s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s ...STATEMENT OF FACTS Appellant Brian P....

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IN THE SUPREME COURT OF OHIO


State of Ohio, ex rel. Case No. 07-1757Brian P. Schlegel,

Appellant,On Appeal from the Franklin CountyCourt of Appeals, Tenth AppellateDistrict

vs.

Stykemain Pontiac Buick GMC, Ltd.,et al.,

Appellees.


MERIT BRIEF OF APPELLEE STYKEMAIN PONTIAC BUICK GMC, LTD.


Brian R. Williams (0030922) (COUNSEL OF RECORD)Williams & Reynolds420 Madison Ave., Suite 101Toledo, OH 43604(419) 243-6610Fax No. (419) [email protected]

COUNSEL FOR APPELLANT, BRIAN P. SCHLEGEL

Mark A. Shaw (0059713)Richard L. Johnson (0064260) (COUNSEL OF RECORD)Eastman & Smith Ltd.One SeaGate, 24th FloorP.O. Box 10032Toledo, OH 43699-0032(419) 241-6000Fax No. (419) [email protected]@eastmansmith.com

[FoLDDMAR 10 2008

CLERK OF COURTSUPREME COURT OF 0HI0

COUNSEL FOR APPELLEE, STYKEMAIN PONTIAC BUICK GMC, LTD.

Andrew J. Alatis (0042401) (COUNSEL OF RECORD)Assistant Attorney General150 E. Gay Street, 22"a FloorColumbus, OH 43215-3130(614) 466-6696Fax No. (614) 752-2538

COUNSEL FOR APPELLEE, INDUSTRIAL COMMISSION OF OHIO

ii

TABLE OF CONTENTSPa¢e

TABLE OF AUTHORITIES ......................................................................................................... iv

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT ...................................................................................................................................5

Proposition of Law No. I:

The Industrial Commission properly exercises its discretion in denying aclaimant's request for temporary total disability compensation when the claimanthas voluntarily abandoned his employment .........................................................................5

Proposition of Law No. II:

The failure of a claimant to raise an issue before the Industrial Commissionprecludes him from arguing the issue in a mandamus action ............................................12

Proposition of Law No. III:

The Industrial Commission does not abuse its discretion by not applying PrettyProducts when a claimant fails to timely present evidence demonstrating that hewas disabled at the time of his discharge from the employer ............................................14

Proposition of Law No. IV:

Pretty Products is inapplicable when a claimant is not receiving TTDcompensation (or wages in lieu of compensation) at the time of his discharge fromthe employer .......................................................................................................................17

CONCLUSION ..............................................................................................................................20

PROOF OF SERVICE ...................................................................................................................21

iii

TABLE OF AUTHORITIES

Cases Pa e s

State ex rel. Filicko v. Indus. Comm., Franklin App. No. 05AP-369, 2006-Ohio-700........... 11, 15

State ex reL Jones & Laughlin Steel Corp. v. Jndus. Comm. (1985), 29 Ohio. App.3d 145 ........... 5

State ex reL Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401,1995-Ohio-153 .................................................................................................. 5, 6, 7, 9, 15, 18

State ex rel. Luther v. Ford Motor Co., Batavia Transmission Plant, 113 Ohio St.3d 144,2007-Ohio-1250 .......................................................................................................................19

State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 1997-Ohio-181 ................................. 10

State ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951 ............19

State ex rel. Pretty Products, Inc. v. Indus. Comm., 77 Ohio St.3d 5,1996-Ohio-132 ...........................................................................................14, 16, 17, 18, 19, 20

State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 1997-Ohio-71 ...........................12

State ex reL Reitter Stucco, Inc. v. Indus. Comm., Slip Opinion No. 2008-Ohio-499 ...................19

State ex rel. Shabazz v. Nordstrom, Inc., Franklin App. No. 06AP-172, 2006-Ohio-6652...........19

State ex rel. Smith v. Yellow Freight Sys., Inc., 170 Ohio App.3d 178, 2006-Ohio-5086.......18, 19

State ex reL Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 1993-Ohio-133 .................. 5

Statutes

R.C. 4123.511(D) ....................................................................................................................10, 11

Resolutions

R05-1-03 of the Industrial Commission of Ohio ...........................................................................10

R07-1-04 of the Industrial Commission of Ohio ...........................................................................10

iv

STATEMENT OF FACTS

Appellant Brian P. Schlegel (hereinafter "appellant") was hired by appellee Stykemain

Pontiac Buick GMC, Ltd. (hereinafter "Stykemain") in December, 2005. (Stipulated Evidence

filed in the Court of Appeals, hereinafter "SE" p. 1) At the time of his hiring, appellant was

provided with an Employee Manual containing Stykemain's work rales and policies. (SE pp. 46-48)

The Employee Manual provided to appellant contained the following provision in regard to

attendance:

Attendance. Regular attendance by all employees is mandatory.You, as an employee, must notify your supervisor immediately if youare unable to report to work as assigned. You are to give notice asfar in advance as possible for your absence to be an excused absence.If you will be absent because of illness you must notify yoursupervisor, within two hours [of] starting time, on the day you will beabsent. You are to report your status and estimated date of return toyour supervisor. Frequent absence or tardiness may result indisciplinary action or termination of employment.

