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

• Decision Date: 27 September 2018
• Docket Number: No. 2017-0589,2017-0589
• Parties: The STATE EX REL. KLEIN, Appellee, v. PRECISION EXCAVATING & GRADING COMPANY et al.; Industrial Commission, Appellant.
• Court: Ohio Supreme Court

155 Ohio St.3d 78

119 N.E.3d 386

2018 Ohio 3890

The STATE EX REL. KLEIN, Appellee,

v.PRECISION EXCAVATING & GRADING COMPANY et al.; Industrial Commission, Appellant.

No. 2017-0589

Supreme Court of Ohio.

Submitted February 13, 2018

Decided September 27, 2018

Richard L. Williger Co., L.P.A., and Richard L. Williger, Akron, for appellee.

Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant Attorney General, for appellant.

French, J.{¶ 1} In this appeal, we consider whether an injured worker who voluntarily leaves his position of employment for reasons unrelated to his workplace injury is entitled to continued temporary-total-disability compensation. Appellant, Industrial Commission of Ohio, determined that appellee, John Klein, who sustained a workplace injury on November 5, 2014, voluntarily abandoned his employment at Precision Excavating & Grading Company ("Precision Excavating") on November 20, 2014, for reasons unrelated to his injury. On Klein's request for a writ of mandamus, the Tenth District Court of Appeals found 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 and concluded that the commission abused its discretion in determining that Klein voluntarily abandoned his employment without determining whether Klein was medically capable of returning to work.

{¶ 2}Reitter Stucco and a similar case, State ex rel. OmniSource Corp. v. Indus. Comm. , 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41, held that a claimant who voluntarily abandons his employment is entitled to temporary-total-disability compensation if he is medically incapable of returning to work at the time of the abandonment. With due respect for the principles of stare decisis, we conclude that it is time to overrule Reitter Stucco and OmniSource under the stringent three-part test in Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256.

{¶ 3} Applying the long-standing principles of voluntary abandonment to Klein's claim for temporary-total-disability compensation, we reverse the judgment of the court of appeals and deny the writ of mandamus.

FACTS AND PROCEDURAL HISTORY

{¶ 4} Klein sustained injuries on November 5, 2014, while working for Precision Excavating. His workers' compensation claim was allowed for fractured ribs and traumatic hemopneumothorax. Robert A. Marley, M.D., his treating physician, issued a report stating that Klein was temporarily unable to work from the date of the injury through January 5, 2015. The parties do not dispute that the last date Klein worked at Precision Excavating was November 5, 2014, the date of the injury.

{¶ 5} On November 13, 2014, Klein informed the Bureau of Workers' Compensation that he was moving to Florida on November 20, 2014. Although the exact date of his relocation to Florida is unclear from the record, by November 26, 2014, Klein had asked the bureau to send correspondence to an address in Longboat Key, Florida.

{¶ 6} Klein filed a request for temporary-total-disability compensation based on Dr. Marley's report. At a February 18, 2015 hearing before a district hearing officer, Klein testified that even before his injury, he had been planning to move to Florida for better weather and more job opportunities. Precision Excavating's controller also testified that Klein had informed her on October 31, 2014, that he was moving to Florida and inquired as to the proper procedures for quitting his job. She did not receive a written resignation from Klein but did confirm that Klein last worked at Precision Excavating on November 5, 2014.

{¶ 7} The record contains additional evidence that before the date of his injury on November 5, 2014, Klein had told others of his intention to move to Florida. A coworker attested in a notarized statement that on November 3, 2014, Klein had told him that he intended to quit his job in two weeks and move to Florida. Another coworker attested that when she took Klein to the hospital on November 5, 2014, Klein informed her that he had recently given his two-week notice and intended to move to Florida to live with his mother.

{¶ 8} After the hearing, the district hearing officer awarded Klein temporary-total-disability compensation for only the closed period of November 6, 2014, through November 19, 2014. The hearing officer concluded that Klein voluntarily terminated his employment on November 20, 2014, for reasons unrelated to his workplace injuries and was therefore not eligible for temporary-total-disability compensation on or after that date.

{¶ 9} A staff hearing officer affirmed the district hearing officer's order. The Industrial Commission refused further appeals.

{¶ 10} Klein filed a complaint in mandamus in the Tenth District Court of Appeals, alleging that the commission abused its discretion when it limited his temporary-total-disability-compensation award to the period ending November 19, 2014.

