State ex rel. Walmart, Inc. v. Hixson

[Cite as State ex rel. Walmart, Inc. v. Hixson, 2021-Ohio-3802.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Walmart, Inc., :
Relator, :
No. 19AP-323
v. :
(REGULAR CALENDAR)
Dianna L. Hixson et al., :
Respondents. :
D E C I S I O N
Rendered on October 26, 2021
On brief: Roetzel & Andress, L.P.A., Douglas E. Spiker,
Timothy J. Webster, and Monica L. Frantz, for relator.
On brief: Nager, Romaine & Schneiberg, Co., L.P.A., and
James Zink, for respondent Dianna L. Hixson.
On brief: Dave Yost, Attorney General, Jacquelyn McTigue,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relator, Walmart, Inc., commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to partially vacate its order granting temporary total disability ("TTD") compensation to
respondent, Dianna L. Hixson, and to enter a new order denying such compensation for the
contested period.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
No. 19AP-323 2
conclusions of law, which is appended hereto. The magistrate recommends this court grant
relator's request for a writ of mandamus and order the commission to vacate its order
awarding Hixson TTD compensation after March 6, 2018 and enter an order awarding such
compensation only up to that date. The commission has filed the following two objections
to the magistrate's decision:
Objection No. 1:
The magistrate erred in relying on State ex rel. Klein v.
Precision Excavating & Grading Company, 155 Ohio St.3d 78,
2018-Ohio-3890, 119 N.E.3d 386, and applying it
retrospectively to a previously adjudicated administrative
decision.
Objection No. 2:
The magistrate exceeded the scope of his review and committed
error by not providing the commission an opportunity to re-
evaluate the weight and credibility of the evidence under the
new legal standard not in existence at the time the commission
issued its decision.
{¶ 3} Hixson has filed the following objection to the magistrate's decision:
The Magistrate erred in granting Relator's request for a writ of
mandamus by finding that State ex rel. Klein v. Precision
Excavating & Grading Co. applied retroactively and in
ordering the Industrial Commission to grant TT only up to
March 6, 2018 in lieu of referring back for further proceedings.
{¶ 4} As the magistrate's decision notes, Hixson sustained a work-related injury
during the course of her employment at Walmart. Hixson's workers' compensation claim
was originally allowed for left shoulder sprain/strain; left wrist sprain/strain; and left wrist
contusion. Hixson later filed an application requesting TTD compensation and additional
allowed conditions. Following a hearing, a staff hearing officer ("SHO") issued a decision
granting Hixson's application for additional allowed conditions and awarding Hixson TTD
compensation for the closed period from September 11, 2017 to March 6, 2018. The SHO
concluded that Hixson voluntarily retired on March 6, 2018, when she notified Walmart
she was retiring. The SHO found Hixson's retirement to be "age related and a bar to further
[TTD] compensation," as Hixson testified that "she first intended to retire due to turning
65 on 12/01/2017." (SHO Decision at 2.)
No. 19AP-323 3
{¶ 5} On June 26, 2018, the commission issued an order vacating the SHO's order.
The commission concluded that Hixson was entitled to TTD compensation from
September 11, 2017 through May 12, 2018 and continuing thereafter upon submission of
supporting medical evidence. Relying on State ex rel. Pretty Prods., Inc. v. Indus. Comm.,
77 Ohio St.3d 5 (1996), the commission held that Hixson did not voluntarily abandon her
employment on March 6, 2018, as Hixson was "at that time temporarily and totally disabled
from her former position of employment due to the conditions allowed in this claim."
(Comm. Decision at 2.) Walmart filed its complaint in mandamus on May 14, 2019.
