State ex rel. Walmart, Inc. v. Hixson, 2021-1479

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM
Citation2022 Ohio 4187
PartiesThe State ex rel. Walmart, Inc., Appellee, v. Hixson et al., Appellants.
Docket Number2021-1479
Decision Date30 November 2022


The State ex rel. Walmart, Inc., Appellee,

Hixson et al., Appellants.

No. 2021-1479

Supreme Court of Ohio

November 30, 2022

Submitted August 2, 2022

Appeal from the Court of Appeals for Franklin County, No. 19AP-323, 2021-Ohio-3802.

Roetzel & Andress, LP. A., Douglas E. Spiker, and Timothy J. Webster, for appellee.

Nager, Romaine, & Schneiberg Co., L.P.A., and James J. Zink, for appellant Dianna Hixson.

Dave Yost, Attorney General, and Jacquelyn McTigue, Assistant Attorney General, for appellant Industrial Commission of Ohio.


{¶ 1} Appellant Industrial Commission of Ohio awarded appellant Dianna Hixson temporary-total-disability ("TTD") compensation in 2018, before we issued our decision in State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386. After we released Klein, Hixson's


former employer, appellee, Walmart, Inc., asked the Tenth District Court of Appeals for a writ of mandamus ordering the commission to reverse its decision on the basis of Klein. The Tenth District granted the writ, and the commission and Hixson appealed.

{¶ 2} This case presents the question whether our decision in Klein applies retroactively or prospectively only. Analyzing the three factors set forth in DiCenzo v. A-Best Prods. Co., Inc., 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, paragraph two of the syllabus, we conclude that Klein applies prospectively only. We therefore reverse the Tenth District's judgment and deny the writ.


{¶ 3} Hixson sustained injuries when she fell while working for Walmart on August 2, 2017. Her workers' compensation claim was allowed for various shoulder and wrist conditions. Hixson sought TTD compensation from September 11, 2017, through February 12, 2018, and continuing.

{¶ 4} A district hearing officer ("DHO") denied the request, and Hixson appealed. A staff hearing officer ("SHO") vacated the DHO's order and awarded TTD compensation from September 11, 2017, through March 6, 2018, the date Hixson notified Walmart of her retirement. The SHO found that Hixson's retirement was age-related and therefore constituted a voluntary abandonment of her employment. Both Walmart and Hixson appealed the SHO's order.

{¶ 5} The commission vacated the SHO's order, denied Walmart's appeal, granted Hixson's appeal, and awarded TTD compensation from September 11, 2017, through May 12, 2018, and continuing. Relying on State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5, 670 N.E.2d 466 (1996), the commission concluded that Hixson did not voluntarily abandon her employment on March 6, 2018, because she was temporarily and totally disabled from her position when she left her employment at Walmart.


{¶ 6} The commission mailed its order on July 3, 2018. On September 27, 2018, we issued our decision in Klein, which overruled the portion of Pretty Prods. that the commission had relied on. Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at ¶ 30.

{¶ 7} On May 14, 2019, Walmart filed this mandamus action in the Tenth District, seeking a writ ordering the termination of Hixson's TTD compensation after March 6, 2018. A magistrate recommended granting the writ, concluding that under Klein, the commission had abused its discretion by awarding TTD compensation for the period following Hixson's retirement. 2021-Ohio-3802, 180 N.E.3d 1197, ¶ 2, 7. The Tenth District adopted the magistrate's recommendation and granted the writ. Id. at ¶ 26. The commission and Hixson appealed.


{¶ 8} The commission and Hixson ask us to reverse the Tenth District's judgment and hold that Klein applies prospectively only or, in the alternative, to vacate the Tenth District's judgment and grant a limited writ ordering the commission to evaluate the facts of this case under Klein in the first instance.

A. Legal Standards

{¶ 9} In a direct appeal of a mandamus action originating in the court of appeals, we review the judgment as if the action had been originally filed here. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 164, 228 N.E.2d 631 (1967). Walmart is entitled to a writ of mandamus if it shows by clear and convincing evidence that it has a clear legal right to the requested relief, that the commission has a clear legal duty to provide that relief, and that there is no adequate remedy in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v. Indus. Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, 184 N.E.3d 81, ¶ 10. When an order of the commission "is adequately explained and based on some evidence, there is no abuse of discretion and a reviewing court must not disturb the order."