(Emphasis added.) (SE p. 47) The Employee Manual also contained the following "Rules of

Conduct":

Any one of the following offenses ... will be grounds for disciplinaryaction in the form of a written waming, a three (3) day suspension, ordischarge, depending upon management's judgment as to theseriousness of the offense. An absence for two (2) days withoutreporting to your will be considered a voluntary quit.

N. Failure to call in or report your intended absence and reason forabsence within two hours after starting time.

U. Excessive tardiness or absenteeism.

I

(Emphasis added.) (SE p. 48) Appellant acknowledged reading all of the information contained in

the Employee Manual, and further acknowledged that his continued employment with Stykemain

depended upon following the rules and policies set forth in the manual. (SE p. 49) Appellant

agreed in writing to follow the rules and policies and acknowledged that his failure to do so could be

grounds for discharge. Id.

Appellant was injured in the course of his employment with Stykemain on January 25, 2006

when he was involved in a motor vehicle accident. (SE p. 1) On May 17, 2006, Stykemain

terminated appellant's employment for violating the attendance policies contained in the Employee

Manual. (SE p. 45) Specifically, appellant was terminated for failing to report to work on May 11,

2006, May 12, 2006, May 15, 2006, May 16, 2006 and May 17, 2006 without contacting his

supervisor. Id. The Termination Report documenting appellant's discharge notes that this was his

seventh offense, and he had been given two previous verbal warnings. Id. On the same day that he

was terminated, appellant filed an application for workers' compensation benefits which was

assigned Claim No. 06-828996.' Id Stykemain certified the validity of the claim and indicated that

appellant had retutned to work following the accident on January 27, 2006. (SE p. 29)

By order dated July 13, 2006, a district hearing officer of appellee Industrial Conunission

of Ohio (hereinafter "Commission") allowed appellant's claim, but denied payment of temporary

total disability (hereinafter "TTD") compensation on the basis of appellant's termination from

employment due to his violation of Stykemain's "No Call/No Show Policy." (SE p. 43) Appellant

appealed the district hearing officer's order on July 21, 2006. (SE p. 50) By order dated August 15,

2006, a Commission staff hearing officer upheld the allowance of the claim, albeit for different

medical conditions, and affirmed the denial of TTD compensation, fmding that appellant had

' It is not known whether appellant filed the claim application before or after he was terminated. In eithercase, appellant has never alleged that he was terminated for filing the application.

2

voluntarily abandoned the work force, (SE p. 56) The staff hearing officer relied on the testimony

of Hobie Calvin, who was present at the hearing on behalf of Stykemain, that Stykemain had only

received one off-work slip which took appellant off work only from May 1, 2006 to May 8, 2006.

Id. The staff hearing officer went on to state:

The Hearing Officer does not fmd [appellant's] testimony persuasivethat he had, in fact, contacted the employer. The employer's file didnot have any other off-work slips. [Appellant] indicated that he "hadcopies of documents submitted to the employer", however, did notbring anything with him to today's hearing.

(SE p. 57) On August 29, 2006, appellant appealed the staff hearing officer's order and submitted

additional documentation which he claimed showed compliance with Stykemain's attendance

policies. (SE pp. 66-68) The Commission, however, refused appellant's appeal. (SE p. 69)

Thereafter, appellant filed a complaint in the Franklin County Court of Appeals, Tenth

Appellate District, seeking the issuance of a writ of mandamus from the staff hearing officer's

August 15, 2006 order which found that he had voluntarily abandoned his employment and thus

was not entitled to TTD compensation. Appellant alleged that the Commission had improperly

found that he voluntarily abandoned his employment with Stykemain, and thus had abused its

discretion by denying his request for TTD compensation. Appellant requested that the court of

appeals issue a writ of mandamus ordering the Commission to award the requested

compensation. In a Decision rendered on May 24, 2007, a magistrate of the court of appeals

rejected appellant's arguments, finding that he had "failed to submit sufficient evidence

demonstrating that he was entitled to TTD compensation." Thus, the magistrate found that the

Commission did not abuse its discretion by denying appellant's request for TTD compensation and

recommended that the court of appeals deny his request for a writ of mandamus. Appellant filed

objections to the Magistrate's Decision. The court overruled appellant's objections in a Decision

3

rendered on August 9, 2007, adopted the Magistrate's Decision as its own, and denied the requested

writ of mandamus. The court then entered judgment for the reasons stated in its Decision.

Appellant has now appealed to this Court as of right.

