State ex rel. Clark v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Clark v. Indus. Comm., 92 Ohio St.3d 455, 2001-Ohio-1265]

THE STATE EX REL. CLARK, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO;
SOUTHERN OHIO CORRECTIONAL FACILITY, OHIO DEPARTMENT OF
REHABILITATION & CORRECTION, APPELLANT.
[Cite as State ex rel. Clark v. Indus. Comm. (2001), 92 Ohio St.3d 455.]
Workers' compensation -- R.C. 4123.56(A) does not require a setoff of
temporary total disability benefits where hostage leave has been paid
pursuant to the terms of a collective bargaining agreement.
(No. 99-2022 -- Submitted February 27, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-1178.
__________________
SYLLABUS OF THE COURT
R.C. 4123.56(A) does not require a setoff of TTD benefits where hostage leave
has been paid pursuant to the terms of a collective bargaining agreement.
__________________

DOUGLAS, J. In April 1993, Darrold R. Clark, Jr., appellee, worked as a
corrections officer for the Southern Ohio Correctional Facility. On April 11,
1993, inmates rioted at the correctional facility and took Clark hostage. While
being held captive, Clark was beaten by the prisoners and sustained multiple
physical injuries, including abrasions on his wrists, an open laceration on his
upper forearm, an abrasion on his face, dehydration, and malnutrition. In addition
to his physical injuries, Clark suffered severe stress and anxiety as a direct result
of being held hostage as well as having been beaten. The inmates released Clark
on April 15, 1993.

Subsequent to his release, Clark submitted a claim to the Ohio Department
of Rehabilitation and Correction for hostage leave pay pursuant to Article 34.05
of the collective bargaining agreement between the state of Ohio and the Ohio

SUPREME COURT OF OHIO
Civil Service Employees Association. Clark's request was granted, and, pursuant
to the collective bargaining agreement, he received hostage leave payable at his
regular rate beginning April 18, 1993, and continuing through July 10, 1993.

On April 28, 1993, Clark filed a claim with the Ohio Bureau of Workers'
Compensation ("BWC") seeking temporary total disability ("TTD")
compensation for the injuries he sustained while he was held hostage. The BWC
first allowed his claim for "dehydration; malnourishment; abrasions bilateral
wrists and face; laceration right upper arm; [and] atrial fibrillation." The bureau
later allowed the additional condition of "post-traumatic stress disorder." On July
11, 1993, Clark began receiving TTD benefits.

On October 26, 1993, Clark filed a claim with BWC requesting TTD
benefits for the period from April 12, 1993, through July 10, 1993, i.e.,
approximately the same period for which he had received hostage leave benefits.
This claim for TTD benefits was denied. Clark appealed the denial to a BWC
district hearing officer ("DHO"). The DHO denied the appeal and found that
TTD compensation was not payable, reasoning that if TTD were permitted for the
same period as hostage leave, hostage leave would have to be deducted from TTD
benefits, resulting in no payment. Clark appealed the DHO decision, and a
hearing was held before a BWC staff hearing officer ("SHO"), who affirmed the
DHO decision. The SHO found that hostage leave payment was the equivalent of
wages. Notwithstanding that finding, the SHO ordered TTD to be paid for April
11, 1993, through July 15, 1993, but also ordered the hostage leave pay to be
deducted from the award of TTD.1

Clark appealed the decision to the Industrial Commission. The
commission denied Clark's claim on the basis that hostage leave compensation

1.
The SHO affirmed the DHO decision denying Clark's claim. However, in contrast to the
DHO decision, the SHO ordered that "temporary total compensation is payable from 4/11/93
through 7/15/93 per the C-30 report from Dr. Gilman, less wages (or in this case, Hostage Leave)
previously paid over such period."
2

January Term, 2001
constituted one hundred percent wage replacement and that R.C. 4123.56(A)
prevents TTD payments when a claimant has not lost any wages.

Clark filed an action in mandamus in the Tenth District Court of Appeals,
claiming that he was entitled to TTD benefits payable over the same period that
he received hostage leave. Clark sought a determination that the denial of his
claim was an abuse of discretion.

Pursuant to Civ.R. 532 and Loc.R. 12(M) of the Franklin County Court of
Appeals, the matter was referred to a magistrate. The court magistrate found that
the Industrial Commission had not abused its discretion and recommended that
the court deny the writ.

Clark filed objections to the magistrate's recommendation. The court of
appeals adopted the magistrate's findings of fact but rejected the magistrate's
conclusions of law. The court of appeals found that the commission abused its
discretion when the commission determined that the payment of hostage leave
constituted a wage as opposed to a benefit paid pursuant to the collective
bargaining agreement. Accordingly, the court of appeals issued a writ of
mandamus ordering the commission to vacate its order denying Clark's
application for TTD for the period of April 12, 1993, through July 10, 1993, and
to enter an order granting that compensation, with no setoff for hostage leave pay.

