         [Cite as Marcus v. Dir., Ohio Job & Family Servs., 2016-Ohio-4612.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




DIANE MARCUS,                                     :         APPEAL NO. C-150695
                                                            TRIAL NO. A-1209900
        Appellant,                                :
                                                                  O P I N I O N.
  vs.                                             :

DIRECTOR, OHIO JOB AND FAMILY                     :
SERVICES,

        Appellee.                                 :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 29, 2016




Legal Aid Society of Greater Cincinnati, Regina Campbell and Katherine A. Holley,
for Appellant,

Michael DeWine, Ohio Attorney General, and Robin A. Jarvis, Senior Assistant
Attorney General, for Appellee.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Presiding Judge.

        {¶1}   Appellant Diane Marcus appeals a decision of the Hamilton County

Court of Common Pleas, which had affirmed a decision of the Unemployment

Compensation      Review     Commission      (“the   commission”)      terminating     her

unemployment compensation benefits and charging her with an overpayment of

benefits. We find merit in her sole assignment of error, and we reverse the trial

court’s judgment.

        {¶2}   The record shows that Marcus was employed by Hamilton County until

she was laid off on March 31, 2010. After that time, she performed no additional

services for the county. On April 7, 2010, Marcus received payment from the county for

accrued but unused vacation and sick time. In August 2011, after she was laid off from a

subsequent job, she applied for and began receiving unemployment benefits of $306 per

week.

        {¶3}   While she was receiving unemployment benefits, Marcus also received a

pension of $659 per month from the Ohio Public Employees Retirement System. In

August 2012, the Ohio Department of Job and Family Services (“ODJFS”) determined

that her unemployment benefits should be reduced by the amount of her pension.

ODJFS retroactively applied its decision to April 2011, the date of her initial application

for unemployment benefits, and determined that she was overpaid for 28 weeks of

benefits. Therefore, it terminated her ongoing benefits and assessed an overpayment of

$4,482.

        {¶4}   Marcus filed an appeal with the Ohio Unemployment Compensation

Review Commission, which affirmed ODJFS’s decision.              She then appealed the

commission’s decision to the Hamilton County Court of Common Pleas.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   A magistrate found that the commission’s decision was “unlawful,

unreasonable, and against the manifest weight of the evidence.”        The magistrate

recommended that the commission’s decision be reversed and the cause remanded to

ODJFS to recalculate Marcus’s unemployment benefits “from her application date of

August 1, 2011 to present without the inclusion of her pension.”

       {¶6}   ODJFS filed objections to the magistrate’s decision. The common pleas

court sustained the objections and rejected the magistrate’s decision. The court stated

that “because the Claimant received a payment of $10,454.54 during her base period

from her base employer, her unemployment benefits should be offset by her monthly

pension.” This appeal followed.

       {¶7}   In her sole assignment of error, Marcus contends that the common

pleas court erred in sustaining ODJFS’s objections to the magistrate’s report and

reinstating the decision of the commission.         She argues that the trial court’s

determination that her unemployment benefits should have been reduced by the

amount of her pension is unlawful and unreasonable because it is contrary to the

plain language of R.C. 4141.312. This assignment of error is well taken.

       {¶8}   When reviewing a decision of the commission, both a court of common

pleas and an appellate court apply the same standard of review. A court may only

reverse the commission’s decision if it finds that the decision was unlawful,

unreasonable, or against the manifest weight of the evidence. R.C. 4141.282(H);

Williams v. Ohio Dept. of Job and Family Servs., 129 Ohio St.3d 332, 2011-Ohio-

2897, 951 N.E.2d 1031, ¶ 20. A reviewing court may not make factual findings or

determine the credibility of the witnesses. Id.; RLB, Inc. v. Byrd, 1st Dist. Hamilton

No. C-150529, 2016-Ohio-1181, ¶ 10. But when the facts of a case are undisputed,

and the appeal involves interpretation of a statutory provision, the question becomes



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                     OHIO FIRST DISTRICT COURT OF APPEALS



a matter of law, and appellate review is plenary. Toms v. Ohio Unemp. Comp.

Review Comm., 2d Dist. Clark No. 2007 CA 80, 2008-Ohio-4398, ¶ 14; Fegatelli v.

Admr., Ohio Bur. of Emp. Servs., 146 Ohio App.3d 275, 277, 765 N.E.2d 961 (8th

Dist.2001).

       {¶9}   When determining eligibility for unemployment compensation

benefits and the amount of weekly benefits an applicant will receive, ODJFS

considers the applicant’s “base period” of unemployment, and his or her “benefit

year.” A benefit year is the “fifty-two week period beginning with the first day of that

week with respect to which the individual first files a valid application for

determination of benefit rights * * * .” R.C. 4141.01(R)(1). The base period is the

first four of the last five completed calendar quarters immediately preceding the first

day of an individual’s benefit year.       R.C. 4141.01(Q)(1).     ODJFS reviews all

remuneration received during the base period to determine the amount of the

applicant’s weekly benefits.     See R.C. 4141.30.       “Remuneration” means “all

compensation for personal services, including commissions and bonuses and the

cash value of all compensation in any medium other than cash * * * .”              R.C.