4

ARGUMENT

Proposition of Law No. I:

The Industrial Commission properly exercises its discretion in denying aclaimant's request for temporary total disability compensation when theclaimant has voluntarily abandoned his employment.

In State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d

145, 147, the Franklin County Court of Appeals, Tenth Appellate District, concluded that not

only must an industrial injury "render the claimant unable to perform the functions of his former

position of employment, but it also must prevent him from returning to that position." Thus, the

court held, in relevant part:

... A worker is prevented by an industrial injury fromreturning to his former position of employment where, but for theindustrial injury, he would return to such former position ofemployment. However, where the employee has taken action thatwould preclude his returning to his former position ofemployment, even if he were able to do so, he is not entitled tocontinued temporary total disability benefits since it is his ownaction, rather than the industrial injury, which prevents hisreturning to such former position of employment.... Id.

Firing can constitute a voluntary abandonment of the former position of employment

because, although not generally consented to, it "is often a consequence of behavioi that the

claimant willingly undertook, and may thus take on a voluntary character." State ex rel. Watts v.

Schottenstein Stores Corp., 68 Ohio St.3d 118, 121, 1993-Ohio-133. A claimant's voluntary

abandonment of the former position of employment, including discharge from that position as a

consequence of voluntary behavior, precludes entitlement to TTD compensation. State ex rel.

Louisiana-Pacifc Corp. v. Indus. Comm., 72 Ohio St.3d 401, 402-03, 1995-Ohio-153. "[A]n

employee must be presumed to intend the consequences of his or her voluntary acts." Id at 403.

In Louisiana-Pacific, this Court set forth a three-part test for determining whether a claimant's

discharge from employment constitutes a voluntary abandonment of that employment. A

5

discharge is "voluntary" if it is "generated by the claimant's violation of a written work rule or

policy 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.

In Louisiana-Pacific, the claimant injured his back and began receiving TTD

compensation. Id. at 401. The claimant's physician submitted two C-84s both indicating that

the claimant was released to return to his former job as of December 17, 1990. Id. The claimant

did not report to work or call in on December 17, 18 or 19, 1990. Id. On December 20, 1990,

Louisiana-Pacific Corporation terminated the claimant's employment pursuant to a written work

rule in the company's handbook providing that failure to report to work for three consecutive

days would result in automatic termination. Id Thereafter, the claimant filed a motion for TTD

compensation beginning January 25, 1991. Id. at 402. The Conunission granted the claimant's

request and awarded compensation without addressing the issue of the claimant's firing. Id.

Louisiana-Pacific sought a writ of mandamus which this Court ultimately issued ordering the

Commission to vacate the award of TTD compensation. Id at 402, 404. Applying the three-part

test set forth above, the Court determined that the claimant had voluntarily abandoned his

employment and thus was not entitled to TTD compensation. Id. at 403 -04.

Applying Louisiana-Pacifc to the present facts, appellant was discharged for violating

Stykemain's written work rules governing attendance. The rules required that appellant

immediately notify his supervisor if he was unable to report to work, and he was required to give

that notice "in advance." (SE p. 47) The rules warned that frequent absences -- absences

without proper notification -- could result in termination of employment. Id. Thus, Stykemain's

attendance rules clearly defined the prohibited conduct and identified it as dischargeable.

6

Moreover, the rules were known, or should have been known, to appellant because on December

6, 2005, he acknowledged reading them. (SE p. 49) Despite this, on five days in May, 2006

appellant failed to show up for work or give advance notice that he would be absent. (SE p. 45)

As a result, appellant's employment with Stykemain was terminated on May 17, 2006. Id Thus,

it is clear that appellant's discharge comported with all three parts of the Louisiana-Pacifc test

and constituted a voluntary abandonment of his employment. Accordingly, he was not entitled

to TTD compensation.

Appellant contends that he complied with the requirements of Stykemain's attendance

rules with respect to his absences on May 12, 2006, May 15, 2006, May 16, 2006 and May 17,

2006. (Appellant's Merit Brief p. 2-4) Appellant apparently concedes that he violated the rules

with respect to his absence on May 11, 2006. Appellant asserts that on May 12, 2006,

Stykemain was faxed an Attending Physician's Return to Work Recommendations Record

indicating that appellant was "totally incapacitated" and would be re-evaluated on May 18, 2006.

