State ex rel. Baker v. Indus. Comm.
Ohio Supreme Court
State ex rel. Baker v. Indus. Comm., 2000 Ohio 168 (Ohio 2000)
89 Ohio St. 3d 376
Douglas, J.
State ex rel. Baker v. Indus. Comm.
Opinion
[This opinion has been published in Ohio Official Reports at89 Ohio St.3d 376
.]
THE STATE EX REL. BAKER, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO
ET AL., APPELLEES.
[Cite as State ex rel. Baker v. Indus. Comm., 2000-Ohio-168.]
Workers’ compensation—Claimant who leaves former position of employment for
a new position does not forfeit temporary total disability compensation
eligibility.
When a claimant who is medically released to return to work following an industrial
injury leaves his or her former position of employment to accept another
position of employment, the claimant is eligible to receive temporary total
disability compensation pursuant to R.C. 4123.56(A) should the claimant
reaggravate the original industrial injury while working at his or her new job.
(No. 98-556—Submitted May 9, 2000—Decided August 9, 2000.)
APPEAL from the Court of Appeals for Franklin County, No. 96APD10-1283.
ON RECONSIDERATION.
__________________
{¶ 1} On July 27, 1989, appellant, Paul W. Baker, suffered an industrial
injury to his left knee during his employment as a general laborer for appellee,
Stahl-Wooster Division, A Scott Fetzer Company (“Stahl-Wooster”). As a result of
his industrial injury, the Industrial Commission allowed Baker’s claim for a lateral
tear of the meniscus of the left knee, and Baker subsequently missed work due to
arthroscopic knee surgeries that were performed on January 9, 1990 and May 4,
1990. Baker received temporary total disability compensation (“TTC”) from
January 9, 1990 to July 15, 1990.
{¶ 2} On July 15, 1990, Baker’s treating physician, James J. Heintz, M.D.,
released Baker to resume full-time work, restricted to light duty. The following
day, Baker returned to Stahl-Wooster and, that same day, signed a termination
SUPREME COURT OF OHIO
notice stating that he had “accepted other employment.” Thereafter, Baker began
his new job as a truck mechanic with Truck Stops of America (“Truck Stops”). On
September 24, 1990, Baker left his position with Truck Stops, allegedly due to his
original industrial injury.
{¶ 3} After examinations by Dr. T. Kenneth Krutky and Dr. Heintz, Baker
filed a request for a further allowance and for additional TTC. Specifically, Baker
requested TTC from September 24, 1990 through an estimated return-to-work date
of May 16, 1991. After considering Baker’s request, a commission district hearing
officer (“DHO”) issued an order granting Baker TTC for the requested time period.
After a timely appeal of the DHO decision by Stahl-Wooster, the Canton Regional
Board of Review agreed with Stahl-Wooster, and denied TTC to Baker. The
regional board denied TTC on the basis that Baker had voluntarily terminated his
employment with Stahl-Wooster. Baker then timely appealed the board’s decision
to the Industrial Commission. On behalf of the commission, two staff hearing
officers denied Baker’s appeal, thereby agreeing with the board’s decision.1 The
commission’s decision to deny Baker’s appeal was based on a finding that Baker
had voluntarily abandoned his position of employment with Stahl-Wooster.
{¶ 4} On October 2, 1996, Baker filed a complaint in mandamus in the
Franklin County Court of Appeals, alleging that the commission had abused its
discretion in denying his TTC request. The court of appeals disagreed and denied
the writ. From the judgment of the court of appeals, Baker appealed to this court.
On January 26, 2000, we issued our first decision in this case, State ex rel. Baker v.
Indus. Comm. (2000), 87 Ohio St.3d 561,722 N.E.2d 67
(“Baker I”). In a per curiam opinion, we held that under the principles of State ex rel. McGraw v. Indus. Comm. (1990),56 Ohio St.3d 137
,564 N.E.2d 695
, and State ex rel. Jones &
1. The staff hearing officers adjusted the closing date of the period under consideration for TTC
from May 16, 1991 to April 14, 1991, because Baker was receiving living-maintenance payments
pursuant to R.C. 4121.63 during the period of April 15, 1991 through November 14, 1991.
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January Term, 2000
Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, 29 OBR 162,504 N.E.2d 451
, Baker was not eligible for TTC because he had voluntarily
abandoned his employment with Stahl-Wooster by accepting new employment
with Truck Stops.
