FLIE D. ^ ^ 2^^ 13 LCLE'R I(o 'OURT C n ^ ^ ^^on G & SCHAFFER CO., L.P.A. JAN 0 8?013 CLERK OF COURT SUPREIVE CCURT QF CHI

Transcription

1 ^^II IN THE SUPREME COURT OF OHIO State of Ohio ex rel. Fred D. Cline, V. Appellee, Abke Trucking Inc., et al. Appellant. * BWC Claim No * Supreme Court Case No * On Appeal from the Franklin County Court of Appeals, Tenth Appellate District * * Court of Appeals Case No. 10AP-888 * BRIEF OF APPELLEE, FRED D. CLINE Theodore A. Bowman # GALLON, TAKACS, BOISSONEAULT & SCHAFFER CO. L.P.A Granite Circle Toledo, OH (419) (419) fax tbowman@gallonlaw.com Attorney for Appellee, Fred D. Cline * Cheryl J. Nester # ASSISTANT ATTORNEY GENERAL * 150 East Gay Street, 22"d Floor Columbus, OH * (614) (614) fax * cheryl.nester@ohioattorneygeneral.gov * Attorney for Appellant, * IC of Ohio * ^ ^ 2^^ 13 LCLE'R I(o 'OURT C n ^ ^ ^^on G TOLEDO, OHIO FLIE D JAN 0 8?013 CLERK OF COURT SUPREIVE CCURT QF CHI D V ` c` 3U I CLERK OF COURT SUPREME COURT F HI e063d.o

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES... ii STATEMENT OF THE FACTS AND CASE...1 LAW AND ARGUMENT...4 PROPOSITION OF LAW I: In order to treat termination of employment as a voluntary abandonment the Industrial Commission must determine that the injured worker was terminated as a result of a willing and intentional violation of an employer's work rules...5 A. Abke did not allege, and the staff hearing officer did not find, that Appellee was fired for failing to disclose a diabetic condition to his employer B. The Court of Appeals correctly held that termination of Appellee's employment with Abke based on his diabetic condition could not support a finding of voluntary abandonment of the former position of employment.7 PROPOSITION OF LAW II: Where an employer raises the voluntary defense of voluntary abandonment, it bears the burden of presenting a prima facie case, which must include evidence to establish each element of the defense. The Industrial Commission abuses its discretion by making a finding of voluntary abandonment based on the employer's mere assertion of misconduct, and by making such a finding without specifically identifying the evidence of record relied upon PROPOSITION OF LAW III: Abandonment of the former position of employment will bar subsequent eligibility for temporary total disability compensation only where such abandonment was voluntary and constituted an abandonment of the work force. A claimant who has consistently remained in the work force following termination from his former position of employment is not precluded from receipt of temporary total disability compensation because he is involuntarily out of work at the time a new period of claim-related disability commences I CONCLUSION...22 I CERTIFICATION...23 TOLEDO, OHIO I

3 TABLE OF AUTHORITIES I Cases State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St. 3d 42 (1987)...8 State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 Ohio St. 3d 202(1994)...16, State ex rel. B.O.C. Group v. Indus. Comm., 58 Ohio St. 3d 199 (1991) State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St. 3d 520 (2012)...9, 11 State ex rel. Cordray v. Indus. Comm., 54 Ohio St. 3d 99 (1999)... 12, State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St. 3d 202 (2012) State ex rel. Eckerly v. Indus. Comm., 105 Ohio St. 3d 428 (2005)...15, State ex rel. Estes Express Lines v. Indus: Comm., 2009 Ohio 2148 (10th App. Dist.) State ex rel. Feick v. Wesley Cmty. Servs., 2005 Ohio 3986 (10th App. Dist.)...9 State ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249 (2007)...8 State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995)....7, 20 State ex rel. McCoy v. Dedicated Transp., Inc., 97 Ohio St. 3d 25 (2002)... 8,16 ^^ n ^ nn^ itnn^^ L1J 17 1 A State ex rel'. Mitchell v. Robbins d'r luiyers, Inc., 6 vnio St. 3a ^+ai (iya^^ , ii-il+ State ex rel. Noll v. Indus. Comm., 57 Ohio St. 3d 203 (1991)...7, State ex rel. Pierron v. Indus. Comm., 120 Ohio St. 3d 40 (2008) State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St. 3d 78 (1997)...11 State ex rel. Rockwell International v. Indus. Comm. 40 Ohio St. 3d 44 (1988) State ex rel. Nick Strimbu, Inc. v. Indus. Comm., 2004 Ohio 2991 (10th App. Dist.) State ex rel. Superior's Brand Meats v. Indus. Comm., 63 Ohio St. 3d 277 (1992)...11 State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St. 3d 118 (1993)...8 ii TOLEDO, OHIO

4 Other Authorities 49 CFR Part FMCSR regulations (b)(3)... 5 R.C GALLON,TAKACS,BOISSONEAULT & SCHAFFER CO., L.P.A TOLEDO, OHIO ^m

5 STATEMENT OF THE FACTS AND CASE Appellee, Fred D. Cline ("relator"), suffered an injury in the course of and arising out of his employment with Abke Trucking Inc. ("employer") on August 27, (Complaint at 2). At the time of his injury, relator had been employed for over three and a half years as a truck driver with Abke Trucking. (Stipulated Record, "Stip.", p. 45). On August 27, 2008, while pinning down a rack on a trailer, relator slipped and fell to the ground on his hip. (Complaint at 2). The day following his injury, relator visited the Toledo Hospital Emergency Room where he was diagnosed with a left hip contusion. On September 3, 2008, relator was seen by an orthopedist, David C. Ervin, M.D., who placed him on crutches and advised no weight bearing for 2 to 3 weeks. Pursuant to an order dated September 11, 2008, the BWC allowed the claim for left hip contusion and employer paid wage continuation in lieu of TTD. The wage continuation agreement stipulated that relator would be paid at a rate of $1, per week. On September 17, 2008, relator was placed on restrictions of no climbing, squatting, or lifting over twenty-five (25) pounds, but noting sit down work was acceptable. While receiving wage continuation, relator was required to work at the Red Cross as a part of employer's light duty policy. (Stip., p.3). Relator's claim was additionally allowed for the condition of left hip trochanteric bursitis by administrative order on January 22, During the period of light-duty, relator participated in a course of physical therapy and was released to return to work without restrictions on March 25, (Stip., p.39). On March 27, 2009, relator received a letter from employer stating that he had been terminated. (Stip., p.40). The letter informed relator that because he was on TOLEDO, OHIO ^o

6 to control diabetes, he could not operate a commercial vehicle and was "no eligible to drive truck for Abke Trucking." (Id.). The termination letter also that employer believed relator to have falsified timecards and that such a was "cause for immediate discharge..." (Id.). The dates of the alleged sifications were January 19, 2009, and February 16, 2009, both federal holidays during the off-site location was closed. (Stip., pp , 128). Upon termination, relator sought similar employment as a truck driver. In April relator secured a part-time position with McCloud Trucking. (Stip., p.71). In May 12009, the relator left his part-time position with McCloud and accepted a full-time truck driving position with Hoekstra Transportation, LLC. (Stip., pp.71, ). Throughout June 2009, relator began to suffer a relapse of symptoms from his industrial injury. (Stip., p.53). Specifically, relator began suffering an increase in problems with his hip and was forced to seek treatment. (Id.). On June 25, 2009, relator was terminated by Hoekstra Transportation. (Stip., p.129). Since his second termination, relator has been physically unable to return to truck driving and has received unemployment benefits. On July 1, 2009, relator met with his treating pnysician,,, Lr.,^rv^^^, regarau;^^,.^ 1113, M.:_ w ^ t^:^ recurring problems due to his previous industrial injury. (Stip., p. 53-6). During the July 1, 2009, examination Dr. Ervin noted "persisting tenderness at the greater trochanter, with pain on internal rotation." (Id.). Relator was advised to restrict his work to four hours sitting with no standing, squatting, or kneeling. (Id.). On July 20, 2009, relator again visited Dr. Ervin, who noted "groin pain with reduced hip range of motion." (Stip., p. 58). Dr. Ervin further restricted relator to one month seated work until he could receive an injection. (Id.). Relator was also prescribed Darvocet for pain. (Id.). On TOLEDO, OHIO ^o

7 ugust 5, 2009, relator was seen by Fredrick J. Shiple III, M.D., for an orthopedic medical evaluation. (Stip., pp ). Dr. Shiple noted that relator symptoms due to the allowed conditions in the claim and opined that should be restricted to four hours sitting as well as no standing, squatting or ing at work. (Id.). In an order issued August 12, 2009, the BWC granted TTD July 1; 2009, forward. (Stip., pp. 62-3). The BWC decision was based upon the August 5, 2009, independent medical examination of Dr. Shiple and July 1, 2009, C-84 request for payment of TTD by Dr. Ervin. (Id.). Employer appealed the administrative order, and a hearing was held before a District Hearing Officer (DHO) on September 22, (Stip., pp. 64, 71-2). The DHO affirmed the allowance of TTD, finding that the BWC properly awarded TTD from July 1, 2009, forward. (Stip., pp. 71-2). Employer appealed the DHO decision and the order came before a Staff Hearing Officer (SHO) on December 14, (Stip., pp. 73, ). The SHO vacated the DHO decision, and denied relator's request for TTD, finding that, pursuant to State ex rel. Eckerly v. Industrial Commission, relator was ineligible for TTD. (Stip., pp ). Relator appealed the SHO decision on December 18, (Stip., p. 133). Relator's appeal for further hearing was denied by the Industrial Commission ("commission") on January 9, (Stip., pp ). Relator filed a Request for Reconsideration on January 25, (Stip., pp ). On April 8, 2010, the commission issued an interlocutory order indicating that relator's Request for Reconsideration was accepted, set for hearing before the commissioners and setting aside, holding for naught, the January 9, 2010, order. (Stip., pp ). On June 24, TOLEDO, OHIO "Qgo..

8 2010, the commission found that it did not have the authority to exercise continuing iurisdiction and reinstated the January 9, 2010, order to full effect. (Stip., pp ). On September 16, 2010, relator filed his complaint in mandamus. After briefing land oral argument, a magistrate issued a decision recommending that a writ of mandamus issued ordering the commission to vacate its order of December 14, (Magistrate's Order, p. 14). In so doing, the magistrate concluded that the commission abused its discretion by determining Appellee to be ineligible for TTD compensation based upon his termination or loss of employment at Abke. (Id.). Appellant, Industrial Commission, filed objections to the magistrate's decision, to which the Appellee opposed. On May 3, 2012, the Court of Appeals issued a decision overruling the commission's objections and adopting the magistrate's findings of fact and conclusions of law as its own. (Court of Appeals decision, p. 7). On June 14, 2012, the commission filed a notice of appeal with this Court and filed its brief in support. Appellee now files his brief. LAW AND ARGUMENT,,, i U its a:,.,. ^:,.-,^o^.;,,^ llee ^l^he commission argues tnat it CliCl not adsc i^^ ui^l=i^uvii ii^ u^ilyllls I ^yy_ TTD compensation. (Brief of Appellant, p.8). The commission argues that Appellee committed two rule violations which led to a voluntary abandonment of his employment. (Id., passim). The first violation Appellant alleges was Appellee's "fail[ure] to disclose his insulin-dependent diabetes to Abke, in contravention of federal trucking regulations." (Id., at 8). The second violation proffered by Appellant is that Appellee "falsif[ied] time records" while working at an off-site facility. (Id., at 10). On this basis, Appellant contends that the court below erroneously issued a writ of mandamus. As the LAW OFFICE3 OF & SCHAFFER CO ^ L.P.A. TOLEDO, OHIO a^o

9 discussion set forth below will show, Appellant's arguments are without merit, and the judgment of the court of appeals should be affirmed. PROPOSITION OF LAW I: In order to treat termination of employment as a voluntary abandonment the Industrial Commission must determine that the injured worker was terminated as a result of a willing and intentional violation of an employer's work rules. Appellant argues at pp of its brief, that Appellee failed to disclose an insulin-dependent diabetic condition, and alleges that the court of appeals incorrectly determined that he was fired for having the condition, rather than for failing to disclose it. This argument is without merit. A. Abke did not allege, and the staff hearing officer did not find, that Appellee was fired for failing to disclose a diabetic condition to his employer. The record discloses that Appellee was informed of the termination of his employment with Abke Trucking by way of a letter dated March 27, Insofar as it relates to Appellee's medical condition, the letter states, in pertinent part: It has come to our attention that you have been using a medication that would not allow you to operate a commercial vehicle. According to FMCSR regulations (b)(3) you cannot operate a commercial vehicle if you have diabetes currently requiring insulin for control. Records indicate that you are currently taking Lantus, which is insulin for diabetes. Given this information, you are no longer eligible to drive truck for Abke Trucking, Inc. (Supplement, p. 35) Contrary to Appellant's contention, this letter makes no claim that Appellee concealed this information from Abke, nor does it state that his employment was being terminated by reason of any alleged failure to disclose information concerning his medical condition. Instead, it simply states 5 TOLEDO, OHIO qD.o

10 that his current use of insulin for diabetes renders him ineligible to continue driving truck for Abke. It is likewise clear from the record that the staff hearing officer's order of December 14, 2009, does not contain any finding that Appellee failed to disclose his condition, much less that he was fired by reason of any such failure. In discussing this issue, the SHO order states only: Federal regulations prohibit a driver from operating a commercial vehicle if the driver has diabetes which requires insulin for control. The records in file indicate that the injured worker was taking the prescription drug Lantus, which is a form of insulin for diabetes. (Supplement, p. 50). Appellant's effort to characterize the termination of Appellee's employment as based not upon his being diabetic, but upon a failure to disclose that condition, is simply not supported by the record. As the court below. correctly noted, Abke made no such claim at any stage of the proceedings before the Industrial Commission. The Commission's current argument in this connection amounts to nothing more that an attempt to supply a,,-- -,------_^ rationale for the finding of voiuntary ad'dg _ ll^ oulvl tiiqil ^11GL^ wllivll was set forth within the four corners of the order published by its staff hearing officer. It is well-settled, however, that the Commission has the obligation to clearly and concisely state the basis for its decision, and the specific evidence of record relied upon in making its decision in any order granting or denying compensation. It is likewise clear that this court will not search the record to find evidence not identified within the four corners of the commission's order which might support its decision. State, ex rel Mitchell v. Robbins & Myers, LAW OFFICE9 OF 6 TOLEDO,OHIO a.qB^.o

