IN THE SUPREME COURT OF OHIO

State of Ohio, ex Rel.,Brian P. Schlegel,

Appellant,vs.

Stykemain Pontiac Buick GMC, Lt.

and

Case No. 2007-1757

On Appeal from theFranklin County Courtof Appeals, TenthAppellate District

Industrial Commission ofOhio,

Appellees*

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MERIT BRIEF OF APPELLANT BRIAN P. SCHLEGEL

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Brian R. Williams (0030922)(COUNSEL OF RECORD)WILLIAMS & REYNOLDS420 Madison Avenue, Suite 101Toledo, Ohio 43604PH: (419) 243-6610FX: (419) 243-8173

COUNSEL FOR APPELLANT, BRIAN P. SCHLEGEL

Andrew J. Alatis (0042401)(COUNSEL OF RECORD)Assistant Attorney General150 E. Gay St., 22nd FloorColumbus, OH 43215Telephone: (614) 466-6696Fax: (614) 752-2538

COUNSEL FOR APPELLEE, INDUSTRIAL COMIVIISSION OF OHI

9LLJAN 18 2008

CLERK OF COURTsUpNkAn^trro

Richard JohnsonEASTMAN & SMITH, LTD.P.O. Box 10032One SeaGate, 24th floorToledo, OH 43699-0032COUNSEL FOR APPELLEE, STYKEMAIN PONTIAC BUICK GMC, LT.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................:.. ii

STATEMENT OF FACTS ...................................................................................... 1

ARGUMENT ................:..........:.............................................................................. 3

Proposition of Law No. I

Applying Louisiana-Pacific Corp. v. Indus. Comm. (1995),72 Ohio St.3d 401 and State ex rel. Ohio Treatment Alliance v.Paasewe (2003), 99 Ohio St.3d 18, the Industrial Conunission of Ohioabuses its discretion when it refuses to overtum a denial of workerscompensation benefits based upon "voluntary abandonment ofemployment" based on absenteeism, where the evidence before itdemonstrates that the claimant had timely notified the employer that hewould be absent due to compensable injuries .............................................. 3

Proposition of Law No. II

Applying State ex rel. Pretty Products, Inc. v. Indus. Comm. (1996),77 Ohio St.3d 5. The Industrial Commission of Ohio abuses its discretionwhen it refuses to overturn a denial of workers compensation benefitsbased upon "voluntary abandonment of employment," where the evidencebefore it demonstraies that the claimant did not have the physical capacityfor employment at the time of the alleged abandonment ............................. 6

CONCLUSION ....................................................................................................... 9

CERTIFICATE OF SERVICE ................................................................................ 9

APPENDIX Appx. Page

Notice of Appeal to the Ohio Supreme Court (date) .............................................

Opinion of the Franklin County Court of Appeals(Oct. 24, 2003) ..................................................................................

Judgment Entry of the Franklin County Court of Appeals(September 18, 2007) .........................................................................

ii

TABLE OF AUTHORITIESPg. No.

1. . TABLE OF CASES

Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401 .................. 3-5

State ex rel Brown v. Indus. Comm. (1993), 68 Ohio St. 3d 45 ........:.................. 7

State ex rel. Luther v. Ford Motor Co., 113 Ohio St. 3d 144, 147 (Ohio 2007).... 8

State ex rel. Maxwell v. Industrial Commission (1959), 160 N.E.2d 346 ............. 8

State ex reL Ohio Treatment Alliance v. Paasewe (2003), 99 Ohio St.3d 18........ 5, 6

State ex rel. Omnisource Corp. v. Indus. Comm'n, 113 Ohio St. 3d 303(Ohio 2007) ................................................................................................... 8

State ex rel. Pretty Products, Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5......... 6, 7

State ex rel. Rouch Y. Eagle Tool & Mach. Co. (1986), 26 Ohio St.3d 197.......... 8

State ex rel. Schlegel v. Stykemain Pontiac Buick GMC, Ltd.,2007 Ohio 4810, (Ohio Ct. App. 2007) ....................................................... 4

Victory Baptist Temple, Inc. v. Indus. Comm. (1982), 2 Ohio App.3d 418.......... 8

H. TABLE OF STATUTES

Ohio Rev. Code Ann. § 4123.95 .............................................................................. 8

m

STATEMENT OF FACTS/STATEMENT OF THE CASE

All citations to the record refer to the Joint Stipulation of Evidence filed in the Court of

Appeals on January 22, 2007.

On or about January 25, Appellant was injured in a motor vehicle accident when a semi

lost control and hit him. Appellant complained of whiplash, severe lower back pain and leg pain,

and was diagnosed with lumbosacral sprain/strain (S/S), sacroiliac S/S, disc herniation, cervical

S/S, thoracic S/S, and shoulder S/S. (S. at 1). On May 17, 2006, he filed for Workers

Compensation benefits. (S. at 1).

Also on May 17, 2006, Appellant was terminated from his position by Appellee. In its

termination report, Appellee wrote the following:

LAST DAY WORKED 5-10-06 BRIAN FAILED TO REPORT FOR WORK ON5-11, 5-12, 5-15, 5-16, 5-17 WITHOUT CONTACTING HIS SUPERVISOR.TERMINATED OFFICIAL DO (SIC) TO VIOLATING ART III SECTION D OFEMPLOYEE MANUAL. SEVENTH OFFENSE VERBAL WARNING 2XPREVIOUS.

