State ex rel. Cynthia D. Sheets, Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
J. Fulton Law Office, and Chelsea Fulton Rubin; Barry A.
Trattner, for relator.
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Law, LLC, John C. Barno, Zeboney N. Barranada, and Jamison S.
Speidel, for respondent Cellco Partnership.
Chelsea Fulton Rubin.
1} Relator, Cynthia D. Sheets
("claimant"), has filed this original action
requesting that this court issue a writ of mandamus ordering
respondent Industrial Commission of Ohio
("commission") to vacate its order that denied her
temporary total disability ("TTD") compensation and
to enter an order granting said compensation.
2} This matter was referred to a court-appointed
magistrate pursuant to Civ.R. 53 and Loc.R. 13(M) of the
Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions
of law, and recommended that this court deny claimant's
request for a writ of mandamus. Claimant has filed objections
to the magistrate's decision.
3} Claimant argues in her first objection that the
magistrate erred when she did not apply State ex rel.
Gross v. Indus. Comm., 115 Ohio St.3d 249,
2007-Ohio-4916 ("Gross II ") to the
instant case and created new law. Claimant contends that
Gross II stands for the proposition that the
voluntary abandonment doctrine cannot be applied to
pre-injury conduct or conduct contemporaneous with the
injury, and this court found so in State ex rel. Ohio
State Univ. Cancer Research Hosp. v. Indus. Comm., 10th
Dist. No. 09AP-1027, 2010-Ohio-3839, and State ex rel.
Ohio Welded Blank v. Indus. Comm., 10th Dist. No.
08AP-772, 2009-Ohio-4646, where we concluded that a claimant
can abandon a former position of employment only if the
claimant has the physical capacity for employment at the time
of abandonment. Here, claimant points out, she was
temporarily and totally disabled at the time of her
termination and was unable to return to her former position
at the time of termination. She also contests the
commission's finding that Gross II was
inapplicable because the conduct leading to her termination
was not related to the allowed injury.
4} We disagree with claimant's arguments. We
find Gross II distinguishable from the present case.
In Gross II, the Supreme Court of Ohio found that a
pre-injury infraction undetected until after the injury is
not grounds for concluding a claimant voluntarily abandoned
his/her employment. Here, claimant's pre-injury
infraction was discovered prior to her injury. Not only was
the pre-injury code of conduct violation discovered prior to
the injury in the present case, but the decision to terminate
claimant for such violation was determined prior to the
5} Furthermore, in Gross II, the employee
was terminated based on the conduct that caused the injury.
The court concluded that if the employee's departure from
the workplace was causally related to the injury, it does not
preclude the employee's eligibility for TTD compensation.
In the present case, claimant was not terminated based on the
conduct that caused the injury. Claimant's conduct that
led to her termination occurred prior to her termination.
Thus, claimant's departure from the workplace was not
causally related to the injury.
6} One concern regarding termination for pre-injury
conduct is apparent. The fear is that an employer may use
pre-injury conduct as a pretext for terminating an employee
who has been subsequently injured. The circumstances in the
present case, however, eliminate that concern, as noted by
the magistrate. Here, the paperwork to terminate claimant had
already been signed and approved (on a Thursday and Friday)
several days before claimant was injured (on a Monday). The
employer, Cellco Partnership, respondent, had already decided
to terminate claimant at the time of the injury, and there is
nothing in the record to suggest the termination was
7} Despite claimant's argument to the contrary,
the magistrate's finding that "[n]othing in the
court's decision in Gross II provides that
pre-injury conduct can never be used to defeat payment of TTD
compensation" is correct. (Appended Mag. Decision at
¶ 47.) The court in Gross II stated,
"[t]he [voluntary-abandonment] doctrine has never been
applied to preinjury conduct or conduct contemporaneous with
the injury." Id. at ¶ 19. Thus, the
Supreme Court in Gross II never indicated that the
voluntary-abandonment doctrine can never be applied to
pre-injury conduct, and it did not address circumstances like
those in the present case, in which the decision to terminate
had already been made prior to the workplace injury.
8} The magistrate's decision is consistent with
one of the main principles set forth in Gross II:
"To be eligible for TTD compensation, 'the claimant
must show not only that he or she lacks the medical
capability of returning to the former position of employment
but that a cause-and-effect relationship exists between the
industrial injury and an actual loss of earnings. In other
words, it must appear that, but for the industrial injury,
the claimant would be gainfully employed.' "
Id. at ¶ 15, quoting State ex rel. McCoy v.
Dedicated Transport, Inc., 97 Ohio St.3d 25,
2002-Ohio-5305, ¶ 35. In the present case, because the
unique circumstance that the decision to terminate claimant
had already been made prior to the industrial injury, we can
be certain that claimant would not have continued to be
gainfully employed even if she had not been injured. In other
words, there was no cause-and-effect relationship between her
injury and her loss of earnings; instead, there was a direct
cause-and-effect relationship between claimant's
misconduct and her loss of earnings.
9} As the court summed up in Gross II,
"[t]he distinctions between voluntary and involuntary
departure are complicated and fact-intensive."
Id. at ¶ 23. An underlying principle, however,
is that if an employee's departure from the workplace
" 'is causally related to his injury, ' "
it is not voluntary and should not preclude the
employee's eligibility for TTD compensation.
Id., quoting State ex rel. Rockwell Internatl.
v. Indus. Comm., 40 Ohio St.3d 44, 46 (1988);
McCoy at ¶ 19. To be sure, the circumstances in
the present case are unique from those cases relied on by
claimant. In none of those cases had the employer already
decided and completed administrative paperwork approving
termination of the employee immediately prior to the
industrial injury. In such a case, claimant's departure
from the workplace was not causally related to her injury and
was voluntary and, thus, precluded her from eligibility for
TTD compensation. For these reasons, claimant's first
objection is overruled.
10} Claimant argues in her second objection that the
commission had no basis to exercise continuing jurisdiction.
Although before the commission the employer alleged the staff
hearing officer ("SHO") committed a clear mistake
of law by following Gross II and finding claimant
was entitled to TTD compensation, claimant contends the SHO
did not commit a mistake of law by adhering to the Supreme
Court precedent in Gross II. We first note that
claimant failed to raise this issue in her brief before the
magistrate. Nevertheless, given our finding above that the
commission did not err when it found Gross II did
not apply here to entitle claimant to TTD compensation,
claimant's argument under her second objection is
overruled. The commission properly exercised jurisdiction
based on a clear mistake of law, which is one of the five
possible bases for exercising continuing jurisdiction
pursuant to State ex rel. Nicholls v. Indus. Comm.,
81 Ohio St.3d 454 (1998). Therefore, we overrule
claimant's second objection.
11} Claimant argues in her third objection that the
commission and magistrate erred when they created policy,
which is not their role. Claimant contends the commission and
magistrate did not have the authority to ignore the Supreme
Court's decision in Gross II and create new law
and policy. However, again, given our above finding that
Gross II is distinguishable and not controlling
here, we cannot conclude that the commission and magistrate
ignored Gross II. Instead, the commission and
magistrate reviewed the facts of the case and found the legal
precedent in Gross II inapplicable to the present
circumstances. Therefore, we overrule claimant's third
12} Claimant argues in her fourth objection that the
commission, and not the magistrate, is the arbiter of the
credibility and weight to be given to the evidence.
Specifically, claimant contends the magistrate made findings
of fact that were not found by the commission in its order.
Claimant cites two specific examples. Claimant first cites
the magistrate's findings that her termination was
approved by Michelle Worthington, the associate director, and
the human resource consultant on Thursday, October 3, 2013;
the termination was approved by the director, human resource
associate director, and human resource director, on Friday,
October 4, 2013; and it was decided that claimant would be
terminated Monday, October 7, 2013.
