[Cite as Wright v. Dir., Ohio Dept. of Job & Family Servs., 2014-Ohio-2663.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Frank W. Wright,                                     :

                 Appellant-Appellant,                :

v.                                                   :                         No. 13AP-1048
                                                                          (C.P.C. No. 13CV-7030)
Director, Ohio Department of                         :
Job and Family Services,                                               (REGULAR CALENDAR)
                                                     :
                 Appellee-Appellee.
                                                     :


                                            D E C I S I O N

                                      Rendered on June 19, 2014



                 Portman & Foley, LLP, Frederic A. Portman, and Erica H.
                 Mowry, for appellant.

                 Michael DeWine, Attorney General, and Patria V. Hoskins,
                 for appellee.


                   APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Appellant, Frank W. Wright, appeals from a judgment of the Franklin
County Court of Common Pleas affirming the decision of the Unemployment
Compensation Review Commission ("the commission"), a division of the Ohio
Department of Job and Family Services ("ODJFS"), appellee.                          In its decision, the
commission found appellant ineligible for unemployment benefits and ordered appellant
to repay an overpayment of benefits. For the following reasons, we reverse that decision.
No. 13AP-1048                                                                                   2


I. Facts and Procedural History
       {¶ 2} In February 1984, appellant became unable to perform strenuous physical
labor at his previous employer, McCarthy Farrell Construction Company, as the result of
lung and heart conditions. The Ohio Bureau of Workers' Compensation ("BWC") granted
appellant temporary total disability compensation benefits ("TTD"), pursuant to claim
number 84-38134, from February 1984 through October 1988.
       {¶ 3} After     completing     college,    appellant    re-entered    the   workforce     in
November 1988 and began working in sedentary and supervisory positions, most recently
for CBS Personnel Services LLC Employee Management ("CBS"). Although appellant was
still eligible for TTD from 1988-2010, he did not receive payments because he was
employed.
       {¶ 4} In August 2010, CBS let appellant go due to a "lack of work" and appellant
applied for unemployment benefits on August 10, 2010.                (Request to Employer for
Separation Information, 2.) ODJFS granted appellant's benefits application. Appellant
filed weekly benefit claims from the week ending August 21, 2010, through the week
ending October 29, 2011. During this period, appellant continued to be eligible for TTD
from his 1984 injury, but did not immediately apply to resume TTD payments.
       {¶ 5} Unable to find sedentary work, in October 2011, appellant again applied for
TTD under his previous claim number, 84-38134. The Industrial Commission of Ohio
("ICO") granted appellant benefits based on his original injury in 1984 and applied the
award retroactively to August 10, 2010.1 As required by R.C. 4123.56(A), BWC paid
ODJFS the retroactive TTD benefits appellant would have received during the same
period he received unemployment benefits.
       {¶ 6} After BWC retroactively reinstituted appellant's TTD based on his 1984
injury, ODJFS found, by redetermination dated February 17, 2012, that appellant had
been ineligible for unemployment benefits from the week ending August 21, 2010.
Further, ODJFS found appellant had been overpaid benefits in the amount of $28,728
from the week ending August 21, 2010, through the week ending October 29, 2011.


1 Appellant filed a C-86 motion with the ICO, seeking a determination he was eligible to receive TTD

benefits. The ICO granted the motion and appellant sought TTD compensation from BWC pursuant to the
ICO ruling.
No. 13AP-1048                                                                          3


ODJFS stated appellant had failed to meet the statutory eligibility requirements entitling
appellant to unemployment compensation. Specifically, ODJFS found appellant had not
provided sufficient evidence showing he was physically able to perform his customary job
duties and, therefore, should not have received unemployment benefits.
      {¶ 7} Appellant appealed ODJFS' redetermination. Through a Director's
Redetermination, ODJFS affirmed the previous denial of appellant's benefits. Appellant
appealed the Director's Redetermination on April 20, 2012, and the appeal was
transferred to the commission.
      {¶ 8} On June 7, 2012, a commission hearing officer conducted a hearing by
telephone.   The hearing officer affirmed the redetermination decision by a written
decision on June 8, 2012. On June 12, 2012, appellant requested a review before the
commission. On August 16, 2012, the commission hearing officer supervisor held a
second telephone hearing. The hearing officer supervisor affirmed the June 8, 2012
decision, finding appellant was "not able to work as required by Law." (Unemployment
Compensation Review Commission Decision, 2.) Appellant appealed the decision to the
Franklin County Court of Common Pleas. In a decision dated November 25, 2013, that
court issued a judgment entry affirming the commission's decision. Appellant filed a
timely notice of appeal to this court on December 16, 2013.
II. Assignments of Error
      {¶ 9} The appellant assigns the following two assignments of error for our review:
             1. The Common Pleas Court erred by concluding that the
             record supported that appellant was not physically able to
             perform his customary job duties.