(S. at 45).

On June 1, 2006 the Administrator allowed certain of the claims and denied others.

Appellant appealed from the denial of benefits, and on July 13, 2006, a hearing was held before a

District Hearing Officer (DHO), resulting in modification of the Administrator's order, and the

denia] of Temporary Total Disability (TDD). (S. at 43). Appellant timely appealed from that

decision. (S. at 50). On August 15, 2006, the matter was heard before a Staff Hearing Officer

(SHO), who vacated the order of the DHO, allowed certain benefits, but denied TTD. (S. at 56).

The SHO made the following findings:

The Hearing Officer DENIES injured worker's request for payment of temporarytotal disability compensation as he is found to have voluntarily abandoned theworkforce. Pursuant to Louisiana-Pacific, the injured worker is not entitled totemporary total disability benefits because he was terminated from hisemployment on 5/17/06 due to violation of a written work policy that he wasaware would result in his termination. The Hearing Officer relies upon thetestimony of the employer regarding the singular off-work slip submitted to theemployer which took injured worker off of work from 5/1/06 through 5/8/06. TheHearing Officer also relies upon the written worlc policy, specifically, Article III

I

Section D, which indicates "Frequent absences or tardiness may result indisciplinary action or termination of employment." Under Article IV, Rules ofConduct, it clearly indicates an absence of (2) days without reporting to yoursupervisor will be considered a voluntary quit; Section N states: Failure to call inor report your intended absence and reason for absence within (2) hours afterstarting time; and Section U listed "Excessive tardiness or absenteeism." asgrounds for discipline. The Hearing Officer relies upon injured worker's signatureon the acknowledgment card, 12/6/05; which indicates that he is aware of theinformation in the Employee Manual. Finally, the Hearing Officer relies upon thetermination report, signed and dated, 5/17/06, which indicates injured worker'slast day worked was 5/10/06, and he failed to report for work on 5/11, 5/12, 5/15,5/16, and 5/17, without contacting his supervisor. It also indicates that this wasinjured worker's seventh offense and he had a verbal warning (2) timespreviously.

The Hearing Officer does not find injured worker's testimony persuasive that hehad, in fact, contacted the employer. The employer's file did not have any otheroff-work slips. Injured worker indicated that he "had copies of documentssubmitted to the employer", however, did not bring anything with him to today'shearing.

Therefore, the Hearing Officer finds the preponderance of the evidence supportsthe injured worker is found to have voluntaiily abandoned the work force andtemporary total disability benefits are DENIED.

(S. at 56-57).

While Appellant unfortunately did not bring to the hearing the evidence which he

possessed, the evidence was made part of the Stipulated Evidence that was placed before the

Commission, and consists of the following:

o WORK STATUS REPORT from Fort Wayne Neurological Center, dated May 16, 2006,

and faxed on that same date, stating that Appellant could not return to work beginning

5/16/06 through 7/5/06. (S. at 59, 60).

• ATTENDING PHYSICIAN'S RETURN TO WORK RECOMMENDATION RECORD,

dated May 12, 2006, and faxed to the employer on that same day, stating that Appellant

was totally incapacitated at that time and would be reevaluated on May 18, 2006. (S. at

61).

Appellant timely appealed the decision to the Commission. (S. at 68). In a

contemporaneous letter to the commission, Appellant brought the above evidence to the attention

2

of the Commission. (S. At 66-67). In spite of this evidence, the Commission refused to hear the

appeal. (S. at 69).

On November 29, 2006, Appellant filed a Mandamus action with the Franklin County

Court of Appeals. On September 18, 2007, the Court of Appeals, adopting the findings of fact

and conclusions of law in the magistrate's decision, denied the requested writ of mandamus. A

timely appeal to this Court followed.

ARGUMENT

APPELLANT'S PROPOSITION OF LAW NO. I

Applying Louisiana-Pacific Corp..v. Indus. Comm. (1995), 72 Ohio St.3d 401and State ex rel. Ohio Treatment Alliance Y. Paasewe (2003), 99 Ohio St.3d 18,the Industrial Conunission of Ohio abuses its discretion when it refuses tooverturn a denial of workers compensation benefits based upon "voluntaryabandonment of employment" based on absenteeism, where the evidence before itdemonstrates that the claimant had timely notified the employer that he would beabsent due to compensable injuries.

As set forth in the Statement of Facts/Statement of the Case, the asserted reason for

denial of Temporary Total Disability to Appellant was that he had voluntarily abandoned the

workforce by failing to provide notice to the employer that he would be absent due to injury, as

required by company rules. In fact, as further set forth in the statement of facts, the employer

received two notifications, the first on May 12, 2006, and the second on May 16, 2006, that

Appellant was totally disabled. Thus Appellant did not voluntarily abandon his employment.

In Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401 650 N.E.2d

469, the Ohio Supreme Court held that a claimant's violation of a written work rule or policy

will be considered tantamount to a voluntary abandonment of employment when the rule or

policy (1) clearly defined the prohibited conduct, (2) had been previously identified by the

employer as a dischargeable offense, and (3) was known or should have been known by the

employee.

