3ITC t^JC

6upremce Court of ®Yjio

STATE OF OHIO, ex rel.WANDA JACOBS,

Appellant,

vs.

INDUSTRIAL COMMISSION OF OHIOAND CENVEO, INC.,

Appellees.

Case No. 2012-1554

4 p

On Appeal from theFranklin County Court of Appeals,Tenth Appellate District,

Court of AppealsCase No. 11AP-262

MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO

JENNIFER L. LAWTHER (0066761)JERALD A. SCHNEIBERG ( 0062298)

STACY M. CALLEN (0086181)Nager, Romaine & Schneiberg Co. L.P.A.

27730 Euclid AvenueCleveland, Ohio 44132(216) 289-4740(216) 289-4743 - Faxjlawther@nrsinjurylaw.com

Counsel for Appellant,Wanda Jacobs

AMR 10 2013JF COURT

^^^R01^jH,AUF1 OF OHIO

MICHAEL DEWINE (0009181)Ohio Attorney General

COLLEEN C. ERDMAN (0080765)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22"a FloorColumbus, Ohio 43215(614) 466-6696(614) 752-2538 - FaxColleen.Erdman@OhioAttomeyGeneral.gov

Counsel for Appellee,Industrial Commission of Ohio

WILLIAM W. JOHNSTON (0021772)94 Northwoods Boulevard, Suite B 1Columbus, Ohio 43235(614) 880-9085(614) 880-9086 - Faxwwjohnston@ameritech.net

Counsel for Appellee,Cenveo, Inc.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . ......................................................................................................... ii

INTRODUCTION . ..........................................................................................................................1

........................................................................••STATEMENT OF THE FACTS AND CASE ••••••1

ARGUMENT ...................................................................................................................................4

Industrial Commission's Proposition of Law I:

The Industrial Commission may find that a claimant has relinquished TTD eligibility by

accepting, and subsequently abandoning, a modified duty job to which the claimant has

been released by the physician of record .........................................................................................5

1. Jacobs has failed to meet her burden of proof that she was medically incapable ofperforming the light duty position as she has never submitted any contemporaneousmedical evidence to support that assertion . ..............................................................................5

2. The commission acted within its discretion to deny Jacobs TTD compensation, as

Adkins is dispositive of Jacobs's eligibility for benefits in this fact-specific case . ..................8

Industrial Commission's Proposition of Law II:

A claimant who accepts a modified duty position cannot later assert flaws in the employer's

offer of modified duty work . ...........................................................................................................11

CONCLUSION ..............................................................................................................................14

CERTIFICATE OF SERVICE ......................................................................................................16

i

TABLE OF AUTHORITIES

Cases

State ex rel. Adkins v. Indus. Comm.10th Dist. No. 07AP-975, 2008-Ohio-4260 ........................................................................... passim

State ex rel. Apostolic Christian Home v. King10'h Dist. No. 08AP-1078, 2009-Ohio-5670 ................................................................................... 8

State ex rel. Ashcraft v. Indus. Comm.34 Ohio St.3d 42 (1987) .............................................................................................................. 5, 6

State ex rel. Bradley v. Indus. Comm.77 Ohio St.3d 239 (1997) ............................................................................................................ 5,7

State ex rel. Brown v. Indus. Comm.68 Ohio St.3d 45 (1993) .................................................................................................................. 6

State ex rel. Commercial Lovelace Motor Freight v. Lancaster................ 422 Ohio St.3d 191 (1986) ................................................................................................

State ex rel. Coxson v. Dairy Mart Stores of Ohio, Inc.90 Ohio St.3d 428 (2000) .............................................................................................................. 13

State ex rel. Elliott v. Indus. Comm.26 Ohio St.3d 76 (1986) .................................................................................................................. 4

State ex rel. Ellis Super Valu, Inc. v. Indus. Comm.115 Ohio St.3d 224, 2007-Ohio-4920 ....................................................................................... 9, 13

State ex rel. Jacobs v. Indus. Comm. and Cenveo, Inc.10t" Dist. No. 1 1AP-262, 2012-Ohio-3763 ............................................................................... 3, 11

State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.passim72 Ohio St.3d 401 (1995) .......................................................................................................

