State ex rel. Ryan Alternative Staffing, Inc. v. Moss (Slip Opinion) , 2021 Ohio 3539 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ryan Alternative Staffing, Inc. v. Moss, Slip Opinion No. 2021-Ohio-3539.]
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SLIP OPINION NO. 2021-OHIO-3539THE STATE EX REL. RYAN ALTERNATIVE STAFFING, INC., APPELLEE, v.
MOSS; INDUSTRIAL COMMISSION OF OHIO, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ryan Alternative Staffing, Inc. v. Moss, Slip
Opinion No. 2021-Ohio-3539.]
Workers’ compensation—Nothing in R.C. 4123.56(A) or Ohio Adm.Code
4121-3-32(A)(6) permits an injured worker to receive temporary-total-
disability compensation after refusing a good-faith offer of suitable
alternative employment, even if the injured worker exercised good faith in
refusing the offer—Orders of the Industrial Commission’s hearing officers
exhibit confusion about the correct standard under which employer’s good
faith is to be determined—Court of appeals’ judgment vacated and limited
writ issued ordering the commission to reconsider this case under the
proper standard.
(No. 2020-1545—Submitted June 29, 2021—Decided October 6, 2021.)
SUPREME COURT OF OHIO
APPEAL from the Court of Appeals for Franklin County, No. 19AP-245, 2020-
Ohio-5197.
__________________
Per Curiam.
{¶ 1} Appellant, Industrial Commission of Ohio, granted temporary-total-
disability (“TTD”) compensation to Bridget M. Moss. Moss’s employer, appellee,
Ryan Alternative Staffing, Inc. (“Ryan”), asked the Tenth District Court of Appeals
for a writ of mandamus ordering the commission to vacate its order and deny
compensation because Moss had refused an offer of alternative employment within
her medical restrictions. The Tenth District granted the writ.
{¶ 2} We vacate the Tenth District’s judgment and issue a limited writ
ordering the commission to reconsider the claim under the correct standard, as
explained below.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} Moss sustained a work injury while employed by Ryan in a second-
shift position, working 4:00 p.m. to midnight. Her workers’ compensation claim
was allowed for a knee sprain, and she requested TTD compensation. Ryan, a self-
insuring employer, offered Moss work within her medical restrictions, but on the
day shift. Moss refused the offer because she had to care for her granddaughter
during the day while her daughter worked. Ryan denied Moss’s TTD-
compensation request because she had turned down the job offer.
{¶ 4} Moss asked the commission to order Ryan to approve compensation,
asserting that Ryan knew she could not work the day shift, so its offer of light-duty
work was not made in good faith. A district hearing officer (“DHO”) denied the
motion, finding that Ryan had not consciously crafted a position it knew Moss
could not accept.
{¶ 5} Moss appealed, and a staff hearing officer (“SHO”) vacated the
DHO’s order and granted Moss’s request for TTD compensation, finding that while
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Ryan had made the offer in good faith, Moss had also refused it in good faith. Ryan
appealed the SHO’s decision; the commission declined to hear the appeal. Ryan
moved for reconsideration, which the commission likewise denied.
{¶ 6} Ryan then filed this action in the Tenth District seeking a writ of
mandamus ordering the commission to vacate the SHO’s order and reinstate the
DHO’s order. The magistrate recommended denying the writ, but the court
sustained Ryan’s objections and granted it. 2020-Ohio-5197, ¶ 1, 8. The
commission appealed.
II. ANALYSIS
A. Mandamus Standard
{¶ 7} To be entitled to a writ of mandamus, Ryan must show that it has a
clear legal right to the relief requested, that the commission has a clear legal duty
to provide it, and that Ryan lacks an adequate remedy in the ordinary course of the
law. State ex rel. Omni Manor, Inc. v. Indus. Comm., 162 Ohio St.3d 264, 2020-
Ohio-4422, 165 N.E.3d 273, ¶ 9.
B. Good-Faith Offer of Suitable Alternative Employment
{¶ 8} R.C. 4123.56(A) provides that payment for TTD compensation “shall
not be made” for periods “when work within the physical capabilities of the
employee is made available by the employer.” In State ex rel. Ellis Super Valu,
Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, ¶ 13,
we held that R.C. 4123.56(A) must be read in pari materia with Ohio Adm.Code
4121-3-32(A)(6), which provides, “ ‘Job offer’ means a proposal, made in good
faith, of suitable employment within a reasonable proximity of the injured worker’s
residence.” “Suitable employment” simply means “work which is within the
employee’s physical capabilities.” Ohio Adm.Code 4121-3-32(A)(3).
