The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Walmart, Inc. v. Hixson, Slip Opinion No. 2022-Ohio-4187.]
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. 2022-OHIO-4187
THE STATE EX REL . WALMART, INC., APPELLEE, v. HIXSON ET AL.,
APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Walmart, Inc. v. Hixson, Slip Opinion No. 2022-
Ohio-4187.]
Workers’ compensation—Our decision in State ex rel. Klein v. Precision
Excavating & Grading Co. applies prospectively only.
(No. 2021-1479—Submitted August 2, 2022—Decided November 30, 2022.)
APPEAL from the Court of Appeals for Franklin County, No. 19AP-323,
2021-Ohio-3802.
__________________
Per Curiam.
{¶ 1} Appellant Industrial Commission of Ohio awarded appellant Dianna
Hixson temporary-total-disability (“TTD”) compensation in 2018, before we issued
our decision in State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio
St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386. After we released Klein, Hixson’s
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former employer, appellee, Walmart, Inc., asked the Tenth District Court of
Appeals for a writ of mandamus ordering the commission to reverse its decision on
the basis of Klein. The Tenth District granted the writ, and the commission and
Hixson appealed.
{¶ 2} This case presents the question whether our decision in Klein applies
retroactively or prospectively only. Analyzing the three factors set forth in DiCenzo
v. A-Best Prods. Co., Inc., 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132,
paragraph two of the syllabus, we conclude that Klein applies prospectively only.
We therefore reverse the Tenth District’s judgment and deny the writ.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} Hixson sustained injuries when she fell while working for Walmart
on August 2, 2017. Her workers’ compensation claim was allowed for various
shoulder and wrist conditions. Hixson sought TTD compensation from September
11, 2017, through February 12, 2018, and continuing.
{¶ 4} A district hearing officer (“DHO”) denied the request, and Hixson
appealed. A staff hearing officer (“SHO”) vacated the DHO’s order and awarded
TTD compensation from September 11, 2017, through March 6, 2018, the date
Hixson notified Walmart of her retirement. The SHO found that Hixson’s
retirement was age-related and therefore constituted a voluntary abandonment of
her employment. Both Walmart and Hixson appealed the SHO’s order.
{¶ 5} The commission vacated the SHO’s order, denied Walmart’s appeal,
granted Hixson’s appeal, and awarded TTD compensation from September 11,
2017, through May 12, 2018, and continuing. Relying on State ex rel. Pretty
Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5, 670 N.E.2d 466 (1996), the
commission concluded that Hixson did not voluntarily abandon her employment on
March 6, 2018, because she was temporarily and totally disabled from her position
when she left her employment at Walmart.
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{¶ 6} The commission mailed its order on July 3, 2018. On September 27,
2018, we issued our decision in Klein, which overruled the portion of Pretty Prods.
that the commission had relied on. Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119
N.E.3d 386, at ¶ 30.
{¶ 7} On May 14, 2019, Walmart filed this mandamus action in the Tenth
District, seeking a writ ordering the termination of Hixson’s TTD compensation
after March 6, 2018. A magistrate recommended granting the writ, concluding that
under Klein, the commission had abused its discretion by awarding TTD
compensation for the period following Hixson’s retirement. 2021-Ohio-3802, 180
N.E.3d 1197, ¶ 2, 7. The Tenth District adopted the magistrate’s recommendation
and granted the writ. Id. at ¶ 26. The commission and Hixson appealed.
II. ANALYSIS
{¶ 8} The commission and Hixson ask us to reverse the Tenth District’s
judgment and hold that Klein applies prospectively only or, in the alternative, to
vacate the Tenth District’s judgment and grant a limited writ ordering the
commission to evaluate the facts of this case under Klein in the first instance.
A. Legal Standards
{¶ 9} In a direct appeal of a mandamus action originating in the court of
appeals, we review the judgment as if the action had been originally filed here.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 164, 228 N.E.2d 631
(1967). Walmart is entitled to a writ of mandamus if it shows by clear and
convincing evidence that it has a clear legal right to the requested relief, that the
commission has a clear legal duty to provide that relief, and that there is no adequate
remedy in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v.
Indus. Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, 184 N.E.3d 81, ¶ 10. When
an order of the commission “is adequately explained and based on some evidence,
there is no abuse of discretion and a reviewing court must not disturb the order.”
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State ex rel. Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 148 Ohio St.3d 34,
2016-Ohio-5011, 68 N.E.3d 757, ¶ 18.
B. Retrospective or Prospective Application of Klein
{¶ 10} We must determine whether Klein applies to Hixson’s TTD-
compensation claim, that is, whether Klein applies retrospectively or whether it
applies prospectively only. For the reasons below, we hold that Klein applies
prospectively only.
