend its June 9, 2010
written motion, it was ABM, nonetheless, that orally moved to amend its written motion
as the DHO indicates in her order.
{¶ 59} Relator cites to no authority holding that a hearing officer abuses his or her
discretion by inviting a party to orally move to amend a previously filed written motion.
Relator cites to no authority to support his suggestion that such invitation renders the
hearing officer or commission unable to impartially hear the matter before it.
{¶ 60} R.C. 4121.34(B) provides:
District hearing officers shall have original jurisdiction on all
of the following matters:
***
(3) All other contested claims matters under this Chapter
4123., 4127., and 4131. of the Revised Code, except those
matters over which staff hearing officers have original
jurisdiction.
{¶ 61} According to relator, the voluntary abandonment issue was not a contested
issue because ABM did not raise the issue in its June 9, 2010 written motion. Thus,
No. 12AP-364 21
relator concludes that the DHO who heard the matter on September 7, 2010 lacked
original jurisdiction over the voluntary abandonment issue. Relator is incorrect.
{¶ 62} The voluntary abandonment issue was contested. Undeniably, ABM
contested the issue when it orally moved to amend its June 9, 2010 motion to include the
voluntary abandonment issue. The issue cannot be said to be uncontested simply because
the hearing officer may have invited ABM to amend its written motion. And, as ABM
points out here, it did not become aware of relator's discharge by Almostfamily until the
July 15, 2010 hearing, after ABM had filed its motion on June 9, 2010. Thus, the failure to
raise the voluntary abandonment issue in its June 9, 2010 motion did not constitute an
unwillingness to contest the job departure.
The Second Issue
{¶ 63} The second issue, as earlier noted, is whether the commission abused its
discretion in finding that relator voluntarily abandoned his employment at Almostfamily.
{¶ 64} Historically, this court first held that, where the employee has taken action
that would preclude his returning to his former position of employment, even if he were
able to do so, he is not entitled to continued TTD benefits since it is his own action, rather
than the industrial injury, which prevents his returning to his former position of
employment. State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm., 29 Ohio App.3d
145 (10th Dist.1985). The Jones & Laughlin rationale was adopted by the Supreme Court
of Ohio in State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987), wherein the
court recognized a "two-part test" to determine whether an injury qualified for TTD
compensation. Ashcraft at 44. The first part of the test focuses upon the disabling aspects
of the injury whereas the latter part determines if there are any other factors, other than
the injury, which prevent the claimant from returning to his former position of
employment. Id.
{¶ 65} In State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44
(1988), the court held that an injury-induced abandonment of the former position of
employment, as in taking a retirement, is not considered to be voluntary.
{¶ 66} In State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401,
403 (1995), the claimant was fired for violating the employer's policy prohibiting three
No. 12AP-364 22
consecutive unexcused absences. The court held that the claimant's discharge was
voluntary, stating:
[W]e 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 know to the employee. Defining such an
employment separation as voluntary comports with Ashcraft
and [State ex rel. Watts v. Schottenstein Stores Corp., 68
Ohio St.3d 118 (1993)]—i.e., that an employee must be
presumed to intend the consequences of his or her voluntary
acts.
{¶ 67} In State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 561 (2001),
the Supreme Court of Ohio held that the rule or policy supporting an employer's voluntary
abandonment claim must be written. The court explained:
Now at issue is Louisiana-Pacific's reference to a written rule
or policy. Claimant considers a written policy to be an
absolute prerequisite to precluding TTC. The commission
disagrees, characterizing Louisiana-Pacific's language as
merely illustrative of a TTC-preclusive firing. We favor
claimant's position.
The commission believes that there are common-sense
infractions that need not be reduced to writing in order to
foreclose TTC if violation triggers termination. This
argument, however, contemplates only some of the
considerations. Written rules do more than just define
prohibited conduct. They set forth a standard of enforcement
as well. Verbal rules can be selectively enforced. Written
policies help prevent arbitrary sanctions and are particularly
important when dealing with employment terminations that
may block eligibility for certain benefits.
