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State ex rel Galligan v. Industrial Commission of Ohio

December 8, 2008

STATE OF OHIO EX REL. BETTY M. GALLIGAN, RELATOR,
v.
THE INDUSTRIAL COMMISSION OF OHIO AND TENABLE SECURITY INC., RESPONDENTS.



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

(REGULAR CALENDAR)

DECISION

IN MAMDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION

{¶1} Betty M. Galligan has filed this action in mandamus, seeking a writ which compels the Industrial Commission of Ohio ("commission") to vacate its order denying her temporary total disability ("TTD") compensation and which compels the commission to enter a new order granting the 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 issue a limited writ of mandamus which compels the commission to determine Betty Galligan's entitlement to TTD without regard to her employer Tenable Security Inc.'s ("Tenable") claim she voluntarily abandoned her employment.

{¶3} Counsel for the commission has filed objections to the magistrate's decision. Counsel for Tenable Security Inc. ("Tenable") has also filed objections. Counsel for Betty Galligan has filed a memorandum in response. The case is now before the court for a full, independent review.

{¶4} Betty Galligan suffered extremely painful injuries in a fall on her jobsite. As a result, she received prescriptions for a variety of powerful painkillers, including percocet.

{¶5} Tenable transferred her job assignment from an active responsibility to a job where she basically watched a rarely used door for hours on end. This aggravated her drowsiness from the medication and probably did little for her outlook on life.

{¶6} Galligan was written up for a variety of company infractions following her injuries. Some were for being late in arriving at work. Some were from falling asleep on the job. Others were for other infractions. The issue before the commission and now before the court is whether these various infractions were so serious as to constitute a voluntary abandonment of employment.

{¶7} The magistrate, in finding that a voluntary abandonment of employment had not occurred, relied heavily upon the failure of Tenable to put its employee handbook in evidence, so the commission and subsequently this court could determine if Galligan was on notice that her infractions would result in her being fired. The commission, in its objections, acknowledges that the failure to present the handbook is problematic but maintains that the event should not bar the employer from having another opportunity to prove voluntary abandonment of employment with the help of the employee handbook.

{¶8} Tenable, in its objection, argues that its failure to put the employee handbook into evidence is not a dispositive issue.

{¶9} The issue is not whether Betty Galligan made mistakes while on the job. The issue is whether Galligan made mistakes so serious on matters where she was clearly on notice that such mistakes were so serious that committing them amounted to knowingly forfeiting her job.

{¶10} The record before us indicates that the employee handbook does not contain provisions which put an employee on notice that her employment was automatically in jeopardy. For instance, when Tenable wrote Galligan up for "excessive absence and tardiness," in part because she missed work for three days after the injuries, Galligan was advised she was being placed on 90 days probation. If she had some attendance problems during that 90 days she was told she faced additional disciplinary actions.

{¶11} Approximately one month later, Galligan was advised that "[a]ny infraction of any Tenable or client policy will result in immediate termination." The record indicates no further such violation by Galligan.

{¶12} The next day, Galligan was written up for violating a Tenable policy which required that employees contact their immediate supervisors at least eight hours before shift start if they are going to miss the shift.

{¶13} The next day, Galligan was written up for supposedly failing to call in advance on September 14, 2006. This write-up seems to be in tension with the previous write-up, which indicates Galligan called in after her shift on September 13, 2006 to say she would not be reporting for duty.

{¶14} Neither write up set forth above indicates that Galligan would be fired if she missed work again without calling in eight hours in advance.

{¶15} A month later, Galligan received a "final warning regarding tardiness." Again, she was advised that future infractions would result in "disciplinary action up to and including termination of employment."

{¶16} Over three weeks later, Galligan was written up for "careless, inadequate and ineffective performance of duty -- insubordination." She was advised that "any future violation of any company policy will result in immediate termination of employment."

{¶17} On December 5, 2006, after the end of the 90-day probationary period, Galligan was seen as having fallen asleep at her post, based upon a one and one-half to two minute observation by a supervisor. No disciplinary action was recommended.

