State ex rel. Tolle v. Spherion of Mid-Ohio, Inc.

[Cite as State ex rel. Tolle v. Spherion of Mid-Ohio, Inc., 2015-Ohio-3593.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Angela M. Tolle, :
Relator, :
v. : No. 14AP-717
Spherion of Mid-Ohio, Inc. and : (REGULAR CALENDAR)
Industrial Commission of Ohio,
:
Respondents.
:
D E C I S I O N
Rendered on September 3, 2015
Badnell & Dick Co., L.P.A., and Kelly L. Badnell, for relator.
Lee M. Smith & Assoc. Co., Rebecca J. Johnson, and
Elizabeth P. Weeden, for respondent Spherion of Mid-Ohio,
Inc.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Angela M. Tolle, filed this original action requesting that this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its orders which denied her request for temporary total
disability ("TTD") compensation and determined she had been overpaid TTD
compensation, and ordering the commission to find that she is entitled to that
compensation.
No. 14AP-717 2
{¶ 2} The court referred this matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended
decision, including findings of fact and conclusions of law, and recommended this court
grant a writ of mandamus and order the commission to vacate its order which denied
Tolle an award of TTD compensation; to vacate the order finding Tolle was overpaid TTD
compensation; and to issue a new order finding that Tolle remained eligible for that
award.
I. Facts and Procedural History
{¶ 3} As more fully set forth in the magistrate's decision, on October 8, 2013,
while working for respondent Spherion of Mid-Ohio, Inc. ("Spherion"), Tolle sustained a
work-related injury. Her arm was crushed when her supervisor hit a wrong button while
she was loading a braider. While at the hospital for treatment for the injury, a post-injury
drug screen resulted in a positive test for marijuana. Effective October 15, 2013, Spherion
terminated Tolle because her positive test for marijuana was a violation of company
policy.
{¶ 4} Tolle requested TTD compensation beginning October 9, 2013. An
administrator for the Ohio Bureau of Workers' Compensation ("BWC") heard the matter
and denied Tolle's request for TTD compensation on October 24, 2013. Tolle appealed.
On November 21, 2013, a district hearing officer ("DHO") affirmed the TTD compensation
denial. Tolle appealed again and that mater was heard before a staff hearing officer
("SHO"). The SHO vacated the DHO order and found that Tolle was eligible for TTD
compensation based on State ex rel. Ohio Welded Blank v. Indus. Comm., 10th Dist. No.
08AP-772, 2009-Ohio-4646 and State ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249,
2007-Ohio-4916 ("Gross II").
{¶ 5} Spherion's appeal was refused by the commission; however, the commission
heard Spherion's request for reconsideration on April 29, 2014. The commission found
that State ex rel. Paysource USA, Inc. v. Indus. Comm., 10th Dist. No. 08AP-677
(June 30, 2009), applied and Tolle was not entitled to TTD compensation and had been
overpaid $11,278.49. Tolle thereafter filed this mandamus action.
No. 14AP-717 3
{¶ 6} On March 18, 2015, the magistrate issued a decision recommending this
court grant Tolle's request for a writ of mandamus. Pursuant to Civ.R. 53, both Spherion
and the commission filed objections to the magistrate's decision.
II. Objections to the Magistrate's Decision
{¶ 7} The commission sets forth the following objections to the magistrate's
decision:
[1.] The magistrate erred in her interpretation and application
of [State ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249,
2007-Ohio-4916] Gross II to the extent she held that a post-
injury positive drug test that detects a pre-injury work rule
violation can never be the basis for voluntary abandonment.
[2.] The magistrate erred in her interpretation and application
of [State ex rel. Pretty Prods. v. Indus. Comm., 77 Ohio St. 3d
5 (1996)] and [State ex rel. Reitter Stucco Inc. v. Indus.
Comm., 117 Ohio St. 3d 71, 2008-Ohio-499].
[3.] The magistrate erred in her interpretation and application
of the other cases cited for the proposition that a pre-injury
infraction may not serve as the basis for a voluntary
abandonment.
[4.] The magistrate erred by relying on Gross II, and rejecting
[State ex rel. Paysource USA, Inc. v. Indus. Comm., 10th Dist.
No. 08AP-677 (June 30, 2009)], which creates bad public
policy in that it frustrates efforts to maintain a drug free work
place.
