State ex rel. Hamilton v. Indus. Comm.

[Cite as State ex rel. Hamilton v. Indus. Comm., 2021-Ohio-1824.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Tonia E. Hamilton, :
Relator, :
No. 19AP-510
v. :
(REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on May 27, 2021
On brief: Agee Clymer Mitchell & Portman, and Jay W.
Dixon, for relator.
On brief: Dave Yost, Attorney General, Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
On brief: G. Gary Tyack, Prosecuting Attorney, and
Theresa M. Dean, for respondent Franklin County
Commissioners.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Tonia E. Hamilton, brings this original action seeking a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate
its order entered August 14, 20171 denying her application for temporary total disability
("TTD") compensation and enter a new order granting such compensation.
1 Findings mailed August 18, 2017.
No. 19AP-510 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53 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 deny
claimant's request for a writ of mandamus. The magistrate determined the commission did
not abuse its discretion when it denied relator's application for TTD benefits because relator
voluntarily abandoned her employment by resignation effective December 14, 2016.
II. OBJECTION AND LEGAL ANALYSIS
{¶ 3} In her objection, relator claims that the magistrate failed to consider her
argument that the date of her resignation was March 14, 2017, the date she executed the
resignation form disposing of her grievance. We disagree.
{¶ 4} We acknowledge the magistrate's decision does not contain a clear and
definitive determination as to the date on which relator resigned. Nevertheless, we can
discern from the magistrate's discussion and application of State ex rel. Klein v. Precision
Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, that the magistrate agreed
with the finding of the staff hearing officer ("SHO") that relator resigned her employment
effective December 14, 2016, even though she did not execute the resignation until
March 14, 2017. In applying Klein to the facts in the stipulated record, the magistrate
determined that because the grievance procedure did not result in relator's reinstatement,
the evidence before the commission supported the SHO's finding that relator voluntarily
abandoned her employment on December 14, 2016, whether she resigned, or her employer
discharged her for cause. (Mag.'s Decision at ¶ 30-31, citing Klein at ¶ 19.)
{¶ 5} There is no dispute that relator's employer terminated her employment for
cause on December 14, 2016, but the termination was subsequently deemed a resignation
when appellant executed the March 14, 2017 resignation form in connection with her
grievance. The magistrate determined that it was not an abuse of discretion for the
commission to deny relator's TTD application because the March 14, 2017 resignation form
provided some evidence to support the SHO's finding that appellant voluntarily abandoned
her employment effective December 14, 2016. We agree with the magistrate.
No. 19AP-510 3
III. CONCLUSION
{¶ 6} On examination of the magistrate's decision, an independent review of the
record pursuant to Civ.R. 53, and consideration of relator's objection, we find the
magistrate has properly determined the facts and the applicable law. Accordingly, we
overrule relator's objection and adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law. In accordance with the magistrate's
recommendation, we deny the requested writ of mandamus.
Objection overruled;
writ of mandamus denied.
DORRIAN, P.J., and BEATTY BLUNT, J., concur.
_____________
No. 19AP-510 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Tonia E. Hamilton, :
Relator, :
v. : No. 19AP-510
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 23, 2020
Agee Clymer Mitchell & Portman, and Jay W. Dixon, for
relator.
Dave Yost, Attorney General, Eric J. Tarbox, for respondent
Industrial Commission of Ohio.
Ron O'Brien, Prosecuting Attorney, and Joseph C.
Mastrangelo, for respondent Franklin County Commissioner.
IN MANDAMUS
{¶ 7} Relator, Tonia E. Hamilton, brings this original action seeking a writ of
mandamus ordering respondent, the Industrial Commission of Ohio ("commission"), to
vacate its order entered August 14, 2017 denying her application for temporary total
disability ("TTD") compensation and enter a new order granting such compensation.
Findings of Fact:
{¶ 8} 1. Hamilton suffered injuries on February 16, 2012 during the course and
scope of her employment as a bus assistant for the Franklin County Board of
No. 19AP-510 5
Developmental Disabilities ("BDD"), an agency under respondent Franklin County
Commissioners ("FCC"). (Stip. at 1.)
{¶ 9} 2. Hamilton's claim was initially allowed for sprain left shoulder; left
shoulder supraspinatus tear; left shoulder infraspinatus tear; left shoulder supraspinatus
tendinopathy; left shoulder infraspinatus tendinopathy; left shoulder glenohumeral
synovitis; left subacromial subdeltoid bursitis. (Stip. at 4.)
{¶ 10} 3. A commission staff hearing officer ("SHO") issued an order on October 11,
2012 allowing an additional condition, substantial aggravation of pre-existing left shoulder
degenerative joint disease. (Stip. at 5.)