1. The Peerless exception
{¶ 11} The general rule is that a decision of this court overruling a prior
decision “is retrospective in its operation, and the effect is not that the former was
bad law, but that it never was the law.” Peerless Elec. Co. v. Bowers, 164 Ohio St.
209, 210, 129 N.E.2d 467 (1955). “The one general exception to this rule is where
contractual rights have arisen or vested rights have been acquired under the prior
decision.” Id. The exception does not apply here, because an award of TTD
compensation is not a vested right.
{¶ 12} “A ‘vested right’ can ‘be created by common law or statute and is
generally understood to be the power to lawfully do certain actions or possess
certain things; in essence, it is a property right.’ ” State ex rel. Jordan v. Indus.
Comm., 120 Ohio St.3d 412, 2008-Ohio-6137, 900 N.E.2d 150, ¶ 9, quoting
Washington Cty. Taxpayers Assn. v. Peppel, 78 Ohio App.3d 146, 155, 604 N.E.2d
181 (4th Dist.1992). “[A] right is ‘vested’ when it ‘so completely and definitely
belongs to a person that it cannot be impaired or taken away without the person’s
consent.’ ” Harden v. Ohio Atty. Gen., 101 Ohio St.3d 137, 2004-Ohio-382, 802
N.E.2d 1112, ¶ 9, quoting Black’s Law Dictionary 1324 (7th Ed.1999). To be
vested, a right must constitute “more than a ‘mere expectation or interest based
upon an anticipated continuance of existing laws.’ ” Jordan at ¶ 9, quoting In re
Emery, 59 Ohio App.2d 7, 11, 391 N.E.2d 746 (1st Dist.1978).
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January Term, 2022
{¶ 13} The commission argues that an award of TTD compensation is more
than a mere expectation or interest. However, even if that is true, a TTD-
compensation award is not a property right that can be taken away only with the
injured workers’ consent. As the Tenth District pointed out, a court may vacate an
award of TTD compensation in a mandamus action. 2021-Ohio-3802, 180 N.E.3d
1197, at ¶ 12. Moreover, the commission retains continuing jurisdiction over each
of its cases under R.C. 4123.52(A). “[T]he commission may make such
modification or change with respect to former findings or orders with respect
thereto, as, in its opinion is justified,” R.C. 4123.52(A), if the commission finds the
existence of a clear mistake of law or fact, new or changed circumstances, fraud, or
error by an inferior tribunal, State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d
175, 2020-Ohio-1453, 155 N.E.3d 812, ¶ 11. The commission itself could,
therefore, also revoke or modify an award of TTD compensation without the injured
workers’ consent. Hixson’s award of TTD compensation was not a vested right.
2. The DiCenzo Factors
{¶ 14} Although the “vested rights” exception, outlined in Peerless, 164
Ohio St. 209, 210, 129 N.E.2d 467, to the general rule that a decision applies
retrospectively does not apply here, we nonetheless retain discretion to apply Klein
prospectively only:
[A]n Ohio court has discretion to apply its decision only
prospectively after weighing the following considerations: (1)
whether the decision establishes a new principle of law that was not
foreshadowed in prior decisions; (2) whether retroactive application
of the decision promotes or retards the purpose behind the rule
defined in the decision; and (3) whether retroactive application of
the decision causes an inequitable result.
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DiCenzo, 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, at ¶ 25.
{¶ 15} The commission and Hixson argue that we indicated in Klein that
the judgment in that case should apply prospectively only. We stated in Klein, “Our
holding today forecloses any continued reliance on [the overruled statement in
Pretty Prods., 77 Ohio St.3d 5, 670 N.E.2d 466] in future temporary-total-disability
cases.” (Emphasis added.) Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d
386, at ¶ 30.
{¶ 16} Walmart counters—and the Tenth District agreed—that when we
have intended a decision to apply prospectively only, we have said so in more
explicit terms that have included some form of the word “prospective.” 2021-Ohio-
3802, 180 N.E.3d 1197, at ¶ 19. The Tenth District and Walmart are correct that
we are usually direct when limiting the application of our decisions. See, e.g., In
re LMD Integrated Logistic Servs., Inc., 155 Ohio St.3d 137, 2018-Ohio-3859, 119
N.E.3d 1250, ¶ 27-29 (plurality opinion) (expressly discussing the DiCenzo
factors); Beaver Excavating Co. v. Testa, 134 Ohio St.3d 565, 2012-Ohio-5776,
983 N.E.2d 1317, ¶ 42-43 (same).
{¶ 17} However, the absence of express “prospective only” language in
Klein does not prevent us from evaluating that decision under the DiCenzo factors
now. In DiCenzo, 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, at ¶ 1,
we applied the three factors adopted in that case to determine that Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977), which had been decided
over 30 years before DiCenzo, would be limited to prospective-only application.
