[Cite as State ex rel. Sebring v. Indus. Comm., 123 Ohio St.3d 241, 2009-Ohio-5258.]




             THE STATE EX REL. SEBRING, APPELLANT, v. INDUSTRIAL
                     COMMISSION OF OHIO ET AL., APPELLEES.
                   [Cite as State ex rel. Sebring v. Indus. Comm.,
                        123 Ohio St.3d 241, 2009-Ohio-5258.]
Workers’ compensation — Temporary total disability — Claimant’s refusal of
        suitable alternative employment terminates eligibility for continued
        compensation.
  (No. 2008-1639 — Submitted August 11, 2009 — Decided October 7, 2009.)
      APPEAL from the Court of Appeals for Franklin County, No. 07AP-679,
                                     2008-Ohio-3625.
                                  __________________
        Per Curiam.
        {¶ 1} At issue is appellant William R. Sebring Jr.’s eligibility for
temporary total disability compensation. Sebring sprained his lower back on July
12, 2005 while working for appellee Alro Steel Corporation (“Alro”).                   He
returned to his former position of employment a month later.
        {¶ 2} Sebring was laid off on September 6, 2005. He has not alleged
that his layoff was due to injury. A month later, Sebring moved to Cheyenne,
Wyoming, after his wife accepted a job there.
        {¶ 3} Alro — apparently unaware that Sebring had moved — sent a
letter to Sebring’s Toledo area address on January 9, 2006, informing him that
based on his seniority, he was being recalled from layoff. This certified letter was
returned unclaimed.
        {¶ 4} For reasons that are not clear, Sebring called plant superintendent
Jeff Guerra three days later. Guerra informed Sebring of the letter and of his
recall. Sebring responded that he would not be coming back to work.
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       {¶ 5} In March 2006, Sebring asked appellee Industrial Commission of
Ohio to additionally allow his claim for two disc conditions. That request was
granted, and temporary total disability compensation was awarded from
November 20, 2005, continuing upon submission of medical proof.
       {¶ 6} Sebring’s doctor released him to light-duty work in August 2006.
This release prompted two offers from Alro.            The first was facilitated by
CareWorks USA, an organization with an office in Cheyenne, Wyoming. As
outlined in Alro’s letter of August 16, 2006:
       {¶ 7} “At this time, no position is available with in [sic] your physician
outlined temporary restrictions at [Alro].      Per Company policy, it has been
determined that you qualify to participate in the Modified Duty Off-Site [MDOS]
Program. Through CareWorks USA, Alro Steel Corporation has agreements with
several non-profit organizations to provide temporary placement for you within
your outlined restrictions.
       {¶ 8} “Your CareWorks USA Case Manager * * * has secured a position
at a [Cheyenne] non-profit facility that is within your physician[’s] outlined
restrictions. This is a temporary placement and the purpose of this temporary
placement is to facilitate a timely and safe return to work with the goal of
returning to work on-site at Alro Steel Corporation.
       {¶ 9} “You are scheduled to report to work at Goodwill Industries * * *
beginning on Friday, August 18th, 2006. * * * Your CareWorks USA Case
Manager will be meeting you at the off-site location on this day. * * *
       {¶ 10} “* * *
       {¶ 11} “Please note that refusal of the MDOS placement may result in
termination of all Workers’ Compensation benefits.”
       {¶ 12} When Sebring’s case manager contacted him to confirm this
meeting, Sebring responded that he was going to Ohio for several weeks and
would not be attending his appointment. Just days later, Alro sent another letter




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to Sebring extending an offer for a light-duty job at its Toledo facility. Sebring
visited the Toledo plant on September 8, 2006, to pick up a check. Alro offered
him a job on the spot, which Sebring refused because he was going to return to
Cheyenne.
       {¶ 13} Alro moved the commission to terminate temporary total disability
compensation based on Sebring’s refusal to accept light-duty work. The district
hearing officer granted that motion, and in January 2007, a staff hearing officer
affirmed:
       {¶ 14} “The Hearing Officer GRANTS the request to terminate Injured
Worker’s Temporary Total Disability benefits as of 9/8/2006, due to the Injured
Worker’s refusal of a written light-duty job offer.
       {¶ 15} “The Hearing Officer finds Injured Worker[’s] restrictions are
outlined by Dr. Cook * * *. The Hearing Officer finds the written job offer, dated
9/8/2006, is within Injured Worker’s restrictions as provided by Dr. Cook. The
Hearing Officer further finds that on 9/8/2006, the Injured Worker was personally
provided with a copy of the letter and verbally offered the light-duty work.
Therefore, the Hearing Officer does not find the Injured Worker’s argument that
the description of job activity is too vague to be persuasive.      The letter of
8/21/2006 clearly indicates that the Injured Worker’s work activities would
include clerical and Administrative work assistance in the second shift operations
at the Toledo Airport Highway Facility that would include but not be limited to
general filing and distribution of pick tickets. The Hearing Officer finds that if
there was some question or confusion as to whether the job duties were within
Injured Worker’s restrictions, he could have clarified them at the time he
personally saw the Employer who provided him with the written description of
work activity.
       {¶ 16} “Therefore, the Hearing Officer finds that pursuant to [State ex
rel.] Louisiana-Pacific [Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650



