State ex rel. Klein v. Precision Excavating & Grading Co. (Slip Opinion) , 155 Ohio St. 3d 78 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Klein v. Precision Excavating & Grading Co., Slip Opinion No. 2018-Ohio-3890.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-3890
THE STATE EX REL. KLEIN, APPELLEE, v. PRECISION EXCAVATING & GRADING
COMPANY ET AL.; INDUSTRIAL COMMISSION, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Klein v. Precision Excavating & Grading Co., Slip
Opinion No. 2018-Ohio-3890.]
Workers’ compensation—When a claimant voluntarily removes himself from his
former position of employment for reasons unrelated to a workplace injury,
the claimant is no longer eligible for temporary-total-disability
compensation, even if the claimant remains disabled at the time of his
separation from employment—State ex rel. Reitter Stucco, Inc., v. Indus.
Comm. and State ex rel. OmniSource Corp. v. Indus. Comm. overruled.
(No. 2017-0589—Submitted February 13, 2018—Decided September 27, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 15AP-908,
2017-Ohio-1020.
_______________________
SUPREME COURT OF OHIO
FRENCH, J.
{¶ 1} In this appeal, we consider whether an injured worker who voluntarily
leaves his position of employment for reasons unrelated to his workplace injury is
entitled to continued temporary-total-disability compensation. Appellant,
Industrial Commission of Ohio, determined that appellee, John Klein, who
sustained a workplace injury on November 5, 2014, voluntarily abandoned his
employment at Precision Excavating & Grading Company (“Precision
Excavating”) on November 20, 2014, for reasons unrelated to his injury. On
Klein’s request for a writ of mandamus, the Tenth District Court of Appeals found
State ex rel. Reitter Stucco, Inc., v. Indus. Comm., 117 Ohio St. 3d 71, 2008-Ohio-
499, 881 N.E.2d 861, to be dispositive and concluded that the commission abused
its discretion in determining that Klein voluntarily abandoned his employment
without determining whether Klein was medically capable of returning to work.
{¶ 2} Reitter Stucco and a similar case, State ex rel. OmniSource Corp. v.
Indus. Comm., 113 Ohio St. 3d 303, 2007-Ohio-1951, 865 N.E.2d 41, held that a
claimant who voluntarily abandons his employment is entitled to temporary-total-
disability compensation if he is medically incapable of returning to work at the time
of the abandonment. With due respect for the principles of stare decisis, we
conclude that it is time to overrule Reitter Stucco and OmniSource under the
stringent three-part test in Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-
Ohio-5849, 797 N.E.2d 1256.
{¶ 3} Applying the longstanding principles of voluntary abandonment to
Klein’s claim for temporary-total-disability compensation, we reverse the judgment
of the court of appeals and deny the writ of mandamus.
FACTS AND PROCEDURAL HISTORY
{¶ 4} Klein sustained injuries on November 5, 2014, while working for
Precision Excavating. His workers’ compensation claim was allowed for fractured
ribs and traumatic hemopneumothorax. Robert A. Marley, M.D., his treating
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physician, issued a report stating that Klein was temporarily unable to work from
the date of the injury through January 5, 2015. The parties do not dispute that the
last date Klein worked at Precision Excavating was November 5, 2014, the date of
the injury.
{¶ 5} On November 13, 2014, Klein informed the Bureau of Workers’
Compensation that he was moving to Florida on November 20, 2014. Although the
exact date of his relocation to Florida is unclear from the record, by November 26,
2014, Klein had asked the bureau to send correspondence to an address in Longboat
Key, Florida.
{¶ 6} Klein filed a request for temporary-total-disability compensation
based on Dr. Marley’s report. At a February 18, 2015 hearing before a district
hearing officer, Klein testified that even before his injury, he had been planning to
move to Florida for better weather and more job opportunities. Precision
Excavating’s controller also testified that Klein had informed her on October 31,
2014, that he was moving to Florida and inquired as to the proper procedures for
quitting his job. She did not receive a written resignation from Klein but did
confirm that Klein last worked at Precision Excavating on November 5, 2014.
{¶ 7} The record contains additional evidence that before the date of his
injury on November 5, 2014, Klein had told others of his intention to move to
Florida. A coworker attested in a notarized statement that on November 3, 2014,
Klein had told him that he intended to quit his job in two weeks and move to Florida.
Another coworker attested that when she took Klein to the hospital on November
5, 2014, Klein informed her that he had recently given his two-week notice and
intended to move to Florida to live with his mother.
{¶ 8} After the hearing, the district hearing officer awarded Klein
temporary-total-disability compensation for only the closed period of November 6,
2014, through November 19, 2014. The hearing officer concluded that Klein
voluntarily terminated his employment on November 20, 2014, for reasons
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unrelated to his workplace injuries and was therefore not eligible for temporary-
total-disability compensation on or after that date.
{¶ 9} A staff hearing officer affirmed the district hearing officer’s order.
The Industrial Commission refused further appeals.
{¶ 10} Klein filed a complaint in mandamus in the Tenth District Court of
Appeals, alleging that the commission abused its discretion when it limited his
temporary-total-disability-compensation award to the period ending November 19,
2014.
{¶ 11} At the court of appeals, a magistrate relied on Reitter Stucco and
concluded that if Klein remained medically unable to return to work on November
20, 2014, he was unable to voluntarily abandon his employment on that date. The
magistrate determined that the commission had not evaluated Dr. Marley’s opinion
about whether Klein remained medically unable to return to work on that date. The
magistrate recommended that the court issue a limited writ of mandamus returning
the case to the commission with instructions to determine whether Klein was unable
to return to his former position of employment on November 20, 2014, and if it
determined that he was unable to return to work, to enter an order finding that Klein
was entitled to further temporary-total-disability compensation.
{¶ 12} The court of appeals adopted the magistrate’s decision and granted
a limited writ of mandamus. 2017-Ohio-1020, 86 N.E.3d 1002, ¶ 14.
{¶ 13} This matter is before this court on the commission’s direct appeal.
ANALYSIS
{¶ 14} The purpose of temporary-total-disability compensation is to
compensate an injured employee for lost earnings during a period of disability
while an injury heals. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35. To qualify for temporary-total-
disability compensation, a claimant must show that he or she is medically incapable
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of returning to the former position of employment and that the industrial injury is
the cause of the loss of earnings. Id.
{¶ 15} Ordinarily, when a claimant’s voluntary actions, rather than his or
her industrial injury, cause a loss of wages, that claimant is no longer eligible for
temporary-total-disability compensation. State ex rel. Ashcraft v. Indus. Comm.,
34 Ohio St. 3d 42, 44, 517 N.E.2d 533 (1987).
{¶ 16} We have carved out an exception to this voluntary-abandonment
rule—an exception that Klein relies on here. We have held that if a claimant is
already disabled when the separation of employment occurs, he or she is not
disqualified from receiving temporary-total-disability compensation. Reitter
Stucco, 117 Ohio St. 3d 71, 2008-Ohio-499, 881 N.E.2d 861, at ¶ 10; OmniSource,
113 Ohio St. 3d 303, 2007-Ohio-1951, 865 N.E.2d 41, at ¶ 10. In doing so, we
construed State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St. 3d 5, 670
N.E.2d 466 (1996), as requiring an inquiry into a claimant’s physical capacity: “a
claimant can abandon a former position of employment only if the claimant was
physically capable of doing that job at the time of the alleged abandonment.”