We explained that “[t]he mere passage of time, without more, does not diminish
our authority to impose a prospective-only application of a court decision.”
DiCenzo at ¶ 28. We acknowledged that “prospective-only application is justified
only under exceptional circumstances, and a prospective-only application of a court
decision that is imposed years after its publication is an even rarer occurrence.” Id.
But we concluded that if the prior decision “presents us with the extraordinary
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circumstances that satisfy the [three-factor] test, then prospective-only application
may be justified.” Id.
a. New principle of law
{¶ 18} The first DiCenzo factor asks “whether the decision establishes a
new principle of law that was not foreshadowed in prior decisions.” DiCenzo at
¶ 25.
{¶ 19} Prior to Klein, we had established the principle of law that “a
claimant who voluntarily abandons his employment is entitled to temporary-total-
disability compensation if he is medically incapable of returning to work at the time
of the abandonment.” Id., 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at
¶ 2, citing State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71,
2008-Ohio-499, 881 N.E.2d 861, and State ex rel. OmniSource Corp. v. Indus.
Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41. We had premised
our decisions in Reitter Stucco and OmniSource on a statement in Pretty Prods., 77
Ohio St.3d at 7, 670 N.E.2d 466, that a claimant can abandon a former position
only if he has the physical capacity for employment at the time of the abandonment.
Reitter Stucco at ¶ 10; OmniSource at ¶ 10.
{¶ 20} But in Klein, we overruled Reitter Stucco and OmniSource and held
that “when a workers’ compensation claimant voluntarily removes himself from his
former position of employment for reasons unrelated to a workplace injury, he is
no longer eligible for temporary-total-disability compensation, even if the claimant
remains disabled at the time of his separation from employment.” Klein at ¶ 29.
We also made clear that the statement in Pretty Prods. was no longer good law.
Klein at ¶ 30. We decided Klein in 2018. Reitter Stucco and OmniSource dated
from 2007 and 2008, respectively, and Pretty Prods. dated from 1996. Therefore,
while Klein did not address an issue of first impression, it did represent a 180-
degree reversal of a longstanding principle of law.
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{¶ 21} For purposes of the DiCenzo analysis, that reversal equates to the
establishment of a new principle of law. The “new principle” factor “is persuasive
in determining whether a decision should be applied retrospectively because it
gauges the foreseeability of the law being considered for retroactive application.
Backward application of [a decision that establishes a new principle of law] causes
great inequity to those who are burdened by unforeseen obligations.” DiCenzo, 120
Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, at ¶ 17. Our reversal in Klein
of a rule that the commission had been applying in TTD-compensation cases for up
to two decades is equally persuasive on that point.
{¶ 22} Moreover, no prior decisions foreshadowed the overruling of Reitter
Stucco, 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861, and OmniSource, 113
Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41. Neither the Tenth District nor
the parties in Klein argued that we should overrule those cases—we took that action
sua sponte. And none of our opinions in cases applying or citing Reitter Stucco or
OmniSource prior to Klein foreshadowed that those decisions were in danger of
being overruled. Klein stated a new rule governing whether injured workers could
abandon their employment while temporarily and totally disabled, and our decision
in Klein was not foreseeable. This factor therefore favors prospective-only
application.
b. Purpose behind the rule
{¶ 23} The second DiCenzo factor asks “whether retroactive application of
the decision promotes or retards the purpose behind the rule defined in the
decision.” DiCenzo at ¶ 25.
{¶ 24} In Klein, we stated, “The purpose of temporary-total-disability
compensation is to compensate an injured employee for lost earnings during a
period of disability while an injury heals.” Id., 155 Ohio St.3d 78, 2018-Ohio-3890,
119 N.E.3d 386, at ¶ 14. We continued, “Ordinarily, when a claimant’s voluntary
actions, rather than his or her industrial injury, cause a loss of wages, that claimant
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is no longer eligible for temporary-total-disability compensation.” Id. at ¶ 15. We
next explained the exception to that rule that we had carved out in Reitter Stucco
and OmniSource, that is, that “if a claimant is already disabled when the separation
of employment occurs, he or she is not disqualified from receiving temporary-total-
disability compensation.” Klein at ¶ 16. But we then overruled Reitter Stucco and
OmniSource: “Both decisions were wrongly decided at the time, they defy practical
workability, and abandoning them would not create an undue hardship for those
who have relied upon them.” Klein at ¶ 17.