{¶ 8} Spherion sets forth the following objections to the magistrate's decision:
[1.] The Magistrate erred by holding that Gross II [State ex
rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249, 2007-Ohio-
4916] precludes denial of TTD in pre-injury drug use cases
under the voluntary abandonment doctrine.
[2.] The Magistrate's decision runs contrary to public policy.
III. Discussion
{¶ 9} Because they raise related issues, we will address the commission's first,
second, and third objections and Spherion's first objection together. The commission and
Spherion argue that the magistrate erred in interpreting the relevant case law. The issue
No. 14AP-717 4
presented here is whether the workplace abandonment theory may be applied to preclude
TTD compensation due to pre-injury behavior, discovered after the injury, when the
injury caused disability independent of the dischargeable offense. This court recently
addressed this same issue in State ex rel. Cordell v. Pallet Cos. Inc., 10th Dist. No. 13AP-
1017, 2014-Ohio-5561. In Cordell, this court relied on Gross II and Ohio Welded Blank
and concluded that the doctrine of voluntary abandonment did not apply to receipt of
TTD compensation in a case involving a pre-injury infraction undetected until after
injury. Therefore, we agree with the magistrate's reliance on the reasoning and
conclusion reached in Cordell. Accordingly, we overrule the commission's first, second,
and third objections and Spherion's first objection.
{¶ 10} The remaining objections, the commission's fourth objection and Spherion's
second objection, contend that the magistrate's decision runs contrary to public policy.
This public policy argument was also raised in Cordell. As noted in Cordell, the General
Assembly is the best place to address policy issues. "As an intermediate appellate court,
this court is bound by decisions of the Supreme Court of Ohio. As previously discussed,
Gross II is dispositive of the issue presented here." Cordell at ¶ 7. Therefore, we overrule
the commission's fourth objection and Spherion's second objection.
IV. Conclusion
{¶ 11} Following our independent review of the record, pursuant to Civ.R. 53, we
find that the magistrate has properly determined the facts and applied the appropriate
law. Therefore, we adopt the magistrate's decision as our own, including the findings of
fact and conclusions of law contained therein. We therefore overrule the commission's
and Spherion's objections to the magistrate's decision. In accordance with the
magistrate's decision, we grant Tolle's request for a writ of mandamus ordering the
commission to vacate its order denying Tolle TTD compensation; to vacate its order
finding overpayment of TTD compensation; and to issue an order awarding Tolle TTD
compensation.
Objections overruled; writ of mandamus granted.
TYACK and KLATT, JJ., concur.
No. 14AP-717 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Angela M. Tolle, :
Relator, :
v. : No. 14AP-717
Spherion of Mid-Ohio, Inc. and : (REGULAR CALENDAR)
Industrial Commission of Ohio,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on March 18, 2015
Badnell & Dick Co., L.P.A., and Kelly L. Badnell, for relator.
Lee M. Smith & Assoc. Co., Rebecca J. Johnson and
Elizabeth P. Weeden, for respondent Spherion of Mid-Ohio,
Inc.
Michael DeWine, Attorney General, and Kevin Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 12} Relator, Angela M. Tolle, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which found that she was not entitled to an award of
temporary total disability ("TTD") compensation because she had voluntarily abandoned
her employment and ordering the commission to find that she was entitled to that award
No. 14AP-717 6
of TTD compensation. Further, to the extent that the commission found that relator had
been overpaid TTD compensation, relator asks that the finding be vacated.
Findings of Fact:
{¶ 13} 1. Relator sustained a work-related injury while loading a braider when her
supervisor hit the wrong button which caused the machine to be activated and caused a
crushing injury to her left arm. Relator's workers' compensation claim is allowed for:
"displaced angulation fractures distal radius and ulna left."
{¶ 14} 2. Immediately following the injury, relator was taken to the hospital for
treatment and a post-injury drug screen was performed. It is undisputed that relator
tested positive for marijuana. The test results were made available October 15, 2013.
{¶ 15} 3. In a letter dated October 16, 2013, relator's employer, Spherion of Mid-
Ohio, Inc. ("Spherion"), notified relator that she was being terminated:
This letter is an official confirmation of termination of your
employment effective October 15, 2013 from Spherion.
The reason for termination was a violation of company
policy. Your post accident drug screen results were positive.