(Emphasis sic.)
{¶ 68} The syllabus of State ex rel. McCoy v. Dedicated Transport Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, states:
A claimant who voluntarily abandoned his or her former
position of employment or who was fired under
circumstances that amount to a voluntary abandonment of
the former position will be eligible to receive temporary total
disability compensation pursuant to R.C. 4123.56 if he or she
No. 12AP-364 23
reenters the work force and, due to the original industrial
injury, becomes temporarily and totally disabled while
working at his or her new job.
{¶ 69} The McCoy holding was further explained by the court in State ex rel.
Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587. In that case, the
claimant, Shawn E. Eckerly, was fired from his job for unexcused absenteeism. Thereafter,
the commission declared that the discharge constituted a voluntary abandonment of his
employment under Louisiana-Pacific, and denied TTD compensation. Citing McCoy, the
Eckerly court upheld the commission's denial of TTD compensation. The Eckerly court
explains:
The present claimant seemingly misunderstands McCoy. He
appears to believe that so long as he establishes that he
obtained another job-if even for a day-at some point after his
departure from Tech II, TTC eligibility is forever after
reestablished. Unfortunately, this belief overlooks the tenet
that is key to McCoy and all other TTC cases before and
after: that the industrial injury must remove the claimant
from his or her job. This requirement obviously cannot be
satisfied if claimant had no job at the time of the alleged
disability.
(Emphasis sic.) Id. at ¶ 9.
{¶ 70} In State ex rel. Cline v. Abke Trucking, Inc., 10th Dist. No. 10AP-888, 2012-
Ohio-1914, Fred D. Cline sustained an industrial injury while employed as a truck driver
for Abke Trucking, Inc. Following a medical release to return to work, Cline underwent a
medical examination to renew his commercial driver's license. Thereafter, Abke informed
Cline that he was terminated from his employment because he was disqualified by his
diabetic condition from operating as a commercial driver and because Abke believed he
had falsified his employment time sheets.
{¶ 71} Cline obtained other part-time employment the following month, followed
by a full-time job as a truck driver with another company. After approximately one month
of employment with the new company, Hoekstra Transportation LLC, Cline was fired,
apparently for insubordination and poor job performance.
{¶ 72} After the commission found him ineligible for TTD compensation, Cline
filed a mandamus action in this court. This court held that Cline had not voluntarily
No. 12AP-364 24
abandoned his employment with Abke. Then, this court addressed issues relating to
Cline's employment with Hoekstra:
Finally, the commission in the alternative argues that if
relator's discharge from Abke does not disqualify him from
TTD compensation, then relator's subsequent discharge by
another employer (Hoekstra) constitutes a voluntary
abandonment of employment that will relate back to his
initial termination by Abke and accordingly render him
ineligible for compensation. As a corollary, the commission
proposes that lack of employment for any reason at the time
a claimant attempts to renew his claim and obtain an
additional period of TTD will preclude compensation. We
find no support for either legal proposition, both of which
amalgamate the distinct concepts of voluntary departure
from the employer where the allowed claim arose and
voluntary abandonment of the work force entirely.
Aside from a claimant's voluntary departure from
employment with an employer against whom the claim for
TTD compensation was originally brought, "a claimant's
complete abandonment of the entire work force will preclude
TTD compensation altogether." State ex rel. Pierron v.
Indus. Comm., 172 Ohio App.3d 168, 873 N.E.2d 909, 2007-
Ohio-3292, ¶ 12 (10th Dist.), citing State ex rel. Baker v.
Indus. Comm., 89 Ohio St.3d 376, 732 N.E.2d 355 (2000),
affirmed 120 Ohio St.3d 40, 896 N.E.2d 140, 2008-Ohio-
5245. A defense of voluntary abandonment of the entire
work force, however, is distinct from a defense of ineligibility
due to voluntary departure from the employment position in
which the injury occurred, as is demonstrated by the
different standards announced in cases addressing the
respective issues, such as Louisiana–Pacific and Baker.
