[Cite as State ex rel. Robinson v. Indus. Comm., 138 Ohio St.3d 471, 2014-Ohio-546.]




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

         [Cite as State ex rel. Robinson v. Indus. Comm., 138 Ohio St.3d 471,
                                        2014-Ohio-546.]
Workers’      compensation—Mandamus—Temporary-total-disability                    compensation—
        Eligibility—Claimant terminated for cause—Termination from employment
        considered voluntary abandonment when termination arises from violation of
        written rule known to be dischargeable offense—Claimant who has voluntarily
        abandoned workforce not eligible for compensation—Writ denied.
    (No. 2012-1827—Submitted September 10, 2013—Decided February 20, 2014.)
         APPEAL from the Court of Appeals for Franklin County, No. 11AP-900,
                                        2012-Ohio-4372.
                                    ____________________
        Per Curiam.
        {¶ 1} Appellant, Shelby K. Robinson, appeals from the judgment of the court
of appeals denying her request for a writ of mandamus. The court of appeals held that
the Industrial Commission did not abuse its discretion by denying Robinson temporary-
total-disability compensation on the basis that Robinson’s discharge from employment
for violating written workplace rules had been a voluntary abandonment.
        {¶ 2} For the reasons that follow, we affirm.
        {¶ 3} Robinson had been employed as a licensed practical nurse (“LPN”) with
Progressive Parma Care Center, L.L.C./Parma Care Nursing and Rehabilitation (“Parma
Care”) since 1995. When hired, she was given a written job description that set forth
her job duties and responsibilities. She also received a copy of the employee handbook.
        {¶ 4} During her tenure at Parma Care, Robinson was disciplined on several
occasions. On January 18 and February 29, 2008, she was written up for violating work
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rules. On the February discipline form, Robinson acknowledged that she had been
warned that any future violations would result in her termination.
         {¶ 5} On April 10, 2008, Robinson was injured at work.                           Her workers’
compensation claim was allowed for “sprain lumbar; herniated disc L3-L4: herniated
disc with free fragment at L5-S-1 with right radiculopathy.” As a result, she was moved
to light-duty work.
         {¶ 6} On April 15, 2008, a state surveyor1 reported to Parma Care that
Robinson had failed to communicate a resident’s dietary-order change on April 11,
2008, and when she was asked to correct her failure, Robinson wrote the change on the
back of an alcohol pad and handed it to the dietary manager without noting the
resident’s name. The state surveyor also reported that Robinson had failed to check a
resident’s feeding tube that was infusing faster than ordered by the physician. The
following day, April 16, 2008, the director of nursing prepared the necessary paperwork
to terminate Robinson.
         {¶ 7} Robinson was not scheduled to work on April 16 or 17, 2008. Her
supervisor called her on each of those days and each time left a telephone message
asking Robinson to call. Robinson returned the call on April 18, but refused her
supervisor’s request for a personal meeting. Eventually, Parma Care sent Robinson a
letter by certified mail dated April 30, 2008, informing her that she had been terminated
for cause effective April 16, 2008.
         {¶ 8} In the meantime, Robinson visited a medical clinic on April 17, 2008,
and a nurse practitioner certified that Robinson was medically capable of continuing
light-duty work. On April 21, 2008, after Robinson had talked with her supervisor, she
again visited the medical clinic. At this visit, a physician certified that Robinson was
temporarily and totally disabled from all employment, including light duty, beginning
on the date of her injury, April 10, 2008.

1. Parma Care’s director of nursing testified that state surveyors regularly inspect the Parma Care facility
to ensure that proper procedures and state regulations are being followed.




