The opinion
[Cite as Courtesy Ambulance, Inc. v. Damschroder, 2023-Ohio-421.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
COURTESY AMBULANCE, INC. JUDGES:
Hon. William B. Hoffman, P.J.
Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 CA 00090
MATTHEW DAMSCHRODER,
DIRECTOR, ODJFS, et al.,
Appellees OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case No. 22 CV 00207
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 10, 2023
APPEARANCES:
For Appellant For Appellees
MICHAEL SOTO DAVE YOST
M. Soto Law Office, LLC Ohio Attorney General
570 North State Street – Suite #220
Westerville, Ohio 43082 DAVID E. LEFTON
Principal Assistant Attorney General
Health and Human Services Section
Unemployment Compensation Unit
30 East Broad Street – 26th Floor
Columbus, Ohio 43215
Licking County, Case No. 2022 CA 00090 2
Hoffman, P.J.
{¶1} Appellant Courtesy Ambulance, Inc. appeals the judgment entered by the
Licking County Common Pleas Court affirming the decision of the Unemployment
Compensation Review Commission finding Brandon Unger was entitled to unemployment
compensation after he was terminated from his employment with Appellant without just
cause. Appellee is Matthew Damschroder, Director of the Ohio Department of Job and
Family Services (hereinafter “ODJFS”), et al.
STATEMENT OF THE FACTS AND CASE
{¶2} Brandon Unger was employed by Appellant beginning on July 21, 2010. On
January 14, 2021, Unger left work, feeling ill. Unger tested positive for Covid-19 the
following day, and spent the next month in and out of the hospital for complications from
the disease. Appellant contacted Unger during one of his hospital stays, but Appellant
was incoherent. Appellant removed Unger from its payroll on February 1, 2021.
{¶3} Unger applied for unemployment compensation on May 17, 2021. His
application was initially denied, and he appealed the denial. On July 7, 2021, the director
of ODJFS issued a redetermination, finding Unger met the requirements of R.C.
4141.29(A)(4), and his application for benefits was allowed.
{¶4} Appellant filed an appeal from this redetermination. ODJFS transferred
jurisdiction to the Unemployment Compensation Review Committee. On January 26,
2022, a telephone hearing was held before a hearing officer. Following the hearing, the
hearing officer found Unger was unable to work due to circumstances beyond his control,
namely, complications from Covid-19. The hearing officer found Unger was discharged
by Appellant without just cause, and was therefore entitled to benefits.
Licking County, Case No. 2022 CA 00090 3
{¶5} Appellant filed a request for review of the hearing officer’s decision by the
Unemployment Review Commission. The Commission disallowed the request.
{¶6} Appellant then appealed to the Licking County Common Pleas Court. The
trial court affirmed the decision of the hearing officer finding Unger was entitled to
unemployment benefits.
{¶7} It is from the September 26, 2022 judgment of the trial court Appellant
prosecutes its appeal, assigning as error:
I. THE TRIAL COURT ERRED IN CONCLUDING SOME
COMPETENT CREDIBLE EVIDENCE IN THE RECORD EXISTS TO
SUPPORT UNGER’S BURDEN UNDER R.C. 4141.29(A)(4)(a).
II. THE TRIAL COURT ERRED IN AFFIRMING ODJFS’S
CONCLUSION THAT COURTESY DISCHARGED UNGER WITHOUT
JUST CAUSE IN CONNECTION WITH WORK.
{¶8} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
Licking County, Case No. 2022 CA 00090 4
The decision may be by judgment entry in which case it will not be
published in any form.
{¶9} This appeal shall be considered in accordance with the aforementioned
rule.
I.
{¶10} In its first assignment of error, Appellant argues the trial court exceeded its
scope of review in finding Unger looked for work as required by R.C. 4141.29(A)(4)(a)
because the hearing officer did not make a finding on this issue, and further Unger’s
statement he searched for work per the order is not credible.
{¶11} The applicable standard of review a court must implement in reviewing a
decision of the Unemployment Compensation Review Commission is whether the Board's
decision is unlawful, unreasonable, or against the manifest weight of the evidence. E.g.,
Brown-Brockmeyer Co. v. Roach, 148 Ohio St. 511, 518, 76 N.E.2d 79 (1947). There is
no distinction between the scope of review of trial courts and appellate courts on appeals
from the Unemployment Compensation Review Commission. Tzangas, Plakas &
Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 696, 653 N.E.2d 1207, 1210
(1995).