{¶ 6} The magistrate observed that an older line of cases from the Supreme Court
of Ohio, including State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71,
2008-Ohio-499; State rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-
Ohio-1951, and Pretty Prods., held that when a claimant was disabled at the time of
retirement or other termination of employment, the inability to work due to the allowed
conditions overrode any voluntary aspect of the subsequent unemployment. See Pretty
Prods. at 7, quoting State ex rel. Brown v. Indus. Comm., 68 Ohio St.3d 45, 48 (1993)
(holding 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' "); OmniSource Corp. at ¶ 10; Reitter Stucco at ¶ 10. The
magistrate further observed that the Supreme Court overruled Reitter Stucco and
OmniSource and partially overruled Pretty Prods. in State ex rel. Klein v. Precision
Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, decided September 27,
2018. Klein held 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." Id. at ¶ 29.
{¶ 7} The magistrate determined that R.C. 4123.56(F), which became effective
September 15, 2020, did not apply retroactively to the present case. However, the
magistrate concluded that Klein did apply retroactively, pursuant to the general rule that a
Supreme Court decision overruling a former decision is retrospective in its operation. As
such, the magistrate applied Klein and determined that the commission abused its
discretion by awarding TTD compensation beyond Hixson's voluntary retirement date.
No. 19AP-323 4
{¶ 8} The commission's first objection and the first part of Hixson's objection
assert that the magistrate erred by applying Klein retroactively. Respondents contend the
magistrate failed to address or apply the exceptions to the general rule regarding retroactive
application of governing case law.
{¶ 9} In Peerless Elec. Co. v. Bowers, 164 Ohio St. 209 (1955), the court stated the
"general rule" that "a decision of a court of supreme jurisdiction overruling a former
decision is retrospective in its operation, and the effect is not that the former was bad law,
but that it never was the law." Id. at 210. "The one general exception to this rule is where
contractual rights have arisen or vested rights have been acquired under the prior decision."
Id. Another exception to the general rule exists "in those instances in which a court
expressly indicates that its decision is only to apply prospectively." Roberts v. Treasurer,
147 Ohio App.3d 403, 411 (10th Dist.2001). Accord State ex rel. Bosch v. Indus. Comm., 1
Ohio St.3d 94, 98 (1982); Lakeside Ave. L.P. v. Cuyahoga Cty. Bd. of Revision, 85 Ohio
St.3d 125, 127 (1999). Respondents contend these exceptions are applicable in the present
case.
{¶ 10} The commission asserts that Hixson acquired a vested right under Pretty
Prods. to receive TTD compensation beyond her voluntary retirement date. A right is
"vested" when "it 'so completely and definitely belongs to a person that it cannot be
impaired or taken away without the person's consent.' " Harden v. Ohio Atty. Gen., 101
Ohio St.3d 137, 2004-Ohio-382, ¶ 9, quoting Black's Law Dictionary 1324 (7th Ed.1999).
"A 'vested right' can 'be created by common law or statute and is generally understood to
be the power to lawfully do certain actions or possess certain things; in essence, it is a
property right.' " State ex rel. Jordan v. Indus. Comm., 120 Ohio St.3d 412, 2008-Ohio-
6137, ¶ 9, quoting Washington Cty. Taxpayers Assn. v. Peppel, 78 Ohio App.3d 146, 155
(4th Dist.1992).
{¶ 11} However, "a right does not vest unless it constitutes more than a 'mere
expectation or interest based upon an anticipated continuance of existing law.' " Roberts at
411, quoting In re Emery, 59 Ohio App.2d 7, 11 (1st Dist.1978). See In re Emery at 11, citing
Hatch v. Tipton, 131 Ohio St. 364 (1936) (stating that a "right, not absolute but dependent
for its existence upon the action or inaction or another, is not basic or vested"). Hixson's
alleged right to receive TTD compensation beyond her voluntary retirement date depended
No. 19AP-323 5
for its existence on Reitter Stucco, OmniSource, and Pretty Prods. continuing to remain
good law. Accordingly, Hixson did not acquire a vested right to TTD compensation
pursuant to Pretty Prods.
{¶ 12} The commission further asserts that its June 26, 2018 decision provided
Hixson with a vested right to receive TTD compensation pursuant to the terms stated in the
commission's order. However, a commission's order awarding TTD compensation may be
vacated by this court in an action for mandamus. See State ex rel. Medcorp, Inc. v. Ryan,
10th Dist. No. 06AP-1223, 2008-Ohio-2835, ¶ 8; State ex rel. Gen. Motors Corp., v. Indus.
Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, ¶ 9 (stating that "a writ of mandamus may
lie if the public entity has abused its discretion in carrying out its duties"); State ex rel.
Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 65 (1975) (stating that "[a] mandatory writ
may issue against the Industrial Commission if the commission has incorrectly interpreted
Ohio law"). Accordingly, as long as the commission's order could be vacated, it did not
necessarily provide Hixson with a vested right to TTD compensation. Compare Sharp v.
Leiendecker, 8th Dist. No. 87307, 2006-Ohio-5737, ¶ 14 (holding that "[a]s long as the
possibility existed that the court's summary judgments could be reversed, the estates had
no vested rights" in the summary judgments); Mortensen v. Intercontinental Chem. Corp.,
178 Ohio App.3d 393, 2008-Ohio-4723, ¶ 23 (1st Dist.) (holding that "Mortensen did not
have a vested right in the judgment on the jury's verdict until he had exhausted his direct
appeal").
{¶ 13} The commission notes the magistrate found that an "award of TTD reflects a
substantive right." (Mag. Decision at 7.) The commission argues that Klein should "not be
applied retroactively as it involves the same substantive right." (Comm. Objs. at 7.)
However, "[s]ubstantive and vested rights * * * are not synonymous." Viers v. Dunlap, 1
Ohio St.3d 173, 176 (1982), overruled in part on other grounds in Wilfong v. Batdorf, 6
Ohio St.3d 100 (1983), paragraph three of the syllabus. See Black's Law Dictionary 1520
(10th Ed.2014) (defining a substantive right as a "right that can be protected or enforced by
law; a right of substance rather than form"). Thus, the magistrate's conclusion that TTD
compensation reflected a substantive right did not equate to a finding that Hixson had a
vested right to receive TTD compensation beyond her voluntary retirement date.
No. 19AP-323 6
{¶ 14} The commission further asserts that, even if the Peerless exception does not
apply in the present case, this court could choose to apply Klein only prospectively. While
"the general rule in Ohio is that a decision will be applied retroactively unless retroactive
application interferes with contract rights or vested rights under the prior law," a court
possesses "discretion to impose its decision only prospectively after considering whether
retroactive application would fail to promote the rule within the decision and/or cause
inequity." DiCenzo v. A Best Prods. Co., 120 Ohio St.3d 149, 2008-Ohio-5327, ¶ 14. A court
may apply a decision prospectively " ' "as a means of avoiding injustice in cases dealing with
questions having widespread ramifications for persons not parties to the action." ' " Id. at
¶ 12, quoting Minister Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 459,
2008-Ohio-1259, ¶ 30, quoting Hoover v. Franklin Cty. Bd. of Commrs., 19 Ohio St.3d 1, 9
(1985) (Douglas, J., concurring). The commission asserts that retroactive application of
Klein would cause injustice to all claimants whose TTD compensation was previously
adjudicated under Pretty Prods.
{¶ 15} Klein observed that Reitter Stucco and OmniSource, which both relied on
Pretty Prods. for their holdings, "contradict[ed] a fundamental tenet of temporary-total-
disability compensation: that the industrial injury must cause the worker's loss of
earnings." Klein at ¶ 18, citing McCoy at ¶ 35. Even after Reitter Stucco and OmniSource,
the Supreme Court "adhered to the long-standing 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." Klein at ¶ 28, citing
State ex rel. James v. Wal-Mart Stores, Inc., 149 Ohio St.3d 700, 2017-Ohio-1426, ¶ 16.
Notably, in State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, the
Supreme Court held that a claimant who chose to retire and abandon the workforce was
not eligible for TTD compensation. Pierron at ¶ 11 (where the claimant was given the option
to retire or be laid off, and the claimant chose retirement, the claimant could not "credibly
allege that his lack of income from 2001 and beyond [was] due to industrial injury").