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                                   January Term, 2014




        {¶ 9} A staff hearing officer denied Robinson’s request for temporary-total-
disability compensation.    The hearing officer determined that Robinson had been
terminated from her employment effective April 16, 2008, for violating a written work
rule.   The hearing officer concluded that this termination was a consequence of
Robinson’s own misconduct. Thus, she had voluntarily abandoned her employment,
making her ineligible for benefits. In addition, the hearing officer concluded that the
medical evidence did not support Robinson’s claim that she had been temporarily and
totally disabled at the time of her termination on April 16, 2008.
        {¶ 10} Robinson filed a complaint for a writ of mandamus, alleging that the
commission had abused its discretion when it denied her request for temporary-total-
disability compensation. The court of appeals denied the writ. State ex rel. Robinson v.
Indus. Comm., 10th Dist. Franklin No. 11AP-900, 2012-Ohio-4372.
        {¶ 11} This cause is now before the court on an appeal as of right.
        {¶ 12} An employee who voluntarily abandons his or her employment for
reasons not related to the industrial injury cannot receive temporary-total-disability
compensation. 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. Rockwell Internatl. v. Indus.
Comm., 40 Ohio St.3d 44, 531 N.E.2d 678 (1988). Although being fired is generally
considered an involuntary separation from employment, when the discharge arises from
the employee’s decision to engage in conduct that he or she knows will result in
termination, it may be considered a voluntary abandonment. State ex rel. Brown at
¶ 11; State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 121, 623
N.E.2d 1202 (1993). “This derives from the principle that an individual ‘may be
presumed to tacitly accept the consequences of his voluntary acts.’ ” State ex rel.
Valley Interior Sys., Inc. v. Indus. Comm., 118 Ohio St.3d 418, 2008-Ohio-2703, 889
N.E.2d 993, ¶ 9, quoting State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42, 44,
517 N.E.2d 533 (1987).




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        {¶ 13} Employment discharge is a voluntary abandonment only when the
discharge arises from a violation of a written work rule that (1) clearly defined the
prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3)
was known or should have been known to the employee. State ex rel. Louisiana-Pacific
Corp. v. Indus. Comm., 72 Ohio St.3d 401, 403, 650 N.E.2d 469 (1995).
        {¶ 14} Robinson argues that Parma Care did not satisfy the Louisiana-Pacific
test because it did not identify a written work rule that clearly defined the prohibited
conduct for which Robinson was terminated.
        {¶ 15} The staff hearing officer determined that Robinson failed to refute Parma
Care’s assertion that Robinson knew that her actions violated company policies and
rules and could result in termination. The hearing officer noted that Robinson had been
provided with a copy of the company handbook that set forth policies, rules, and
disciplinary procedures.     Moreover, on the February 29, 2008 employee-discipline
form, Robinson acknowledged that her violation of another workplace rule would result
in termination.
        {¶ 16} The appellate court determined that the commission did not abuse its
discretion when it concluded, based on the evidence presented, that Robinson’s
discharge constituted a voluntary abandonment. We agree that Robinson’s duties as an
LPN and as an employee of Parma Care were sufficiently identified in the employee
handbook and her job description so that she was on notice that her actions, such as the
failure to record a changed dietary order and communicate it to the dietary department
and the failure to attend to a feeding tube, could result in termination. Thus, her
discharge constituted a voluntary abandonment of employment.
        {¶ 17} Next, Robinson argues that Parma Care’s timing of her termination
demonstrates that it was a pretext in order to avoid paying her temporary-total-disability
compensation. Robinson maintains that notwithstanding the telephone conversation
with her supervisor on April 18, 2008, Parma Care did not terminate her until the April
30, 2008 letter, after it had learned of her disability.




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          {¶ 18} The appellate court noted that the stipulated record demonstrated that
Robinson’s supervisor called her on April 16 and 17 and left messages asking Robinson
to call her, but that Robinson did not return the call until April 18. The court further
noted that after Robinson refused to personally meet with her supervisor, Parma Care
sent the termination letter on April 30.         The appellate court determined that this
evidence supported the commission’s decision that Parma Care terminated Robinson on
April 16, prior to any physician certifying that she was temporarily and totally disabled.
We agree that Robinson failed to demonstrate that Parma Care’s decision to terminate
her was a pretext to avoid payment of compensation.
          {¶ 19} A court’s role in reviewing a mandamus action is to determine whether
there is some evidence supporting the commission’s decision to deny temporary-total-
disability compensation. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18,
508 N.E.2d 936 (1987). Here, the court of appeals determined, and we agree, that the
commission’s order was supported by some evidence that Robinson had voluntarily
abandoned her employment as a result of her termination on April 16 for violating a
written work rule and that the commission did not abuse its discretion when it denied
Robinson compensation for temporary total disability.
          {¶ 20} We affirm the judgment of the court of appeals.
                                                                      Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and KENNEDY, JJ.,
concur.
          O’NEILL, J., dissents.
          FRENCH, J., not participating.
                                   ____________________
          LANZINGER, J., concurring.
          {¶ 21} The dissent is incorrect in suggesting that by applying our precedent on
voluntary abandonment, we have injected the concept of fault into Ohio’s workers’
compensation law. But it cannot be said that because Robinson was fired, she was



