State ex rel. McCoy v. Dedicated Transport

• Citation: 97 Ohio St.3d 25,776 N.E.2d 51,2002 Ohio 5305
• Decision Date: 16 October 2002
• Docket Number: No. 2001-0406.,No. 2001-0232.,2001-0232.,2001-0406.
• Parties: The STATE ex rel. McCOY, Appellant, v. DEDICATED TRANSPORT, INC. et al., Appellees. The State ex rel. Brandgard, Appellant, v. Industrial Commission of Ohio, Appellee, et al.
• Court: United States State Supreme Court of Ohio

776 N.E.2d 51

97 Ohio St.3d 25

2002 Ohio 5305

The STATE ex rel. McCOY, Appellant, v. DEDICATED TRANSPORT, INC. et al., Appellees.

The State ex rel. Brandgard, Appellant, v. Industrial Commission of Ohio, Appellee, et al.

No. 2001-0232.

No. 2001-0406.

Supreme Court of Ohio.

Submitted May 21, 2002.

Decided October 16, 2002.

COPYRIGHT MATERIAL OMITTED

Larrimer & Larrimer and David H. Swanson, for appellant in case No. 2001-0232.

Dinsmore & Shohl, L.L.P., and Michael

L. Squillace, Columbus, for appellee Dedicated Transport, Inc., in case No. 2001-0232.

Betty D. Montgomery, Attorney General, and Dennis L. Hufstader, Assistant Attorney General, for appellee Industrial Commission in case No. 2001-0232.

Gregg A. Austin, Cleveland, and Jeffrey A. Kolt, Solon, for appellant in case No. 2001-0406.

Betty D. Montgomery, Attorney General, and Dennis H. Behm, Assistant Attorney General, for appellee in case No. 2001-0406.

ALICE ROBIE RESNICK, J.

{¶ 1} These two workers' compensation appeals have been consolidated for purposes of review because they arise from analogous facts and present a common legal issue.

Case No. 2001-0232

{¶ 2} On March 3, 1998, claimant-appellant, Lester McCoy, received an injury in the course of and arising from his employment as a truck driver with appellee Dedicated Transport, Inc. Dedicated Transport, a self-insuring employer under the Workers' Compensation Act, certified the claim for "contusion of left elbow; contusion of back lumbar." Claimant's treating physician released him to return to work on March 9, 1998. On March 13, 1998, claimant was fired for tardiness and insubordination.

{¶ 3} On April 14, 1999, a district hearing officer for appellee Industrial Commission of Ohio ("commission") additionally allowed the claim for "posterior central disc herniation, L5-S1" and authorized a lumbar laminectomy. Claimant underwent surgery on June 28, 1999, and then moved for temporary total disability ("TTD") compensation beginning on that date. The motion was ultimately denied by the commission because the claimant's discharge from his former position of employment on March 13, 1998, constituted a voluntary withdrawal from employment under State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469.

{¶ 4} After seeking and being denied a writ of mandamus in the court of appeals, claimant brought this appeal as of right.

Case No. 2001-0406

{¶ 5} On September 3, 1999, claimant-appellant, Bruce Brandgard, suffered a work-related hernia while employed by America's Body Company, Inc./Buckeye Truck Equipment, Inc., a state-fund employer. The following day, claimant was given a drug test while he was at the hospital getting treatment for his injury. The drug test was positive for cocaine, and claimant was fired on September 10, 1999.

{¶ 6} On September 24, 1999, claimant underwent surgery to repair the hernia. He then moved for TTD compensation from that date until October 22, 1999, when he returned to work for a different employer. The commission, appellee herein, ultimately allowed the claim for the hernia but denied TTD compensation for the period of disability following claimant's surgery. In denying compensation, the commission found that claimant's discharge constituted a voluntary abandonment of his employment pursuant to Louisiana-Pacific Corp.

{¶ 7} The court of appeals denied claimant's request for a writ of mandamus, and this appeal followed as of right.

{¶ 8} In Louisiana-Pacific Corp., 72 Ohio St.3d at 402-403, 650 N.E.2d 469, we recognized that a justifiable discharge for misconduct can constitute a voluntary abandonment of the claimant's former position of employment so as to bar subsequent TTD compensation. We found that, although not generally consented to or initiated by the employee, firing can take on a voluntary character when it is a consequence of wrongful or prohibited behavior that the claimant willingly undertook and should have expected to result in discharge. Thus, we characterized as voluntary "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., 72 Ohio St.3d at 403, 650 N.E.2d 469.

