[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Hildebrand v. Wingate Transport, Inc., Slip Opinion No. 2015-Ohio-167.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-167
THE STATE EX REL. HILDEBRAND, APPELLANT, v. WINGATE TRANSPORT, INC.,
ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Hildebrand v. Wingate Transport, Inc.,
Slip Opinion No. 2015-Ohio-167.]
Workers’ compensation—Temporary-total-disability compensation—Voluntary
abandonment of the workforce for reasons unrelated to industrial injury—
Court of appeals’ judgment denying writ of mandamus affirmed.
(No. 2011-1616—Submitted August 19, 2014—Decided January 22, 2015.)
APPEAL from the Court of Appeals for Franklin County,
No. 10AP-625, 2011-Ohio-3787.
_______________________
Per Curiam.
{¶ 1} This case involves an injured worker’s eligibility for temporary-
total-disability compensation after he quit his job on the same day that he reported
to work with a note from his doctor restricting him to modified duty. Appellee
Industrial Commission determined that appellant Brian J. Hildebrand Jr.
voluntarily abandoned the workforce when he quit his job for reasons unrelated to
SUPREME COURT OF OHIO
his industrial injury and therefore was ineligible for temporary-total-disability
compensation.
{¶ 2} The Tenth District Court of Appeals denied Hildebrand’s request
for a writ of mandamus. The court rejected his argument, based on State ex rel.
Pretty Products, Inc. v. Indus. Comm., 77 Ohio St.3d 5, 670 N.E.2d 466 (1996),
that at the time his employment terminated (regardless of whether he quit or was
fired), he could not have voluntarily abandoned his employment because he was
physically unable to return to the duties of his former position.
{¶ 3} We find that the court of appeals did not abuse its discretion when
it denied the requested writ, because the commission’s order denying temporary-
total-disability compensation was based on evidence that Hildebrand voluntarily
quit his job for reasons unrelated to his industrial injury. Consequently, we affirm
the judgment of the court of appeals.
{¶ 4} Hildebrand injured his back on June 3, 2009, while working as a
mechanic for appellee Wingate Transport, Inc. He reported the injury to his
supervisor. Five days later, on June 8, 2009, he visited Matthew Bertollini, D.C.,
who diagnosed a left sacroiliac joint sprain/strain.
{¶ 5} He returned to work the following day with a note from Dr.
Bertollini restricting him to modified duty. Shortly after he arrived, Jeffrey
Wingate, the owner of Wingate Transport, telephoned from a different location to
confirm with Hildebrand that he could return to light-duty work. During the
conversation, Wingate asked Hildebrand to return the key to the Jeep that he had
loaned him after Hildebrand had totaled his own motor vehicle in an accident.
Hildebrand had been using the Jeep for the previous six months.
{¶ 6} According to Wingate, Hildebrand became agitated and asked if he
was being fired. Wingate replied that he was not fired, but that it was time for
him to stop using Wingate’s Jeep. Hildebrand became upset and began loading
tools and equipment into the pickup truck of an owner-operator who drove for
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January Term, 2015
Wingate Transport. Wingate returned to the work site and asked Hildebrand to
stop so that he could identify the items being taken. When Hildebrand refused,
Wingate called the police. Hildebrand eventually cooperated with the police
officers who responded, unloaded the items, and left the premises.
{¶ 7} A week later, Hildebrand filed for unemployment benefits. The
Department of Job and Family Services determined that he had quit his job on
June 9, 2009, for personal reasons without just cause and denied benefits.
{¶ 8} On June 19, 2009, Hildebrand filed a report of his June 3 injury
with the Bureau of Workers’ Compensation. Wingate Transport objected to the
claim because of Hildebrand’s history of low-back problems. On September 2,
1
2009, a hearing officer allowed the claim for left sacroiliac sprain/strain, but
denied Hildebrand’s request for temporary-total-disability compensation on the
basis that he had voluntarily quit on June 9, 2009, and had not reentered the
workforce. The hearing officer further found that Wingate Transport had been
“ready, willing and able to offer light-duty employment” within Hildebrand’s
physical capabilities. The commission refused Hildebrand’s appeal and denied
his request for reconsideration.