{¶ 11} At the court of appeals, a magistrate relied on Reitter Stucco and concluded that if Klein remained medically unable to return to work on November 20, 2014, he was unable to voluntarily abandon his employment on that date. The magistrate determined that the commission had not evaluated Dr. Marley's opinion about whether Klein remained medically unable to return to work on that date. The magistrate recommended that the court issue a limited writ of mandamus returning the case to the commission with instructions to determine whether Klein was unable to return to his former position of employment on November 20, 2014, and if it determined that he was unable to return to work, to enter an order finding that Klein was entitled to further temporary-total-disability compensation.

{¶ 12} The court of appeals adopted the magistrate's decision and granted a limited writ of mandamus. 2017-Ohio-1020, 86 N.E.3d 1002, ¶ 14.

{¶ 13} This matter is before this court on the commission's direct appeal.

ANALYSIS

{¶ 14} The purpose of temporary-total-disability compensation is to compensate an injured employee for lost earnings during a period of disability while an injury heals. State ex rel. McCoy v. Dedicated Transport, Inc. , 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35. To qualify for temporary-total-disability compensation, a claimant must show that he or she is medically incapable of returning to the former position of employment and that the industrial injury is the cause of the loss of earnings. Id.

{¶ 15} Ordinarily, when a claimant's voluntary actions, rather than his or her industrial injury, cause a loss of wages, that claimant is no longer eligible for temporary-total-disability compensation. State ex rel. Ashcraft v. Indus. Comm. , 34 Ohio St.3d 42, 44, 517 N.E.2d 533 (1987).

{¶ 16} We have carved out an exception to this voluntary-abandonment rule—an exception that Klein relies on here. We have held that if a claimant is already disabled when the separation of employment occurs, he or she is not disqualified from receiving temporary-total-disability compensation.

Reitter Stucco , 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861, at ¶ 10 ; OmniSource , 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41, at ¶ 10. In doing so, we construed State ex rel. Pretty Prods., Inc. v. Indus. Comm. , 77 Ohio St.3d 5, 670 N.E.2d 466 (1996), as requiring an inquiry into a claimant's physical capacity: "a claimant can abandon a former position of employment only if the claimant was physically capable of doing that job at the time of the alleged abandonment." OmniSource at ¶ 12, citing Pretty Prods . . Even if the abandonment of employment was voluntary, we held, "there must be consideration of whether the employee was still disabled at the date of termination." Reitter Stucco at ¶ 11, citing Pretty Prods . .

{¶ 17} Upon review now, we conclude that it is time to overrule Reitter Stucco and OmniSource under the three-part test set forth in Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. Both decisions were wrongly decided at the time, they defy practical workability, and abandoning them would not create an undue hardship for those who have relied upon them. See id. at paragraph one of the syllabus.

Reitter Stucco and OmniSource were wrongly decided

{¶ 18}Reitter Stucco and OmniSource contradict a fundamental tenet of temporary-total-disability compensation: that the industrial injury must cause the worker's loss of earnings. McCoy , 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, at ¶ 35. "All forms of death and disability benefits provided by R.C. Chapter 4123," including temporary-total-disability compensation, "are intended to compensate for ‘loss sustained on account of the injury.’ " Id. , quoting R.C. 4123.54(A). For an injured worker to be eligible for compensation, "it must appear that, but for the industrial injury, the claimant would be gainfully employed." Id.

{¶ 19} As a corollary, when a claimant removes himself from employment for reasons unrelated to the work-related injury, he is no longer eligible for temporary-total-disability compensation. Id. at ¶ 38. In those circumstances, the voluntary abandonment—and not the injury—causes the loss of wages. Id. We have applied this logic whether the claimant's voluntary abandonment of his position resulted from termination from employment for the knowing violation of a written work rule that clearly defined a dischargeable offense, State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. , 72 Ohio St.3d 401, 650 N.E.2d 469 (1995), from incarceration, Ashcraft , 34 Ohio St.3d 42, 517 N.E.2d 533, or from retirement, State ex rel. Pierron v. Indus. Comm. , 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140.

{¶ 20} And most importantly for the matter before us, we have concluded that an employee who quit his job for reasons unrelated to his workplace injury was ineligible for temporary-total-disability compensation. State ex rel. McGraw v. Indus. Comm. , 56 Ohio St.3d 137, 564 N.E.2d 695 (1990).

{¶ 21}Reitter Stucco and...