{¶ 9} There is no dispute that Ryan made an offer of suitable alternative
employment, and no one claims it was not within a reasonable proximity of Moss’s
residence. The commission also found that the offer was made in good faith.
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{¶ 10} The question presented is whether in such a situation the commission
may nevertheless award TTD compensation if the employee refuses the offer in
good faith based on family circumstances. R.C. 4123.56(A) answers this question
in the negative: “payment shall not be made for the period * * * when work within
the physical capabilities of the employee is made available by the employer or
another employer.” (Emphasis added.) The statute grants the commission no
discretion to award TTD compensation if the employer makes an offer complying
with R.C. 4123.56(A) and Ohio Adm.Code 4121-3-32(A)(6).
{¶ 11} Despite the statute’s clear directive, the parties, commission, and
court of appeals all analyzed this case under Ellis, the facts of which were similar
to those in this case. In Ellis, an injury prevented Susan Hudgel from returning to
her former day-shift position, but her employer, Ellis Super Valu, Inc. (“ESV”),
offered her a light-duty position on the evening shift. 115 Ohio St.3d 224, 2007-
Ohio-4920, 874 N.E.2d 780, at ¶ 1-3. Hudgel rejected the offer because her
husband also worked in the evenings and she did not want to leave her two teenaged
children home alone. Id. The DHO treated the matter as a case of voluntary
abandonment of employment and denied TTD compensation, but the SHO reversed
that decision and awarded compensation, finding that Hudgel had a good reason for
declining the light-duty offer and therefore did not voluntarily abandon her
employment. The Tenth District declined to issue a writ of mandamus, and ESV
appealed.
{¶ 12} In Ellis, we first explained that the case did not involve a voluntary
abandonment of employment but rather implicated a different defense to the
obligation to pay TTD compensation: refusal of an offer of suitable alternative
employment. Id. at ¶ 6, citing R.C. 4123.56(A). We then explained: “[T]he
relevant inquiry in this situation is why the claimant has rejected an offer to
ameliorate the amount of wages lost. This, in turn, can involve considerations of,
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for example, employment suitability, the legitimacy of the job offer, or whether the
position was offered in good faith.” Id. at ¶ 9. Finally, we concluded:
Ohio Adm.Code 4121-3-32(A)(6) defines “job offer” in this context
as a proposal “made in good faith.” The parties debate whether good
faith existed, but contrary to their suggestion, the commission has
not addressed this issue. Whether Hudgel exercised good faith in
refusing the job offer does not answer whether ESV exercised good
faith in extending it, which must be addressed. If ESV consciously
crafted a job offer with work shifts that it knew Hudgel could not
cover—as Hudgel alleges and ESV denies—then good faith may not
exist. That, however, is a factual determination for the commission.
(Emphasis added.) Id. at ¶ 13. We returned the matter to the commission to further
consider the claim. Id. at ¶ 14.
{¶ 13} In this case, the commission focuses on the language in our Ellis
decision that states that the “relevant inquiry in this situation is why the claimant
has rejected an offer” and that the inquiry “can involve considerations of, for
example, employment suitability, the legitimacy of the job offer, or whether the
position was offered in good faith” (emphasis added), Ellis at ¶ 9. Based on this,
the commission asserts that the existence of a good-faith offer is only one of several
factors it may consider and that it properly exercised its discretion by determining
that Moss’s good-faith rejection of the job offer meant that she could receive TTD
compensation.
{¶ 14} However, nothing in R.C. 4123.56(A) or Ohio Adm.Code 4121-3-
32(A)(6) permits an injured worker to receive TTD compensation after refusing a
good-faith offer of suitable alternative employment, even if the injured worker
exercised good faith in refusing the offer. And we did not create an exception in
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Ellis for situations in which familial obligations prevent an injured worker from
accepting a legitimate, good-faith offer of suitable alternative employment—nor
could we have, as this court cannot create a duty enforceable in mandamus, State
ex rel. Manor Care, Inc. v. Bur. of Workers’ Comp., 163 Ohio St.3d 87, 2020-Ohio-
5373, 163 N.E.3d 434, ¶ 19.
{¶ 15} Ryan’s knowledge of Moss’s daytime obligations was relevant to the
commission’s determination of Ryan’s good faith in making the offer. But Moss’s
familial obligations were not an independent reason that could justify an award of
TTD compensation in spite of a job offer complying with R.C. 4123.56(A) and
Ohio Adm.Code 4121-3-32(A)(6).