OmniSource at ¶ 12, citing Pretty Prods. Even if the abandonment of employment
was voluntary, we held, “there must be consideration of whether the employee was
still disabled at the date of termination.” Reitter Stucco at ¶ 11, citing Pretty Prods.
{¶ 17} Upon review now, we conclude that it is time to overrule Reitter
Stucco and OmniSource under the three-part test set forth in Galatis, 100 Ohio St. 3d
216, 2003-Ohio-5849, 797 N.E.2d 1256. Both decisions were wrongly decided at
the time, they defy practical workability, and abandoning them would not create an
undue hardship for those who have relied upon them. See id. at paragraph one of
the syllabus.
Reitter Stucco and OmniSource were wrongly decided
{¶ 18} Reitter Stucco and OmniSource contradict a fundamental tenet of
temporary-total-disability compensation: that the industrial injury must cause the
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worker’s loss of earnings. McCoy, 97 Ohio St. 3d 25, 2002-Ohio-5305, 776 N.E.2d
51, at ¶ 35. “All forms of death and disability benefits provided by R.C. Chapter
4123,” including temporary-total-disability compensation, “are intended to
compensate for ‘loss sustained on account of the injury.’ ” Id., quoting R.C.
4123.54(A). For an injured worker to be eligible for compensation, “it must appear
that, but for the industrial injury, the claimant would be gainfully employed.” Id.
{¶ 19} As a corollary, when a claimant removes himself from employment
for reasons unrelated to the work-related injury, he is no longer eligible for
temporary-total-disability compensation. Id. at ¶ 38. In those circumstances, the
voluntary abandonment—and not the injury—causes the loss of wages. Id. We
have applied this logic whether the claimant’s voluntary abandonment of his
position resulted from termination from employment for the knowing violation of
a written work rule that clearly defined a dischargeable offense, State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St. 3d 401, 650 N.E.2d 469
(1995), from incarceration, Ashcraft, 34 Ohio St. 3d 42, 517 N.E.2d 533, or from
retirement, State ex rel. Pierron v. Indus. Comm., 120 Ohio St. 3d 40, 2008-Ohio-
5245, 896 N.E.2d 140.
{¶ 20} And most importantly for the matter before us, we have concluded
that an employee who quit his job for reasons unrelated to his workplace injury was
ineligible for temporary-total-disability compensation. State ex rel. McGraw v.
Indus. Comm., 56 Ohio St. 3d 137, 564 N.E.2d 695 (1990).
{¶ 21} Reitter Stucco and OmniSource marked a radical departure from this
precedent. We held in both cases that even if a separation from employment
satisfies all the criteria of voluntary abandonment, the claimant remains eligible for
temporary-total-disability compensation if he or she is still disabled at the time of
the separation. Reitter Stucco, 117 Ohio St. 3d 71, 2008-Ohio-499, 881 N.E.2d 861,
at ¶ 10; OmniSource, 113 Ohio St. 3d 303, 2007-Ohio-1951, 865 N.E.2d 41, at ¶ 10.
This exception to the voluntary abandonment rule, however, has created at least
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two unintended consequences: it immunizes claimants from the consequences of
their own voluntary conduct and it authorizes compensation in scenarios for which
temporary-total-disability compensation was not intended.
{¶ 22} We have defined temporary-total disability as “a disability which
prevents a worker from returning to his former position of employment.” State ex
rel. Ramirez v. Indus. Comm., 69 Ohio St. 2d 630, 433 N.E.2d 586 (1982), syllabus.
Accordingly, we have recognized that it would not serve the purpose of temporary-
total-disability compensation to award compensation to a worker whose own
actions, and not his workplace injury, have prevented his return to his former
position of employment. Ashcraft, 34 Ohio St. 3d at 43-44, 517 N.E.2d 533. When
an employee voluntarily undertakes some action that precludes a return to
employment, the employee is not entitled to temporary-total-disability
compensation “because the purpose for which [temporary-total-disability
compensation] was created * * * no longer exists.” State ex rel. Baker v. Indus.
Comm., 89 Ohio St. 3d 376, 380, 732 N.E.2d 355 (2000); see also McGraw at 139
(worker who quit his job for reasons unrelated to injury was not entitled to
compensation because “his own actions eliminated any opportunity for return”).
{¶ 23} By authorizing compensation to workers who by their own actions
have prevented their return to their former position of employment, Reitter Stucco
and OmniSource contravene both our precedent and the purpose of temporary-total-
disability compensation.
Reitter Stucco and OmniSource defy practical workability
{¶ 24} Our subsequent attempts to clarify and distinguish Reitter Stucco and
OmniSource have only muddied the waters and illustrate the unworkability of those
decisions. We have attempted to limit the applicability of Reitter Stucco and
OmniSource to cases involving employees who are discharged for misconduct, as
opposed to cases involving employees who voluntarily quit or retire from
employment. State ex rel. Hildebrand v. Wingate Transport, Inc., 141 Ohio St. 3d
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533, 2015-Ohio-167, 26 N.E.3d 798, ¶ 23-24. In doing so, we have only made the
law more confusing. As the Tenth District Court of Appeals noted in this case, “[I]t
is difficult to determine which precedent should apply here.” 2017-Ohio-1020, 86
N.E.3d 1002, ¶ 9.
{¶ 25} In effect, we have created two lines of precedent for voluntary
abandonment. We have one set of rules for terminated employees. See Reitter
Stucco, 117 Ohio St. 3d 71, 2008-Ohio-499, 881 N.E.2d 861; OmniSource, 113
Ohio St. 3d 303, 2007-Ohio-1951, 865 N.E.2d 41. And we have another set of rules
for employees who voluntarily leave the workplace. See Hildebrand; Pierron, 120
Ohio St. 3d 40, 2008-Ohio-5245, 896 N.E.2d 140. An injured employee who
voluntarily retires, for example, cannot get temporary-total-disability
compensation. See Pierron at ¶ 11. But an injured worker who is fired for violating
a workplace rule can. See Reitter Stucco at ¶ 4, 12 (affirming reinstatement of
compensation to claimant who was discharged two years after injury for making
threats against his employer); OmniSource at ¶ 6-7, 13 (reinstating compensation
to claimant terminated for failing to provide a valid commercial driver’s license
after conviction for driving under the influence).
{¶ 26} There is no logical distinction between discharge and voluntary
resignation for purposes of temporary-total-disability compensation. Both
constitute a departure from employment unrelated to the workplace injury. And
both sever the causal connection between the industrial injury and the loss of
earnings. It’s time to get rid of this arbitrary distinction.
Abandonment of Reitter Stucco and OmniSource would not impose undue
hardship
{¶ 27} Finally, abandoning Reitter Stucco and OmniSource would not
jeopardize any reliance interests. Both cases involved claimants discharged from
employment after a workplace injury. It is highly unlikely that an injured worker
currently receiving temporary-total-disability compensation would instigate his
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termination by violating a workplace rule based on the hope that he would continue
to receive benefits under Reitter Stucco and OmniSource.
{¶ 28} To be sure, abandoning Reitter Stucco and OmniSource would
impact future claimants who suffer an injury and then take voluntary action that
precludes continued employment. But even after Reitter Stucco and OmniSource,
we adhered to the longstanding rule that when a claimant chooses for reasons
unrelated to his industrial injury not to return to his former position of employment,
the claimant is considered to have voluntarily abandoned his employment and is no
longer eligible for temporary-total-disability compensation. State ex rel. James v.