{¶ 25} When considering whether the two cases were wrongly decided, we
said, “Reitter Stucco and OmniSource contradict a fundamental tenet of temporary-
total-disability compensation: that the industrial injury must cause the worker’s loss
of earnings.” Klein at ¶ 18. We explained that the rule in those cases “created at
least two unintended consequences: it immunizes claimants from the consequences
of their own voluntary conduct and it authorizes compensation in scenarios for
which temporary-total-disability compensation was not intended.” Id. at ¶ 21.
Additionally, “it would not serve the purpose of temporary-total-disability
compensation to award compensation to a worker whose own actions, and not his
workplace injury, have prevented his return to his former position of employment.”
Id. at ¶ 22.
{¶ 26} When considering practical workability, we said that our “attempts
to clarify and distinguish Reitter Stucco and OmniSource” over the years had only
“muddied the waters” and “made the law more confusing.” Klein at ¶ 24. The
evolution of the jurisprudence had led to two sets of illogically inconsistent rules—
one for terminated employees and one for employees who left the workplace
voluntarily. Id. at ¶ 25-26. We concluded that it was “time to get rid of this
arbitrary distinction.” Id. at ¶ 26.
{¶ 27} Finally, we stated that overruling the two cases would not impose an
undue hardship, because doing so “would not jeopardize any reliance interests.”
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Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at ¶ 27. We posited
that workers currently receiving TTD compensation would be unlikely to instigate
their own termination by violating work rules in the hope that they could continue
to receive compensation under Reitter Stucco, 117 Ohio St.3d 71, 2008-Ohio-499,
881 N.E.2d 861, and OmniSource, 113 Ohio St.3d 303, 2007-Ohio-1951, 865
N.E.2d 41. Klein at ¶ 27. We acknowledged that abandoning those cases “would
impact future claimants who suffer an injury and then take voluntary action that
precludes continued employment.” Id. at ¶ 28. But, we said, “[e]ligibility for
temporary-total-disability compensation has always depended on whether the
separation from employment was injury-induced.” Id. Therefore, “[f]ar from
posing an undue hardship, overruling Reitter Stucco and OmniSource would restore
consistency to our jurisprudence.” Klein at ¶ 28.
{¶ 28} Three principles emerge from our discussion in Klein. First, the
purpose of TTD compensation is to replace wages lost because of an industrial
injury. Second, we reversed our prior holdings in order to eliminate an illogical
double-standard and to establish a consistent rule to be applied going forward. And
third, our Klein decision evinced a purpose to protect reliance interests.
{¶ 29} As Walmart points out, applying Klein retroactively would promote
the purpose behind TTD compensation itself, by declaring that benefits paid to
injured workers were improper overpayments when those workers’ voluntary
actions, rather than their work injuries, led to their wage losses. However, we
balance that point against the purposes espoused in our decision to abandon Reitter
Stucco and OmniSource: to harmonize the jurisprudence of voluntary abandonment
going forward while protecting reliance interests. As the commission points out,
applying Klein retroactively would not promote those purposes.
{¶ 30} This factor therefore presents a mixed result: applying Klein
retroactively would promote the purpose behind the voluntary-abandonment rule,
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but it would not promote the purpose behind the rule change we brought about in
Klein.
c. Inequitable result
{¶ 31} The third DiCenzo factor asks “whether retroactive application of
the decision causes an inequitable result.” Id., 120 Ohio St.3d 149, 2008-Ohio-
5327, 897 N.E.2d 132, at ¶ 25. This factor is concerned, in part, with “ ‘avoiding
injustice in cases dealing with questions having widespread ramifications for
persons not parties to the action.’ ” Id. at ¶ 12, quoting Hoover v. Franklin Cty. Bd.
of Commrs., 19 Ohio St.3d 1, 9, 482 N.E.2d 575 (1985) (Douglas, J., concurring).
{¶ 32} In DiCenzo, we determined that the decision in Temple, 50 Ohio
St.2d 317, 364 N.E.2d 267, should apply prospectively only. DiCenzo at ¶ 48. In
Temple, this court had stated for the first time that nonmanufacturing sellers of a
defective product could be liable for injuries the product caused. DiCenzo at ¶ 47.
We explained that a seller could not have foreseen that the Temple decision, if
applied retroactively, would subject a seller to liability for a transaction that had
occurred decades earlier. DiCenzo at ¶ 47. This, we said, rendered retroactive
application of Temple inequitable:
[N]onmanufacturing sellers of asbestos * * * could not have
foreseen that these products, distributed from the 1950s to the 1970s,
could decades later result in [liability] for injuries caused by that
product. Imposing such a potential financial burden on these
nonmanufacturing suppliers years after the fact for an obligation that
was not foreseeable at the time would result in a great inequity.
DiCenzo at ¶ 47.