{¶18} On January 17, 2007, Galligan was written up for offering some of her pain pills to a supervisor who was complaining of back pain.

{¶19} Galligan was written up on January 19, 2007 for failing to stay in the lunch room during her break and for failing to accurately record her absence from the lunch room.

{¶20} The record contains a memorandum in which Galligan's supervisor felt Galligan was being disrespectful by saying "whatever" right after the supervisor had said "whatever" to her.

{¶21} On February 23, the same supervisor reported Galligan was asleep at her post for approximately 12 minutes. Galligan was "released of her duties permanently" for this infraction. The supervisor indicated the firing was for violation of company policy and accumulation of employee reprimands. The termination was marked "involuntary" by the same supervisor.

{¶22} When Galligan was written up for her supposedly sleeping 1.5 to 2 minutes on December 5, 2006, she was not informed that any future such infraction would result in her termination.

{¶23} Galligan may not have been a model employee, but none of her conduct was of the kind which has been considered a voluntary abandonment of employment absent a written policy which advised her the conduct would result in automatic termination. The various write ups strongly indicate that the written employee handbook had no such provision, because each time she was advised that future discipline would come. The one instance where she was advised a repeat of her conduct would result in automatic termination, she did not repeat the conduct.

{¶24} Under the circumstances, there is no reason for the commission to revisit the claims of voluntary abandonment of employment.

{¶25} The objections of both the commission and Tenable are overruled. The findings of fact and conclusions of law contained in the magistrate's decision are adopted. We grant a writ of mandamus vacating the July 26, 2007 order of the commission through its staff hearing officer and return the matter for additional review of Galligan's request for TTD.

Objections overruled; writ granted.

KLATT, J., concurs.

FRENCH, J., concurs in judgment only.

APPENDIX A

MAGISTRATE'S DECISION

IN MANDAMUS

{¶26} In this original action, relator, Betty M. Galligan, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying her request for temporary total disability ("TTD") compensation beginning February 27, 2007, on grounds that she voluntarily abandoned her employment, and to enter an order granting said compensation.

Findings of Fact

{¶27} 1. On August 8, 2006, relator sustained an industrial injury while employed as a security officer for respondent Tenable Security Inc. ("Tenable" or "employer"), a state-fund employer. The industrial claim (No. 06-852210) is allowed for:

Contusion right knee; sprain right knee & leg nos; head contusion, cervical sprain/strain, thoracic sprain/strain, lumbar sprain/strain, right shoulder sprain/strain and also for non-displaced fracture right seventh rib.

{¶28} 2. The injuries occurred when relator tripped and fell while walking on a sidewalk in a construction zone. She was initially treated at the Elyria Hospital Emergency Room.

{¶29} 3. On September 19, 2006, relator was initially treated by Timothy Morley, D.O. Dr. Morley reported his examination:

* * * She does appear in some minor distress secondary to pain through the right side of her body. She has a flat affect. * * * She does have some complaints of pain over the right TMJ. The TMJs bilaterally are symmetrical with opening and closing of the jaw. She complains of pain midline cervical to palpation as well as into the traps bilaterally. She has fairly significant guarding through the superior right shoulder joint as well as at the AC joint. There is crepitus at the AC joint. Abduction of her right shoulder is to 90 degrees. I appreciate no subluxation. There is fairly significant guarding with motion above about 45-50 degrees with that shoulder. She shows fairly significant guarding through the right thoracic area radiating anterior to the mid axillary line. She has some rhonchi right lower lung. Respiratory rate is 16. There are moderate amounts of guarding through the lumbar area. She has difficulty with motion at the lumbar spine. That is not only from lumbar pain but also from thoracic pain with quite a bit of guarding through the right rib cage. I did not push that [range of motion]. There is some lumbar spasm. The right knee shows no instability. There is guarding both medial and lateral joint space. There is some slight crepitus. * * *

{¶30} 4. On September 19, 2006, Dr. Morley noted that he would seek authorization for an MRI of the right shoulder and for another chest x-ray. He refilled relator's prescription for Oxycodone. He notes that she was prescribed Percocet at the emergency room. He also reported that she was continuing to work light-duty for her employer.

