State ex rel. Welsh Enters., Inc. v. Indus. Comm'n of Ohio

Decision Date05 May 2020
Docket NumberNo. 19AP-127,19AP-127
Citation2020 Ohio 2801,154 N.E.3d 505
Parties The STATE EX REL. WELSH ENTERPRISES, INC., Relator, v. INDUSTRIAL COMMISSION of Ohio et al., Respondents.
CourtOhio Court of Appeals

On brief: Pietragallo Gordon Alfano Bosick & Raspanti, LLP, and Robert J. D'Anniballe, Jr., for relator.

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

On brief: The Bainbridge Firm, LLC, and Casaundra L. Johnson, for respondent Timothy Knight.



{¶ 1} Can you be accused of assaulting your boss, get fired, be convicted (by plea, no less) of the assault, be at least preliminarily barred by court order from even setting foot in that workplace, and then still gain subsequent temporary disability status under Workers' Compensation in connection with your (former) job?

{¶ 2} At first blush, the question would seem to answer itself (and not in the disabled employee's favor). But we conclude that the answer under Ohio law is: Maybe. More specifically, what we conclude is that the answer can depend on facts as found by the Industrial Commission. And that where the Industrial Commission has evidence to substantiate its view that the employee was fired not for assaulting his boss, but for some other reason that was not grounds for termination—and where the commission reached that determination after its hearing officers had heard testimony from and weighed the credibility of both the boss and the employee, and believed the latter—we are not authorized under the law to overturn that ruling based on potentially differing credibility assessments or weighting of the evidence. We swallow our instinct to find that the employee voluntarily abandoned his work, as based on facts as we might construe them from the cold record but that are different from those adopted by the commission in its fact-finding role.

{¶ 3} This matter apparently has its genesis in an injury that Timothy Knight sustained on March 28, 2017 while working as a mechanic/rebuilder in a salvage yard for Welsh Enterprises, Inc. The record reflects that on that day, Mr. Knight was spray-painting car parts "in a drying booth," assertedly without the benefit of respiration equipment, when he "was overcome by fumes." See March 28, 2018 Report of Donald Jay Weinstein, Ph.D., Psychologist, at 2. Mr. Knight reported: "I fell and hit my head. They found me laying [sic] on the floor." June 26, 2018 Report of David L. Chiarella, Ph.D., Psychologist, at 1. He was hospitalized and then treated at WorkCare before returning to work. Id.

{¶ 4} " ‘After a time when I went to the hospital they asked me if I brought my respirator and I told them I don't have one. They never gave me one,’ " Dr. Weinstein's report quotes Mr. Knight as saying. Weinstein Report at 2. " They kept me off work longer because I did not have a respirator * * *. [T]he hospital turned it [in to] OSHA and my employer accused me of calling OSHA.’ " Id. Dr. Chiarella's report makes a similar reference, quoting Mr. Knight as saying: " They finally fired me.’ He stated, ‘My employer accused me of calling OSHA.’ " Chiarella Report at 1.

{¶ 5} Mr. Knight filed a Workers' Compensation claim, which was allowed initially for "Closed head injury

; acute bronchial asthma secondary to irritants; syncopal episode secondary to paint fume exposure; traumatic brain injury ; adjustment disorder with mixed anxiety and depressed mood; [and] neurocognitive disorder." October 30, 2018 Staff Hearing Officer Report ("SHO Report").

{¶ 6} Mr. Knight returned to work, but didn't last there past autumn. Toward the end of September 2017, he was charged with having assaulted his boss, William Welsh, on September 14, 2017. Mr. Knight had worked for Mr. Welsh (and for Mr. Welsh's father) at the eponymous Welsh Enterprises. The parties agree that his employment was terminated right then, on September 14, 2017.

{¶ 7} A police report from that day reflects Mr. Welsh's allegation that Mr. Knight had assaulted him, and Mr. Knight's account that "he admitted to pushing Mr. Welsh, but claimed it was in self defense." See Stipulated Item 9. The next week, another company employee, a Mr. Giles, visited the police to tell them, according to police notes of his statement, that "Mr. Knight [had] * * * lunged at Mr. Welsh[,] grabbing him" and causing him to fall back into a chair with "some abrasions and a ripped shirt" before "Mr. Knight was * * * escorted from the property." Id.