Spherion's policy is "I understand that some clients require
drug testing, credit checks, and/or criminal history checks
prior to assignment and as a condition to continue such
assignments and that because of these results, may be denied
employment on an assignment. I have the option of not
being considered for assignments with these clients. Failing
a drug test will result in termination." You signed
acknowledgement that you understood and agreed to the
policies when you accepted your assignment with Spherion.
Therefore Spherion will no longer consider you for
temporary assignments.
(Emphasis sic.)
{¶ 16} 4. Under the company's policy and procedures signed and acknowledged by
relator on March 15, 2013, a positive drug test would result in her discharge.
{¶ 17} 5. Relator filed a request for TTD compensation beginning October 9, 2013.
{¶ 18} 6. The matter was heard before the Administrator of the Ohio Bureau of
Workers' Compensation ("BWC"). In an order mailed October 24, 2013, the
No. 14AP-717 7
administrator denied relator's request for TTD compensation finding that she had been
terminated from employment due to a violation of a written work rule.
{¶ 19} 7. Relator appealed and the matter was heard before a district hearing
officer ("DHO") on November 21, 2013. The DHO affirmed the administrator's order
finding that relator's termination from employment due to her violation of Spherion's
written work rule and the fact that she tested positive for marijuana rendered her
ineligible to receive TTD compensation.
{¶ 20} 8. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on January 16, 2014. The SHO vacated the prior DHO order and found that the
positive drug test did not render relator ineligible for an award of TTD compensation and
that, based on the medical evidence, she was entitled to that award. Specifically, the SHO
stated:
Temporary total disability compensation is ordered to be
paid from 10/09/2013 through the present, 01/16/2014, and
is ordered to continue upon submission of appropriate
medical proof of ongoing disability related to the allowed
conditions in this claim. The Staff Hearing Officer relies on
the Medco-14 reports of Dr. Godfrey dated 10/22/2013,
11/29/2013, and 12/24/2013 in rendering this decision. The
Staff Hearing Officer finds that the Injured Worker did not
voluntarily abandon her position of employment so as to
preclude the payment of temporary total disability
compensation in this claim. The Staff Hearing Officer notes
that the Injured Worker received a post accident drug screen
on 10/08/2013. In a confirmatory report from Dr. Harris
dated 10/15/2013, that drug screen was noted to be positive
for marijuana. Consistent with the Employer's policy
regarding drug use, the Injured Worker was sent a letter
from the Employer dated 10/16/2013 indicating that she was
being terminated from employment effective 10/15/2013, the
date of the confirmatory drug test result. Termination was
performed consistent with the Employer's "Policy and
Procedures"#5, which indicates that a positive drug test will
result in discharge. The Injured Worker signed an
acknowledgement of receipt of the policy on 03/15/2013.
While the Employer was within its rights to terminate the
Injured Worker due to a violation of the Employer's drug
policy, the Staff Hearing Officer finds that this termination
does not preclude the payment of temporary total disability
compensation in this claim given the facts of the instant case
No. 14AP-717 8
and pursuant to [State ex rel. Ohio Welded Blank v Indus.
Comm., 10th Dist. No. 08AP-772, 2009-Ohio-4646], a
decision issued by the Tenth District Court of Appeals on
09/08/2009. The Injured Worker in the instant claim
acknowledged that she had smoked marijuana the weekend
before the industrial injury and in fact had told Ms. Yeager at
the emergency room that she would probably fail the drug
test due to that fact. However, pursuant to [Ohio Welded
Blank], relying on [State ex rel. Gross v. Indus. Comm., 115
Ohio St. 3d 249, 2007-Ohio-4916 ("Gross II")], the Court
indicated that the voluntary abandonment doctrine has not
been applied to work rule violations preceding or contem-
poraneous with the injury. The Court specifically indicated
that the Court in Gross II indicated that a pre-injury
infraction undetected until after the injury is not grounds for
concluding the Injured Worker voluntarily abandoned her
employment. The Court indicated that although the
infraction may be grounds for terminating the Injured
Worker's employment, it is not grounds for concluding the
Injured Worker abandoned her employment so as to
preclude the payment of temporary total disability benefits.
The Staff Hearing Officer notes that no argument was made
by the Employer and no evidence was presented by the
employer to indicate that the injury in the instant claim
resulted from the Injured Worker's being under the influence
of marijuana. Dr. Godfrey indicates that the Injured Worker
was temporarily and totally disabled beginning the day after
the injury on 10/09/2013 and thus at the time she was
terminated, she was certified as being temporarily and totally
disabled. Based on these facts, the Staff Hearing Officer finds
the Injured Worker is entitled to the payment of temporary
total disability compensation in this claim.
