State ex rel. Watts v. Schottenstein Stores Corp.

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State: Ohio

Court: Supreme Court

Docket No: 1992-2399

Case Date: 12/29/1993

Plaintiff: State ex rel. Watts

Defendant: Schottenstein Stores Corp.

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The State ex rel. Watts, Appellee, v. Schottenstein Stores
Corporation et al., Appellants.
[Cite as State ex rel. Watts v. Schottenstein Stores Corp.
(1993), Ohio St.3d .]
Workers' compensation -- Firing may, but does not

automatically, bar wage loss compensation under R.C.

4123.56(B).

(No. 92-2399 -- Submitted September 14, 1993 -- Decided
December 29, 1993.)

Appeal from the Court of Appeals for Franklin County, No.
91AP-1355.

Appellee-claimant, Brenda J. Watts, was injured on March
2, 1987 while in the course of and arising from her employment
with appellant Schottenstein Stores Corporation
("Schottenstein"). Her workers' compensation claim was allowed
and temporary total disability benefits were awarded.

In mid-1988, claimant began a rehabilitation program
implemented by Upjohn HealthCare Services ("Upjohn"), a private
firm hired by claimant's self-insured employer. On August 12,
1988, claimant, Schottenstein, Upjohn and appellant Industrial
Commission's Rehabilitation Division entered into a "Gradual
Return to Work Contract." Under the contract's terms,
Schottenstein agreed to allow claimant to return to work on a
part-time basis and gradually work up to a full eight-hour
day. The claimant was to resume full-time work on August 29,
1988, with "no extension of limited hours unless specifically
agreed to by employer, physician, claimant and the
Rehabilitation Division."

Claimant's last day of part-time employment was ultimately
extended to October 21, 1988, with full-time work to resume
three days later. Claimant did not come to work on October 24
and did not contact her employer, as company policy required.
The same was true on October 25 and 26. Immediately
thereafter, Schottenstein, consistent with its unexcused
absence policy, fired claimant.

Approximately eleven months later, claimant moved for wage
loss compensation under R.C. 4123.56(B). Accompanying her
motion was the May 25, 1989 report of claimant's attending

physician, Charles B. May, who restricted claimant to four
hours per day of light duty work. He stated that claimant
could not do her former duties without the time limitation
imposed. Claimant also submitted sworn statements attesting to
an inability to secure other work within her physical
capabilities through July 31, 1990. Claimant began working as
a self-employed housecleaner on August 1, 1990, but alleges
that she is making considerably less than she did at
Schottenstein.

The commission had claimant examined by Dr. H. Tom
Reynolds. Aware that claimant had already completed
rehabilitation, he concluded:

"I do feel the claimant could perform in an eight hour
day, taking into consideration the job modifications that were
made as a result of her rehab plan. I do not feel she could
return to her previous level of employment without these job
modifications, and this inability would be permanent."

A commission district hearing officer denied claimant's
compensation request, writing:

"* * * Claimant was given a written job offer in August
1988. The offer was presented in conjunction with the
rehabilitation plan * * *. The offer entailed a return to work
plan consisting of specific modifications of the duties of her
former position, working only four hours a day for the first 4
weeks, then working 8 hours a day thereafter. Claimant worked
4 hours a day for 8 weeks and was then terminated for failing
to report for 8 hour days[.] Dr. Reynolds indicates that the
claimant is capable of working for 8 hours with the job
modifications outlined in the rehabilitation plan. Therefore,
the claimant is not suffering a wage loss. She was able to
find work consistent with her physical capabilities.

"This order is based on the medical reports [sic] of: Dr.

H.T. Reynolds."
The order was administratively affirmed.
Claimant filed a complaint in mandamus in the Court of

Appeals for Franklin County, alleging that the commission
abused its discretion in denying wage loss compensation. The
court of appeals agreed, finding that Dr. Reynolds's report was
not "some evidence" supporting the commission's decision. It
also found that the order did not adequately explain its
reasoning as State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio
St.3d 203, 567 N.E.2d 245, required. The court issued a
limited writ which vacated the commission's order and returned
the cause to the commission for further consideration and an
amended order.

This cause is now before this court upon an appeal as of
right.

Larrimer & Larrimer and David Swanson, for appellee.

Porter, Wright, Morris & Arthur and Darrell R. Shepard,
for appellant Schottenstein Stores Corp.

Lee I. Fisher, Attorney General, and William J. McDonald,
Assistant Attorney General, for appellant Industrial Commission.

Per Curiam. R.C. 4123.56(B) provides:

"Where an employee * * * suffers a wage loss as a result
of returning to employment other than his former position of

employment or as a result of being unable to find employment
consistent with the claimant's physical capabilities, he shall
receive compensation at sixty-six and two-thirds of his weekly
wage loss not to exceed the statewide average weekly wage for a
period not to exceed two hundred weeks."

Supplementing the statute, Ohio Adm. Code 4121-3-32(D)
reads:

"In injury claims in which the date of injury * * * is on
or after August 22, 1986, the payment of compensation [f]or
wage loss pursuant to division (B) of section 4123.56 of the
Revised Code shall commence upon application with a finding of
any of the following:

"(1) The employee, as a direct result of the allowed
conditions in the claim, returns to employment other than his
former position of employment and suffers a wage loss.

