State ex rel. McGraw v. Industrial Com'n of Ohio

Decision Date26 December 1990
Docket NumberNo. 89-2179,89-2179
Citation564 N.E.2d 695,56 Ohio St.3d 137
PartiesThe STATE, ex rel. McGRAW, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, et al., Appellees.
CourtOhio Supreme Court

Appellant, Richard D. McGraw, was injured in 1976 while in the course of and arising from his employment as a spray paint technician with appellee Kenworth Trucking Company. His claim for workers' compensation benefits was allowed. He later quit Kenworth for reasons unrelated to his injury and moved to Pennsylvania.

Appellant had several jobs while in Pennsylvania. He first repaired auto bodies, but left employment eighteen months later after a dispute with his employer. He was then self-employed as a repairman from 1983 to 1985. After the business failed, he sold mobile homes. He quit that job in mid-1986 after a disagreement with management, and has not worked since. During the five-year period, 1980-1985, he sought no medical treatment for his allowed condition.

In March 1987 appellant filed a motion for temporary total disability compensation from Kenworth, a self-insured employer, from July 15, 1986 until released to return to work. The appellee Industrial Commission ("commission"), however, concluded that appellant had "abandoned the job at which he was injured" and denied compensation.

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying temporary total compensation. The appellate court disagreed and denied the writ.

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

Agee, Clymer, Morgan & Fulton Co., L.P.A., and Philip J. Fulton, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Michael L. Squillace and Scott A. Armour, Columbus, for appellee Industrial Com'n.

Lane, Alton & Horst, Gregory D. Rankin and T. Jeffrey Beausay, Columbus, for appellee Kenworth Trucking Co.

PER CURIAM.

Appellant's appeal presents a single question: Does appellant's departure from his employment at Kenworth, for reasons unrelated to his injury, preclude his receiving temporary total disability compensation over the period sought? For the reasons to follow, we find that it does.

The effect of the termination of a claimant's employment on entitlement to temporary total compensation was first discussed 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 court, in discussing the issue as it related to a claimant who had voluntarily retired, focused on the definition of "temporary total disability" whereby the claimed disability must prevent the return to the former position of employment. (State, ex rel. Ramirez v Indus. Comm. [1982], 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586.) As Jones & Laughlin stated:

" * * * [T]he 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 must also prevent him from returning to that position." Id., 29 Ohio App.3d at 147, 29 OBR at 164, 504 N.E.2d at 453.

Accordingly, it was held:

"A worker is prevented by 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." Id. at paragraph one of the syllabus.

State, ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533, 535, interpreted Jones & Laughlin as espousing a two-prong test for eligibility in temporary total disability cases where the relevant employment relationship no longer exists:

"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 on 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. [Another] consideration is a reflection of the underlying purpose of temporary total compensation; to compensate an injured employee for the loss of earnings which he incurs while the injury heals."

The court in Ashcraft thus held:

"When a claimant has voluntarily removed himself from the work force, he no longer incurs a loss of earnings because he is no longer in a position to return to work. This logic would apply whether the claimant's abandonment of...

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