None of the cases addressing complete abandonment of the
work force by a claimant do so in terms of treating a
voluntary departure from a subsequent employer as a
preclusive event of the same order as a voluntary departure
from the employer against whom the claim is brought.
Likewise, the cases do not treat a subsequent firing for cause
as relating back and transforming an involuntary departure
from the original employer into a voluntary departure.
We find that in the present case relator has not abandoned
the work force, as evidenced by his continued employment in
truck driving and nondriving positions after leaving Abke.
Unlike the claimant in Pierron, who accepted a buyout and
made no attempt to return to employment in the ensuing five
No. 12AP-364 25
years, relator had repeatedly, if unsuccessfully, attempted to
remain employed before pursuing renewed TTD. The fact
that his termination from his subsequent employment with
Hoekstra was potentially for cause, i.e., violation of
Hoekstra's work rules, does not demonstrate abandonment
of the work force; it would so affect, if such a claim were at
issue, any subsequent claim that relator made for injuries
sustained during his employment with Hoekstra, but that is
not the case before us. Relator has not "evinced an intent to
leave the work force." State ex rel. Pierron v. Indus. Comm.,
120 Ohio St.3d 40, 896 N.E.2d 140, 2008-Ohio-5245, ¶ 10.
In the necessarily fact-intensive inquiry into whether a
claimant has abandoned the work force entirely, we do not
conclude that repeated and habitual firings from subsequent
employment might be taken into account, but again, that is
not the case before us.
In the same vein, the commission further argues that
relator's lack of income at the time he renewed his claim for
continuing injury of itself precludes allowance of TTD
compensation. The commission cites State ex rel. Eckerly v.
Indus. Comm., 105 Ohio St.3d 428, 828 N.E.2d 97, 2005-
Ohio-2587, for the proposition that no claim can be allowed
if the claimant is unemployed at the time of the alleged
disability. Read more carefully, however, Eckerly is a case
that turns on alleged abandonment of the work force, rather
than momentary unemployment of the claimant: "[I]t
appears that claimant was almost entirely unemployed in the
two years after his discharge * * * earning only
approximately $800 during that period." Id. at ¶ 10, 828
N.E.2d 97. We do not agree with the broad interpretation of
Eckerly, urged upon us by the commission, that any period
of subsequent unemployment would prevent any possibility
of a claim for TTD compensation involving the original
employer.
Id. at ¶ 14-17.
{¶ 73} The Cline case and its clarification of Eckerly was followed by this court in
State ex rel. MedAmerica Health Sys. Corp. v. Brammer, 10th Dist. No. 11AP-904, 2012-
Ohio-4416.
{¶ 74} In the MedAmerica case, in May 2008, the claimant, Sherry Brammer,
injured her right shoulder while employed with MedAmerica. By fall 2008, Brammer's
treating physician released her to return to work without restrictions. Medical records, as
No. 12AP-364 26
well as Brammer's testimony, indicated that, after she returned to work without
restrictions, her shoulder symptoms increased. Brammer requested surgery to repair her
rotator cuff in February 2009, but MedAmerica denied the request. In March 2009,
MedAmerica terminated Brammer for excessive absenteeism. Brammer later testified
that the majority of her absences were due to progressing shoulder pain. Brammer
received unemployment compensation following her job termination.
{¶ 75} In November 2009, Brammer began working for TelePerformance at a
sedentary position. While working for TelePerformance, Brammer began experiencing an
increase in her pre-existing low back condition—a non-allowed condition. Following
advice from her treating physician to discontinue her work with TelePerformance,
Brammer did so in February 2010. Brammer then applied for and received
unemployment compensation.
{¶ 76} On June 7, 2010, Brammer underwent right shoulder surgery which was
approved by MedAmerica. MedAmerica also began payments of TTD compensation
beginning the date of the surgery.
{¶ 77} In October 2010, MedAmerica moved to retroactively terminate Brammer's
TTD compensation and to declare an overpayment beginning June 7, 2010 on grounds
that Brammer was disabled due to an unrelated medical condition and not working prior
to the surgery.
