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State ex rel. Reisinger v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

August 20, 2019

State ex rel. Cody L. Reisinger, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Anthony P. Christine, for relator.

          Dave Yost, Attorney General, and Sherry M. Phillips, for respondent Industrial Commission of Ohio.

          Frost Brown Todd LLC, Noel C. Shepard, and Steven M. Tolbert, Jr., for respondent Clarkwestern Dietrich Building Systems, LLC.

          DECISION

          SADLER, J.

         {¶ 1} Relator, Cody L. Reisinger, filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied his request for temporary total disability ("TTD") compensation after finding he had voluntarily abandoned his employment with respondent-employer Clarkwestern Dietrich Building Systems, LLC ("ClarkDietrich") and ordering the commission to find he is entitled to that compensation.

         {¶ 2} Relator sustained a work-related injury on February 13, 2017, and his workers' compensation claim has been allowed for the following conditions: "Strain Muscle, Tendon Back Wall Thorax; and Sprain Ligaments Thoracic Spine." (Aug. 16, 2018 Compl. at ¶ 3.) He was able to return to restricted duty work the following day and continued to work full-time in a light-duty capacity until January 15, 2018, when he was terminated from employment for having violated his company's safety rules. Relator filed a C-84 motion requesting the payment of TTD compensation. The commission denied the application on finding relator voluntarily abandoned his employment, precluding the receipt of TTD benefits, when he committed a violation of a written work rule that resulted in discharge. State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995).

         {¶ 3} 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 rendered a decision and recommendation that includes findings of fact and conclusions of law, which is appended hereto. Therein, the magistrate concluded the commission did not abuse its discretion in denying relator's TTD application.

         {¶ 4} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, 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 that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986).

         {¶ 5} Relator has not separately set out objections to the magistrate's decision. However, we are able to discern three objections from relator's "Law and Argument." (Relator's Objs. to Mag.'s Decision at 2.) First, relator claims the magistrate mistakenly found that relator agreed that he was not wearing his safety glasses on the shop floor. Second, relator challenges the magistrate's legal conclusion that the decision of the Supreme Court of Ohio in State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559 (2001), is distinguishable from this case on the facts. Lastly, relator argues that the magistrate erred and violated the rule of law in Louisiana-Pacific Corp. by deeming relator's termination voluntary where ClarkDietrich's written work safety policy precipitating termination did not clearly and unequivocally define either the prohibited conduct or the grounds for discharge.

         {¶ 6} With regard to relator's first objection, we disagree with relator's contention the magistrate found that relator agreed he was not wearing his safety glasses on the shop floor. In setting out relator's argument, the magistrate stated: "Relator asserts that his failure to wear the side shields on his safety glasses on January 11, 2018 was not the first time he had failed to wear eye protection and also asserts that side shields are not specifically mentioned in the handbook." (Mag.'s Decision at ¶ 42.) The magistrate clearly appreciated the fact that relator was wearing safety glasses on the day in question but had not attached the side shields. Accordingly, relator's first objection is overruled.

         {¶ 7} Turning to relator's second objection, in McKnabb, claimant was fired pursuant to a "strict" employer policy against tardiness. The commission denied claimant's application for TTD benefits, but this court issued a writ of mandamus ordering the commission to vacate its order denying compensation. In McKnabb, it was undisputed that claimant had been late 15 to 20 times without repercussions before he was discharged for tardiness. Because the record showed that claimant's tardiness became an issue only after he had filed a workers' compensation claim and requested TTD benefits, the Supreme Court questioned whether relator voluntarily left his employment. Id. at 561-62. In affirming this court, the Supreme Court noted the" 'great potential for abuse in allowing a simple allegation of misconduct to preclude temporary total disability compensation.'" Id. at 561, quoting State ex rel. Smith v. Superior's Brand Meats, Inc., 76 Ohio St.3d 408, 411 (1996).

         {¶ 8} The magistrate distinguished McKnabb as follows: "The magistrate finds that the present case is distinguishable from McKnabb. ClarkDietrich had a progressive discipline policy which is evidenced here. Relator received coaching, a written warning, and a suspension before he was terminated. This situation is very different from the situation presented in McKnabb." (Mag.'s Decision at ¶ 46.) We agree with the magistrate.

         {¶ 9} Unlike the largely unenforced work rule at issue in McKnabb, ClarkDietrich's written work rules do more than just define prohibited conduct, they set forth a standard of enforcement which ClarkDietrich has followed. Thus, this case presents a significantly different set of operative facts than those addressed in McKnabb, and a different result is required. Relator's second objection is overruled.

