State ex rel. v. Indus. Comm.
| Decision Date | 27 September 2007 |
| Docket Number | No. 2006-1414.,2006-1414. |
| Citation | 874 N.E.2d 780,2007 Ohio 4720,115 Ohio St.3d 224 |
| Parties | The STATE ex rel. ELLIS SUPER VALU, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees. |
| Court | Ohio Supreme Court |
Beirne & Wirthlin Co., L.P.A., Michael J. Schutte, and J. Stephen Wirthlin, Cincinnati, for appellant.
Casper & Casper and Douglas W. Casper, Middletown, for appellee Susan B. Hudgel.
Marc Dann, Attorney General, and Eric C. Harrell and Sue A. Wetzel, Assistant Attorneys General, for appellee Industrial Commission.
{¶ 1} No one disputes appellee Susan B. Hudgel's inability to return to her former position of employment. Her employer, appellant Ellis Super Valu, Inc. ("ESV"), offered her a light-duty position consistent with her medical restrictions, but Hudgel declined because the position required her to work evenings. We must determine whether her refusal bars temporary total disability compensation under R.C. 4123.56(A).
{¶ 2} Hudgel industrially injured her right shoulder on August 20, 2004, and a workers' compensation claim was allowed. She was unable to return to her former position of employment through September 22, 2004, but was able to do light-duty work. On September 13, 2004, ESV offered her a position within her medical restrictions. Her work schedule would be from 3:00 p.m. to 9:00 p.m. six days per week, which "would allow you to work your normal number of hours at your current salary."
{¶ 3} Hudgel normally worked the day shift five days per week, beginning at 6 a.m. Hudgel informed ESV on September 23 that she could not work the proposed schedule. She later explained that the night shift was unacceptable because she had two teenage children that would be home alone on the nights that her husband worked. She asked ESV whether she could work three days and two nights instead, but received no reply.
{¶ 4} On November 8, 2004, in response to Hudgel's request for temporary total disability compensation, a district hearing officer for appellee Industrial Commission of Ohio ordered compensation from August 23, 2004, through September 23, 2004, but denied it after that date, finding that Hudgel's refusal of ESV's light-duty offer constituted a voluntary abandonment of employment. A staff hearing officer reversed, finding that Hudgel had a valid reason for refusal and, hence, did not abandon her former position of employment. Further appeal was denied.
{¶ 5} ESV filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion in awarding temporary total disability compensation despite Hudgel's "voluntary abandonment." The court of appeals disagreed and denied the writ, resulting in ESV's appeal to this court as of right.
{¶ 6} We clarify at the outset that this is not a case of voluntary abandonment. Rather, the facts of this case raise the possibility of a different defense: refusal of suitable alternate employment. R.C. 4123.56(A) prohibits the payment of temporary total disability compensation "when work within the physical capabilities of the employee is made available by [an] employer." Both defenses affect a claimant's eligibility for temporary total disability compensation, but they derive from different compensatory theories and involve distinct analyses.
{¶ 7} Fundamental to receipt of any workers' compensation benefits is a causal relationship between injury and disability. Temporary total disability compensation is no exception and is designed to compensate for the temporary loss of earnings sustained while the claimant is unable to return to the former position of employment due to injury. State ex. rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533. For many years, there were three main defenses to the payment of temporary total disability compensation: (1) the claimant is medically able to return to the former position, (2) the claimant's condition is no longer temporary, and (3) the claimant's inability to return to the former position of employment is not due to injury. See State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 632, 23 O.O.3d 518, 433 N.E.2d 586; Ashcraft.
{¶ 8} The defense of voluntary abandonment derives from the last of the three. In a case of voluntary abandonment, the claimant's inability to return to the former position of employment is never in dispute. What is instead always at issue is the reason for that inability. Common to every voluntary-abandonment controversy is the existence of two independent reasons for the claimant's inability to return to the former position of employment. One is medical and one is not, with the two most common nonmedical reasons being an employment termination or a voluntary refusal to return. The issue in every voluntary-abandonment case is which cause was primary and which was secondary.
{¶ 9} That is not the case with the defense of refusal of suitable alternate employment. This defense does not ask why the claimant has not returned to his former position of employment, because the answer is inherent in the mere fact of a job offer. There is no need to propose alternate employment if the claimant's inability to return to the former position is attributable to anything other than the injury. Instead, the relevant inquiry in this situation is why the claimant has rejected an offer to ameliorate the amount of wages lost. This, in turn, can involve considerations of, for example, employment suitability, the legitimacy of the job offer, or whether the...
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