State ex rel. Gross v. Indus. Comm.

Decision Date27 September 2007
Docket NumberNo. 2005-1689.,2005-1689.
Citation2007 Ohio 4916,115 Ohio St.3d 249,874 N.E.2d 1162
PartiesThe STATE ex rel. GROSS, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellee; Food, Folks & Fun, Inc., d.b.a. KFC, Appellant.
CourtOhio Supreme Court

Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, Brett R. Bissonnette, and Todd T. Miller, Canton, for appellee David M. Gross.

Scheuer, Mackin & Breslin, L.L.C., Edna Scheuer, Robert S. Corker, and Salvatore A. Gilene, for appellant.

Marc C. Dann, Attorney General, Elise Porter, Gerald H. Waterman, and Andrew J. Alatis, Assistant Attorneys General, for appellee Industrial Commission.

Philip J. Fulton Law Office and Philip J. Fulton, Columbus, urging reconsideration for amicus curiae Ohio Academy of Trial Lawyers.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, Columbus, urging reconsideration for amicus curiae Ohio AFL-CIO.

Benesch, Friedlander, Coplan & Arnoff, L.L.P., N. Victor Goodman, and Mark D. Tucker, Columbus, urging reconsideration for amicus curiae Ohio State Building and Construction Trades Council.

Stephen E. Mindzak Law Offices, L.L.C., Stephen E. Mindzak, Columbus, and Shareef S. Rabaa, urging reconsideration for amicus curiae United Auto, Aerospace & Agricultural Implement Workers of America.

Paul C. Cox, Chief Counsel, urging reconsideration for amicus curiae Fraternal Order of Police.

Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickery, opposing reconsideration for amicus curiae Ohio Chamber of Commerce.

Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, Columbus, opposing reconsideration for amici curiae Ohio Self-Insurers Association and Ohio Council of Retail Merchants.

Bricker & Eckler, L.L.P., and Thomas R. Sant, Columbus, opposing reconsideration for amici curiae Ohio Chapter of the National Federation of Independent Business and the Ohio Manufacturers Association.


{¶ 1} This matter is before us on a motion for reconsideration filed by appellee David M. Gross. Gross's request for reconsideration was supported by appellee Industrial Commission of Ohio.1 Respondent-appellant, Food, Folks & Fun, Inc., d.b.a. KFC, filed a memorandum opposing reconsideration.2

{¶ 2} We ordered oral argument on the limited issue of whether we should grant the motion for reconsideration and ordered that each party may file a brief on the issue.

{¶ 3} For the reasons that follow, we grant Gross's motion, vacate our decision in State ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500, 858 N.E.2d 335 ("Gross I"), and affirm the judgment of the court of appeals, which granted a writ of mandamus ordering the Industrial Commission to reinstate Gross's temporary total disability ("TTD") benefits.

Gross I

{¶ 4} In State ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500, 858 N.E.2d 335, we upheld the commission's termination of TTD compensation to Gross for injuries he sustained in the course of and arising out of his employment with KFC. Gross had injured himself and two others on November 26, 2003, when he placed water in a pressurized deep fryer, heated the fryer, and opened the lid. KFC conducted an investigation into the accident and determined that Gross had violated a workplace safety rule and repeated verbal warnings. KFC terminated his employment on February 13, 2004. As a result, the Industrial Commission terminated Gross's TTD benefits on the basis that he had voluntarily abandoned his employment.

{¶ 5} In Gross I, the majority determined that KFC terminated Gross for disobeying written safety rules and ignoring repeated warnings. Therefore, the court held, the conduct for which he was fired constituted a voluntary abandonment of employment that precluded continuation of his TTD compensation.

{¶ 6} Gross contends that our opinion in Gross I wrongfully injected fault into the workers' compensation system and expanded the voluntary-abandonment doctrine.

Statutory Basis of Compensation for Temporary Total Disability

{¶ 7} Workers' compensation law provides that an employee who is injured in the course of employment is entitled to receive "compensation for loss sustained on account of the injury." R.C. 4123.54(A). An employee who is temporarily and totally disabled as a result of a workplace injury may be entitled to compensation for lost earnings during the period of disability while the injury heals. State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533. Generally, TTD benefits terminate when the employee returns to work, is capable of returning to work, or has reached maximum medical improvement. R.C. 4123.56.

Voluntary-Abandonment Doctrine

{¶ 8} In State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, 29 OBR 162, 504 N.E.2d 451, the Tenth District Court of Appeals was asked to determine whether a claimant was entitled to the continuation of his TTD benefits after he permanently retired from the work force. The appellate court applied a two-part analysis to determine whether an injury qualified for TTD compensation. The Jones court first focused upon the disabling aspects of the injury that prevented the claimant from returning to his former position of employment. The court next inquired whether there was any reason other than the injury that was preventing the claimant from returning to work. Id. at 147, 29 OBR 162, 504 N.E.2d 451. This reflected the underlying purpose of TTD compensation, i.e., to compensate an employee for the loss of earnings while the industrial injury heals.

{¶ 9} Jones concluded that a claimant's voluntary retirement with no intention of returning to the work force would be reason to terminate TTD benefits because his disability would no longer be the cause of his loss of earnings. The court 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." Id., 29 Ohio App.3d at 147, 29 OBR 162, 504 N.E.2d 451.

{¶ 10} In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533, this court applied the underlying principle of Jones to a claimant who was in prison. While incarcerated, Nelson Ashcraft filed a motion for TTD compensation related to an industrial injury he sustained three years earlier. The commission denied his request on the ground that his incarceration amounted to an abandonment of his former position of employment.

{¶ 11} Ashcraft argued that, unlike the claimant in Jones, his incarceration was not a permanent abandonment of the work force and it could not be regarded as voluntary. The temporary nature of his abandonment of his former employment was irrelevant, the court held. Furthermore, a person who violates the law is presumed to tacitly accept the consequences of his voluntary acts so there is a voluntary nature to incarceration. The claimant was no longer in a position to return to work while incarcerated. His loss of earnings was no longer "on account of the injury" as required by R.C. 4123.54. Therefore, the court held that he had voluntarily removed himself from the work force and was not eligible for TTD benefits.

{¶ 12} Since Ashcraft, we have continued to apply the voluntary-abandonment doctrine to situations in which the claimant has left his former position of employment following his injury. In Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678, we clarified that the abandonment of employment must be voluntary, not involuntary, to act as a bar to TTD compensation. In Rockwell, the claimant had retired while on disability. There was some evidence, however, that his retirement was causally related to his industrial injury. Therefore, we upheld the commission's determination that the claimant's retirement was not voluntary and he continued to be eligible for TTD benefits. "We find that a proper analysis must look beyond the mere volitional nature of a claimant's departure. The analysis must also consider the reason underlying the claimant's decision to retire. We hold that where a claimant's retirement is causally related to his injury, the retirement is not `voluntary' so as to preclude eligibility for temporary total disability compensation." Id. at 46, 531 N.E.2d 678.

{¶ 13} In State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469, we were asked to determine whether an employee's termination for violating work rules could be construed as a voluntary abandonment of employment that would bar TTD compensation. In that case, the employer was notified that the claimant was medically released to return to work following a period of TTD. When the claimant did not report to work for three consecutive days, he was automatically terminated for violation of the absentee policy in the company's employee handbook.

{¶ 14} The claimant subsequently moved for additional TTD benefits, arguing that being fired was an involuntary departure from employment. "`Although not generally consented to, discharge, like incarceration, is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character.'" Louisiana-Pacific, 72 Ohio St.3d at 403, 650 N.E.2d 469, quoting State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202. "[W]e 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. We explained...

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