State ex rel. Walmart, Inc. v. Hixson

Decision Date26 October 2021
Docket NumberNo. 19AP-323,19AP-323
Citation180 N.E.3d 1197
Parties STATE EX REL. WALMART, INC., Relator, v. Dianna L. HIXSON et al., Respondents.
CourtOhio Court of Appeals

On brief: Roetzel & Andress, L.P.A., Douglas E. Spiker, Timothy J. Webster, and Monica L. Frantz, Cleveland, for relator.

On brief: Nager, Romaine & Schneiberg, Co., L.P.A., and James Zink, for respondent Dianna L. Hixson.

On brief: Dave Yost, Attorney General, Jacquelyn McTigue, Columbus, for respondent Industrial Commission of Ohio.



{¶ 1} Relator, Walmart, Inc., commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to partially vacate its order granting temporary total disability ("TTD") compensation to respondent, Dianna L. Hixson, and to enter a new order denying such compensation for the contested period.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommends this court grant relator's request for a writ of mandamus and order the commission to vacate its order awarding Hixson TTD compensation after March 6, 2018 and enter an order awarding such compensation only up to that date. The commission has filed the following two objections to the magistrate's decision:

Objection No. 1:
The magistrate erred in relying on State ex rel. Klein v. Precision Excavating & Grading Company , 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, and applying it retrospectively to a previously adjudicated administrative decision.
Objection No. 2:
The magistrate exceeded the scope of his review and committed error by not providing the commission an opportunity to re-evaluate the weight and credibility of the evidence under the new legal standard not in existence at the time the commission issued its decision.

{¶ 3} Hixson has filed the following objection to the magistrate's decision:

The Magistrate erred in granting Relator's request for a writ of mandamus by finding that State ex rel. Klein v. Precision Excavating & Grading Co . applied retroactively and in ordering the Industrial Commission to grant TT only up to March 6, 2018 in lieu of referring back for further proceedings.

{¶ 4} As the magistrate's decision notes, Hixson sustained a work-related injury during the course of her employment at Walmart. Hixson's workers’ compensation claim was originally allowed for left shoulder sprain

/strain; left wrist sprain /strain; and left wrist contusion. Hixson later filed an application requesting TTD compensation and additional allowed conditions. Following a hearing, a staff hearing officer ("SHO") issued a decision granting Hixson's application for additional allowed conditions and awarding Hixson TTD compensation for the closed period from September 11, 2017 to March 6, 2018. The SHO concluded that Hixson voluntarily retired on March 6, 2018, when she notified Walmart she was retiring. The SHO found Hixson's retirement to be "age related and a bar to further [TTD] compensation," as Hixson testified that "she first intended to retire due to turning 65 on 12/01/2017." (SHO Decision at 2.)

{¶ 5} On June 26, 2018, the commission issued an order vacating the SHO's order. The commission concluded that Hixson was entitled to TTD compensation from September 11, 2017 through May 12, 2018 and continuing thereafter upon submission of supporting medical evidence. Relying on State ex rel. Pretty Prods., Inc. v. Indus. Comm. , 77 Ohio St.3d 5, 670 N.E.2d 466 (1996), the commission held that Hixson did not voluntarily abandon her employment on March 6, 2018, as Hixson was "at that time temporarily and totally disabled from her former position of employment due to the conditions allowed in this claim." (Comm. Decision at 2.) Walmart filed its complaint in mandamus on May 14, 2019.

{¶ 6} The magistrate observed that an older line of cases from the Supreme Court of Ohio, including State ex rel. Reitter Stucco, Inc. v. Indus. Comm. , 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861 ; State rel. OmniSource Corp. v. Indus. Comm. , 113 Ohio St.3d 303, 2007-Ohio-1951, 865 N.E.2d 41, and Pretty Prods. , held that when a claimant was disabled at the time of retirement or other termination of employment, the inability to work due to the allowed conditions overrode any voluntary aspect of the subsequent unemployment. See Pretty Prods. 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) (holding that 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’ "); OmniSource Corp. at ¶ 10 ; Reitter Stucco at ¶ 10. The magistrate further observed that the Supreme Court overruled Reitter Stucco and OmniSource and partially overruled Pretty Prods . in State ex rel. Klein v. Precision Excavating & Grading Co. , 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, decided September 27, 2018. Klein held that "when a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment." Id. at ¶ 29.