(SE p. 61) (Appellant's Merit Brief p. 2) However, there is no evidence that this document was

ever faxed to Stykemain. At most, the evidence shows that on May 12, 2006, the Defiance

Chiropractic Center faxed an unidentified off-work slip for appellant to Stykemain. (SE pp. 62-

63) Not only is the Attending Physician's Return to Work Reconmiendations Record not an off-

work slip, but the form was not completed by anyone at the Defiance Chiropractic Center. The

form was signed by "S. Burke, LPN" on behalf of "Dr. Fout, MD," and the designation in the

bottom left-hand corner of the form shows that it came from the Defiance Clinic, 1400 E. Second

Street, Defiance, Ohio 43512. (SE p. 61) Dr. Fout is a medical doctor, not a chiropractor, who

works at the Defiance Clinic, a completely separate medical facility from the Defiance

Chiropractic Center which is located at 1770 Jefferson Avenue in Defiance. (SE p. 63) Thus,

7

whatever was faxed to Stykemain on May 12, 2006, it was not the Attending Physician's Return

to Work Recommendations Record.

What the Defiance Chiropractic Center did fax to Stykemain on May 12, 2006 can only

be a matter of speculation. The center may have faxed the off-work slip dated May 1, 2006 since

that was the only off-work slip contained in Stykemain's file. (SE pp. 56, 80) That slip disabled

appellant only through May 8, 2006, and thus did not excuse his absences beginning on May 11,

2006. (SE p. 80) Or the center may have faxed the off-work slip dated May 12, 2006 disabling

appellant from May 11, 2006 to May 13, 2006. (SE p. 79) However, this slip was not contained

in Stykemain's file and would not have excused appellant's absences on May 11, 2006 and May

12, 2006. The notice that appellant would be absent from work was not given in advance as

required by Stykemain's attendance rules. (SE p. 47) Assuming arguendo that this was the off-

work slip faxed to Stykemain, it was faxed at 10:26 a.m. on May 12, 2006, well after the work

day had begun. (SE p. 78) Thus, the off-work slip could not have served to excuse appellant's

absences on May 11, 2006 and May 12, 2006.

The May 12, 2006 off-work slip is not competent evidence to support disability in any

event because appellant was not treated at the Defiance Chiropractic Center between May 11,

2006 and May 13, 2006. According to the center's treatment records, appellant was treated on

May 9, 2006 and was not treated again until May 15, 2006. (SE p. 2) Another record shows that

appellant came to the center on May 10, 2006 to do progressive exercises after which he reported

feeling "much better." (SE p. 7) Thus, these records do not reflect the chiropractor's ability to

properly certify disability for the period from May 11, 2006 to May 13, 2006.

Appellant asserts that a Work Status Report from the Fort Wayne Neurological Center

was faxed to Stykemain on May 16, 2006 providing notice that appellant would not be able to

8

work beginning that day. (SE p. 59) (Appellant's Merit Brief p. 2) Again, however, there is no

evidence to support appellant's assertion. The evidence cited by appellant at best shows that an

off-work slip dated May 16, 2006, perhaps the Work Status Report, was faxed to Stykemain on

May 17, 2006, long after the beginning of the work day. (SE p. 60) This evidence, which is

apparently a HIPAA disclosure form, indicates a "D.O.S." (Date of Service) of May 17, 2006,

and the form was created at 1:14 p.m.Z Id. Assuming arguendo that this is when the Work

Status Report was faxed (since there is no other indication on the form), just as before, this

notice would not have adhered to the requirement of Stykemain's attendance rules that appellant

provide advance notice that he would be absent from work. Thus, the Work Status Report would

not have excused appellant's absences on May 16, 2006 and May 17, 2006. Accordingly,

appellant failed to give advance notice of his absence on five work days within a week's time.

As a result, Stykemain terminated appellant's employment pursuant to the written attendance

rules contained in its Employee Manual, and under the test set forth in Louisiana-Pacific, this

constituted a voluntary abandonment of employment and divested appellant of his right to

receive TTD compensation.

The Attending Physician's Return to Work Recommendations Record and the Work

Status Report, the evidence appellant cites to support his contention that he did not voluntarily

abandon his employment, were not filed until after the staff hearing officer determined that he

had voluntarily abandoned his employment. The staff hearing officer relied on Mr. Calvin's

testimony that Stykemain had only received one off-work slip disabling appellant from May 1,

2 The HIPAA disclosure form (if indeed that is what it is) is extremely dubious evidence to show that theWork Status Report from the Fort Wayne Neurological Center was faxed to Stykemain. It clearly does not showthat the report was faxed on May 16, 2006 as contended by appellant. The HIPAA disclosure form gives noindication that the fax transmission originated from the Fort Wayne Neurological Center and refers to an "off-workslip" rather than the Work Status Report. (SE p. 60) Furthennore, the form does not clearly identify when the "off-work slip" was actually faxed to Stykemain.