{¶ 16} Reitter Stucco and OmniSource both concerned claimants who were
discharged from employment after a workplace injury. Klein concluded that abandoning
Reitter Stucco and OmniSource "would not jeopardize any reliance interests," as it was
No. 19AP-323 7
"highly unlikely that an injured worker currently receiving temporary-total-disability
compensation would instigate his termination by violating a workplace rule based on the
hope that he would continue to receive benefits under Reitter Stucco and OmniSource."
Klein at ¶ 27. Similarly, it seems unlikely that an injured worker receiving TTD
compensation prior to Klein would choose to retire based on the hope that they would
continue to receive their TTD compensation pursuant to Reitter Stucco, OmniSource, and
Pretty Prods. Indeed, as the present case demonstrates, Hixson chose to retire for age
related reasons, not based on a reliance on Pretty Prods.
{¶ 17} The commission fails to demonstrate that retroactive application of Klein
would result in widespread injustice to non-parties. Retroactive application of Klein
promotes the fundamental tenet of TTD compensation: that the industrial injury must
cause the wage loss. Accordingly, the instant case does not present the exceptional
circumstances which would justify prospective only application of Klein. See DiCenzo at
¶ 28 (stating that "prospective only application is justified only under exceptional
circumstances"). See also State ex rel. Cugini v. Timken Co., 10th Dist. No. 18AP-261, 2019-
Ohio-3013, ¶ 6, 10 (applying Klein retroactively, albeit without analysis, to conclude that
relator was ineligible for TTD compensation beyond his voluntary retirement date).
{¶ 18} Respondents also assert that the following language demonstrates Klein
intended for its holding to apply only prospectively:
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 * * * quoting State ex rel.
Brown v. Indus. Comm., 68 Ohio St.3d 45, 48 (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 * * *.
Klein at ¶ 30.
{¶ 19} The quoted language from Klein does not amount to an express indication
that Klein was to have prospective only application. Rather, the quoted language simply
identifies the portion of Pretty Prods. which was being overruled by Klein. When the
No. 19AP-323 8
Supreme Court intends for a case to have prospective only application, it expressly indicates
as such. See In re LMD Integrated Logistic Servs., 155 Ohio St.3d 137, 2018-Ohio-3859,
¶ 27-31 (stating that "[a]ccordingly, we apply today's decision prospectively"); Beaver
Excavating Co. v. Testa, 134 Ohio St.3d 565, 2012-Ohio-5776, ¶ 43 (finding the decision
"appropriate for prospective-only application"); Bosch at 98 (stating that "[i]n the absence
of a specific provision in a decision declaring its application to be prospective only * * * the
decision shall be applied retrospectively as well"). As Klein did not expressly indicate that
it was to be applied prospectively, Klein must be applied retrospectively.
{¶ 20} Based on the foregoing, we overrule the commission's first objection and the
first part of Hixson's objection to the magistrate's decision.
{¶ 21} The commission's second objection and the second half of Hixson's objection
assert that, even if the magistrate properly applied Klein in the present case, the magistrate
erred by recommending that this court issue a full writ of mandamus. Respondents contend
that this court should issue a limited writ and refer the matter back to the commission for
it to consider the evidence in light of Klein.
{¶ 22} The commission, not this court, is the exclusive evaluator of weight and
credibility of evidence, and determination of disputed facts is within the final jurisdiction
of the commission. State ex rel. Perry v. Indus. Comm., 10th Dist. No. 06AP-312, 2007-
Ohio-4687, ¶ 19. "Voluntary abandonment of employment is primarily a question of intent"
and the presence of that intent is "a factual determination for the commission." Klein at
¶ 39.
{¶ 23} However, the record demonstrates the commission weighed the relevant
evidence and found that Hixson retired on March 6, 2018. The SHO concluded that Hixson
voluntarily abandoned her employment on March 6, 2018 "when she gave notice to the
Employer that she [was] 'retiring.' " (SHO Decision at 2.) The stipulated record contains
Hixson's note informing Walmart that she was retiring from her employment effective
immediately on March 6, 2018. The SHO found Hixson's retirement to be age related. The
commission relied on Pretty Prods. to hold that Hixson did not " 'voluntarily retire' or
'voluntarily abandon her employment' on or about 03/06/2018, when she notified the
Employer she was retiring from Walmart, as she was at that time temporarily and totally
disabled from her former position of employment." (Comm. Decision at 2.)