{¶ 7} The magistrate determined that R.C. 4123.56(F), which became effective September 15, 2020, did not apply retroactively to the present case. However, the magistrate concluded that Klein did apply retroactively, pursuant to the general rule that a Supreme Court decision overruling a former decision is retrospective in its operation. As such, the magistrate applied Klein and determined that the commission abused its discretion by awarding TTD compensation beyond Hixson's voluntary retirement date.

{¶ 8} The commission's first objection and the first part of Hixson's objection assert that the magistrate erred by applying Klein retroactively. Respondents contend the magistrate failed to address or apply the exceptions to the general rule regarding retroactive application of governing case law.

{¶ 9} In Peerless Elec. Co. v. Bowers , 164 Ohio St. 209, 129 N.E.2d 467 (1955), the court stated the "general rule" that "a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law." Id. at 210, 129 N.E.2d 467. "The one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision." Id. Another exception to the general rule exists "in those instances in which a court expressly indicates that its decision is only to apply prospectively." Roberts v. Treasurer , 147 Ohio App.3d 403, 411, 770 N.E.2d 1085 (10th Dist. 2001). Accord State ex rel. Bosch v. Indus. Comm. , 1 Ohio St.3d 94, 98, 438 N.E.2d 415 (1982) ; Lakeside Ave. L.P. v. Cuyahoga Cty. Bd. of Revision , 85 Ohio St.3d 125, 127, 707 N.E.2d 472 (1999). Respondents contend these exceptions are applicable in the present case.

{¶ 10} The commission asserts that Hixson acquired a vested right under Pretty Prods . to receive TTD compensation beyond her voluntary retirement date. A right is "vested" when "it ‘so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent.’ " Harden v. Ohio Atty. Gen. , 101 Ohio St.3d 137, 2004-Ohio-382, 802 N.E.2d 1112, ¶ 9, quoting Black's Law Dictionary 1324 (7th Ed.1999). "A ‘vested right’ can ‘be created by common law or statute and is generally understood to be the power to lawfully do certain actions or possess certain things; in essence, it is a property right.’ " State ex rel. Jordan v. Indus. Comm. , 120 Ohio St.3d 412, 2008-Ohio-6137, 900 N.E.2d 150, ¶ 9, quoting Washington Cty. Taxpayers Assn. v. Peppel , 78 Ohio App.3d 146, 155, 604 N.E.2d 181 (4th Dist. 1992).

{¶ 11} However, "a right does not vest unless it constitutes more than a ‘mere expectation or interest based upon an anticipated continuance of existing law.’ " Roberts at 411, 770 N.E.2d 1085, quoting In re Emery , 59 Ohio App.2d 7, 11, 391 N.E.2d 746 (1st Dist. 1978). See In re Emery at 11, 391 N.E.2d 746, citing Hatch v. Tipton , 131 Ohio St. 364, 2 N.E.2d 875 (1936) (stating that a "right, not absolute but dependent for its existence upon the action or inaction or another, is not basic or vested"). Hixson's alleged right to receive TTD compensation beyond her voluntary retirement date depended for its existence on Reitter Stucco , OmniSource , and Pretty Prods. continuing to remain good law. Accordingly, Hixson did not acquire a vested right to TTD compensation pursuant to Pretty Prods . {¶ 12} The commission further asserts that its June 26, 2018 decision provided Hixson with a vested right to receive TTD compensation pursuant to the terms stated in the commission's order. However, a commission's order awarding TTD compensation may be vacated by this court in an action for mandamus. See State ex rel. Medcorp, Inc. v. Ryan , 10th Dist. No. 06AP-1223, 2008-Ohio-2835, 2008 WL 2390785, ¶ 8 ; State ex rel. Gen. Motors Corp., v. Indus. Comm. , 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9 (stating that "a writ of mandamus may lie if the public entity has abused its discretion in carrying out its duties"); State ex rel. Gassmann v. Indus. Comm. , 41 Ohio St.2d 64, 65, 322 N.E.2d 660 (1975) (stating that "[a] mandatory writ may issue against the Industrial Commission if the commission has incorrectly interpreted Ohio law"). Accordingly, as long as the commission's order could be vacated, it did not necessarily provide Hixson with a vested right to TTD compensation. Compare Sharp v....

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