State ex rel. McCoy v. Dedicated Transp., Inc.97 Ohio St.3d 25, 2002-Ohio-5305 ................................................................................................. 6

State ex rei. Mobley v. Indus. Comm.78 Ohio St.3d 579 (1997) ................................................................................................................ 4

State ex rel. OmniSource Corp. v. Indus. Comm. ........... 13113 Ohio St.3d 303, 2007-Ohio-1951 ...............................................................................:

ii

State ex rel. Parraz v. Indus. Comm.10t' Dist. No. 11AP-806, 2013-Ohio-764 ....................................................................................... 8

State ex rel. Pressley v. Indus. Comm.11 Ohio St.2d 141 (1967) ................................................................................................................ 4

State ex rel. Pretty Products v. Indus. Comm.(1996) ..........................................................................................................77 Ohio St.3d 5 passim

State ex rel. Ramirez v. Indus. Comm.(1982) ................................................................................................................69 Ohio St.2d 630 5

State ex rel. Reitter Stucco, Inc. v. Indus. Comm.117 Ohio St.3d 71, 2008-Ohio-499 ........................................................................................ passim

State ex rel. Stephenson v. Indus. Comm.31 Ohio St.3d 167 (1987) ................................................................................................................ 5

State ex rel. Waddle v. Indus. Comm.67 Ohio St.3d 452 (1993) ............................................................................................................ 5,7

State ex rel. Watts v. Schottenstein Stores Corp.68 Ohio St.3d 118 (1980) ................................................................................................................ 6

Other Authorities

Ohio Adm.Code 4121-3-32(A)(6) .... ...................................................................................... 11, 12

R. C. 4123.56(A) .............................................................................................................................. 5

iii

INTRODUCTION

This workers' compensation case addresses eligibility for temporary total disability

("TTD") compensation following a claimant's voluntary abandonment of the former position of

employment. Although physically unable to return to her former position at the time she was

terminated, appellant, Wanda Jacobs ("Jacobs"), is not eligible for TTD compensation because

she returned to work in a light duty position, and later abandoned the job due to absenteeism.

Appellee, Cenveo, Inc. ("Cenveo"), terminated Jacobs for violating written work rules related to

absenteeism of the light duty position. Given Jacobs's receipt of the employee handbook, and

two certified letters from Cenveo, notifying her that being "Absent Without Notification" would

result in her termination, her voluntary action to remove herself from the modified duty position

amounts to a TTD-preclusive voluntary abandonment of the former position of employment.

Appellee, Industrial Commission of Ohio ("commission"), respectfully asks this Court to affirm

the 10th Appellate District's decision and deny the requested writ.

STATEMENT OF THE FACTS AND CASE

Jacobs injured her back at Cenveo in September 2006 while working as a machinist, and

her claim has been allowed for a lower back strain. (Second Supplement submitted by the

Industrial Commission of Ohio at 8, hereinafter "S.S. "). A month later, Jacobs's physician

of record, Marinela L. Turc, M.D., released Jacobs to return to light duty work. (S.S. 27). On

October 2, 2006, Jacobs returned to Cenveo to perform a light duty position in the Inspection

Area. (S.S. at 1, 3, 30-31). However, Jacobs left the light duty position after about one hour,

stating that she was in pain, and led Cenveo personnel to believe she would follow-up with Dr.

Turc. (S.S. 30-31). Jacobs never returned to the light duty position and never offered Cenveo a

reason for her absenteeism. Id. Additionally, Jacobs never submitted any contemporaneous

1

medical evidence from Dr. Turc that she was medically incapable of performing the position,

despite that her next appointment with Dr. Turc was scheduled for October 6, 2006. (S.S. 27).

The same week, Cenveo sent Jacobs a certified letter requesting that she contact Cenveo,

and notified her that she was "Absent Without Notification." (S.S. 30). Jacobs did not respond

to the letter, prompting Cenveo to send a second certified letter on October 17, 2006. (S.S. 31).