No. 19AP-323 9
{¶ 24} Thus, although the commission applied Pretty Prods. to the facts of the case,
the commission recognized only March 6, 2018 as Hixson's retirement date. There is some
evidence in the record to support the commission's finding that Hixson retired on March 6,
2018 when she notified Walmart of her intent to retire. Accordingly, as respondents fail to
demonstrate there is a disputed issue of fact in the present case, we see no reason to return
this matter to the commission. See State ex rel. McGee v. Indus. Comm., 69 Ohio St.3d 370,
373 (1994). The magistrate properly recommended this court issue a full writ of mandamus.
{¶ 25} Based on the foregoing, we overrule the commission's second objection and
the second part of Hixson's objection to the magistrate's decision.
{¶ 26} Following our independent review of the record, pursuant to Civ.R. 53, we
find 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 Walmart's request for a writ of mandamus. The commission is hereby ordered to
vacate the portion of its order awarding Hixson TTD compensation after March 6, 2018,
and to enter an order awarding such compensation only up to March 6, 2018.
Objections overruled;
writ of mandamus granted.
KLATT and MENTEL, JJ., concur.
_________________
No. 19AP-323 10
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Walmart, Inc., :
Relator, :
v. : No. 19AP-323
Dianna L. Hixson et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 17, 2020
Roetzel & Andress, L.P.A., Douglas E. Spiker, Timothy J.
Webster, and Monica L. Frantz, for relator.
Nager, Romaine & Schneiberg, CO., L.P.A., and James Zink,
for respondent Dianna L. Hixson.
Dave Yost, Attorney General, Sherry M. Phillips, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 27} Relator, Walmart, Inc., brings this original action seeking a writ of
mandamus ordering respondent, the Industrial Commission of Ohio ("commission"), to
partially vacate its order entered June 6, 2018 granting temporary total disability ("TTD")
to respondent, Dianna L. Hixson, and enter a new order denying such compensation for the
contested period.
No. 19AP-323 11
Findings of Fact:
{¶ 28} 1. Hixson suffered injuries on August 2, 2017 during the course and scope of
her employment with Walmart. Hixson's claim was initially allowed for left shoulder
sprain/strain; left wrist sprain/strain; left wrist contusion. (Stip. at 34.)
{¶ 29} 2. Hixson filed her application on November 14, 2017 requesting TTD
compensation commencing September 11, 2017 and additional allowed conditions.
{¶ 30} 3. A district hearing officer ("DHO") denied Hixson's application for TTD
on January 26, 2018, and disallowed Hixson's claim for additional allowed conditions,
deeming them causally unrelated to her industrial injury.
{¶ 31} 4. Hixson appealed the DHO's denial of TTD and a staff hearing officer
("SHO") heard the matter on March 26, 2018.
{¶ 32} 5. Hixson's work history after her injury is not fully developed in the record,
but a treating physician's report after an August 30, 2017 examination states that "[s]he
has been working strict nonuse of the left arm." (Stip. at 30.) This may refer to shoulder
conditions that predated her accident. The company account of her exit interview process
gives a "Last Worked Date" of February 9, 2018, but it is unclear if this reflects actual
presence on the job. Hixson testified before the SHO that before her injury, she had
planned to retire on December 1, 2017 when she reached age 65.
{¶ 33} 6. Hixson formally notified Walmart on March 6, 2018 that she was retiring
from employment effective immediately.
{¶ 34} 7. The SHO mailed an order on March 29, 2018, vacating the DHO's order
and awarding TTD from September 11, 2017 through March 6, 2018, terminating
compensation on that date based upon Hixson's voluntary abandonment of employment
through retirement. The SHO allowed additional claims for left rotator cuff tear;
impingement syndrome, left; bursitis left shoulder; cervical sprain; and left shoulder
superior labrum anterior to posterior (SLAP) tear. (Stip. at 37.)