"(2) The employee returns to his former position but
suffers a wage loss.

"(3) The employee, as a direct result of the allowed
conditions in the claim, is unable to find work consistent with
the employee's physical capabilities and suffers a wage loss."

A claim for wage loss compensation has two components - -
actual wage loss and causal relationship between the allowed
condition and the wage loss. The commission's order is
misleading because it states that claimant experienced no wage
loss. The evidence, however, suggests otherwise. Appellants do
not dispute claimant's assertion that she was unemployed from
the date she was terminated through July 31, 1990. Appellants
also have not challenged her claim that self-employment has
been less lucrative than her position with Schottenstein.
Thus, there is no real disagreement that after she was
terminated claimant made less than she would have at her old
job.

Closer examination suggests that the commission instead
based its decision on a perceived lack of causal relationship
between claimant's injury and reduced wages. The commission
essentially ruled that "but for" her employment discharge,
claimant would still be at Schottenstein with no diminution of
earnings. This finding raises a question of first impression
for our consideration: Does a claimant's discharge from his or
her position of employment automatically preclude R.C.
4123.56(B) wage loss benefits?

Arguing in the affirmative, appellants rely on the
voluntary employment separation principles that govern
temporary total disability. Temporary total disability
compensation has traditionally been denied to those who have
voluntarily abandoned their former position of employment.
See, e.g., State ex rel. Jones & Laughlin Steel Corp. v. Indus.
Comm. (1985), 29 Ohio App.3d 145, 29 OBR 162, 504 N.E.2d 451;
State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d
42, 517 N.E.2d 533; State ex rel. Rockwell Internatl. v. Indus.
Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678; State ex rel.
McGraw v. Indus. Comm. (1990), 56 Ohio St.3d 137, 564 N.E.2d

695.

We agree that firing can constitute a voluntary
abandonment of the former position of employment. Although not
generally consented to, discharge, like incarceration, is often
a consequence of behavior that the claimant willingly

undertook, and may thus take on a voluntary character. See
Ashcraft. We decline, however, to extend these voluntary
abandonment principles to R.C. 4123.56(B) wage loss because
wage loss is broader in scope than temporary total disability.
As explained by a Georgia court in United States Fid. & Guar.
Ins. Co. v. Giles (1986), 177 Ga. App. 684, 685, 340 S.E.2d
284, 285:

"It is not the ability to perform the particular job in
which one was engaged at the time of injury which is the
determining factor in a case such as this, but rather whether
the claimant's inability to find any work for which he is
suited by training and experience is a result of the injury
suffered." (Emphasis sic.)

In Giles, the claimant, an insurance claims adjuster,
resumed his duties after injury, only to quit in favor of
better work. He was later laid off and was unable to find
another job, prompting his claim for wage loss compensation.
His former employer challenged claimant's compensation
eligibility, arguing that his inability to secure other claims
adjuster work was due, not to the injury, but to economic
conditions.

The Georgia Court of Appeals upheld the claimant's right
to benefits. The court stressed claimant's construction
experience, teaching degree and extensive coaching background,
and held that "while [claimant's] inability to find work as a
claims adjuster may not be related to his injury, his inability
to find other work for which he is suited is related to his
injury." (Emphasis sic.) Id., 77 Ga. App. at 685, 340 S.E.2d
at 285.

We find particularly persuasive the reasoning advanced by
the Minnesota Supreme Court in Marsolek v. George A. Hormel Co.
(1989), 438 N.W.2d 922. There, after his industrial injuries,
the claimant returned to work and was assigned to light duty.
Claimant's activities during a later strike, however, prompted
his dismissal. Unable to find other employment, claimant
sought compensation for lost wages.

The high court found that claimant's firing did not
automatically foreclose wage loss compensation, starting its
analysis "with the basic tenet that an employer is liable for
the payment of compensation benefits * * * when an employee
suffers a wage loss that is attributable to a work injury."
Id. at 923.

The court concluded:

"[B]y focusing so much effort on the * * * effect of the
misconduct, the parties' attention has been diverted from the
essential purpose of the [Workers' Compensation] Act, * * *
which is to compensate injured workers for a wage loss that is
attributable to a work injury. Accordingly, for purposes of
clarification, we now hold that a justifiable discharge for
misconduct suspends an injured employee's right to wage loss
benefits; but the suspension of entitlement to wage loss
benefits will be lifted once it has become demonstrable that
the employee's work-related disability is the cause of the
employee's inability to find or hold new employment. Such a
determination should be made upon consideration of the totality
of the circumstances * * *." Id. at 924.

Ohio's workers' compensation system was created "[f]or the

purpose of providing compensation to workmen and their
dependents, for death, injuries or occupational disease,
occasioned in the course of such workmen's employment * * *."
Section 35, Article II, Ohio Constitution. Like the court in
Marsolek, supra, we find that those purposes are not furthered
by denying a claimant even the opportunity to show the
potential impact on the claimant's ability to do other work.
Accordingly, we hold that firing may, but does not
automatically, bar wage loss compensation under R.C. 4123.56(B).

In this case, the commission did not evaluate the effect
that claimant's injury may have had on her ability to get or
keep other employment. For this reason, we affirm the judgment
of the court of appeals and return the cause to the commission
for further consideration and amended order.

Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

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