(Emphasis sic.)
{¶ 21} 9. Spherion's appeal was refused by order of the commission mailed
February 12, 2014.
{¶ 22} 10. Spherion filed a request for reconsideration and a finding that the SHO
failed to apply this court's decision in State ex rel. PaySource USA Hoist, Inc. v. Indus.
Comm., 10th Dist. No. 08AP-677 (June 30, 2009).
{¶ 23} 11. Following a hearing on April 29, 2014, the commission found that
Spherion met its burden of proving the SHO's order contained a clear mistake of law and
No. 14AP-717 9
granted the request for reconsideration. Thereafter, the commission determined that
relator was not entitled to an award of TTD compensation citing this court's decision in
PaySource. One commissioner dissented and explained why this court's decision in
PaySource was not controlling.
{¶ 24} 12. Because the commission found that relator was not entitled to TTD
compensation, the BWC determined that relator had been overpaid $11,278.49.
{¶ 25} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 26} This court recently addressed this issue and clearly explained that its
decision in PaySource is not controlling in State ex rel. Cordell v. Pallet Co. Inc., 10th
Dist. No. 13AP-1017, 2014-Ohio-5561. James F. Cordell sustained a work-related injury
when a third-party truck driver pulled away from the loading dock on which he was
positioned on a tow motor resulting in a fall from the dock plate to the ground. While at
the emergency room, a post-accident drug screen was ordered and Cordell tested positive
for marijuana metabolites and opiates, specifically morphine.
{¶ 27} Pursuant to his employer's written policy, Cordell was terminated after
failing the post-accident drug screen.
{¶ 28} Cordell filed an application for TTD compensation and, as happened here,
an SHO found that TTD compensation was payable despite the fact that Cordell had
tested positive for marijuana and morphine after the work-related injury. However,
Cordell's employer filed a request for reconsideration which was granted and, citing this
court's decision in PaySource, this court determined that Cordell was not entitled to an
award of TTD compensation.
{¶ 29} Cordell filed a mandamus complaint in this court and this magistrate
discussed the relevant case law, including PaySource, specifically stating:
In 2009, within three months of each other, this court
released two decisions, PaySource and State ex rel. Ohio
Welded Blank v. Indus. Comm., 10th Dist. No. 08AP-772,
2009-Ohio-4646, each of which dealt with factual situations
similar to those present in this case. William A. Shoemaker
("Shoemaker") and Steven Farr ("Farr") both sustained
work-related injuries. Pursuant to their employers' drug-free
workplace policies, both Shoemaker and Farr submitted to
No. 14AP-717 10
drug testing. Shoemaker's test was positive for cocaine, and
Farr's test was positive for marijuana. Both Shoemaker and
Farr were terminated from their employment for having
violated their employers' policies, and their employers
argued that their violations constituted a voluntary
abandonment of their employment precluding their
eligibility for TTD compensation. In both cases, the
commission awarded the employees TTD compensation, and
the employers filed mandamus actions in this court.
In PaySource, decided June 30, 2009, the record indicates
that Shoemaker was "verbally notified * * * that he had
tested 'positive for cocaine' and that 'under our Drug-Free
workplace policy he would have to be terminated.' The
February 5, 2008 verbal notification was later memorialized
in a March 14, 2008 letter." In the SHO order under review,
the SHO stated:
Counsel for the employer indicated that the drug screen was
performed as a result of the injured worker being involved in
the workplace fall from the scaffold accident. The results of
the drug screen apparently became available and published
on 02/04/2008. As a result, the employer fired the injured
worker on 02/05/2008. Counsel for the employer indicated
that the employer fired the injured worker because he tested
positive for cocaine on the drug screen.
The employer argues that the injured worker therefore
voluntarily abandoned his former position of employment
when he ingested cocaine approximately three days prior to
the fifteen foot fell [sic] off of the scaffold while working.
The SHO rejected the employer's argument and stated as
follows:
The employer admits that it fired the injured worker as a
result of testing positive on a drug screen. That drug screen
was performed after the injured worker had sustained his
compensable workplace injury, and after the injured worker
had become physically unable to return to his former
position of employment in fact; the employer admits that the
post accident drug screen was performed only because the
injured worker had sustained an on the job injury. The drug
screen and resultant firing arose out of the compensable
work injury.
