State ex rel. Sheets v. Indus. Comm'n of Ohio

• Citation: 2017 Ohio 1169
• Decision Date: 30 March 2017
• Docket Number: No. 16AP-22,16AP-22
• Parties: State ex rel. Cynthia D. Sheets, Relator, v. Industrial Commission of Ohio et al., Respondents.
• Court: United States Court of Appeals (Ohio)

2017 Ohio 1169

State ex rel. Cynthia D. Sheets, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

No. 16AP-22

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

March 30, 2017

(REGULAR CALENDAR)

DECISION

On brief: Philip J. Fulton Law Office, and Chelsea Fulton Rubin; Barry A. Trattner, for relator. Argued: Chelsea Fulton Rubin.

On brief: Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio. Argued: Kevin J. Reis.

On brief: Barno Law, LLC, John C. Barno, Zeboney N. Barranada, and Jamison S. Speidel, for respondent Cellco Partnership. Argued: John C. Barno.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.

{¶ 1} Relator, Cynthia D. Sheets ("claimant"), has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order that denied her temporary total disability ("TTD") compensation and to enter an order granting said compensation.

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{¶ 2} This matter was referred to a court-appointed 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, and recommended that this court deny claimant's request for a writ of mandamus. Claimant has filed objections to the magistrate's decision.

{¶ 3} Claimant argues in her first objection that the magistrate erred when she did not apply State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916 ("Gross II") to the instant case and created new law. Claimant contends that Gross II stands for the proposition that the voluntary abandonment doctrine cannot be applied to pre-injury conduct or conduct contemporaneous with the injury, and this court found so in State ex rel. Ohio State Univ. Cancer Research Hosp. v. Indus. Comm., 10th Dist. No. 09AP-1027, 2010-Ohio-3839, and State ex rel. Ohio Welded Blank v. Indus. Comm., 10th Dist. No. 08AP-772, 2009-Ohio-4646, where we concluded that a claimant can abandon a former position of employment only if the claimant has the physical capacity for employment at the time of abandonment. Here, claimant points out, she was temporarily and totally disabled at the time of her termination and was unable to return to her former position at the time of termination. She also contests the commission's finding that Gross II was inapplicable because the conduct leading to her termination was not related to the allowed injury.

{¶ 4} We disagree with claimant's arguments. We find Gross II distinguishable from the present case. In Gross II, the Supreme Court of Ohio found that a pre-injury infraction undetected until after the injury is not grounds for concluding a claimant voluntarily abandoned his/her employment. Here, claimant's pre-injury infraction was discovered prior to her injury. Not only was the pre-injury code of conduct violation discovered prior to the injury in the present case, but the decision to terminate claimant for such violation was determined prior to the injury.

{¶ 5} Furthermore, in Gross II, the employee was terminated based on the conduct that caused the injury. The court concluded that if the employee's departure from the workplace was causally related to the injury, it does not preclude the employee's eligibility for TTD compensation. In the present case, claimant was not terminated based on the conduct that caused the injury. Claimant's conduct that led to her termination

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occurred prior to her termination. Thus, claimant's departure from the workplace was not causally related to the injury.

{¶ 6} One concern regarding termination for pre-injury conduct is apparent. The fear is that an employer may use pre-injury conduct as a pretext for terminating an employee who has been subsequently injured. The circumstances in the present case, however, eliminate that concern, as noted by the magistrate. Here, the paperwork to terminate claimant had already been signed and approved (on a Thursday and Friday) several days before claimant was injured (on a Monday). The employer, Cellco Partnership, respondent, had already decided to terminate claimant at the time of the injury, and there is nothing in the record to suggest the termination was pre-textual.

{¶ 7} Despite claimant's argument to the contrary, the magistrate's finding that "[n]othing in the court's decision in Gross II provides that pre-injury conduct can never be used to defeat payment of TTD compensation" is correct. (Appended Mag. Decision at ¶ 47.) The court in Gross II stated, "[t]he [voluntary-abandonment] doctrine has never been applied to preinjury conduct or conduct contemporaneous with the injury." Id. at ¶ 19. Thus, the Supreme Court in Gross II never indicated that the voluntary-abandonment doctrine can never be applied to pre-injury conduct, and it did not address circumstances like those in the present case, in which the decision to terminate had already been made prior to the workplace injury.