13} Claimant also cites the magistrate's
findings that on Monday, October 7, 2013, before the manager
arrived to terminate her, claimant tripped, injured herself,
and returned to work with restrictions, and there was no
evidence that claimant's manager or claimant herself had
any reason to believe that she would ultimately file a
workers' compensation claim or that her injuries would be
as extensive as they ultimately became. Claimant contends
these findings of fact were nowhere in the commission's
order and did not play any role in the decision of the
district hearing officer, SHO, or commission.
14} However, we do not find the magistrate's
above findings infringed on the commission's power as
ultimate arbiter of credibility or its power to evaluate
evidence and determine the weight to be given such evidence.
In order for this court to issue a writ of mandamus as a
remedy from a determination of the commission, a relator must
show a clear legal right to the relief sought and that the
commission has a clear legal duty to provide such relief.
State ex rel. Pressley v. Indus. Comm., 11 Ohio
St.2d 141 (1967). A clear legal right to a writ of mandamus
exists where the relator shows the commission abused its
discretion by entering an order that is not supported by any
evidence in the record. State ex rel. Elliott v. Indus.
Comm., 26 Ohio St.3d 76 (1986). On the other hand, where
the record contains some evidence to support the
commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel.
Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987).
Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the
commission as fact finder. State ex rel Teece v. Indus.
Comm., 68 Ohio St.2d 165 (1981).
15} Here, although the commission did not
specifically set forth the underlying facts it relied on in
arriving at its ultimate determination, the evidence the
magistrate cited was the underlying factual predicate for the
commission's determination. The commission found:
[I]t is reasons other than the allowed conditions in the
claim preventing the Injured Worker from working. The
evidence presented at hearing and contained in the record
indicates the Injured Worker was working in a modified
light-duty position at the time she was terminated from her
employment. The Commission finds the reason the Injured
Worker was not working over the period for which compensation
is requested has nothing to do with the allowed conditions in
the claim. The Injured Worker is not working because she was
terminated from her job for violating the Employer's Code
of Conduct Policy.
* * *
In this case, unlike Gross II, the Injured
Worker's termination was completely unrelated to her
industrial injury on 10/07/2013, when she tripped and fell to
the floor. The only reason the Injured Worker was terminated
was because she allowed an unauthorized person access to a
client's private information in violation of the Code of
Conduct Policy. Since the conduct leading to the Injured
Worker's termination in this case is not related to the
allowed injury, the Commission finds the Jones case
is applicable, and Gross II is not.
(Stip. of Evidence at 202.)
16} The evidence cited by the magistrate regarding
the Thursday, October 3, and Friday, October 4, 2013 approval
of termination by the employer's administration is
factual evidence included in the record. This evidence
supports the commission's conclusion that the reason
claimant was not working had nothing to do with the allowed
conditions in the claim; claimant was not working because she
was terminated from her job for violating the employer's
code of conduct policy. Claimant was required to show that
the commission's order was not supported by any evidence
in the record, and the magistrate's citation to the above
factual evidence demonstrated the order was supported by
evidence in the record. The facts cited by the magistrate
provided some evidence from the record to support the
17} As for the magistrate's reliance on the fact
that there was no evidence that claimant's manager or
claimant herself had any reason to believe that she would
ultimately file a workers' compensation claim or that her
injuries would be as extensive as they ultimately became,
these facts further buttress the commission's findings.
These facts support the commission's conclusion that
claimant was not terminated due to her allowed conditions but
because of her violation of the employer's code of
conduct. That there was no evidence to believe claimant would
file a claim or that her injuries were as serious as they
turned out to be tends to demonstrate that her termination
was not due to pretext but truly based on her work-policy
violation. For these reasons, we find the magistrate properly
relied on the evidence in the record to provide some evidence
to support the commission's conclusions. Therefore, we
overrule claimant's fourth objection.
18} After an examination of the magistrate's
decision, an independent review of the record, pursuant to
Civ.R. 53, and due consideration of claimant's
objections, we overrule the objections and adopt the
magistrate's findings ...