{¶ 5} In response to our initial decision, Baker filed a motion for
reconsideration. Baker’s request for reconsideration was joined by amici curiae
Ohio AFL-CIO, Fraternal Order of Police of Ohio, Inc., Ohio Academy of Trial
Lawyers, Ohio Conference of Teamsters, Ohio State Building and Construction
Trades Council, Northwestern Ohio Building and Construction Trades Council, and
the Ohio Education Association. Appellees, Industrial Commission and Stahl-
Wooster, filed memoranda opposing Baker’s motion for reconsideration, and
appellees’ opposition was joined by amici curiae Ohio Self-Insurers Association
and Ohio Manufacturers Association.
{¶ 6} On March 15, 2000, we granted Baker’s motion for reconsideration
and issued an order permitting the parties to submit supplemental briefs. We also
ordered that the case be set for oral argument.
{¶ 7} The cause is now before the court as an appeal of right and on
rehearing.
__________________
Stewart R. Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J.
Jaffy; and M. Blake Stone, for appellant.
Betty D. Montgomery, Attorney General, and C. Bradley Howenstein,
Assistant Attorney General, for appellee Industrial Commission.
Buckingham, Doolittle & Burroughs, L.L.P., Richard A. Hernandez, Brett
L. Miller and Julie M. Young, for appellee Stahl-Wooster Division, A Scott Fetzer
Company.
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Stewart R. Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J.
Jaffy, urging reversal and issuance of writ for amici curiae AFL-CIO and Ohio
Academy of Trial Lawyers.
Paul L. Cox, urging reversal and issuance of writ for amicus curiae
Fraternal Order of Police of Ohio, Inc.
Gallon & Takacs Co., L.P.A., and Theodore A. Bowman, urging reversal
and issuance of writ for amici curiae Ohio Conference of Teamsters and
Northwestern Ohio Building and Construction Trades Council.
Benesch, Friedlander, Coplan & Aronoff, L.L.P., N. Victor Goodman and
Mark D. Tucker, urging reversal and issuance of writ for amicus curiae Ohio State
Building and Construction Trades Council.
Cloppert, Portman, Sauter, Latanick & Foley, Christopher A. Flint and
Frederic A. Portman, urging reversal and issuance of writ for amicus curiae Ohio
Education Association.
Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, urging
affirmance for amici curiae Ohio Self-Insurers Association, and Ohio
Manufacturers Association.
__________________
DOUGLAS, J.
{¶ 8} The issue before us is whether a claimant who leaves his 2 former
position of employment for a new position forfeits TTC eligibility under the theory
of voluntary abandonment of employment.
{¶ 9} In Baker I, we held that Baker’s voluntary departure from Stahl-
Wooster precluded Baker’s eligibility for TTC, as his departure from his former
position of employment was predicated on his own actions, i.e., acceptance of a
2. Since the claimant in the instant case is male, we use masculine adjectives and pronouns, except
in the syllabus, throughout the opinion. We do so only for ease of reading. We continue to recognize
that our opinions should always be gender-neutral.
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truck mechanic position with Truck Stops, and not on his industrial injury. Baker,
87 Ohio St.3d at 563,722 N.E.2d at 68
. As previously mentioned, the per curiam
opinion in Baker I was largely based upon the principles set forth in McGraw and
Jones & Laughlin, and, notably, the opinion did not explore the relationship and
differences between a claimant’s eligibility for TTC, voluntary abandonment of a
former position of employment, and continued employment for a different
employer. Baker’s continued employment, albeit not at Stahl-Wooster, is an
important and distinguishing fact that separates this case from the typical voluntary
abandonment of employment. In order to appreciate this distinction, it is first
necessary to discuss the eligibility requirements for TTC and to review the purpose
of TTC, particularly as it relates to the judicially created voluntary-abandonment
theory.
{¶ 10} The pertinent portions of R.C. 4123.56, governing temporary
disability compensation, provide:
“(A) * * * [I]n the case of temporary disability, an employee shall receive
sixty-six and two-thirds per cent of his average weekly wage so long as such
disability is total * * *. Payments shall continue pending the determination of the
matter[;] however payment shall not be made for the period when any employee
has returned to work, when an employee’s treating physician has made a written
statement that the employee is capable of returning to his former position of
employment, when work within the physical capabilities of the employee is made
available by the employer or another employer, or when the employee has reached
the maximum medical improvement. * * * The termination of temporary total
disability, whether by order or otherwise, does not preclude the commencement of
temporary total disability at another point in time if the employee again becomes
temporarily totally disabled.” (Emphasis added.)