{¶ 35} 8. Hixson filed her notice of appeal from the SHO's order seeking a hearing
before the full commission and an award of TTD forward from March 6, 2018.
{¶ 36} 9. Walmart also appealed the SHO's order to the full commission in order
to contest the TTD award of limited duration up to March 6, 2018.
No. 19AP-323 12
{¶ 37} 10. The commission initially declined to hear Walmart's appeal, but on
April 24, 2018 withdrew the refusal, and on May 1, 2018, accepted both parties' appeals
for further hearing.
{¶ 38} 11. After the hearing on May 29, 2018, the commission vacated the SHO's
order in the case. The commission ordered TTD compensation paid from September 11,
2017 through May 12, 2018 and continuing thereafter upon the submission of supporting
medical evidence. The commission again allowed additional conditions: left rotator cuff
tear; impingement syndrome, left; bursitis left shoulder; left shoulder SLAP tear; and
cervical sprain. (Stip. at 55.)
{¶ 39} With respect to the issue of voluntary abandonment, the commission order
states as follows:
It is specially found that the Injured Worker did not
"voluntarily retire" or "voluntarily abandon her employment"
on or about 03/06/2018, when she notified the Employer she
was retiring from Walmart, as she was at that time temporarily
and totally disabled from her former position of employment
due to the conditions allowed in this claim. State ex rel. Pretty
Products, Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996). (Stip.
at 55.)
{¶ 40} 12. Walmart filed its complaint in mandamus in this court on May 14, 2019.
Discussion and Conclusions of Law:
{¶ 41} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists
where the relator shows that the commission abused its discretion by entering an order that
is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26
Ohio St.3d 76 (1986). On the other hand, where the record contains some evidence to
support the commission's findings, there has been no abuse of discretion and mandamus
is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987).
Furthermore, questions of credibility and the weight to be given evidence are clearly within
the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio
St.2d 165 (1981).
No. 19AP-323 13
{¶ 42} This case presents an unusually narrow and focused legal issue to be
decided upon facts which, at this level of review, are essentially undisputed: Did Hixson
voluntarily abandon the workforce when she gave formal notice of her intent to retire
from Walmart on March 6, 2018? The matter is simplified because Walmart has not
raised here the arguments presented before the commission regarding the extent of
Hixson's disability and her entitlement to TTD for the period preceding her retirement.
{¶ 43} The parties and commission rely on different cases stating precedent from
the Supreme Court of Ohio, and a recent statutory enactment also bears on the question.
{¶ 44} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost where a claimant's injury prevents a return to the former position of
employment. Upon that predicate, TTD compensation shall be paid to a claimant until
one of four things occurs: (1) the claimant has returned to work; (2) the claimant's
treatment physician provides a written statement that the claimant is able to return to the
former position of employment; (3) work within the physical capabilities of the claimant
is made available by the employer or another employer; or (4) the claimant has reached
maximum medical improvement. R.C. 4123.56(A); State ex rel. Ramirez v. Indus.
Comm., 69 Ohio St.2d 630 (1982); State ex rel. Cugini v. Timkin Co., 10th Dist. No. 18AP-
261, 2019-Ohio-3013, ¶ 25 (Mag's decision appended to court's decision).
{¶ 45} An older line of cases from the Supreme Court states that, when a claimant
was disabled at the time of retirement or other termination of employment, the inability
to work due to allowed conditions was the essential factor, and overrode any facially
voluntary aspect of the subsequent unemployment. State ex rel. Reitter Stucco, Inc. v.
Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499; State ex rel. Pretty Prods., Inc. v.
Indus. Comm., 77 Ohio St.3d 5 (1996). In other words, "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." State ex rel. OmniSource Corp. v. Indus. Comm.,
113 Ohio St.3d 303, 2007-Ohio-1951, citing Pretty Products. Under this line of cases,
even if the abandonment appeared voluntary, there would still be a consideration of the
degree of disability at the date of termination. Reitter Stucco at ¶ 11, citing Pretty
Products.