             2. The Common Pleas Court erred by concluding that
             appellee's Adjudication Order was lawful.

III. Discussion
      A. Physically Able to Perform Customary Job Duties
      {¶ 10} In his first assignment of error, appellant argues the commission's decision
finding him physically unable to perform his customary job duties was not supported by
sufficient evidence. We agree.
No. 13AP-1048                                                                          4


       {¶ 11} A party dissatisfied with a decision of the commission may appeal that
decision to the common pleas court. Salyers v. Ohio Dept. of Job & Family Servs., 10th
Dist. No. 12AP-576, 2013-Ohio-1209, ¶ 14, citing Henderson v. Ohio Dept. of Job &
Family Servs., 10th Dist. No. 12AP-154, 2012-Ohio-5382, ¶ 6; R.C. 4141.282(H). If the
common pleas court finds the decision of the commission was "unlawful, unreasonable, or
against the manifest weight of the evidence, it shall reverse, vacate, or modify the
decision, or remand the matter to the commission. Otherwise, the court shall affirm the
decision of the commission." R.C. 4141.282(H).
       {¶ 12} At the appellate level, "[t]he focus of an appellate court when reviewing an
unemployment compensation appeal is upon the commission's decision, not the trial
court's decision." Goodrich v. Ohio Unemp. Comp. Rev. Comm., 10th Dist. No. 11AP-473,
2012-Ohio-467, ¶ 5, citing Moore v. Comparison Mkt., Inc., 9th Dist. No. 23255, 2006-
Ohio-6382, ¶ 8. Similar to the common pleas court, an appellate court " 'may reverse the
board's determination only if it is unlawful, unreasonable, or against the manifest weight
of the evidence.' " Williams v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 13AP-
312, 2013-Ohio-4159, ¶ 6, quoting Tzangas, Plakas & Mannos v. Ohio Bur. of Emp.
Servs., 73 Ohio St.3d 694, 697 (1995). Although appellate courts are not permitted to
make factual findings or weigh the credibility of the witnesses, the court does have a duty
to determine whether the board's decision is supported by the evidence in the record.
Tzangas at 696.
       {¶ 13} Here, the record indicates the commission based its decision to deny
appellant's benefits on appellant's brief testimony during the June 7, 2012 telephone
hearing. Specifically, in its factual findings, the commission stated that appellant "was
told by his doctor that he could not work for medical reasons on August 10, 2010."
(June 8, 2012 Unemployment Compensation Review Commission Decision, 1.)                The
following exchange occurred during the hearing:
              [Hearing Officer]: And looking at this, you are on temporary
              total disability from August 10, 2010 through May 20, 2012,
              is that correct?

              [Appellant]: Yes.
No. 13AP-1048                                                                         5


              [Hearing Officer]: Have you been cleared to return to work at
              this time?

              [Appellant]: No.

              [Hearing Officer]: You have not?

              [Appellant]: No.

              [Hearing Officer]: So at this point you are unable to work, is
              that correct?

              [Appellant]: Correct.

Emphasis added. (June 7, 2012 Tr., 4-5.)
       {¶ 14} Although the issue before the hearing officer was whether appellant was
able to work light and sedentary work after he was let go from CBS on August 9, 2010, the
hearing officer specifically began by asking appellant about receiving TTD from
August 10, 2010 through May 20, 2012. Appellant's subsequent answers addressed his
TTD stemming from his 1984 injury. Indeed, appellant's counsel attempted to clarify
appellant's statements. Trying to distinguish between the 1984 injury and the 2010
unemployment, counsel for appellant asked "you were originally injured on February 1,
1984, correct?" Before appellant could respond, the hearing officer said:
              Okay, Mr. Portman, just so you know, don't go back that far.
              We're talking about the period and issue. We are talking
              about August 15, 2010 through now. Anything past that is
              irrelevant, so we're only talking about August 2010 and on.
(June 7, 2012 Tr., 5.)
       {¶ 15} Appellant then responded to questions from his counsel demonstrating his
ability to perform lighter duty work and that he was only precluded from "heavy manual
labor." In part, appellant testified as follows:
              [Counsel]: [Appellant], you couldn't go back and do the heavy
              manual labor work you had done originally when you got
              hurt, could you?

              [Appellant]: No.

              [Counsel]: But you could do lighter duty work * * * if it was
              offered to you, correct?
No. 13AP-1048                                                                        6



             [Appellant]: Correct.

             ***

             [Counsel]: Only lighter duty jobs, correct?

             [Appellant]: Right.

             [Counsel]: You just couldn't go back and do the heavy manual
             labor job you were doing at the time you got hurt on
             February 1, 1984, correct?

             [Appellant]: Correct.
(June 7, 2012 Tr., 6.)
      {¶ 16} Similar to the June 7, 2012 telephone hearing, appellant participated in a
second telephone hearing on August 16, 2012, and again testified he was able to perform
light, sedentary job duties.    During the hearing, the hearing officer and appellant
discussed the ICO's decision granting appellant TTD. In part, the testimony revealed the
following relevant exchanges:
             [Hearing officer]: [W]ere you able to do any work at all during
             that time period you were on temporary total [disability]
             compensation?

