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State ex rel. Demellweek v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

February 27, 2018

The State ex rel. Robert Demellweek, Relator,
v.
Industrial Commission of Ohio and Lowe's Home Centers, LLC, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Siferd & McCluskey, LPA, Lisa Bradley and Richard E. Siferd, for relator.

          Michael DeWine, Attorney General, and Natalie J. Tackett, for respondent Industrial Commission of Ohio.

          Kastner Westman & Wilkins, LLC, Michael J. Spisak and Catherine R. Gambill, for respondent Lowe's Home Centers, LLC.

          DECISION

          TYACK, J.

         {¶ 1} Robert Demellweek filed this action in mandamus seeking a writ to compel the Industrial Commission of Ohio ("commission") to overturn its finding that Demellweek was not entitled to temporary total disability ("TTD") compensation because of a voluntary abandonment of his employment with Lowe's Home Centers, LLC ("Lowe's").

         {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, 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, appended hereto, which contains detailed findings of fact and conclusions of law. The magistrate's decision includes a recommendation that we grant a writ compelling the commission to vacate its order denying TTD compensation for Demellweek based on voluntary abandonment of employment and to conduct additional proceedings to determine if he otherwise is entitled to TTD compensation.

         {¶ 3} Counsel for Lowe's has filed objections to the magistrate's decision. Counsel for the commission has also filed objections to the magistrate's decision. Counsel for Demellweek has filed a memorandum in response. The case is now before the court for a full, independent review.

         {¶ 4} Demellweek was injured on October 31, 2015 while he was working for Lowe's, who is a self-insured employer. His workers' compensation claim has been recognized for "right shoulder sprain; right forearm injury due to overuse; right shoulder superior labrum anterior posterior (SLAP) lesion."

         {¶ 5} When hired, employees of Lowe's are provided a document of over 50 pages which is meant to guide their job activities. Apparently Demellweek received the document at some point in time. He signed an acknowledgement of receiving the document.

         {¶ 6} Over five months after he was injured, Demellweek was fired for operating an order picker while not wearing a harness and tether. Over one month later yet, Demellweek applied for TTD compensation.

         {¶ 7} Following a hearing before a district hearing officer ("DHO") of the commission, the TTD compensation was granted. The DHO rejected the argument on behalf of Lowe's that Demellweek had voluntarily abandoned his employment with Lowe's.

         {¶ 8} On June 1, 2016, Demellweek had surgery on his injured right shoulder.

         {¶ 9} Counsel for Lowe's appealed the order of the DHO granting TTD compensation. A staff hearing officer ("SHO") reviewed the situation and reached a different conclusion. Summaries of the orders of the DHO and SHO are contained in our magistrate's decision. Parts of the document from Lowe's, now frequently referred to as an employee handbook, are also in the magistrate's decision, specifically HR policy 315.

          {¶ 10} The understanding of a Class "A" violation is critical to this case. As noted in our magistrate's decision, Class "A" violations include the most serious misconduct and repeated job performance problems. These serious violations normally will result in immediate discharge. The magistrate concluded the handbook gave Lowe's discretion to treat the violation as Class "A" or Class "B." They treated it as Class "A" without explanation, evading review.

         {¶ 11} Demellweek was accused of using a picker only a matter of inches off the ground. This is no indication he endangered himself or others by not wearing a harness or tether under the circumstances. There is no indication that he did this on a regular or frequent basis. There are no claims he had been disciplined for this or any related conduct before.

         {¶ 12} Nothing in the record before us indicates that Demellweek was on notice that operating a picker a few inches off the ground was conduct which would warrant immediate firing. This case is not like the early abandonment of employment cases which involved situations in which employees comes to work drunk or stoned and therefore were on notice they could or would be immediately fired. This is not a case where Demellweek was endangering himself or others. This is a case where a worker violated one provision in a handbook of over 50 pages.

         {¶ 13} Voluntary abandonment of employment still is a doctrine that bars receipt of TTD compensation in a situation where an employee has to be on notice that his or her conduct can be expected to get him or her fired and then the employee chooses to engage in the conduct anyway. Voluntary abandonment of employment is not meant to be a vehicle which allows a self-insured employer to rid itself of injured workers for a minor violation of a work rule, written or not.