The case is now before this court upon an appeal as of right.

The Workers' Compensation Act provides for compensation to be paid to
workers injured in the course of their employment. R.C. 4123.54. Every
employee who is injured, who contracts an occupational disease, or who dies
while in the course of employment is "entitled to receive, either directly from the

2.
Civ.R. 53(A) provides that "[a] court of record may appoint one or more magistrates who
shall be attorneys at law admitted to practice in Ohio." Civ.R. 53(C) sets out the powers of
magistrates. It provides that a magistrate may hear an issue in any nonjury trial or in any case in
which the parties consent in writing to submit an issue to a magistrate. Civ.R. 53(C)(1)(ii) and
(iii).
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employee's self-insuring employer as provided in section 4123.35 of the Revised
Code, or from the state insurance fund, the compensation for loss sustained on
account of the injury" provided by R.C. Chapter 4123. R.C. 4123.54(A)(2).

Injury, for the purposes of the Workers' Compensation Act, is defined in
R.C. 4123.01(C) and "includes any injury, whether caused by external accidental
means or accidental in character and result, received in the course of, and arising
out of, the injured employee's employment."

R.C. 4123.56 provides compensation for workers who suffer injuries that
result in temporary disability. The purpose behind TTD compensation is to
compensate an employee for a loss of earnings while recovering from an injury.
State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d
533, 535.

Relevant to this appeal, R.C. 4123.56(A) provides:

"If any compensation under this section has been paid for the same period
or periods for which temporary nonoccupational accident and sickness insurance
is or has been paid pursuant to an insurance policy or program to which the
employer has made the entire contribution or payment for providing insurance or
under a nonoccupational accident and sickness program fully funded by the
employer, compensation paid under this section for the period or periods shall be
paid only to the extent by which the payment or payments exceeds the amount of
the nonoccupational insurance or program paid or payable."

The Southern Ohio Correctional Facility, Ohio Department of
Rehabilitation and Correction, appellant, argues that R.C. 4123.56(A) precludes
payment of any TTD compensation where an injured worker has been paid
benefits through a program fully funded by the employer. Thus, appellant
contends that, pursuant to R.C. 4123.56(A), TTD compensation should be offset
by the hostage leave pay that Clark received, since hostage leave is a
nonoccupational benefit program fully funded by Clark's employer. We disagree.
4

January Term, 2001

Article 34.05 of the collective bargaining agreement provides:

"In the Department of Rehabilitation and Correction, the Department of
Youth Services, and the Forensic Centers within the Department of Mental
Health, any employee who has been taken hostage shall be eligible for up to sixty
(60) days leave with pay at regular rate which shall not be charged to sick leave,
vacation, or any other accrued leave, as determined necessary by a licensed
physician or psychiatrist to recover from stress."

R.C. 4123.56(A) requires setoff of any payments received by the claimant
from an employer-funded "nonoccupational accident and sickness" insurance or
program against temporary total disability compensation paid for the same period.
We find that the hostage leave payments received by Clark pursuant to the
collective bargaining agreement are not "nonoccupational," and that therefore
setoff is not required.

The hostage leave pay provided to corrections officers under the collective
bargaining agreement is a benefit that arises from the peculiar hazards associated
with prison work. Corrections officers are in daily intimate contact with
convicted criminals, some of whom have violent propensities. The emotional and
physical pressures of extended incarceration can erupt into violence, rioting, and
prison takeovers, as in this case, which often involve hostage-taking of prison
employees. This is a risk that corrections officers face every day on the job. In
consideration of that risk, the employer in this case has offered a benefit designed
to compensate those of its employees who actually suffer the trauma of being
taken hostage in the course of their employment. Thus, this benefit is designed to
address a risk that is occupational, i.e., one that is clearly connected to the nature
of the work. As such, it is not a "nonoccupational accident and sickness"
program, and it is not within the purview of R.C. 4123.56(A).

Furthermore, Clark argues that hostage leave, pursuant to the collective
bargaining agreement, is a contractual fringe benefit. As such, hostage leave falls
5

SUPREME COURT OF OHIO
outside the Worker's Compensation Act, and, therefore, hostage leave payments
may not be used as a basis to offset TTD benefits.