{¶ 11} 4. A commission district hearing officer ("DHO") issued an order on
September 1, 2016 allowing an additional condition, left shoulder diceps tendinopathy.
(Stip. at 6-7.)
{¶ 12} 5. Hamilton filed her application on April 3, 2017 requesting TTD) from
January 12, 2017 forward to continue with supporting medical documentation. (Stip. at
42.)
{¶ 13} 6. A DHO heard the application and granted Hamilton's application for TTD
by order mailed June 14, 2017. (Stip. at 43-45.)
{¶ 14} 7. FCC appealed the DHO's grant of TTD and an SHO heard the matter on
August 14, 2017. (Stip. at 46.)
{¶ 15} 8. Concurrently with her administrative pursuit of TTD compensation,
Hamilton was the object of a workplace disciplinary process initiated by her employer. This
began with a notice of pre-disciplinary meeting issued September 28, 2016. (Stip. at 8.)
The allegations involved falsification of time records resulting in excess pay. BDD
superintendent Jed W. Morison eventually issued a letter notifying Hamilton that her
employment was terminated effective December 14, 2016. (Stip. at 16.) Hamilton
unsuccessfully contested her dismissal through the contractual grievance process and
before the State Personnel Board of Review.
{¶ 16} 9. The grievance process did result in a mediation hearing on March 14, 2017,
at which Hamilton agreed to a resignation in lieu of termination, with an effective date of
December 14, 2016. (Stip. at 50.) To effectuate this agreement, the parties executed a
document captioned "Resignation Form" with a BDD header. The document states in
No. 19AP-510 6
pertinent part as follows: "I do hereby voluntarily submit my resignation effective the end
of the work day on 12/14/2016." (Stip. at 41.) It is signed by Hamilton with a signature
date of "12/14/16" and by the employer representative, David Ott, with a signature date of
"3/14/17." (Stip. at 41.) In her TTD proceedings, Hamilton submitted an affidavit dated
August 24, 2017 clarifying that she did not sign the resignation form until the day of
mediation, March 14, 2017. (Stip. at 50.) Neither the commission nor FCC dispute that
this is the correct day of execution by both signatories to the resignation agreement.
Hamilton does not dispute that the plain language of the resignation agreement calls for
her resignation to be voluntary and effective on the earlier date but maintains that she
consented to those terms under duress because her union representative urged her to resign
due to the certainty of an unsuccessful outcome in her grievance process.
{¶ 17} 10. The SHO hearing on August 14, 2017 focused on FCC's assertion that
Hamilton had voluntarily abandoned her employment through resignation. The SHO
accepted this argument and issued an order on August 18, 2017, vacating the DHO's order
and finding that voluntary abandonment of employment precluded a TTD award:
The Injured Worker was terminated from employment by the
Employer on 12/14/2016 pursuant to a progressive
disciplinary process * * *. The Employer complied with the
disciplinary process specified in the binding collective
bargaining agreement between the Union and the Employer
* * *. After a second pre-disciplinary hearing was held in the
matter on 10/28/2016, it was determined there was just cause
to discipline the Injured Worker (Pursuant to the collective
bargaining agreement, an employee may be terminated or
discharged for "just cause.") On 12/14/2016 the Employer's
Superintendent issued a letter terminating the Injured
Worker's employment effective as of 12/14/2016. The Injured
Worker also submitted her voluntary resignation on
12/14/2016 as set forth on the "Resignation Form" she signed
on said date declaring her intention to voluntarily resign
effective as of the end of the work day on 12/14/2016.
Subsequently, the Injured Worker submitted a grievance on
01/13/2017 contesting the Employer's 12/14/2016
termination decision. On 01/18/2017, the Employer's
Director of Transportation denied the Injured Worker's
grievance, finding there was evidence or just cause supporting
a termination of employment. Pursuant to the collective
bargaining agreement, the Injured worker filed an appeal to
the Director of Transportation's determination and sought
No. 19AP-510 7
mediation in the matter. Ultimately, after further negotiation
between the parties, a solution was reached whereby the
Injured Worker agreed to withdraw her grievance and
voluntarily resign from employment as she had previously set
forth on her 12/14/2016 Resignation Form, and the Employer
accepted the Injured Worker's 12/14/2016 voluntarily [sic]
resignation and agreed not to classify her departure from
employment as a "termination." The Employer's signed
acceptance of the Injured Worker's voluntary resignation is
dated 03/14/2017.