Wal-Mart Stores, Inc., 149 Ohio St. 3d 700, 2017-Ohio-1426, 77 N.E.3d 952, ¶ 16,
citing Baker, 89 Ohio St. 3d 376, 732 N.E.2d 355; Pierron, 120 Ohio St. 3d 40,
2008-Ohio-5245, 896 N.E.2d 140, at ¶ 9. Eligibility for temporary-total-disability
compensation has always depended on whether the separation from employment
was injury-induced. State ex rel. Lackey v. Indus. Comm., 129 Ohio St. 3d 119,
2011-Ohio-3089, 950 N.E.2d 542, ¶ 11. Far from posing an undue hardship,
overruling Reitter Stucco and OmniSource would restore consistency to our
jurisprudence.
{¶ 29} For all these reasons, we overrule Reitter Stucco and OmniSource
and hold that when a workers’ compensation claimant voluntarily removes himself
from his former position of employment for reasons unrelated to a workplace
injury, he is no longer eligible for temporary-total-disability compensation, even if
the claimant remains disabled at the time of his separation from employment.
The scope of our holding
{¶ 30} As the concurring opinion aptly explains, the problems in Reitter
Stucco and OmniSource arose from the following statement in Pretty Prods: “ ‘[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 time of the
abandonment or removal.’ ” (Brackets sic.) Pretty Prods., 77 Ohio St. 3d at 7, 670
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N.E.2d 466, quoting State ex rel. Brown v. Indus. Comm., 68 Ohio St. 3d 45, 48,
623 N.E.2d 55 (1993). Our holding today forecloses any continued reliance on that
statement in future temporary-total-disability cases. But we need not overrule
Pretty Prods. in its entirety because its dispositive holding remains valid—a work-
rule infraction may not constitute voluntary abandonment if an industrial injury
precipitated that infraction. Pretty Prods. at 7-8.
{¶ 31} Abrogation of Reitter Stucco and OmniSource also does not require
us to overrule the broad swath of cases the concurring opinion cites, including State
ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249, 2007-Ohio-4916, 874 N.E.2d
1162 (“Gross II”), and State ex rel. Cordell v. Pallet Cos., Inc., 149 Ohio St. 3d 483,
2016-Ohio-8446, 75 N.E.3d 1230.
{¶ 32} As the concurring opinion acknowledges, in Gross II, we did not
apply the voluntary-abandonment exception set forth in Reitter Stucco and
OmniSource. Rather, we relied on a long-standing principle of causation governing
temporary-total disability: that an employee’s departure from the workplace must
be causally related to his injury. Gross II at ¶ 23, citing State ex rel. Rockwell
Internatl. v. Indus. Comm., 40 Ohio St. 3d 44, 46, 531 N.E.2d 678 (1988), and
McCoy, 97 Ohio St. 3d 25, 2002-Ohio-5305, 776 N.E.2d 51. We then held that a
restaurant employee who sustained a workplace injury from improper use of a deep
fryer was entitled to temporary-total-disability benefits because he was discharged
as a result of his injury and not because of a work-rule violation. Id. at ¶ 24. Reitter
Stucco and OmniSource did not affect our holding in Gross II.
{¶ 33} The voluntary-abandonment exception set forth in Reitter Stucco
and OmniSource also had no dispositive effect on the outcome of two other cases
cited in the concurring opinion. See State ex rel. Schlegel v. Stykemain Pontiac
Buick GMC Ltd., 120 Ohio St. 3d 43, 2008-Ohio-5303, 896 N.E.2d 143, ¶ 17
(declining to hear claimant’s arguments based on Pretty Prods. and OmniSource
because they were not asserted in administrative proceedings); State ex rel. Ellis
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Super Valu, Inc. v. Indus. Comm., 115 Ohio St. 3d 224, 2007-Ohio-4920, 874
N.E.2d 780, ¶ 12 (invoking OmniSource only to explain that voluntary
abandonment and the refusal of alternate employment are two different defenses to
payment of temporary-total-disability).
{¶ 34} We also need not overrule Cordell. We concluded in that case that
a worker who was terminated after his workplace injury for failing a post-accident
drug test was entitled to temporary-total-disability benefits. Cordell, 149 Ohio
St.3d 483, 2016-Ohio-8446, 75 N.E.3d 1230 at ¶ 34. We reached that holding by
relying on two different lines of precedent. We applied Reitter Stucco to conclude
that the worker did not voluntarily abandon his position, because he was medically
incapable of returning to work at the time of his termination. Id. at ¶ 22, 36.
{¶ 35} But we also relied on the long-standing rule, as reiterated in Gross
II, that an employee whose termination is causally related to his injury has not
voluntarily abandoned his position. Id. at ¶ 33, citing Gross II, 115 Ohio St. 3d 249,
2007-Ohio-4916, 874 N.E.2d 1162, at ¶ 23, Rockwell, 40 Ohio St. 3d at 46, 531
N.E.2d 678, and McCoy, 97 Ohio St. 3d 25, 2002-Ohio-5305, 776 N.E.2d 51. We
then concluded that the worker’s pre-injury work-rule violation did not sever the
causal connection between his injury and loss of wages because he was not
intoxicated or impaired at the time of the injury. Id. at ¶ 38. Rather, the injury
resulted in the discovery of his work-rule violation. Id. at ¶ 36.
{¶ 36} Because our ultimate holding in Cordell relied on long-standing
precedent unaffected by our abrogation of Reitter Stucco, we need not overrule
Cordell here. To the extent that portions of our Cordell opinion rely on Reitter
Stucco, those portions no longer hold any precedential value.
{¶ 37} And finally, we need not overrule State ex rel. Luther v. Ford Motor
Co., Batavia Transm. Plant, 113 Ohio St. 3d 144, 2007-Ohio-1250, 863 N.E.2d 151.
In Luther, we issued a limited writ remanding the matter to the commission to
determine (1) whether the claimant was already disabled when he was terminated
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and (2) whether the claimant was fired for absenteeism induced by his industrial
injury. Id. at ¶ 17-18, 20. To the extent that the first part of our remand order in
Luther is inconsistent with our holding today, it no longer has any precedential
value. The second part of our remand order, however, remains good law.
Analysis of Klein’s claim
{¶ 38} We turn, then, to Klein’s claim, to determine whether he voluntarily
abandoned his position for reasons unrelated to his injury. To be entitled to
extraordinary relief in mandamus, Klein must establish that he had a clear legal
right to the relief he requested and that the Industrial Commission had a clear legal
duty to provide it. State ex rel. McKee v. Union Metal Corp., 150 Ohio St. 3d 223,
2017-Ohio-5541, 80 N.E.3d 491, ¶ 11. We will not issue a writ of mandamus unless
the commission abused its discretion by entering an order not supported by some
evidence in the record. Id.
{¶ 39} Voluntary abandonment of employment is primarily a question of
intent that “ ‘may be inferred from words spoken, acts done, and other objective
facts,’ ” and “ ‘[a]ll relevant circumstances existing at the time of the alleged
abandonment should be considered.’ ” (Brackets added.) State ex rel. Diversitech
Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio St. 3d 381, 383, 544 N.E.2d 677
(1989), quoting State v. Freeman, 64 Ohio St. 2d 291, 297, 414 N.E.2d 1044 (1980).
The presence of that intent is a factual determination for the commission. Id.
{¶ 40} We conclude that Klein did not show that the commission abused its
discretion in ordering Klein’s temporary-total-disability payments to stop on
November 19, 2014. The record contains some evidence supporting the
commission’s factual determination that on or about November 20, 2014, Klein
voluntarily abandoned his employment for reasons unrelated to his injury.