Pursuant to the collective bargaining agreement, Clark was entitled to take
sixty days of paid leave, if deemed necessary by a physician, in order to recover
from the stress associated with being held hostage. In order to qualify for hostage
leave, Clark was not required to have suffered any physical injury; he was
required to show only that he suffered from stress associated with being held
hostage. Thus, according to the terms of the collective bargaining agreement,
hostage leave is payable with or without any contemporaneous physical injury.

Moreover, for the purposes of R.C. 4123.54, "injury" does not include
psychiatric conditions "except where the conditions have arisen from an injury or
occupational disease." (Emphasis added.) R.C. 4123.01(C)(1). A psychological
injury without a corresponding physical injury is not compensable under the
workers' compensation system. Bunger v. Lawson Co. (1998), 82 Ohio St.3d
463, 464, 696 N.E.2d 1029, 1031.3 Therefore, a corrections officer who suffers a
psychological injury as a result of being held hostage, but without a
contemporaneous physical injury, is without a remedy under the workers'
compensation system.
In Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 575 N.E.2d 428,
we held that the workers' compensation statutes do not provide the exclusive
remedy for claims based upon sexual harassment in the workplace. Id. at
paragraph one of the syllabus. We recognized in Kerans that workers'
compensation is essentially directed at compensating a worker for lost earnings
and thus does not provide benefits for sexual harassment, since victims of sexual
harassment generally do not suffer loss of wages. Id. We also noted that the
immunity provisions of R.C. 4123.74 did not bar the plaintiff's suit because her

3.
The author of this opinion continues to adhere to his dissent in Bunger v. Lawson Co.
(1998), 82 Ohio St.3d 463, 468, 696 N.E.2d 1029, 1033.
6

January Term, 2001
sexual harassment claims fell outside the purview of the workers' compensation
system. Id. at 489-490, 575 N.E.2d at 431. Thus, we held that a damage award as
a result of a sexual harassment lawsuit is a means of compensating a worker for
an injury that is incurred during the course of employment but is not compensable
under workers' compensation.

Similarly, hostage leave pay provides a remedy to workers who suffer a
psychological injury as a result of being held hostage that is not otherwise
compensable under workers' compensation. In other words, hostage leave can
provide a separate remedy, outside the workers' compensation system, for a
worker who has suffered psychological injury without suffering a
contemporaneous physical injury. As such, hostage leave is very similar to the
damage award in Kerans. Therefore, we find that hostage leave pay, as provided
in the collective bargaining agreement, is not intended to be the type of wage-
replacing benefit contemplated in R.C. 4123.56(A).

Clark also argues that any offset of TTD by hostage leave payments
received deprives him of the benefit of the bargain negotiated through the terms
of the collective bargaining agreement between Clark's union and the state. We
agree.
In
Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, the
plaintiff, Sorrell, prevailed in a personal injury claim against defendant, Thevenir.
Thevenir claimed that because Sorrell had received workers' compensation
benefits in excess of the personal injury verdict, Thevenir was entitled, pursuant
to R.C. 2317.45(B)(2), to a setoff of the entire damage award. We held that the
collateral source statute, R.C. 2317.45, by requiring the offset of collateral
benefits, including workers' compensation benefits, violated Sections 2, 5, and
16, Article I of the Ohio Constitution and accordingly was unconstitutional in
toto. Id. at syllabus.
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SUPREME COURT OF OHIO

We found persuasive in Sorrell the contention that there is no double
recovery from a tortfeasor in the typical tort case involving collateral benefits,
since one of the supposed double recoveries is actually the benefit of the
plaintiff's bargain with his or her own insurance company. In Sorrell, we found
that the benefit of the bargain was the employer-paid workers' compensation and
disability compensation programs that were earned by the employees as an
employment benefit. Id., 69 Ohio St.3d at 424, 633 N.E.2d at 511-512.

Similarly, hostage leave is a bargained-for benefit of Clark's collective
bargaining agreement. In this case, Clark's union and the state negotiated in good
faith and have agreed to a presumably mutually beneficial collective bargaining
agreement. If we were to deny TTD benefits to Clark based upon his receipt of
hostage leave pay, we would circumvent the negotiated provision of the collective
bargaining agreement that entitles Clark to hostage leave.

Moreover, and in any event, we find that the language of the collective
bargaining agreement suggests that hostage leave pay is not intended to require an
offset of TTD benefits. The provision of the collective bargaining agreement
immediately preceding the section providing for hostage leave is Article 34.04,
entitled "Occupational Injury Leave." Article 34.04 provides:

"Employees of * * * The Department of Rehabilitation and Correctio[n] *
* * shall be entitled to a total of nine hundred sixty (960) hours of occupational
injury leave a year with pay at regular rate. (See Appendix K)."