Once again, Cenveo notified Jacobs that she was "Absent Without Notification," and requested

that she contact Cenveo by Monday, October 23, 2006, or her employment would be terminated.

Id. Again, Jacobs did not respond. Id. Consequently, Cenveo completed a Personnel Action

Request Form terminating Jacobs for job abandonment. (S.S. 28).

More than five months later, Jacobs applied for TTD compensation to begin on December

30, 2006, and to be on-going. (S.S. 37). Notably, Jacobs never requested TTD compensation to

begin on October 2, 2006, the date she abandoned the light duty position. Before requesting

compensation, Jacobs changed her physician of record from Dr. Turc to Rafik Massough, M.D.,

and it was Dr. Massough who certified the period of compensation. (S.S. 38, Magistrate's

Decision, Findings of Fact 9). There is no evidence of any medical treatment from October 2006

through the end of December 2006.

A commission district hearing officer ("DHO") denied TTD compensation citing Jacobs's

failure to abide by Cenveo's attendance policy, a policy she was aware of, as she signed the

employee handbook acknowledgment form. (S.S. 1-2, 35). Cenveo's employee handbook

clearly defined an "Absence Without Notification" as a terminable offense where the employee

is absent for two consecutive days without proper notice to the supervisor. (S.S. 33).

Additionally, the employee handbook included sections entitled "Attendance" and "Absence as

Voluntary Termination." (S.S. 36). These sections stated that unauthorized absences jeopardize

2

employment, and may lead to disciplinary action, including termination. Id. Not only was

Jacobs aware of the attendance policy, but she also received two certified letters notifying her

that she was "Absent Without Notification," and the second letter warned that her attendance

policy violations would result in her termination. (S.S. 30-31).

On Jacobs's appeal, a commission staff hearing officer ("SHO") affirmed the DHO's order.

(S.S. 3-5). The SHO agreed with the DHO's conclusion that Cenveo terminated Jacobs for

violating the employer's absenteeism policy. Id. Additionally, the SHO noted that no medical

evidence existed to indicate that the modified duty work offered by Cenveo was not appropriate.

Id. The commission refused Jacobs's further appeal.

The record is wholly void of evidence that Jacobs ever again followed-up with Dr. Turc,

asked Dr. Turc to alter her medical restrictions, or asked Dr. Turc to certify a period of disability

from October 2006 and forward. Jacobs has never submitted any contemporaneous medical

evidence indicating that she was medically incapable of performing the modified duty position.

Three-and-a-half years later, Jacobs initiated this mandamus action. Although the

magistrate found that the commission had abused its discretion in denying TTD compensation on

the basis of a voluntary abandonment of employment, the magistrate failed to apply the

principles articulated in State ex rel. Adkins v. Indus. Comm., 10th Dist. No. 07AP-975, 2008-

Ohio-4260. The commission and Cenveo both objected to the magistrate's recommendation to

grant the writ. The 10t" Appellate District sustained several of the objections and found Atkins to

be dispositive. State ex rel. Jacobs v. Indus. Comm. and Cenveo, Inc., 10Ih Dist. No. 11AP-262,

2012-Ohio-3763, ¶¶ 7-9. The appellate court found that Jacobs abandoned her former position

of employment because she had begun performing modified duty work and later abandoned the

3

position due to absenteeism. Id. at ¶ 9. In accord with Atkins, the commission did not abuse its

discretion in denying TTD compensation. Id. at ¶ 12.

The appellate court clarified that Cenveo did not terminate Jacobs for refusal of a light duty

job offer, but rather because of a work rule violation related to the light duty work. Accordingly,

it also sustained the commission's and Cenveo's objections related to the magistrate's conclusion

that Cenveo's "written job offer" failed to comply with the Administrative Code's requirements.

Id. at ¶ 10. Lastly, the appellate court rejected as moot Cenveo's and the commission's

objections to the magistrate's failure to apply the doctrine of laches. Id. at ¶ 11. Ultimately, the

court rejected the magistrate's recommendation and denied the requested writ. Subsequently,

Jacobs appealed to this Court. Neither the commission nor Cenveo appealed the appellate

court's finding of mootness related to the laches argument.

