[Cite as State ex rel. Klein v. Precision Excavating & Grading Co., 2017-Ohio-1020.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. John Klein, :
Relator, :
v. : No. 15AP-908
Precision Excavating & Grading Co., : (REGULAR CALENDAR)
and Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on March 21, 2017
On brief: Richard L. Williger Co., LPA, and Richard L.
Williger, for relator.
On brief: Michael DeWine, Attorney General, and
LaTawnda N. Moore, for respondent Industrial Commission
of Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, John Klein, has filed a request for a writ of mandamus ordering
respondent Industrial Commission of Ohio ("commission") to vacate the April 21, 2015
order of its staff hearing officer that grants temporary total disability ("TTD")
compensation for the closed period of November 6 through 19, 2014, but denies TTD
compensation beginning November 20, 2014 based on a finding that relator has
voluntarily abandoned his employment, and to enter an order that awards TTD
compensation absent the finding that relator voluntarily abandoned his employment.
No. 15AP-908 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends to
this court the granting of a limited writ of mandamus, with instructions.
{¶ 3} The magistrate found the commission abused its discretion in determining
that relator voluntarily abandoned his employment on November 20, 2014 without
determining whether relator remained medically unable to return to his former position
of employment on that same date. Finding State ex rel. Reitter Stucco, Inc. v. Indus.
Comm., 117 Ohio St.3d 71, 2008-Ohio-499, to be dispositive, the magistrate found that
"this case hinges on the question of whether relator medically remained unable to return
to his former position of employment beginning November 20, 2014 [and that] [t]he
commission did not fully evaluate Dr. Marley's Medco-14 because it believed that relator
was ineligible for TTD compensation as of November 20, 2014." (Appended Magistrate's
Decision at ¶ 51.)
{¶ 4} The magistrate recommended a limited writ of mandamus and ordered:
On remand, if the commission determines that the medical
evidence on which it relies establishes that relator remained
unable to return to his former position of employment on
November 20, 2014, it shall enter an order finding that relator
did not voluntarily abandon his employment, and that he is
entitled to further TTD compensation. On the other hand, if,
on remand, the commission determines that the medical
evidence on which it relies establishes that relator was able to
return to his former position of employment as of
November 20, 2014, it shall enter an order that relator
became ineligible for TTD compensation as of November 20,
2014.
(Appended Magistrate's Decision at ¶ 52.)
{¶ 5} The commission has filed the following objection to the magistrate's
decision:
The Magistrate erred in granting a limited writ of mandamus
pursuant to State ex rel. Reitter Stucco, Inc. v. Indus.
Comm., 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861
because, under State ex rel. Hildebrand v. Wingate
Transport Inc., 16 N.E.3 798, 2015-Ohio-167, as the
commission had some evidence that Klein abandoned his
employment for reasons unrelated to his industrial injury.
No. 15AP-908 3
{¶ 6} The commission does not challenge the magistrate's findings of fact, but,
rather, challenges his application of law to the facts. The commission argues that Reitter
Stucco does not apply because in Reitter Stucco the claimant's loss of employment was
employer-initiated. Whereas in the case before us, relator's loss of employment was
worker-initiated. The commission suggests this court consider and apply State ex rel.
Hildebrand v. Wingate Transport, Inc., 141 Ohio St.3d 533, 2015-Ohio-167.
{¶ 7} In Reitter Stucco, Tony A. Mayle, the injured worker, had surgery and
undertook physical therapy. Although Mayle was a conscientious and dedicated
participant in physical therapy and his goal was to improve enough to return to his former
position of employment, his vocational team was unsure whether he would ever be
capable of the physical demands of his former position of employment on a sustained
basis. During this time, Reitter Stucco had been paying Mayle wages in lieu of TTD
compensation. Nevertheless, Reitter Stucco stopped paying Mayle wages after he was
fired for making comments about the company president. Mayle then applied for TTD
compensation which the commission ultimately granted. The Supreme Court of Ohio
denied Reitter Stucco's request for a writ of mandamus. The Supreme Court relied on the
precedent it had set in State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5
(1996), and determined that "even if a termination satisfies all three Louisiana-Pacific
criteria for being a voluntary termination, eligibility for [TTD] compensation remains if
the claimant was still disabled at the time the discharge occurred." Reitter Stucco at ¶ 10,
citing State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995).
