State ex rel. Rademacher v. Marriott Internatl., Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Rademacher v. Marriott Internatl., Inc., 101 Ohio St.3d 390, 2004-Ohio-
1672.]

THE STATE EX REL. RADEMACHER, APPELLANT, v. MARRIOTT INTERNATIONAL,
INC. ET AL., APPELLEES.
[Cite as State ex rel. Rademacher v. Marriott Internatl., Inc., 101 Ohio St.3d
390, 2004-Ohio-1672.]
Workers' compensation -- Industrial Commission did not abuse its discretion in
denying temporary total disability compensation, when -- State ex rel.
Baker not applicable, when.
(No. 2003-1108 -- Submitted March 15, 2004 -- Decided April 14, 2004.)
APPEAL from the Court of Appeals for Franklin County, No. 02AP-932, 2003-
Ohio-2728.
____________________

Per Curiam.
{¶1} Appellant-claimant Gina M. Rademacher suffered a work-related
injury on July 1, 1996, and a workers' compensation claim was allowed.
Claimant had surgery for one of the allowed conditions in November 1996. On
December 18, 1996, appellee-employer Marriott International, Inc. wrote a letter
to claimant's doctor. In it, Marriott addressed the possibility of claimant returning
to work:
{¶2} "* * * By the time of her appointment next week, Ms. Rademacher
will be six weeks post-op for her knee and we would like to address the issue of
her possibly returning to a transitional duty position.
{¶3} "Marriott is very proactive in returning their associates to work
after a work related accident. We are able to modify an injured associate's
present job duties, or to create a new job that will be within a doctor's approved
restrictions. We have been very successful with this approach and ask for your
opinion on whether Ms. Rademacher can return to work in a light duty capacity.

SUPREME COURT OF OHIO
{¶4} "* * *
{¶5} "* * * [W]e will willing[ly] accommodate any restrictions that are
placed on Ms. Rademacher."
{¶6} It is unclear whether claimant's attending physician, Dr. Edward J.
Berghausen, answered this letter. It does appear that he notified Marriott that
claimant needed surgery for another allowed condition, but that it was being
postponed due to her pregnancy. Marriott wrote to Dr. Berghausen again on
January 22, 1997, repeating its request for information regarding claimant's work
restrictions and the possibility of her performing light-duty work.
{¶7} A C-84 Physician's Report indicates that Dr. Berghausen
examined claimant on February 10, 1997. On that date, he released claimant to
light-duty work with the limitation that she not lift objects over 20 pounds and
limit her kneeling, bending, and climbing to one hour per day. Claimant does not
deny that she was told of her release and restrictions at that time.
{¶8} The following day, February 11, 1997, claimant called Chuck
Butler, operations director for Marriott. She told him that she had moved out of
state because of a new employment opportunity for her husband and that she was,
therefore, resigning effective immediately. Marriott received Dr. Berghausen's
completed work-release form a few days later.
{¶9} In 1998, claimant moved for temporary total disability
compensation ("TTC") for three periods: (1) May 4, 1997, through July 6, 1997,
(2) October 17, 1997, through November 29, 1997, and (3) December 30, 1997,
through August 1, 1998. Appellee Industrial Commission of Ohio denied her
request for compensation after finding that claimant had voluntarily abandoned
her position of employment at Marriott on February 11, 1997. Claimant did not
appeal that denial.
{¶10} In August 2000, this court released its decision in State ex rel.
Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376, 732 N.E.2d 355. Baker
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January Term, 2004
dramatically changed workers' compensation law by declaring that a claimant
who voluntarily left his or her position of employment for a new position was no
longer foreclosed from TTC if the claimant subsequently reaggravated the injury
while working at his or her new job. Presumably, this decision prompted
claimant to again move for TTC, this time covering the period August 2, 1998,
through August 24, 2000.
{¶11} TTC was again refused. The commission reiterated that claimant
had voluntarily abandoned her position of employment.
{¶12} Claimant filed a complaint in mandamus in the Court of Appeals
for Franklin County, alleging that the commission had abused its discretion in
denying TTC. The court of appeals disagreed, concurring in the commission's
characterization of claimant's departure from Marriott as a voluntary
abandonment of her position of employment. Moreover, the court held that
because claimant had not worked after leaving Marriott, Baker did not apply.
{¶13} This cause is now before this court upon an appeal as of right.
{¶14} Contrary to claimant's representation, the issue before us is not the
characterization of claimant's separation from Marriott as voluntary or
involuntary. That issue is res judicata, having been resolved by the commission
when claimant filed for TTC in 1998. Instead, the only matter before us is
whether Baker applies. We find that it does not.
{¶15} Baker preserves TTC eligibility following a voluntary departure
from a position of employment only when the claimant left the position to accept
a new job and then reaggravates the injury while working at his or her new job.
In this case, claimant was not employed during the period for which she moved
for TTC. Baker does not, therefore, apply, eliminating any TTC entitlement for
the requested period.
{¶16} The judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
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SUPREME COURT OF OHIO

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,
O'CONNOR and O'DONNELL, JJ., concur.
__________________

Weisser & Wolfe and Lisa M. Clark, for appellant.

Squire, Sanders & Dempsey, L.L.P., and Michael Soto, for appellee
Marriott International, Inc.

Jim Petro, Attorney General, and William J. McDonald, Assistant
Attorney General, for appellee Industrial Commission.
__________________
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