State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.

Decision Date28 June 1995
Docket NumberLOUISIANA-PACIFIC,No. 93-2545,93-2545
Citation650 N.E.2d 469,72 Ohio St.3d 401
PartiesThe STATE ex rel.CORPORATION, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
CourtOhio Supreme Court

Appellee-claimant, Patrick Longmore, injured his back while in the course of and arising from his employment with appellant Louisiana-Pacific-Corporation ("L-P") on October 3, 1989. L-P, a self-insured employer, began paying temporary total disability compensation based on reports from Dr. Francis M. Turocy, attending physician.

The record contains two pertinent C-84s, "Physician's Report Supplemental," from Dr. Turocy. The reports, dated December 11, 1990 and December 16, 1990, respectively, list the date of last examination as December 10, 1990, and both list claimant's "actual date" of release to return to his former job as December 17, 1990.

The record indicates that claimant did not report to work or call in on December 17, 18 or 19, 1990. By letter dated December 20, 1990, L-P informed claimant:

"We have received a letter from your attending physician stating you have been released for work December 17, 1990 for full-time status. As you are aware from your Louisiana-Pacific Corporation handbook, failure to report to work for three (3) consecutive days is an automatic termination. We, at Louisiana-Pacific Corporation Boardman Plant, have not heard from you. RESULT: TERMINATION AS OF 12-20-90."

The record indicates that claimant did not contact L-P for another two weeks. A memorandum from appellant, which is dated January 2, 1991 and which claimant does not dispute, indicates that claimant contacted the plant manager on that date and stated "that there was a misunderstanding when he got released by his doctor and that his doctor was supposed to call and report him off." His dismissal remained intact.

Claimant later moved appellee Industrial Commission to pay temporary total disability compensation from January 25, 1991 forward, pursuant to a C-84 from newly retained physician, Dr. Doreen M. Rioux. L-P conversely moved the commission to "confirm termination" of claimant's temporary total disability compensation.

A commission district hearing officer awarded temporary total compensation from January 25, 1991 through October 31, 1991 and to continue contingent on medical proof. The hearing officer found L-P's motion moot, since temporary total disability compensation was terminated on December 16, 1990. A regional board of review affirmed.

At the May 8, 1992 staff hearing that followed, L-P presented evidence of claimant's firing. The staff hearing officers affirmed the prior orders without addressing the issue of claimant's dismissal. Reconsideration was denied.

L-P filed a complaint in mandamus in the Court of Appeals for Franklin County, claiming that the commission abused its discretion in failing to rule on the question of voluntary employment separation. The court of appeals denied the writ.

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

Roetzel & Andress, and Thomas M. McCarty, Akron, for appellant Louisiana-Pacific Corp.

Betty D. Montgomery, Atty. Gen., and William J. McDonald, Asst. Atty. Gen., for appellee Indus. Com'n.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald E. Slipski and Steven L. Paulson, Austintown, for appellee Longmore.

PER CURIAM.

Louisiana-Pacific informed the commission of claimant's dismissal at the May 8, 1992 staff hearing. The staff hearing officer order that followed did not, however, mention the termination. In its complaint for a writ of mandamus, L-P claimed that the omission was an abuse of discretion and sought a writ ordering the commission to vacate the May 8, 1992 order. The appellate court declined, essentially ruling that claimant did not voluntarily abandon his employment. For the reasons to follow, its judgment is reversed.

Voluntary departure from employment precludes temporary total disability compensation. State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 46, 531 N.E.2d 678, 680. Appellees contend that firing--since it is not employee-initiated--is inherently involuntary and, thus, cannot constitute a voluntary abandonment of employment so as to bar temporary total compensation. We disagree.

In State ex rel. Ashcraft v. Indus....

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