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N.E.2d 469], the Injured Worker was provided with a good faith job offer that
was within his work restrictions and he refused it. Therefore, Temporary Total
Disability benefits should terminate 9/8/2006, the date of the refusal of the job
offer.”
          {¶ 17} After further administrative proceedings concluded, this order
became final.
          {¶ 18} Sebring filed a complaint in mandamus in the Court of Appeals for
Franklin County. Sebring argued, among other things, that Alro’s offer of a job at
its Toledo facility did not comply with Ohio Adm.Code 4121-3-32(A)(6) because
it was not within “reasonable proximity” of his Wyoming home. The court of
appeals, speaking through its magistrate, rejected that argument:
          {¶ 19} “It is obvious that the purpose of the ‘reasonable proximity’ rule is
to prohibit an employer from compelling its injured worker to relocate his
residence as a condition of further employment. It is also obvious that the rule
was not promulgated for the purpose of allowing an injured worker to move his
residence to a location not in reasonable proximity to the job site of his former
position of employment such that the employer cannot offer employment within
reasonable proximity of the injured worker’s new residence.
          {¶ 20} “Relator’s suggested interpretation of ‘residence’ turns a rule
designed to protect injured workers into one that can be used by an injured worker
to prevent the employer from exercising its right under [R.C. 4123.56(A)] to
make an offer of suitable employment. In short, relator’s suggested interpretation
of the word ‘residence’ in Ohio Adm.Code 4121-3-32(A)(6) is inconsistent with
the above-noted provision of R.C. 4123.56(A) which provides to an employer the
right to offer suitable alternative employment that will eliminate the payment of
TTD compensation.” Id. at ¶ 45-46.
          {¶ 21} The court concluded:




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         {¶ 22} “Relator must accept responsibility for his decision to move his
residence to a location that makes it difficult to accept an offer of suitable
alternative employment at the location of his former position of employment.
         {¶ 23} “Even though the economic reality of his spouse’s employment
may have prompted the relocation of his residence, relator cannot shift to the
employer the responsibility of accommodating the difficulty of his reporting to
work at Toledo, Ohio, when his residence is at Cheyenne, Wyoming.” Id. at ¶ 54-
55.
         {¶ 24} The denial of a writ of mandamus has prompted Sebring’s appeal
to this court as of right.
         {¶ 25} Sebring issues two challenges to the commission’s decision. The
first arises from State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio
St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, which clarified that voluntary
abandonment and refusal of suitable alternative employment are separate and
distinct employer defenses to the payment of temporary total disability
compensation.      Sebring believes that this case involves refusal of suitable
alternative employment. Pointing to the order’s citation of Louisiana-Pacific, he
asserts that the commission confused the two defenses by engaging in a
voluntary-abandonment analysis. This proposition fails.
         {¶ 26} The January 2007 order does cite Louisiana-Pacific, 72 Ohio St.3d
401, 650 N.E.2d 469 – the seminal decision on voluntary abandonment. The
order’s discussion, however, focuses solely on Alro’s September 2006
employment offer. It does not mention voluntary abandonment or the three-
pronged test that Louisiana-Pacific created.        The commission’s mistaken
reference to Louisiana-Pacific is inconsequential, given the substance of the
order.
         {¶ 27} Sebring also asserts that Alro’s employment offer did not satisfy
Ohio Adm.Code 4121-3-32. Ohio Adm.Code 4121-3-32(B)(2)(d) reiterates that



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temporary total disability compensation can be stopped if the hearing officer
concludes that “the employee has received a written job offer of suitable
employment.” A job offer,” is “a proposal, made in good faith, of suitable
employment within a reasonable proximity of the injured worker’s residence.”
(Emphasis added.) Ohio Adm.Code 4121-3-32(A)(6).
       {¶ 28} The       commission     terminated      temporary     total     disability
compensation based on Sebring’s refusal of light-duty work at Alro’s Toledo
facility. Sebring, however, lived in Wyoming by that time, so the proffered
employment, on that occasion, was not reasonably proximate to his home. This
circumstance has prompted vigorous debate among the parties. Appellees stress
that Sebring voluntarily chose to relocate and must accept the repercussions of
that decision, both positive and negative. The court of appeals agreed, stating that
the employer is not required to accommodate an employee who has moved so far
away that reporting to work is problematic. Sebring counters that appellees’
position will allow employers to terminate the temporary total disability
compensation of relocated claimants by offering them positions that they know
the individual is geographically unable to accept.
       {¶ 29} We find it unnecessary to address these arguments at the present
time. Alro secured jobs for Sebring both in Toledo and in Cheyenne, and Sebring
refused both.      Regardless of which place is deemed to be his residence for
purposes of Ohio Adm.Code 4121-3-32(A)(6), Sebring refused job offers that
were proximate to each. Thus, there is no need for analysis of this issue to
proceed further.
       {¶ 30} The judgment of the court of appeals is affirmed.
                                                                   Judgment affirmed.
       MOYER,       C.J.,   and   PFEIFER,       LUNDBERG   STRATTON,        O’CONNOR,
O’DONNELL, and CUPP, JJ., concur.
       LANZINGER, J., not participating.




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                                 __________________
       Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A.
Bowman, for appellant.
       Richard Cordray, Attorney General, and Sandra E. Pinkerton, Assistant
Attorney General, for appellee Industrial Commission.
       Law Offices of Margelefsky & Mezinko, L.L.C., and Vincent S. Mezinko,
for appellee Alro Steel Corporation.
                           ______________________




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