State ex rel. Ohio State Univ. v. Pratt

Decision Date28 September 2021
Docket NumberNo. 19AP-603,19AP-603
Citation178 N.E.3d 991
Parties STATE EX REL. The OHIO STATE UNIVERSITY, Relator, v. Lori PRATT et al., Respondents.
CourtOhio Court of Appeals

On brief: Andy Bowers & Assoc., LLC, and Donald P. Beck, Columbus, for relator.

On brief: Agee, Clymer, Mitchell & Portman, and Eric B. Cameron, for respondent Lori Pratt.

On brief: Dave Yost, Attorney General, Cindy Albrecht, for respondent Industrial Commission of Ohio.



{¶ 1} Relator, The Ohio State University ("Ohio State"), brings this original action seeking a writ of mandamus ordering respondent, Industrial Commission of Ohio ("Commission"), to vacate its order awarding temporary total disability ("TTD") to respondent, Lori Pratt, and enter an order denying disability compensation based on Pratt voluntarily abandoning her employment.


{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending this court issue a writ of mandamus ordering the Commission to vacate its order awarding TTD compensation after July 5, 2017 and enter an order awarding such compensation only to that date.

{¶ 3} The Commission and Pratt filed objections to the magistrate's decision on February 9 and 11, 2021, respectively. Relator filed a combined limited objection to the findings of fact and a brief in support of the magistrate's decision on February 19, 2021. We will address each objection in turn.

A. Objections of Lori Pratt and Industrial Commission of Ohio

{¶ 4} In her first objection, Pratt argues that the magistrate erred in its interpretation of the voluntary abandonment test under State ex rel. Klein v. Precision Excavating & Grading Co. , 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386. Similarly, the Commission argues that the magistrate erred in its reliance on Klein as it is factually distinguishable from the instant case. For harmony of analysis, we will address both objections together. A brief review of Klein is instructive.

{¶ 5} In Klein , the claimant was injured while working for Precision Excavating on November 5, 2014. Klein's workers’ compensation claim was allowed after suffering fractured ribs and traumatic hemopneumothorax in the accident. The treating physician issued a report that claimant was temporarily unable to work from the date of the accident through January 5, 2015. Klein filed a request for TTD compensation based on the report. At the hearing before the district hearing officer, claimant stated that he had been planning to move to Florida prior to the injury. There was testimony that claimant had informed the controller for Precision Excavating that he was moving to Florida on October 31, 2014, nearly a week before the injury. There was also evidence presented that claimant had told coworkers that he intended to move to Florida and had already given his two-week notice. Klein at ¶ 7. The district hearing officer granted claimant's TTD compensation claim for the closed period of November 6 through 19, 2014 finding that claimant voluntarily terminated his employment on November 20, 2014 for reasons unrelated to the workplace injuries. The order was affirmed by the staff hearing officer and the Commission refused additional appeals. The claimant filed a complaint in mandamus arguing the Commission abused its discretion limiting the claimant's TTD award to the period ending November 19, 2014. Relying on State ex rel. Reitter Stucco, Inc. v. Indus. Comm. , 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861, this court concluded that, because claimant was medically unable to return to work, he was unable to voluntarily abandon his employment on that date. The Supreme Court of Ohio, overruling Reitter Stucco and State ex rel. OmniSource Corp. v. Indus. Comm. , 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41, reversed the decision reasserting the fundamental tenet of eligibility for TTD compensation that the injury must cause the claimant's loss of earnings. The Klein court wrote:

[W]hen 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.
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).

Id. at ¶ 19-20.

{¶ 6} There are several factual similarities between Klein and the instant case. In Klein , there was evidence that the claimant had provided some notice of his departure from his place of employment and abandoned the position despite being injured. Here, the evidence is largely undisputed that respondent submitted her two-week notice from her position as the Food and Beverage Director at the Blackwell Inn on June 20, 2017, four days prior to the date of injury. Respondent ultimately accepted a new position with Sweet Carrot as evidenced by the signed agreement dated June 28, 2017. Therefore, under Klein , Pratt was foreclosed from receiving TTD compensation after she had voluntarily abandoned her position on July 5, 2017. While the Commission argues that "Pratt did not voluntarily abandon the workforce based upon the employment offer," that is not the test. (Objs. to the Mag.’s Decision of Jan. 28, 2021 of Respondent Indus. Comm. at 2.) Under Klein , we must look at whether respondent voluntarily removed herself from her former position of employment, even if the claimant remains disabled at the time of her separation from employment. Klein at ¶ 30. The Klein court reasoned:

[T]he problems in Reitter Stucco and OmniSource arose from the following statement in Pretty Prods : " [A] claimant can abandon a former position or remove himself or herself from the work force only if he or she has the physical capacity for employment at the time of the abandonment or removal.’ " (Brackets sic.) Pretty Prods. , 77 Ohio St.3d at 7, 670 N.E.2d 466, quoting State ex rel. Brown v. Indus. Comm. , 68 Ohio St.3d 45, 48, 623 N.E.2d 55 (1993). Our holding today forecloses any continued reliance on that statement in future temporary-total-disability cases.

(Sic passim.) Klein at ¶ 30. See also State ex rel. Hamilton v. Indus. Comm., 10th Dist. No. 19AP-510, 2021-Ohio-1824, 2021 WL 2172977 (concluding that the Commission did not abuse its discretion denying the employee's application for TTD compensation as there was some evidence that the employee voluntarily abandoned her employment).

{¶ 7} Here, Pratt voluntarily removed herself from her former position at the Blackwell Inn, despite her injury at the time of separation from employment. In both Klein and the instant case, the industrial injury was not the cause of the worker's loss of earnings, but a voluntary decision to leave their respective places of employment. Given the factual similarities between the cases, Klein is the controlling authority in this matter.

{¶ 8} Pratt next argues that she was medically unable to return to her previous position of employment satisfying the "former position of employment" standard. Pratt also contends that the magistrate applied the phrase "former position of employment" out of context. We disagree.

{¶ 9} The Klein court wrote:

We have defined temporary-total disability as "a disability which prevents a worker from returning to his former position of employment." State ex rel. Ramirez v. Indus. Comm. , 69 Ohio St.2d 630, 433 N.E.2d 586 (1982), syllabus. Accordingly, we have recognized that it would not serve the purpose of temporary-total-disability compensation to award compensation to a worker whose own actions, and not his workplace injury, have prevented his return to his former position of employment. Ashcraft , 34 Ohio St.3d at 43-44, 517 N.E.2d 533. When an employee voluntarily undertakes some action that precludes a return to employment, the employee is not entitled to temporary-total-disability compensation "because the purpose for which [temporary-total-disability compensation] was created * * * no longer exists." State ex rel. Baker v. Indus. Comm. , 89 Ohio St.3d 376, 380, 732 N.E.2d 355 (2000) ; see alsoMcGraw, 56 Ohio St.3d at 139, 564 N.E.2d 695 (worker who quit his job for reasons unrelated to injury was not entitled to compensation because "his own actions eliminated any opportunity for return").
By authorizing compensation to workers who by their own actions have prevented their return to their former position of employment, Reitter Stucco and OmniSource contravene both our precedent and the purpose of temporary-total-disability compensation.

Id. at ¶ 22-23.

{¶ 10} After careful review of the record, we find the magistrate's decision accurately reflects the analysis in Klein and applied the phrase "former position of employment" as intended. The Klein court found that when a claimant voluntarily removes himself/herself from the former position of employment, "even if the claimant remains disabled at the time of his separation," he/she is no longer eligible for TTD compensation. Klein at ¶ 29. While respondent is correct that workers’...

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