ARGUMENT

For the Court to issue of writ of mandamus, Jacobs must demonstrate that she has a clear

legal right to the relief sought and that the commission had a clear legal duty to provide such

relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). To prevail, Jacobs

must show that the commission abused its discretion. State ex rel. Elliott v. Indus. Comm., 26

Ohio St.3d 76, 78-79 (1986). An abuse of discretion has been defined as "not merely an error in

judgment but a perversity of will, passion, prejudice, partiality, or moral delinquency, to be

found only where there is no evidence upon which the commission could have based its

decision." State ex rel. Commercial Lovelace Motor Freight v. Lancaster, 22 Ohio St.3d 191,

193 (1986). A mandamus proceeding is not a de novo review of the evidence with the court

substituting its judgment for that of the commission.State ex rel. Mobley v. Indus. Comm., 78

Ohio St.3d 579, 584 (1997). This Court has stated that, "so long as there is some evidence in the

4

file to support its findings and orders, this Court will not overturn such." State ex rel.

Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170 (1987).

Industrial Commission's Proposition of Law I:

The Industrial Commission may find that a claimant has relinquished TTD eligibility byaccepting, and subsequently abandoning, a modified duty job to which the claimant has

been released by the physician of record.

1. Jacobs has failed to meet her burden of proof that she was medically incapable of

performing the light duty position as she has never submitted any contemporaneous

medical evidence to support that assertion.

Temporary total compensation is meant "to compensate an injured employee for the loss of

earnings which he incurs while the injury heals." State ex rel. Ashcraft v. Indus. Comm., 34 Ohio

St.3d 42, 44 (1987). To prove an entitlement to TTD compensation, the claimant must show a

direct and proximate causal relationship between the industrial injury and the claimed temporary

disability. State ex rel: Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). Reliable medical

evidence is necessary to substantiate that the allowed conditions caused the period of disability.

State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d 239 (1997). Upon that predicate, TTD

compensation shall be paid to a claimant until one of the following occurs: (1) the claimant has

returned to work; (2) the claimant's treating physician has made a written statement that claimant

is able to return to the former position of employment; (3) when work within the physical

capabilities of the claimant is made available by the employer or another employer; or (4) the

claimant has reached maximum medical improvement. R.C. 4123.56(A); State ex rel. Ramirez v.

Indus. Comm., 69 Ohio St.2d 630 (1982).

To determine if TTD compensation is warranted where the claimant ceases working for the

employer of record, the commission applies a two-part test. "The first part of this test focuses

upon the disabling aspects of the injury, whereas the latter part determines if there are any

factors, other than the injury, which would prevent the claimant from returning to his former

5

position." State ex rel. Ashcraft, supra. A factor that plays into the second half of the equation is

whether the claimant abandoned the former position of employment. Generally, a voluntary

departure precludes TTD compensation when "it operates to sever the causal connection between

the claimant's industrial injury and the claimant's actual wage loss." State ex rel. McCoy v.

Dedicated Transp., Inc., 97 Ohio St.3d 25, 34, 2002-Ohio-5305.

Traditionally, the commission has examined the voluntary nature of the departure in light

of the timing of the departure. For example, a termination, because it is often a consequence of a

claimant's voluntary act, is considered a voluntary departure that may preclude TTD

compensation. State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 122 (1980).

A termination may be deemed voluntary where a claimant violates "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." State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 403

(1995). However, a termination will not be deemed a voluntary abandonment of employment if

the claimant is temporarily and totally disabled at the time of termination. State ex rel. Reitter

Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499; State ex rel. Pretty Products v.

Indus. Comm., 77 Ohio St.3d 5 (1996) ("`A claimant can abandon a former position or remove

himself or herself from the work force only if he or she has the physical capacity for employment

at the time of the abandonment or removal,"' citing State ex rel. Brown v. Indus. Comm. 68 Ohio

St.3d 45, 48 (1993)).

