State ex rel. Pretty Products, Inc. v. Indus. Comm.

[This opinion has been published in Ohio Official Reports at 77 Ohio St.3d 5.]

THE STATE EX REL. PRETTY PRODUCTS, INC., APPELLANT, v. INDUSTRIAL

COMMISSION OF OHIO ET AL., APPELLEES.

[Cite as State ex rel. Pretty Products, Inc. v. Indus. Comm., 1996-Ohio-132.]

Workers’ compensation—Application for temporary total disability

compensation—Finding by Industrial Commission that claimant did not

voluntarily abandon position of employment—Order remanded to

commission by Supreme Court for further explanation and clarification

when order is vague.

(No. 94-1845—Submitted July 24, 1996—Decided October 23, 1996.)

APPEAL from the Court of Appeals for Franklin County, No. 93APD05-682.

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{¶ 1} On two different occasions, appellee-claimant, Maxine Dansby,

injured her low back in the course of and arising from her employment for

appellant-relator, Pretty Products, Inc., a self-insured employer. The first incident

occurred in February 1990. Relator states that it certified the claim, which was

allowed for “sprain/strain lumbosacral.” After a period of absence from work,

claimant returned to her job at Pretty Products, Inc.

{¶ 2} On November 8, 1990, claimant again left work and went to the

hospital because of low back pain. Claimant saw her attending physician, Dr.

Alfred H. Magness, for treatment. In a series of medical excuse slips, Dr. Magness

certified that claimant was unable to return to her former job. The last of these

medical slips certified that claimant could return to work on March 1, 1991.

{¶ 3} Claimant did not return to work on Friday, March 1, 1991, nor did she

then produce an excuse slip that extended her disability. Claimant did not report to

work on the following Monday or Tuesday, and, consequently, she was terminated

pursuant to a provision in the union/management agreement. Relator states that

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although claimant eventually contacted her union representative about filing a

grievance to challenge her discharge, claimant did not file a grievance because it

would have been considered untimely.

{¶ 4} In June 1991, claimant moved appellee Industrial Commission for

temporary total disability (“TTD”) compensation beginning November 8, 1990,

based on the first claim. In support of the motion, she submitted a June 8, 1991 C-

84 “Physician’s Report Supplemental” that was based on an April 26, 1991 exam

and that certified claimant as temporarily totally disabled beginning November 8,

1990, to an estimated return-to-work date of August 1, 1991.

{¶ 5} In August 1991, claimant filed a second workers’ compensation claim

alleging that she had injured her low back, neck and shoulders on November 8,

1990. Relator refused to certify this claim, however, contending that it was a

“reoccurrence” of the first claim. In October, claimant filed a motion in the second

claim requesting TTD compensation from November 8, 1990. Claimant

alternatively requested wage loss compensation in the event that TTD

compensation was denied. On November 25, 1991, a district hearing officer heard

the allowance and wage compensation issues of the second claim, and issued an

order allowing claimant’s back injury as an “aggravation [of] pre-existing

lumbosacral sprain/strain.” Finding that claimant’s discharge constituted a

voluntary abandonment of her former position of employment, the district hearing

officer denied both TTD and wage loss compensation beyond March 4, 1991. The

regional board of review affirmed the district hearing officer’s order in the second

claim. On further appeal by claimant, staff hearing officers modified the district

hearing officer’s order “to the extent that Temporary Total Disability compensation

is payable from 3/5/91 to [sic] and to continue based on submission of medical

proof. It is found that the claimant did not voluntarily abandon her former position

of employment on 3/4/91 for the reason that she did not timely submit an excuse

slip from her doctor.” Relator’s motion for reconsideration was denied.

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January Term, 1996

{¶ 6} Relator filed a complaint in mandamus in the Court of Appeals for

Franklin County, alleging that the commission had abused its discretion in

awarding TTD compensation beyond March 5, 1991. The court of appeals upheld

the staff hearing officers’ findings and denied the writ.

{¶ 7} This cause is now before this court upon an appeal as of right.

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Emens, Kegler, Brown, Hill & Ritter and Ronald L. Mason, for appellant.