{¶ 33} Here, as the commission points out, retroactive application of Klein
would implicate the awards of many claimants who are not parties to this action
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and were not parties in Klein: “it would open the door for those [claimants’] rights
to be re-adjudicated in mandamus” even though the awards were proper based on
the law at the time. And the implications would be widespread, because the
commission applied the abandoned rule for 22 years—from 1996 through 2018.
This would negatively affect the reliance interests of injured workers whose TTD-
compensation awards have long been paid out and spent—in contravention of our
statement in Klein that our decision in that case “would not jeopardize any reliance
interests,” Id., 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at ¶ 27. This
factor militates in favor of prospective-only application.
d. Conclusion regarding the DiCenzo factors
{¶ 34} In sum, in Klein, we took an unforeseeable action to harmonize our
voluntary-abandonment jurisprudence. We expressly stated that our action would
harm no reliance interests. Our concerns were phrased in forward-looking terms;
we made no mention of truing up claims that had already been adjudicated and paid
under the prior rule. Application of the three DiCenzo factors leads us to conclude
that Klein should be applied prospectively only.1
III. CONCLUSION
{¶ 35} For the foregoing reasons, we reverse the Tenth District’s judgment
and deny the writ.
Judgment reversed.
1. Application of Klein has a limited window. The General Assembly has since enacted R.C.
4123.56(F), effective on September 15, 2020, which states:
If an employee is unable to work or suffers a wage loss as the direct result
of an impairment arising from an injury or occupational disease, the employee is
entitled to receive compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has suffered a wage loss as
the direct result of reasons unrelated to the allowed injury or occupational disease,
the employee is not eligible to receive compensation under this section. It is the
intent of the general assembly to supersede any previous judicial decision that
applied the doctrine of voluntary abandonment to a claim brought under this
section.
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O’CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.
FISCHER, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
_________________
KENNEDY, J., dissenting.
{¶ 36} This court’s decision in State ex rel. Klein v. Precision Excavating
& Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, did not
change the law that applies to this case. In fact, Klein does not control the outcome
of this case. And because Klein does not apply, this court should exercise restraint
and should not issue an advisory opinion on how Klein should be applied in future
cases to parties who are not presently before this court. Therefore, I would affirm
the judgment of the Tenth District Court of Appeals. Because the majority does
otherwise, I dissent.
{¶ 37} The parties and the majority frame the issue in this case as whether
the holding in Klein should be applied retroactively or prospectively, but that
misstates the question before us. The issue before this court is whether a person
who voluntarily retires is entitled to receive temporary-total-disability
compensation.
Facts and Procedural History
{¶ 38} Appellant Dianna Hixson was not terminated for violating a
workplace rule. She voluntarily retired, effective March 6, 2018. Prior to retiring,
Hixson sought temporary-total-disability compensation after she was injured while
working for appellee, Walmart, Inc. A district hearing officer denied her claim,
finding that she was totally and temporarily disabled due to conditions that he
disallowed in the claim. A staff hearing officer concluded that Hixson was entitled
to temporary-total-disability compensation but only through the date she had
retired, finding her retirement to be age related and therefore a voluntary
abandonment of her employment. Relying on State ex rel. Pretty Prods., Inc. v.
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Indus. Comm., 77 Ohio St.3d 5, 670 N.E.2d 466 (1996), appellant Industrial
Commission determined that Hixson did not voluntarily abandon her employment,
because she was temporarily and totally disabled when she retired. It therefore
awarded her temporary-total-disability compensation continuing after her March 6,
2018 retirement.
{¶ 39} On September 27, 2018, this court decided Klein, which overruled
as inconsistent with the voluntary-abandonment rule the part of Pretty Prods. on
which the commission had relied. Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119
N.E.3d 386, at ¶ 30. The court also overruled two decisions that had followed
Pretty Prods.: State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71,
2008-Ohio-499, 881 N.E.2d 861, and State ex rel. OmniSource Corp. v. Indus.
Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41. Klein at ¶ 29. Pretty
Prods., Reitter Stucco, and OmniSource all involved injured workers who were
discharged for violating workplace rules.
{¶ 40} In Walmart’s action, the Tenth District granted a writ of mandamus
compelling the commission to terminate the award of temporary-total-disability
compensation after March 6, 2018. It concluded that Klein’s holding applied
retroactively to Hixson’s claim and that retroactive application of its holding neither
impaired vested rights nor resulted in widespread injustice to third parties. 2021-
Ohio-3802, 180 N.E.3d 1197, ¶ 12, 17.
Law and Analysis
The Voluntary-Abandonment Rule
{¶ 41} The voluntary-abandonment rule emanates from the principle that
“[a]ll forms of death and disability benefits provided by R.C. Chapter 4123 are
intended to compensate ‘for loss sustained on account of the injury.’ ” State ex rel.
McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776
N.E.2d 51, ¶ 35, quoting R.C. 4123.54(A). The court recognized that under that
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section, “a causal relationship must exist between the employee’s industrial injury
and the loss that the requested benefit is designed to compensate.” Id.
{¶ 42} R.C. 4123.56 provides for temporary-total-disability compensation
“when an industrial injury prevents a claimant from performing the duties of his
position of employment,” State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260,
2014-Ohio-3614, 17 N.E.3d 547, ¶ 13, and temporary-total-disability compensation
is “designed ‘to compensate an injured employee for the loss of earnings which he
incurs while the injury heals,’ ” McCoy at ¶ 35, quoting State ex rel. Ashcraft v.
Indus. Comm., 34 Ohio St.3d 42, 44, 517 N.E.2d 533 (1987). To qualify for
temporary-total-disability compensation, the injured worker is required to show
that “a cause-and-effect relationship exists between the industrial injury and an
actual loss of earnings. In other words, it must appear that, but for the industrial
injury, the claimant would be gainfully employed.” Id.
{¶ 43} The court has further explained that the causal connection between
the workplace injury and the loss of wages is severed by the worker’s departure
from employment for reasons unrelated to that injury. State ex rel. Jacobs v. Indus.
Comm., 139 Ohio St.3d 86, 2014-Ohio-1560, 9 N.E.3d 999, ¶ 18; McCoy at ¶ 38.
An injured worker is not entitled to temporary-total-disability compensation when
he or she voluntarily abandons employment by quitting, State ex rel. James v. Wal-
Mart Stores, Inc., 149 Ohio St.3d 700, 2017-Ohio-1426, 77 N.E.3d 952, ¶ 18;
resigning on two weeks’ notice, State ex rel. Bilaver v. Indus. Comm., 131 Ohio
St.3d 132, 2012-Ohio-26, 961 N.E.2d 675, ¶ 5; retiring, State ex rel. Corman v.
Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579, 970 N.E.2d 929,
¶ 6-7; being incarcerated, Ashcraft at 44-45; or being terminated from employment
for violating work rules, State ex rel. Parraz v. Diamond Crystal Brands, Inc., 141
Ohio St.3d 31, 2014-Ohio-4260, 21 N.E.3d 286, ¶ 15-16.
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The Pretty Prods. Rule and Klein
{¶ 44} In Pretty Prods., the court added confusion to the voluntary-
abandonment rule by stating that “ ‘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.’ ” 77 Ohio
St.3d at 7, 670 N.E.2d 466, quoting State ex rel. Brown v. Indus. Comm., 68 Ohio
St.3d 45, 48, 623 N.E.2d 55 (1993). The court borrowed this language from Brown,
a decision explaining that when a worker is permanently and totally disabled under
R.C. 4123.58, the worker is incapable of returning to work and therefore can never
voluntarily abandon it, Brown at 48.
{¶ 45} Pretty Prods. inadvertently took caselaw applicable to permanent-
total-disability compensation, which continues until death and therefore cannot be
terminated by the voluntary abandonment of employment, and applied it to
temporary-total-disability compensation, which the court has long recognized can
be terminated if the worker voluntarily abandons employment. The Pretty Prods.
rule therefore erroneously indicated that temporary-total-disability compensation
may be available even when the claimant’s voluntary conduct has severed the
causal connection between the workplace injury and the loss of wages, so long as
the injured worker is incapable of work at the time of the separation from
employment.
{¶ 46} The court corrected this mistake in Klein and clarified that an injured
worker who voluntarily abandons employment is not eligible for temporary-total-
disability compensation. Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d
386, at ¶ 16-17.
Klein Did Not Change the Law Applicable to Hixson’s Claim
{¶ 47} But even before the court decided Klein, it had applied the Pretty
Prods. rule only in cases involving workers who were terminated for violating
workplace rules. See Reitter Stucco, 117 Ohio St.3d 71, 2008-Ohio-499, 881
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January Term, 2022
N.E.2d 861; OmniSource, 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41.
This court expressly declined to extend the Pretty Prods. rule to an injured worker
who voluntarily quit his job in State ex rel. Hildebrand v. Wingate Transport, Inc.,
141 Ohio St.3d 533, 2015-Ohio-167, 26 N.E.3d 798, ¶ 25.
{¶ 48} Consequently, Klein did not change the law that applies to Hixson’s
claim, because this court has never applied the Pretty Prods. rule to an injured
worker like Hixson who voluntarily elected to leave a job while temporarily and
totally disabled.