No. 14AP-717 11
Upon review, this court accepted the magistrate's argument
to the contrary:
Because it was found that the "drug screen" and the resultant
job termination occurred after the industrial injury
prevented claimant from returning to his former position of
employment, the commission concluded that the job
departure was involuntary.
The commission's analysis of the timing of the termination is
seriously flawed because the commission inappropriately
viewed testing positive on the drug screen as the offense for
which claimant was terminated. Clearly, it was claimant's
ingestion or "use" of cocaine that was the offense for which
claimant was terminated. The drug screen was only the
means employed to detect the use of the illegal substance.
Clearly, claimant's use of the prohibited substance occurred
prior to the industrial injury, and thus the prohibited
conduct could not have occurred during any period of
disability resulting from the industrial injury. Page 22 of the
employee handbook states that: "Employees need to be
aware that certain offenses, including but not limited to use,
possession, sale of illegal drugs * * *, will normally result in
immediate termination." That portion of page 22 put
claimant on notice that his admitted ingestion or use of
cocaine could result in job termination if the ingestion or use
were ever detected by a drug screen required at the time of
an industrial injury.
The magistrate further recognizes that Brosnan's March 14,
2008 letter memorializing the February 5, 2008 notification
of termination does not specify that claimant was being
terminated for "use." However, the letter does state that
claimant was being terminated "under our Drug-Free
workplace policy."
It is unreasonable under the circumstances to infer from
Brosnan's letter that use of cocaine as determined by the
drug screen was not the conduct that the policy prohibits and
for which Omni terminated employment.
As a result, this court determined that Shoemaker was not
entitled to TTD compensation. However, the court never
addressed the applicability of [State ex rel. Gross v. Indus.
Comm., 115 Ohio St. 3d 249, 2007-Ohio-4916 ("Gross II")] or
its effect on the outcome.
No. 14AP-717 12
By comparison, in Ohio Welded Blank, decided September 8,
2009, after receiving the positive results from the drug test,
the employer met with Farr and informed him that he was
going to be terminated because he tested positive for
marijuana. Later, the employer sent Farr a letter indicating,
in part:
[O]n October 24, 2007, you tested positive for an illicit
substance on a drug screen on September 28, 2007. This
positive drug screen is a violation of the Company's
Substance Abuse Policy and in accordance with this policy
the Company is terminating your employment effective
September 28, 2007.
Id. at 30.
At the commission level, the employer argued that Farr had
voluntarily abandoned his employment; however, the
commission applied the rationale from Gross II and found
that TTD compensation was payable:
A positive marijuana metabolite level was discovered during
routine post-accident testing which caused claimant to be
terminated after the disability due to the injury had begun.
As soon as he was physically able, claimant returned to work
with a different employer. This would rebut the contention
that claimant had abandoned the work force or otherwise
removed himself from employment voluntarily and
unrelated to the claim. The presence of a prohibited drug
level was discovered subsequent to the injury and after
disability from the injury existed independent of any drug
policy violation. Staff Hearing Officer finds no legal
precedent which would apply an abandonment of the
workplace theory to pre-injury behavior, discovered after the
injury, where the injury has caused disability independent of
the dischargeable defense. Pretty Products v. Industrial
Commission, (1996), 77 Ohio St. 3d 5, and State ex rel.
Reitter Stucco, Inc. v. Industrial Commission, slip Opinion
no. 2008-Ohio-499-No.2007-0060-submitted Nov. 27,
2007-decided Feb. 13, 2008, are followed. Claimant was
disabled due to the injury at the time of termination. The
cause of the termination is unrelated to the injury claim.
Since claimant was medically incapable of returning to his
former position of employment at the time of his discharge,
No. 14AP-717 13
Staff Hearing Officer concludes that he is eligible to receive
the temporary total disability compensation as ordered.
Id. at 34.
Despite of the fact that the employer continued to argue that
Farr ingested marijuana sometime during the week
preceding his injury and obviously violated the written work
rule before his injury, this court applied Gross II and stated:
Gross II stated the voluntary abandonment doctrine had not
been applied to work rule violations preceding or
contemporaneous with the injury. Here even if we adopt
relator's position that the date of the infraction, not the date
of termination, determines application of the voluntary
abandonment doctrine, Gross II indicates that a pre-injury
infraction undetected until after the injury is not grounds for
concluding claimant voluntarily abandoned his employment.