4141.01(H).

       {¶10} R.C. 4141.31(A)(3) provides that “[b]enefits otherwise payable for any

week shall be reduced by the amount of remuneration or other payments a claimant

receives with respect to such week as follows: * * * [p]ayments in the form of

retirement, or pension allowances as provided under” R.C. 4141.312. R.C. 4141.312(A)

provides:

       * * * the amount of benefits payable to a claimant for any week with

       respect to which the claimant is receiving a governmental or other

       pension, retirement or retired pay, annuity or any other similar periodic



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       payment which is based on the previous work of the individual, shall be

       reduced by an amount equal to the amount of the pension, retirement or

       retired pay, annuity or other payment which is reasonably attributable to

       that week, except that the requirements for this division shall apply to any

       pension, retirement or retired pay, annuity, or other similar periodic

       payment only if both of the following apply:

       (1) The payment is under a plan maintained or contributed to by a base

       period employer or chargeable employer.

       (2) * * * services performed for such employer by the individual after the

       beginning of the base period, or remuneration for such services, affect

       eligibility for, or increase the amount of, such pension, retirement or

       retired pay, annuity, or similar payment.

(Emphasis added.)

       {¶11} In this case, there are no factual disputes.         The only issue is the

interpretation of this statute. The interpretation of a statute is an issue of law that we

review de novo. Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio

St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10; Hulsmeyer v. Hospice of Southwest

Ohio, Inc., 2013-Ohio-4147, 998 N.E.2d 517, ¶ 20 (1st Dist.). In interpreting a statute,

we must look to the language of the statute itself. Spencer v. Freight Handlers, Inc., 131

Ohio St.3d 316, 2012-Ohio-880, 964 N.E.2d 1030, ¶ 16; Hulsmeyer at ¶ 20.

       {¶12} Where the language of a statute is plain and unambiguous, we must apply

the statute as written. Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 23 413 (1944),

paragraph five of the syllabus; Dikon v. Ohio Supports, Inc., 2013-Ohio-33, 985 N.E.2d

949, ¶ 18 (1st Dist.). Words used in the statute must be read in context and accorded

their usual and customary meaning. Hulsmeyer at ¶ 20. Courts have a duty to give



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                       OHIO FIRST DISTRICT COURT OF APPEALS



effect to all of the words used in the statute, not to delete words used or to insert words

not used. State Emp. Relations Bd. v. Perkins, 144 Ohio App.3d 460, 466, 760 N.E.2d

850 (1st Dist.2001).

       {¶13} Marcus’s benefit year began on August 7, 2011. Her base period for

calculating the amount of benefits was April 1, 2010, to March 31, 2011. Hamilton

County was a base-period employer. Marcus argues that she did not work for the

Hamilton County Auditor during her base period.         The last day that she performed

services was March 31, 2010, and she did not receive the pension payment until the

second quarter of 2011. The commission held that the pension payments had been

remuneration paid during the base period, even though she had not worked for the

employer with whom she earned the pension during her base period. Marcus contends

that the plain language of R.C. 4141.312(A)(2) shows that the remuneration must be for

services performed during the base period. We agree.

       {¶14} Under the plain language of the statute, the amount of benefits a

claimant receives shall be reduced by the amount of the pension only if both

requirements of the statute are met.         Marcus’s monthly pension met the first

requirement because Hamilton County, a base-period employer, had contributed to

the pension.

       {¶15} But the second requirement of the statute was not met.                   R.C.

4141.312(A)(2) unambiguously provides that the benefits shall be reduced by the

amount of a pension only if services performed by the claimant for a base-period

employer after the beginning of the base period or “remuneration for such services”

affect eligibility for or increased the amount of the pension.         The phrase “such

services” clearly refers to the services performed during the base period as used

earlier in the sentence.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} The statute does not state that any payment by a base-period employer

would meet this requirement, and we may not rewrite the statute to so provide.

Because Marcus had not performed any services for Hamilton County during her

base period and had not received any remuneration for services provided during her

base period that affected her eligibility for or increased the amount of her pension,

the requirements of R.C. 4141.312(A) were not met. See Marinich v. Lumpkin, 12th

Dist. Warren No. CA2011-11-124, 2012-Ohio-4526, ¶ 33.

       {¶17} Consequently, we sustain Marcus’s assignment of error. We hold that

the commission’s decision reducing Marcus’s unemployment benefits by the amount

of her pension was unlawful, unreasonable, and against the manifest weight of the

evidence.      We reverse the common pleas court’s judgment affirming the

commission’s decision, and remand the matter to the commission to recalculate

Marcus’s unemployment benefits from the date of her application to the present,

without including her pension. ODJFS shall eliminate all overpayments on her

account that have been charged due to the erroneous inclusion of her pension and

shall issue her any benefits that were withheld to repay the alleged overpayment or

were denied because including her pension made her ineligible to receive benefits.

                                               Judgment reversed and cause remanded.


C UNNINGHAM and S TAUTBERG , JJ., concur.


Please note:
       The court has recorded its own entry this date.




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