{¶ 49} We therefore do not have a party before the court who has been
affected by the holding in Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d
386. Hixson was not terminated for violating work rules, so she loses nothing by
the overruling of the Pretty Prods. rule. The majority speculates that “retroactive
application of Klein would implicate the awards of many claimants who are not
parties to this action and were not parties in Klein.” Majority opinion, ¶ 33. But it
fails to follow through on the analysis and provide reasoning and authority proving
its conjecture that temporary-total-disability compensation awards that have “long
been paid out and spent,” id. at ¶ 33, are vulnerable if Klein applies retroactively.
Rather than short-circuiting the adversarial process by issuing an advisory opinion
deciding how Klein will be applied in future cases, we should wait until we have
parties before the court who are affected by the overruling of the Pretty Prods. rule
and who can provide the argument and citation to authority necessary for our
adversarial system of adjudication to function. After all, it is “the duty of this
court[ ] to decide actual controversies where the judgment can be carried into effect,
and not to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter at issue in the case before
it.” Travis v. Pub. Util. Comm. of Ohio, 123 Ohio St. 355, 359, 175 N.E. 586
(1931).
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{¶ 50} Therefore, it is not necessary to decide at this time whether Klein
should be applied prospectively only. But for the following reasons, the majority’s
conclusion that Klein should be applied prospectively is incorrect.
Retroactive or Prospective Application
{¶ 51} This court has explained that “[t]he general rule is that a decision of
a court of supreme jurisdiction overruling a former decision is retrospective in its
operation, and the effect is not that the former was bad law, but that it never was
the law. The one general exception to this rule is where contractual rights have
arisen or vested rights have been acquired under the prior decision.” Peerless Elec.
Co. v. Bowers, 164 Ohio St. 209, 210, 129 N.E.2d 467 (1955). As the majority
correctly recognizes, Hixson did not have a vested right to temporary-total-
disability compensation.
{¶ 52} Notably, this court in Klein did not apply its holding prospectively
only. Instead, it concluded that the injured worker was not eligible for temporary-
total-disability compensation once he had voluntarily abandoned his employment
even though he was temporarily and totally disabled at the time he resigned. The
court could have limited its holding to future cases, but it did not.
The DiCenzo Test
{¶ 53} Although this court’s majority opinion in Klein did not declare that
its holding applies prospectively only, there is caselaw saying that this court can do
so years or even decades later. In DiCenzo v. A-Best Prods. Co., Inc., this court
considered whether a previously decided case should be applied prospectively only,
and it held:
[A]n Ohio court has discretion to apply its decision only
prospectively after weighing the following considerations: (1)
whether the decision establishes a new principle of law that was not
foreshadowed in prior decisions; (2) whether retroactive application
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January Term, 2022
of the decision promotes or retards the purpose behind the rule
defined in the decision; and (3) whether retroactive application of
the decision causes an inequitable result.
120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, ¶ 25.
{¶ 54} None of the DiCenzo factors weigh in favor of applying Klein’s
holding prospectively only. Regarding the first factor, Klein did not establish a new
principle of law that was not foreshadowed in prior decisions. As explained above,
before Klein, this court had limited the Pretty Prods. rule to cases involving injured
workers who had been discharged for violating a workplace rule and had expressly
declined to extend it to claimants who elected to leave a job. Hildebrand, 141 Ohio
St.3d 533, 2015-Ohio-167, 26 N.E.3d 798, at ¶ 23-25; see also Klein, 155 Ohio
St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at ¶ 25 (noting the distinction between
discharge and voluntary retirement). Further, as this court pointed out in Klein, the
Pretty Prods. rule “contradict[ed] a fundamental tenet of temporary-total-disability
compensation: that the industrial injury must cause the worker’s loss of earnings.”
Klein at ¶ 18. It was inconsistent with the established principle that “when a
claimant removes himself from employment for reasons unrelated to the work-
related injury, he is no longer eligible for temporary-total-disability compensation.”
Id. at ¶ 19. And applying this principle, the court has held that an injured worker
is not entitled to temporary-total-disability compensation when he or she had
previously voluntarily abandoned the workforce by retiring. Corman, 132 Ohio
St.3d 202, 2012-Ohio-2579, 970 N.E.2d 929, at ¶ 6-7; State ex rel. Pierron v. Indus.
Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140, ¶ 11.
{¶ 55} It was foreseeable that this court would get rid of the “arbitrary
distinction,” Klein at ¶ 26, between the way a discharge and a resignation were
treated for purposes of temporary-total-disability compensation, and it was
foreseeable that this court would decide that Pretty Prods., Reitter Stucco, and
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OmniSource had misstated and confused the law. The opinion concurring in
judgment in Klein explained that the creation of the Pretty Prods. rule was an
accident: this court in Pretty Prods. inadvertently took a concept from permanent-
total-disability compensation—in which a worker is never capable of returning to
work and therefore can never abandon it—and overlaid it on temporary-total-
disability compensation. Klein at ¶ 49 (Kennedy, J., concurring in judgment only).