C. Limited Writ
{¶ 16} That conclusion raises the question whether the matter should be
returned to the commission for further consideration, rather than for the issuance of
an order denying compensation, as the Tenth District directed. The commission is
the exclusive finder of fact in workers’ compensation matters. State ex rel.
Navistar, Inc. v. Indus. Comm., 160 Ohio St.3d 7, 2020-Ohio-712, 153 N.E.3d 7,
¶ 21. And the existence of good faith is “a factual determination for the
commission.” Ellis, 115 Ohio St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, at
¶ 13.
{¶ 17} Ryan argues that because the commission already found that it made
the job offer in good faith, the matter is settled. However, the orders of the
commission’s hearing officers exhibit confusion about the correct standard under
which Ryan’s good faith is to be determined.
{¶ 18} Both the DHO’s and the SHO’s orders evince confusion about what
facts can establish bad faith on the part of an employer. The DHO focused on our
statement in Ellis that “good faith may not exist” if the employer consciously crafts
a job offer with work shifts that it knows the injured worker cannot cover, id. at
¶ 13. The DHO stated, “[T]he offer of employment * * * is not deemed to have
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January Term, 2021
been ‘consciously crafted’ to present the Injured Worker with a position which she
could not accept. Accordingly, this offer is deemed to have been made in ‘good
faith,’ * * *.” (Emphasis added.)
{¶ 19} But our discussion in Ellis was driven by the specific allegation of
bad faith in that case—it was not a limitation on what might constitute good or bad
faith in other cases. The conscious crafting of a position that the employer knows
the employee cannot accept is one way—but not the only way—an employer might
make a job offer in bad faith. Yet the DHO appears to have believed that the
commission could find bad faith on Ryan’s part only if Ryan consciously crafted a
position it knew Moss could not accept. The DHO’s finding of good faith hinged
on the fact that Ryan had offered other injured workers a similar position before
and therefore did not craft this position specifically for Moss, yet that fact does not
necessarily mean that Ryan acted in good faith in Moss’s case.
{¶ 20} The SHO vacated the DHO’s order but, like the DHO, found that
Ryan had made the offer in good faith. The SHO made this finding with almost no
explanation or analysis, suggesting that she may have relied on the DHO’s
reasoning. The only reason the SHO gave for her finding was that the proffered
position was the only one Ryan had available that fit Moss’s medical restrictions.
But that fact also does not necessarily mean that Ryan acted in good faith in this
case. Moreover, despite her finding of “good faith,” the SHO clearly believed that
Moss should receive TTD compensation—an incorrect result under the statute, if
the correct standard for determining good faith had been applied.
{¶ 21} We therefore vacate the Tenth District’s judgment and issue a
limited writ ordering the commission to reconsider this case under the proper
standard, as articulated in this opinion. See State ex rel. Nicholls v. Indus. Comm.,
81 Ohio St.3d 454, 458-459, 692 N.E.2d 188 (1998) (commission’s exercise of
continuing jurisdiction is justified by clear mistake of fact and/or clear mistake of
law).
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III. CONCLUSION
{¶ 22} In light of the foregoing, we vacate the Tenth District’s judgment
and issue a limited writ ordering the commission to reconsider the claim in
conformity with this opinion.
Judgment vacated
and limited writ granted.
O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
_________________
KENNEDY, J., dissenting.
{¶ 23} Because Bridget M. Moss declined a good-faith offer of suitable
employment for reasons unrelated to her workplace injury, she severed the causal
connection between her injury and her loss of wages. For this reason, she is no
longer entitled to temporary-total-disability (“TTD”) compensation. I therefore
would affirm the Tenth District Court of Appeals’ judgment granting a writ of
mandamus in favor of Moss’s employer, appellee, Ryan Alternative Staffing, Inc.
(“Ryan”), to compel appellant, Industrial Commission of Ohio, to vacate its order
granting Moss TTD compensation and to deny compensation. Because the majority
vacates the court of appeals’ decision based on arguments that no one has asserted
and that are contrary to the commission’s statements in the record, I dissent.
{¶ 24} The principle underlying Ohio’s system of workers’ compensation
is 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.’ ” State ex
rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776
N.E.2d 51, ¶ 35, quoting R.C. 4123.54(A). Based on this principle, we have
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. When
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an injured worker’s loss of wages is caused by something other than the workplace
injury, TTD compensation is not available.