The Supreme Court further stated that if the criteria of Louisiana-Pacific is satisfied,
suggesting that the termination was voluntary, "there must be consideration of whether
the employee was still disabled at the date of termination." Id. at ¶ 11. The Supreme
Court concluded that Louisiana-Pacific and Pretty Prods. are not mutually exclusive and
they may both factor into the eligibility analysis.
{¶ 8} In Hildebrand, Brian J. Hildebrand, Jr., the injured worker, returned to
work with a physician's note restricting him to modified duty. The employer spoke with
Hildebrand to confirm he could return to light-duty work and, during the course of the
conversation, the employer asked Hildebrand to return the keys to the vehicle the
employer had previously loaned to him. According to the employer:
No. 15AP-908 4
Hildebrand became agitated and asked if he was being fired.
[The employer] replied that he was not fired, but that it was
time for him to stop using [the employer's] Jeep. Hildebrand
became upset and began loading tools and equipment into the
pickup truck of an owner-operator who drove for [the
employer]. [The employer] returned to the work site and
asked Hildebrand to stop so that he could identify the items
being taken. When Hildebrand refused, [the employer] called
the police. Hildebrand eventually cooperated with the police
officers who responded, unloaded the items, and left the
premises.
Id. at ¶ 6. The commission denied Hildebrand's request for TTD compensation on the
basis that he had voluntarily quit his former position of employment and had not re-
entered the workforce. The commission further found that the employer had been
"ready, willing and able to offer light-duty employment" within Hildebrand's physical
capabilities. Id. at ¶ 8. The Supreme Court denied Hildebrand's request for a writ of
mandamus. The court began by noting that Hildebrand "does not appeal the finding
that he voluntarily quit his job for reasons unrelated to his industrial injury." Id. at ¶ 14.
The Supreme Court concluded:
Because Hildebrand failed to demonstrate that his loss of
earnings was due to the industrial injury, he did not meet that
requirement for receiving [TTD] compensation.
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
[TTD] compensation.
Id. at ¶ 21-22. The court further noted that Hildebrand could be distinguished from
Pretty Prods. and similar cases that followed because in those cases each injured worker
was already receiving TTD compensation when terminated from their 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).
No. 15AP-908 5
{¶ 9} The facts in the case before us are distinguishable from the facts in both
Reitter Stucco and Hildebrand. Accordingly, it is difficult to determine which precedent
should apply here. We do note, however, that here, as in Reitter Stucco, the injured
worker had not yet returned to work on the date he departed for Florida, November 20,
2014. Dr. Marley indicated on the Medco-14 that the "[i]njured worker is temporarily not
released to any work, including the former position of employment from (date):
11/5/2014 to 1/5/2015." (Stip. of Evidence, ex. 5 at 2.) In Hildebrand, on the other hand,
the injured worker had returned to work, albeit in a restricted capacity. Furthermore,
here, relator had already been receiving TTD compensation, as it was approved for the
period November 6 through 19, 2014. Therefore, a determination had already been made
that relator was disabled as a result of an industrial injury.
{¶ 10} In Pretty Prods., the court held:
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
* * *, 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.
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 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 * * *.
(Emphasis added.) Id. at 6-7.