1.Jnlike the claimant in Reitter Stucco, Jacobs was not temporarily and totally disabled from

her former position as a machinist when terminated. Jacobs not receiving TTD compensation at

that time, and, in fact, had accepted light duty work with Cenveo. Similarly, unlike the situation

6

posed by Pretty Products, medical evidence in the record proves that Jacobs was medically

capable of light work at the time of her termination. Consequently, Reitter Stucco and Pretty

Products are inapplicable. Although Jacobs now asserts that she was physically incapable of all

work at the time she abandoned the light duty job, she has never submitted any evidence to

support that argument. Moreover, even when Cenveo twice attempted to contact Jacobs to warn

her that she was absent without notice, and in danger of being terminated, Jacobs never presented

Cenveo with any medical evidence that the light duty job was beyond her capability.

In requesting TTD compensation, Jacobs bears the burden to present medical evidence

connecting a period of disability to the work injury. State ex rel. Waddle, supra; State ex rel.

Bradley, supra. Correspondingly, in claiming that she was physically incapable of performing

the light duty position when terminated, thereby invoking Pretty Products, Jacobs bears the

burden to present medical evidence to support that assertion. Jacobs has failed to meet her

burden. Jacobs was scheduled for an office visit with Dr. Turc on October 6, 2006, and, at that

time, could have informed her treating physician of any problems she was experiencing. There

is no evidence in the administrative record that Jacobs ever did that. Again, the record is void of

any medical evidence until Jacobs changed treating physicians from Dr. Turc to Dr. Massough in

late December 2006.

Jacobs's failure to submit contemporaneous medical evidence is fatal to her argument that

she was incapable of all work at the time of her job abandonment. In turn, her failure to meet her

burden of proof belies her reliance on Reitter Stucco and Pretty Products. Jacobs never returned

to Dr. Turc's office after alleging to Cenveo personnel that she was medically incapable of doing

the light duty job, despite that Jacobs led Cenveo to believe she intended to do so. In short, the

record lacks any evidence that connects Jacobs's abandonment of the modified duty work to the

7

original work injury, thereby removing her situation from the realm of Reitter Stucco and Pretty

Products, and placing it squarely within the principles articulated in Adkins.

2. The commission acted within its discretion to deny Jacobs TTD compensation, as

Adkins is dispositive of Jacobs's eligibility for benefits in this fact-specific case.

Adkins is directly on point, and the commission urges this Court to adopt its rule of law.

The case establishes that the commission does not abuse its discretion in finding that a claimant

has relinquished TTD eligibility after accepting, and subsequently abandoning, a modified duty

job, thereby abandoning the former position of employment. State ex rel. Adkins, 2008-Ohio-

4260, ¶ 55. See also State ex rel. Parraz v. Indus. Comm., 10th Dist. No. 11AP-806, 2013-Ohio-

764; State ex rel. Apostolic Christian Home v. King, 10th Dist. No. 08AP-1078, 2009-Ohio-5670.

Adkins, like this case, involved a claimant's termination due to a work rule violation related to a

light duty job with the same employer. State ex rel. Adkins, 2008-Ohio-4260, ¶ 56. Adkins was

unable to return to her former position, yet accepted a light duty job offer with the same

employer. Id. at ¶ 44. She was scheduled to report to work on August 23, 2002, although that

date was later adjusted to August 26, 2002. Id. at ¶ 45. Adkins did not report to work, nor did

she notify her employer that she could not return to work on that date. Id. at ¶¶ 46, 50. The

employer terminated Adkins, and she later applied for TTD compensation. Id. at ¶ 48. The

commission denied her request, citing voluntary abandonment of employment. Id. at ¶ 35.

Adkins filed suit in mandamus, arguing that the commission applied an incorrect legal

standard in evaluating her request for compensation. The appellate court rejected that argument,

and instead adopted the magistrate's legal and factual conclusions, one of which was that Adkins

could be presumed to intend the consequences of her voluntary acts. In other words, her failure

to report to an accepted light duty position would lead to her job loss. Id. at ¶ 56. The magistrate

reasoned that the Louisiana-Pacific voluntary termination analysis applied because Adkins's

8

"violation with respect to the light-duty job prevent[ed] her from ever returning to her former

position of employment *** [Adkins] abandoned her former position of employment by

violating the work rule after accepting alternative employment." Id. at ¶ 55.