At the hearing, the employer claimed to have only a single off-work slip in its file.

However, the off-work slips and accompanying documentation referenced in the statement of

3

facts, and included in the stipulated evidence before the commission, establish that they were

faxed to the employer, specifically, to Appellant's supervisor Brad, prior to Appellant's

termination. This is exactly what is required by article III, Section D, and article IV of the

employee manual. (S. at 46-48). Thus Appellant's claim should not have been barred under

Louisiana-Pacifac.

The Court of Appeals, however, rejected that argument because of Appellant's prior

absences.

The problem for relator includes the fact that relator had a long history of notshowing up for work and not calling in. The termination notice indicated that thishad occurred six times before and that relator had been warned about the problemtwo times before.

State ex rel. Schlegel v. Stykemain Pontiac Buick GMC, Ltd., 2007 Ohio 4810, P6 (Ohio Ct.

App. 2007).

The problem is, Appellee had not terminated Appellant following those prior absences. It

is purest speculation to suggest that, in the absence of the worlcers compensation-related

absences, Appellant would have been terminated.

The Court of Appeals' second basis for upholding the Commission was factually

erroneous in part:

A second problem is the fact relator, while representing himself early on, did notprovide any written proof that he put his employer on notice he would be missingwork on the five work days he missed immediately before being fired. Thecommission did not have to accept relator's word for this, especially since theemployer's personnel file contains no "off-work" slips and relator had a history ofmissing work without calling in.

State ex rel. Schlegel v. Stykemain Pontiac Buick GMC, Ltd., 2007 Ohio 4810, P7 (Ohio Ct.

App. 2007).

In fact, the Commission did not have to rely upon Appellant's word, because the evidence

before the Commission included copies of the relevant absence slips.

4

It follows from the above that the Court of Appeals' holding that Appellant's claim was

barred under Louisiana-Pacific was based upon speculation and a faulty understanding of the

evidence that was before the Comrnission.

Even if the instant circumstances could somehow be crammed into the Louisiana-Pacific

framework, the circumstances of this case falls squarely within the language of State ex rel. Ohio

Treatment Alliance v. Paasewe (2003), 99 Ohio St.3d 18. Paasewe dealt with the question of

under what circumstances a person purportedly terminated for violating an absence rule was still

entitled to TTD because the absence was related to his medical condition. In Paasewe, this court

found that the claimant had provided no such evidence, and held in favor of the employer. But

the court said the following:

[D]ischarge--like a voluntary resignation--does not automatically bar TTC. [Stateex rel. McCoy v. Dedicated Transport, Inc. (2002), 97 Ohio St.3d 25] involvedterminations deemed to be voluntary abandonments of employment because theywere the result of intentional misdonduct. This immediately distinguishes it fromthe present case, in which the discharge was not shown to be tantamount tovoluntary abandonment of employment and hence did not foreclose 'TTC. It iscritical, however, to recognize that neither McCoy nor an involuntary terminationrenders the fact of firing completely irrelevant. To the contrary, in situations suchas that now before us firing can still be material.Cognizant of the medical implications involved, we have carefully scrutinized--and will continue to carefully scrutinize--claims for TTC that are close in time to aclaimant's terrnination, particularly where the claimant either had been released orhad actually returned to the former position of employment. A determination oftemporary total disability inherently declares that a claimant is medically unable toreturn to his or her former job. Where a claimant works that job on Wednesdaymorning, is fired on Wednesday afternoon, and alleges on Thursday morning thathe or she is now temporarily and totally disabled, a single question emerges: whathappened in 12 hours to transform a nondisabling condition into a disabling one?It is a situation that is--and will remain--inherently suspicious. Aswe observed inupholding denial of TTC in [State ex rel. McClain v. Indus. Comm. (2000), 89Ohio St.3d 407],"[C]laimant reported for his regular shift on September 4, 1997, and did notcomplain of any work-prohibitive problems at that time. It was only after claimanttested positive for alcohol consumption that his condition suddenly became work-prohibitive."Medical evidence will, therefore, be pivotal in determining eligibility for TTCwhen a claimant is fired near the time of a claimed disability. If documentationcan, for example, indeed establish coincidental injury-related circumstances ordemonstrate that the claimant's return to work was not without continuingmedical problems, then the claimant may be able to sustain his or her burden ofproof.

5

Paasewe at 19, 20. (Some Internal citations omitted.)

In the instant case, there is absolutely no doubt that the absences specially noted by

Appellee in its termination report were related to Appellant's medical condition for which he has

received Workers Compensation benefits. The absence slips that were before the Commission

established that beyond dispute.' Furthermore, there is no indication whatsoever that the claim

for Workers Compensation benefits, filed the same day Appellant was fired, were simply an

afterthought to convert non-injury related causes for termination into injury-related causes. To

the contrary, all the evidence supports the fact that all of the injuries and their related absences

arose out of the accident.

APPELLANT'S PROPOSITION OF LAW NO. II

The Industrial Commission of Ohio abuses its discretion when it refuses tooverturn a denial of workers compensation benefits based upon "voluntaryabandonment of employment," where the evidence before it demonstrates that theclaimant did not have the physical capacity for employment at the time of thealleged abandonment. Applying State ex rel. Pretty Products, Inc. v. Indus.Comm. (1996), 77 Ohio St.3d 5.

