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State ex rel Jones v. Preferred5/17/2000
Workers' compensation - Court of appeals' grant of writ of mandamus ordering Industrial Commission to vacate its order denying relator temporary total disability compensation and to issue an order granting the compensation affirmed.
Submitted February 8, 2000
Appellee, M. Wesley Jones, sought a writ of mandamus ordering the Industrial Commission of Ohio ("commission") to vacate its order denying him temporary total disability compensation ("TTD"), and to issue an order granting this compensation. The Court of Appeals for Franklin County granted the writ, finding that the commission had no evidence for denying TTD and, therefore, that the commission had abused its discretion. Preferred, Inc., appellant and Jones's former employer, appeals as of right.
Jones injured his back in September 1995 while employed by Preferred. His workers' compensation claim was allowed for "strain/sprain lumbosacral spine; herniated disc L4-5"; however, his request for TTD was denied. In a February 27, 1996 order, a district hearing officer ("DHO") found that Jones had violated Preferred's absenteeism policy by missing three consecutive days without notifying his employer; that he had been terminated on October 6, 1995, for this reason; and that, based on established precedent, he was ineligible for TTD.
Jones appealed the TTD denial; Preferred appealed the allowance of Jones's claim. The staff hearing officer ("SHO") heard evidence, but Jones subsequently withdrew his appeal because he had received unemployment compensation for the period in which he had requested TTD. The SHO thus dismissed Jones's appeal; however, in an order dated May 2, 1996, the SHO still found that Jones had not violated Preferred's absenteeism policy and, therefore, that he had not voluntarily abandoned his job . The SHO also denied Preferred's appeal, and Preferred's further appeal to the commission was refused.
On January 17, 1997, Jones underwent surgery for his back injury. He applied again for TTD, and his doctor certified his disability for the period August 16, 1996 to an estimated date of February 24, 1997. The Bureau of Workers' Compensation granted TTD from January 16, 1997 through February 24, 1997, and to continue based on further medical documentation.
But on Preferred's appeal, a DHO denied TTD. In a March 25, 1997 order, the DHO explained:
"Temporary total disability compensation is denied from 8/16/96 onward based on the prior 2/27/1996 District Hearing Officer finding of voluntary abandonment of employment which precludes any further receipt of emporary total disability compensation beyond such 10/06/1995 abandonment pursuant to [State ex rel. McGraw v. Indus. Comm (1990), 56 Ohio St.3d 137, 564 N.E.2d 695, and State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469]. Any temporary total disability paid from 8/16/1996 to date is hereby declared an overpayment and is to be recouped pursuant to R.C. 4123.511(J)."
Jones appealed, but an SHO affirmed the DHO order denying TTD. The commission refused Jones's further appeal. He then filed this action in the court of appeals and prevailed.
The court of appeals found that the commission had abused its discretion by denying TTD based solely on the February 27, 1996 DHO finding that Jones had voluntarily abandoned his job. That court considered the SHO's finding on appeal-that Jones had not voluntarily left his job-a reversal of the DHO order. The court reasoned that since Jones withdrew his appeal on account of having received unemployment compensation, he had not meant to completely withdraw his appeal and had instead intended only to withdraw h
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