{¶ 41} Before the district hearing officer, Klein admitted that even before
his injury on November 5, 2014, he had been planning a move to Florida for better
weather and more job opportunities. Precision Excavating’s controller also
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testified that Klein informed her on October 31, 2014, that he was moving to Florida
and inquired as to the proper procedures for quitting his job. Klein’s coworker
attested that on November 3, 2014, Klein had told him that he intended to quit his
job in two weeks and move to Florida. And yet another coworker attested that when
she took Klein to the hospital on November 5, 2014, Klein informed her that he had
recently given his two-week notice and intended to move to Florida to live with his
mother.
{¶ 42} At the next hearing level, the staff hearing officer noted that Klein
attempted to change his prior testimony that he intended to move to Florida on a
permanent basis. The staff hearing officer, however, found Klein’s changed
testimony was “not well taken.” The commission is “exclusively responsible for
evaluating the weight and credibility of the evidence.” McKee, 150 Ohio St. 3d 223,
2017-Ohio-5541, 80 N.E.3d 491, at ¶ 10. We therefore defer to the commission’s
conclusion as to the credibility of Klein’s testimony.
{¶ 43} We find that Klein’s move to Florida, combined with all of the
relevant circumstances and evidence demonstrating his intention to leave Precision
Excavating permanently, constitutes a voluntary abandonment of his employment
unrelated to his industrial injury. Our decision here does not stand for the
proposition, as the concurring opinion suggests, that a relocation automatically
constitutes voluntary abandonment. A determination of voluntary abandonment
requires consideration of all relevant circumstances existing at the time of the
alleged abandonment. Diversitech, 45 Ohio St. 3d at 383, 544 N.E.2d 677. And the
totality of Klein’s statements and actions here demonstrate that even before his
injury, Klein intended to leave his position of employment permanently. It is
Klein’s own actions, and not his workplace injury, that prevented his return to his
former position of employment. Accord Ashcraft, 34 Ohio St. 3d at 43-44, 517
N.E.2d 533.
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{¶ 44} Consequently, Klein failed to demonstrate that he had a clear legal
right to the relief requested and that the commission had a clear legal duty to
provide that relief. See McKee at ¶ 11.
CONCLUSION
{¶ 45} We reverse the judgment of the court of appeals and deny the
requested writ of mandamus.
Judgment
reversed and writ denied.
O’CONNOR, C.J., and FISCHER and DEGENARO, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by
O’DONNELL and DEWINE, JJ.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 46} I concur in reversing the judgment of the court of appeals and
reinstating the order of appellant, Industrial Commission of Ohio, awarding
appellee, John Klein, temporary-total-disability (“TTD”) compensation only
through the effective date of his resignation, when he voluntarily abandoned his
employment with Precision Excavating & Grading Company. I also agree with the
majority that our decisions in State ex rel. Reitter Stucco, Inc., v. Indus. Comm.,
117 Ohio St. 3d 71, 2008-Ohio-499, 881 N.E.2d 861, and State ex rel. OmniSource
Corp. v. Indus. Comm., 113 Ohio St. 3d 303, 2007-Ohio-1951, 865 N.E.2d 41, were
wrongly decided and should be overruled.
{¶ 47} I write separately, however, because the majority disregards “the
classic admonition to begin at the beginning,” Vanston Bondholders Protective
Commt. v. Green, 329 U.S. 156, 169, 67 S. Ct. 237, 91 L. Ed. 162 (1946). In leaping
to overrule Reitter Stucco and OmniSource, it skips over the root of the problem
and does not acknowledge that their faulty analysis originated in 1996, when this
court decided State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St. 3d 5,
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670 N.E.2d 466 (1996). At the same time, it does nothing to address how this faulty
analysis continues to infect our recent decisions, including State ex rel. Cordell v.
Pallet Cos., Inc., 149 Ohio St. 3d 483, 2016-Ohio-8446, 75 N.E.3d 1230, and State
ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249, 2007-Ohio-4916, 874 N.E.2d
1162 (“Gross II”). All four of these decisions—Reitter Stucco, OmniSource,
Cordell, and Gross II—involve TTD claimants who were terminated for
misconduct after they had been injured on the job. And all four cases focus on the
timing of the termination, not the voluntariness of the injured worker’s conduct. It
is curious that the majority chooses not to overrule them all.
{¶ 48} Although it purports to clarify the law, the majority’s analysis only
perpetuates the confusion created by Pretty Prods., on which numerous decisions
from this court and the Tenth District Court of Appeals have relied for the
proposition that “ ‘[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 time of the abandonment or removal,’ ” id. at 7, quoting State
ex rel. Brown v. Indus. Comm., 68 Ohio St. 3d 45, 48, 623 N.E.2d 55 (1993).
{¶ 49} The court in Pretty Prods., however, inadvertently discussed
caselaw applicable to permanent-total-disability (“PTD”) compensation, which
continues until death and therefore cannot be terminated by the voluntary
abandonment of employment, in the context of a case concerning TTD
compensation, which we have long recognized can be terminated if the worker
voluntarily abandons employment. In doing so, it erroneously suggested that TTD
compensation may be available even when the claimant’s voluntary conduct has
severed the causal connection between the workplace injury and the loss of wages.
{¶ 50} The majority seems willfully ignorant of the confusion pervading
our cases. It must understand that Pretty Prods. is the source of that confusion, yet
it fails to discuss that decision and instead singles out two of our decisions applying
Pretty Prods.—Reitter Stucco and OmniSource—as “mark[ing] a radical
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departure” from what the majority apparently believes is an otherwise consistent
and coherent line of precedent. Majority opinion at ¶ 21.
{¶ 51} But in asserting that Reitter Stucco and OmniSource are outliers, and
in purporting to wipe the slate clean by overruling only those two decisions, the
majority exacerbates the incoherence in the law by leaving in place other decisions
relying on Pretty Prods. for an exception to the voluntary-abandonment rule. For
example, as recently as 2016 in Cordell, we reaffirmed the vitality of Pretty Prods.
and its progeny and held that a claimant was entitled to TTD compensation when
he was terminated for violating his employer’s zero-tolerance drug policy, because
he “was medically incapable of returning to work when he was terminated.”
(Emphasis added.) 149 Ohio St. 3d 483, 2016-Ohio-8446, 75 N.E.3d 1230, ¶ 36.
The majority fails to overrule Cordell, even though the court of appeals relied on it
in this case and Klein argues that we should apply it here.
{¶ 52} Perhaps the majority believes that Cordell, a five-to-two decision
released only 18 months ago, is too fresh a decision to reconsider now and that
overruling Cordell today would appear to have been occasioned by a change in this
court’s membership. However, “[o]verrulings of precedent rarely occur without a
change in the Court’s personnel. The only distinctive feature here is that the
overruling would follow not long after the original decision. But that is hardly
unprecedented.” South Carolina v. Gathers, 490 U.S. 805, 824, 109 S. Ct. 2207,
104 L. Ed. 2d 876 (1989) (Scalia, J., dissenting). Notably, the Galatis test for
overruling a prior decision counsels that we consider reliance interests and
“ ‘practical real-world dislocations’ ” before overturning our caselaw. Westfield
Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 58,
quoting Robinson v. Detroit, 462 Mich. 439, 466, 613 N.W.2d 307 (2000). As
Justice Scalia explained,
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January Term, 2018
[T]he respect accorded prior decisions increases, rather than
decreases, with their antiquity, as the society adjusts itself to their
existence, and the surrounding law becomes premised upon their
validity. The freshness of error not only deprives it of the respect to
which long-established practice is entitled, but also counsels that the
opportunity of correction be seized at once, before state and federal
laws and practices have been adjusted to embody it.