{¶ 11} The Supreme Court recently reiterated this principle in State ex rel. Cordell
v. Pallet Cos., Inc., __ Ohio St.3d __, 2016-Ohio-8446. In Cordell, the injured worker,
James F. Cordell, was injured on the job and taken to a hospital. At the hospital, a urine
sample was collected and sent for toxicology screening. Cordell applied for TTD the
following day. Six days later, the toxicology results showed that Cordell tested positive for
No. 15AP-908 6
marijuana in violation of the employer's workplace policy. The employer terminated
Cordell. Subsequently, the commission ultimately denied Cordell's request for TTD
compensation, finding that "prior to the industrial injury [Cordell] voluntarily abandoned
his employment" by using marijuana. Id. at ¶ 8. Cordell requested a writ of mandamus.
The Supreme Court granted the writ and held:
[P]ursuant to R.C. 4123.54 and 4123.56 and our decisions in
[State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249,
2007-Ohio-4916] II and Reitter Stucco, an employee who is
medically incapable of returning to work as a result of a
workplace injury and who is terminated after the injury for
preinjury conduct that was discovered as a result of the injury
has not voluntarily abandoned employment.
(Emphasis added.) Id. at ¶ 22.
{¶ 12} The case before us differs from Cordell in that relator herein did not violate
a workplace policy prior to his industrial injury. Nevertheless, in Cordell, the court noted
that "[t]here is no dispute that Cordell was injured while working for Pallet. Cordell's
use of marijuana was not the proximate cause of his injury. When Cordell was
terminated by Pallet, he had not returned to work, he had not been released by his
doctor to return to work, he had not reached maximum medical improvement, and he
was physically incapable of returning to work. Accordingly, under R.C. 4123.54 and
4123.56, Cordell was entitled to TTD benefits." Id. at ¶ 34.
{¶ 13} We note that the Supreme Court stated that Cordell is a case "about
termination for violation of a work rule when the violation occurs before the injury and
is discovered as a result of the injury." Id. at ¶ 36. That is not the situation we have
here. Nevertheless, the facts which the Supreme Court found relevant to its
determination in Cordell are also found in this case: (1) there is no dispute that relator
was injured while working for respondent Precision Excavating & Grading Co.,
(2) relator's departure for Florida was not the proximate cause of his injury, (3) relator
had not been released by his doctor to return to work, and (4) there was no indication
that relator had reached maximum medical improvement. However, the commission
did not consider whether relator was physically incapable of returning to work. To treat
relator differently from Cordell would result in a precedent that claimants who violate
workplace policies prior to injury are treated more favorably than claimants who did
No. 15AP-908 7
not. Given the Supreme Court's precedent in Pretty Prods. and Reitter Stucco, we do
not construe the Supreme Court's precedent in Cordell as intending such a result. To
reiterate, as the Supreme Court did in Cordell, " ' "[a] claimant can abandon a former
position or remove himself or herself from the workforce only if he or she has the physical
capacity for employment at the time of the abandonment or removal." ' " Id. at ¶ 29,
quoting Pretty Prods. at 7, quoting State ex rel. Brown v. Indus. Comm., 68 Ohio St.3d
45, 48 (1993). Such principle is also consistent with the mandate in R.C. 4123.95 to
liberally construe workers' compensation statutes in favor of employees. Accordingly,
the commission must determine whether relator herein remained medically unable to
return to his former position of employment beginning November 20, 2014.
{¶ 14} On review of the magistrate's decision, an independent review of the record,
and due consideration of the commission's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
the commission's objection to the magistrate's decision and adopt the magistrate's
decision, as modified herein, as our own, including the findings of fact and conclusions of
law contained therein. Accordingly, a limited writ of mandamus is hereby granted. On
remand, if the commission determines that the medical evidence on which it relies
establishes that relator remained unable to return to his former position of employment
on November 20, 2014, it shall enter an order finding that relator did not voluntarily
abandon his employment, and that he is entitled to further TTD compensation. On the
other hand, if, on remand, the commission determines that the medical evidence on
which it relies establishes that relator was able to return to his former position of
employment as of November 20, 2014, it shall enter an order that relator became
ineligible for TTD compensation as of November 20, 2014.