9

2006 to May 8, 2006. (SE p. 56) The staff hearing officer noted that Stykemain did not have

any other off-work slips. (SE p. 57) The staff hearing officer did not find appellant's testimony

to be persuasive that he had contacted Stykemain regarding his absences because, although he

indicated that he had copies of documents that were submitted to Stykemain, he did not bring the

documents to the hearing on August 15, 2006. Id. Based on this weighing of the evidence, the

staff hearing officer found that the preponderance of the evidence supported the determination

that appellant had voluntarily abandoned his employment. The Commission, through its hearing

officers, is the exclusive evaluator of evidentiary weight and has final jurisdiction to determine

disputed factual issues. State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 583-84, 1997-

Ohio-181. The staff hearing officer was simply fulfilling this role in determining whether there

was a voluntary abandonment of employment. There was no abuse of discretion because the

staff hearing officer's decision that appellant voluntarily abandoned his employment was

supported by some evidence.

Although not expressly stated in his merit brief, appellant's argument is necessarily that

the Commission abused its discretion by refusing his appeal from the staff hearing officer's order

in light of the evidence that he submitted with his appeal. Appellant argued that, pursuant to

former Commission Resolution R05-1-03,' the Commission should agree to hear his appeal from

the staff hearing officer's order because "there exists newly discovered evidence which is

relevant to the issue on appeal." (SE p. 66) However, Resolution R05-1-03 required more than

just "newly discovered evidence." The resolution provided, in pertinent part:

THEREFORE BE IT RESOLVED that the Industrial Commissionwill permit appeals to be heard from orders of Staff HearingOfficers issued under Division (D) of Section 4123.511 of theOhio Revised Code where:

' On November 27, 2007, the Commission rescinded Resolution R05-1-03 and enacted Resolution R07-1-04 which now governs the filing of notices of appeals from the orders of staff hearing officers.

10

2. There exists newly discovered evidence which by duediligence could not have been discovered and filed by theappellant prior to the date of the hearing held underDivision (D) of Section 4123.511 of the Ohio RevisedCode.... (Emphasis added.)

Appellant did not discover any new evidence subsequent to the staff hearing on August

15, 2006 that he could not have discovered prior to the hearing. Appellant knew that voluntary

abandonment was an issue that would be addressed at the staff hearing because the district

hearing officer denied TTD compensation on the basis of appellant's termination for violating

Stykemain's written "No Call/No Show" policy. (SE p. 43) Thus, it was incumbent upon

appellant to gather any evidence relevant to this issue and submit it prior to the August 15, 2006

hearing for the staff hearing officer's consideration. This he did not do. The staff hearing officer

noted appellant's comment that he "had copies of documents submitted to the employer," but he

did not bring the documents to the hearing. (SE p. 57) The staff hearing officer had to make a

determination based on the evidence that was before her, and that evidence showed that appellant

had voluntarily abandoned his employment. Thereafter, the Commission was not required to

hear appellant's appeal from the staff hearing officer's order simply because he filed evidence

that could easily have been filed prior to or at the staff hearing. Thus, the Commission did not

abuse its discretion in refusing to hear appellant's appeal. See State ex rel. Filicko v. Indus.

Comm., Franklin App. No. 05AP-369, 2006-Ohio-700, at 2-3 (concluding that the Commission is

not required to consider evidence that is submitted after the district and staff hearings because

the Commission has discretion to accept or reject evidence submitted after a hearing).

Appellant argued below that Stykemain had demonstrated a lack of diligence because 1)

the evidence showed that appellant provided medical slips to cover his absences from work; and

11

2) Stykemain erroneously represented to the Commission that it never received the medical slips.

(Appellant's Objections to Magistrate's Decision, p. 3) However, appellant has acknowledged

that he had the burden of proof at the staff hearing on August 15, 2006. Id. At the hearing he

also acknowledged that he "had copies of documents submitted to [Stykemain]," but he did not

bring them to the hearing. (SE p. 57) Thus, according to appellant, he had copies of the medical

slips he purportedly submitted to Stykemain to cover his absences, but, for whatever reason,

chose not to bring them to the hearing, despite knowing that he had the burden of proof.

Stykemain denies that it demonstrated a lack of diligence in its handling of appellant's

medical slips or in its representation to the Commission of its failure to receive the slips.

However, assuming arguendo that there was a lack of diligence, appellant has failed to explain

how this absolved him of his obligation to produce evidence to meet the burden of proof that he

has admitted was his. Appellant has not alleged that Stykemain, inadvertently or otherwise,

caused evidence to be hidden which did not come to light until after the staff hearing. Instead,

appellant has complained about Stykemain's actions and representations concerning evidence

that he acknowledged already having. Thus, Stykemain's diligence or lack of diligence with

respect to the medical slips is irrelevant to the fact that they were not produced at the hearing.

The simple fact is that appellant had the slips, but did not produce them. Appellant's effort to

blame Stykemain must be viewed as nothing more than a not-so-subtle attempt to shift the focus

from his own failure to produce evidence to meet his burden of proof.

Proposition of Law No. II:

The failure of a claimant to raise an issue before the Industrial Commissionprecludes him from arguing the issue in a mandamus action.

