[Cite as State ex rel. Haddox v. Indus. Comm., 135 Ohio St.3d 307, 2013-Ohio-794.]




THE STATE EX REL. HADDOX, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO,
                                   APPELLANT, ET AL.
       [Cite as State ex rel. Haddox v. Indus. Comm., 135 Ohio St.3d 307,
                                    2013-Ohio-794.]
Workers’ compensation—Res judicata and continuing jurisdiction of Industrial
        Commission—Temporary-total-disability compensation—Discharge not
        tantamount to voluntary abandonment of employment.
    (No. 2011-1622—Submitted January 22, 2013—Decided March 12, 2013.)
              APPEAL from the Court of Appeals for Franklin County,
                           No. 10AP-152, 2011-Ohio-3923.
                                 __________________
        Per Curiam.
        {¶ 1} This case involves the question of an injured truck driver’s
eligibility to receive temporary-total-disability compensation after he was
discharged from employment. The driver was injured in 2005 in a traffic accident
for which he was cited. This was his third moving violation in one year, and as a
result, he was dropped from his employer’s liability insurance policy. Without
insurance coverage, he could no longer work as a truck driver, and the employer
fired him.
        {¶ 2} In 2006, the Industrial Commission initially concluded that he was
not eligible for temporary-total-disability compensation, because his discharge
was a voluntary abandonment of employment. A year later, a staff hearing officer
concluded that his discharge was not voluntary abandonment under the recently
decided State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-
4916, 874 N.E.2d 1162 (the voluntary-abandonment doctrine as applied to an
employee who had been fired for the conduct that resulted in his industrial injury),
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and approved a subsequent request for temporary-total-disability compensation
based on additionally allowed conditions.
        {¶ 3} The commission exercised continuing jurisdiction and concluded
that the staff hearing officer had made a clear mistake of law by not considering
the commission’s initial finding of voluntary abandonment as res judicata as to
the second request. The commission also determined that the staff hearing officer
had misapplied Gross because the injured worker’s discharge was due to his lack
of insurance, not his industrial injury. Thus, according to the commission, he had
voluntarily abandoned his employment and was not eligible to receive temporary-
total-disability benefits.
        {¶ 4} The court of appeals concluded that the commission had abused its
discretion, and it issued a writ of mandamus that ordered the commission to award
benefits or reconsider the denial of benefits from the date of the injury, in
accordance with Gross.
        {¶ 5} For the reasons that follow, we affirm the judgment of the court of
appeals granting the writ of mandamus.
                             Facts and Procedural History
        {¶ 6} The claimant-appellee, George H. Haddox, was a truck driver for
Forest City Technologies, Inc. On December 20, 2005, he was injured in a motor
vehicle accident within the course and scope of his employment. His workers’
compensation claim was allowed for “sprain lumbar region.”
        {¶ 7} This was Haddox’s third accident in the calendar year 2005. As a
result, his employer’s liability insurance would no longer cover him. Forest City
terminated his employment in January 2006.
A. First Application for Temporary-Total-Disability Compensation
        {¶ 8} Haddox filed a request for temporary-total-disability compensation
to begin on the date he was injured, December 20, 2005. A staff hearing officer
denied the request.      The hearing officer concluded that Haddox’s discharge




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constituted a voluntary abandonment of employment because Haddox had
violated a company policy that required termination of employment for a third
traffic violation. The commission refused to hear Haddox’s appeal.
B.    Additionally Allowed Conditions and the Second Application for
Temporary-Total-Disability Compensation
        {¶ 9} The commission later approved Haddox’s claim for two additional
conditions of substantial aggravation of lumbar spondylolisthesis and spondylosis.
Haddox filed a second request for temporary-total-disability compensation
beginning September 4, 2007, based on the additional conditions.
        {¶ 10} A district hearing officer denied the request, finding that Haddox’s
discharge was related to his inability to perform his duties as a truck driver for the
company, not due to his injuries. A staff hearing officer reversed, relying on the
statement in State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-
4916, 874 N.E.2d 1162, ¶ 19, that the voluntary-abandonment doctrine “ ‘has
never been applied to preinjury conduct or conduct contemporaneous with the
injury.’ ” The staff hearing officer awarded compensation because Haddox’s
discharge was causally related to acts that occurred contemporaneously with or
before his injuries.
        {¶ 11} The commission refused further review.
C.    Third Application for Temporary-Total-Disability Dating Back to
Original Injury
        {¶ 12} Haddox filed a third request for benefits for temporary total
disability, asking for compensation dating back to his initial injury, based on the
order approving his second application. A district hearing officer concluded that
the commission had previously adjudicated the issue of voluntary abandonment
for the original claim and that it was res judicata. The hearing officer rejected
Haddox’s argument that the previous orders could be vacated on the basis of
Gross. A staff hearing officer agreed.