In addition to the above, Appellant's contentions are supported by State ex rel. Pretty

Products, Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5. In Pretty Products, , the employee

suffered a worlc related injury and missed work on several occasions, excused by a doctor's slip.

When the employee failed to return to worlc without bringing in a doctor's note her position was

temiinated. The Industrial Commission found that the employee had left her position

involuntarily and was entitled to TTD compensation, and the appellate court affirmed. This court

reversed only because the Comniission's decision was unclear:

Another possible reading of the Commission's order is that the Comnvssionmodified the district hearing officer's order based on the belief that termination forunexcused absence could not support a finding of voluntary abandonment. This,too, is incorrect. In State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.(1995), 72 Ohio St. 3d 401, 650 N.E.2d 469, the claimant, as in the present case,was fired for violating a policy prohibiting three consecutive unexcused absences.

' Appellee asserts that only one of the slips found its way into Appellant'spersonnel file, But Appellee has never contended that the slips were not genuine.

6

We held that the claimant's discharge was voluntary, stating, "we find it difficultto characterize as 'involuntary' a termination generated by the claimant's violationof a written work rule or policy that (1) clearly defined the prohibited conduct, (2)had been previously identified by the employer as a dischargeable offense, and (3)was known or should have been known to the employee." Id. at 403, 650 N.E.2dat 471. However, there is an important distinction between Louisiana-Pacificand this case. In the former, there was no evidence that the claimant'sabsences were due to industrial injury, while in this case there is. Whetherthis distinction is ultimately outcome-determinative, however, cannot be decidedabsent clarification of the Commission's reasoning.

State ex rel. Pretty Prods. v. Industrial Comm'n, 77 Ohio St. 3d 5, 7-8 (Ohio 1996). Emphasis

added.

In addition to the clear distinction the court made between Louisiana-Pacific, where the

unexcused absences were not related to his industrial injury, and cases, such as the instant case,

where unexcused absences are related to the employees industrial injury, the court made an even

more important observation, one that should be dispositive for the instant case:

The timing of a claimant's separation from employment can, in some cases,eliminate the need to investigate the character of departure. For this to occur, itmust be shown that the claimant was already disabled when the separationoccurred. [A] claimant can abandon a former position or remove himself orherself from the work force only if he or she has the physical capacity foremployment at the time of the abandonment or removal."

State ex rel. Pretty Prods. v. Industrial Comm'n, 77 Ohio St. 3d 5, 7 (Ohio 1996), citing

State ex rel. Brown v. Indus. Comm. (1993), 68 Ohio St. 3d 45, 48. Emphasis added.

The above language clearly precludes a finding of voluntary abandonment of the

workforce in the instant case. The Attending Physician's Return to Work Recommendations

Record dated May 12, 2006, page 61 of the Stipulated Evidence, establishes that Relator was

totally incapacitated at the time he was terminated. Therefore, he could not have abandoned the

workforce at that time.

The strength, reach, and vitality of the above language was reaffirmed twice by this court

just last year:

A claimant who is already disabled when terminated is not disqualified fromtemporary total disability compensation. That is because "a claimant can abandona fonner position or remove himself or herself from the work force only if he or

7

she has the physical capacity for employment at the time of the abandonment orremoval." Once a claimant is disabled, "it is of no consequence that a subsequentevent may arise, such as the claimant's incarceration, which may further impair hisor her ability to worlc, because the subsequent event does not negate the causalrelationship between the work-related injury suffered by the claimant and his orher absence from the work force." Pretty Prods. expressly extended theseprinciples to discharges for violations of work rules.

State ex reL Omnisource Corp, v. Indus. Comm'n, 113 Ohio St. 3d 303, 305 (Ohio 2007).

Internal citations omitted.

Pretty Prods, incorporates two important principles. First, it reaffirmed that if aclaimant was already disabled when employment separation occurred, temporarytotal disability compensation was not foreclosed. Second, it observed that not allcases falling within the parameters of Louisiana-Pacific are the same. Where theinfraction that precipitated discharge is potentially due to industrial injury, furtherinquiry is necessary.

State ex rel. Luther v. Ford Motor Co., 113 Ohio St. 3d 144, 147 (Ohio 2007).

While Appellant suggests that, even completely aside from Pretty Products and its

progeny, he has demonstrated that he did not voluntarily abandon the workforce, under Pretty

Products, as a matter of law he did not voluntarily abandon the worlcforce. Therefore, it was an

abuse of discretion for the Commission to find otherwise, and error for the Court of Appeals to

fail to reverse the Conunission.

The Ohio legislature has determined that the Worker's Compensation laws "shall be

liberally construed in favor of employees and the dependents of deceased employees." Ohio Rev.

Code Ann. § 4123.95. In turn, this court and the lower courts have recognized their obligation to

construe the Workers' Compensation laws in a remedial manner, State ex rel. Rouch v. Eagle

Tool & Mach. Co. (1986), 26 Ohio St.3d 197, 199, 498 N.E.2d 464, 467, that is, to liberally

construe those laws in favor of the employee in order to carry out their purpose. Victory Baptist

Temple, Inc. v. Indus. Coinm. (1982), 2 Ohio App.3d 418; State ex rel. Maxwell v. Industrial

Commission (1959), 160 N.E.2d 346, 349.