Although the infraction may be grounds for terminating
relator's employment, Gross II clarifies that it is not grounds
for concluding claimant abandoned his employment so as to
preclude temporary total benefits. The result is especially
compelling here, where the employer presented no evidence
to suggest the injury resulted from relator's being under the
influence of drugs or alcohol.
Id. at 20.
In PaySource, this court departed from the principles
established by the Supreme Court of Ohio. Because this court
did not address the applicability of Gross II and its effect on
the outcome, this magistrate is unable to address and/or
explain the reasons why this decision is contrary to other
decisions addressing the same issue. However, this court has
not followed PaySource.
In a decision rendered in September 2011, two years after
both PaySource and Ohio Welded Blank, this court followed
Ohio Welded Blank and determined that the injured worker
who tested positive for marijuana during a post-accident
drug test was entitled to an award of TTD compensation. In
[State ex rel. Ohio Decorative Prods., Inc. v. Indus. Comm.,
10th Dist. No. 10AP-498 (Sept. 15, 2011)], Randy S. Herron
sustained serious injuries when his ponytail was caught onto
a rotating shaft of a grinding machine. Herron tested positive
for opiates and cannabinoids, and his employer argued that
No. 14AP-717 14
his claim should be barred under R.C. 4123.54 because there
was a rebuttable presumption that Herron was intoxicated or
under the influence of a controlled substance, not prescribed
by his physician, and the fact that he was intoxicated or
under the influence of a controlled substance was the
proximate cause of his injury. A DHO found that R.C.
4123.54 did not apply and determined that TTD
compensation was payable.
Herron's employer appealed and, at that time, conceded that
the requirements of R.C. 4123.54 had not been met.
However, the employer continued to argue that Herron's
termination for violating the drug-free workplace policy
constituted a voluntary abandonment of his employment and
rendered him ineligible to receive TTD compensation. The
SHO disagreed and, citing Gross II, Pretty Prods., and
Reitter Stucco, concluded that TTD compensation was
payable. Despite the fact that the SHO found that the
employer did establish all three requirements of Louisiana-
Pacific, by applying Gross II, Pretty Prods., and Reitter
Stucco, the SHO concluded that Herron's pre-injury behavior
did not foreclose the payment of TTD compensation.
In arguing otherwise, the employer contends that Ohio
Welded Blank, Ohio Decorative Prods., and State ex rel.
Ohio State Univ. Cancer Research Hosp. v. Indus. Comm.,
10th Dist. No. 09AP-1027, 2010-Ohio-3839, are in
contravention of [State ex rel. Louisiana-Pacific Corp. v.
Indus. Comm., 72 Ohio St. 3d 401 (1995)] and the Supreme
Court of Ohio's decision in [State ex rel. Cobb v. Indus.
Comm., 88 Ohio St. 3d 54 (2000)]. Relator points out that, in
Cobb, the Supreme Court held that a post-injury termination
based upon a violation of an employer's drug policy can
preclude the payment of TTD compensation provided the
three-prong test from Louisiana-Pacific is demonstrated.
For the reasons that follow, the magistrate finds that
relator's argument is not well-taken.
First, Ohio Welded Blank, Ohio Decorative Prods. and Ohio
State Univ. Cancer Research Hosp. are not in contravention
of Louisiana-Pacific. Instead, both this court and the
Supreme Court of Ohio have been very clear in explaining
that Louisiana-Pacific and Pretty Prods. can both be applied
in certain circumstances. As such, even where an employer
demonstrates that the Louisiana-Pacific test has been met,
the injured worker may still be entitled to receive TTD
No. 14AP-717 15
compensation. In explaining how the two lines of cases are to
be applied, the Supreme Court specifically noted that both
Louisiana-Pacific and Pretty Prods. may factor into the
analysis. If the requirements of Louisiana-Pacific are met,
suggesting that the termination is voluntary, the commission
and courts must still consider whether the employee was
disabled at the date of termination.
Second, the employer's reliance on Cobb is misplaced. The
Cobb case was decided seven years before the Supreme Court
of Ohio rendered its decision in Gross II and has not been
applied in these circumstances since then. As such, it
appears the holding in Cobb has been rejected by the
Supreme Court of Ohio in Ohio Welded Blank and Ohio
Decorative Prods.
