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State ex rel Jensen v. Industrial Commission of Ohio

December 4, 2008

STATE OF OHIO EX REL. ROBERT F. JENSEN, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO AND DELPHI CHASIS SYSTEMS DIV. SANDUSKY, RESPONDENTS.



The opinion of the court was delivered by: Tyack, J.

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION

{¶1} Robert F. Jensen filed this action in mandamus, seeking a writ which compels the Industrial Commission of Ohio ("commission") to vacate its order permitting Delphi Chasis Systems Division ("Delphi") to offset payments under a "special attrition program" against funds due for temporary total disability ("TTD") compensation.

{¶2} In accord with Loc.R. 12, 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 grant the requested writ.

{¶3} Delphi has filed objections to the magistrate's decision. Counsel for Jensen has filed a memorandum in response. Counsel for the commission has also filed a memorandum in response, asking for the requested writ but advocating different reasoning. The case is now before the court for review.

{¶4} Delphi's "special attrition program" is a program designed to allow Delphi to reduce the number of its employees and thereby reduce its operating costs. Delphi made the program available before Jensen was injured. Jensen accepted Delphi's offer to participate in the program, a condition of which was that he was able to work and suffered no disability which would preclude him from doing his regularly assigned job. Jensen signed a form in which he acknowledged that he was not entitled to disability pay or benefits. Then, he was injured before the payments under the special attrition program began.

{¶5} The payments under the special attrition program are not wages. The payments are payments to stop working until the employee reaches the 30 years of credited service necessary for retirement. Since the payments are not wages, they cannot be offset against TTD.

{¶6} Delphi's objections are overruled. We adopt the findings of fact and conclusions of law contained in the magistrate's decision. As a result, we issue a writ of mandamus compelling the commission to vacate its order which granted Delphi an offset of its special attrition program payments against Jensen's TTD payments and compelling the commission to enter an order which grants Jensen's motion requesting that the offset be denied.

Objections overruled; writ granted.

KLATT and FRENCH, JJ., concur.

APPENDIX A

MAGISTRATE'S DECISION

Rendered on September 16, 2008

IN MANDAMUS

{¶7} In this original action, relator, Robert F. Jensen, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order permitting the self-insured employer, Delphi Chasis Systems Division ("Delphi" or "employer"), to offset payments of temporary total disability ("TTD") compensation with the payments Delphi made to relator under a so-called "Special Attrition Program," and to enter an order prohibiting the offset.

Findings of Fact

{ΒΆ8} 1. The record contains Forms A and B relating to the "UAW-GM-Delphi Special Attrition Program" ("special attrition program") dated March 22, 2006. On June 22, 2006, relator executed Forms ...


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