{¶ 78} Ultimately, a commission deputy denied MedAmerica's motion. The deputy
found that Brammer did not voluntarily abandon her former position of employment at
MedAmerica, did not abandon the entire workforce, and did not voluntarily abandon her
last employment with TelePerformance. The deputy's findings were approved by the
three-member commission. Then, MedAmerica filed a mandamus action in this court.
{¶ 79} Upholding the commission's decision, this court, in MedAmerica, explains:
In its first objection, relator argues that the magistrate's
decision was contrary to the Supreme Court of Ohio's
decision in State ex rel. Eckerly v. Indus. Comm., 105 Ohio
St.3d 428, 2005-Ohio-2587. Relator points to the court's
statement in Eckerly that the key aspect in all TTD cases is
that the industrial injury must remove the claimant from his
or her job, and this requirement cannot be satisfied if the
claimant had no job at the time of the alleged disability.
Pursuant to Eckerly, relator asserts, claimant in this case
No. 12AP-364 27
was not eligible for TTD at the time of her surgery in June
2010 because she was unemployed for reasons unrelated to
her claim; that is, she was unemployed based upon her
voluntary decision to leave her employment with
TelePerformance due to her non-allowed back condition.
However, Eckerly is distinguishable in several respects. In
Eckerly, the worker was permitted to return to his former
position of employment with no restrictions but then
voluntarily abandoned his former position when he was fired
for unexcused absenteeism. He subsequently voluntarily
abandoned the entire workforce. In the present case,
claimant did not voluntarily leave her former position of
employment with relator; rather, she was terminated for
reasons related to the allowed conditions in her claim.
Although she was terminated from her job with relator for
absenteeism while working light duty under the restrictions
defined in her industrial claim, she testified that most of the
absences were due to her industrial injury, which was
corroborated by her doctor, Michael Herbenick, M.D., and
the finding by the Ohio Department of Job and Family
Services that she was entitled to unemployment benefits
because her discharge was without cause. Thus, her
departure from her employment with relator was
involuntary, unlike the employee's voluntary abandonment
in Eckerly.
In addition, Eckerly clearly does not stand for the
proposition that TTD is precluded when a worker
involuntarily abandons her former position of employment
but then voluntarily departs a subsequent position of
employment with another employer, which is the case here.
To the contrary, as we recently found in State ex rel. Cline v.
Abke Trucking, Inc., 10th Dist. No. 10AP-888, 2012-Ohio-
1914, ¶ 14-15, a voluntary abandonment of subsequent
employment does not relate back and transform an
involuntary departure from the original employer into a
voluntary departure so as to render the employee ineligible
for TTD compensation. Id. at ¶ 15.
Furthermore, the present case is distinguishable from
Eckerly in that claimant in the present case did not abandon
the entire workforce. Claimant here attempted to work for a
subsequent employer within her work restrictions but could
not continue because of a non-allowed back injury, and there
is no evidence that she intended to abandon the entire
workforce at this point. See Cline at ¶ 14-15 (that the
No. 12AP-364 28
claimant, after involuntarily abandoning employment with
his original employer, voluntarily abandoned his
employment with his subsequent employer does not
demonstrate abandonment of or an intent to leave the entire
workforce). No cases addressing complete abandonment of
the workforce by a claimant do so in terms of treating a
voluntary departure from a subsequent employer as a TTD-
preclusive event. Id. at ¶ 15. This differs from a voluntary
departure from the employer against whom the claim is
brought. Id.
We also note that, in Cline, we rejected the same broad
interpretation urged by relator here that Eckerly stands for
the proposition that no claim for TTD can be allowed if the
claimant is unemployed at the time of the alleged disability.
We found in Cline that the decision in Eckerly did not turn
on the momentary unemployment of the claimant but,
rather, the claimant's complete abandonment of the
workforce. We rejected the interpretation that any period of
subsequent unemployment would prevent any possibility of
a claim for TTD compensation involving the original
employer. Cline at ¶ 17. For these reasons, we find Eckerly
inapplicable to the current case. Relator's first objection is
without merit.