The magistrate specifically notes that the PaySource case is
the only case since Gross II was decided in which an injured
worker has been denied TTD compensation because the
injured worker tested positive for drugs during post-injury
drug tests. However, this court did not address the
applicability of Gross II to the facts in PaySource. As such,
the magistrate cannot address and/or explain the reasons
why the decision in PaySource was reached. As this
magistrate noted in Ohio Decorative Prods., this court
should continue to apply the law as pronounced by the
Supreme Court in Gross II. As the Supreme Court stated, the
voluntary abandonment doctrine has never been applied to
violations of written work rules which precede or are
contemporaneous with the injury. If ingesting marijuana
actually is a violation of the written work rule, the only
employees at risk for being terminated for violating this
offense are employees who sustain compensable work-
related injuries while working for their employer. Any other
employee who also ingested marijuana at the same time will
not be terminated because their "violation" will not be
brought to light.
The employer emphasizes that TTD compensation can only
be awarded when the disability arising from the allowed
conditions causes the employee to suffer a loss of wages. The
employer asserts here that relator's termination from
employment for violating the written work rule is the reason
relator is without wages. In other words, employer asserts
that the violation of the written work rule and subsequent
termination break the causal connection between the
No. 14AP-717 16
disability arising from the allowed conditions and relator's
lack of wages. For the reasons that follow, the magistrate
disagrees.
It is undisputed that relator was injured at work on
February 16, 2012. Further, it is also undisputed that relator
was immediately rendered temporarily totally disabled. In
other words, the allowed conditions resulting from the work-
related injury immediately prevented relator from working
and caused him to suffer a loss of wages. But for the injury,
relator would have been able to continue working. Relator
asserts that it could have administered a random drug test
that same day and, had relator tested positive, he would have
been terminated. Therefore, the employer argues that the
causal connection between the allowed conditions and the
resulting loss of wages was severed.
The magistrate finds that it is immaterial that relator would
have been terminated if the employer had subjected him to a
random drug test, which he would have failed. The employer
did not subject relator to a random drug test. Here, the
allowed conditions which resulted from the workplace injury
rendered relator unable to return to his former position of
employment and caused him to be without wages. Employers
can show a break in the causal connection if they can meet
the burden of proof under R.C. 4123.54 and demonstrate
that an injured worker was actually impaired by the drugs at
the time the injury occurred.
In State ex rel. Smith v. Superior's Brand Meats, Inc., 76
Ohio St. 3d 408, 411 (1996), the Supreme Court of Ohio
recognized the possible abuse that may occur where the
termination of employment may result in the denial of TTD
compensation for the injured worker and stressed that it is
"imperative to carefully examine the totality of the
circumstances when such a situation exists." Especially here,
where there is no evidence that relator was under the
influence of the drugs he ingested, the magistrate finds that,
while the employer certainly could terminate relator, the
commission abused its discretion when it found a voluntary
abandonment and denied relator TTD compensation.
This conclusion also follows the reasoning of other cases,
including Ohio State Univ. Cancer Research Hosp. (claimant
returned to modified duty and while working modified duty
was terminated for his pre-injury violation of the employer's
No. 14AP-717 17
policy against harassment—TTD payable); and State ex rel.
Nick Strimbu, Inc. v. Indus. Comm., 106 Ohio St. 3d 173,
2005-Ohio-1386 (while claimant was off from work
following his work-related injury, the employer learned that,
pre-injury, he had violated the employer's policy by falsifying
his job application—TTD payable). Under the employer's
theory, these pre-injury cases would also need to be
reevaluated.
Based on the foregoing, it is this magistrate's decision that
this court should issue a writ of mandamus ordering the
commission to vacate its order which denied relator TTD
compensation and issue an order finding that relator is
entitled to that compensation.
Id. at ¶ 33-51.
{¶ 30} Cordell's employer filed objections to the magistrate's decision which this
court rejected. Specifically, this court stated:
State ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249,
2007-Ohio-4916 (“ Gross II ”) and State ex rel. Ohio Welded
Blank v. Indus. Comm., 10th Dist. No. 08AP-772, 2009-
Ohio-4646, the magistrate found that the doctrine of
voluntary abandonment did not apply to bar receipt of TTD
compensation in a case involving a pre-injury infraction
undetected until after the injury. Therefore, the magistrate
has recommended that we grant relator's request for a writ of
mandamus and order the commission to enter an order
granting relator TTD compensation.