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       {¶ 13} On March 6, 2008, the commission refused Haddox’s appeal.
D.    Employer’s Request for Reconsideration of the Order Awarding
Temporary-Total-Disability Compensation for Additional Conditions
       {¶ 14} The employer asked the commission to invoke its continuing
jurisdiction under R.C. 4123.52 and reconsider the award of temporary-total-
disability compensation based on the additional conditions (Haddox’s second
application). According to the employer, the order was based on a clear mistake
of law because the finding of voluntary abandonment in the initial denial of
compensation was res judicata.
       {¶ 15} On March 7, 2008 (the day after the commission had refused
Haddox’s appeal from the denial of his second application), the commission
entered an interlocutory order and set the matter for further hearing to evaluate
whether the staff hearing officer had made a mistake of law that would warrant
the commission’s exercise of continuing jurisdiction over the issue of Haddox’s
voluntary abandonment as res judicata and to consider the application of Gross on
his eligibility for temporary-total-disability compensation.
       {¶ 16} On June 2, 2008, the commission determined that the staff hearing
officer had made a clear error of law by not relying on res judicata to deny the
compensation requested in his second application.         The commission granted
reconsideration to correct the error and denied Haddox’s current request based on
the additional conditions. In the alternative, the commission determined that even
if res judicata did not apply, Haddox had voluntarily abandoned his employment.
According to the commission, a representative of the employer had testified that
Haddox was terminated because he could no longer be insured as a truck driver on
the employer’s group liability policy due to his three moving violations. The
commission noted that although the allowed injury occurred simultaneously with
the third moving violation, Haddox’s loss of earnings was caused by the lack of
insurance, not his injury.




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E. Haddox’s Mandamus Action
       {¶ 17} Haddox filed a complaint for a writ of mandamus asking the Court
of Appeals for Franklin County to require the commission to order temporary-
total-disability compensation beginning on the date of his initial injury. Haddox
alleged that according to Gross, he was entitled to compensation because the loss
of his job was related to his injury, so his departure from employment was not
voluntary.
       {¶ 18} The court of appeals concluded that res judicata did not apply and
that the commission had abused its discretion when it vacated the award for the
additional conditions. Because the moving violations that resulted in Haddox’s
inability to be insured had occurred prior to and contemporaneously with his
injury, the court held that his discharge could not be considered a voluntary
abandonment making him ineligible for temporary-total-disability compensation.
       {¶ 19} Applying Gross to the facts of this case, the appellate court issued
a writ of mandamus ordering the commission to vacate the denials of temporary-
total-disability compensation that were based on abandonment of employment, to
reinstate one award of compensation, and to redetermine the remaining motions
for compensation on the medical evidence. 2011-Ohio-3923, ¶ 9, 12-13, 16.
       {¶ 20} The commission’s appeal as of right is now before the court.
                                 Legal Analysis
       {¶ 21} We must determine whether the commission abused its discretion
when it exercised continuing jurisdiction for the purpose of correcting what it
considered a clear mistake of law. Our review addresses the follow issues: Was
the commission’s initial finding of voluntary abandonment res judicata for all
future applications for temporary-total-disability compensation, or did State ex
rel. Gross v. Indus. Comm. apply? Did the commission’s exercise of continuing
jurisdiction (over the order deciding the second request for benefits for temporary
total disability) extend to modify the initial order denying compensation?



