State ex rel. Klein v. Precision Excavating & Grading Co.

• Decision Date: 21 March 2017
• Docket Number: No. 15AP–908,15AP–908
• Citation: 86 N.E.3d 1002,2017 Ohio 1020
• Parties: STATE of Ohio EX REL. John KLEIN, Relator, v. PRECISION EXCAVATING & GRADING CO., and Industrial Commission of Ohio, Respondents.
• Court: Ohio Court of Appeals

86 N.E.3d 1002

2017 Ohio 1020

STATE of Ohio EX REL. John KLEIN, Relator,

v.PRECISION EXCAVATING & GRADING CO., and Industrial Commission of Ohio, Respondents.

No. 15AP–908

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 21, 2017

On brief: Richard L. Williger Co., LPA, and Richard L. Williger, for relator.

On brief: Michael DeWine, Attorney General, and LaTawnda N. Moore, for respondent Industrial Commission of Ohio.

DECISION

DORRIAN, J.

{¶ 1} Relator, John Klein, has filed a request for a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the April 21, 2015 order of its staff hearing officer that grants temporary total disability ("TTD") compensation for the closed period of November 6 through 19, 2014, but denies TTD compensation beginning November 20, 2014 based on a finding that relator has voluntarily abandoned his employment, and to enter an order that awards TTD compensation absent the finding that relator voluntarily abandoned his employment.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends to this court the granting of a limited writ of mandamus, with instructions.

{¶ 3} The magistrate found the commission abused its discretion in determining that relator voluntarily abandoned his employment on November 20, 2014 without determining whether relator remained medically unable to return to his former position of employment on that same date. Finding State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861, to be dispositive, the magistrate found that "this case hinges on the question of whether relator medically remained unable to return to his former position of employment beginning November 20, 2014 [and that] [t]he commission did not fully evaluate Dr. Marley's Medco–14 because it believed that relator was ineligible for TTD compensation as of November 20, 2014." (Appended Magistrate's Decision at ¶ 51.)

{¶ 4} The magistrate recommended a limited writ of mandamus and ordered:

On remand, if the commission determines that the medical evidence on which it relies establishes that relator remained unable to return to his former position of employment on November 20, 2014, it shall enter an order finding that relator did not voluntarily abandon his employment, and that he is entitled to further TTD compensation. On the other hand, if, on remand, the commission determines that the medical evidence on which it relies establishes that relator was able to return to his former position of employment as of November 20, 2014, it shall enter an order that relator became ineligible for TTD compensation as of November 20, 2014.

(Appended Magistrate's Decision at ¶ 52.)

{¶ 5} The commission has filed the following objection to the magistrate's decision:

The Magistrate erred in granting a limited writ of mandamus pursuant to State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861 because, under State ex rel. Hildebrand v. Wingate Transport Inc., 16 [26] N.E.3 [N.E.3d] 798, 2015-Ohio-167, as the commission had some evidence that Klein abandoned his employment for reasons unrelated to his industrial injury.

{¶ 6} The commission does not challenge the magistrate's findings of fact, but, rather, challenges his application of law to the facts. The commission argues that Reitter Stucco does not apply because in Reitter Stucco the claimant's loss of employment was employer-initiated. Whereas in the case before us, relator's loss of employment was worker-initiated. The commission suggests this court consider and apply State ex rel. Hildebrand v. Wingate Transport, Inc., 141 Ohio St.3d 533, 2015-Ohio-167, 26 N.E.3d 798.

{¶ 7} In Reitter Stucco, Tony A. Mayle, the injured worker, had surgery and undertook physical therapy. Although Mayle was a conscientious and dedicated participant in physical therapy and his goal was to improve enough to return to his former position of employment, his vocational team was unsure whether he would ever be capable of the physical demands of his former position of employment on a sustained basis. During this time, Reitter Stucco had been paying Mayle wages in lieu of TTD compensation. Nevertheless, Reitter Stucco stopped paying Mayle wages after he was fired for making comments about the company president. Mayle then applied for TTD compensation which the commission ultimately granted. The Supreme Court of Ohio denied Reitter Stucco's request for a writ of mandamus. The Supreme Court relied on the precedent it had set in State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5, 670 N.E.2d 466 (1996), and determined that "even if a termination satisfies all three Louisiana–Pacific criteria for being a voluntary termination, eligibility for [TTD] compensation remains if the claimant was still disabled at the time the discharge occurred." Reitter Stucco at ¶ 10, citing State ex rel. Louisiana–Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 650 N.E.2d 469 (1995). The Supreme Court further stated that if the criteria of Louisiana–Pacific is satisfied, suggesting that the termination was voluntary, "there must be consideration of whether the employee was still disabled at the date of termination." Id. at ¶ 11. The Supreme Court concluded that Louisiana–Pacific and Pretty Prods. are not mutually exclusive and they may both factor into the eligibility analysis.