{¶ 25} For this reason, 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, State ex rel. Ashcraft v. Indus. Comm., 34
Ohio St.3d 42, 44-45, 517 N.E.2d 533 (1987), 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.
{¶ 26} The causal connection between the workplace injury and the loss of
wages is also severed “when work within the physical capabilities of the employee
is made available by the employer.” R.C. 4123.56(A). If the injured worker
declines a good-faith offer of suitable employment, the worker is no longer entitled
to TTD compensation. State ex rel. Pacheco v. Indus. Comm., 157 Ohio St.3d 126,
2019-Ohio-2954, 132 N.E.3d 670, ¶ 27. In those circumstances, it is the injured
worker’s rejection of the employment offer for reasons unrelated to the workplace
injury—not the workplace injury itself—that causes the loss of wages.
{¶ 27} However, we have previously described voluntary abandonment and
the rejection of a good-faith offer of suitable employment as “mutually exclusive.”
State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-
Ohio-4920, 874 N.E.2d 780, ¶ 12. In Ellis Super Valu, we reasoned that “[a]n offer
of alternate employment would occur only when a claimant is medically unable to
return to the former position of employment. In such a case, a finding of voluntary
abandonment could not be sustained, since a claimant cannot voluntarily abandon
a position that he or she is medically incapable of performing.” Id. However, this
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statement is no longer good law, as we have recently held that a claimant can
voluntarily abandon a position even if he or she is medically incapable of
performing it. State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio
St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, ¶ 2. The question in these cases is
always the same: Did the workplace injury cause the injured worker’s continued
loss of wages? The answer in this case is no.
{¶ 28} Moss suffered a workplace injury as a second-shift employee
working from 4:00 p.m. to midnight for Ram Plastics, where Ryan had placed Moss
as a temporary employee. She sought TTD compensation from Ryan, her self-
insuring employer. One of Ryan’s employees, Pam Plasky, contacted Ram Plastics
and learned that it had no positions compatible with Moss’s medical restrictions.
Plasky then called Moss and offered her a clerical position working directly for
Ryan between 8:30 a.m. and 5:00 p.m. According to Plasky, as a temporary
staffing agency, Ryan is open only during business hours. Moss declined the job
offer because she had a “prior obligation to her daughter to take care of her
granddaughter that was disabled while her daughter is at work.” Ryan then denied
Moss’s request for TTD compensation because Moss had rejected a position that
was compatible with her medical restrictions.
{¶ 29} Moss challenged the denial of TTD compensation before the
commission, asserting that Ryan purposely offered her work that it knew she could
not accept because it was on the day shift. She therefore maintained that she was
entitled to TTD compensation because Ryan had not made an offer of suitable
employment in good faith. At a hearing before the district hearing officer (“DHO”),
Ryan presented Plasky’s testimony that it was open only during daytime business
hours and that it had previously provided injured workers with positions at its
offices when other suitable employment with its clients was not available. The
DHO credited this testimony, finding that
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[the] testimony regarding the regular course of business of the
temporary staffing agency in such situations is found to be
probative. Thus, the offer of employment at the temporary staffing
agency’s offices, albeit at a different time than the Injured Worker
was accustomed to work, is not deemed to have been “consciously
crafted” to present the Injured Worker with a position which she
could not accept. Accordingly, this offer is deemed to have been
made in “good faith,” in accordance with the provisions of Ohio
Adm. Code 4121-3-32(A)(6).
The DHO acknowledged Moss’s statement that Ryan “was aware of her scheduling
requirements when she first signed up for work with the temporary staffing
agency,” but he rejected her argument that Ryan had displayed a lack of good faith
in making the job offer, and he denied her request for TTD compensation.
{¶ 30} On review, the staff-hearing officer (“SHO”) “specifically [found]
that the job offer was made in good faith by the Employer as this was the only
position that the Employer had available to accommodate the Injured Worker’s
physical restrictions.” But the SHO went further, explaining that because Moss had
refused the job offer in good faith and could not return to her prior position due to
medical restrictions, she was entitled to TTD compensation.
{¶ 31} The Tenth District Court of Appeals granted a writ of mandamus
compelling the commission to vacate its order and deny TTD compensation. On
appeal to this court, the commission’s sole argument is that it “does not abuse its
discretion in awarding temporary total disability compensation to an injured worker
where there is some evidence that the injured worker acted in good faith in
declining a light duty job offer from the employer due to pre-existing family
obligations at the time of the scheduled shift as provided within the light duty job
offer.”