{¶ 9} Hildebrand filed a complaint in the Tenth District Court of Appeals
seeking a writ of mandamus that would require the commission to find that he
was entitled to temporary-total-disability compensation. A magistrate determined
that the evidence supported the commission’s finding that Hildebrand had quit his
job at Wingate Transport for reasons unrelated to his injuries. The magistrate
rejected Hildebrand’s argument that he could not have voluntarily abandoned his
job based on the principle discussed in State ex rel. Pretty Products, 77 Ohio
St.3d at 7, 670 N.E.2d 466, that a claimant “already disabled when the separation
occurred” cannot abandon a former position. According to the magistrate, Pretty
1
The claimant’s allowed medical condition is not at issue in this appeal.
3
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Products and similar cases involved employees who were unable to return to
former positions of employment because they had been fired for violating written
work rules. The magistrate concluded that because the evidence supported the
commission’s determination that Hildebrand had voluntarily quit for reasons
unrelated to his claim, Pretty Products was distinguishable and did not apply.
{¶ 10} The court of appeals overruled Hildebrand’s objections to the
magistrate’s report and denied the writ. The court agreed with the magistrate that
the record supported that Hildebrand was not fired but had voluntarily quit. 10th
Dist. Franklin No. 10AP-625, 2011-Ohio-3787, ¶ 5-6. Next, the court agreed that
the magistrate appropriately concluded that Pretty Products and its progeny did
not apply because those decisions involved instances in which an employee was
discharged from employment, not those in which an employee quit for reasons
unrelated to the industrial injury. Id. at ¶ 7. Finally, the court overruled
Hildebrand’s objection that the magistrate had failed to address his argument
regarding the accuracy of the hearing officer’s statement that he had quit despite
the employer having a light-duty job available for him. The court reasoned that
under these circumstances, the issue of the availability of a light-duty position
was not crucial to the question of his eligibility for temporary-total-disability
compensation. Id. at ¶ 8.
{¶ 11} Hildebrand appealed as of right to this court. We referred the case
to mediation and stayed briefing. After mediation was unsuccessful, the case was
returned to the regular docket and briefing commenced.
{¶ 12} To be entitled to an extraordinary remedy in mandamus,
Hildebrand must establish a clear legal right to the relief requested, a clear legal
duty on the part of the commission to provide the relief, and the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Gen. Motors
Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075,
¶ 9. This requires Hildebrand to demonstrate that the commission abused its
4
January Term, 2015
discretion by entering an order not supported by the evidence in the record. State
ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20, 508 N.E.2d 936 (1987).
{¶ 13} Temporary-total-disability compensation is intended to
compensate an injured worker who is temporarily unable to return to the duties of
his or her former position of employment as a result of a workplace injury. This
court has stated that “it must appear that, but for the industrial injury, the claimant
would be gainfully employed.” State ex rel. McCoy v. Dedicated Transport, Inc.,
97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35. Because temporary-
total-disability compensation requires a causal connection between the inability to
work and the industrial injury, an injured worker who voluntarily leaves a
position of employment is generally barred from receiving temporary-total-
disability compensation. State ex rel. Rockwell Internatl. v. Indus. Comm., 40
Ohio St.3d 44, 46, 531 N.E.2d 678 (1988); State ex rel. Ashcraft v. Indus. Comm.,
34 Ohio St.3d 42, 44, 517 N.E.2d 533 (1987).
{¶ 14} Hildebrand does not appeal the finding that he voluntarily quit his
job for reasons unrelated to his industrial injury. Instead, he argues that he is not
barred from receiving temporary-total-disability compensation because, at the
time he left his job—whether he quit or was fired—he was under medical
restrictions and unable to perform the duties of his position; thus, his departure
cannot be considered voluntary. Hildebrand relies on the principle stated in
Pretty Products that a claimant who is already disabled when terminated from
employment is not disqualified from temporary-total-disability compensation
because a claimant can abandon a former position of employment only if
physically capable of doing that job at the time of abandonment or removal. See
77 Ohio St.3d at 7, 670 N.E.2d 466.
{¶ 15} Pretty Products involved a claimant who was off work because of
a work-related back injury. Her treating physician certified that she could return
to work on March 1, 1991. She did not return and was eventually terminated for
5
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absenteeism. The commission determined that her discharge was not a voluntary
abandonment because she did not timely submit an excuse slip from her doctor,
and it awarded her temporary-total-disability compensation. Id. at 6-7.