{¶12} A reviewing court is not permitted to make factual findings, determine the
credibility of witnesses, or substitute its judgment for that of the commission. Bonanno v.
Ohio Dept. of Job & Family Servs., 5th Dist. Tuscarawas No. 2012 AP 02 0011, 2012-
Ohio-5167, 2012 WL 5439043, ¶ 15. Where the commission might reasonably decide
either way, the courts have no authority to upset the Unemployment Compensation
Licking County, Case No. 2022 CA 00090 5
Review Commission's decision. Id. “‘Every reasonable presumption must be made in
favor of the [decision] and the findings of facts [of the Review Commission].’” Id., citing
Ro–Mai Industries, Inc. v. Weinberg, 176 Ohio App.3d 151, 2008-Ohio-301, 891 N.E.2d
348, ¶ 7 (9th Dist.), quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350
(1988). This Court is required to focus on the decision of the commission, rather than the
decision of the trial court. Grier, supra at ¶23.
{¶13} The trial court held, “The record contains Unger’s assertions that he
searched for work ‘per the order.’ (Cert. Rec. 4). The hearing officer was permitted to
believe him.” While Appellant is correct the hearing officer did not specifically find Unger’s
representation he looked for work to be credible, the only issue before the hearing officer
was whether Unger was discharged for just cause. Appellant did not challenge Unger’s
representation he looked for work as required by law, but rather solely argued he was
discharged for just cause, and/or he had a job available with Appellant if he chose to
return. We find the trial court did not exceed its scope of authority.
{¶14} By finding Unger qualified for benefits, the hearing officer impliedly found
he met the requirements concerning looking for work. We find Unger’s unchallenged
representation he complied with the order regarding looking for work is competent,
credible evidence supporting a finding Unger complied with R.C. 4141.29(A)(4)(a).
{¶15} The first assignment of error is overruled.
Licking County, Case No. 2022 CA 00090 6
II.
{¶16} In its second assignment of error, Appellant argues the trial court erred in
affirming the finding of the Unemployment Review Commission Unger was discharged
without just cause.1
{¶17} The Ohio Supreme Court has defined “just cause” as that which, to an
ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.
Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73
Ohio St.3d 694, 697, 1995–Ohio–206, 653 N.E.2d 1207. The determination of whether
just cause exists for an employee's dismissal under R.C. 4141.29 is based upon whether
there was some fault on the part of the employee that led to the dismissal. Id. at paragraph
two of the syllabus. “Just cause” does not typically require intentional action, and the
determination of just cause depends upon the “unique factual considerations of the
particular case” and is therefore an issue for the trier of fact. Irvine v. Unemp. Comp. Bd.
Of Review, 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).
{¶18} The trial court affirmed the finding of the hearing officer Unger was
discharged without just cause:
Here, Unger became ill such that he could not perform his ordinary
work. Nothing about such a state of affairs suggests that Unger was in any
sense responsible for his own predicament and was thus at fault for the
1 At the same time, Appellant appears to argue Unger was not “discharged” from work, but rather was
removed from the payroll for insurance reasons, and could return at any time. We find this argument was
not raised in the trial court, and further conflicts with Appellant’s argument it discharged Unger for just
cause. The record affirmatively demonstrates Unger was removed from his employment on February 1,
2021.
Licking County, Case No. 2022 CA 00090 7
circumstances that led to his termination. Further, to the extent that
Appellant argues that it was error to attribute Unger’s inability to work to
Covid-19 because to do so requires medical expertise beyond that of a
layperson, this argument is unavailing. As the Court has noted, the rules of
evidence are not strictly applied in proceedings related to unemployment
compensation. Taralla at ¶¶12-14. See also R.C. 4141.281(C)(2). Rather,
the hearing officer is given broad discretion to consider evidence and
develop a full record of the proceeding. R.C. 4141.281(C)(2).
{¶19} Judgment entry, 9/26/22, p. 6-7.
{¶20} For the reasons stated by the trial court, we find the hearing officer’s
determination Unger was not discharged for just cause is supported by the record.
{¶21} The second assignment of error is overruled.
{¶22} The judgment of the Licking County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur