The State of Ohio ex rel. Edgard Montanez, Relator,
ABM Janitorial Services, Inc. and The Industrial Commission of Ohio, Respondents.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Shapiro, Marnecheck, Reimer & Palnik, and Matthew Palnik, for relator.
Willacy, Lopresti & Marcovy, and Thomas P. Marotta, for respondent ABM Janitorial Midwest, Inc.
Michael DeWine, Attorney General, and Cheryl J. Nester, for respondent Industrial Commission of Ohio.
(¶ 1} Relator, Edgard Montanez, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate its May 24, 2011 order to the extent that it retroactively terminates temporary total disability ("TTD") compensation, declares an overpayment, and orders recoupment of the compensation from February 3 to September 3, 2010. Relator also seeks to compel the commission to enter an amended order reinstating TTD compensation.
(¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. Although the magistrate made extensive factual findings, we briefly summarize the key facts so that the legal issues presented can be more easily understood.
Facts and Procedural History
(¶ 3} Relator injured his shoulder in June 2006 while working for respondent, ABM Janitorial Services, Inc. ("ABM"). His claim was allowed for "sprain right shoulder/arm; tear right rotator cuff." Relator was also employed by Almostfamily ("AF"), a home health care agency, in June 2006. Relator's employment with ABM terminated for reasons unrelated to his injury on August 30, 2006. However, relator continued to work for AF.
(¶ 4} In October 2009, AF terminated relator's employment due to relator's conviction of two disqualifying offenses. Approximately four months later, relator underwent arthroscopic surgery for the repair of his right rotator cuff tear. Thereafter, relator moved for TTD compensation and ABM initially agreed to the payment of TTD.
(¶ 5} However, on June 9, 2010, ABM moved for termination of relator's TTD based upon a Medco-14 form filed by relator's surgeon indicating that relator could return to work with restrictions. ABM later amended its motion to include voluntary abandonment of his job with AF as a basis to terminate TTD. Following a hearing, the district hearing officer ("DHO"), issued an order finding that relator had voluntarily abandoned his employment with AF and declared an overpayment of TTD compensation since February 3, 2o10, and denied further TTD. Relator appealed that decision.
(¶ 6} Following a December 14, 2010 hearing, a staff hearing officer ("SHO") vacated the DHO's order for reasons not relevant here, but nevertheless found that TTD terminated as of the date of the hearing on the basis that relator voluntarily abandoned his position of employment with AF. The SHO also determined that it lacked jurisdiction to adjudicate the request for overpayment of TTD for the period February 3, 2010 through December 14, 2010. ABM appealed that decision to the three-member commission.
(¶ 7} The commission retroactively terminated TTD compensation, declared an overpayment from February 3 to September 3, 2010, and ordered recoupment. The commission based its decision on its finding that relator voluntarily abandoned his employment with AF when he was discharged by AF for disqualifying conduct and did not obtain subsequent employment. Relator then commenced this action in mandamus contending that the commission abused its discretion.
(¶ 8} The magistrate found that the commission did not abuse its discretion by allowing ABM to amend its June 9, 2010 motion to raise the issue of voluntary abandonment, but that it did abuse its discretion in finding relator ineligible for TTD compensation based upon his voluntary abandonment of his employment with AF. Therefore, the magistrate has recommended that we grant relator's request for a writ of mandamus.
(¶ 9} The commission has filed objections to the magistrate's decision. In its first objection, the commission contends that the magistrate erred in finding the commission abused its discretion when it found that relator's voluntary abandonment of his employment with AF disqualified him from receiving TTD compensation for the period following his right shoulder surgery in connection with his allowed claim with his former employer ABM. We disagree.
(¶ 10} This court recently addressed the issue raised in the commission's first objection in State ex rel. Cline v. Abke Trucking, Inc., 10th Dist. No. 10AP-888, 2012-Ohio-1914 and State ex rel. MedAmerica Health Sys., Corp. v. Brammer, 10th Dist. No. 11AP-904, 2012-Ohio-4416. We held in both of these cases that "a voluntary abandonment of subsequent employment does not relate back and transform an involuntary departure from the original employer into a voluntary departure so as to render the employee ineligible for TTD compensation." MedAmerica at ¶ 5-7; Cline at ¶ 14-15.