The Industrial Commission failed to give heed to these principles, and the Court of

Appeals erred in failing to reverse the Commission.

8

CONCLUSION

That Appellant was injured in a work-related accident and that he is or has been

temporarily totally disabled does not appear to be in question. Rather, the only question appears

to be whether he voluntarily abandoned his employment and is for that reason ineligible for TTD.

As discussed above, the available documentation demonstrates beyond question that Appellant

did not abandon his employment, and that he therefore is eligible for Temporary Total Disability.

The Industrial Commission's refusal to consider the evidence before it is inconsistent with the

purposes of the act: Reversing the Court of Appeals will provide continued protection for

workers whose absences are occasioned by their compensable injuries, while not adversely

affecting the ability of employers to terminate employees for reasons unrelated to their injuries.

Therefore, this court should order the Industrial Commission to award Appellant benefits for

Temporary Total Disability.

Respectfully submitted;

..-

Brian R. WilliamsAttorney for Appellant

CERTIFICATE OF SERVICE

A copy of.the foregoing has beenserved by regular U.S. Mail on Andrew J. Alatis, AssistantAttorney General, 150 E. Gay St., 22nd floor, Columbus, OH 43215 and on Richard Johnson,Eastman & Smith, Ltd., P.O. Box 10032, One SeaGate, 24°i floor, Toledo, OH 43699-0032.

Respectfully submitted, (,

Brian R. WilliamsAttorney for Appellant

9

IN THE SUPREME COURT OF OIiIOA'%

STATE OF OHIO, ex rel.,BRIAN P. SCHLEGEL,

vs.Relator-Appellant,

STYKEMAIN PONTIAC BUICKGMC, LTD.

and

Respondents-Appellees

On Appeal from theFranklin County Court ofAppeals, Tenth Appellate District

Court of AppealsCase No: 06AP-1203

NOTICE OF APPEAL OF APPELLANT BRIAN P. SCHLEGEL

INDUSTRIAL COMMISSIONOF OHI05

Briam R. Williams (0030922)WILLIAMS & REYNOLDS420 Madison Avenue, Suite 101Toledo, Ohio 43604PH: (419) 243-6610FX: (419) 243-8173

Attorney for AppellantBrian P. Schlegel

Andrew J. Alatis (0042401)Assistant Attorney General150 E. Gay St., 22nd FloorColumbus, OH 43215Telephone: (614) 466-6696Fax: (614) 752-2538

Attorney for AppelleeIndustrial Conunission of Ohio

Richard JohnsonEastman & Sniith.One SeaGate, 24th floorP.O. Box 10032Toledo, OH 43699Telephone: 419-241-6000Fax;419-247-.1777

Attorney for AppelleeStykemain Pontiac Buick GMC, Ltd.

.;L9^. . ; ;.^^;^^^ UP T-^ r . ..^ i Cl!^[{ `E ^f ^E^f^ rs i ^ ^ l;^ C ^

Notice of Appeal of Appellant Brian P. Schlegel

Appellant Brian P. Schlegel hereby gives Notice of Appeal to the Supreme Court of Ohio

from the judgment of the Frardclin County Court of Appeals, Tenth Appellate District, entered in

Court of Appeals Case No. 06AP-1203 on August 9, 2007.

This case is a Workers Compensation case that originated in the Court of Appeals and is

an appeal of right pursuant to Rule II, § 1(A)(1) of the Supreme Court Rules of Practice.

Respectfully submitted,

R-Willi6msAttorney for Appellant

CERTIFICATE OF SERVICE

A copy of the foregoing has been served by regular U.S. Mail on Andrew J. Alatis, AssistantAttorney General, Workers Compensation Section, 150 E. Gay St., 22nd floor, Columbus, OH43215, and Richard Johnson, Eastman & Smith, One SeaGate, 24th floor, P.O.. Box 10032, Toledo,OH 43699, this 22nd day of September, 2007.

RespectfLilly submitted,

Brian R. WilliamsAttorney for Appellant

IN THE COURT OF APPEALS OF OHIO :`

TENTH APPELLATE DISTRICT

State of Ohio ex rei. Brian P. Schlegel,

Relator,

v. No.-06AP-1203.

Sryke1nam t-o`nfiac EuicFGMC, Ltdand Industrial Commission of Ohio,

(REGULARCALENDAR)

Respondents:

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

August 9, 2007, the objections are overruled, th? decision of the magistrate is approved

and adopted by the court as its own, andit is the judgment and order of this court that the

requested writ of mandamus is denied. Costs are assessed against relator.

witJ three (3) days from the ii{iiig hereof, the c(erk of this court is hereby

ordered to sen/e upon all pariies not in default for failure to appear notice of this judgment

and its date of entry upon the journal.

Judge G. Gary ''yack

c°k'j-

Judge Lisa L. Sadler, P.J.

Judge Dana A. Deshler, retired of the TenthAppellate District, assigned to active duty underthe authority of Section 6(C), Article IV, OhioConstituiion.