{¶ 9} The claimants herein concede that they were fired under circumstances that amount to a voluntary abandonment of their former positions of employment. Instead of challenging the commission's reliance on Louisiana-Pacific Corp. to characterize their departures as voluntary, these claimants question whether the voluntary abandonment rule operates, or should operate, as an automatic and permanent bar to a claimant's eligibility for future TTD compensation. Their essential proposition is that a voluntary departure from a position of employment, whether by firing or otherwise, precludes eligibility for TTD compensation only when it breaks the causal connection between the claimant's industrial injury and the claimant's wage loss.

{¶ 10} These claimants differ, however, in their description of the circumstances under which a claimant is eligible for TTD compensation, despite having voluntarily left the job at which he or she was injured. Claimant Lester McCoy argues:

{¶ 11} "Although appellant's actions may have prevented payment for an initial period of temporary total [disability] because it was his job termination rather than his injury that prevented his return to work, once appellant did return to work (for another employer) and suffered a flare-up of his symptoms and hospitalization the impediment to receipt of temporary total disability compensation should be lifted because it is the injury that is preventing him from working and not the alleged insubordination and tardyness [sic] at his former place of employment."

{¶ 12} According to claimant Bruce Brandgard, however, the cause-and-effect relationship between a work-connected injury and TTD is conclusively broken only when the claimant voluntarily abandons the entire work force. Where the claimant abandons only his or her former job, however, eligibility for subsequent TTD compensation depends upon whether there are any other factors that contribute substantially to claimant's unemployment. Thus, Brandgard concludes, "While it is undisputed that the firing on September 10, 1999 caused the claimant to need to look for a replacement job as of September 11, 1999, issues remain as to whether that firing remained the one and only cause of his need for replacement wages as of the date of his surgery."

{¶ 13} In order to adequately address these issues, it is first necessary to trace the history and theoretical underpinnings of the voluntary abandonment rule. As initially conceived, the voluntary abandonment rule rested on the presumption that eligibility for TTD compensation depended upon the claimant's continued employment at the job where the injury occurred. This view was rooted in State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586, syllabus, where we held that "[u]nder R.C. 4123.56, temporary total disability is defined as a disability which prevents a worker from returning to his former position of employment." (Emphasis added.)

{¶ 14} Relying on this definition, the appellate court in State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, 147, 29 OBR 162, 504 N.E.2d 451, declared that to be compensable, "the industrial injury must not only be such as to render the claimant unable to perform the functions of his former position of employment, but it also must prevent him from returning to that position." The court then reasoned as follows:

{¶ 15} "[O]ne who has voluntarily retired and has no intention of ever returning to his former position of employment is not prevented from returning to that former position by an industrial injury * * *. A worker is prevented by an industrial injury from returning to his former position of employment where, but for the industrial injury, he would return to such former position of employment. However, 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. Such action would include such situations as the acceptance of another position, as well as voluntary retirement.

{¶ 16} "Accordingly, we * * * find that voluntary retirement may preclude a claimant from receiving temporary total disability benefits to which he otherwise might be entitled, if by such retirement the claimant has voluntarily removed himself permanently from the work force." Id., 29 Ohio App.3d at 147, 29 OBR 162, 504 N.E.2d 451.

{¶ 17} In State ex rel. Ashcroft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533, this court adopted the rationale of Jones & Laughlin and applied the voluntary abandonment rule to a claimant's incarceration. The claimant in Ashcraft argued that, unlike the claimant in Jones & Laughlin, he had no intention of removing himself permanently from the job market. We found this distinction to be inconsequential, however, reasoning as follows:

{¶ 18} "The crux of this decision [Jones & Laughlin] was the court's recognition of the two-part test to determine whether an injury qualified for temporary total disability compensation. The first part of this test focuses upon the disabling aspects of the injury, whereas the latter part determines if there are any factors, other than the injury, which would prevent the claimant from returning to his former position. The secondary consideration is a reflection of the underlying purpose of temporary total compensation: to compensate...