Appendix K of the collective bargaining agreement, entitled "Guidelines
for Occupational Injury Leave," provides:

"1. An employee of the * * * Department of Rehabilitation and Correction
* * * shall be eligible for his/her regular rate of pay during the period he/she is
disabled as a result of such injury but in no case to exceed 960 hours. This form
of compensation shall be in lieu of Workers' Compensation." (Emphasis added.)
8

January Term, 2001

Article 34.04 specifically states that occupational injury benefits are paid
in lieu of workers' compensation pursuant to Appendix K of the agreement.
However, there is no provision stating that hostage leave, payable pursuant to
Article 34.05, is to be paid in lieu of workers' compensation benefits. Since
occupational injury leave is subject to the provisions of Appendix K of the
collective bargaining agreement, and hostage leave is not subject to those
provisions, we conclude that the parties to the collective bargaining agreement
had no intention that hostage leave is to be paid in lieu of TTD benefits or any
other workers' compensation benefits.

Accordingly, we hold that hostage leave is not a "nonoccupational
accident and sickness" program, and it is not within the purview of R.C.
4123.56(A). In addition, pursuant to the terms of the collective bargaining
agreement between the state of Ohio and the OCSEA, hostage leave is a benefit
independent of the Workers' Compensation Act and is provided to employees of
the Department of Rehabilitation and Correction for the unique risks of
psychological injury associated with their employment as corrections officers.
For the foregoing reasons, we therefore find that R.C. 4123.56(A) does not
require a setoff of TTD benefits where hostage leave has been paid pursuant to the
collective bargaining agreement.

Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.

COOK, J., dissents.
__________________

COOK, J., dissenting. The majority holds that R.C. 4123.56(A) does not
require a setoff of TTD benefits where hostage leave has been paid pursuant to the
9

SUPREME COURT OF OHIO
terms of a collective bargaining agreement ("CBA"). For the following reasons,
however, I disagree.

As the majority notes, "[t]he purpose behind TTD compensation is to
compensate an employee for a loss of earnings while recovering from an injury.
State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d
533, 535." (Emphasis added.) I agree with this statement of purpose, and that is
precisely why I must respectfully dissent. Clark's receipt of hostage leave under
Article 34.05 of the CBA compensated him at the regular rate of pay, with leave
that was not charged to him. He thus suffered no "loss of earnings" attributable to
the period during which he recovered.

I agree with the appellate court magistrate's conclusion that the term
"nonoccupational," construed in the context of R.C. 4123.56(A)'s setoff
provisions, refers to wage-replacing compensation paid for temporary disability by
sources collateral to the workers' compensation system. The magistrate's
interpretation is buttressed by the administrative interpretation of the relevant
statutory provisions--an interpretation to which we should accord appropriate
deference. See Swallow v. Indus. Comm. (1988), 36 Ohio St.3d 55, 57, 521
N.E.2d 778, 779. Though notably absent from the majority's discussion, Ohio
Adm.Code 4123-5-20(C) provides:

"Where claimants are paid a regular salary during the period of disability
on any * * * basis [other than vacation], for example, sick leave, [TTD] cannot be
paid so long as such regular salary or wages are paid, unless * * * such salary was
paid as an advancement."4 (Emphasis added.)

It is undisputed that Clark was paid his regular salary during his period of
disability and that it was not paid as an advancement.

4.
See, also, Memo Nos. C1 and C2 of the Industrial Commission of Ohio Policy
Statements and Guidelines (Jan. 1, 1989), which implement this directive.
10

January Term, 2001

The majority relies heavily on the fact that the CBA article immediately
preceding the article providing hostage leave expressly provides that such leave is
"in lieu of Workers' Compensation"--whereas the article providing hostage leave
does not. But the preceding article to which the majority refers is entitled
"Occupational Injury Leave." (Emphasis added.) The fact that hostage leave
does not appear in the CBA article entitled "Occupational Injury Leave" actually
undercuts the majority's thesis by demonstrating that the parties to the CBA, like
the magistrate and the commission, deemed hostage leave nonoccupational--and
thus subject to setoff under R.C. 4123.56(A).

An award of TTD benefits to Clark in this case does not correspond to the
overall purpose of R.C. 4123.54 and 4123.56(A) to compensate employees for
TTD only to the extent that they have not been compensated for their lost wages
by their employers. The commission did not abuse its discretion when it
determined that the TTD Clark received should be set off by the hostage leave
compensation that he received. I would reverse the appellate court's decision to
the contrary.
__________________

Phillip J. Fulton & Associates and William A. Thorman III, for appellee.

Betty D. Montgomery, Attorney General, Karla L. Stultz, Assistant
Attorney General, and Lee M. Smith, Special Counsel, for appellant.
__________________
11