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Brian P. Schlegel,

Relator,

V. No. 06AP-1203

Stykemain Pontiac Buick GMC, Ltd. (REGULAR CALENDAR)and Industrial Commission of Ohio,

Respondents.

D E C I S I 0 N

Rendered dn August 9, 2006

TYACK, J.

Wil(iams.& Reynolds, and Brian R. V3illiams, for relator.

Easfman & Smith LTD, Mark A. Shaw and Richard L.Johnson, for respondent Stykemain Pontiac Buick GMC, Ltd.

Marc Dann, Attorney General, and Andrew J. Alatis, forrespondent Industrial Commission of Ohio.

IN MANDAMUSON OBJECTIONS TO MAGISTRATE'S DECISION

{11} Relator, Brian P. Schlegel, filed this action in mandamus seeking a writ

conipelling the Industrial Commission of Ohio ("commission") to vacate its order denying

him temporary total disability ("TTD") compensation and compefling the commission to

enter a new order granting the compensation.

No. 06AP-1203 2

{y[Z} In accord with the local rules, the case was referred to a magistrate to

conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed

briefs. The magistrate then issued a magistrate's decision which contains detailed

findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate's

decision includes a recommendation that we deny the requested relief.

{y[3} Counsel for relator has filed objections to the magistrate's decision.

Counsel for the commission has filed a memorandum in response. The case is now

before the court for a full, indeperident review.

{14} The commission based its refusal to grant TTD compensation for relator

upon an application of the doctrine of voluntary abandonment of employment.

Specifically, relator was fired for failing to show up for work for five days without

contacting his supervisor. This failure was a violation of a wriften policy of attendance in

Stykemain Pontiac Buick GMC, Ltd.'s employee manual. The commission applied the

case law from State ex rel. Louisiana-Pacifrc Corp. v. Indus. Comm. (1995), 72 Ohio St.3d

401.

{15} Counsel for rlator has argued in this court that State ex rel. Pre'ty

Products, Inc. v. lndus. Comm. (1996), 77 Ohio'St.3d 5 should be applied and TTD

compensation be granted because a;ier relator had missed work for four days without

contacting his supervisor, the Fort Wayne Neurological Center faxed a work status report

to relator's employer indicating he could not return to work from May 16 through July 5,

2006. Counsel also argues that an attending physician's report dated May 12, 2006 and

faxed at 10:26 a.m. on the second day of work in a row missed by relator without

reporting to his supervisor put the employer on notice that relator would not be coming to

No. 06AP-1203 3

work and prevented his being considered or having voluntarily abandoned his

employment.

{16} The problem for relator includes the fact that relator had a long history of

not showing up for work and not calling in. The termination notice indicated that this had

occurred six times before and that relator had been warned about the problem two times

before.

{J'} A second problem is the fact relator, while representing himself early on, did

not provide any written proof that he put his employer on notice he would be missing work

on the five work days he missed immediately before being fired. The commission did not

have to accept relator's word for this, especially since the employer's personnel file

contains no "off-work" siips and relator had a history of missing work without calling in.

{13} Pretty Products, idem., did not overrule Louisiana-Pacific Corp. The Pretty

Products case was a case in which the commission found no voluntary abandonment of

employment in an order which the Supreme Court of Ohio found to be so vague that the

case was remanded to the commission for explanation and clarification. In deciding

Pretty Products, the Supreme Court expressly criticized a number of possible

interpretations of the commission's order as "incorrect." However, the Supreme Court

impiied that State ex re(. Brown v. lndus. Comm. (1993), 68 Ohio St.3d 45, 48 was still .

good law in its 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." The problem for relator is that he apparently

worked his job on May 1'0, 2006 before missing on May 11, 12, 15, 16 and 17, 2006. The

No. 06AP-1203 4

commission could legitimately decide that relator was not disabled when tie stopped

repor[ing for work.

{19} Based upon these facts, the objections to the magistrate's decision are

overruled. We adopt the findings of fact and conclusions of law in the magistrate's

decision and deny the requested writ of mandamus.

Objections overruled; writ o; mandamus denied.

SADLER,. P.J., and DESHLER, J., concur.

DESHLER, J:, retired of the Tenth Appellate District, assignedto active duty under the authority of Section 6(C), Article IV,Ohio Constitution.

No; 06AP-1203

APPENDIX A

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex ral. Brian P. Schlegel,

Relator,

V. No. 06AP-1203

Stykemain Pontiac Buick GMC, Ltd. (REGULAR CALENDAR)and Industrial Commission of Ohio;

Respondents.

MAGISTRATE'S DECISION

Rendered on May 24, 2007

Williams & Reynolds, and Brian R. Williams, for relator.

Eastman & Smith LTD, Mark A. Shaw and Richard L.Johnson, for respondent Stykemain Pontiac Buick GMC, Ltd.

Marc Dann, AL"Lorney General, and Andrew J. Alatis, forrespondent Industrial Commission of Ohio.

IN MANDAMUS

fQiO} Relator, Brian P. Schlegel, has filed this original action requesting that this

court issue a writ of mandamus ordering respondent lndustrial Commission of Ohio

("commission") to vacate its order which denied relator's application for temporary total

No. 06AP-1203 6

disability ("TTD") compensation on grounds that he had voluntarly abandoned his

employment and ordering the commission to find that he is entitled to that

compensation.

