[Cite as State ex rel. Glenn v. Indus. Comm., 122 Ohio St.3d 483, 2009-Ohio-3627.]




THE STATE EX REL. GLENN, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO
                                   ET AL., APPELLEES.

 [Cite as State ex rel. Glenn v. Indus. Comm., 122 Ohio St.3d 483, 2009-Ohio-
                                           3627.]
Workers’ compensation — Temporary total disability compensation — Teacher is
        ineligible to receive temporary total disability compensation during the
        summer when the teacher is receiving prorated wages from the school
        year.
      (No. 2007-2420 — Submitted June 2, 2009 — Decided July 30, 2009.)
                APPEAL from the Court of Appeals for Franklin County,
                            No. 07AP-89, 2007-Ohio-6535.
                                  __________________
        Per Curiam.
        {¶ 1} In State ex rel. Crim v. Ohio Bur. of Workers’ Comp. (2001), 92
Ohio St.3d 481, 751 N.E.2d 990, we considered whether a teacher who is
employed during the academic calendar year but elects to receive earnings over a
prorated 12-month period is precluded from receiving temporary total disability
(“TTD”) compensation during the summer solely because the teacher received her
prorated earnings over the summer.            We concluded that a teacher is not so
precluded, id. at syllabus, if she intended to work an additional job over the
summer and the industrial injury prevented her from doing that job. Id. at 485,
751 N.E.2d 990. In the case at bar, we are asked to consider appellant Margarita
Glenn’s request for TTD compensation.                Glenn is a teacher for appellee
Columbus Public Schools. She was not required to report to work over summer
break. Like many teachers, Glenn elected to receive her salary over 12 months
rather than the nine corresponding to the school year. This meant that she would
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receive wages from Columbus Public Schools during the summer for work that
she had actually performed during the academic calendar year.
       {¶ 2} Glenn was injured in 2004 after being assaulted by a student. The
psychological aftermath has been particularly severe, resulting in allowed
conditions that have rendered her consistently unable to return to the classroom.
Appellee Industrial Commission of Ohio awarded Glenn TTD compensation for
her inability to work during the school year, but denied her compensation over the
2005 and 2006 summer breaks.
       {¶ 3} Denial was based on Crim. Glenn filed a complaint in mandamus
in the Court of Appeals for Franklin County. Citing Crim, the court of appeals
denied the writ, and Glenn has appealed to this court as of right.
       {¶ 4} Glenn apparently believes that Crim is a voluntary-abandonment
case and her single argument urges us to strike the concept in its entirety. These
efforts are misplaced because we expressly held in Crim that a teacher did not
voluntarily abandon his or her position at the end of the school year:
       {¶ 5} “[I]t is axiomatic that a teacher who is required to leave her teaching
position at the end of the school year does not do so voluntarily. If we were to
conclude that teachers ‘voluntarily abandon’ their positions of employment at the
conclusion of each school year, we would disqualify an entire class of claimants
simply because of the unique terms of their employment.” 92 Ohio St.3d at 484,
751 N.E.2d 990.
       {¶ 6} We consider the Industrial Commission’s reliance on Crim to be
flawed for a different reason. Crim did not apply for TTD compensation based on
her inability to work at her teaching job. She applied for TTD compensation
based on her inability to work at a second job during the summer. Id. at 485, 751
N.E.2d 990. This court set forth a two-part test to determine when a teacher is
eligible to receive TTD compensation for a second job even though she is
receiving prorated salary from her primary job. Id. at 485-486, 751 N.E.2d 990.




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                                January Term, 2009




Crim stands for nothing more than this and is therefore not relevant to the issue
before us.
       {¶ 7} During the 2005 and 2006 school years, Glenn received TTD
compensation, not wages. She did not receive TTD compensation during the
summers. If Glenn received her wages from Columbus Public Schools during the
summers of 2005 and 2006, she would be ineligible for TTD compensation. State
ex rel. Bunch v. Indus. Comm. (1980), 62 Ohio St.2d 423, 427, 16 O.O.3d 449,
406 N.E.2d 815 (“The purpose of temporary disability benefits is to compensate
for the loss of earnings”), citing State ex rel. Rubin v. Indus. Comm. (1938), 134
Ohio St. 12, 16, 11 O.O. 382, 15 N.E.2d 541. But if she did not, she should be
eligible for TTD compensation based on the fact that she lost earnings – the
wages earned during the school year, the payment of which was deferred until
summer. Because the record lacks payroll records or other evidence that would
clarify whether      payment of Glenn’s wages resumed over the summers in
question, we order the commission to determine whether Glenn received wages
from Columbus Public Schools during the 2005 and 2006 summers. Because
Glenn suffered an injury that rendered her unable to teach, she is entitled to either
her salary or TTD compensation. She cannot be denied both merely because she
elected to prorate her salary over 12 months.
                                                                 Judgment reversed
                                                           and limited writ granted.
       MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
       LUNDBERG STRATTON, J., concurs separately.
                              __________________
       LUNDBERG STRATTON, J., concurring.
       {¶ 8} I concur in the majority’s judgment; however, I write separately to
clarify the limited purpose of our order. Glenn has admitted that she elected to be




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paid her teacher’s salary over a 12-month period, not a nine-month school period.
The commission’s order of January 24, 2006, also acknowledged that “[p]ayroll
records in file document the injured worker received her teacher earnings over a
pro-rated twelve month period, not over the nine month school period.” Since the
commission denied temporary total disability compensation during the summer
months, we are ordering the commission to determine merely whether Glenn
received her prorated wages from Columbus Public Schools during the 2005 and
2006 summers, that is, whether disability was denied for the summer months
despite the pro rata payment method. In other words, the record is not clear
whether her disability payments were based on nine months of her wages or the
full 12 months as prorated.
         {¶ 9} Nowhere in her brief does Glenn allege that she was not paid over
the summer months, and nowhere does she allege a loss of wages from summer
employment unrelated to teaching. Instead, she asks this court to review the
concept of voluntary abandonment in temporary total disability cases. However,
that issue was not properly before us in this case. Furthermore, as the majority
states, we rejected the argument that a teacher voluntarily abandons his or her
position at the end of a school year in State ex rel. Crim v. Ohio Bur. of Workers’
Comp. (2001), 92 Ohio St.3d 481, 751 N.E.2d 990. Consequently, Crim does not
apply.
         {¶ 10} Therefore, for the limited purpose of our order to the commission,
I concur.
                               __________________
         Philip J. Fulton Law Office, Philip J. Fulton, and William A. Thorman III,
for appellant.
         Loren L. Braverman, for appellee Columbus City School District Board of
Education.




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                              January Term, 2009




       Richard Cordray, Attorney General, and Sandra E. Pinkerton, Assistant
Attorney General, for appellee Industrial Commission of Ohio.
                          ______________________




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