11 Inc., 6 Ohio St. 3d 481 (1983); State, ex rel. Noll v. Indus. Comm., 57 Ohio St. 3d 105 (1988). In light of the foregoing discussion, it is clear that this court's review, insofar as the issue of Appellee's diabetes is concerned, must be confined to a determination of whether the commission abused its discretion in finding that the termination of Appellee's employment on the basis of his having a medical condition believed by the employer to disqualify him from continued employment as a truck driver constitutes a voluntary abandonment of his former position of employment. B. The Court of Appeals correctly held that termination of Appellee's employment with Abke based on his diabetic condition could not support a finding of voluntary abandonment of the former position of employment. In State ex rel. Louisiana-Pacific v. Industrial Commission, 72 Ohio St. 3d 401 (1995), this court held that an injured worker may be deemed to have voluntarily abandoned his former position of employment when he has been fired from that position as a consequence of his violation of a written work rule which clearly identifies prohibited conduct, provided that such conduct has been previously identified by the employer as a dischargeable offense, and the injured worker knew or should have known of the rule. An examination of Louisiana- Pacific and the precedents underlying it reveals, however, that this holding is grounded in the proposition that one who knowingly and intentionally engages in misconduct may be presumed to have intended, or at least tacitly consented to, the known consequences of his or her deliberate malfeasance. 7 TOLEDO, OHIO ^o

12 In State ex rel. Ashcraft v. Industrial Commission, 34 Ohio St. 3d 42 ( 1987), an employee who had been incarcerated as a result of a felony conviction was denied temporary total disability compensation. Ashcraft, 34 Ohio St. 3d 42. The court held that "[w]hile a prisoner's incarceration would not normally be considered a`voluntary' act, one may be presumed to tacitly accept the consequences of his voluntary acts. When a person chooses to violate the law, he, by his own action, subjects himself to the punishment which the state has prescribed for that act." Id. at 44. Similarly, in State ex rel. Watts v. Schottenstein, 68 Ohio St. 3d 118 (1993), the court held, "While not generally consented to, discharge, like incarceration, is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character." Watts, 68 Ohio St. 3d at 121. The Court has further held that "[a] departure under such circumstances must be considered voluntary for purposes of temporary total disability compensation because an employee must be presumed to intend the consequences of his or her voluntary acts." State ex rel. Gross v. Indus. Comm., 115 Ohio St. 3d 249, 252 (2007). See also State ex rel. McCoy v. Dedicated Transp., Inc., 97 Ohio St. 3ci 25 (2002). Common to the cases in which this court has sanctioned the denial of compensation on the basis that the termination of employment constituted a voluntary abandonment is the fact that the claimant in each knowingly and intentionally engaged in prohibited behavior with the knowledge that his or her conduct would likely lead to the loss of employment. It is neither unreasonable nor unfair to hold, as this Court has, that a claimant may be deemed to have intended or accepted the consequences of knowing and deliberate misconduct in violation of his employer's work rules. It is an LAW OFFICES GF 8 TOLEDO, OHIO ^m

13 altogether different matter, however, to say that one can be presumed to have accepted the consequences of actions which did not involve the intentional violation of such rules. In State ex rel. Feick v. Wesley Community Services, 2005 Ohio 3986 (10th App, Dist.), the injured worker was discharged after she was involved in a motor vehicle accident which resulted from her negligence in entering an intersection on a red light. On two prior occasions, in violation of a company policy prohibiting carelessness, negligence, or irresponsibility, the injured worker had negligently backed a van into another vehicle, and negligently placed the wrong key in the ignition of a van, causing damage to the van. Id. at *P14. The injured worker had received a written warning after the second incident which stated that "further violation of any company rule will result in termination." Id. at 14. The commission denied the injured worker's request for temporary total disability based on a finding of voluntary abandonment. Id. at *P The appellate court disagreed, however, and held that "the injured worker must have willingly undertaken the misconduct for which she was fired in order for the misconduct to take on a voluntary character." Id. at *P27. See also State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St. 3d 520 (2012). Assuming for purposes of argument that Abke Trucking correctly interpreted the provision of the Federal Motor Carrier Safety Regulations cited in its letter terminating Appellee's employment as prohibiting anyone taking insulin for diabetes from operating a commercial vehicle', it could at most be ' The commission's brief calls this matter into question. As noted at pp 8-9 of Appellant's brief, the Medical Advisory Criteria for Evaluation under 49 CFR Part are not codified regulations based on statutory law, but guidelines designed to assist a physician in determining a driver's medical qualifications. It 9 TOLEDO, OHIO qED..

