State ex rel. Baker v. Indus. Comm.

Decision Date09 August 2000
Docket NumberNo. 98-556.,98-556.
Citation732 NE 2d 355,89 Ohio St.3d 376
PartiesTHE STATE EX REL. BAKER, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
CourtOhio Supreme Court

Stewart R. Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy; and M. Blake Stone, for appellant.

Betty D. Montgomery, Attorney General, and C. Bradley Howenstein, Assistant Attorney General, for appellee Industrial Commission.

Buckingham, Doolittle & Burroughs, L.L.P., Richard A. Hernandez, Brett L. Miller and Julie M. Young, for appellee Stahl-Wooster Division, A Scott Fetzer Company.

Stewart R. Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging reversal and issuance of writ for amici curiae AFL-CIO and Ohio Academy of Trial Lawyers.

Paul L. Cox, urging reversal and issuance of writ for amicus curiae Fraternal Order of Police of Ohio, Inc.

Gallon & Takacs Co., L.P.A., and Theodore A. Bowman, urging reversal and issuance of writ for amici curiae Ohio Conference of Teamsters and Northwestern Ohio Building and Construction Trades Council.

Benesch, Friedlander, Coplan & Aronoff, L.L.P., N. Victor Goodman and Mark D. Tucker, urging reversal and issuance of writ for amicus curiae Ohio State Building and Construction Trades Council.

Cloppert, Portman, Sauter, Latanick & Foley, Christopher A. Flint and Frederic A. Portman, urging reversal and issuance of writ for amicus curiae Ohio Education Association.

Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, urging affirmance for amici curiae Ohio Self-Insurers Association, and Ohio Manufacturers Association.

DOUGLAS, J.

The issue before us is whether a claimant who leaves his1 former position of employment for a new position forfeits TTD eligibility under the theory of voluntary abandonment of employment.

In Baker I, we held that Baker's voluntary departure from Stahl-Wooster precluded Baker's eligibility for TTD, as his departure from his former position of employment was predicated on his own actions, i.e., acceptance of a truck mechanic position with Truck Stops, and not on his industrial injury. Baker, 87 Ohio St.3d at 563, 722 N.E.2d at 68. As previously mentioned, the per curiam opinion in Baker I was largely based upon the principles set forth in McGraw and Jones & Laughlin, and, notably, the opinion did not explore the relationship and differences between a claimant's eligibility for TTD, voluntary abandonment of a former position of employment, and continued employment for a different employer. Baker's continued employment, albeit not at Stahl-Wooster, is an important and distinguishing fact that separates this case from the typical voluntary abandonment of employment. In order to appreciate this distinction, it is first necessary to discuss the eligibility requirements for TTD and to review the purpose of TTD, particularly as it relates to the judicially created voluntary-abandonment theory.

The pertinent portions of R.C. 4123.56, governing temporary disability compensation, provide:

"(A) * * * [I]n the case of temporary disability, an employee shall receive sixty-six and two-thirds per cent of his average weekly wage so long as such disability is total * * *. Payments shall continue pending the determination of the matter[;] however payment shall not be made for the period when any employee has returned to work, when an employee's treating physician has made a written statement that the employee is capable of returning to his former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached the maximum medical improvement. * * * The termination of temporary total disability, whether by order or otherwise, does not preclude the commencement of temporary total disability at another point in time if the employee again becomes temporarily totally disabled." (Emphasis added.)

R.C. 4123.56 is instructive in that it ties an injured worker's eligibility for TTD to the worker's capability of returning to his former position of employment. This "former position of employment" standard was intended to be a threshold physical measurement of whether an injured worker was able to perform the duties of the job that he held at the time of injury. A worker's physical capabilities are unrelated to whether the worker is actually working at his former position of employment and whether the former position is even available for the injured worker to return to after he is medically released.