Gathers at 824 (Scalia, J., dissenting). We should therefore overrule bad precedent
at the earliest opportunity to avoid reliance on it, especially as here, when we are
overruling two similar decisions.
{¶ 53} Perhaps the majority justifies its approach as a more limited,
incremental step in overruling bad precedent. But as the majority recognizes, State
ex rel. Hildebrand v. Wingate Transport, Inc., is on point and controls the outcome
here, because both cases involve injured workers who voluntarily abandoned their
employment by resigning. See 141 Ohio St. 3d 533, 2015-Ohio-167, 26 N.E.3d 798,
¶ 22. In contrast, Reitter Stucco and OmniSource apply to claimants who were
terminated from their positions for violating workplace rules and therefore are
distinguishable on their facts. The narrowest approach would simply apply
Hildebrand and leave the decision to overrule Reitter Stucco and OmniSource for
another day.
{¶ 54} Moreover, the majority’s logic is curious, because if we applied
Cordell’s analysis today, as the court of appeals did and as Klein urges, he would
be entitled to the additional compensation he seeks. Pursuant to Cordell, an injured
worker cannot voluntarily abandon employment if medically incapable of returning
to work at the time of the separation from employment. Cordell at ¶ 29. But
according to the majority, Klein voluntarily abandoned his employment when he
moved to Florida—even though he was medically incapable of returning to his
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position at that time. As the Tenth District Court of Appeals explained in this case,
“To treat [Klein] differently from Cordell would result in a precedent that claimants
who violate workplace policies prior to injury are treated more favorably than
claimants who did not.” 2017-Ohio-1020, 86 N.E.3d 1002, ¶ 13. Yet in denying
Klein additional compensation, the majority does not overrule Cordell, and its
attempt to sever Reitter Stucco and OmniSource from Cordell’s analysis is
unpersuasively revisionist and cannot save its holding. It is simply not possible to
square the majority’s rhetoric criticizing the “radical” and “arbitrary” holdings in
Reitter Stucco and OmniSource, majority opinion at ¶ 21, 26, with the majority’s
continued adherence to decisions like Cordell that uphold the Pretty Prods.
exception to the voluntary-abandonment rule.
{¶ 55} The judicial branch exercises “neither Force nor Will but merely
judgment.” The Federalist No. 78 at 523 (Cooke Ed.1961). The authority of our
decisions therefore extends only so far as they are coherent and make sense. “The
requirement that they do so is the only thing that prevents this Court from being
some sort of [seven]-headed Caesar, giving thumbs-up or thumbs-down to
whatever outcome, case by case, suits or offends its collective fancy.” Dickerson
v. United States, 530 U.S. 428, 455, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000)
(Scalia, J., dissenting). But because the majority’s opinion leaves Hildebrand and
Cordell in place, courts will be able to determine future claimants’ entitlement to
TTD compensation only by picking and choosing the precedent that supports the
desired outcome.
{¶ 56} All the members of this court are aware of the disjunction and
contradiction that now exists in our caselaw, and it is our responsibility and duty to
correct it now. Pretty Prods. should stand only for the proposition that when the
workplace injury itself causes the separation from employment—such as when an
injured worker violates the employer’s absenteeism policy because of the injury
and is discharged—the separation from employment is not voluntary and does not
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disqualify the worker from receiving TTD compensation. Decisions like Cordell
that distort and misapply this narrow holding should be immediately and expressly
overruled along with Reitter Stucco and OmniSource, or the court should overrule
nothing at all.
{¶ 57} Here, because Klein’s resignation broke the causal connection
between his workplace injury and his wage loss, the commission did not abuse its
discretion in limiting the award of TTD compensation to the period prior to the date
his resignation took effect.
The Voluntary-Abandonment Rule
{¶ 58} We first adopted the voluntary-abandonment rule in 1987 in State ex
rel. Ashcraft v. Indus. Comm., 34 Ohio St. 3d 42, 517 N.E.2d 533 (1987). Tracing
its history in State ex rel. McCoy v. Dedicated Transport, Inc., we explained that
the rule emanates from the principle that “[a]ll forms of death and disability benefits
provided by R.C. Chapter 4123 are intended to compensate ‘for loss sustained on
account of the injury.’ ” 97 Ohio St. 3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35,
quoting R.C. 4123.54(A). We recognized that “a causal relationship must exist
between the employee’s industrial injury and the loss that the requested benefit is
designed to compensate.” Id.
{¶ 59} TTD compensation is available “when an industrial injury prevents
a claimant from performing the duties of his position of employment,” State ex rel.
Floyd v. Formica Corp., 140 Ohio St. 3d 260, 2014-Ohio-3614, 17 N.E.3d 547,
¶ 13, and is “designed ‘to compensate an injured employee for the loss of earnings
which he incurs while the injury heals,’ ” McCoy at ¶ 35, quoting Ashcraft at 44.
To qualify for TTD compensation, the injured worker is required to show that “a
cause-and-effect relationship exists between the industrial injury and an actual loss
of earnings. In other words, it must appear that, but for the industrial injury, the
claimant would be gainfully employed.” Id.
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{¶ 60} We have therefore explained that the causal connection between the
workplace injury and the loss of wages is severed by the worker’s departure from
employment for reasons unrelated to that injury. State ex rel. Jacobs v. Indus.
Comm., 139 Ohio St. 3d 86, 2014-Ohio-1560, 9 N.E.3d 999, ¶ 18; McCoy at ¶ 38.
An injured worker is not entitled to TTD compensation when he or she voluntarily
abandons employment by quitting, State ex rel. James v. Wal-Mart Stores, Inc., 149
Ohio St. 3d 700, 2017-Ohio-1426, 77 N.E.3d 952, ¶ 18, resigning on two weeks’
notice, State ex rel. Bilaver v. Indus. Comm., 131 Ohio St. 3d 132, 2012-Ohio-26,
961 N.E.2d 675, ¶ 5, retiring, State ex rel. Corman v. Allied Holdings, Inc., 132
Ohio St. 3d 202, 2012-Ohio-2579, 970 N.E.2d 929, ¶ 6-7, being incarcerated,
Ashcraft at 44-45, or being terminated from employment for violating work rules,
State ex rel. Parraz v. Diamond Crystal Brands, Inc., 141 Ohio St. 3d 31, 2014-
Ohio-4260, 21 N.E.3d 286, ¶ 15-16.
{¶ 61} But in Pretty Prods., we inadvertently confused the law by stating
that “ ‘[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 time of the abandonment or removal.’ ” 77 Ohio St. 3d at 7, 670 N.E.2d 466,
quoting Brown, 68 Ohio St. 3d at 48, 623 N.E.2d 55.
{¶ 62} We borrowed this language from Brown, a decision explaining that
when a worker is permanently and totally disabled, the worker is incapable of
returning to work and therefore can never voluntarily abandon it, Brown at 48. It
is true that in both Pretty Prods. and Brown we considered whether injured workers
had voluntarily abandoned their employment. But in Brown, we explained that in
contrast to an award of TTD compensation, which can be terminated if the worker
voluntarily abandons employment, PTD compensation cannot be terminated once
awarded because those benefits continue until the worker’s death. Id. at 47-48. We
concluded,
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January Term, 2018
Clearly, once a worker has been declared permanently and totally
disabled he or she is incapable of returning to work. As such, a
claimant who has a permanent and total disability is incapable of
abandoning a position because that position, in effect, does not
exist. Indeed, 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 time of the abandonment or
removal.