The Hearing 0fficer denies temporary total disability
compensation based on a finding of voluntarily [sic]
abandonment. * * *
The Injured Worker voluntarily resigned her employment on
12/14/2016 as set forth on the "Resignation Form" she signed
on said date declaring her intention to voluntarily resign
effective as of the end of the work day on 12/14/2016.
Pursuant to an agreement that was eventually reached by the
parties, the Employer executed on 03/14/2017 a signed
acceptance of the Injured Worker's resignation and backdated
it to 12/14/2016 in accordance with the date the Injured
Worker completed the "Resignation Form." * * *
The Injured Worker asserts that the effective date of her
resignation should be 03/14/2017, which is the date the
Employer accepted in writing the Injured Worker's
resignation. However, the Employer's acceptance of
resignation incorporates the 12/14/2016 "Resignation Form,"
and it is this specific form and the Injured Worker's voluntary
resignation on 12/14/2016 that was accepted by the
Employer.
For these reasons, the Injured Worker's request for temporary
total disability compensation is denied.
(Stip. at 46-47.)
{¶ 18} 11. The commission refused Hamilton's appeal from the SHO's order, then
refused continuing jurisdiction by order dated November 14, 2017. (Stip. at 53.)
{¶ 19} 12. Hamilton filed her complaint in the present mandamus action on
August 2, 2019.
No. 19AP-510 8
Discussion and Conclusions of Law:
{¶ 20} 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).
{¶ 21} This case primarily turns on whether the commission's finding of voluntary
abandonment is legally supported. The sole disputed evidentiary point is the actual date
on which Hamilton signed the resignation form. The SHO went to some effort to concoct a
timeline that the magistrate now rejects. Even under the lenient evidentiary standard
outlined above, there is no evidence to conclude, nor reason to speculate, that the decision
to have Hamilton backdate her signature from March 14, 2017 to December 16, 2016 was
anything other than a clumsy belt-and-suspenders effort to entrench the effective date of
her voluntary resignation on the earlier date. The magistrate will analyze the commission's
order with the factual premise that Hamilton executed a document on March 14, 2017
signifying her intent to voluntarily resign her employment with an effective date of
December 16, 2016.
{¶ 22} The question of law in this matter therefore presents as follows: Does an
involuntary termination announced by the employer on December 16, 2016, followed by a
grievance process that did not result in reinstatement and coupled with a voluntary
resignation tendered by the employee on March 14, 2017 (but by its express terms made
effective on December 16, 2016), preclude an award of TTD after the earlier date?
{¶ 23} 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
No. 19AP-510 9
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 treating
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. Timken Co., 10th Dist. No. 18AP-261, 2019-Ohio-
3013, ¶ 25. (Mag.'s Decision appended to Court's Decision.)
{¶ 24} An older line of cases from the Supreme Court of Ohio 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.
{¶ 25} 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
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
No. 19AP-510 10
resulted from termination of employment for violation of work rules that clearly define a
dischargeable offense, from incarceration, or from retirement. Id. at ¶ 19.
{¶ 26} 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.
{¶ 27} The magistrate first concludes H.B. 81 does not apply to the present case, in
which 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. Article II, Section 28 of the Ohio Constitution prohibits the retroactive impairment
of vested substantive rights, although the General Assembly may make retroactive any
legislation that is merely remedial in nature. State v. Consilio, 114 Ohio St.3d 295, 2007-
Ohio-4163, ¶ 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. 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.
{¶ 28} 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
No. 19AP-510 11
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
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).
{¶ 29} 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
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 or denial of TTD affects a substantive right. The commission decided that
right under the governing law as it perceived it, Hamilton 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.
{¶ 30} The magistrate accordingly turns to the most recent Supreme Court case,
Klein, to ascertain whether the commission abused its discretion in denying TTD after the
date of Hamilton's termination. 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.
{¶ 31} Although Klein was decided in September 2018, after the commission
rendered its final order in the present case in July of that year, governing cases, unlike
statutes, are presumed to apply retrospectively. "The general rule is that a decision of a
No. 19AP-510 12
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." Peerless
Elec. Co. v. Bowers, 164 Ohio St. 209, 210 (1955). The magistrate applies Klein to the
determination that Hamilton voluntarily abandoned her employment on December 16,
2016, whether that separation occurred due to termination for cause or voluntary
resignation. The test in Klein prohibits TTD in all cases of voluntary abandonment and
clearly covers instances of termination for cause or voluntary resignation. Klein at ¶ 19.
{¶ 32} 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
did not abuse its discretion in denying Hamilton's application for TTD compensation. It is
therefore the magistrate's decision and recommendation that the court deny the requested
writ of mandamus.
/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).