The magistrate discussed the interplay between Louisiana-Pacific and Pretty Products.

Regarding Pretty Products, the magistrate stated that the case did "not directly address the

situation here where the rule violation involves accepted alternative employment rather than the

former position of employment." Id. at ¶ 56. Thus, although Adkins was physically unable to

return to her former position, her doctor had released her to return to light duty work. Adkins's

voluntary act in failing to report to the light duty work resulted in her termination, and she was

presumed to intend the consequences of her voluntary acts. Id. Accordingly, the Pretty Products

principles did not preserve Adkins's eligibility for TTD compensation where the Louisiana-

Pacific requirements were met. Id. at ¶ 53.

The magistrate further explained that Adkins's reliance on case law addressing the defense

of refusal of suitable alternative employment was similarly misplaced, citing to this Court's

holding in State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-

4920. Unlike the defenses to the receipt of TTD compensation posed in Ellis Super Valu, the

magistrate, in Adkins, determined that there were no factual issues as to whether the employer

offered the light duty job in good faith, or whether Adkins justifiably refused a job offer. Rather,

"[Adkins] accepted [the employer's] job offer. Acceptance required [Adkins] to follow [the

employer's] work rules." Id. at ¶ 54.

Turning to the facts of this case, indisputably, at one point, Jacobs, was incapable of

returning to her former position as a machinist. However, the crucial fact is that Dr. Turc

released Jacobs to perform modified duty work. (S.S. 27). As Adkins instructs, Jacobs's

9

incapacity to return to her former position is not the sole inquiry in this very fact-specific case.

A claimant's ability to return to some work is the very fact that distinguishes the Adkins line of

cases from the Reitter Stucco and Pretty Products line of cases.

Further, under this Court's holding in Louisiana-Pacific, based on Jacobs's conduct, she

voluntarily abandoned her former position of employment. After Dr. Turc released Jacobs to

return to work, Jacobs violated Cenveo's absenteeism rules related to the modified duty job.

Jacobs argues that Cenveo never identified being "Absent Without Notification" as a

dischargeable offense, or that Jacobs knew of the policy. This is incorrect. Cenveo's employee

handbook clearly defined an "Absence Without Notification" as a terminable offense where the

employee is absent for two consecutive days without proper notice to the supervisor. (S.S. 33).

Additionally, the handbook included a section entitled "Absence as Voluntary Termination,"

which indicated that absences without notification jeopardize employment, and a section entitled

"Attendance" that warned "[r]epeated unauthorized absences and lateness will not be tolerated,

and may lead to disciplinary action up to and including termination." (S.S. 36).

Not only did Jacobs acknowledge receipt of Cenveo's written attendance policy, as the

handbook acknowledgment form bears her signature, but she also received two certified letters

notifying her that she was "Absent Without Notification," and the second letter warned that

Cenveo intended to terminate her if she did not respond. (S.S. 30-31, 35). Thus, Jacobs either

knew or should have known that she was "Absent Without Notification" and that her conduct

would result in her termination. Jacobs did not communicate the reasons for her absenteeism

va,^th Cenveo, despite multiple written requests to do so. Cenveo was forced to terminate Jacobs

because Jacobs never returned to work, nor did she ever contact Cenveo regarding her absences.

Instead, she chose to cut off all contact with Cenveo and chose not to return to Dr. Turc. Under a

10

Louisiana-Pacific analysis, her termination, which was the result of her voluntary actions

unrelated to the work injury, prevents her from ever returning to her former position. Thus, her

conduct amounts to a voluntary abandonment of the former position of employment.