Objection overruled;
limited writ of mandamus granted.
TYACK, P.J., and BROWN, J., concur.
No. 15AP-908 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. John Klein, :
Relator, :
v. : No. 15AP-908
Precision Excavating & Grading Co., : (REGULAR CALENDAR)
and
Industrial Commission of Ohio, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on September 23, 2016
Richard L. Willinger Co., LPA, and Richard L. Willinger, for
relator.
Michael DeWine, Attorney General, and LaTawnda N.
Moore, for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 15} In this original action, relator, John Klein, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission"), to vacate the
April 21, 2015 order of its staff hearing officer ("SHO") that grants temporary total
disability ("TTD") compensation for the closed period November 6 through November 19,
2014, but denies TTD compensation beginning November 20, 2014, based on a finding
that relator voluntarily abandoned his employment, and to enter an order that awards
TTD compensation absent the finding that relator voluntarily abandoned his employment
on November 20, 2014.
No. 15AP-908 9
Findings of Fact:
{¶ 16} 1. On November 5, 2014, relator fractured two ribs while employed as a
laborer for respondent, Precision Excavating & Grading Co. ("Precision Excavating"), a
state-fund employer.
{¶ 17} 2. On the date of injury, relator was admitted to the "Trauma Surgery
Service" at Akron General Health System. Relator was discharged from the hospital six
days later on November 11, 2014. At the hospital, relator was under the care of Robert A.
Marley, M.D. The hospital "Discharge Summary" reports:
HISTORY OF PRESENT ILLNESS: This is a 52-year-old
male, status post fall from an ATV. The patient stated he hit
his right side after falling off the ATV. He denied hitting his
head, and he denied any loss of consciousness. He
complained of right-sided chest pain on arrival to the
emergency department. Chest x-ray showed fourth and fifth
right-sided rib fractures, with a hemopneumothorax on the
right-hand side. A right-sided chest tube was placed in the
emergency department, and the patient was admitted to the
general surgery floor for further observation.
BRIEF HOSPITAL COURSE: On hospital day #1, the
patient's pain was controlled with oral pain medication. He
was tolerating a regular diet. The patient was using his
incentive spirometer appropriately and ambulating well. The
following day, chest x-ray showed a larger pneumothorax,
and the chest tube was placed to negative 40 suction. He was
continued on his regular diet. Pain Management adjusted his
pain medications throughout his hospital stay to make him
comfortable. Chest tube was placed back to negative 20
suction on 11/09/2014, and put on waterseal the following
day. The chest tube was able to be removed on 11/11/2014.
Follow-up x-rays showed no appreciable pneumothorax. The
patient was able to be discharged on that day, without any
further need for an inpatient hospital stay. The patient's pain
was controlled with oral medication and he was tolerating a
regular diet, and he was ambulating very well. He was using
his incentive spirometer appropriately and he was sent home
with this device, with breathing at home.
{¶ 18} 3. The hospital discharge summary states that relator was instructed to
follow-up with Dr. Marley in one to two weeks.
{¶ 19} 4. Apparently, relator did follow-up with Dr. Marley on November 20, 2014.
No. 15AP-908 10
{¶ 20} 5. On December 4, 2014, Dr. Marley completed a form provided by the
Ohio Bureau of Workers' Compensation ("bureau"). The form is captioned "Physician's
Report of Work Ability" and is designated by the bureau as a Medco-14.
{¶ 21} The Medco-14 asks the treating physician to indicate disability by marking a
box beside the pre-printed statement: "Injured worker is temporarily not released to any
work, including the former position of employment from (date): 11/5/2014 to 1/5/2015."
{¶ 22} Although Dr. Marley failed to mark the box, he indicated in the spaces
provided that the disability period is from November 5, 2014 to January 5, 2015.
{¶ 23} 6. The industrial claim (No. 14-857779) is allowed for "non-displaced
anterior 4th and 5th rib fracture, right."