14 said that as a result of his diabetes, Appellee was, as stated in Abke's letter, "no longer eligible to drive truck for Abke Trucking, Inc." Contracting a disease, however, can scarcely be construed as behavior willingly undertaken by Appellee in violation of a work rule prohibiting such behavior. The court of appeals correctly held that termination of Appellee's employment on the basis of his diabetic condition was not legally sufficient to support a finding of voluntary abandonment. PROPOSITION OF LAW II: Where an employer raises the voluntary defense of voluntary abandonment, it bears the burden of presenting a prima facie case, which must include evidence to establish each element of the defense. The Industrial Commission abuses its discretion by making a finding of voluntary abandonment based on the employer's mere assertion of misconduct, and by making such a finding without specifically identifying the evidence of record relied upon. Appellant argues at pp of its brief that its staff hearing officer did not abuse his discretion in finding that Appellee falsified his time cards and that his termination therefore constituted a voluntary abandonment of his former position of employment. A substantial portion of this argument is ' t '.._]^^ F 4L... 4: ^ t., L. 44vA nnnnan^inn SupporieU Dy a UIJGUJJ1V11 Vl the 11111G silve w Jl.LV1111LLVll iii vv.uavv.vu vi^ith Appellee's participation in the modified duty off-site program, pursuant to which he was assigned to perform light-duty work at the American Red Cross. These documents are reproduced at pp of Appellant's Supplement. It is critical to note, however, that these documents were not in evidence at the time of the December 14, 2009,. hearing before the staff hearing officer. The documents would appear from the commission's discussion that the examining physician retains the discretion to determine whether a specific individual is or is not fit to operate a commercial vehicle. TOLEDO, OHIO s.qbr..

15 were not submitted to the Industrial Commission until June 24, 2010, more than six months after the date of the SHO order purporting to find that they contained falsifications. The court of appeals correctly determined that the actual time sheets alleged to have been falsified were not in evidence at the time of the SHO hearing, and that the only evidence contained in the record was Abke's March 27, 2009, letter to Appellee informing him of the termination of his employment. It is settled law where the injured worker has presented a prima facie case for entitlement to temporary total disability compensation, he is not required to also prove that he did not voluntarily abandon his employment. Instead, the burden of proof as to voluntary abandonment rests on the employer or the Adminstrator. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St. 3d 78 (1997). The employer does not satisfy its burden of proof merely by asserting before the commission that it terminated the injured worker's employment for iolation of work rules. This court has explicitly recognize d, that ^na great potential for abuse exists in allowing the mere allegation of misconduct to bar receipt of temporary total disability compensation, and to prevent such abuse it is the duty of the Industrial Commission to carefully scrutinize the totality of the circumstances surrounding the termination of employment. State ex rel. Superior's Brand Meats v. Indus. Comm., 63 Ohio St. 3d 277 (1992). This court has quite recently recognized, in State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St. 3d 520 (2012) that this scrutiny includes the requirement that the LAw OFFICES OF & SCHAFFER CO., L.P.A TOLEDO, OHIO Ogp.o

16 commission determine for itself whether the injured worker actually committed the violation for which he was terminated. As the court of appeals correctly concluded, Abke's letter of March 27, 2009, which was the only evidence in the record at the time of the SHO hearing in December of 2009 is noting more than a naked assertion of misconduct. Abke had the burden of supporting this allegation by submitting evidence to substantiate it, and by doing so in a timely fashion. This court has explicitly held that the Industrial Commission is under no obligation to consider evidence which was available for submission, but not submitted, at or before the time of the hearing. State ex rel. Cordray v. Indus. Comm., 54 Ohio St. 3d 99 (1999). Appellee recognizes that the commission has argued in its brief that even though the time sheets were not contained in the record at the time of the December 14, 2009, hearing, there was presumably testimony taken at that hearing which might have afforded a factual basis for the hearing officer's r finding w ith respect to raisin r cation. i nis argui^^eiit al _^o Iai F ^^, i ml_ _1 71._ 4. i^fr Lwo reasons. First, as the court of appeals recognized through its adoption of the magistrate's conclusions of law, no record was made of that hearing. Therefore, the record available for review consists only of the documentary evidence which was before the commission at the time it made its determination. Second, the SHO order at issue contains no explanation of the rationale for concluding that Appellee falsified time cards, nor does it identify any evidence relied upon by the hearing officer as factual support for that conclusion. In fact, & SCHAFFER CO., L.P.A TOLEDO, OHIO a o^m

