State ex rel. McKnabb 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

[Cite as State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 2001-Ohio-1285]

THE STATE EX REL. MCKNABB, APPELLEE, v. INDUSTRIAL COMMISSION OF
OHIO, APPELLANT, ET AL.
[Cite as State ex rel. McKnabb v. Indus. Comm. (2001), 92 Ohio St.3d 559.]
Workers' compensation -- Voluntary departure from employment precludes
receipt of temporary total disability compensation -- Claim by employer,
which had no written employment or disciplinary policy, that claimant's
tardiness and subsequent termination constituted a voluntary
abandonment of the workforce and therefore precluded temporary total
disability compensation -- Temporary total disability compensation is
barred only where claimant is discharged for violation of a written work
rule -- State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., applied.
(No. 99-2152 -- Submitted April 2, 2001 -- Decided August 22, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-1355.
__________________

Per Curiam. Appellee-claimant, Michael E. McKnabb, began working as
a car audio installer for appellant C.C.A.E., Inc., d.b.a. Columbus Car Audio
("CCA"), in 1992. On July 30, 1994, claimant injured his lower back at work,
and a workers' compensation claim was allowed. Surgery followed that
December. Claimant eventually returned to work but was fired in June 1996,
allegedly for tardiness. CCA at that time had no written employment or
disciplinary policy.

Claimant successfully obtained another job but left it because of his back
condition. Temporary total disability compensation ("TTC") followed. CCA
eventually requested that the award be vacated, claiming, among other things, that
claimant's tardiness and subsequent termination constituted a voluntary

SUPREME COURT OF OHIO
abandonment of the workforce and therefore precluded TTC. Appellant Industrial
Commission of Ohio agreed and granted that motion, writing:

"[T]he prior finding that the claimant abandoned his former job and was
consequently precluded from obtaining temporary total benefits is affirmed. * * *

"The applicable case on point for this issue is State ex rel. Louisiana-
Pacific Corporation v. Industrial Commission of Ohio (1995), 72 Ohio St.3d 401
[650 N.E.2d 469]. The case held that voluntary abandonment from employment
precludes the payment of temporary total disability and such voluntary
abandonment is established when the facts support that the following three factors
have been satisfied: (1) violation of a written work rule or policy that 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. * * *

"The first criteria of this test is met because the employer's representative
testified at hearing that the employer had a strict company policy that all
employees must report for work on time and if they were going to be late or be
absent from work, that they must call in to let the employer know of their lateness
or inability to come into work.

"The employer's representative went on to explain that over a six month
period, the claimant had been late fifteen to twenty times and had not called in to
report his lateness. Further, for the two days prior to claimant's actual dismissal,
the employer stated that the claimant didn't show up for work at all and did not
call in to report his absences for those days. On the third day, the claimant finally
did show up for work and was dismissed at that point for a pattern of lateness and
absences.

"The second part of the test is satisfied because the employer made it clear
at the hearing that when claimant was hired, it was explained to him that the
2

January Term, 2001
policy regarding being late or absent from work would be strictly enforced and
repeated violations of this policy could result in termination of employment.

"The employer's representative indicated at hearing that because of
claimant's chronic lateness and absences from work that the claimant was
counseled about his violation of this company policy by his supervisor in that
continued violations could result in termination of employment. In fact, the
claimant did lose one day of work prior to his termination for his ongoing
violation of this company policy.

"Lastly, the third part of the test has also been satisfied because as
explained previously, the claimant knew of this company policy regarding
lateness for work or being absent from work, and he knew of the consequences
(i.e. termination) for violation of this policy."

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in vacating
his TTC. The court of appeals agreed, ruling that under State ex rel. Louisiana-
Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469, TTC
is barred only where the claimant is discharged for violation of a written work
rule. The writ was accordingly granted. This cause is now before this court as of
right.

Voluntary abandonment of the former position of employment can, in
some instances, bar TTC. State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio
St.3d 376, 378, 732 N.E.2d 355, 357. Firing "can constitute a voluntary
abandonment of the former position of employment * * * [when it is] a
consequence of behavior that the claimant willingly undertook." State ex rel.
Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d
1202, 1204. That is because a person is deemed to "tacitly accept the
consequences of [one's] voluntary acts." State ex rel. Ashcraft v. Indus. Comm.
(1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533, 535.
3

SUPREME COURT OF OHIO

We have, however, recognized "the great potential for abuse in allowing a
simple allegation of misconduct to preclude temporary total disability
compensation." State ex rel. Smith v. Superior's Brand Meats, Inc. (1996), 76
Ohio St.3d 408, 411, 667 N.E.2d 1217, 1219. Our litigants support this premise
but disagree over what is required.
In
Louisiana-Pacific, the claimant failed to report for work on three
consecutive days without calling. He was dismissed pursuant to plant policy.
When asked to characterize, for TTC purposes, the departure as voluntary or
involuntary, we wrote:

"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." Id. at 403, 650 N.E.2d at 471.

