State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Louisiana-Pacific Corporation, Appellant, v.
Industrial Commission of Ohio et al., Appellees.
[Cite as State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.
(1995), Ohio St.3d .]
Workers' compensation -- Voluntary departure from employment
precludes temporary total disability compensation --
Termination is voluntary when it is generated by
claimant's violation of a written work rule that (1)
clearly defined the prohibited conduct, (2) had been
proviously identified by the employer as a dischargeable
offense, and (3) was known or should have been known to
the employee.
(No. 93-2545 -- Submitted April 4, 1995 -- Decided June
28,1995.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-1279.
Appellee-claimant, Patrick Longmore, injured his back
while in the course of and arising from his employment with
appellant Louisiana-Pacific-Corporation ("L-P") on October 3,
1989. L-P, a self-insured employer, began paying temporary
total disability compensation based on reports from Dr. Francis
M. Turocy, attending physician.
The record contains two pertinent C-84s, "Physician's
Report Supplemental," from Dr. Turocy. The reports, dated
December 11, 1990 and December 16, 1990, respectively, list the
date of last examination as December 10, 1990, and both list
claimant's "actual date" of release to return to his former job
as December 17, 1990.
The record indicates that claimant did not report to work
or call in on December 17, 18 or 19, 1990. By letter dated
December 20, 1990, L-P informed claimant:
"We have received a letter from your attending physician
stating you have been released for work December 17, 1990 for
full-time status. As you are aware from your Louisiana-Pacific
Corporation handbook, failure to report to work for three (3)
consecutive days is an automatic termination. We, at
Louisiana-Pacific Corporation Boardman Plant, have not heard
from you. Result: Termination as of 12-20-90."

The record indicates that claimant did not contact L-P for
another two weeks. A memorandum from appellant, which is dated
January 2, 1991 and which claimant does not dispute, indicates
that claimant contacted the plant manager on that date and
stated "that there was a misunderstanding when he got released
by his doctor and that his doctor was supposed to call and
report him off." His dismissal remained intact.
Claimant later moved appellee Industrial Commission to pay
temporary total disability compensation from January 25, 1991
forward, pursuant to a C-84 from newly retained physician, Dr.
Doreen M. Rioux. L-P conversely moved the commission to
"confirm termination" of claimant's temporary total disability
compensation.
A commission district hearing officer awarded temporary
total compensation from January 25, 1991 through October 31,
1991 and to continue contingent on medical proof. The hearing
officer found L-P's motion moot, since temporary total
disability compensation was terminated on December 16, 1990. A
regional board of review affirmed.
At the May 8, 1992 staff hearing that followed, L-P
presented evidence of claimant's firing. The staff hearing
officers affirmed the prior orders without addressing the issue
of claimant's dismissal. Reconsideration was denied.
L-P filed a complaint in mandamus in the Court of Appeals
for Franklin County, claiming that the commission abused its
discretion in failing to rule on the question of voluntary
employment separation. The court of appeals denied the writ.
This cause is now before this court upon an appeal as of
right.

oetzel & Andress and Thomas M. McCarty, for appellant
Louisiana-Pacific Corporation.
Betty D. Montgomery, Attorney General, and William J.
McDonald, Assistant Attorney General, for appellee Industrial
Commission.
Green, Haines, Sgambati, Murphy & Macala Co., L.P.A.,
Ronald E. Slipski and Steven L. Paulson, for appellee Longmore.

Per Curiam. Louisiana-Pacific informed the commission of
claimant's dismissal at the May 8, 1992 staff hearing. The
staff hearing officer order that followed did not, however,
mention the termination. In its complaint for a writ of
mandamus, L-P claimed that the omission was an abuse of
discretion and sought a writ ordering the commission to vacate
the May 8, 1992 order. The appellate court declined,
essentially ruling that claimant did not voluntarily abandon
his employment. For the reasons to follow, its judgment is
reversed.
Voluntary departure from employment precludes temporary
total disability compensation. State ex rel. Rockwell
Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 46, 531
N.E.2d 678, 680. Appellees contend that firing -- since it is
not employee-initiated -- is inherently involuntary and, thus,
cannot constitute a voluntary abandonment of employment so as
to bar temporary total compensation. We disagree.
In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio
St.3d 42, 517 N.E.2d 533, we discussed the temporary total

disability compensation eligibility of an incarcerated
claimant. We acknowledged that imprisonment would not fit the
traditional definition of "voluntary" since individuals, as a
general rule, do not actively seek or consent to
incarceration. Looking more deeply, however, we found:
"While the prisoner's incarceration would not normally be
considered a 'voluntary' act, one may be presumed to tacitly
accept the consequences of his voluntary acts. When a person
chooses to violate the law, he, by his own action, subjects
himself to the punishment which the state has prescribed for
that act." Id., 34 Ohio St.3d at 44, 517 N.E.2d at 535.
Recognizing the parallels underlying incarceration and
firing, we observed in State ex rel. Watts v. Schottenstein
Stores Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202,
1204:
"We agree that firing can constitute a voluntary
abandonment of the former position of employment. Although not
generally consented to, discharge, like incarceration, is often
a consequence of behavior that the claimant willingly
undertook, and may thus take on a voluntary character.* * * "
Examining the present facts, we find it difficult to
characterize as "involuntary" a termination generated by the
claimant's violation of a written work rule or policy that (1)
clearly defined the prohibited conduct, (2) had been previously
identified by the employer as a dischargeable offense, and (3)
was known or should have been known to the employee. Defining
such an employment separation as voluntary comports with
Ashcraft and Watts -- i.e., that an employee must be presumed
to intend the consequences of his or her voluntary acts.
L-P's company handbook listed among its dischargeable
offenses an "absence [of] more than three (3) consecutive days
without notification to your foreman or plant manager."
Claimant was released to return to work on December 17, 1990.
The record indicates that claimant neither called in nor
reported to work on December 17, 18 or 19, 1990.
Claimant contends that Dr. Turocy extended his return to
work date beyond December 17 and then, apparently, forgot to
tell his employer. However, there is absolutely no
documentation from Dr. Turocy indicating that he extended the
claimant's release date, despite claimant's four-year
opportunity to obtain such documentation. To the contrary, the
evidence establishes that the claimant was released to return
to L-P on December 17, 1990. Claimant, however, did not return
and instead waited until after the new year before making any
contact with L-P.
Accordingly, the judgment of the court of appeals is
reversed, and a writ is issued ordering the commission to
vacate the May 8, 1992 order and to issue a new order
consistent with this opinion.
Judgment reversed,
and writ allowed.
Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and
Cook, JJ., concur.
Wright, J., not participating.