17 lexamination of the SHO order reveals that otherwise detailed, two-page order contains but one sentence addressing the falsification issue: "Furthermore, the Injured worker falsified his time cards for the dates of 1/19/09 and 2/16/09." Since this Court's decision in State ex rel. Mitchell v. Robbins & Myers, Inc. more than a quarter of a century ago, it has been settled law that Industrial Commission orders "must specifically state which evidence... has been relied upon to reach their conclusion and contain a brief explanation stating why the claimant is or is not entitled to the benefits requested." Mitchell, 6 Ohio St. 3d at As this Court noted, the commission's orders must clearly identify the evidence relied upon and the rationale underlying its decision in order to permit reviewing courts "to readily discern the specific grounds relied upon and whether the record supports such a finding." Id. In State, ex rel. Noll v. Industrial Commission, this Court found that the commission had continued to publish orders which failed to meet the requirements of Mitchell, and reiterated what is required of commission orders when granting or denying benefits to a claimant. State ex rel. Noll v. Indus. Comm., 57 Ohio St. 3d 203 (1991). This Court heic'l that "an order of the commission shouid make it readiiy - a-- ^ ^l,arent iol-ii the four corners of the decision that there is some evidence supporting it." Id. at 206. Further, this Court held: "a meaningful review can be accomplished only if the commission prepares orders on a case-by-case basis which are fact specific and which contain reasons explaining its decisions... Such order[s] must specifically state what evidence has been relied upon to reach its conclusion and, most important, briefly explain the basis of its decision....[t]his court will not search the entire record for `some evidence' to support the commission's orders." & SCHAFFER CO., L.P.A 13 TOLEDO, OHIO ^o

18 Id. This Court issued a limited writ to the commission to vacate its order denying the claimant's application. Id. The single sentence contained in the December 14, 2009, staff hearing officer order stating that the injured worker falsified his time cards for two specific dates is manifestly inadequate under Mitchell and Noll. It clearly fails to identify any evidence relied upon in arriving at that conclusion. Moreover, as the court of appeals recognized, where the term "falsification" is not defined in an employer work rule or handbook, courts attempting to determine whether the injured worker actually committed a violation involving falsification should consider the definition of that term set out in R.C State ex rel. Nick Strimbu, Inc. v. Indus. Comm., 2004-Ohio-2991, affirmed at 106 Ohio St. 3d 173 (2005). The SHO order in this case quite plainly does not address the elements of falsification as set forth in that provision. The staff hearing officer's finding that Appellee violated employer work rules by falsifying time cards was plainly an abuse of discretion, both because the employer failed to meet its burden of proof as to that is-sue, and because the SHO order failed entirely to meet the requirements of Mitchell and Noll. PROPOSITION OF LAW III: Abandonment of the former position of employment will bar subsequent eligibility for temporary total disability compensation only where such abandonment was voluntary and constituted an abandonment of the work force. A claimant who has consistently remained in the work force following termination from his former position of employment is not precluded from receipt of temporary total disability compensation because he is involuntarily out of work at the time a new period of claim-related disability commences. L4W OFFICES0F TOLEDO, OHIO ^m

19 Appellant's second proposition of law, set forth and argued at pp of its brief, urges strict reliance on State ex rel. Eckerly v. Indus. Comm., 105 Ohio St. 3d 428 (2005) for the proposition that one who has voluntarily abandoned his former position of employment but has re-entered the work force will be eligible for temporary total disability compensation if, and only if, he was employed at the time the new period of disability began. For the reasons which follow, Appellee respectfully submits that Eckerly is not dispositive of the case at bar, and is, in any event, distinguishable from the facts of this case. First, as should be apparent from the preceding discussion, it is Appellee's contention that he did not voluntarily abandon his former position of employment. Should this court so find, then Appellant's discussion of Eckerly becomes irrelevant, in that its holding only applies to injured workers who did voluntarily abandon their former positions. Assuming, arguendo, that Appellee could properly be found to have.,., i1_a + 1..^ voluntarily abandoned his employment witn tinxe,, it must, Ve recallgu + >. ^ L1 1AL 11G sought out and secured new, part-time employment within a few weeks of his departure from Abke's employ. Within a matter of a few weeks after that, he secured a full time position with Hoekstra Transportation. As the discussion below will show, the fact that his post-termination actions evinced a clear intention to remain in the work force places this case on a materially different factual and legal footing than Eckerly and other cases in which the injured workers' actions after separation from the former position TOLEDO, OHIO ^o