Jacobs's argument that the Adkins facts vary so significantly from her own as to be

inapplicable lacks merit. It is immaterial that Jacobs actually arrived at Cenveo to perform the

modified duty position, and later abandoned it, while Adkins simply never reported to her light

duty job. If anything, this fact makes an even stronger case for the application of Adkins because

Jacobs actually began to perform the light duty work, but abandoned the position in violation of

Cenveo's attendance policy, and she cut off all further contact with Cenveo. The Adkins

principles turn on whether the claimant has been released to return to work in some capacity, and

the claimant violates the employer's work rules related to the modified duty position. Given that

the fact patterns are nearly identical, Jacobs cannot escape Adkins's applicability.

Industrial Commission's Proposition of Law II:

A claimant who accepts a modified duty position cannot later assert flaws in the

employer's offer of modified duty work.

Contrary to Jacobs's assertions, the facts do not support her claim that she rejected a verbal

job offer, thereby triggering Ohio Adm.Code 4121-3-32(A)(6) and its requirements related to

written job offers for suitable alternative employment. In fact, Jacobs accepted the light duty

work as she reported for, and began to perform, the light duty position. As the appellate court

noted, Jacobs "reported to the light-duty position and, after working for approximately one hour,

left work complaining of pain and leading Cenveo to believe she was going to follow up with her

physician that week." State ex rel. Jacobs, 2012-Ohio-3763, ¶ 9. If the position were beyond

her medical restrictions, Jacobs should have rejected the light duty work before she reported to

Cenveo to start the position. Although Jacobs later claimed that she was in pain and could not

11

perform the position, it is disingenuous for her to argue that she later rejected a verbal job offer,

given that she never submitted any contemporaneous medical evidence showing an inability to

work. The record contains Dr. Turc's return to work slip authorizing light duty work, and Jacobs

has failed to meet her burden to submit any evidence to the contrary. No case law, statute, or

administrative rule exists in support of Jacobs's assertion that she could arrive at Cenveo, begin

performing light work, abandon it, and then claim a rejection of Cenveo's "verbal job offer"

(Appellant's Merit Brief, p. 11).

Under Ohio Adm.Code 4121-3-32(A)(6), a claimant's refusal of a good faith job offer may

bar TTD compensation. The code defines a "job offer" as "a proposal, made in good faith, of

suitable employment *** If the injured worker refuses an oral job offer and the employer intends

to initiate proceedings to terminate temporary total disability compensation, the employer must

give the injured worker a written job offer at least forty-eight hours prior to initiating

proceedings." Ohio Adm.Code 4121-3-32(A)(6). In other words, an employer need only

provide a claimant with a written job offer where: ( 1) the claimant refuses an oral job offer; and

(2) the employer intends to start TTD termination proceedings.

Jacobs's argument that Cenveo failed to submit a written job offer in compliance with the

code lacks merit. Because Jacobs never rejected an oral job offer, Jacobs incorrectly categorizes

this as a suitable-alternative-employment or good-faith-job-offer case, thereby invoking the code.

At the outset, to trigger the employer's duty to submit a written job offer under the code, Jacobs

necessarily would have had to reject a verbal job offer even after she reported to Cenveo and

began performing the light duty work. This simply defies common sense. Similarly, Jacobs errs

in alleging that Cenveo's "written job offer" failed to meet the specificity requirements set out in

State ex rel. Coxson v. Dairy Mart Stores of Ohio, Inc., 90 Ohio St.3d 428 (2000). Adkins

12

adequately addresses this situation. Adkins argued that her employer's job offer lacked

specificity. State ex rel. Adkins, 2008-Ohio-4260, ¶ 58. However, the court rejected the

argument entirely, adopting instead the magistrate's conclusion that the claimant's acceptance of

the position bars her argument that it was not made in good faith. Id. at ¶ 59 ("Acceptance of the

job offer precludes a challenge that the offer was insufficient.").

Here, Jacobs's acceptance of the modified duty offer bars the argument that it lacked

specificity, or otherwise violated the Administrative Code. Furthermore, contrary to Jacobs's

claim, the two letters Cenveo sent to Jacobs in October 2006 were not written job offers. Rather,

Cenveo sent the letters for documentation purposes to warn Jacobs that she was absent without

notification and in danger of losing her job. The letters were meant as an outreach to Jacobs to

re-engage her in communication regarding her position. That Jacobs simply ignored these

letters, and failed to follow-up with any health care providers until months later, despite that she

had a previously scheduled appointment with Dr. Turc for just four days after her return to work,

speaks volumes.

