State ex rel. Diversitech General Plastic Film Div. v. Industrial Com'n of Ohio

• Decision Date: 04 October 1989
• Docket Number: No. 88-640,88-640
• Citation: 544 N.E.2d 677,45 Ohio St.3d 381
• Parties: The STATE, ex rel. DIVERSITECH GENERAL PLASTIC FILM DIVISION, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 381

45 Ohio St.3d 381

544 N.E.2d 677

The STATE, ex rel. DIVERSITECH GENERAL PLASTIC FILM DIVISION, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 88-640.

Supreme Court of Ohio.

Submitted July 26, 1989.

Decided Oct. 4, 1989.

Appellee-claimant ("claimant"), Harold D. Meeks, sustained a serious left-arm injury on June 25, 1984, while in the course of and arising from his employment as a Banbury press operator with appellant, Diversitech General Plastic Film Division. His work duties included the overhead lifting and dumping of fifty-pound bags of chemicals. As a result of his injury, claimant was unable to return to the Banbury press.

Approximately two weeks after his accident, claimant was contacted by Upjohn Healthcare Services for a rehabilitation evaluation. Upon conclusion of the assessment, Upjohn recommended a physical rehabilitation plan and possible employer incentive plan.

The Industrial Commission of Ohio's ("commission's") rehabilitation division approved a general rehabilitation plan in October 1984. Following three months of intensive physical and occupational therapy, the claimant met with company and union officials to discuss his progress. At that meeting it was agreed that claimant was still physically unable to return as a Banbury operator and it was suggested that "consideration be made to placing him in a position as a shipping room operator/helper, at least temporarily." This position was slower paced and required no lifting, thus placing it within claimant's physical abilities.

Shortly thereafter, an employer incentive contract was entered into between appellant and the commission's rehabilitation division. Under the agreement, claimant was provided with light-duty employment in exchange for partial reimbursement of his wages to appellant by the rehabilitation division. By its terms, the contract was effective from February 11, 1985 through May 5, 1985.

At the expiration of the contract, claimant had not been medically released to return to the Banbury machine. He continued in the light-duty job until laid off for economic reasons on July 21, 1985.

On July 26, 1985, claimant attempted to reactivate his claim, requesting both treatment and temporary total disability compensation from July 22, 1985 through October 21, 1985. His application contained a statement from attending physician Dr. Suranjan Ray, certifying claimant as temporarily and totally disabled over that period. A commission district hearing officer granted the application and awarded the requested compensation. This order was modified by a regional board of review but was later reinstated by commission staff hearing officers.

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the claimant abandoned his former position of employment by accepting a light-duty job and was thus precluded from further temporary total compensation. The appellate court found no abandonment and denied the writ.

This cause is now before this court on an appeal as of right.

Roetzel & Andress, George A. Clark and Timothy S. Guster, Akron, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Dennis L. Hufstader, Columbus, for appellee Indus. Com'n.

Stewart Jaffy & Associates Co., L.P.A., and Stewart R. Jaffy, Columbus, for appellee Meeks.

PER CURIAM.

In State, ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586, we defined "temporary total disability" as a disability that prevents a claimant from returning to his or her former position of employment. "Former position of employment" was defined in State ex rel. Horne v. Great Lakes Constr. Co. (1985), 18 Ohio St.3d 79, 80, 18 OBR 117, 118, 480 N.E.2d 753, 754, as "the position the claimant held when he was injured." Appellant alleges that the claimant's inability to return to his former position of employment is due not to injury, but to abandonment and layoff, precluding the payment of temporary total disability compensation. We disagree.

Abandonment or layoff can preclude payment of temporary total compensation. See State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, 29 OBR 162, 504 N.E.2d 451; State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533. The question of abandonment is "primarily * * * [one] of intent * * * [that] may be inferred from words spoken, acts done, and other objective facts. * * * All relevant circumstances existing at the time of the alleged abandonment should be considered." State v. Freeman (1980), 64 Ohio St.2d 291, 297, 18 O.O.3d 472, 476, 414 N.E.2d 1044, 1048. Similarly, West Park Shopping Center v. Masheter (1966), 6 Ohio St.2d 142, 144, 35 O.O.2d 216, 217, 216 N.E.2d 761, 762-763, held that " '[a]n abandonment is proved by evidence of intention to abandon as well as of acts by which the intention is put into effect.' " The presence of such intent, being a factual question, is a determination for the commission. State ex rel. Allied Wheel Products, Inc. v. Indus. Comm. (1956), 166 Ohio St. 47, 1 O.O.2d 190, 139 N.E.2d 41.

Appellant cites claimant's voluntary acceptance of light-duty work and his decision to remain at that position once the incentive agreement expired as evincing the requisite intent. This suggestion, however, overlooks two significant points. First, claimant's light-duty placement was pursuant to a rehabilitation contract entered into by appellant and the commission's rehabilitation division. Second, upon expiration of the contract, claimant remained medically incapable of returning to his former position of employment.

We find the reasoning contained in Sistrunk v. Indus. Comm. (Feb. 3, 1987), Franklin App. No....