20 evidenced no intention of continuing to engage in sustained remunerative employment. Prior holdings of this court establish the proposition that the mere characterization of claimant's departure from the former position of employment as "voluntary" is not, in and of itself, determinative of that individual's eligibility for a subsequent period of temporary total disability. For abandonment of the former position to preclude temporary total disability compensation it is necessary to find not only that the separation from the former position was voluntary but also that it constituted an abandonment of the entire work force. State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 Ohio St. 3d 202 (1994). See also State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St. 3d (2002). Accordingly, determination of eligibility for temporary total in a case where the employer asserts the bar of voluntary abandonment necessarily involves a two-step analysis. In this connection, inquiry into subsequent employment or search for employment becomes relevant. It is entirely logical to infer that one w ho voluntarily departed from his former position and made no significant or sustained effort to secure other employment thereafter not only intended to, but in fact did abandon the work force altogether. In such a case, the voluntary character of the retirement, coupled with evidence of abandonment of the entire work force, warrants denial of total disability compensation. Viewed in light of this analytical approach, this court's much-cited decision in State ex rel. Pierron v. Indus. Comm., 120 Ohio St. 3d 40 (2008), and its LAW GFFICES OF 16 TOLEDO, OHIO ^

21 very recent decision in State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St. 3d 202 (2012), can be seen as examples of this two-step analysis. In Pierron, after a 1973 injury, Pierron was placed on restrictions which were accornmodated by his employer and under which he continued to work for twenty-three years following his industrial injury. Id. at 40. In 1997, Pierron's employer informed him it was eliminating his position, and he was given the option of being laid off -- which would have allowed him to apply for unemployment compensation while seeking other employment -- or retiring. Id. at Pierron chose retirement. Id at 41. Six years after retiring, during which time he made no significant or sustained attempts at finding other employment, Pierron sought TTD. His request which was denied administratively when the commission determined his retirement was a voluntary abandonment of the workforce. Id. Pierron's request for a writ of mandamus was denied both by this Court and the Ohio Supreme Court. Id. at The Court explicitly recognized that "there was no causal relationship between [Pierron's] industrial injury and either his departure from Sprint/United or his voluntary decision to no longer be actively employed." Id. at 42. In Corman, the claimant sustained an industrial injury in He retired from his employer in So far as can be determined from this court's opinion, he did not work or seek work at any time thereafter. Corman, 132 Ohio St. 3d at 203. This Court specifically noted that, "[t]he record contains no evidence that he was medically incapable of other work." Id. In 2009, Corman requested payment of temporary total disability compensation. The Commission denied the request, finding that his retirement was unrelated to his injury. The commission further LqW GFFICES OF 17 TOLEDO, OHIOa3617-n72 ^m

22 "noted that Corman never sought other work in the years after he left Allied Holdings, thus demonstrating his intent to permanently abandon the labor market. " Id. at 2 (emphasis added). In both of these cases, it was determined from the facts and circumstances surrounding their retirements that both men had retired for reasons which were not causally related to their industrial injuries. This finding addresses the threshold issue of whether the retirement was voluntary. Having concluded that it was, it then became necessary to determine whether the voluntary retirement also constituted a complete abandonment of the labor market. Because neither man's post-retirement actions evinced an intention to remain in the market, despite the lack of medical evidence showing an inability to do so, it was properly concluded that both had abandoned the labor market. Accordingly, the two separate inquiries demanded by Baker Material Handling were both addressed. It is clear from the undisputed facts of this case, however, that > _a_1" -C 11.,...,t 41. 4o«.v.ivio4inn nf Appellee sought other employment irnrneu > ialcly ^^^l^wi^^^ Lli.^ ^^ili=liluul^= employment with Abke, and secured such employment within a short period of time. Not satisfied with part-time work, however, he continued to seek a better opportunity, and soon secured a new, full-time position with Hoekstra. He was terminated from that position on June 25, 2009, less than a week before his treating physician certified a new period of disability commencing as of July 1, On these undisputed facts, the court of appeals correctly found that Appellee had not evinced an intent to leave the work force. Quite TOLEDO, OHIO o.^o

23 to the contrary, his actions showed every intention to remain in the work force. Thus, even if one were to assume for purposes of argument that Appellee voluntarily abandoned his job with Abke, his continued participation in the workforce thereafter would preclude the second finding necessary under Baker Material Handling. It cannot reasonably be concluded on these facts that Appellee's departure from Abke also constituted a departure from the work force in general. Accordingly, temporary total disability entitlement should remain intact. The commission asserts, however, that irrespective of Appellee's continued participation in the work force, temporary total is precluded by Eckerly because he had been fired from his job with Hoekstra a few days before the follow-up doctor's visit which resulted in his physician certifying a new period of disability. There are two difficulties with the commission's analysis. First, as the court of appeals noted, the facts of this case readily distinguish it from Eckerly. The claimant in Eckerly, as this court noted "was ^ -- i: _ a:...,t,...,., 1<. almost entirely unemployed in the two years a^^c-r u>._z u> sclial g^ earning o =.y approximately $800 during that period. Eckerly, supra, at 10. Indeed, Appellee respectfully suggests that there is much merit in the court of appeals observation that Eckerly can be viewed as a case which turns on the claimant's apparent abandonment of the work force. Second, it must be borne in mind that involuntary departure does not bar later eligibility for temporary total compensation. State ex rel. Rockwell International v. Indus. Comm., 40 Ohio St. 3d 44 (1988). As a general rule, employer LAw OFFICES OF TOLEDO, OHIO s^