In State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 84, 1997-Ohio-71, this

Court held that "the commission, in evaluating a claimant's application for PTD (permanent total

12

disability) compensation, does not abuse its discretion by failing to initiate the issue whether

claimant's retirement precludes his or her eligibility for PTD compensation." In so holding, the

Court rejected the employer's argument that the retirement issue "raise[d] itself by virtue of being

manifest in the record." Id. at 81. The Court relied upon the law pertaining to a party's failure to

raise an issue during earlier court or administrative proceedings, stating, in pertinent part:

"Ordinarily, reviewing courts do not consider questions notpresented to the court whose judgment is sought to be reversed."... Nor do appellate courts have to consider an error which thecomplaining party "could have called, but did not call, to the trialcourt's attention at a time when such error could have been avoidedor corrected by the trial court."

These rules are deeply embedded in a just regard for thefair administration of justice. They are designed to afford theopposing party a meaningful opportunity to respond to issues orerrors that may affect or vitiate his or her cause. Thus, they do notpermit a party to sit idly by until he or she loses on one groundonly to avail himself or herself of another on appeal. In addition,they protect the role of the courts and the dignity of theproceedings before them by imposing upon counsel the duty toexercise diligence in his or her own cause and to aid the courtrather than silently mislead it into the commission of error.

The employer, however, essentially seeks a dispensation orrelaxation of these rules in proceedings before the commission.However, there is nothing about the purpose of workers'compensation legislation or the character of the proceedings beforethe commission that would justify such action.... (Citationsomitted.)

Id. Based on this analysis, this Court affirmed the court of appeal's judgment which held that the

employer's failure to have raised the retirement issue before the Commission precluded it from

arguing the issue in mandamus. Id. at 80, 84.

In the present case, as noted by the magistrate below, appellant waited until filing his

reply brief in the court of appeals to argue for the first time that he was disabled at the time he

was discharged on May 17, 2006, and thus is still entitled to TTD compensation pursuant to this

13

Court's decision in State ex rel. Pretty Products, Inc. v. Indus. Comm., 77 Ohio St.3d 5, 1996-

Ohio-132. (Court of Appeals' Decision, p. 11) Appellant failed to raise this issue before the

Commission. He cannot now complain that the Commission abused its discretion by not

properly deciding an issue which he failed to bring to its attention. It is not sufficient for

appellant to point to references to the issue in the record and fault the Commission for failing to

raise the issue on its own. Appelllant's failure to raise this issue before the Conunission precludes

him from arguing it in this mandamus action.

Proposition of Law No. III:

The Industrial Commission does not abuse its discretion by not applyingPretty Products when a claimant fails to timely present evidencedemonstrating that he was disabled at the time of his discharge from theemployer.

Appellant argues that this Court should apply the principle set forth in its decision in

Pretty Products because "the evidence before [the Commission] demonstrates that [appellant]

did not have the physical capacity for employment at the time of the alleged abandonment."

(Appellant's Merit Brief, p. 6) Appellant cites to the Attending Physician's Return to Work

Reconunendations Record dated May 12, 2006 as evidence that he "was totally incapacitated at

the time he was terminated." (SE p. 61) (Appellant's Merit Brief, p. 7) However, as fully set

forth under Stykemain's Proposition of Law No. I, there is no evidence that the Attending

Physician's Return to Work Reconunendations Record was ever sent to Stykemain showing that

appellant was totally disabled as of May 12, 2006 due to his industrial injury on January 25,

2006. Furthermore, Nurse Burke, who completed the form on behalf of Dr. Fout, indicated that

appellant's disability was not work-related, marking "No" to "BWC" -- whether appellant's

14

ability or inability to return to work was related to a work-related injury. 4(SE p. 61)

Additionally, the Attending Physician's Return to Work Reconunendations Record was not

before the staff hearing officer on August 15, 2006 when she determined that appellant had

voluntarily abandoned the work force, and thereafter the Commission was under no obligation to

consider the form because appellant filed it after the hearing.5 See State ex rel. Filicko v. Indus.

Comm., supra. As the magistrate below aptly stated:

...[T]he question of whether [appellant's] tenderedevidence is sufficient to establish that he was actually disabled atthe time he was terminated is a question of fact which could onlyhave been addressed at the SHO hearing. [Appellant] simplyfailed to present his evidence timely and the issue never camebefore the commission.