{¶ 24} 7. It is undisputed that the last date that relator worked at Precision
Excavating was the date of injury.
{¶ 25} 8. Earlier, as noted in the commission's orders at issue, Ms. Kendall, the
controller for Precision Excavating, testified at hearing that relator called her on
October 31, 2014 and stated that he was moving to Florida, and asked her what the
procedures were for quitting his job. Ms. Kendall did not receive a written resignation
from relator, but his last date of work was November 5, 2014.
{¶ 26} 9. The record contains the notarized statement of Rodney Myers who was
relator's co-worker at Precision Excavating. Myers states:
On Monday November 3, John Kline [sic] let me know that
he was going to work two more weeks then was qitting [sic]
work to go to Florida.
{¶ 27} 10. The record also contains the notarized statement of Dawn R. Withem,
another co-worker of relator. Withem states: "When I took John Klein to the hospital on
Wednesday, November 5th, 2014, he told me that he had recently turned his two week
notice in to go to Florida to live with his mother."
{¶ 28} 11. The record contains chronological notations authored by relator's
managed care organization's nurse, Lori Biddinger, R.N. On November 11, 2014,
Biddinger noted that she had spoken with "Melissa" at Precision Excavating, and that
Melissa had stated "there is light duty available and she can accommodate restrictions."
No. 15AP-908 11
{¶ 29} 12. On November 13, 2014, Biddinger wrote: "[Injured Worker] stated he
plans on moving to Florida 11/20/14. His mother lives there. His son is going to drive him
there. He will ask Dr. Marley for a referral for a BWC certified doctor in Florida."
{¶ 30} 13. On November 21, 2014, Biddinger wrote that she had spoken to relator
by telephone to give relator the name and telephone number of a bureau certified
physician whose office is located in Bradenton, Florida.
{¶ 31} 14. On November 24, 2014, Biddinger indicated that relator "has relocated
to Florida."
{¶ 32} 15. On December 30, 2014, relator moved for TTD compensation beginning
November 6, 2014 based on the December 4, 2014 Medco-14 completed by Dr. Marley.
{¶ 33} 16. Following a February 18, 2015 hearing, a district hearing officer
("DHO") issued an order awarding TTD compensation for the closed period November 6
through November 19, 2014, but denying TTD compensation beginning November 20,
2014 based on a finding that relator had voluntarily abandoned his employment at
Precision Excavating on November 20, 2014. The DHO's order explains:
This Hearing Officer finds that Injured Worker voluntarily
terminated his employment on or about 11/20/2014 for
reasons unrelated to the injuries he sustained in this claim.
This finding is based upon Injured Worker's testimony at
today's hearing. Injured Worker testified that he had plans to
move to Florida before his workplace accident on
11/05/2014. He stated that he was moving because the
weather is better in Florida than in Ohio and there are more
job opportunities in Florida. Injured Worker could not
provide the actual date he moved to Florida. However,
Bureau of Workers' Compensation notes dated 11/13/2014
state that Injured Worker informed them that he was moving
to Florida on 11/20/2014. Further Ms. Kendall, the
controller for the employer, testified that Injured Worker
called her on 10/31/2014 and stated that he was moving to
Florida and asked her what the proper procedures were for
quitting his job. Ms. Kendall stated that she did not receive a
written resignation from the Injured Worker and confirmed
that the last day he worked for the named employer
was 11/05/2014.
This order is based on the MEDCO-14 filed on 12/04/2014
signed by Robert Marley, M.D.
No. 15AP-908 12
{¶ 34} 17. Relator administratively appealed the DHO's order of February 18,
2015.
{¶ 35} 18. Following an April 21, 2015 hearing, an SHO issued an order that
affirms the DHO's order of February 18, 2015. The SHO's order explains:
The Hearing Officer finds that the District Hearing Officer
order issued 02/25/2015, is affirmed.