(Emphasis added.) Id. at 48.
{¶ 63} We therefore took the language from Brown out of its context when
we reiterated it in Pretty Prods., a case involving a temporary and total disability,
not a permanent and total one. And importantly, we did not decide Pretty Prods.
by considering whether the injured worker was “already disabled” at the time of
her separation from employment, but rather, we focused on whether her termination
for violating a work rule regarding absenteeism supported a finding of voluntary
abandonment, explaining that if her absences were causally related to her
workplace injury, then she had not voluntarily abandoned her employment. Id. at
7-8. However, because we could not tell from the commission’s order why it
determined that the worker had not voluntarily abandoned her employment, we
remanded the matter to the commission to clarify its findings. Id. at 8.
{¶ 64} Our decision in Pretty Prods. should not be construed as standing
for the proposition that an injured worker is immune from the consequences of his
or her voluntary acts that cause a separation from employment just because at that
time, the worker lacked the physical capacity for work. Rather, Pretty Prods. states
simply that separation from employment—such as a discharge for violating an
absenteeism policy—is not voluntary when it is caused by or is “due to industrial
injury.” 77 Ohio St. 3d at 7, 670 N.E.2d 466.
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{¶ 65} Nonetheless, later decisions discussing Pretty Prods. have focused
on its broad language quoting Brown, to the exclusion of its actual holding. For
example, in Reitter Stucco, the injured worker had been paid wages in lieu of TTD
compensation and later “was fired for comments made about the company’s
president.” 117 Ohio St. 3d 71, 2008-Ohio-499, 881 N.E.2d 861, at ¶ 4. The
employer stopped paying the wages, the commission awarded TTD compensation,
and the court of appeals affirmed that order. Citing Pretty Prods., we indicated that
even when the employee’s voluntary conduct leads to the termination of
employment, the claimant “does not surrender eligibility for temporary total
disability compensation if, at the time of departure, the claimant is still temporarily
and totally disabled.” Reitter Stucco at ¶ 10. And even though it was apparent in
Reitter Stucco that the claimant’s discharge was not causally related to his
workplace injury, we affirmed the judgment of the court of appeals, explaining that
the injured worker could not voluntarily abandon his employment until he was
physically capable of returning to work. Id. at ¶ 12.
{¶ 66} Similarly, in OmniSource, we concluded that an injured worker
receiving TTD compensation did not voluntarily abandon his employment when he
was terminated from his job as a truck driver for violating a work rule requiring
him to have a valid commercial driver’s license—which he could not obtain due to
his multiple drunk-driving convictions. 113 Ohio St. 3d 303, 2007-Ohio-1951, 865
N.E.2d 41, at ¶ 10. Again, notwithstanding the fact that his termination was not
causally related to his workplace injury, we stated that “[a] claimant who is already
disabled when terminated is not disqualified from temporary total disability
compensation,” id., citing Pretty Prods. and Brown, and we concluded that the
worker could not abandon his employment when he was not physically capable of
doing his job at that time, OmniSource at ¶ 12.
{¶ 67} In Hildebrand, we considered whether an injured worker who had
“voluntarily quit his job following a disagreement with his employer that had
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nothing to do with his injury” remained eligible for TTD compensation. 141 Ohio
St.3d 533, 2015-Ohio-167, 26 N.E.3d 798, at ¶ 22. Relying on Pretty Prods., the
worker maintained that he could not have abandoned his former position because
he was unable to perform his job duties at the time that he quit. Hildebrand at ¶ 14.
We determined that his resignation broke the causal connection between his injury
and his loss of wages, thereby precluding TTD compensation. Id. at ¶ 22.
{¶ 68} We then sought to distinguish Pretty Prods., Reitter Stucco, and
OmniSource. First, we noted that in those cases, “each injured worker was already
receiving temporary-total-disability compensation when terminated from
employment and had therefore already demonstrated that he or she was disabled as
a result of an industrial injury.” Hildebrand at ¶ 23. But that is a distinction without
a difference; there apparently was no dispute that the injured worker in Hildebrand
was not capable of returning to his former position, and in any case, whether an
employee has been awarded compensation says nothing about whether the
employee voluntarily abandoned employment. Second, we indicated that Pretty
Prods. and its progeny were distinguishable because they involved work-rule
violations, stating that “Pretty Prods. has not been considered in the context of an
injured worker who voluntarily quit for reasons unrelated to the allowed claim.”
Hildebrand at ¶ 24. However, in Hildebrand, we failed to explain why the two
types of voluntary abandonment—voluntary resignations and voluntary acts of
misconduct resulting in termination—should be treated differently. In neither
situation can it be said that “the claimant’s actual loss of earnings results from the
industrial injury because the claimant would have been working but for the injury,”
McCoy, 97 Ohio St. 3d 25, 2002-Ohio-5305, 776 N.E.2d 51, at ¶ 38.
{¶ 69} As Hildebrand shows, our attempts to distinguish Pretty Prods. and
its progeny have become strained and muddled, and it is time to dispel the chaos
that has arisen from our disjointed application of Pretty Prods. to situations not
contemplated by its narrow holding. I would not continue the attempt to distinguish
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these cases “to the vanishing point, creating an illusion of certainty in the law while
leaving only a shadow of an ancient landmark,” United Gas Improvement Co. v.
Continental Oil Co., 381 U.S. 392, 406, 85 S. Ct. 1517, 14 L. Ed. 2d 466 (1965)
(Douglas, J., dissenting). Rather, “[a]s far as I am aware, the public is not under
the illusion that we are infallible. I see little harm in admitting that we made a
mistake * * *.” Dickerson, 530 U.S. at 464, 120 S. Ct. 2326, 147 L. Ed. 2d 405
(Scalia, J., dissenting).
{¶ 70} It would be far more straightforward to apply Pretty Prods. to only
those TTD cases with similar facts, i.e., those cases in which a workplace injury
causes the separation from employment, such as when the worker is unable to
comply with an absenteeism rule because of the workplace injury and is discharged
for that reason. In those situations, abandonment of employment is involuntary and
TTD compensation is available. And I would also clarify that when a worker
voluntarily abandons employment for reasons unrelated to the workplace injury—
for example, by quitting, resigning on two weeks’ notice, retiring, being
incarcerated, or committing misconduct that results in termination—the causal
connection between the injury and the wage loss is severed and the worker is no
longer entitled to TTD compensation, regardless of whether the worker is capable
of returning to work. In those circumstances, it is the voluntary act of the employee
and not the injury that causes the loss of wages.
{¶ 71} The majority agrees that Reitter Stucco and OmniSource were
wrongly decided, and it would apply the three-part test set forth in Galatis, 100
Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, to overrule them. But Reitter
Stucco and OmniSource are not the only two cases in which we have indicated that
a claimant must be physically capable of employment in order to voluntarily
abandon it. In my view, if we are going to apply the Galatis test and overrule
precedent, we should take this opportunity to definitively settle the law. After all,
we cited Pretty Prods. or its progeny with approval in State ex rel. Schlegel v.
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January Term, 2018
Stykemain Pontiac Buick GMC, Ltd., 120 Ohio St. 3d 43, 2008-Ohio-5303, 896
N.E.2d 143, ¶ 17, State ex rel. Luther v. Ford Motor Co., Batavia Transm. Plant,
113 Ohio St. 3d 144, 2007-Ohio-1250, 863 N.E.2d 151, ¶ 17, and State ex rel. Ellis
Super Valu, Inc. v. Indus. Comm., 115 Ohio St. 3d 224, 2007-Ohio-4920, 874
N.E.2d 780, ¶ 12.