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uncompensated for her workplace injury. Robinson’s workers’ compensation claim
was allowed, and she was entitled to participate in the workers’ compensation fund—all
without regard to fault. She was entitled to payment of the medical expenses related to
the injury, and, in fact she received medical treatment on April 10, 2008, the day of her
injury, and then was released to light-duty work. Her employer accommodated her
workplace restriction.
       {¶ 22} This case relates to a request for additional compensation because
Robinson alleges that she was temporarily and totally disabled.           To qualify for
temporary-total compensation, she was required to show that she was medically
incapable of returning to her former position of employment and that it was her injury,
rather than the fact that she was fired, that caused her loss of earnings. R.C. 4123.56;
State ex rel. Cline v. Abke Trucking, Inc., 137 Ohio St.3d 557, 2013-Ohio-5159, 1
N.E.3d 409, ¶ 13.
       {¶ 23} We have explained that an employee who is temporarily and totally
disabled as a result of a workplace injury is entitled to compensation for lost earnings
during the period of disability while the injury heals. State ex rel. Ashcraft v. Indus.
Comm., 34 Ohio St.3d 42, 44, 517 N.E.2d 533 (1987). But if the employee’s own
actions (based on reasons unrelated to the injury) prevent a return to the job, then the
employee is not entitled to temporary-total-disability benefits, since it is the employee’s
own action—not the injury—that caused the loss of earnings. State ex rel. McCoy v.
Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51.
       {¶ 24} Thus, the principle of voluntary abandonment of employment operates to
bar the receipt of temporary-total benefits when an employee’s own action prevents a
return to the former position of employment. State ex rel. Louisiana-Pacific Corp. v.
Indus. Comm., 72 Ohio St.3d 401, 650 N.E.2d 469 (1995). The principle does not,
however, mean that the injured employee is completely uncompensated due to fault.
       {¶ 25} It is important to focus on the type of workers’ compensation benefit that
is being requested by a claimant. In this matter, the majority opinion details why the




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commission did not abuse its discretion in denying temporary-total-disability
compensation to Robinson, and I concur in all respects.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                                 ____________________
       O’NEILL, J., dissenting.
       {¶ 26} I dissent from the majority’s holding in this case. It is time for this court
to restate its support for the Ohio Workers’ Compensation Act and its fundamental
proposition that injuries in the workplace are to be evaluated on a no-fault basis.
       {¶ 27} As demonstrated in this case and in State ex rel. Cline v. Abke Trucking,
Inc., 137 Ohio St.3d 557, 2013-Ohio-5159, 1 N.E.3d 409, the Industrial Commission
continues to ignore the fundamental principle that the concept of fault has no place in
Ohio’s system of workers’ compensation. The commission abused its discretion by
denying Shelby Robinson temporary-total-disability compensation, and the court of
appeals erred when it denied her request for a writ of mandamus. Ms. Robinson’s claim
for compensation was allowed, which is an administrative acknowledgment that she
was injured on the job on April 10, 2008. It cannot be stressed strongly enough that it is
irrelevant whether she was terminated for cause on April 16, 2008, April 30, 2008, or
any other day for that matter.
       {¶ 28} The record before this court is that Ms. Robinson was injured at work
prior to her termination and that her doctor certified that she was not able to work for
this employer or any other employer for the time in question. As a matter of law, Ms.
Robinson’s performance at work is irrelevant to the question whether she is entitled to
compensation and payment of medical bills as a result of her workplace injury.
Parenthetically, I would note that the injury in question here is a low-back injury, which
is common for health-care workers and one that does not go away instantly. Work
performance and the constitutional right to be compensated for workplace injuries are
two totally separate and unrelated topics.