         {¶ 10} Relator's final objection concerns the application of the rule of law in Louisiana-Pacific Corp. Relator contends that under Louisiana-Pacific Corp., ClarkDietrich's written rules were ambiguous because they did not clearly and unequivocally state that he would be discharged for failing to wear safety glasses, including side shields, when in the plant. Accordingly, relator contends his discharge cannot be considered voluntary abandonment of employment. The magistrate stated that "[p]ursuant to Louisiana-Pacific [Corp.], the rule must be written in such a way that the worker knew or should have known as a dischargeable offense" and that "ClarkDietrich has met its burden of proving that relator's termination was due to his violation of the company's written work rules, and that it was not an attempt to avoid paying TTD compensation to relator in the future." (Mag.'s Decision at ¶ 47, 48.) We agree with the magistrate.

         {¶ 11} ClarkDietrich's employee handbook states: "A second violation of any cardinal rule in any 12-month period may result in termination of your employment." (Emphasis sic.) (Stipulation of Evidence at 96.) Cardinal Rule No. 4 states: "Always wear all required Personal Protective Equipment (PPE) for your job when in the plant." (Emphasis sic.) (Stipulation of Evidence at 101.) Relator received a three-day suspension for violating Cardinal Rule No. 4 on November 16, 2017 (no safety glasses). In connection with the suspension, relator received a written warning stating:

ANY FURTHER VIOLATIONS OF ClarkDietrich POLICIES OR PROCEDURES MAY RESULT IN FURTHER DISCIPLINARY ACTION UP TO AND INCLUDING TERMINATION.

(Emphasis sic.) (Stipulation of Evidence at 106.)

         {¶ 12} On January 11, 2018, less than two months after his last cardinal rule violation, relator violated Cardinal Rule No. #4 by failing to wear safety glasses, including side shields, when in the plant. Relator does not contend that safety glasses, including side shields, are not required PPE when in the plant. On this record, if relator did not know that ClarkDietrich's cardinal rules required him to always wear all safety equipment when in the plant, including safety glasses with side shields, and did not know that he faced termination for his next cardinal rule violation, it was not because ClarkDietrich's written rules were unclear or ambiguous. Accordingly, under Louisiana-Pacific Corp., relator's discharge constituted a voluntary abandonment of employment. Because we agree with the magistrate's application of the rule of law in Louisiana-Pacific Corp. to the particular facts of this case, we overrule relator's third and final objection.

         {¶ 13} Following an independent review of the magistrate's decision and the objections filed by relator, we find the magistrate has determined the pertinent facts and properly applied the relevant law. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. For the reasons set forth in the magistrate's decision and those expressed herein, relator's objections are overruled.

         Objections overruled; writ of mandamus denied.

          KLATT, P.J., and DORRIAN, J., concur.

         APPENDIX

         Rendered on April 25, 2019

         IN MANDAMUS

         MAGISTRATE'S DECISION

          STEPHANIE BISCA MAGISTRATE.

         {¶ 14} Relator, Cody L. Reisinger, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied his request for temporary total disability ("TTD") compensation after finding that he had voluntarily abandoned his employment with respondent-employer Clarkwestern Dietrich Building Systems, LLC ("ClarkDietrich"), and ordering the commission to find that he is entitled to that compensation.

         Findings of Fact:

         {¶ 15} 1. Relator sustained a work-related injury on February 13, 2017 and his workers' compensation claim has been allowed for the following conditions: "Strain muscle, tendon back wall thorax; sprain ligaments thoracic spine."

         {¶ 16} 2. Relator was able to return to restricted duty work the following day.

         {¶ 17} 3. Relator continued to work full time in a light-duty capacity until January 15, 2018 when he was terminated from employment for having violated his company's safety rules.

         {¶ 18} 4. ClarkDietrich distributed an employee handbook to all of its employees, including relator. Pursuant to the cardinal rules policy, five cardinal rules are identified and provide, in pertinent part:

Cardinal Rules are in place to protect your health and welfare and potentially your life. Compliance is in your own best interest as well as that of your family. Cardinal Rules provide guidelines to enforce the most important safety rules. Because of the severe nature of Cardinal Rules, discipline is enforced in an accelerated manner.
Violation of any Cardinal Rule may result in immediate suspension and final notice.
A second violation of any cardinal rule in any 12-month period may result in termination of your ...

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