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A. Temporary Total Disability and Voluntary Abandonment
       {¶ 22} The purpose of temporary-total-disability compensation is to
compensate an injured employee for lost earnings during the period of disability
while the injury heals. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35; State ex rel. Ashcraft v. Indus.
Comm., 34 Ohio St.3d 42, 517 N.E.2d 533 (1987). To qualify for temporary-
total-disability compensation, an injured worker must demonstrate that he or she
is medically unable to return to the former position and that the industrial injury is
the reason for the loss of earnings. State ex rel. McCoy at ¶ 35.
       {¶ 23} When the employee no longer has a loss of earnings, temporary-
total-disability benefits terminate. This occurs when the employee returns to
work or is capable of returning to work. Benefits for temporary total disability
also terminate when the injury has reached maximum medical improvement. R.C.
4123.56. Benefits may also terminate if the employee voluntarily leaves the
workforce. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44, 46, 531
N.E.2d 678 (1988). (After termination of benefits for temporary total disability, a
claimant remains entitled to payments for medical expenses and may be eligible
for compensation for any permanent disability. R.C. 4123.57 and 4123.66.)
       {¶ 24} When an employee is fired for misconduct, the dismissal may be
deemed a voluntary abandonment of employment “when it arises from the
employee’s decision to engage in conduct that he or she knows will result in
termination.” State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St.3d 520,
2012-Ohio-3895, 974 N.E.2d 1198, ¶ 11; State ex rel. Louisiana-Pacific Corp. v.
Indus. Comm., 72 Ohio St.3d 401, 403, 650 N.E.2d 469 (1995). The commission
must look to the underlying facts and circumstances of the discharge, including its
timing and nature, when classifying the employee’s departure as voluntary or
involuntary. McCoy, 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 20;
State ex rel. Smith v. Superior’s Brand Meats, Inc., 76 Ohio St.3d 408, 411, 667




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N.E.2d 1217 (1996). The underlying principle is that the employee’s departure
from employment must be causally related to the injury for the employee to be
eligible for temporary-total-disability compensation. Rockwell Internatl. v. Indus.
Comm., 40 Ohio St.3d at 46, 531 N.E.2d 678.
B. State ex rel. Gross v. Indus. Comm.
       {¶ 25} Shortly after the commission determined in 2006 that Haddox was
ineligible for temporary-total-disability compensation because he had voluntarily
abandoned his former position, this court reviewed the voluntary-abandonment
doctrine in the context of an employee who had been fired for the very conduct
that resulted in his industrial injury.       David Gross, an employee at a KFC
restaurant, burned himself and two others when he placed water in a pressurized
deep fryer, heated the fryer, and then opened the lid. Following an investigation,
KFC discharged Gross for violating a workplace safety rule and defying repeated
verbal warnings. The commission said this was a voluntary abandonment of his
employment and terminated Gross’s temporary-total-disability benefits.
       {¶ 26} This court initially upheld the commission’s decision, State ex rel.
Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500, 858 N.E.2d 335
(“Gross I”), but later reconsidered and ordered the commission to reinstate
benefits. State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-
4916, 874 N.E.2d 1162 (“Gross II”). In Gross II, the court explained that it had
not intended Gross I to create an exception to or an expansion of the voluntary-
abandonment doctrine or to inject fault into the no-fault nature of workers’
compensation. Id. at ¶ 19-21.
       {¶ 27} Upon reconsideration, Gross II reiterated that the underlying issue
in a voluntary-abandonment case is “whether his injury or his termination * * * is
the cause of his loss of earnings.” Id. at ¶ 23. “The distinctions between voluntary
and involuntary departure are complicated and fact-intensive.” Id. Gross II
examined the evidence and concluded that KFC’s termination letter—in which



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KFC stated that it was Gross’s rule violation, resulting in the injury that had
triggered the investigation and led to his subsequent termination—established that
his discharge was related to the industrial injury. Thus, Gross’s termination was
involuntary and did not bar temporary-total-disability benefits. Id. at ¶ 25-26.
       {¶ 28} This court had the opportunity to apply Gross II in State ex rel.
Upton v. Indus. Comm., 119 Ohio St.3d 461, 2008-Ohio-4758, 895 N.E.2d 161.
In that case, Upton had been discharged for causing multiple motor vehicle
accidents, including the one in which he was injured. The commission denied his
request for temporary-total-disability compensation, filed prior to Gross II,
because his discharge constituted a voluntary abandonment of his former position.
Id. at ¶ 5. In a split decision, the court of appeals concluded that Upton did not
have clear notice in advance of the grounds for his termination, so it was an
involuntary departure. The court granted a writ of mandamus. State ex rel. Upton
v. Indus. Comm., 10th Dist. No. 06AP-594, 2007-Ohio-3283.
       {¶ 29} We affirmed, stating: “Gross II held that if a claimant is injured by
the same misconduct that led to his or her termination, eligibility for temporary
total disability compensation is not compromised. Gross II controls and renders
the court of appeals reasoning moot.” 119 Ohio St.3d 461, 2008-Ohio-4758, 895
N.E.2d 161, at ¶ 8.
       {¶ 30} The court of appeals’ application of Gross II in this case comports
with Upton. Haddox, a truck driver, had three moving violations and was no
longer able to be insured by his employer. The court of appeals held that because
the moving violations occurred prior to and contemporaneously with the injury,
his termination was not a voluntary abandonment, because “[u]nder the terms of
Gross II, [Haddox’s] actions prior to and concurrent with his industrial injury did
not form a basis for concluding he voluntarily abandoned his employment,
meaning the commission abused its discretion in concluding otherwise.” State ex
rel. Haddox, 2011-Ohio-3923, ¶ 10.