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{¶ 32} But as the majority correctly points out, “nothing in R.C. 4123.56(A)
or Ohio Adm.Code 4121-3-32(A)(6) permits an injured worker to receive TTD
compensation after refusing a good-faith offer of suitable alternative employment,
even if the injured worker exercised good faith in refusing the offer.” Majority
opinion at ¶ 14. The commission’s argument is therefore not well-taken.
{¶ 33} But although the DHO and SHO expressly found that Ryan offered
Moss suitable employment in good faith, the majority opinion speculates that the
DHO and SHO were confused regarding how the absence of “good faith” may be
established. The majority opinion states that “the DHO appears to have believed
that the commission could find bad faith on Ryan’s part only if Ryan consciously
crafted a position it knew Moss could not accept.” Majority opinion at ¶ 19. It also
says that “the SHO clearly believed that Moss should receive TTD compensation—
an incorrect result under the statute, if the correct standard for determining good
faith had been applied.” Id. at ¶ 20. But Moss’s theory of her case was that Ryan
had purposefully offered her the clerical position on the day shift with the intention
that she would have to refuse it due to her childcare responsibilities. The DHO and
SHO each had to reject that argument to decide, as they did, that Ryan acted in good
faith. And whether there are some other bases for finding that Ryan exhibited a
lack of good faith is something that has never been an issue in this case. Rather
than exhibiting confusion over how an employer’s good faith may be established,
the SHO’s determination reflects the commission’s erroneous position in this case
that the commission may award TTD compensation if the injured worker in good
faith turns down a good-faith offer of employment. That misunderstanding of the
law aside, the DHO’s and SHO’s findings are unambiguous: Ryan offered Moss
suitable employment in good faith and she rejected that offer.
{¶ 34} No one has argued in this court that the evidence does not support
the commission’s finding that Ryan acted in good faith. Only the commission
appealed the Tenth District’s decision, and it has not argued that the evidence is
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insufficient to support its own finding that Ryan acted in good faith. Rather, it
acknowledges that Ryan made the light-duty work available in good faith. Moss
did not appeal, and although she filed a brief in this court, she does not dispute that
Ryan made a good-faith job offer. She therefore abandoned the argument she made
before the commission that Ryan had not given her a good-faith job offer because
“[t]he job offer was purposefully offered in a day shift capacity, which she was not
going to be able to perform.”
{¶ 35} Whether or not Ryan acted in good faith, then, is not properly before
this court for review. The sole issue litigated by the parties in this court is whether
an employee’s good-faith refusal of a good-faith offer of suitable employment
preserves entitlement to TTD compensation. However, R.C. 4123.56(A) provides
that payment for TTD compensation “shall not be made” for periods “when work
within the physical capabilities of the employee is made available by the employer.”
Therefore, when an employer offers an injured worker suitable employment in good
faith and the injured worker refuses it, the causal connection between the injury and
loss of wages is broken. And here, it was Moss’s daughter’s need for Moss to
provide childcare during the day that precluded Moss from accepting the job offer.
Because her workplace injury did not prevent her from accepting the light-duty
position, her refusal to accept it for other reasons, however justifiable, does not
maintain the causal connection between the workplace injury and the loss of wages
that is required for her to be entitled to TTD compensation.
{¶ 36} The majority today reaches to decide an issue that has not been
briefed by the parties in this court. We should not abandon this court’s “role of
neutral arbiter of matters the parties present,” Greenlaw v. United States, 554 U.S.
237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008), by injecting new arguments into
this case. As Judge Richard Posner once explained, “we cannot write a party’s
brief, pronounce ourselves convinced by it, and so rule in the party’s favor. That’s
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not how an adversarial system of adjudication works.” Xue Juan Chen v. Holder,
737 F.3d 1084, 1085 (7th Cir.2013).
{¶ 37} For these reasons, I would affirm the judgment of the Tenth District
Court of Appeals and issue a writ of mandamus to compel the commission to vacate
its order and to deny the request for TTD compensation. The majority does not,
based on factual issues that the commission—the sole appellant—has not raised
and arguments that no one has asserted. I therefore dissent.
DEWINE, J., concurs in the foregoing opinion.
_________________
Morrow & Meyer, L.L.C., and Mary E. Ulm, for appellee.
Dave Yost, Attorney General, and Douglas R. Unver, Assistant Attorney
General, for appellant.
_________________
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