{¶ 11} R.C. 4123.56 is instructive in that it ties an injured worker’s
eligibility for TTC to the worker’s capability of returning to his former position of
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employment. This “former position of employment” standard was intended to be a
threshold physical measurement of whether an injured worker was able to perform
the duties of the job that he held at the time of injury. A worker’s physical
capabilities are unrelated to whether the worker is actually working at his former
position of employment and whether the former position is even available for the
injured worker to return to after he is medically released.
{¶ 12} In State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630,23 O.O.3d 518
,433 N.E.2d 586
, at syllabus, we held, “Under R.C. 4123.56, temporary total disability is defined as a disability which prevents a worker from returning to his former position of employment.” Quoting Webster’s Third New International Dictionary (1961), this court stated that “position” is defined as “the group of tasks and responsibilities making up the duties of an employee.”Id. at 632
, 23 O.O.3d at 519,433 N.E.2d at 588
. Ramirez did not hold that the injured worker had to actually return to the specific job that he held at the time of his injury; rather, this court merely stated that the proper criterion was the injured worker’s ability to perform the job duties of his former position of employment. Since the Industrial Commission had failed to take evidence regarding Ramirez’s ability to return, either partially or completely, to his former position of employment as a construction laborer, this court affirmed the court of appeals’ judgment, which granted appellant a writ of mandamus and ordered the Industrial Commission to take evidence to determine Ramirez’s ability to return to his former job.Id. at 634
, 23 O.O.3d at 520,433 N.E.2d at 590
. As exemplified in Ramirez, the former-
position-of-employment test does not involve any consideration of whether the
injured worker returns to his actual job that he held at the time of his injury or
whether that job is even available; rather, the test is a physical guideline by which
an injured worker’s eligibility for TTC is determined.
{¶ 13} Eligibility for TTC is contingent upon an injured worker’s inability
to perform the duties of his former position of employment. Ramirez; Jones &
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Laughlin, supra.This eligibility standard is consistent with the purpose of TTC, which is to compensate an injured employee for the loss of earnings he incurs while his injury heals. State ex rel. Ashcraft v. Indus. Comm. (1987),34 Ohio St.3d 42, 44
,517 N.E.2d 533, 535
. In some cases, however, a worker’s own actions, rather
than his industrial injury, may result in the worker’s not being able to return to his
former position of employment. In such cases, the injured worker is said to have
voluntarily abandoned his former position of employment, thereby precluding his
eligibility for TTC.
{¶ 14} For example, in Jones & Laughlin,3 the facts were that the claimant
had voluntarily retired from the work force and was receiving a regular pension.
The Franklin County Court of Appeals held that “where the employee has taken
action that would preclude his returning to his former position of employment, even
if he were able to do so, he is not entitled to continued temporary total disability
benefits since it is his own action rather than the industrial injury, which prevents
his returning to such former position of employment.” Jones & Laughlin, 29 Ohio
App.3d at 147, 29 OBR at 164,504 N.E.2d at 454
. This was obviously meant to explain that where an employee voluntarily undertakes some action that precludes that employee from returning to employment from a temporary total disability, the employee has voluntarily abandoned the work force and is therefore not entitled to receive TTC, because the purpose for which TTC was created (compensation for loss of income during temporary and total disability) no longer exists. Thus, when an employee receiving TTC chooses for reasons unrelated to his industrial injury not to return to any work when able to do so, that employee has abandoned both his employment and his eligibility for TTC. 3. Appellee, Stahl-Wooster, lists an inaccurate citation for this case in its table of authorities and on page 3 of its supplemental brief. The proper citation for State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. is (1985),29 Ohio App.3d 145
, 29 OBR 162,504 N.E.2d 451
. Jones & Laughlin,
accordingly, is a case from a court of appeals – not “this” court as stated by Stahl-Wooster.
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{¶ 15} In addition to Jones & Laughlin, where the claimant voluntarily and
permanently removed himself from the work force, there are a number of other
examples of situations wherein a claimant has been denied continued TTC based
on his voluntary abandonment of his former position of employment: State ex rel.
Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42,517 N.E.2d 533
(incarcerated claimant was precluded from TTC, as claimant was presumed to have tacitly accepted the consequences of his voluntary acts leading to his incarceration and was therefore deemed to have voluntarily abandoned his former position of employment); State ex rel. McGraw v. Indus. Comm. (1990),56 Ohio St.3d 137
,564 N.E.2d 695
(claimant who voluntarily abandoned his former position of employment by quitting his job for reasons unrelated to his injury was precluded from TTC); State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995),72 Ohio St.3d 401
,650 N.E.2d 469
(claimant voluntarily abandoned his former position of employment when he was terminated for failing to report to work for three consecutive days, thereby precluding his eligibility for TTC); State ex rel. Cobb v. Indus. Comm. (2000),88 Ohio St.3d 54
,723 N.E.2d 573
(claimant voluntarily
abandoned his employment when he was terminated for testing positive for drugs
in violation of a written company policy, thereby precluding his eligibility for
TTC).