The C-84 Request for Temporary Total Compensation filed
by the Injured Worker on 12/30/2014, is granted to the
extent of this order.
As indicated in the District Hearing Officer's order the
Injured Worker is to be granted the payment of temporary
total compensation for a closed period from 11/06/2014
through 11/19/2014 inclusive.
As indicated in the District Hearing Officer's order the
Hearing Officer finds that the Injured Worker voluntarily
terminated his employment with the instant Employer on
11/20/2014, for reasons unrelated to the injuries he
sustained in this matter.
The District Hearing Officer at her hearing indicated that at
that time, when he was unrepresented, he indicated to her
that he planned to move to Florida before his work place
accident on 11/05/2014. At the District Hearing Officer
hearing he stated that he was moving because of the weather
is better in Florida and that his family was down there and
also more job opportunities in that state.
At the District Hearing Officer hearing, he indicated that he
did not tell the Hearing Officer what was just stated and also
did not tell the comptroller Ms. Kendall that he was moving
to Florida, contrary to what Ms. Kendall indicated at the
Staff Hearing Officer's hearing.
M[s]. Kendall had indicated that she was called on
10/31/2014, by the Injured Worker, prior to the injury date
of 11/05/2014, indicating that he was going to terminate his
employment and asked the procedure on how to do that. The
Injured Worker's last day worked was the date of injury
11/05/2014.
The Hearing Officer finds that the Injured Worker's
testimony that he did not inform the comptroller of the
No. 15AP-908 13
Employer that he was going to quit his employment and
move to Florida on a permanent basis is not well taken as the
Hearing Officer was explicit in her indication of what the
Injured Worker stated at hearing.
The Injured Worker's statements at the Staff Hearing
Officer's hearing were not well taken and changed to an
extent that the Staff Hearing Officer chose not to rely upon
the Injured Worker's testimony.
This order granting limited payment of temporary total
compensation is based on the MEDCO-14 Physician's Report
of Work Ability dated 12/04/2014, by Robert Marley, M.D.
{¶ 36} 19. On May 28, 2015, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of April 21, 2015.
{¶ 37} 20. On June 13, 2015, the three-member commission mailed an order
denying relator's request for reconsideration.
{¶ 38} 21. On September 29, 2015, relator, John Klein, filed this mandamus
action.
Conclusions of Law:
{¶ 39} The issue is whether the commission abused its discretion in determining
that relator voluntarily abandoned his employment with Precision Excavating on
November 20, 2014 and, therefore, is ineligible for TTD compensation beginning
November 20, 2014.
{¶ 40} Finding that the commission abused its discretion in determining that
relator voluntarily abandoned his employment on November 20, 2014, it is the
magistrate's decision that this court issue a writ of mandamus, as more fully explained
below.
{¶ 41} State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-
Ohio-499, is dispositive, and requires that this court issue a writ of mandamus.
{¶ 42} In 2003, Tony A. Mayle injured his back while employed with Reitter
Stucco, Inc. Over the next several months, Mayle's symptoms did not improve, and
surgery was recommended. That operation was performed on July 12, 2004.
{¶ 43} After surgery, Mayle undertook physical therapy, and a work-conditioning
program. Relevant documentation reveals that Mayle was a conscientious and dedicated
No. 15AP-908 14
participant. The documents indicate that Mayle's goal was to improve enough to return to
his former position of employment at Reitter Stucco. His vocational team, however, was
unsure whether Mayle would ever be capable of performing the heavy physical demands
of that job on a sustained basis.
{¶ 44} On April 15, 2005, Mayle was fired for comments he made about the
company's president. Prior to that time, Reitter Stucco had been paying him wages in lieu
of temporary total disability compensation. The payments stopped after the termination,
prompting Mayle to file a motion with the commission for TTD compensation.