24 initiated separation from employment is considered involuntary. State, ex rel. B.O.C. Group, 58 Ohio St. 3d 199. The rule in Louisana-Pacific, permitting certain employment discharges to be treated as voluntary, stands as an exception to this general rule. This brings us face-to-face with a significant problem in the broad and mechanical interpretation of Eckerly advanced by the commission. The commission's interpretation of Eckerly would preclude the payment of temporary total compensation to anyone who was not actively working at the precise date the new period of disability began. Under this reading, one who had voluntarily abandoned his former position, but later re-entered the labor market and worked consistently for ten years would be denied temporary total compensation for an admittedly claim-related period of disability he became temporarily and involuntarily unemployed shortly prior to the onset of the new period of disability. This result, however, would be in clear conflict with Rockwell International's holding that only voluntary separation from employment bars eligibility for temporary total disability compensation.,,, r 71--L--- l d,..+,...,, ar, It would also conflict with the nolqing ol Baker 1vlutercuc ilurcuiiicg that u.. abandonment of the former position of employment. precludes TT only if it was voluntary and constituted an abandonment of the entire labor market. In this connection, Appellee respectfully commends to this court's attention the decision of the Tenth District Court of Appeals in State ex rel. Estes Express Lines v. Indus. Comm., that rigid application of the Eckerly 2009 Ohio 2148, which appears to recognize holding would result in the denial of a ^ medically appropriate award of temporary total disability compensation simply TOLEDO, OHIO ^o

25 by reason of the fact that the claimant was involuntarily out of work at the moment the new period of disability arose. In Estes Express, the injured worker voluntarily abandoned his former position of employment, but reentered the workforce in a seasonal position. Id. at 7-8. On November 3, 2006, the injured worker was laid off at the close of the season. The same day, he saw his physician for follow up of his industrial injury, and underwent claim-related surgery three days later. Id. at 8. The injured worker sought TTD from the date of surgery forward. This request was granted by the commission. Id. The commission found that because the injured worker's layoff did not constitute voluntary abandonment, he was entitled to compensation. Id. at 9. Upon the employer's request for a writ of mandamus, the court of appeals agreed with the commission and found that an involuntary separation from subsequent employment did not preclude an injured worker from receiving TTD. Id. at 12 (citing State ex rel B.O.C. Group, 58 Ohio St. 3d 199). The appeals court held that, "`the decision to lay off claimant was one initiated by the employer... Therefore, the fact that the claimant was laid off does not preclude [receipt] temporary ^ olr ^+wla11,. isatiility au compensation. ***[A]n employer initiated departure is still considered involuntary as a general rule."' Id at In closing its analysis, the court observed "[i]f claimant had voluntarily abandoned his employment...after reentering the workforce and becoming eligible for TTD, then a different outcome may result. Id. at 16. The commission's contention that Appellee is barred from receiving temporary total disability compensation because his most recent employment ended a few days before his doctor certified a new period of claim-related TOLEDO, OHIO ^o

26 I disability, in short, fails to take into account the well-established proposition I that employer-initiated separations from employment are generally deemed I involuntary, and may be treated otherwise only upon a showing that all the elements of the Louisiana-Pacific test have been met. In the December 19, 2009, SHO order at issue in this cause, there is determination made, or even attempted to be made, to the effect that Appellee's departure from his most recent job could be treated as voluntary under Louisiana-Pacific. Absent such a finding, it is nothing more or less than a presumptively involuntary employerinitiated departure which should, as a matter of law, have no impact on eligibility for temporary total disability compensation. CONCLUSION For the reasons discussed above, the Industrial Commission abused its discretion in denying Appellee's request for temporary total disability compensation beginning July 1, The judgment of the court of appeals so finding and - granting a writ of mandamus must be affirmed. Respectfully submitted, By X Theodore A. Bowman LAw OFFICES OF TOLEDO. OHIO ^m

27 CERTIFICATION This is to certify that the foregoing Brief of Appellee, Fred D. Cline, was served upon Attorney for Appellant, Industrial Commission of Ohio, Cheryl J. Nester, Assistant Attorney General, 150 East Gay Street, 22"a Floor, Columbus, Ohio , by regular U.S. Mail this I `'-day of January [i7 Theodore A. Bowman LAW GFFICES OF 23 TOLEDO. OHIO o