{¶ 16} Relying on two of the foregoing voluntary-abandonment cases,
McGraw and Jones & Laughlin, this court held in Baker I that Baker voluntarily
abandoned his former position of employment by accepting a new position of
employment and, therefore, Baker was not eligible for TTC. Upon reconsideration,
we now find that both McGraw and Jones & Laughlin are factually distinguishable
from the facts of the case now before us. Specifically, we now find that changing
jobs is clearly distinguishable from some other situations of voluntary abandonment
of employment and that a job change does not preclude a claimant from TTC.
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{¶ 17} In Jones & Laughlin, the employer contended that because its
employee was receiving a regular pension, the employee had voluntarily retired
from the work force and was therefore precluded from receiving TTC. While
denying the employer’s request for a writ for other reasons, the court of appeals did
agree with the employer that “voluntary retirement may preclude a claimant from
receiving temporary total disability benefits to which he otherwise might be
entitled, if by such retirement the claimant has voluntarily removed himself
permanently from the work force.” (Emphasis added.) 29 Ohio App.3d at 147, 29 OBR at 164,504 N.E.2d at 454
. We agree with this statement of the law, but the
case that is now before us does not present facts that are the same as or similar to
the facts in Jones & Laughlin.
{¶ 18} In the case at bar, Baker did not permanently abandon the work
force. Baker secured other employment and continued to work until the injuries
received in his original industrial accident again rendered him temporarily and
totally disabled.
{¶ 19} McGraw is also distinguishable from the facts of the case now before
us. Unlike Baker, the appellant in McGraw abandoned the work force for reasons
unrelated to his original industrial injury, and he was not working at the time of his
subsequent injury, which he claimed was related to his original industrial injury and
again rendered him temporarily and totally disabled. McGraw, 56 Ohio St.3d 137,564 N.E.2d 695
. McGraw was originally injured in 1976 during his employment
with Kenworth Trucking Company, and he was subsequently awarded workers’
compensation benefits for his injury. Thereafter, he quit Kenworth for reasons
unrelated to his work injury, and he moved to Pennsylvania. After working in
several different positions, McGraw quit his last job in mid-1986, and he did not
work thereafter. In March 1987, McGraw filed for continued TTC from Kenworth,
which the Industrial Commission denied, based on his voluntary abandonment of
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his position with Kenworth. For that reason, the court of appeals denied his request
for a writ of mandamus, and this court affirmed the court of appeals’ judgment.
{¶ 20} The claimant in McGraw not only abandoned the work force, as he
was unemployed for approximately eight or nine months before his request for
continued TTC, but he requested continued TTC more than ten years after his
original industrial injury. McGraw was not working at the time of his injury; thus,
he did not incur any loss of earnings at the time that he reaggravated his original
industrial injury. McGraw, unlike Baker, abandoned his employment and the work
force.
{¶ 21} Much is being made of the court of appeals’ further statement in
Jones & Laughlin that “[s]uch action [abandonment] would include such situations
as the acceptance of another position, as well as voluntary retirement.” (Emphasis
added.) 29 Ohio App.3d at 147, 29 OBR at 164,504 N.E.2d at 454
. We believe
that the court’s language with regard to “another position” is being misconstrued,
intentionally or otherwise. What the court was saying in using that language, we
believe, is that when a claimant starts work at another position, of course TTC
benefits cease because the claimant is no longer temporarily and totally disabled.
That does not mean that if the claimant again becomes temporarily and totally
disabled from injuries related to the original industrial injury that gave rise to the
former payments of TTC, the claimant is barred from reviving that original claim.
{¶ 22} To clarify these issues, we developed a two-part test to determine a
claimant’s eligibility for TTC. In State ex rel. Ashcraft v. Indus. Comm. (1987), 34
Ohio St.3d 42, 44,517 N.E.2d 533, 535
, this court stated, “The first part of the test focuses on the disabling aspects of the injury, whereas the latter part determines if there are any factors, other than the injury, which would prevent the claimant from returning to his former position.”Id.
Futhermore, and significantly, we stated,
“The secondary consideration is a reflection of the underlying purpose of temporary
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total compensation: to compensate an injured employee for the loss of earnings
which he incurs while the injury heals.” Id.