State ex rel. Aaron's, Inc. v. Ohio Bur. of Workers' Comp., 148 Ohio St.3d 34, 2016-Ohio-5011, 68 N.E.3d 757, ¶ 18.

B. Retrospective or Prospective Application of Klein

{¶ 10} We must determine whether Klein applies to Hixson's TTD-compensation claim, that is, whether Klein applies retrospectively or whether it applies prospectively only. For the reasons below, we hold that Klein applies prospectively only.

1. The Peerless exception

{¶ 11} The general rule is that a decision of this court overruling a prior decision "is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law." Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 210, 129 N.E.2d 467 (1955). "The one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision." Id. The exception does not apply here, because an award of TTD compensation is not a vested right.

{¶ 12} "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). "[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). To be vested, a right must constitute "more than a 'mere expectation or interest based upon an anticipated continuance of existing laws.'" Jordan at ¶ 9, quoting In re Emery, 59 Ohio App.2d 7, 11, 391 N.E.2d 746 (1st Dist.1978).


{¶ 13} The commission argues that an award of TTD compensation is more than a mere expectation or interest. However, even if that is true, a TTD-compensation award is not a property right that can be taken away only with the injured workers' consent. As the Tenth District pointed out, a court may vacate an award of TTD compensation in a mandamus action. 2021-Ohio-3802, 180 N.E.3d 1197, at ¶ 12. Moreover, the commission retains continuing jurisdiction over each of its cases under R.C. 4123.52(A). "[T]he commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified," R.C. 4123.52(A), if the commission finds the existence of a clear mistake of law or fact, new or changed circumstances, fraud, or error by an inferior tribunal, State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453, 155 N.E.3d 812, ¶ 11. The commission itself could, therefore, also revoke or modify an award of TTD compensation without the injured workers' consent. Hixson's award of TTD compensation was not a vested right.

2. The DiCenzo Factors

{ 14} Although the "vested rights" exception, outlined in Peerless, 164 Ohio St. 209, 210, 129 N.E.2d 467, to the general rule that a decision applies retrospectively does not apply here, we nonetheless retain discretion to apply Klein prospectively only:

[A]n Ohio court has discretion to apply its decision only prospectively after weighing the following considerations: (1) whether the decision establishes a new principle of law that was not foreshadowed in prior decisions; (2) whether retroactive application of the decision promotes or retards the purpose behind the rule defined in the decision; and (3) whether retroactive application of the decision causes an inequitable result.

DiCenzo, 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, at ¶ 25.

{¶ 15} The commission and Hixson argue that we indicated in Klein that the judgment in that case should apply prospectively only. We stated in Klein, "Our holding today forecloses any continued reliance on [the overruled statement in Pretty Prods., 77 Ohio St.3d 5, 670 N.E.2d 466] in future temporary-total-disability cases." (Emphasis added.) Klein, 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, at ¶ 30.

{¶ 16} Walmart counters-and the Tenth District agreed-that when we have intended a decision to apply prospectively only, we have said so in more explicit terms that have included some form of the word "prospective." 2021-Ohio-3802, 180 N.E.3d 1197, at ¶ 19. The Tenth District and Walmart are correct that we are usually direct when limiting the application of our decisions. See, e.g., In re LMD Integrated Logistic Servs., Inc., 155 Ohio St.3d 137, 2018-Ohio-3859, 119 N.E.3d 1250, ¶ 27-29 (plurality opinion) (expressly discussing the DiCenzo factors); Beaver Excavating Co. v. Testa, 134 Ohio St.3d 565, 2012-Ohio-5776, 983 N.E.2d 1317, ¶ 42-43 (same).

{¶ 17} However, the absence of express "prospective only" language in Klein does not prevent us from evaluating that decision under the DiCenzo factors now. In DiCenzo, 120 Ohio St.3d 149, 2008-Ohio-5327, 897 N.E.2d 132, at ¶ 1, we applied the three factors adopted in that case to determine that Temple v. Wean...

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