             [Appellant]: Yes, I was able to go back to sedentary work and
             * * * I did for 16 years after 1988 * * * and from that time I was
             a construction manager estimator for a firm until I was laid off
             in August 2010.

             ***

             [Hearing officer]: [I]t looks like the last page of that * * *
             document, the request for temporary total compensation, it
             looks like the doctor, am I correct, said that[,] it looks like
             question seven[,] is the injured worker able to return to other
             employment including light duty, alternative work, modified
             work, or a transitional work. Do you see that question?

             [Appellant]: Yes sir.

             [Hearing officer]: [W]hat did the doctor check, yes or no?
No. 13AP-1048                                                                            7


              [Appellant]: Yes.

              [Hearing officer]: And is there any writing in there?

              [Appellant]: Yes sir.

              [Hearing officer]: What does yours [say]?

              [Appellant]: Sedentary position such as supervisory position.

       {¶ 17} Appellant's counsel, on direct examination, further demonstrated that
       appellant was capable of performing sedentary job duties. In part, appellant
       testified as follows:
              [Counsel]: Okay now going back to * * * your days at
              McCarthy/Farrell, going back to the date of the accident,
              February 1, 1984, those are the days in which you did heavy,
              manual labor, stressful work, correct?

              [Appellant]: Correct.

              [Counsel]: [Y]ou rehabilitated yourself to the point where you
              reeducated, you got new education, vocational rehabilitation,
              and went to work that you were able to perform physically,
              correct? And that would be supervisory and sedentary
              activities, correct?

              [Appellant]: Correct.

              [Counsel]: [A]nd that's the kind of work you got laid off from,
              correct?

              [Appellant]: Correct.
(Aug. 16, 2012 Tr., 5-9.) During both hearings, the hearing officers seemed to
misunderstand the relevance of appellant's 1984 workers' compensation claim and the
work restrictions related to that claim which was the basis for the retroactive grant of TTD
benefits. The testimony at the hearing does not support the commission's conclusion that
appellant was unable to work during the relevant time frame.
       {¶ 18} Appellant also submitted evidence supporting his contention he was able to
perform the customary duties of light, sedentary work. In its decision, the commission
also referenced appellant's BWC application, which included a statement from appellant's
No. 13AP-1048                                                                          8


physician stating appellant could not perform strenuous physical labor (the same
restrictions in place under the 1984 claim). According to a physician's report filed along
with appellant's workers' compensation claim, appellant was physically able to return to a
"sedentary position such as [a] supervisory position." (Feb. 20, 2012 Physician's Report.)
       {¶ 19} In addition to the above evidence demonstrating appellant was able to
perform sedentary and supervisory work, appellant had, in fact, been performing
sedentary and supervisory duties since 1988. It was only because of a "lack of work" that
appellant was no longer employed by CBS. There is no evidence suggesting CBS let
appellant go because he was physically unable to perform the job duties.
       {¶ 20} Based on the discussion above, we find the evidence presented in the record
does not establish appellant was unable to perform the customary duties of his
employment when he separated from his employment with CBS in August 2010. Any
indication appellant gave that he was unable to work was in reference to his workers'
compensation claim, not his ability to perform light and sedentary work. We find the
commission's determination that appellant was unable to work is not supported by the
evidence in the record, and, therefore, the commission's decision was unlawful,
unreasonable, or against the manifest weight of the evidence. Accordingly, the common
pleas court erred in affirming the commission's adjudication order. Therefore, appellant's
first assignment of error is sustained.
       B. Adjudication Order Regarding Alleged Overpayment
       {¶ 21} In his second assignment of error, appellant argues the common pleas court
erred when it concluded appellee's adjudication order was lawful. Specifically, appellant
argues that the adjudication order was unlawful since appellant had not been overpaid by
ODJFS. Because we find appellant was entitled to unemployment benefits for the period
of the week ending August 21, 2010 to the week ending October 29, 2011, the payment
made by ODJFS to appellant of $28,728 was not an overpayment. Therefore, ODJFS'
determination that appellant was overpaid was erroneous, and we sustain appellant's
second assignment of error.
IV. Conclusion
       {¶ 22} Upon a thorough review of the record, we conclude the commission's
decision was unlawful, unreasonable, or against the manifest weight of the evidence.
No. 13AP-1048                                                                              9


Therefore, we sustain appellant's first and second assignments of error and reverse the
judgment of the Franklin County Court of Common Pleas. Accordingly, we remand the
decision to the trial court with instructions to reverse the judgment of the commission.
                                                                   Judgment reversed;
                                                       cause remanded with instructions.

                            KLATT and CONNOR, JJ., concur.
