State ex rel. Pretty Products, Inc. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

THE STATE EX REL. PRETTY PRODUCTS, INC., APPELLANT, V. INDUSTRIAL
COMMISSION OF OHIO ET AL., APPELLEES.
[Cite as State ex rel. Pretty Products, Inc. v. Indus. Comm. (1996), ____
Ohio St.3d ____.]
Workers' compensation -- Application for temporary total disability
compensation -- Finding by Industrial Commission that claimant did not
voluntarily abandon position of employment -- Order remanded to
commission by Supreme Court for further explanation and clarification
when order is vague.

(No. 94-1845---Submitted July 24, 1996----Decided October 23,
1996.)

APPEAL from the Court of Appeals for Franklin County, No.
93APD05-682.

On two different occasions, appellee-claimant, Maxine Dansby,
injured her low back in the course of and arising from her employment
for appellant-relator, Pretty Products, Inc., a self-insured employer. The
first incident occurred in February 1990. Relator states that it certified
the claim, which was allowed for "sprain/strain lumbosacral." After a

period of absence from work, claimant returned to her job at Pretty
Products, Inc.

On November 8, 1990, claimant again left work and went to the
hospital because of low back pain. Claimant saw her attending
physician, Dr. Alfred H. Magness, for treatment. In a series of medical
excuse slips, Dr. Magness certified that claimant was unable to return to
her former job. The last of these medical slips certified that claimant
could return to work on March 1, 1991.

Claimant did not return to work on Friday, March 1, 1991, nor did
she then produce an excuse slip that extended her disability. Claimant
did not report to work on the following Monday or Tuesday, and,
consequently, she was terminated pursuant to a provision in the
union/management agreement. Relator states that although claimant
eventually contacted her union representative about filing a grievance to
challenge her discharge, claimant did not file a grievance because it
would have been considered untimely.

2

In June 1991, claimant moved appellee Industrial Commission for
temporary total disability ("TTD") compensation beginning November 8,
1990, based on the first claim. In support of the motion, she submitted
a June 8, 1991 C-84 "Physician's Report Supplemental" that was based
on an April 26, 1991 exam and that certified claimant as temporarily
totally disabled beginning November 8, 1990, to an estimated return-to-
work date of August 1, 1991.

In August 1991, claimant filed a second workers' compensation
claim alleging that she had injured her low back, neck and shoulders on
November 8, 1990. Relator refused to certify this claim, however,
contending that it was a "reoccurrence" of the first claim. In October,
claimant filed a motion in the second claim requesting TTD
compensation from November 8, 1990. Claimant alternatively
requested wage loss compensation in the event that TTD compensation
was denied. On November 25, 1991, a district hearing officer heard the
allowance and wage compensation issues of the second claim, and

3

issued an order allowing claimant's back injury as an "aggravation [of]
pre-existing lumbosacral sprain/strain." Finding that claimant's
discharge constituted a voluntary abandonment of her former position of
employment, the district hearing officer denied both TTD and wage loss
compensation beyond March 4, 1991. The regional board of review
affirmed the district hearing officer's order in the second claim. On
further appeal by claimant, staff hearing officers modified the district
hearing officer's order "to the extent that Temporary Total Disability
compensation is payable from 3/5/91 to [sic] and to continue based on
submission of medical proof. It is found that the claimant did not
voluntarily abandon her former position of employment on 3/4/91 for the
reason that she did not timely submit an excuse slip from her doctor."
Relator's motion for reconsideration was denied.

Relator filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion

4

in awarding TTD compensation beyond March 5, 1991. The court of
appeals upheld the staff hearing officers' findings and denied the writ.

This cause is now before this court upon an appeal as of right.
______________

Emens, Kegler, Brown, Hill & Ritter and Ronald L. Mason, for
appellant.

Betty D. Montgomery, Attorney General, and Cheryl J. Nester,
Assistant Attorney General, for appellee Industrial Commission.

Larrimer & Larrimer, Terrence W. Larrimer and David H.
Swanson, for appellee Maxine Dansby.
______________

MOYER, C.J. This case presents the question of whether the
Industrial Commission abused its discretion by finding that the claimant
did not voluntarily abandon her position of employment, and that further
temporary total disability compensation should be awarded. Because of

5

the vagueness of the commission's order, we must remand for further
explanation and clarification of the reasoning supporting that order.

The receipt of temporary total disability ("TTD") compensation
rests on a claimant's inability to return to his or her former job as a direct
result of an industrial injury. State ex rel. Ramirez v. Indus. Comm.
(1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586, syllabus.
However, eligibility may be compromised when the claimant is no longer
employed at that job. Once a claimant is separated from the former
position of employment, future TTD compensation eligibility hinges on
the timing and character of the claimant's departure.

The timing of a claimant's separation from employment can, in
some cases, eliminate the need to investigate the character of
departure. For this to occur, it must be shown that the claimant was
already disabled when the separation occurred. "[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

6

time of the abandonment or removal." State ex rel. Brown v. Indus.
Comm. (1993), 68 Ohio St.3d 45, 48, 623 N.E.2d 55, 58.

However, such situations are not common, and inquiry into the
character of departure is the norm. While voluntary departure generally
bars TTD compensation, an involuntary departure does not. State ex
rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531
N.E.2d 678. In the instant case, the commission found that claimant's
departure was involuntary. Review of the commission's order, however,
is hindered because it is susceptible of several different interpretations.

For example, one possible interpretation of the commission's
statement that "claimant did not voluntarily abandon her former position
of employment on 3/4/91 for the reason that she did not timely submit
an excuse slip from her doctor" could be that the separation was not
voluntary because firings are per se involuntary. If this is indeed the
commission's reasoning, it is wrong. As this court has recently held, the
underlying facts and circumstances of each case determine whether a

7

departure by firing may be voluntary or involuntary. State ex rel. Smith
v. Superior's Brand Meats, Inc. (1996), 76 Ohio St.3d 408, 411, 677
N.E.2d 1217, 1219.

Another possible reading of the commission's order is that the
commission modified the district hearing officer's order based on the
belief that termination for unexcused absence could not support a
finding of voluntary abandonment. This, too, is incorrect. In State ex
rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401,
650 N.E.2d 469, the claimant, as in the present case, was fired for
violating a policy prohibiting three consecutive unexcused absences.
We held that the claimant's discharge was voluntary, stating, "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." Id. at 403, 650 N.E.2d at 471.

8

However, there is an important distinction between Louisiana-Pacific
and this case. In the former, there was no evidence that the claimant's
absences were due to industrial injury, while in this case there is.
Whether this distinction is ultimately outcome-determinative, however,
cannot be decided absent clarification of the commission's reasoning.

A third possible interpretation of the commission's order is that the
commission found that claimant had been fired because of her industrial
injury. If that indeed was the case, a finding of involuntary departure
could be sustained. Rockwell, supra. Again, however, without
clarification, judicial review can proceed no further.

Given the possibility that any of these interpretations could reflect
the commission's reasoning, the judgment of the court of appeals is
reversed and the cause is remanded to the commission for clarification.

Judgment reversed

and cause remanded.

RESNICK, PFEIFER, COOK and STRATTON, JJ., concur.

9

DOUGLAS and F.E. SWEENEY, JJ., dissent and would affirm the
judgment of the court of appeals.

10