Because Jacobs errs in categorizing this as a good-faith-job-offer case, an analysis under

Ellis Super Valu and State ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-

Ohio- 195 1, is unnecessary. Similar to Adkins, the appellate court, here, appropriately refused to

apply those cases. Again, whether Cenveo offered Jacobs suitable alternative employment is not

at issue here because Cenveo did not terminate Jacobs for a failure to accept the light duty

position. In fact, Jacobs accepted, and reported to, the light duty position. Rather, as the

appellate cotl-rt discussed, the defense of a voluntary abandonment of the former position of

employment is appropriate, given that Cenveo was forced to terminate Jacobs for her

absenteeism. Jacobs voluntarily chose to sever all contact from Cenveo, even after it made

13

repeated attempts to contact her. Similarly, it was her choice not to seek contemporaneous

medical treatment or submit any contemporaneous medical evidence to corroborate her

allegation that she was physically incapable of performing the modified duty job. Ultimately,

her voluntary actions with respect to the modified duty work prevent her from ever returning to

the former position of employment, and preclude TTD compensation, under a Louisiana-Pacific

analysis.

The commission need not address Jacobs's arguments related to laches, given that the

appellate court rejected the commission's and Cenveo's objections on that point as moot, and

neither party appealed that portion of the appellate decision.

CONCLUSION

The commission did not abuse its discretion in denying TTD compensation as Jacobs

voluntarily abandoned her former position of employment. A month after sustaining a low back

strain at work, Jacobs's doctor released her to return to work in a modified duty position. Jacobs

reported to the position, and began performing it. Subsequently, she abandoned the light duty

job through absenteeism in violation of Cenveo's written work rules, of she was aware, and for

which she understood to be a terminable offense. She never returned to work, she cut off all

contact with Cenveo, and ignored two certified letters notifying her that she would be terminated.

Although Jacobs has alleged an inability to do any work at the time of her termination, she has

never met her burden of proof in that regard. Under Louisiana-Pacific, Jacobs is presumed to

intend the consequences of her voluntary actions. Accordingly, Jacobs must accept that her

termination was the consequence of her absenteeism, for reasons entirely unrelated to the work

injury.

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Additionally, Cenveo terminated Jacobs for a work rule violation, not for a refusal of

suitable alternative employment. Common sense belies Jacobs's assertion that, even though she

reported to the modified duty position, and began performing the work, she later rejected a job

offer. Even if this Court were to accept that argument, Jacobs is incorrect that Cenveo's "written

job offer" (that is, allegedly, the two letters Cenveo sent to Jacobs in October 2006) violated the

Administrative Code provisions. Again, Adkins is on point. A claimant's acceptance of a job

offer precludes a later assertion of flaws in that offer. Furthermore, the two letters Cenveo sent

to Jacobs were for documentation purposes to notify Jacobs that she was about to be terminated.

The letters certainly were not meant as written job offers.

Respectfully submitted,

MICHAEL DEWINE (0009181)Ohio Attorney General

COL EEN C. E A(0080765)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215(614) 466-6696(614) 752-2538 faxColleen. Erdman@OhioAttorneyGeneral. gov

Counsel for Appellee,Industrial Commission of Ohio

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served on thisto:

Via U.S. Mail

Jennifer L. LawtherJerald A. SchneibergStacy M. CallenNAGER, ROMAINE & SCHNEIBERG CO. L.P.A.27730 Euclid AvenueCleveland, Ohio 44132

Counsel for Appellant,Wanda Jacobs

Via U.S. Mail

William W. Johnston94 North Woods Boulevard, Suite B 1Columbus, Ohio 43235

Counsel for Appellee,Cenveo, Inc.

^l day of April, 2013,

CO EEN C. ERDMANAssistant Attorney General

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