{¶ 16} This court concluded that the commission’s order was vague and
ambiguous and remanded the cause to the commission for clarification. In doing
so, this court reaffirmed that to be entitled to temporary-total-disability
compensation, the claimant’s inability to perform his or her job duties must be the
result of the work-related injury. Id. at 6. We further stated:
Once a claimant is separated from the former position of
employment, future [temporary-total-disability] compensation
eligibility hinges on the timing and character of the claimant’s
departure.
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, it must be shown that the claimant
was already disabled at the time 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.
However, such situations are not common, and inquiry into
the character of departure is the norm.
Pretty Products, 77 Ohio St.3d at 6-7, 670 N.E.2d 466.
{¶ 17} This court has applied Pretty Products in other cases in which
claimants have been discharged while unable to return to the duties of a former
6
January Term, 2015
position of employment. In State ex rel. OmniSource Corp. v. Indus. Comm., 113
Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41, the claimant truck driver
receiving temporary-total-disability compensation was convicted of driving his
personal vehicle under the influence of alcohol. OmniSource terminated him for
failure to have a valid commercial driver’s license (a violation of a work rule) and
discontinued paying compensation. The commission concluded that the claimant
did not voluntarily relinquish his job because he was already disabled when he
had been fired. This court agreed, stating that Pretty Products applies to
discharges for violations of work rules. Id. at ¶ 10.
{¶ 18} In State ex rel. Luther v. Ford Motor Co., Batavia Transmission
Plant, 113 Ohio St.3d 144, 2007-Ohio-1250, 863 N.E.2d 151, the claimant had
been receiving temporary-total-disability compensation until he stopped
submitting to his employer medical reports that were required to maintain his
temporary-total-disability status. He was eventually terminated for failing to
either return to work or provide medical information. The commission concluded
that this was a voluntary abandonment and discontinued compensation. But this
court agreed with Luther that the commission had failed to consider whether he
was disabled when fired and whether his absenteeism had been caused by his
industrial injury, stating that “[w]here the infraction that precipitated discharge is
potentially due to industrial injury, further inquiry is necessary.” Id. at ¶ 17,
citing Pretty Products at 7-8.
{¶ 19} In State ex rel. Reitter Stucco, Inc. v Indus. Comm., 117 Ohio St.3d
71, 2008-Ohio-499, 881 N.E.2d 861, the claimant was fired for making comments
about the company’s president while off work due to an industrial injury. The
commission, applying Pretty Products, ordered that because the clamant had been
temporarily and totally disabled when he was fired, temporary-total-disability
compensation was not precluded. This court upheld the commission’s decision.
Id. at ¶ 12.
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SUPREME COURT OF OHIO
{¶ 20} Here, on the other hand, appellees argue that Hildebrand
terminated his employment for reasons unrelated to his industrial injury; thus, his
departure from employment (resulting in a loss of wages) was not causally related
to his industrial injury—a requirement for temporary-total-disability
compensation.
{¶ 21} We agree. Because Hildebrand failed to demonstrate that his loss
of earnings was due to the industrial injury, he did not meet that requirement for
receiving temporary-total-disability compensation. When determining an injured
worker’s eligibility for temporary-total-disability compensation, the initial focus
is on whether the employee’s departure from employment (resulting in a loss of
earnings) was causally related to the allowed conditions of the claim. McCoy, 97
Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, at ¶ 35; Ashcraft, 34 Ohio St.3d
at 44, 517 N.E.2d 533. If the injured worker leaves the workforce for reasons
unrelated to the industrial injury, there is no loss of earnings due to the injury, and
the employee is not eligible for temporary-total-disability compensation. State ex
rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d
140, ¶ 9.
{¶ 22} It is undisputed that evidence in the record supports that
Hildebrand voluntarily quit his job following a disagreement with his employer
that had nothing to do with his injury. This disagreement happened to occur
shortly after he reported to work with a note from his doctor restricting him to
modified duty. His departure was not causally related to the industrial injury. It
was voluntary and broke the nexus between the injury and the unemployment;
thus, he was not entitled to temporary-total-disability compensation. Ashcraft at
44.