Betty D. Montgomery, Attorney General, and Cheryl J. Nester, Assistant

Attorney General, for appellee Industrial Commission.

Larrimer & Larrimer, Terrence W. Larrimer and David H. Swanson, for

appellee Maxine Dansby.

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MOYER, C.J.

{¶ 8} This case presents the question of whether the Industrial Commission

abused its discretion by finding that the claimant did not voluntarily abandon her

position of employment, and that further temporary total disability compensation

should be awarded. Because of the vagueness of the commission’s order, we must

remand for further explanation and clarification of the reasoning supporting that

order.

{¶ 9} The receipt of temporary total disability (“TTD”) compensation rests

on a claimant’s inability to return to his or her former job as a direct result of an

industrial injury. State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630,

23 O.O.3d 518, 433 N.E.2d 586, syllabus. However, eligibility may be

compromised when the claimant is no longer employed at that job. Once a claimant

is separated from the former position of employment, future TTD compensation

eligibility hinges on the timing and character of the claimant’s departure.

{¶ 10} The timing of a claimant’s separation from employment can, in some

cases, eliminate the need to investigate the character of departure. For this to occur,

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it must be shown that the claimant was already disabled when the separation

occurred. “[A] claimant can abandon a former position or remove himself or

herself from the work force only if he or she has the physical capacity for

employment at the time of the abandonment or removal.” State ex rel. Brown v.

Indus. Comm. (1993), 68 Ohio St.3d 45, 48, 623 N.E.2d 55, 58.

{¶ 11} However, such situations are not common, and inquiry into the

character of departure is the norm. While voluntary departure generally bars TTD

compensation, an involuntary departure does not. State ex rel. Rockwell Internatl.

v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. In the instant case, the

commission found that claimant’s departure was involuntary. Review of the

commission’s order, however, is hindered because it is susceptible of several

different interpretations.

{¶ 12} For example, one possible interpretation of the commission’s

statement that “claimant did not voluntarily abandon her former position of

employment on 3/4/91 for the reason that she did not timely submit an excuse slip

from her doctor” could be that the separation was not voluntary because firings are

per se involuntary. If this is indeed the commission’s reasoning, it is wrong. As

this court has recently held, the underlying facts and circumstances of each case

determine whether a departure by firing may be voluntary or involuntary. State ex

rel. Smith v. Superior’s Brand Meats, Inc. (1996), 76 Ohio St.3d 408, 411, 677

N.E.2d 1217, 1219.

{¶ 13} Another possible reading of the commission’s order is that the

commission modified the district hearing officer’s order based on the belief that

termination for unexcused absence could not support a finding of voluntary

abandonment. This, too, is incorrect. In State ex rel. Louisiana-Pacific Corp. v.

Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469, the claimant, as in the

present case, was fired for violating a policy prohibiting three consecutive

unexcused absences. We held that the claimant’s discharge was voluntary, stating,

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January Term, 1996

“we find it difficult to characterize as ‘involuntary’ a termination generated by the

claimant’s violation of a written work rule or policy that (1) clearly defined the

prohibited conduct, (2) had been previously identified by the employer as a

dischargeable offense, and (3) was known or should have been known to the

employee.” Id. at 403, 650 N.E.2d at 471. However, there is an important

distinction between Louisiana-Pacific and this case. In the former, there was no

evidence that the claimant’s absences were due to industrial injury, while in this

case there is. Whether this distinction is ultimately outcome-determinative,

however, cannot be decided absent clarification of the commission’s reasoning.

{¶ 14} A third possible interpretation of the commission’s order is that the

commission found that claimant had been fired because of her industrial injury. If

that indeed was the case, a finding of involuntary departure could be sustained.

Rockwell, supra. Again, however, without clarification, judicial review can

proceed no further.

{¶ 15} Given the possibility that any of these interpretations could reflect

the commission’s reasoning, the judgment of the court of appeals is reversed and

the cause is remanded to the commission for clarification.

Judgment reversed

and cause remanded.

RESNICK, PFEIFER, COOK and STRATTON, JJ., concur.

DOUGLAS and F.E. SWEENEY, JJ., dissent and would affirm the judgment of

the court of appeals.

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