Respondent, Pallet Companies, Inc., has filed objections to
the magistrate's decision. In its first objection, Pallet argues
that the magistrate erred by failing to apply the legal
principles discussed in State ex rel. Louisiana-Pacific
Corp. v. Indus. Comm., 72 Ohio St. 3d 401 (1995); State ex
rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St. 3d 25,
2002-Ohio-5305; State ex rel. Cobb v. Indus. Comm., 88
Ohio St. 3d 54 (2000); and State ex rel. PaySource USA,
Inc. v. Indus. Comm., 10th Dist. No. 08AP-677 (June 30,
2009) (memorandum decision). We disagree.
As indicated in the magistrate's decision, the issue raised in
Pallet's first objection is resolved by Gross II and this court's
decision in Ohio Welded Blank. Relying on Gross II, this
court expressly held that:
No. 14AP-717 18
Gross II indicates that a pre-injury infraction undetected
until after the injury is not grounds for concluding claimant
voluntarily abandoned his employment. Although the
infraction may be grounds for terminating relator's
employment, Gross II clarifies that it is not grounds for
concluding claimant abandoned his employment so as to
preclude temporary total benefits.
Ohio Welded Blank at ¶ 20.
As noted by the Supreme Court in State ex rel. Reitter
Stucco, Inc. v. Indus. Comm., 117 Ohio St. 3d 71, 2008-Ohio-
499, “even if a termination satisfies all three Louisiana-
Pacific criteria for being a voluntary termination, eligibility
for temporary total disability compensation remains if the
claimant was still disabled at the time the discharge
occurred.” Id. at ¶ 10. Therefore, Pallet's argument that
Louisiana-Pacific and McCoy prelude relator's receipt of
TTD compensation lacks merit.
Nor does Cobb require a different result. As noted by the
magistrate, the application of the voluntary-abandonment
doctrine to a pre-injury infraction undetected until after
injury is controlled by Gross II and Ohio Welded Blank, not
Cobb. Cobb did not involve a pre-injury infraction. Lastly, we
are unpersuaded by Pallet's reliance on this court's decision
in PaySource. Although PaySource does support Pallet's
argument, we note that PaySource was a memorandum
decision that adopted a magistrate's decision to which there
were no objections. It does not appear that the applicability
of Gross II was even raised in PaySource. Moreover, in Ohio
Welded Blank and State ex rel. Ohio Decorative Prods.,
Inc. v. Indus. Comm., 10th Dist. No. 10AP-498 (Sept. 15,
2011) (memorandum decision), this court did not follow the
magistrate's legal analysis in PaySource based upon Gross
II. For these reasons, we overrule Pallet's first objection.
In its second objection, Pallet contends that the magistrate's
decision runs contrary to public policy. Although Pallet's
argument highlights a public policy issue, that issue is best
addressed in the General Assembly or in the Supreme Court
of Ohio. As an intermediate appellate court, this court is
bound by decisions of the Supreme Court of Ohio. As
previously discussed, Gross II is dispositive of the issue
No. 14AP-717 19
presented here. Therefore, we overrule Pallet's second
objections.
Following an independent review of this matter, we find that
the magistrate has properly determined the facts and applied
the appropriate law. Therefore, we adopt the magistrate's
decision as our own, including the findings of fact and
conclusions of law contained therein. In accordance with the
magistrate's decision, we grant relator's request for a writ of
mandamus.
Id. at ¶ 2-8.
{¶ 31} For the same reasons this court determined that Cordell was entitled to an
award of TTD compensation despite the fact that he tested positive for drugs in a post-
accident drug screening, relator herein, likewise, remained eligible for an award of TTD
compensation. This court has expressly acknowledged that its decision in PaySource did
not address the relevant case law and carries no weight whatsoever. The pertinent issue
involves the reason relator was without wages. Was it because her supervisor accidentally
started her machine to cycle and broke her arm or was it because she smoked marijuana?
The employer does not argue that her use of marijuana adversely affected her judgment.
Inasmuch as there is no challenge to the medical evidence relator submitted in support of
her application for TTD compensation, it is this magistrate's decision that this court
should grant a writ of mandamus ordering the commission to vacate its order which
denied relator an award of TTD compensation, should vacate the order finding that she
was overpaid TTD compensation, and the commission should issue a new order finding
that relator remained eligible for that award.
/S/ MAGISTRATE
STEPHANIE BISCA
No. 14AP-717 20
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).