{¶ 46} More recently, the Supreme Court returned to a restrictive view of whether
the allowed conditions must be the actual cause of the worker's loss of earnings. In State
No. 19AP-323 14
ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890,
¶ 17, decided September 27, 2018, the Supreme Court expressly overruled its prior
decisions in Reitter Stucco and OmniSource, and partially overruled Pretty Products,
finding those decisions were unworkable in application and led to disparate results. The
Supreme Court also concluded that its prior decisions improperly contradicted the
fundamental legislative tenet of eligibility for TTD compensation: the industrial injury
must be the cause of the worker's loss of earnings. Klein at ¶ 18. The court in Klein
installed a bright-line test that would apply to bar TTD in cases of voluntary
abandonment, without reference to the claimant's physical ability to work. This test
would apply across all circumstances, whether the purportedly voluntary abandonment
of the worker's position resulted from termination of employment for violation of work
rules that clearly define a dischargeable offense, from incarceration, or from retirement.
Id. at ¶ 19.
{¶ 47} The Ohio legislature then passed H.B. No. 81, which modified R.C. 4123.56
by adding the following entirely new language:
(F) If an employee is unable to work or suffers a wage loss as
the direct result of an impairment arising from an injury or
occupational disease, the employee is entitled to receive
compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has
suffered a wage loss as the direct result of reasons unrelated to
the allowed injury or occupational disease, the employee is not
eligible to receive compensation under this section. It is the
intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary
abandonment to a claim brought under this section.
(Emphasis added) R.C. 4123.56(F), effective Sept. 15, 2020.
{¶ 48} The first question to resolve in this case, then, is a determination of the
governing law, since the legal standards for TTD eligibility proposed by the parties based
on their preferred Supreme Court case law, and the subsequent enactments by the
legislature, would yield varying results. Most significantly, if H.B. 81 applies, it would
appear that after her retirement Hixson was not working because she had retired, and any
assessment of her ongoing injury, as required by Pretty Products and perhaps precluded
by Klein, is definitively excluded by the new statutory language of R.C. 4123.56(F).
No. 19AP-323 15
{¶ 49} Should the new statutory language of R.C. 4123.56(F), then, guide the result
in a mandamus action when both the original injury and all subsequent administrative
proceedings, including the filing of the present complaint in mandamus, took place before
the effective date of the statute? The magistrate concludes not.
{¶ 50} The retroactive validity of R.C. 4123.56(F) has yet to be examined by this or
any other court. In reviewing such legislative enactments, this court therefore undertakes
review as a matter of first impression. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-
4163, ¶ 8. R.C. 1.48 provides: "A statute is presumed to be prospective in its operation
unless expressly made retrospective." See Van Fossen v. Babcock & Wilcox Co., 36 Ohio
St.3d 100, 105 (1988). While Article II, Section 28 of the Ohio Constitution prohibits the
retroactive impairment of vested substantive rights, the General Assembly may make
retroactive any legislation that is merely remedial in nature. Consilio at ¶ 9, citing State v.
LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 13, and State ex rel. Slaughter v. Indus.
Comm., 132 Ohio St. 537, 542 (1937). Thus, courts apply a two-part test to evaluate
whether statutes may be applied retroactively. First, the court determines as a threshold
matter whether the statute is expressly made retroactive. Consilio at ¶ 10, citing LaSalle
at ¶ 14, citing Van Fossen, 36 Ohio St.3d 100, at paragraphs one and two of the syllabus.
Then, if the statute is clearly intended to be retroactive, the court determines under the
Ohio Constitution whether the statute is substantive or remedial, and if retroactive
application impairs a vested contractual right. Consilio at ¶ 10, citing LaSalle at ¶ 14; Hope
Academy Broadway Campus v. State Dept. of Edn., 10th Dist. No. 07AP-758, 2008-
Ohio-4694, ¶ 11-12.