Findinos of Fact

{y[i1} 1. Relator sustained a work-related injury on January 25, 2006, and his

claim would ultimately be allowed for "sprain/strain bilateral-trapezius muscle," "dervical

and lumbosacral strain/sprain" and "sacroiliac strainlsprain, and herniated disc L4-L5."

{9[12} 2. Relator returned to work.

{9[13}. 3. On May 17, 2006, relator was terminated from his position of

employment for the following reason:'Last day worked 5-10-06 Brian failed to repor for

work on 5-11, 5-12, 5-15, 5-16, 5-17 without contacting his supervisor. Terminated

of`icial do [sic] to violating Art III Section D of Employee Manual[.] 7th offense verbal

warning 2x previous[.]"

{114} 4. Also on May 17, 2006, relator filed his first report of an injury form. On

this form, relator indicated that he advised respondent Stykemain Pontiac Buick GMC,

Ltd. ("employer"), of his injuries thatsame day, May 17, 2006.

{115} 5. Relator's claim was originally allowed for certain conditions by the

administrator of the Ohio Bureau of Workers' Compensation ("BWC").in June 2006.

{115} 6. Relator appealed that decision and the matter was heard before a

district hearing officer ("DHO") on July 13, 2006. Relator did not appear at the hearing

and was not represented by counsel either. The DHO modified the prior order of the

administrator, indicated what conditions would be allowed in the claim, and addressed

No, 06AP-1203 7

relator's request for TTD compensation. In denying that request for compensation, the

DHO stated:

Payment of Temporary Total Disability Compensation isDENIED, as the Injured Worker was terminated from hisemployment on 5/17/2006, due to violation of a Written WorkPolicy, specifically the No Call/No Show Policy.

This order is based upon the report of Dr. McGowen, dated5/25/2006 and Dr. Mohler, dated 1/27/2006, and the term-ination records on file.

(Emphasis sic.)

{117} 7. The employer had provided a copy of its manual, which provides in

per"tinent part:

Attendance. Regular attendance by all employees ismandatory. You, as an employee, must notify your super-visor immediately if you are unable to report to work asassigned. You are to give notice as far in advance aspossible for your absence to be an excused absence. If youwill be absent because of illness you must notify yoursupervisor, within two hours stariing time, on the day thatyou will be absent. You are to report your status and es-timated date of return to your supervisor. Frequent absehceor tardiness may result in disciplinary action or termination ofemployment.

***

'** An absence for two (2) days without reporting to yoursupervisor will be considered a voluntary quit.

{118} 8. The employer also produced evidence that relator had been given a

copy of the employee handbook.

{9[19} 9. Relator appealed from the DHO's order and the matter was heard

before a staff hearing officer ("SHO") on August 15, 2006. Both relator and his counsel

appeared and relator testified. However, no other evidence was presented on behalf of

No. 06AP-1203 8

relator. The SHO vacated [he prior DHO's order and allowed relator's claim for certain

conditions which the DHO had specifically disallowed. However, the SHO still denied

relator TTD compensation for the following reasons:

The Hearing Officer DENIES injured worker's request forpayment of temporary total disability compensation as he isfound to have voluntarily abandoned the work force.Pursuant to [State ex rel. Louisiana-Pacific Corp. v. lndus.Comm. (1995), 72 Ohio St.3d 401], the injured worker is notentitled to temporary total disability benefits because he wasterminated from his employment on 5/17/06 due to violationof a written work policy that he was aware would result in histeirmination. The Hearing Officer relies upon the testimony ofthe employer regarding the singular off-work slip submittedto the employer which took injured worker off of work from5/1/06 through 5/8/06. The Hearing Officer also relies uponthe writteh work policy, specifically, Article III Section D,which indicates "Frequent absences or tardiness may resultin disciplinary action or termination of employment." UnderArticle IV, Rules of Conduct, it clearly indicates an absenceof (2) days without reporting to your supervisor will beconsidered a voluntary quit; Section N states: Failure to callin or report your intended absence and reason for absencewithin (2) hours after starting time; and Section U listed"Excessive tardiness or absenteeism. [sic]" as grounds fordiscipline. The Hearing Officer relies upon injured worker'ssignature on the acknowledgement card, 12/6/05, whichindicates that he is aware of the information in the EmployeeManual. Finally, the Hearing 0`icer relies upon the ter-mination report, signed and dated, 5/17/06, which indicatesinjured worker's last day worked was 5/10/06, and he failedto report for work on 5/11, 5/12, 5/15, 5/16, and 5/17, withoutcontacting his supervisor. It also indicates this was injuredworker's seventh offense and he had a verbal warning (2)times previously.

The Hearing Officer does not find injured worker's testimonypersuasive that he had, in fact, contacted the employer. Theemployer's file did not have any other off-work slips. Injuredworker indicated that he "had copies of documents submittedto the employer", however, did not bring anything with him totoday's hearing.

No. 06AP-1203

Therefore, the Hearing Officer finds the preponderance ofthe evidence supports that injured worker is found to havevoluntarily abandoned the work force and temporary totaldisability benefits are DENIED.