In the present case, [appellant] failed to submit sufficientevidence demonstrating that he was entitled to TTD compensation.The commission relied upon the evidence submitted by[Stykemain] and determined that [appellant] had voluntarilyabandoned his employment when he failed to call in or report towork as required by the written handbook. [Stykemain] met itsburden of proof under Louisfana-Pacif:c, and the commission citedthe evidence upon which it relied and provided a brief explanation.As such, the magistrate finds that [appellant] has not demonstratedthe commission abused its discretion in denying his application forTTD compensation and this court should deny his request for awrit of mandamus. (Court of Appeals' Decision, p. 12)

The evidence that was before the staff hearing officer on August 15, 2006 showed that

appellant reported back to work after his accident on January 25, 2006, but was off work the next

day. (SE pp. 18, 29) He returned to work on January 27, 2006 and continued working through

April 30, 2006. (SE p. 29) On May 1, 2006, Dr. Beane, appellant's chiropractor, submitted a

4 Appellant did not file his claim alleging a work-related injury until May 17, 2006, the date he wasterminated. (SEp. 1)

5 The Attending Physician's Retum to Work Recommendations Record is not competent evidencesupporting TTD beginning May 12, 2006 because there is no indication that Dr. Fout actually examined and/ortreated appellant on that date. The form itself omits the date on which Dr. Fout "saw and treated this patient," andthere is no other evidence in the record reflecting when Dr. Fout examined and/or treated appellant. (SE p. 61)

15

"Disability Certificate" indicating that appellant would be "[t]otally incapacitated" from May 1,

2006 to May 7, 2008, but could return to work on May 8, 2006 with the restriction of no lifting

over ten pounds. (SE p. 55) The staff hearing officer found that this was the only off-work slip

disabling appellant in May 2006, relying on Mr. Calvin's testimony and appellant's failure to

produce any other evidence of ongoing disability. (SE pp. 56-57) According to appellant, he

returned to work on May 8, 2006, and this was his last day worked. (SE p. 1) However,

according to the "Termination Report" completed by appellant's supervisor, appellant last

worked on May 10, 2006, and this was the finding of the staff hearing officer. (SE pp. 45, 57)

Appellant then failed to report for work on five consecutive work days without contacting his

supervisor resulting in his termination pursuant to Stykemain's written attendance rules. (SE p.

45) There was no evidence before the staff hearing officer suggesting that appellant was

disabled due to his industrial injury on these days. In fact, appellant himself indicated that he did

not notify Stykemain of his injury until May 17, 2006, the day he was terminated. (SE p. 1)

Based on this evidence, the court of appeals correctly observed: "The problein for

[appellant] is that he apparently worked his job on May 10, 2006 before missing on May 11, 12,

15, 16 and 17, 2006. The commission could legitimately decide that [appellant] was not disabled

when he stopped reporting for work." (Court of Appeals' Decision, p. 3-4) Without evidence

demonstrating that appellant was disabled due to his industrial injury at the time he was

terminated, Pretty Products is not applicable and thus the Commission did not abuse its

discretion by failing to apply it.

16

Proposition of Law No. IV:

Pretty Products is inapplicable when a claimant was not receiving TTDcompensation (or wages in lieu of compensation) prior to his discharge fromthe employer.

In State ex rel. Pretty Products, Inc. v. Indus. Comm., 77 Ohio St.3d 5, 1996-Ohio-132,

the claimant was terminated after failing to report to work on three consecutive work days and

not producing an excuse slip extending her disability due to a work-related injury. Prior to that

time, the claimant's doctor had submitted a series of medical excuse slips certifying that she was

unable to return to her former job. Id. at 5. The claimant subsequently filed a motion for TTD

compensation which was ultimately granted by Commission staff hearing officers based on a

finding that she did not voluntarily abandon her former position of employment by failing to

timely submit an excuse slip. Id. at 6. This Court reviewed whether the Commission had abused

its discretion in making this fmding and awarding TTD compensation. Id The Court reasoned:

...Once a claimant is separated from the former position ofemployment, future TTD compensation eligibility hinges on thetiming and character of the claimant's departure.

The timing of a claimant's separation from employmentcan, in some cases, eliminate the need to investigate the characterof departure. For this to occur, it must be shown that the claimantwas already disabled when the separation occurred. "[AJ claimantcan abandon a fonner position or remove himself or herself fromthe work force only if he or she has the physical capacity foremployment at the time of the abandonment or removal." (Citationomitted.)

However, such situations are not common and inquiry intothe character of departure is the norm....

Id. at 6-7. The Court concluded, however, that it could not conduct adequate judicial review

because the Commission's order was susceptible to several different interpretations as to its

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finding that the claimant's departure from employment was involuntary. Id. 7-8. Thus, the Court

remanded the cause to the Commission for clarification. Id. at 8.

The Franklin County Court of Appeals, Tenth Appellate District, has since had the

opportunity to determine when the principle set forth in Pretty Products should be applied. In

State ex rel. Smith v. Yellow Freight Sys., Inc., 170 Ohio App.3d 178, 180, 2006-Ohio-5086, the

claimant was injured when he fell asleep while driving his truck and hit another vehicle. Shortly

thereafter, the claimant was terminated for his reckless conduct in causing the accident in

violation of a provision of the union contract. Id. at 180, 184. The claimant then moved for

TTD compensation which was denied by the Commission based on a finding that he had

voluntarily abandoned his employment. Id. at 180. The claimant then requested a writ of

mandamus which the appellate magistrate recommended granting in reliance on Pretty Products.

