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State ex rel Griffin v. Ken Greco Co.9/30/2004
(REGULAR CALENDAR)
DECISION
IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION
{ } Relator, Shane P. Griffin, commenced this original action requesting a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying compensation for temporary total disability ("TTD"), and to issue a new order granting said compensation.
{ } Pursuant to Civ.R. 53(C) and Loc.R.12(M) of the Tenth District Court of Appeals, this matter was referred to magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) In that decision, the magistrate found that the claimant's discharge for leaving work, and thereafter his failure to call his employer on a sick day, did not establish a voluntary relinquishment of employment because there was no written rule of any kind notifying employees that discharge might result from such conduct. Therefore, the magistrate has recommended that we issue a writ of mandamus directing the commission to vacate its December 2002 order which found a voluntary abandonment of employment and to consider claimant's request for TTD compensation on the merits.
{ } The commission filed objections to the magistrate's decision arguing that the magistrate incorrectly determined that the claimant was fired. Rather, the commission asserts that the claimant quit and therefore, the magistrate incorrectly applied the standard set forth in State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401. The commission also argues that the magistrate should have considered and rejected relator's assertion that the commission had continuing jurisdiction under R.C. 4123.52 after the patellar fracture was diagnosed.
{ } Following an independent review pursuant to Civ.R. 53, we find that the commission's objection to the magistrate's finding that relator was fired is well-taken. Nothing in the record indicates that the employer told relator he was fired. Relator simply walked off the job and never returned. Therefore, we modify the magistrate's conclusions of law to the extent that it applies a legal standard premised upon a termination-rather than a voluntary relinquishment of employment.
{ } We also agree with the commission that the magistrate should have addressed whether the claimant voluntarily abandoned his former position for reasons unrelated to the allowed conditions in the claim. Therefore, we also modify the magistrate's decision to address this argument.
{ } It is undisputed that on March 20, 2003, the Bureau of Worker's Compensation allowed the claim for "right knee patellar fracture" because it was medically substantiated as being causally related to the industrial injury in May 2002. Nevertheless, it appears that the commission believed it could not consider this condition in assessing whether the claimant voluntarily abandoned his former position for reasons unrelated to the claim. We disagree. We believe it was an abuse of discretion for the commission not to assess whether the condition associated with this claim (the patellar fracture), was the reason the claimant voluntarily abandoned his former position. The fact that this condition was not diagnosed until after the claimant voluntarily abandoned his employment does not prevent the commission from considering it under its continuing jurisdiction. Therefore, we grant a limited writ of mandamus directing the commission to vacate its December 2002 order, and remand the matter to the commission to determine whether the claimant voluntarily abandoned his former position because of a condition that was subsequently determined to be causally related
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