In State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586, at syllabus, we held, "Under R.C. 4123.56, temporary total disability is defined as a disability which prevents a worker from returning to his former position of employment." Quoting Webster's Third New International Dictionary (1961), this court stated that "position" is defined as "the group of tasks and responsibilities making up the duties of an employee." Id. at 632, 23 O.O.3d at 519, 433 N.E.2d at 588. Ramirez did not hold that the injured worker had to actually return to the specific job that he held at the time of his injury; rather, this court merely stated that the proper criterion was the injured worker's ability to perform the job duties of his former position of employment. Since the Industrial Commission had failed to take evidence regarding Ramirez's ability to return, either partially or completely, to his former position of employment as a construction laborer, this court affirmed the court of appeals' judgment, which granted appellant a writ of mandamus and ordered the Industrial Commission to take evidence to determine Ramirez's ability to return to his former job. Id. at 634, 23 O.O.3d at 520, 433 N.E.2d at 590. As exemplified in Ramirez, the former-position-of-employment test does not involve any consideration of whether the injured worker returns to his actual job that he held at the time of his injury or whether that job is even available; rather, the test is a physical guideline by which an injured worker's eligibility for TTD is determined.

Eligibility for TTD is contingent upon an injured worker's inability to perform the duties of his former position of employment. Ramirez; Jones & Laughlin, supra. This eligibility standard is consistent with the purpose of TTD, which is to compensate an injured employee for the loss of earnings he incurs while his injury heals. State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533, 535. In some cases, however, a worker's own actions, rather than his industrial injury, may result in the worker's not being able to return to his former position of employment. In such cases, the injured worker is said to have voluntarily abandoned his former position of employment, thereby precluding his eligibility for TTD.

For example, in Jones & Laughlin,2 the facts were that the claimant had voluntarily retired from the work force and was receiving a regular pension. The Franklin County Court of Appeals held that "where the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability benefits since it is his own action rather than the industrial injury, which prevents his returning to such former position of employment." Jones & Laughlin, 29 Ohio App.3d at 147, 29 OBR at 164, 504 N.E.2d at 454. This was obviously meant to explain that where an employee voluntarily undertakes some action that precludes that employee from returning to employment from a temporary total disability, the employee has voluntarily abandoned the work force and is therefore not entitled to receive TTD, because the purpose for which TTD was created (compensation for loss of income during temporary and total disability) no longer exists. Thus, when an employee receiving TTD chooses for reasons unrelated to his industrial injury not to return to any work when able to do so, that employee has abandoned both his employment and his eligibility for TTD.

In addition to Jones & Laughlin, where the claimant voluntarily and permanently removed himself from the work force, there are a number of other examples of situations wherein a claimant has been denied continued TTD based on his voluntary abandonment of his former position of employment: State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533 (incarcerated claimant was precluded from TTD, as claimant was presumed to have tacitly accepted the consequences of his voluntary acts leading to his incarceration and was therefore deemed to have voluntarily abandoned his former position of employment); State ex rel. McGraw v. Indus. Comm. (1990), 56 Ohio St.3d 137, 564 N.E.2d 695 (claimant who voluntarily abandoned his former position of employment by quitting his job for reasons unrelated to his injury was precluded from TTD); State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469 (claimant voluntarily abandoned his former position of employment when he was terminated for failing to report to work for three consecutive days, thereby precluding his eligibility for TTD); State ex rel. Cobb v. Indus. Comm. (2000), 88 Ohio St.3d 54, 723 N.E.2d 573 (claimant voluntarily abandoned his employment when he was terminated for testing positive for drugs in violation of a written company policy, thereby precluding his eligibility for TTD).

Relying on two of the foregoing voluntary-abandonment cases, McGraw and Jones & Laughlin, this court held in Baker I that Baker voluntarily abandoned his former position of employment by accepting a new position of employment and, therefore, Baker was not eligible for TTD. Upon reconsideration, we now find that both McGraw and Jones & Laughlin are factually distinguishable from the facts of the case now before us. Spec...

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