(¶ 11} The commission attempts to distinguish both Cline and MedAmerica on the ground that they involved successive employment, not concurrent employment as presented here. We do not find this difference significant. Although it is true that relator worked concurrently for ABM and AF at one time, AF became the successive employer when relator left his employment with ABM. As both Cline and MedAmerica indicate, relator's voluntary abandonment of his job with AF did not transform his involuntary departure from ABM into a voluntary abandonment of that job. In addition, we are not persuaded by the commission's argument that the issue presented here is analogous to the calculation of average weekly wage when there is concurrent employment. The calculation of average weekly wage when there is concurrent employment sheds no light on whether the voluntary abandonment of a job with a subsequent employer disqualifies a claimant from receiving TTD for an allowed claim with an earlier employer. Based upon Cline and MedAmerica, we overrule the commission's first objection.
(¶ 12} In its second objection, the commission contends that the magistrate erred in holding that the commission abused its discretion when it terminated TTD and declared an overpayment. Citing State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, ¶
9 , the commission argues that to be eligible for TTD, "the industrial injury must remove the claimant from his or her job. This requirement obviously cannot be satisfied if claimant had no job at the time of the alleged disability." (Emphasis sic.) Therefore, the commission argues that relator was ineligible for TTD because he was not employed when he had surgery on February 3, 2010. Again, we disagree.
(¶ 13} This court held in MedAmerica and Cline that the language from Eckerly quoted by the commission refers to a claimant's complete abandonment of the workforce, not just unemployment at the time of the alleged disability. Therefore, Eckerly does not support the commission's objection. Nor did ABM argue that relator voluntarily abandoned the workforce after his employment with AF was terminated. For these reasons, we overrule the commission's second objection.
(¶ 14} In its third objection, the commission contends that even if it incorrectly found relator ineligible for TTD, the magistrate erred by granting a full writ rather than a limited writ. The commission argues that it should be allowed to determine the issue of TTD in light of Cline and MedAmerica, which were issued after the commission's denial of TTD in this case. Because the application of Cline and MedAmerica is determinative of relator's eligibility for TTD, there is no reason to remand this matter to the commission. Therefore, we overrule the commission's third objection.
(¶ 15} ABM has also filed objections to the magistrate's decision. In its first objection, ABM contends that Cline and MedAmerica are factually distinguishable and are not dispositive of the issue of relator's eligibility for TTD compensation. We disagree.
(¶ 16} ABM's argument confuses the concepts of abandonment of a job with the abandonment of the workforce. Here, there has been no finding that relator voluntarily abandoned his job with ABM. In fact, ABM did not initially contest relator's eligibility for TTD, suggesting that ABM conceded that relator's separation from ABM was not voluntary. Even when ABM subsequently contested relator's eligibility for TTD, it did not do so on the basis that relator's separation from ABM was due to his voluntary abandonment of his job. Instead, ABM based its argument solely on the fact that relator voluntarily abandoned his job with AF. As we held in Cline and MedAmerica, "a voluntary abandonment of subsequent employment does not relate back and transform an involuntary departure from the original employer into a voluntary departure so as to render the employee ineligible for TTD compensation." MedAmerica at ¶ 5. Although relator was ineligible for TTD during the period he was employed by AF, his voluntary abandonment of his job with AF did not affect his eligibility for TTD based upon an allowed claim with ABM. Cline; MedAmerica.
(¶ 17} Although ABM also argues that relator was ineligible for TTD at the time he applied because he was not employed, ABM concedes that relator never left the workforce. Because relator never left the workforce, he remained eligible for TTD compensation based upon his allowed claim with ABM, even though he was unemployed at the time he sought the compensation.
(¶ 18} For these reasons, we overrule ABM's first objection.