{¶ 23} Furthermore, Pretty Products does not apply here. In Pretty
Products and similar cases that followed, each injured worker was already
receiving temporary-total-disability compensation when terminated from
8
January Term, 2015
employment and had therefore already demonstrated that he or she was disabled
as a result of an industrial injury (which was the cause of a loss of earnings).
Pretty Products held that a subsequent termination did not change that, so the
disabled worker continued to be entitled to temporary-total-disability
compensation despite having been terminated from employment.
{¶ 24} The court of appeals distinguished Pretty Products and related
cases on the basis that they involved claimants who had been discharged, not
claimants who had voluntarily quit. Hildebrand maintains that there is no
distinction made between an employee who is terminated as a result of
misconduct and one who voluntarily quits a job. See State ex rel. Daniels v.
Indus. Comm., 99 Ohio St.3d 282, 2003-Ohio-3626, 791 N.E.2d 440, ¶ 7.
Nevertheless, Pretty Products has not been considered in the context of an injured
worker who voluntarily quit for reasons unrelated to the allowed claim. This is
most likely because a claimant who is being paid temporary-total-disability
compensation while not working has little incentive to quit.
{¶ 25} In addition, it would be illogical to extend Pretty Products to a
claimant who elects to leave a job—for reasons unrelated to the industrial
injury—before the employer is afforded the opportunity to offer work within his
medical restrictions. This would apply Pretty Products in circumstances beyond
those contemplated in that case. Although Hildebrand had a doctor’s note
restricting him to modified duty, it was his decision to quit his job over a dispute
about using his boss’s Jeep that caused his loss of wages.
{¶ 26} Finally, the presence or absence of alternative employment is not
dispositive here. Hildebrand argued that the commission also abused its
discretion when it based its denial of temporary-total-disability compensation on
speculation that his former employer might have offered him light-duty work. As
the court of appeals determined, because Hildebrand quit his job for reasons not
related to his allowed claim, whether or not the employer would have offered him
9
SUPREME COURT OF OHIO
light-duty work is not crucial to the issue of temporary-total-disability eligibility.
See State ex rel. Santiago v. Indus. Comm., 10th Dist. Franklin No. 09AP-419,
2010-Ohio-1020 (an injured worker who returned to light-duty work was
ineligible for temporary-total-disability compensation because he voluntarily
abandoned his employment when he quit because of scheduling conflicts).
{¶ 27} Therefore, we agree with the court of appeals that the commission
did not abuse its discretion when it relied on evidence that Hildebrand voluntarily
abandoned his position for reasons unrelated to his industrial injury to deny his
request for temporary-total-disability compensation, and we affirm the court’s
judgment.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.
O’NEILL, J., dissents.
___________________
O’NEILL, J., dissenting.
{¶ 28} I would grant the writ of mandamus. This case is another example
of how the judicially created labyrinth of voluntary abandonment undermines
Ohio’s constitutional and statutory system of workers’ compensation. See State
ex rel. Jacobs v. Indus. Comm., 139 Ohio St.3d 86, 2014-Ohio-1560, 9 N.E.3d
999 (O’Neill, J., dissenting); State ex rel. Robinson v. Indus. Comm., 138 Ohio
St.3d 471, 2014-Ohio-546, 8 N.E.3d 883 (O’Neill, J., dissenting). There is simply
no evidence that Brian Hildebrand quit his job at Wingate Transport prior to being
injured at work on June 3, 2009, or prior to appearing at the workplace on June 9,
2009. But there is ample evidence that he was escorted off the premises by the
police on June 9, 2009.
{¶ 29} Hildebrand was a truck mechanic with a history of lower-back
problems for which his industrial-injury claims had been allowed. The majority
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January Term, 2015
of these claims, however, were medical only and Hildebrand had successfully
returned to work following all of his previous claims. In other words, by his
actions he demonstrated that he wanted to work. The staff hearing officer’s report
and the statement of facts prepared for the commission-level hearing both
acknowledge the fact that Hildebrand was working six days per week during the
year prior to his injury that gave rise to this claim. On June 3, 2009, Hildebrand
was injured on the job while replacing a grease seal on a truck. He told his
employer, Wingate Transport, that he was injured on the day it happened. On
June 9, 2009, Hildebrand went to work with a note from his doctor indicating that
he should be on modified duty for the following ten days. Jeffrey Wingate
responded by telling him to relinquish the keys to the Jeep that he had been
driving. An argument ensued. When Hildebrand asked whether he was being
fired, Wingate said no. However, the exchange ended with Hildebrand being
escorted off the property by the police. It would be nonsensical to characterize
that encounter as anything short of a termination.