{¶ 8} On November 1, 2017, Mr. Knight was convicted of the assault. Although a later account from the Industrial Commission's staff hearing officer, as then reflected in the decision from this court's magistrate, recited that Mr. Knight "stated he pled guilty," the documentary record suggests that the plea was "NC," which we take to be "no contest." See Stipulated Item 5. In any event, the result in the criminal case was that the Steubenville Municipal Court found Mr. Knight guilty and sentenced him to a term of probation that included five days in jail (suspended). Id.

{¶ 9} After the conviction, on December 7, 2017, the Jefferson County Court of Common Pleas entered what appears to have been an ex parte Order of Protection decreeing among other things that Mr. Knight could not enter Mr. Welsh's business for a period of some five years (until December 7, 2022). See Stipulated Item 8. An accompanying Notice specified that "[t]he case will be tried on the date set forth in the Ex-Parte Protection Order unless continued by the Court," and a further Notice to Respondent established a "full hearing" date of December 14, 2017. Id. The record here does not appear to reflect the outcome of that envisioned trial or any further disposition of that protection order case.

{¶ 10} The record does show that Mr. Knight earlier had signed as having received and agreeing to written Welsh Enterprises policies including a statement that fighting on company property ("regardless of who started it") or "conviction of" or having entered a "plea of no contest to, or plea of guilty to * * * any * * * felony or misdemeanor other than minor traffic offenses may result in termination." Stipulated Item 17.

{¶ 11} On April 19, 2018, Mr. Knight filed a motion with the Industrial Commission seeking an award of temporary total disability compensation to begin as of March 28, 2018. That March 28, 2018 date was when Dr. Weinstein provided his report opining that Mr. Knight suffered from mild neurocognitive disorder with behavioral disturbance and from adjustment disorder with mixed anxiety and depressed mood. See Stipulated Item 23. Dr. Chiarella's report provided further support for that position, noting "[t]his is considered temporary until he receives sufficient treatment."

{¶ 12} A district hearing officer took evidence and considered Mr. Knight's temporary total disability claims on August 27, 2018. He noted that Welsh Enterprises "has challenged the Injured Worker's request for temporary total disability compensation, alleging that he voluntarily abandoned his employment when he was terminated by the Employer after engaging in a physical altercation with the Employer on 09/14/2017." DHO Report. However, the district hearing officer found that Welsh Enterprises failed to provide "sufficient evidence" as to "when or why the Injured Worker's employment was terminated" and offered "no specific documentation regarding the details" of the reason for the firing. Id. It was "the order of the District Hearing Officer that temporary total disability compensation is granted from 03/28/2018 through 08/27/2018 and to continue upon submission of appropriate medical proof of disability." Id.

{¶ 13} A staff hearing officer heard Welsh Enterprise's appeal on October 18, 2018. She agreed with the temporary total disability determination. SHO Order. She noted that Mr. Welsh testified to her that he had fired Mr. Knight on September 14, 2017 for violation of the written work rules (1) against fighting and (2) against being convicted of or pleading to non-traffic offenses. Id. at 7. "The parties did not dispute the Injured Worker was terminated on 09/14/2017," she observed, but she too seems to have been skeptical of the reasons advanced by Welsh Enterprises: she "notes that there is no evidence in writing" of which work rules were invoked. Id. Indeed, "it was not possible to terminate the injured worker" for his plea and conviction because those events came in November, well after his September firing. Id.

{¶ 14} And the staff hearing officer did not credit Welsh Enterprises' account that Mr. Knight was fired for fighting. She found that "the Employer has not persuasively established the Injured Worker violated this rule," as she was "not persuaded the Injured Worker was fighting at work. Mr. Welsh alleges the Injured Worker assaulted him in his office. The Injured Worker denies he assaulted Mr. Welsh[,] testifying that while he was in the office Mr. Welsh came toward him and he put his arms up to stop him. The Injured Worker stated that Mr. Welsh then stated, you just assaulted me. In addition, while the Injured [Worker] was convicted of assault, the Injured Worker stated he pled guilty to avoid extensive legal fees and jail time." Id.

{¶ 15} Significantly, "[t]he Injured Worker was found to be credible." The staff hearing officer found Mr. Knight more credible, apparently, than she found Mr. Welsh (and his claim of termination for the not-yet-submitted plea). "Therefore, the Staff Hearing Officer [found that] the Employer ha[d] not proven the Injured Worker voluntarily abandoned his employment * * *." Id.

{¶ 16} The Industrial Commission thereafter declined further review.

{¶ 17} Welsh Enterprises then brought this action for mandamus ordering the Industrial Commission to vacate its award of temporary total disability compensation to Mr. Knight. Pursuant to custom and Loc.R. 13(M) of the Tenth District Court of Appeals, the case...

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