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C. Continuing Jurisdiction Grants Broad Authority to the Commission
          {¶ 31} In this appeal, the commission argues that the court need not apply
Gross II, because the commission’s original decision that Haddox had voluntarily
abandoned his employment, decided prior to Gross II, became res judicata for all
future applications for temporary-total-disability compensation arising out of the
same incident. But the court of appeals determined that once the commission
invoked its continuing jurisdiction, the previous determination was subject to
revision, and res judicata no longer applied. Id. at ¶ 12.
          {¶ 32} Res   judicata   may    apply   in    quasi-judicial   administrative
proceedings. State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121
Ohio St.3d 526, 2009-Ohio-1704, 905 N.E.2d 1210, ¶ 29. But the defense of res
judicata has a limited application in workers’ compensation matters because of
the commission’s continuing jurisdiction in certain circumstances. State ex rel.
B.O.C. Group, Gen. Motors Corp. v. Indus. Comm., 58 Ohio St.3d 199, 200, 569
N.E.2d 496 (1991). R.C. 4123.52 grants the commission broad authority when
exercising continuing jurisdiction so that the commission may “make such
modification or change” to former findings or orders “as, in its opinion is
justified.” Such broad authority permits the commission to address any issues
pertaining to the order in question. State ex rel. Wheeler v. Indus. Comm., 10th
Dist. No. 02AP-865, 2003-Ohio-3120, ¶ 67-69; State ex rel. Hayes v. Indus.
Comm., 10th Dist. No. 01AP-1087, 2002-Ohio-3675, ¶ 47.
          {¶ 33} Although the parties litigated the issue of Haddox’s eligibility for
temporary-total-disability benefits to a resolution in 2006, the commission
reopened the issue when it exercised continuing jurisdiction to reconsider
Haddox’s second application based on a mistake of law. State ex rel. B & C
Machine Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-542, 605 N.E.2d 372
(1992).     The commission’s continuing jurisdiction permitted it to modify or




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amend, if necessary, the former order dating back to the injury. State ex rel. Riter
v. Indus. Comm., 91 Ohio St.3d 89, 90, 742 N.E.2d 615 (2001).
                                    Conclusion
       {¶ 34} Because Haddox was discharged for the same misconduct that
caused his industrial injury, the discharge was not tantamount to a voluntary
abandonment      of   employment      that    precludes   temporary-total-disability
compensation. State ex rel. Upton, 119 Ohio St.3d 461, 2008-Ohio-4758, 895
N.E.2d 161; Gross II, 115 Ohio St.3d 249, 2007-Ohio-4916, 874 N.E.2d 1162.
The commission abused its discretion when it reconsidered the order on the basis
of res judicata. Finally, it is within the commission’s exercise of continuing
jurisdiction to modify its initial order denying temporary-total-disability
compensation and to award compensation dating back to the date of injury.
       {¶ 35} Consequently, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
       LANZINGER, J., concurs in judgment only.
       O’DONNELL, KENNEDY, and FRENCH, JJ., dissent.
                              __________________
       O’CONNOR, C.J., concurring.
       {¶ 36} I concur in the majority’s decision, because I must.
       {¶ 37} As the majority opinion makes clear, the result in this case is
compelled by the court’s prior decision in State ex rel. Gross v. Indus.
Comm., 115 Ohio St.3d 249, 2007-Ohio-4916, 874 N.E.2d 1162 (“Gross II”).
       {¶ 38} I dissented, strongly, from the majority’s decision in Gross II,
asserting that this court had wrongly decided to reconsider its prior decision in the
case, State ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500,
858 N.E.2d 335 (“Gross I”), and wrongly decided to find that the Industrial
Commission abused its discretion in determining that David Gross had voluntarily