{¶ 8} The magistrate's decision is consistent with one of the main principles set forth in Gross II: "To be eligible for TTD compensation, 'the claimant must show not only that he or she lacks the medical capability of returning to the former position of employment but that a cause-and-effect relationship exists between the industrial injury and an actual loss of earnings. In other words, it must appear that, but for the industrial injury, the claimant would be gainfully employed.' " Id. at ¶ 15, quoting State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, ¶ 35. In the present case, because the unique circumstance that the decision to terminate claimant had already been made prior to the industrial injury, we can be certain that claimant would not have continued to be gainfully employed even if she had not been injured. In other words, there was no cause-and-effect relationship between her injury and her loss of

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earnings; instead, there was a direct cause-and-effect relationship between claimant's misconduct and her loss of earnings.

{¶ 9} As the court summed up in Gross II, "[t]he distinctions between voluntary and involuntary departure are complicated and fact-intensive." Id. at ¶ 23. An underlying principle, however, is that if an employee's departure from the workplace " 'is causally related to his injury,' " it is not voluntary and should not preclude the employee's eligibility for TTD compensation. Id., quoting State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44, 46 (1988); McCoy at ¶ 19. To be sure, the circumstances in the present case are unique from those cases relied on by claimant. In none of those cases had the employer already decided and completed administrative paperwork approving termination of the employee immediately prior to the industrial injury. In such a case, claimant's departure from the workplace was not causally related to her injury and was voluntary and, thus, precluded her from eligibility for TTD compensation. For these reasons, claimant's first objection is overruled.

{¶ 10} Claimant argues in her second objection that the commission had no basis to exercise continuing jurisdiction. Although before the commission the employer alleged the staff hearing officer ("SHO") committed a clear mistake of law by following Gross II and finding claimant was entitled to TTD compensation, claimant contends the SHO did not commit a mistake of law by adhering to the Supreme Court precedent in Gross II. We first note that claimant failed to raise this issue in her brief before the magistrate. Nevertheless, given our finding above that the commission did not err when it found Gross II did not apply here to entitle claimant to TTD compensation, claimant's argument under her second objection is overruled. The commission properly exercised jurisdiction based on a clear mistake of law, which is one of the five possible bases for exercising continuing jurisdiction pursuant to State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454 (1998). Therefore, we overrule claimant's second objection.

{¶ 11} Claimant argues in her third objection that the commission and magistrate erred when they created policy, which is not their role. Claimant contends the commission and magistrate did not have the authority to ignore the Supreme Court's decision in Gross II and create new law and policy. However, again, given our above finding that Gross II is distinguishable and not controlling here, we cannot conclude that the commission and

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magistrate ignored Gross II. Instead, the commission and magistrate reviewed the facts of the case and found the legal precedent in Gross II inapplicable to the present circumstances. Therefore, we overrule claimant's third objection.

{¶ 12} Claimant argues in her fourth objection that the commission, and not the magistrate, is the arbiter of the credibility and weight to be given to the evidence. Specifically, claimant contends the magistrate made findings of fact that were not found by the commission in its order. Claimant cites two specific examples. Claimant first cites the magistrate's findings that her termination was approved by Michelle Worthington, the associate director, and the human resource consultant on Thursday, October 3, 2013; the termination was approved by the director, human resource associate director, and human resource director, on Friday, October 4, 2013; and it was decided that claimant would be terminated Monday, October 7, 2013.

{¶ 13} Claimant also cites the magistrate's findings that on Monday, October 7, 2013, before the manager arrived to terminate her, claimant tripped, injured herself, and returned to work with restrictions, and there was no evidence that claimant's manager or claimant herself had any reason to believe that she would ultimately file a workers' compensation claim or that her injuries would be as extensive as they ultimately...