Id at 181. However, the court of appeals disagreed with the magistrate's application of Pretty

Products, stating:

In Pretty Products, the issue was whether the claimantvoluntarily abandoned her employment in failing to abide by theemployer's work rules that required submission of an excuse slipfor absences. The Supreme Court of Ohio, being unable todetermine the conunission's reasoning for granting TTD, orderedthe commission to consider the matter further. Essentially, it wasnot possible for the court to determine whether the claimant'sdischarge was due to a violation of a work rule or was due to theclaimant's injury itself, which would render the termination aninvoluntary abandonment of her employment.

The key distinction in Pretty Products, however, was thatthe claimant had been receiving TTD compensation prior to theforbidden conduct of having unexcused absences from work. Thelast of the medical slips certified that the claimant could return towork on March 1, 1991. The claimant neither retuned to work onMarch 1, 1991, nor produced an excuse slip that extended herdisability. Consequently, she was terminated from heremployment. The court explained that unlike the factual scenarioin Louisiana-Pacific, in which the court found that there was "no

18

evidence that the claimant's absences were due to industrialinjury," in Pretty Products there was. In other words, in PrettyProducts, the forbidden conduct, i.e., the unexcused absences,were possibly related to the injury for which the claimant had beenreceivint? TTD compensation. In the case sub judice, theforbidden conduct, i.e., falling asleep while driving, though relatedin the sense that it caused [the claimant's] injury, was not due to aninjury for which [the claimant] had been receiving TTDcompensation. (Emphasis added.)

Id. at 182. Applying this analysis, the court sustained the employer's objection to the

magistrate's decision and denied the requested writ of mandamus. Id at 183. See, also, State ex

rel. Shabazz v. Nordstrom, Inc., Franklin App. No. 06AP-172, 2006-Ohio-6652; and State ex rel.

Reitter Stucco, Inc. v. Indus. Comm., Slip Opinion No. 2008-Ohio-499 (claimant was being paid

wages in lieu of TTD compensation at the time of his termination) 6

In the present case, appellant never received TTD compensation prior to his terniination

on May 17, 2006. He did not even file his claim or notify Stykemain that he was claiming a

work-related injury until that date. (SE p. 1) Accordingly, even if appellant had not waived the

issue by failing to raise it before the Commission, and had timely presented evidence showing

that he was disabled at the time of his discharge, pursuant to Smith, Pretty Products is

inapplicable.

6 State ex rel. Luther v. Ford Motor Co., Batavia Transmission Plant, 113 Ohio St.3d 144, 2007-Ohio-1250, and State ex ret. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, the cases cited byappellant in his merit brief, both involved claimants who were receiving TTD compensation prior to theirterminations from employment.

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CONCLUSION

The Commission's determination that appellant is not entitled to TTD compensation did

not constitute an abuse of its discretion. The evidence shows that appellant was terminated from

his employment at Stykemain for violating its written attendance rules. The rules identified

attendance violations as dischargeable offenses and appellant was aware, or should have been

aware, of the rules and the potential consequences for violating them. Thus, the Commission

properly found that appellant's discharge constituted a voluntary abandonment of his

employment, disqualifying him from entitlement to TTD compensation. Appellant's evidence

that was submitted after the staff hearing does not change this result because the Commission

was under no obligation to consider it. Furthermore, appellant waived any argument pertaining

to Pretty Products by failing to raise the issue before the Commission, and even if he had not

done so, Pretty Products is not applicable because appellant failed to timely present evidence

that he was disabled at the time of his discharge, and he never received TTD compensation prior

to that time. For all of these reasons, the court of appeals properly denied appellant's request for

a writ of mandamus, and this Court should affirm the court of appeals' judgment.

Respectfully submitte

Richard L. Johnson (0064260)One SeaGate, 24th FloorP.O. Box 10032Toledo, OH 43699-0032Telephone: (419) 241-6000Fax: (419) 247-1777

ark A. Shaw (00597f3)

Attorneys for AppelleeStykemain Pontiac Buick GMC, Ltd.

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PROOF OF SERVICE

This is to certify that a copy of the foregoing Merit Brief of Appellee Stykemain Pontiac

+kBuick GMC, Ltd. was mailed this 4g day of March, 2008 to Brian R. Williams, Esq., Williams

& Reynolds, 420 Madison Avenue, Suite 101, Toledo, OH 43604, attomey for appellant; and to

Andrew J. Alatis, Esq., Assistant Attorney General, 150 E. Gay Street, 22"d Floor, Columbus,

OH 43215-3130, attorney for appellee Industrial Commission of Ohio.

Attorneys for AppelleeStykemain Pontiac Buick GMC, Ltd.

I-IaI-IOIvfE1RLJohnsonlSchlegel - S. Ct. IIrie£DOC

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