9

(Emphasis sic.)

{120}. 10. Relator appealed and for the first time presented evidence to show

that he was disabled and unable to work at the time he was discharged.

{121} 11. Relator's further appeal was refused by order of the commission

mailed September 14, 2006.

19[22} 12. Thereaaer, relator filed the instant mandamus action in this court.

Conclusions of Latiro:

{123} In order for this court to issue a writ of mandamus as a remedy from a

determination of the commission, relator must show a clear legal right to the relief

sought and that the commission has a clear lecal duty to provide such relief. State ex

reL Pressley v. lndus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of

mandamus exists where the relator shows that the commission abused its discretion by

entering an order which is not supported by any evidence in the record. State ex rel.

Elliott v. Indus. Comm. (1986); 26 Ohio St.3d 76. 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. (1987), 29 Ohio St.3d 56. Furthermore, guestions 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. (1981); 68 Ohio St.2d 165.

No, 06AP-1203 10

{124} TTD compensation awarded pursuant to R.C. 4123.56 has been defined

as compensation for wages lost where a claiman't'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) claimant has returned to work; (2) claimant's

treating physician has made a written statement that claimant is able to return to the

former position of employment; (3) when work within the physical capabilities of

claimant is made available by the employer or another employer; or (4) claimant has

reached maximum medical improvement. See R.C. 4123.56(A); State ex reL Ramirez

v. Indus. Comm. (1982), 69 Ohio St2d 630.

{125} It is undisputed that voluntary abandonment of the former position of

employment can preclude payment of TTD compensation. State ex rel. Rockwell

lnternatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44. In State ex rel. Watts v.

Schoitenstein Stores Corp. (1993), 68 Ohio St.3d 118, 121, the court stated as follows:

"** fFliring can constitute a voluntary abandonment of theformer position of employment. Although not generallyconsented to, discharge, like incarceration, is often a con-sequence of behavior that the claimant willingly undertook,and may thus take on a voluntary character. ***

{126} In State ex rel. Louisiana-Pacific Corp. v. lndus. Comm. (1995), 72 Ohio

St.3d 401, the court characterized a firing as "voluntary" where that firing is generated

by the employee's violation of a written work rule or policy which: (1) clearly defined the

prohibited conduct; (2) had been previously identified by the employer as a dis-

chargeable offense; and (3) was known or should have been known to the employee.

{127} In this mandamus action, relator concedes that he did not present

evidence at the hearings before either the DHO or SHO which would have shown that

No. 06AP-1203 11

his treating physician had opined that he was temporarily totally disabled and unable to

return to his former position of employment due to the allowed conditions. Relator

contends that the employer should have had those documents in its records and should

have presented them at the hearing. Relator did submit copies of medical

documentation in an attempt to show that he was unable to work during the relevant

time period at issue in his appeal to the full commission from the SHO's order denying

him TTD compensation. However, an appeal from an SHO order is discretionary and

the commission is under no obfigation to consider evidence that was filed after the SHO

hearing, especially where that evidence is not ident;fied as newly discovered evidence.

Further, relator did not show that this evidence was newly discovered and that he could

-not have discovered it by due diiigence. Relator's testimony that he had the documents

but failed to bring them to the hearing before the SHO negates his argument that the

evidence was newly discovered. The commission has discretion whether to accept or

reject evidence submitted after a hearing. State ex ral. Cordray V. Indus. Comm.

(1990), 54 Ohio St.3d 99.

{9[28} In the present case, the commission explained in its order that relator had

submitted medical slips which took him off work from May 1 through May 8, 2006.

Further, the SHO relied upon the evidence submitted by the employer that relator

worked on May 10, 2006. Thereafter, relator failed to report for work beginhing May 11,

2006 and, for that reason, he was terminated.

{9[29} In his reply brief, relator argues, for the first time, that because he was

truly disabled at the time he was discharged, he is still eligible for TTD compensation

pursuant to State ex rel. Pretty Products, Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5.

No. 06AP-1203 12

First, this court is not required to address this issue since relator failed to raise it belov!.

State ex rel: Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78. Second, the

question of whether relator's tendered evidence is sufficient to establish that he was

actually disabled at the time he was terminated is a question of fact which could only

have been addressed at the SHO hearing. Third, relatdr simply failed to present his

evidence timely and the issue never came before the commission. .

{130} In the present case, relator failed to submit sufficient evidence

demonstrating that he was entitled to TTD compensation. The commission relied upon

the evidence submitted by the employer and determined that reiator had voluntarily

abandoned his ernployment when he failed to call in or report to work as required by the

written handbook. The employer met its burden of proof under Louisiana-Pacific, and

the commission cited the evidence upon which it relied and provided a brief explanation.

As such, the magistrate finds that relator has not demonstrated the commission abused

.its discretion in denying his application for TTD compensation and this court should

deny his request for a wrii of mandamus.

/s/Steohanie Bisca BrooksSTEPHANIE BISCA BROOKSMAGISTRATE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoption of any factual findingor legal conclusion, whether or not specifically designated asa finding pf fact or conclusion of law under Civ.R.53(D)(3)(a)(ii), unless the party timely and specificallyobjects to that factual finding or legal conclusion as requiredby Civ.R. 53(D)(3)(b).