Id. at ¶3-7.
{¶ 80} This court's decisions in Cline and MedAmerica compel the issuance of a
writ of mandamus in the instant case.
{¶ 81} Here, ABM has never claimed that relator voluntarily abandoned his former
position of employment, and that on that basis, he was rendered ineligible for TTD
compensation under the rationale of Louisiana-Pacific. We actually know very little from
the record regarding the circumstances of relator's departure from his employment with
ABM.
{¶ 82} In the "Statement of Facts" in ABM's brief, we are simply told "[f]ollowing
the date of injury, Relator left his employment with ABM." (Respondent ABM's brief, at
5.) In its March 1, 2011 letter to the Self-Insured Complaint Resolution Unit, ABM states
simply: "Mr. Montanez was terminated from his employment at ABM on August 30, 2006
for reasons unrelated to his injury in this claim. He continued to work at Almost Family."
{¶ 83} At the time ABM filed its June 9, 2010 motion for termination of TTD
compensation, ABM did not allege a voluntary abandonment of employment at ABM. We
No. 12AP-364 29
do not know why ABM did not allege a voluntary abandonment of employment at ABM.
However, we do know that, as of June 9, 2010, relator continued to be employed at
Almostfamily. Presumably, under McCoy, an allegation of a voluntary abandonment of
employment at ABM could not produce a finding of TTD ineligibility as long as relator
was employed at Almostfamily. However, even after ABM discovered that relator had
been fired from his position at Almostfamily, ABM never alleged a voluntary
abandonment of employment from the former position of employment at ABM. The
focus of ABM's claim at the July 15, 2010 hearing was the alleged involuntary
abandonment of employment at Almostfamily. Again, ABM has never alleged that
relator's termination from his employment at ABM was voluntary under Louisiana-
Pacific or any other rationale, even when the firing at Almostfamily became known to
ABM at the July 15, 2010 hearing.
{¶ 84} Given the above-described scenario, ABM's claim that relator was ineligible
for TTD compensation rested entirely on its allegation that relator had voluntarily
abandoned his employment at Almostfamily which was not the job of injury. Moreover,
there is no evidence in the record that ABM alleged workforce abandonment at the series
of hearings beginning with the July 15, 2010 DHO hearing through the May 24, 2011
hearing before the commission itself. None of the commission orders address workforce
abandonment or indicate that ABM was pursuing a finding of workforce abandonment.
{¶ 85} Clearly, as the Cline and MedAmerica cases indicate, a commission finding
of workforce abandonment cannot be premised solely upon a finding that the claimant
voluntarily abandoned a job with another employer subsequent to his departure from the
job of injury. Moreover, as this court states in Cline:
In the necessarily fact-intensive inquiry into whether a
claimant has abandoned the work force entirely, we do not
conclude that repeated and habitual firings from subsequent
employment might be taken into account, but again, that is
not the case before us.
(Emphasis sic.) Id. at ¶ 16.
{¶ 86} Moreover, relator's shoulder surgery, which is the basis of his TTD claim,
occurred only three-to-four months after his October 22, 2009 departure from
employment at Almostfamily. We do not know whether relator looked for work during
No. 12AP-364 30
that time. In any event, workforce abandonment was never put in issue before the
commission by ABM.
{¶ 87} Based upon the above analysis, it is clear that the commission abused its
discretion in holding that relator is ineligible for TTD compensation during the period at
issue, i.e., from February 3 to September 3, 2010.
{¶ 88} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate its May 24, 2011 order to the extent that it
grants ABM's June 9, 2010 motion to terminate TTD compensation, finds that relator
voluntarily abandoned his employment when he was discharged by Almostfamily,
declares an overpayment of TTD compensation from February 3 to September 3, 2010,
and orders recoupment of the overpayment. The writ further orders that the commission
enter an amended order that denies ABM's June 9, 2010 motion (as written and as orally
amended) and reinstates the payments of TTD compensation pursuant to ABM's
agreement as stated in the March 17, 2010 letter of ABM's third-party administrator.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).