(¶ 19} In its second objection, ABM contends the magistrate erred by raising the nature of relator's separation from ABM in his decision because relator did not raise this issue. ABM's argument reflects a fundamental misunderstanding of the magistrate's analysis.
(¶ 20} The magistrate simply noted that ABM never asserted that relator voluntarily abandoned his job with ABM. Therefore, there was no reason for the magistrate to consider in his legal analysis the possibility that relator had voluntarily abandoned his job with ABM. Nor was there any reason for the relator to raise this non-issue. In the absence of an argument supported by record evidence that relator voluntarily abandoned his job with ABM, the magistrate correctly characterized the relator's separation from ABM as involuntary. Therefore, we overrule ABM's second objection.
(¶ 21} In its third and final objection, ABM contends that the magistrate erred by not recommending a limited writ to allow the commission to address the nature of relator's termination from ABM. We disagree.
(¶ 22} When relator first applied for TTD compensation, ABM did not contest relator's eligibility even though it was aware of the circumstances surrounding relator's loss of employment with ABM. As previously noted, ABM never asserted that relator's separation from his employment with ABM was voluntary. Because ABM never contested relator's eligibility for TTD based upon the nature of his separation with ABM, we overrule relator's third objection.
(¶ 23} Following an independent review of this matter, we find that the magistrate has properly determined the facts and applied the appropriate law. Therefore, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we grant relator's request for a writ of mandamus.
Objections overruled; writ of mandamus granted.
TYACK and DORRIAN, JJ., concur.
Rendered on February 25, 2013
MAGISTRATE ' S DECISION
MAGISTRATE KENNETH W. MACKE J.
(¶ 24} In this original action, relator, Edgard Montanez, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its May 24, 2011 order to the extent that, on eligibility grounds, it retroactively terminates temporary total disability ("TTD") compensation and declares an overpayment and orders recoupment of the compensation from February 3 to September 3, 2010, and to enter an amended order reinstating TTD compensation. Findings of Fact:
(¶ 25} 1. On June 16, 2006, relator injured his right shoulder and arm while employed as a maintenance worker for respondent ABM Janitorial Services, Inc. ("ABM"), a self-insured employer under Ohio's workers' compensation laws.
(¶ 26} 2. The industrial claim (No. 06-859413) is allowed for "sprain right shoulder/arm; tear right rotator cuff."
(¶ 27} 3. As early as 2004, relator was also employed by Almostfamily, a home health care agency. Annually, Almostfamily required its employees, including relator, to sign a one-page form captioned "Criminal Offense Statement." On April 1, 2009, as in earlier years, relator signed the form which states:
You may not begin employment until you have signed and submitted this statement.
You will be fingerprinted for a Bureau of Criminal Investigation and Identification records check.
I (Printed Name)__, hereby declare that I have never been convicted of or pleaded guilty to any of the criminal offenses listed on the back [of] this form. I agree to inform the Administrator or Human Resource Coordinator in writing if, while employed by Almostfamily, I am ever formally charged with, convicted of or plead guilty to any of the offenses listed on the back of this form. Such notification must be within 14 calendar days of the charge, conviction, or guilty pleas. I understand that failure to notify the Administrator or Human Resources Coordinator may result in me being dismissed from Almostfamily may result in me being dismissed from Almostfamily employment. [Sic]
(¶ 28} 4. The back of the form lists "Designated Offenses that Disqualify Employment of a Person in a Position that is Responsible for the Care, Custody, or control of a Child." The back of the form also lists "Designated Offenses that Disqualify Employment of a person in a position that is Responsible for the Direct Care of an Older Adult." Under each category, the form lists R.C. 2907.09, public indecency as a disqualifying offense.
(¶ 29} 5. For reasons that are unclear, in August 2006, ABM terminated relator's employment. However, relator continued his employment with Almostfamily.
(¶ 30} 6. On August 31, 2009, in the Parma Municipal Court, relator was convicted of the offenses of public indecency and disorderly conduct. Relator was fined and placed on probation. The offenses were committed on April 24, 2009.
(¶ 31} 7. By letter dated October 22, 2009, Almostfamily informed relator of his ...