{¶31} 5. On October 10, 2006, relator returned to see Dr. Morley, who wrote:

* * * She sustained injury to not only the right knee but also the right shoulder, cervical, thoracic and lumbar spine. She also sustained reported rib fracture. She smacked the right side of her face against the cement. She continues to have some jaw discomfort. We discussed the medications. She takes Percocet for the severe pain. We discussed her situation. She is continuing to work with restrictions. We submitted a C9 to have her follow-up for a right shoulder MRI as well as a chest x-ray. It was denied because there was no allowance for the right shoulder or chest wall conditions. * * *

{¶32} On October 10, 2006, Dr. Morley set forth the treatment plan. He indicated that he would seek to amend the claim for additional allowances in order to obtain the right shoulder MRI and chest x-ray. He further wrote: We discussed the medications and she understands the side effects. She [takes the] Percocet only for severe pain. We will continue with that. Percocet 5/325 q8h PRN #20[.] We discussed her work situation. She will continue to work with restrictions. * * *

{¶33} 6. On November 7, 2006, relator returned to see Dr. Morley who wrote:

* * * [S]he is continuing to work. We discussed the medications and at this point, I am going to add Skelaxin. She does not take the Percocet and go to work, she takes that usually at night for the pain.

We discussed the medications. I refilled the Percocet. She understands the side effects, dependency, and tolerance. She will take that sparingly. I did add Skelaxin. * * *

{¶34} 7. On November 28, 2006, relator returned to see Dr. Morley who wrote:

* * * She states that she has pain all over. She states that the pain was such that this past weekend she followed up at the ER. She was given Lyrica. She's taking 50 mgs in the morning and 50 mgs at night which is making her very tired. I'm going to switch her to the 100 mgs at night. She states that it does help somewhat. I also had a discussion with her about the medications. I'm going to discontinue the Percocet and I'm going to put her on Lortab. She's taking 20 over the course of a month. She understands the side effects. I told her not to take that and work. She was off of work for a few days secondary to the pain. She's returned to work now. * * *

{¶35} 8. On December 28, 2006, relator returned to see Dr. Morley who wrote:

"She's continuing to work. She states that the medications enable her to function somewhat."

{¶36} 9. On January 29, 2007, relator returned to see Dr. Morley who wrote:

* * * She's able to work. We discussed the medications. She's been on the Lortab 10 mgs. She states that's not helping as much as it has in the past. At this point, I'm going to discontinue that and put her on the Percocet 7.5 mgs. She'll take that sparingly. I'm also going to increase the Lyrica which she states does help. She can take 200 mgs at night. She, in general, is pleased with the Lyrica. We discussed her pathology. She does feel as though she's getting worse. She states that during the injury she heard a "tear" in her right shoulder and a "pop" in her neck. At this point, she's complaining of severe neck pain radiating through the shoulder. I'm going to submit C9s for both of those areas. * * *

{¶37} 10. On February 27, 2007, relator returned to see Dr. Morley who wrote:

[Patient] returns here today not doing well. She's still having pain. She states that the pain is at times debilitating. We discussed the medications. The Percocet isn't working as well as it has in the past. She takes is usually about one a night. I'm going to change the Percocet back to the Lortab. She will continue with the Lyrica. We reviewed the cervical MRI and it's normal. The shoulder MRI shows a tear of her rotator cuff. She went to Dr. Stanfield in the past for that. She does not want to follow back up with him. At this point, I talked to the case manager. We're going to submit a C9 for the orthopedic consultation as well as the additional allowance. She's also complaining of quite a bit of increasing right knee pain and left ankle pain. She states that the right knee buckles and gives out. She may need an MRI of that. The left ankle is also giving her ...


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