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abandoned his employment by repeatedly disregarding his employer’s clear
warnings that his misconduct in the workplace was endangering himself and
others. See generally Gross II at ¶ 29-80.
       {¶ 39} Five years later, I remain resolute that Gross II was wrongly
decided and that the majority retreated from its holding in Gross I because of
public criticism of that decision.
       {¶ 40} But five years later, Gross II remains the law of Ohio.
       {¶ 41} There appears to be no will to overrule Gross II in accordance with
our decision in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, paragraph one of the syllabus (“A prior decision of the
Supreme Court may be overruled where (1) the decision was wrongly decided at
that time, or changes in circumstances no longer justify continued adherence to
the decision, (2) the decision defies practical workability, and (3) abandoning the
precedent would not create an undue hardship for those who have relied upon it”).
I will not ignore precedent.
       {¶ 42} As we set forth in our decision in Shay v. Shay, 113 Ohio St.3d
172, 2007-Ohio-1384, 863 N.E.2d 591, ¶ 26, a justice’s dissenting view is, by its
very nature, “ ‘a disagreement with a majority opinion,’ Black’s Law Dictionary
(8th Ed.2004) 506, without force of law or precedential value.” Though that
opinion may be strongly held, as mine is here, it must yield to precedent.


       [D]eference to an established majority opinion, despite a jurist’s
       disagreement with the opinion, is part of the court’s rich tradition
       of adherence to stare decisis. See, e.g., Taylor v. Natl. Group of
       Cos., Inc. (1992), 65 Ohio St.3d 482, 483, 605 N.E.2d 45 (Holmes,
       J., concurring) (“Although I dissented in Elek v. Huntington Natl.
       Bank [(1991), 60 Ohio St.3d 135, 573 N.E.2d 1056], and still
       personally adhere to the view espoused in such dissent, the policy



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       of stare decisis prevails, and I must concur with the majority on
       that basis”); Ewers v. Coldren (1949), 151 Ohio St. 193, 195, 85
       N.E.2d 107 (“While the writer of the present opinion wrote the
       dissent in [Squire v. Guardian Trust Co. (1946), 147 Ohio St. 1, 33
       O.O. 179, 68 N.E.2d 312], and while Judge Matthias and Judge
       Hart, who concurred in such dissenting opinion, and the writer are
       still of the opinion expressed in such dissent, yet we believe that
       generally in procedural questions the doctrine of stare decisis
       should be recognized”).
              As we stated in Galatis, whenever possible we must
       maintain and reconcile our prior decisions to foster predictability
       and continuity, prevent the arbitrary administration of justice, and
       provide clarity to the citizenry. Galatis, 100 Ohio St.3d 216, 2003-
       Ohio-5849, 797 N.E.2d 1256, at ¶ 43.         That understanding is
       perhaps particularly true in cases driven by statutory interpretation
       and any legislative response to that interpretation. See Square D
       Co. v. Niagara Frontier Tariff Bur., Inc. (1986), 476 U.S. 409,
       424, 106 S.Ct. 1922, 90 L.Ed.2d 413, quoting Burnet v. Coronado
       Oil & Gas Co. (1932), 285 U.S. 393, 406, 52 S.Ct 443, 76 L.Ed.
       815 (Brandeis, J., dissenting) (“As Justice Brandeis himself
       observed * * * in commenting on the presumption of stability in
       statutory interpretation: ‘Stare decisis is usually the wise policy
       because in most matters, it is more important that the applicable
       rule of law be settled than that it be settled right. * * * This is
       commonly true, even where the error is a matter of serious
       concern, provided correction can be had by legislation’ ”).


Shay at ¶ 27-28.




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       {¶ 43} Because Gross II remains the law of Ohio, we are duty-bound to
follow it until this court overrules it or the General Assembly acts to vitiate its
holding. In light of the court’s opinion here, there should be no mistake that the
remedy for Gross II, if there is to be one, must come from the legislative branch.
I urge the General Assembly to act, but until it does, I must follow the law. I thus
concur in the majority’s reasoning and judgment in this case.
                              __________________
       David W. Goldense and Libert Pinto, for appellee.
       Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellee.
                           ______________________




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