{¶ 30} This court has determined that the need to investigate the nature of
the injured worker’s separation from employment is eliminated when the injured
worker was already disabled when the separation occurred. State ex rel. Pretty
Products, Inc. v. Indus. Comm., 77 Ohio St.3d 5, 7, 670 N.E.2d 466 (1996), citing
State ex rel. Brown v. Indus. Comm., 68 Ohio St.3d 45, 48, 623 N.E.2d 55 (1993).
Surprisingly, and without any factual basis, this court has now departed from our
own precedential case law.
{¶ 31} Hildebrand maintains that he was fired by Jeffrey Wingate on June
9, 2009. The employer, the Industrial Commission, and a majority of this court
maintain that Hildebrand quit on June 9, 2009. The Industrial Commission
appears to be relying on a finding made by a hearing officer of a wholly separate
state agency, the Ohio Department of Job and Family Services, who determined
that Hildebrand had quit for undisclosed personal reasons and was not eligible for
11
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unemployment-compensation benefits. When did the Industrial Commission of
Ohio establish a practice of abdicating its fact-finding duties to a hearing officer
who had considered only whether a person was eligible for unemployment-
compensation benefits and whose decision was not yet final? The majority
opinion denying Hildebrand’s eligibility for temporary-total-disability
compensation turns on the fact that Hildebrand failed to demonstrate that his loss
of earnings was due to the injury he sustained on June 3, 2009. But regardless of
whether Hildebrand quit or was fired on June 9, 2009, the fact is that Hildebrand’s
workplace injury predated his separation from employment. That fact is
undisputed. Thus, under Pretty Products, an investigation into the nature of
Hildebrand’s separation is not relevant to a determination of temporary total
disability. The outcome here undermines the no-fault nature of our workers’
compensation system in Ohio.
{¶ 32} Workers’ compensation in Ohio is the result of an agreement and
compromise between employers and employees. The reality is that unintended
injuries happen in the workplace. Injured workers need medical treatment and
wages while they heal, not to mention a job to return to. Nobody is served when a
business is forced to close because it cannot afford to pay to defend a lawsuit that
arises when an employee is injured at work. Ohio’s system of workers’
compensation flows from Article II, Section 35 of the Ohio Constitution. In its
simplest terms, employers agreed to pay premiums to the state insurance fund.
Workers agreed not to sue when they became injured at work. It is the Ohio
Constitution that authorizes Ohio’s workers’ compensation statutes and
administrative rules.
{¶ 33} The agreement is simple but, as the ocean of caselaw demonstrates,
it is not easy. R.C. 4123.95 states that workers’ compensation statutes are to be
liberally construed in favor of employees. This court has stated that the
requirement for liberal construction means that coverage decisions should tilt in
12
January Term, 2015
favor of awarding benefits. Fisher v. Mayfield, 49 Ohio St.3d 275, 278, 551
N.E.2d 1271 (1990). Workers’ compensation is heavily regulated by statute and
administrative rule. Certainly courts, and this court in particular, are crucial
components in the system to resolve questions regarding the application and
interpretation of statutes and rules. However, the concept of voluntary
abandonment is purely a judicial construct that should be applied sparingly, if
ever. And I would hold as a matter of law that you are not quitting your job when
you are summarily marched off the premises of your employer by a police officer.
I dissent.
___________________
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Theodore A.
Bowman, and Gretchen T.H. Esselstein, for appellant.
Michael DeWine, Attorney General, and Andrew J. Alatis, Assistant
Attorney General, for appellee Industrial Commission.
Barno Law, L.L.C., John C. Barno, Melissa A. Black, and Jamison S.
Speidel, for appellee Wingate Transport, Inc.
___________________
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