{¶ 8} In Hildebrand, Brian J. Hildebrand, Jr., the injured worker, returned to work with a physician's note restricting him to modified duty. The employer spoke with Hildebrand to confirm he could return to light-duty work and, during the course of the conversation, the employer asked Hildebrand to return the keys to the vehicle the employer had previously loaned to him. According to the employer:

Hildebrand became agitated and asked if he was being fired. [The employer] replied that he was not fired, but that it was time for him to stop using [the employer's] Jeep. Hildebrand became upset and began loading tools and equipment into the pickup truck of an owner-operator who drove for [the employer]. [The employer] returned to the work site and asked Hildebrand to stop so that he could identify the items being taken. When Hildebrand refused, [the employer] called the police. Hildebrand eventually cooperated with the police officers who responded, unloaded the items, and left the premises.

Id. at ¶ 6. The commission denied Hildebrand's request for TTD compensation on the basis that he had voluntarily quit his former position of employment and had not reentered the workforce. The commission further found that the employer had been "ready, willing and able to offer light-duty employment" within Hildebrand's physical capabilities. Id. at ¶ 8. The Supreme Court denied Hildebrand's request for a writ of mandamus. The court began by noting that Hildebrand "does not appeal the finding that he voluntarily quit his job for reasons unrelated to his industrial injury." Id. at ¶ 14. The Supreme Court concluded:

Because Hildebrand failed to demonstrate that his loss of earnings was due to the industrial injury, he did not meet that requirement for receiving [TTD] compensation.

It is undisputed that evidence in the record supports that Hildebrand voluntarily quit his job following a disagreement with his employer that had nothing to do with his injury. This disagreement happened to occur shortly after he reported to work with a note from his doctor restricting him to modified duty. His departure was not causally related to the industrial injury. It was voluntary and broke the nexus between the injury and the unemployment; thus, he was not entitled to [TTD] compensation.

Id. at ¶ 21–22. The court further noted that Hildebrand could be distinguished from Pretty Prods. and similar cases that followed because in those cases each injured worker was already receiving TTD compensation when terminated from their employment and had therefore already demonstrated that he or she was disabled as a result of an industrial injury (which was the cause of a loss of earnings).

{¶ 9} The facts in the case before us are distinguishable from the facts in both Reitter Stucco and Hildebrand. Accordingly, it is difficult to determine which precedent should apply here. We do note, however, that here, as in Reitter Stucco, the injured worker had not yet returned to work on the date he departed for Florida, November 20, 2014. Dr. Marley indicated on the Medco–14 that the "[i]njured worker is temporarily not released to any work, including the former position of employment from (date): 11/5/2014 to 1/5/2015." (Stip. of Evidence, ex. 5 at 2.) In Hildebrand, on the other hand, the injured worker had returned to work, albeit in a restricted capacity. Furthermore, here, relator had already been receiving TTD compensation, as it was approved for the period November 6 through 19, 2014. Therefore, a determination had already been made that relator was disabled as a result of an industrial injury.

{¶ 10} In Pretty Prods., the court held:

The receipt of temporary total disability ("TTD") compensation rests on a claimant's inability to return to his or her former job as a direct result of an industrial injury. State ex rel. Ramirez v. Indus. Comm.(1982), 69 Ohio St.2d 630 , syllabus. However, eligibility may be compromised when the claimant is no longer employed at that job. Once a claimant is separated from the former position of employment, future TTD compensation eligibility hinges on the timing and character of the claimant's departure.

The timing of a claimant's separation from employment can, in some cases, eliminate the need to investigate the character of departure. For this to occur, it must be shown that the claimant was already disabled when

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