Now at issue is Louisiana-Pacific's reference to a written rule or policy.
Claimant considers a written policy to be an absolute prerequisite to precluding
TTC. The commission disagrees, characterizing Louisiana-Pacific's language as
merely illustrative of a TTC-preclusive firing. We favor claimant's position.

The commission believes that there are common-sense infractions that
need not be reduced to writing in order to foreclose TTC if violation triggers
termination. This argument, however, contemplates only some of the
considerations. Written rules do more than just define prohibited conduct. They
set forth a standard of enforcement as well. Verbal rules can be selectively
enforced. Written policies help prevent arbitrary sanctions and are particularly
4

January Term, 2001
important when dealing with employment terminations that may block eligibility
for certain benefits.

This case is a good example. The commission speaks of a "strict"
employer policy on tardiness and absenteeism. It was apparently not that strict,
however, since the claimant, according to the commission, was late "fifteen to
twenty" times during an unspecified six-month period. This scenario raises more
questions than it answers: how CCA defined "late" and whether it was the same
for all employees; whether the claimant was routinely only a minute late or
substantially later; and when the six-month period of tardiness occurred, e.g.,
whether the accusations of tardiness were suddenly resurrected to justify
termination, becoming an issue only after claimant filed a workers' compensation
claim.

The commission refers to claimant's "knowledge" of CCA's tardiness
policy and the "warning" issued to him concerning chronic tardiness. But the
timing of the warning is relevant: was it after the first infraction or the
seventeenth? If after the first and the employer continued to ignore late arrival,
the validity of the policy may have been diminished in claimant's mind, calling
into question claimant's actual knowledge of it. Also relevant is the nature of the
warning. These are just some of the areas that verbal policies leave ambiguous.

CCA may well have acted properly. Again, however, because of the
potential for abuse, a postinjury firing must be carefully scrutinized. Written
termination criteria aid this inquiry and are why Louisiana-Pacific requires them.

The judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, F.E. SWEENEy and PFEIFER, JJ., concur.

RESNICK, J., concurs in judgment only.

COOK, J., dissents.

LUNDBERG STRATTON, J., dissents.
5

SUPREME COURT OF OHIO
__________________

LUNDBERG STRATTON, J., dissenting. I dissent and would reverse the
judgment of the court of appeals. Although the rule was not a written rule,
claimant clearly violated a work policy--"don't be late for work." We all
understand that rule; we hardly need it in writing. All the concerns raised by the
majority involve enforcement of the rule. This concern could apply to a written
or unwritten policy. An employer may establish a written policy and then very
strictly enforce it or not enforce it at all.

Here, claimant was given many chances to comply, given warnings, given
more opportunities to comply. He admits he knew of the company policy. To
require a policy to be in writing before a firing for its violation can be considered
a "voluntary abandonment" makes no sense. This opinion appears to require that
only firing as a result of a written rule constitutes "voluntary abandonment."
Does the employer now have to put into writing "thou shalt not steal, rob, or
murder" before a firing for one of these reasons can be considered voluntary
abandonment?

The court of appeals simply substituted its judgment for the company's
finding of when "enough is enough." The claimant had plenty of chances. He
was late once too many times. He was fired.

The commission did not abuse its discretion in agreeing with the
company's actions. We should not reverse just because we and the court of
appeals disagree with the factual conclusions reached from the evidence. As the
majority states: "Firing `can constitute a voluntary abandonment of the former
position of employment * * * [when it is] a consequence of behavior that the
claimant willingly undertook.' State ex rel. Watts v. Schottenstein Stores Corp.
(1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202, 1204. That is because a person
is deemed to `tacitly accept the consequences of [one's] voluntary acts.' State ex
6

January Term, 2001
rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533,
535."

Therefore, I respectfully dissent and would reverse the judgment of the
court of appeals. I would reinstate the order of the commission.
__________________

Law Offices of James R. Nein, Matthew R. Copp and James R. Nein, for
appellee.

Betty D. Montgomery, Attorney General, and Dennis L. Hufstader,
Assistant Attorney General, for appellant.

Philip J. Fulton & Associates, Philip J. Fulton and Jonathan H. Goodman,
urging affirmance for amicus curiae Ohio Academy of Trial Laywers.

Stewart R. Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J.
Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO.
__________________
7