{¶ 51} Applying principles of judicial restraint, the magistrate applies the above
test only to the specific facts and posture of the present case: Does the statute apply to
TTD awards in which both the injury and a final adjudication by the commission occurred
before the effective date of the new law?
{¶ 52} The magistrate concludes that the first factor is not met in the present case
because the legislature did not clearly express an intent for the new language of
R.C. 4123.56(F) to apply retroactively. The statute does specify that it is intended to
supersede past judicial decisions on the question, and those past decisions are therefore
a nullity going forward. The statute does not expressly say that it must be applied to cases
currently under consideration but on facts arising before enactment of the statute, or that
No. 19AP-323 16
past cases decided under former law are now wrongly decided. In the absence of such
specific language, the strong presumption against retroactivity must be applied. "[T]he
presumption against retroactive legislation is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than our Republic." State v. Walls, 96 Ohio
St.3d 437, 2002-Ohio-5059, ¶ 9, quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265
(1994).
{¶ 53} Even if the statute were taken as retroactive, it would not conform to the
constitutional limitation. A statute is impermissibly retroactive in effect if it takes away
or impairs rights that vested or accrued before the statute came into force, or it attaches
a new disability in respect to past transactions or considerations. State ex rel. Matz v.
Brown, 37 Ohio St.3d 279, 281 (1988). "A statutory provision that attaches a new
disability to a past transaction or consideration is not invalid unless the past transaction
or consideration is not invalid unless the past transaction or consideration created at least
a 'reasonable expectation of finality.' " Hope Academy, at ¶ 12, quoting Matz at 281. While
there is little precedent addressing the question, there is no reason to doubt that an award
of TTD reflects a substantive right. The commission decided that right under the
governing law as it perceived it, Walmart initiated the present action with similar
expectations, and the parties have argued the matter accordingly. To apply new statutory
law midstream would work more than a remedial change to the law.
{¶ 54} The magistrate accordingly turns to the most recent Supreme Court case,
Klein, to ascertain whether the commission abused its discretion in granting TTD past the
date of Hixson's retirement from Walmart. Klein makes clear that the Supreme Court was
eliminating the exceptions "carved out * * * to this voluntary-abandonment rule." Klein
at ¶ 16. The court expressly overruled those aspects of Reitter Stucco, OmniSource, and
Pretty Products analyzing the claimant's physical capacity to work. As a result, Klein
states that there need no longer be an inquiry, where the claimant has voluntarily
abandoned the workforce, regarding whether the employee was still disabled at the date
of termination. Klein at ¶ 16, overruling Reitter Stucco and Pretty Products.
{¶ 55} Although Klein was decided in September 2018, after the commission
rendered its final order in the present case in June of that year, governing cases, unlike
statutes, are presumed to apply retrospectively. "The general rule is that a decision of a
court of supreme jurisdiction overruling a former decision is retrospective in its
No. 19AP-323 17
operation, and the effect is not that the former was bad law, but that it never was the law."
Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 210 (1955). The commission decided the
present matter under the exception laid out in Pretty Products, which no longer applies
as of this writing. The magistrate applies Klein to determine that inquiry into Hixson's
physical capacity to work is no longer allowed when Hixson has voluntarily retired. The
commission therefore abused its discretion when it considered this factor and awarded
TTD.
{¶ 56} In summary, the magistrate reaches the following conclusions of law: first,
R.C. 4123.56(F), effective September 15, 2020, is not intended to be retroactive. Second,
retroactive application of R.C. 4123.56(F) to TTD claims adjudicated by the commission
before the effective date of the statute would be violative of the Ohio Constitution. Third,
application of Klein to the facts of this case compels a determination that the commission
abused its discretion in awarding TTD compensation to Hixson for the period post-dating
her voluntary retirement from Walmart. It is therefore the magistrate's decision and
recommendation that a writ of mandamus issue ordering the commission to vacate its
order awarding TTD compensation after March 6, 2018 and enter an order awarding such
compensation only up to that date.
/S/ MAGISTRATE
MARTIN L. DAVIS
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).