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       {¶ 29} “Voluntary abandonment of employment” is a relatively new and
unprecedented judicial construct that is eroding Ohio’s constitutionally guaranteed no-
fault system, and the majority’s decision takes the court further down the wrong path.
       {¶ 30} Ohio’s workers’ compensation system is a no-fault system established in
1912 by an amendment to the Ohio Constitution. See Article II, Section 35. It is
codified in great detail in the Ohio Revised Code. Prior to the enactment of the
Workers’ Compensation Act, injured workers had the right to sue employers in tort but
could only recover damages if they were successful in showing employer negligence.
The suits were time-consuming and costly to defend, driving some employers out of
business.
       {¶ 31} The Workers’ Compensation Act is a compromise between the interests
of injured workers and the interests of employers. The cornerstone of Ohio’s system is
that both sides surrender certain rights to gain certain protections. Injured workers
relinquish their common-law access to the courts and their right to recover damages if
they are injured on the job. In return, they gain the right to be compensated for medical
bills and loss of earnings from a multibillion-dollar fund supplied by employers, who
contribute a percentage of payroll in a predictable and fair process.          Employers
relinquish their common-law defenses and, in return, receive an ironclad assurance that
they cannot be sued for workplace injuries. It is a system of mutual compromise.
Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 614, 433 N.E.2d
572 (1982). “Award is made for all kinds and characters of injuries except those self-
inflicted, and has no relation to common-law negligence. It is neither an award of
damages nor the imposition of a penalty. It recognizes the fact that the risk of injury or
death is an incident of employment in industry * * *.” State ex rel. Crawford v. Indus.
Comm., 110 Ohio St. 271, 275, 143 N.E. 574 (1924).
       {¶ 32} In State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42, 517 N.E.2d
533 (1987), this court held that a claimant receiving temporary-total-disability
compensation forfeits his right to continue receiving compensation when he becomes




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incarcerated because he has voluntarily abandoned the workforce.         This judicially
created concept of voluntary abandonment was later expanded and applied to
circumstances in which an injured worker is terminated following the injury. State ex
rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 650 N.E.2d 469
(1995). In Louisiana-Pacific, this court held that an injured employee who is fired is
barred from receiving temporary-total-disability compensation when the employer can
show that the worker was terminated for violating a written work rule that (1) clearly
defined the prohibited conduct, (2) had been previously identified by the employer as a
dischargeable offense, and (3) was known or should have been known to the employee.
Id. at 403.
        {¶ 33} This case presents a great opportunity for this court to disconnect
employee fault from injured-worker benefits. Instead, the majority goes further and
upholds the Industrial Commission, finding that Ms. Robinson had voluntarily
abandoned her employment within the meaning of Louisiana-Pacific because her duties
were sufficiently identified in the employee handbook and her job description. She was
therefore barred from receiving workers’ compensation benefits. This entire line of
reasoning is totally irrelevant and does not shed a single ray of light on the question
whether the employee was injured on the job. It is important to note that the stated
reason for termination had nothing whatsoever to do with employee safety.
        {¶ 34} The test generated by this court in Louisiana-Pacific and expanded here
leaves Ms. Robinson’s workplace injury uncompensated despite the fact that her claim
was allowed.    So what are we saying here?        That only good employees will be
compensated for an injury on the job? That is not the law in Ohio. It is cases like these
that put employers and injured workers in an unnecessarily adversarial position. This is
contrary to Ohio’s no-fault system of workers’ compensation. Commission hearings
cannot and should not become forums for deciding whether the claimant was fired for
just cause. Eligibility for workers’ compensation and the quality of job performance are
two distinct and completely unrelated subjects. I dissent.



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                              ____________________
       Agee, Clymer, Mitchell & Laret and Robert M. Robinson, for appellant.
       Critchfield, Critchfield & Johnston, Ltd., and Susan E. Baker, for appellee
Progressive Parma Care Center, L.L.C./Parma Care Nursing and Rehabilitation.
       Michael DeWine, Attorney General, and Sandra E. Pinkerton, Assistant
Attorney General, for appellee Industrial Commission.
                            ________________________




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