The Pretty Prods. rule was inconsistent with the language of R.C. 4123.54(A), the
long-standing voluntary-abandonment rule, and the principle that temporary-total-
disability compensation is not available unless there is a causal relationship
between the workplace injury and the loss of wages that the benefit is designed to
replace. It was only a matter of time until the Pretty Prods. rule was overturned.
{¶ 56} Regarding the second DiCenzo factor, retroactive application of
Klein promotes the purpose behind the rule defined in the decision. The rule is that
temporary-total-disability compensation is available to replace wages lost on
account of a workplace injury. The rule’s purpose is to provide compensation to
those whose workplace injuries caused a loss of wages. Applying Klein
prospectively only will run counter to this purpose by allowing those who are not
statutorily entitled to temporary-total-disability compensation to receive it anyway.
{¶ 57} The majority posits that a purpose of the rule defined in Klein was
“to harmonize the jurisprudence of voluntary abandonment going forward while
protecting reliance interests.” (Emphasis added.) Majority opinion at ¶ 29. But
protecting reliance interests is not a purpose of the voluntary-abandonment rule.
And rather than acting to protect reliance interests, this court in Klein discounted
the notion that there were any reliance interests to protect: “It is highly unlikely that
an injured worker currently receiving temporary-total-disability compensation
would instigate his termination by violating a workplace rule based on the hope that
he would continue to receive benefits under Reitter Stucco and OmniSource.”
Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at ¶ 27. This court
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January Term, 2022
decided that there would be no undue hardship if it overruled those decisions, id. at
¶ 28, exactly because doing that “would not jeopardize any reliance interests,” id.
at ¶ 27.
{¶ 58} The third DiCenzo factor—whether retroactive application of the
decision causes an inequitable result—also does not weigh in favor of applying
Klein prospectively only. Again, as this court recognized in Klein, it is highly
unlikely that any injured worker would voluntarily cause the end of his or her
employment—by violating a workplace rule or resigning—with the expectation of
receiving a windfall in temporary-total-disability compensation. See Klein at ¶ 27.
In this case, for example, Hixson could not have relied on the Pretty Prods. rule
when she retired. Before she retired, the Pretty Prods. rule was limited by this court
to circumstances in which the injured employee had violated a workplace rule. See
Hildebrand, 141 Ohio St.3d 533, 2015-Ohio-167, 26 N.E.3d 798, at ¶ 23-25.
{¶ 59} This court recognized in Klein that “abandoning Reitter Stucco and
OmniSource would impact future claimants who suffer an injury and then take
voluntary action that precludes continued employment,” but it concluded that there
would be no inequity, Klein at ¶ 28. It pointed out that “even after Reitter Stucco
and OmniSource, we adhered to the long-standing rule that when a claimant
chooses for reasons unrelated to his industrial injury not to return to his former
position of employment, the claimant is considered to have voluntarily abandoned
his employment and is no longer eligible for temporary-total-disability
compensation.” Id. There is no inequitable result in denying claimants temporary-
total-disability compensation when they were not entitled to it in the first place.
{¶ 60} Consequently, proper weighing of the DiCenzo factors does not
support the majority’s decision to apply Klein prospectively only.
Conclusion
{¶ 61} “ ‘[C]ourts are essentially passive instruments of government.’ * * *
They ‘do not, or should not, sally forth each day looking for wrongs to right. [They]
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wait for cases to come to [them], and when [cases arise, courts] normally decide
only questions presented by the parties.’ ” (Brackets added in Sineneng-Smith.)
United States v. Sineneng-Smith, ___ U.S. ___, ___, 140 S.Ct. 1575, 1579, 206
L.Ed.2d 866 (2020), quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th
Cir.1987) (Arnold, J., concurring in denial of rehearing en banc). The narrow
question before this court is whether Hixson is entitled to temporary-total-disability
compensation after she voluntarily retired from her job at Walmart. At the time she
retired, the answer Ohio law provided was no, and following the court’s decision
in Klein, the answer is still no.
{¶ 62} I therefore would affirm the judgment of the Tenth District Court of
Appeals. Because the majority does not, I dissent.
DEWINE, J., concurs in the foregoing opinion.
_________________
Roetzel & Andress, L.P.A., Douglas E. Spiker, and Timothy J. Webster, for
appellee.
Nager, Romaine, & Schneiberg Co., L.P.A., and James J. Zink, for appellant
Dianna Hixson.
Dave Yost, Attorney General, and Jacquelyn McTigue, Assistant Attorney
General, for appellant Industrial Commission of Ohio.
_________________
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