{¶ 72} As previously discussed, the court continued its misapplication of
the voluntary-abandonment rule in Cordell, holding that an injured worker who was
rightfully terminated from employment for violating his employer’s zero-tolerance
policy on drug use was nonetheless entitled to TTD compensation because he “was
medically incapable of returning to work when he was terminated.” 149 Ohio St. 3d
483, 2016-Ohio-8446, 75 N.E.3d 1230, at ¶ 36. The worker’s termination for
smoking marijuana, not his injury, had plainly caused his loss of wages; as I
explained in my dissent in Cordell, “the connection between the industrial injury
and the loss of wages was severed by Cordell’s preinjury use of marijuana,” id. at
¶ 70 (Kennedy, J., dissenting). In fact, the court emphasized that “[t]o be clear, [the
employer] had the right to terminate [the worker] for violating one of its work
rules.” Id. at ¶ 36. But that did not matter to the court, because “at the time of his
termination, he was temporarily and totally disabled.” Id. Cordell therefore shares
the same fatal flaw that I have identified in Reitter Stucco and OmniSource. In each
of these cases, the injured worker’s voluntary acts resulted in his discharge, which
caused his loss of wages; the workplace injury did not, regardless of the timing of
the job abandonment.
{¶ 73} And the same holds true for Gross II, 115 Ohio St. 3d 249, 2007-
Ohio-4916, 874 N.E.2d 1162. In that case, the injured worker had been terminated
for repeatedly violating workplace-safety rules; despite multiple warnings, he
opened a cooker that he had improperly filled with water, resulting in severe burns
to himself and two coworkers. The Industrial Commission terminated his TTD
compensation, but the court of appeals, citing Pretty Prods., granted a writ of
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mandamus reinstating compensation. Initially, we reversed, concluding that this
case was not “within the ambit of Pretty Prods.” because the injured worker had
voluntarily abandoned his employment by willfully ignoring repeated warnings.
112 Ohio St. 3d 65, 2006-Ohio-6500, 858 N.E.2d 335, ¶ 30.
{¶ 74} However, we granted reconsideration, vacated our prior decision,
and affirmed the judgment of the court of appeals. Gross II at ¶ 26. Although the
court in Gross II did not cite Pretty Prods. or its progeny in deciding that a worker
does not voluntarily abandon employment and forfeit TTD compensation when the
violation of a workplace-safety rule results in an occupational injury, it too
disregarded the lack of a causal connection between the injury and the loss of
wages. As in Cordell, the court did not question that the employer had the right to
terminate the employee for violating the safety rule—that is, the injury plainly did
not cause the loss of wages—but rather, it concluded that the termination was
related to the injury because the injury coincided with the rule violation. Gross II
at ¶ 24.
{¶ 75} Then-Justice O’Connor dissented, explaining that “[n]othing in our
past decisions has suggested that the voluntary-abandonment doctrine may be
applied only in cases involving postinjury conduct.” Id. at ¶ 52 (O’Connor, J.,
dissenting). She pointed out, “The artificial distinction between an injury that arises
before a violation of a safety rule and one that occurs contemporaneously with the
violation, or one that arises after the violation has been completed, is a dubious one
in the law.” Id. (O’Connor, J., dissenting). And she also correctly noted that “a
myopic focus on the temporal proximity of the misconduct and the injury blinds
the majority to the important rationale that underlies the voluntary-abandonment
rule: ‘discharge, like incarceration, is often a consequence of behavior that the
claimant willingly undertook, and may thus take on a voluntary character.’ ” Id. at
¶ 70 (O’Connor, J., dissenting), quoting State ex rel. Watts v. Schottenstein Stores
Corp., 68 Ohio St. 3d 118, 121, 623 N.E.2d 1202 (1993).
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January Term, 2018
{¶ 76} Reitter Stucco, OmniSource, Cordell, and Gross II all focus on the
timing of the job abandonment rather than on whether it was voluntary and therefore
severed the causal connection between the worker’s injury and wage loss. But
pursuant to R.C. 4123.54(A), an injured worker “is entitled to receive the
compensation for loss sustained on account of the injury.” The timing of the
abandonment is irrelevant, because regardless of whether the injured worker
abandons employment prior to, concurrently with, or after the injury, the worker is
not entitled to TTD compensation when the injury itself does not cause the claimed
loss of wages.
{¶ 77} All these decisions have taken Pretty Prods. out of context. All these
decisions confuse the law. All these decisions permit TTD compensation for
injuries that did not cause the claimed loss of wages. Unlike the majority’s
approach, I would overrule all of them and any other decisions employing their
same flawed rationale.
Klein Voluntarily Abandoned His Employment
{¶ 78} In this case, the record reveals that Klein voluntarily abandoned his
employment when he tendered his resignation prior to his workplace injury. This
is demonstrated by his admissions and actions, which are all consistent with the
decision to resign to move to Florida. Importantly, a party’s admissions are not
hearsay and may be offered against that party as substantive evidence of the matter
asserted. Evid.R. 801(D)(2).
{¶ 79} The controller at Precision Excavating testified that Klein called her
on October 31, 2014, told her that he was moving to Florida, and asked “what the
proper procedures were for quitting his job.” Coworker Rodney Myers averred that
on November 3, 2014, Klein told him that “he was going to work two more weeks
then was quitting work to go to Florida.” When Dawn Withem took Klein to the
hospital on November 5, 2014, he told her that “he had recently turned his two week
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notice in to go to Florida to live with his mother.” During proceedings before the
commission, a district hearing officer wrote,
Injured Worker testified that he had plans to move to Florida before
his workplace accident on 11/05/2014. He stated that he was
moving because the weather is better in Florida than in Ohio and
there are more job opportunities in Florida. Injured Worker could
not provide the actual date he moved to Florida. However, Bureau
of Workers’ Compensation notes dated 11/13/2014 state that Injured
Worker informed them that he was moving to Florida on
11/20/2014.
{¶ 80} The standard of review controls the outcome of this case. To be
entitled to a writ of mandamus, Klein has the burden to “demonstrate that the
commission abused its discretion by entering an order not supported by some
evidence in the record.” State ex rel. McKee v. Union Metal Corp., 150 Ohio St. 3d
223, 2017-Ohio-5541, 80 N.E.3d 491, ¶ 11. And here, there is some evidence—
Klein’s own admissions and actions—supporting the commission’s finding that
Klein voluntarily abandoned his employment by resigning for reasons unrelated to
his workplace injury, with an effective date sometime between November 13 and
November 19, 2014. “The commission is the evaluator of evidentiary weight and
credibility, and neither we nor the court of appeals can substitute our judgment for
the commission’s in making those determinations.” State ex rel. Scioto Metals, Inc.
v. Indus. Comm., 92 Ohio St. 3d 232, 232, 749 N.E.2d 741 (2001).
{¶ 81} Our decision in Bilaver is on point. In that case, the injured worker
made plans to travel abroad to Croatia and he resigned on two weeks’ notice when
his employer denied him a leave of absence to go. Before his last day of work, he
was injured on the job. Nonetheless, he still traveled to Croatia, and he
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January Term, 2018
subsequently sought TTD compensation. We explained that the worker had
voluntarily abandoned his employment and therefore was not entitled to TTD
compensation. 131 Ohio St. 3d 132, 2012-Ohio-26, 961 N.E.2d 675, at ¶ 5. He had
given his employer two weeks’ notice, and we rejected the argument that he had
rescinded that notice in a letter that “[did] not indicate directly or implicitly that
[the worker] wished to keep his job.” Id.