{¶ 23} Applying the two-part test to the facts in Ashcraft, we held that the
claimant’s incarceration constituted a factor that precluded his receipt of TTC
independently of his previously recognized work-related injury. Id. at 44-45,517 N.E.2d at 535
. This court found that claimant’s incarceration was a factor other than the industrial injury that prevented the claimant from returning to his former position of employment. We held that claimant’s incarceration was a voluntary act, since one may be presumed to tacitly accept the consequences of one’s voluntary acts.Id. at 44
,517 N.E.2d at 535
. Although not addressed in Ashcraft, this court’s
conclusion to deny TTC is consistent with the purpose of TTC. Since the
incarcerated claimant would not be returning to work, he would not be experiencing
a loss of earnings; hence, there was no purpose in awarding TTC. As in Ashcraft,
there was also no purpose in awarding TTC to the claimant in Jones & Laughlin
because the claimant had voluntarily left the work force through his retirement, and
the claimant would not, therefore, experience a loss of earnings due to his industrial
injury.
{¶ 24} Accordingly, we apply the two-prong test of Ashcraft to the facts of
the case now before us. In this case, there is no debate about the application of the
first prong. It is the second prong of the Ashcraft test, namely the underlying
purpose of TTC, that compels a different result in the case at bar.
{¶ 25} First, with respect to the disabling aspect of Baker’s injury, there is
no dispute that Baker was unable to perform the duties of his former position of
employment as a result of his industrial injury. Baker’s original industrial injury
was reaggravated at Baker’s new job, and it is uncontroverted that Baker’s
subsequent injury was directly related to his original injury at Stahl-Wooster.
Second, Baker’s acceptance of his new position at Truck Stops was not a factor that
prevented Baker from returning to his former position. Baker could (and did) return
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to his former position, but then he elected to move to different employment. This
change of employment was not related to his injury. Although Baker did not return
permanently to his former position of employment,4 he did secure other
employment, thereby maintaining his continued presence in the work force. Unlike
the claimants in Ashcraft and Jones & Laughlin, Baker did not voluntarily abandon
the work force. Rather, Baker made a decision to accept a new position that was
more aligned with his background, training, and career interests.
{¶ 26} Accordingly, we hold that when a claimant who is medically
released to return to work following an industrial injury leaves his or her former
position of employment to accept another position of employment, the claimant is
eligible to receive temporary total disability compensation pursuant to R.C.
4123.56(A) should the claimant reaggravate the original industrial injury while
working at his or her new job.
{¶ 27} Today’s decision does nothing more than recognize the job mobility
of today’s labor market. No citation of authority is needed to acknowledge the
obvious that any number of people, different from day to day, are moving to other
jobs for their same employer, or to different jobs for different employers. To hold
as appellees and their amici urge us would be to consign all workers to a particular
employment position and employer unless they were willing to abandon some
earned benefits. This would be so regardless of promotional opportunities in the
same company or other opportunities outside the company. In this case, in the court
of appeals, Judge Tyack dissented from the majority opinion, stating:
“I see a significant distinction to be made between the situation where an
injured worker stops employment entirely and the situation where an injured worker
moves from one job within his or her capability to another job within his or her
4. Baker actually returned to Stahl-Wooster the day after he was released to light-duty work. On
that day, Baker signed a termination notice with Stahl-Wooster, stating that he had accepted other
employment. Thereafter, Baker began his new job as a truck mechanic with Truck Stops.
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January Term, 2000
capabilities. The workers’ compensation system cannot be used to chain a worker
to one specific employer. A worker who has an opportunity to advance his or her
lot in life by a career change should not have to face the prospect of losing workers’
compensation benefits if an injury sustained on the job with a former employer
causes the worker to become unemployed, even at a later date.
“A complete abandonment of employment can, under certain
circumstances, break the chain of cause and effect necessary to demonstrate that an
injured worker actually is unemployed because of the injury. A change of jobs does
not constitute an abandonment of employment and does not automatically break the
chain of cause and effect.”
{¶ 28} We agree, and we therefore vacate our decision in State ex rel. Baker
v. Indus. Comm. (2000), 87 Ohio St.3d 561,722 N.E.2d 67
. Further, we
respectfully reverse the judgment of the court of appeals and grant the requested
writ of mandamus.
Judgment reversed
and writ granted.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
__________________
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Reference
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- 61 cases
- Status
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- Syllabus
- Workers' compensation—Claimant who leaves former position of employment for a new position does not forfeit temporary total disability compensation eligibility.