         {¶ 14} We overrule the objections to the magistrate's decision. We adopt the findings of fact in the magistrate's decision except the inaccurate indication that the DHO failed to grant TTD compensation. We also adopt the conclusions of law in the magistrate's decision as amplified herein. We grant a writ of mandamus ordering the commission to vacate the October 4, 2016 order of its SHO and to issue a new order that determines the merits of Demellweek's June 21, 2016 motion for TTD compensation absent a finding that Demellweek voluntarily abandoned his employment.

          Objections overruled; writ of mandamus granted.

          BROWN, P. J, concurs in judgment only DORRIAN, J, concurs in judgment only

          DORRIAN, J, concurring in judgment only.

         {¶ 15} I concur in judgment only. On the facts of the case, given the evidence regarding the practice, customs and usage of the picker device, as well as the common sense and good judgment standard of conduct incorporated into the HR policies, I would find State ex rel. Louisiana-Pacific, Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), criteria was not met even when considering the HR Policy 315 categories.

         APPENDIX

         MAGISTRATE'S DECISION

          KENNETH W. MACKE, MAGISTRATE

         {¶ 16} In this original action, relator, Robert Demellweek, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate the October 4, 2016 order of its staff hearing officer ("SHO") that denies relator's June 21, 2016 motion for temporary total disability ("TTD") compensation starting June 1, 2016 on grounds that relator voluntarily abandoned his employment with respondent, Lowe's Home Centers, LLC, and to enter an order awarding TTD compensation.

          Findings of Fact:

         {¶ 17} 1. On October 31, 2015, relator injured his right shoulder and forearm while employed with respondent, Lowe's Home Centers, LLC ("Lowe's"), a self-insured employer under Ohios workers compensation laws.

         {¶ 18} 2. The industrial claim (No. 15-854338) is allowed for "right shoulder sprain; right forearm injury due to overuse; right shoulder superior labrum anterior posterior (SLAP) lesion."

         {¶ 19} 3. Earlier, on February 10, 2015, relator signed a three-page document prepared by Lowes captioned "Key Responsibilities Guide." At the top of the first page, the document indicates that it is regarding "Job Title: Delivery Driver."

         {¶ 20} Thereunder, under the caption "Key Responsibilities, " 28 unenumerated items are listed. For example, the first item reads: "Secures truck contents before operating vehicle."

         {¶ 21} Thereunder, under the caption "Physical Requirements, " 13 unenumerated items are listed. For example, the first item reads: "Safety Harness: The ability to wear the safety harness to perform job functions."

         {¶ 22} At page three of the document, the following pre-printed "Acknowledgment" is printed above a signature line for the "Applicant/Associate."

I acknowledge that I have read the Job Description and Key Responsibilities Guide and I understand what would be expected of me. The Company reserves the right to change or reassign job duties or to combine positions at any time. I also understand that I am an at-will employee, and the Job Description and Key Responsibilities Guide do not constitute a contract of employment.

(Emphasis sic.) Apparently, relator signed the above acknowledgment on February 10, 2015.

         {¶ 23} 4. The stipulation of evidence filed by the parties on February 17, 2017 presents a multipage Lowe's document beginning at page 12of the stipulation and ending at page 40 of the stipulation. The pagination of this document is approximately 58 pages, including a 2-page appendix. The district hearing officer ("DHO") refers to this document as the "Employer's Handbook" or the "Employee Manual." The SHO refers to this document as the "guide." In its brief, Lowe's refers to this document as the "Guide." (Lowe's Brief at 13.) In its brief, the commission refers to the document as "Lowe's employee handbook." (Commission Brief at 15.) In its brief, the commission also refers to the document as simply the "handbook." Id. In his brief, relator refers to the document as the "handbook." (Relator's Brief at ix.)

         {¶ 24} 5. On the first page or cover page of the approximate 58 page document, Lowe's states: "New employees are to keep this guide in their apron or vest pocket during their first 30 days of employment."

         {¶ 25} 6. Cleary, on careful examination of the three-page document prepared by Lowe's and captioned "Key Responsibilities Guide" and relator's acknowledgment on the third page, there is nothing to suggest that relator acknowledged receipt of the so-called handbook when he signed the acknowledgment on February 10, 2015.

         {¶ 26} 7. However, in his brief, relator, through counsel, refers to "a 58 page handbook given to Demellweek when he was ...


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