{¶ 45} A DHO denied Mayle's motion finding that Mayle's termination constituted
a voluntary abandonment of the former position of employment under State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995). An SHO reversed,
finding that Mayle was temporarily and totally disabled when he was fired, rendering
State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996), not Louisiana-
Pacific, controlling. The commission affirmed that order.
{¶ 46} Reitter Stucco filed a complaint for a writ of mandamus in this court. This
court upheld the commission decision, and the company appealed as of right to the
Supreme Court of Ohio.
{¶ 47} In affirming this court's judgment, the Supreme Court explained:
Pretty Prods. was decided shortly after Louisiana-Pacific. In
Pretty Prods., we held that the character of the employee's
departure -- i.e., voluntary versus involuntary -- is not the
only relevant element and that the timing of the termination
may be equally germane. In Pretty Prods., we suggested that
a claimant whose departure is deemed voluntary does not
surrender eligibility for temporary total disability
compensation if, at the time of departure, the claimant is still
temporarily and totally disabled. [Citations Omitted.] Thus,
even if a termination satisfies all three Louisiana-Pacific
criteria for being a voluntary termination, eligibility for
temporary total disability compensation remains if the
claimant was still disabled at the time the discharge
occurred.
The present litigants treat the two cases as mutually
exclusive, with the company urging that Louisiana-Pacific is
dispositive and Mayle and the commission citing Pretty
Prods. Yet Louisiana-Pacific and Pretty Prods. may each
factor into the eligibility analysis. If the three requirements
No. 15AP-908 15
of Louisiana-Pacific regarding voluntary termination are not
met, the employee's termination is deemed involuntary, and
compensation is allowed. If the Louisiana-Pacific three-part
test is satisfied, however, suggesting that the termination is
voluntary, there must be consideration of whether the
employee was still disabled at the date of termination. We
thus take this opportunity to reiterate that Louisiana-Pacific
and Pretty Prods. are not mutually exclusive and that they
may both factor into the eligibility analysis.
We affirm the judgment of the court of appeals, which held
in favor of Mayle and the commission. No one disputes that
Mayle was medically incapable of returning to his former
position of employment at the time of his discharge. Mayle's
eligibility for temporary total disability compensation
accordingly remains intact.
Id. at 73.
{¶ 48} Here, analysis begins with the observation that the commission, through its
hearing officer, relied on the December 4, 2014 Medco-14 report of Dr. Marley. In his
report, Dr. Marley certified that relator was temporarily unable to return to any work
including the former position of employment for the period beginning the date of injury
November 5, 2014 to January 5, 2015, a period of 90 days.
{¶ 49} While the commission relied on Dr. Marley's report to award TTD
compensation for the period November 6 through November 19, 2014, it refused to grant
compensation beyond November 19, 2014 because it determined that relator had
voluntarily abandoned his employment on November 20, 2014. Significantly, the
commission did not end the award at November 19, 2014 due to any problem with Dr.
Marley's report.
{¶ 50} Clearly, under Reitter Stucco, if relator remained temporarily and totally
disabled on November 20, 2014, by law, he was unable to voluntarily abandon his
employment at Reitter Stucco.
{¶ 51} Thus, this case hinges on the question of whether relator medically
remained unable to return to his former position of employment beginning November 20,
2014. The commission did not fully evaluate Dr. Marley's Medco-14 because it believed
that relator was ineligible for TTD compensation as of November 20, 2014.
No. 15AP-908 16
{¶ 52} On remand, if the commission determines that the medical evidence on
which it relies establishes that relator remained unable to return to his former position of
employment on November 20, 2014, it shall enter an order finding that relator did not
voluntarily abandon his employment, and that he is entitled to further TTD
compensation. On the other hand, if, on remand, the commission determines that the
medical evidence on which it relies establishes that relator was able to return to his
former position of employment as of November 20, 2014, it shall enter an order that
relator became ineligible for TTD compensation as of November 20, 2014.
/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).
State ex rel. Klein v. Precision Excavating & Grading Co.
Combined Opinion