{¶ 82} Bilaver supports the conclusion that Klein voluntarily abandoned his
employment. Both workers voluntarily resigned their positions for reasons
unrelated to their injuries. Both workers were injured on the job prior to their last
day of work. And both workers followed through on their plans to leave the state—
conduct inconsistent with an intention to maintain employment. Klein’s own
admission to a coworker that “he had recently turned his two week notice in to go
to Florida to live with his mother” is substantive evidence that he turned in his two
weeks’ notice, Evid.R. 801(D)(2), and there is no evidence that Klein ever
withdrew it. Then he moved out of state: the record demonstrates that within weeks
of his accident, he informed the Bureau of Workers’ Compensation that he had
changed his address to Long Boat Key, Florida, and he began seeing a Florida
doctor.
{¶ 83} The majority focuses on Klein’s move rather than on his resignation.
But Klein’s relocation to Florida is merely the reason why he abandoned his
employment; it is his resignation on two-weeks’ notice that constitutes the
voluntary abandonment of his job. After all, something had to terminate Klein’s
employment, and no one argues that Precision Excavating discharged him for
failing to return to work. Further, moving is not necessarily a voluntary
abandonment of a position; the majority points to nothing in the workers’
compensation statutes that precludes an injured worker from moving out of state to
live with family while recuperating from a workplace injury. And by focusing on
the overt act of relocating to Florida, the majority either suggests that the
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admissions against interest that Klein made to coworkers are not sufficient proof
that he resigned or it creates a requirement of subsequent action following a
resignation in order to effectively abandon employment. Either way, the majority’s
analysis injects more confusion and uncertainty into our caselaw.
{¶ 84} Equally problematic is the majority’s failure to overrule our recent
decision in Cordell, 149 Ohio St. 3d 483, 2016-Ohio-8446, 75 N.E.3d 1230. There,
the court explained that a worker does not voluntarily abandon his or her position
if the worker is medically incapable of returning to work at the time of the
separation from employment. Id. at ¶ 29, 36. According to the majority, Klein
abandoned his employment when he moved to Florida on or about November 20,
2014, but at that time, he was medically incapable of returning to work. If Cordell
remains good law, its holding would allow Klein to recover the additional
compensation he seeks. The majority, however, refuses to overrule Cordell, and
rather than take the opportunity to clarify the law, the majority only confuses it
further.
Conclusion
{¶ 85} At common law, a worker had to prove fault on the part of his or her
employer in order to recover for injuries sustained in the course of employment and
the action was subject to defenses such as assumption of risk, contributory
negligence, and the fellow-servant rule. Holeton v. Crouse Cartage Co., 92 Ohio
St.3d 115, 118-119, 748 N.E.2d 1111 (2001). Due to these defenses, workers often
went uncompensated for their injuries, and in response, the General Assembly
enacted this state’s first workers’ compensation laws in 1911 to establish a state
insurance fund benefiting injured workers. Id.; Brady v. Safety-Kleen Corp., 61
Ohio St. 3d 624, 643, 576 N.E.2d 722 (1991) (Holmes, J., dissenting). The next
year, in 1912, the people of this state adopted Article II, Section 35 of the Ohio
Constitution to specifically empower the General Assembly to enact workers’
compensation legislation and provide for a statewide fund to compensate injured
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workers. Arrington v. DaimlerChrysler Corp., 109 Ohio St. 3d 539, 2006-Ohio-
3257, 849 N.E.2d 1004, ¶ 14; Brady at 643-644 (Holmes, J., dissenting). An
amendment to Article II, Section 35 adopted in 1923 established the exclusivity of
the workers’ compensation system for recovery for workplace injuries, granting
complying employers immunity from common-law remedies. Brady at 644
(Holmes, J., dissenting).
{¶ 86} The General Assembly exercised the authority granted by Article II,
Section 35, and workers’ compensation law in Ohio now represents
“a balance of mutual compromise between the interests of the
employer and the employee whereby employees relinquish their
common law remedy and accept lower benefit levels coupled with
the greater assurance of recovery and employers give up their
common law defenses and are protected from unlimited liability.”
Arrington at ¶ 19, quoting Blankenship v. Cincinnati Milacron Chems., Inc., 69
Ohio St. 2d 608, 614, 433 N.E.2d 572 (1982).
{¶ 87} This case impacts almost every citizen of this state. All employers
are required to pay into the state fund unless they are self-insured, and all employees
benefit from the workers’ compensation laws. And there were approximately
100,000 state-fund claims filed each year in 2015, 2016, and 2017. Bureau of
Workers’ Compensation, Fiscal Year 2017 Report at 7,
https://www.bwc.ohio.gov/downloads/blankpdf/AnnualReport.pdf (accessed Aug.
7, 2018).
{¶ 88} The three-member Industrial Commission and 85 hearing officers
heard a total of 113,846 disputed claims at all adjudicatory levels (district hearing
officer, staff hearing officer, deputy, and commission) in 2017. Id. at 54-55. And
in reviewing these claims, the commission continues to rely on Pretty Prods. and
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SUPREME COURT OF OHIO
its progeny as establishing an exception to the voluntary-abandonment rule. E.g.,
In re Claim No. 16-342839, 2017 WL 8223527, *2 (Indus. Comm. May 12, 2017)
(“A discharge from a position an Injured Worker is medically prevented from
pursuing at the time of his discharge does not act as voluntary abandonment of the
former position of employment under the rule of [Pretty Prods.]”); In re Claim No.
16-811544, 2016 WL 11000568, *3 (Indus. Comm. Nov. 22, 2016) (“the Injured
Worker was already disabled when the separation occurred, so that he could not
have voluntarily abandoned his employment and Pretty Products should apply”).
{¶ 89} Decisions like these will continue to misapply Pretty Prods. and its
progeny as an exception to the voluntary-abandonment rule. Eventually, we will
have to rectify our decision today, and it is better to do it now with an express and
categorical overruling rather than through the piecemeal approach adopted by the
majority. Where the law is uncertain, there is no law. See State ex rel. Rosett &
Bicking v. Boring, 15 Ohio 507, 516 (1846). Our cases ought to foster confidence
and predictability in the law, not thwart it. Employers and employees need that
confidence and predictability in deciding whether to terminate employment,
attorneys need it in advising clients, and administrative officers need it in
adjudicating claims. Nothing short of a thorough repudiation of Pretty Prods. and
its progeny will avoid the inevitable waste of time and expense of litigation that
will result when parties contest which of our contradictory strands of precedent
applies in their case.
{¶ 90} Clarifying the law makes this a simple case. The commission did
not abuse its discretion in determining that Klein voluntarily abandoned his
employment by resigning on two weeks’ notice, and there is sufficient evidence
supporting an award of TTD compensation through the effective date of his
resignation. And because the record does not show exactly when his resignation
was effective but permits the finding that it was sometime between November 13
and November 19, 2014, it was not an abuse of discretion to award compensation
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January Term, 2018
through November 19, 2014. Accordingly, I concur in the court’s judgment
reversing the judgment of the court of appeals.
O’DONNELL and DEWINE, JJ., concur in the foregoing opinion.
_________________
Richard L. Williger Co., L.P.A., and Richard L. Williger, for appellee.
Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellant.
_________________
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