Case Information
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Parraz v. Diamond Crystal Brands, Inc.,
Slip Opinion No.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
S LIP PINION N O . 2014-O -4260 T HE TATE EX REL . P ARRAZ , A PPELLANT , v . D IAMOND RYSTAL B RANDS , I NC . ET AL ., A PPELLEES .
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as
State ex rel. Parraz v. Diamond Crystal Brands, Inc.,
Slip Opinion No.
Workers’ compensation—Temporary-total disability—Voluntary abandonment of
employment precludes compensation—Claimant voluntarily abandoned employment by violating written workplace policy—Policy required termination upon exceeding limit of allowed instances of tardiness or absences—Claimant knew of policy—Violation need not be willful.
(No. 2013-0608—Submitted July 8, 2014—Decided October 2, 2014.)
A PPEAL from the Court of Appeals for Franklin County, No. 11AP-806,
____________________
Per Curiam . Appellant, Elena Parraz, was fired by her former employer,
appellee Diamond Crystal Brands, Inc., for violating the written attendance policy
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in her union contract. Parraz subsequently requested temporary-total-disability
compensation for a work-related injury. The Industrial Commission determined
that her termination had met the criteria under
State ex rel. Louisiana-Pacific
Corp. v. Indus. Comm
.,
{¶ 2} We affirm the judgment of the court of appeals. The claimant, Elena Parraz, was injured at work on July 20, 2010. She sought treatment the following day and was placed on restricted work duties. On July 27, 2010, she filed a workers’ compensation claim, which was allowed for “sprain lumbosacral, left.” Medical benefits were ordered paid, but no compensation was payable because there had been fewer than eight days of disability. Diamond Crystal accommodated her medical restrictions and she returned to light-duty work. While at Diamond Crystal, Parraz was employed under a union
contract that contained a point-based attendance policy. According to the policy, an employee accumulated points for each instance of tardiness or absence from work, ranging from one-half to two points. The union contract explained the point system in detail. An employee who receives 14 points is terminated. Parraz acknowledged that had she received a copy of the attendance policy. As of the date of her injury, Parraz already had 10.5 attendance
points on her record. By September 9, 2010, she had accumulated 12 attendance points—none were attributed to her industrial injury—and, in accordance with the attendance policy, the company issued a final written disciplinary warning. On February 11, 2011, Parraz was terminated when she accumulated 14 points. Parraz filed for temporary-total-disability compensation beginning February 14, 2011. A district hearing officer determined that Parraz had been *3 terminated for violating a written work rule; thus, she had voluntarily abandoned her employment and was not eligible for compensation. Based on the claimant’s statement at the hearing that her absence on February 3, 2011, was due to illness and the tardiness on February 4, 2011, was because of a flat tire, the hearing officer rejected the argument that her industrial injury caused her termination. A staff hearing officer affirmed. The hearing officer concluded that Parraz was terminated for violating the attendance-policy point system in her union contract. According to the hearing officer, the written union contract clearly defined the prohibited conduct under the written attendance policy, the claimant knew or should have known the terms of the attendance policy in her contract, and by November 14, 2010, she acknowledged that she was only two points short of termination. Thus, the hearing officer concluded that, per Louisiana-Pacific , her termination was a voluntary abandonment that barred payment of temporary-total-disability compensation. Parraz filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals. She argued that although her employer had the right to terminate her under the attendance policy, her absences were negligent, not willful or intentional, and should not bar temporary-total-disability compensation. The case was referred to a magistrate, who determined that the evidence demonstrated that the employer had satisfied its burden of proof that Parraz was terminated for violating a written work rule. The magistrate cited the claimant’s attendance problems before her industrial injury and the lack of contemporaneous medical evidence that subsequent absences were the result of her industrial injury. Thus, the magistrate concluded that the commission did not abuse its discretion when it denied her request for temporary-total-disability compensation. In a split decision, the court of appeals overruled the objections
filed by Parraz. First, the court noted that Parraz was aware of the attendance *4 policy, routinely violated it, and had accumulated most of the 14 points before her injury. The court determined that her repeated absences demonstrated an indifference to or disregard for workplace rules and policies. As such, the absences were sufficient to support a finding for voluntary abandonment. Next, the court concluded that Parraz did not present any contemporaneous medical evidence that her absences were related to her industrial injury. The court denied the writ.
{¶ 11} According to the dissenting judge, the doctrine of voluntary abandonment should not apply to the facts of this case. This matter is before the court on the claimant’s appeal as of right. To be entitled to relief in mandamus, the claimant must establish
that she has a clear legal right to relief and that the commission has a clear legal
duty to provide such relief.
State ex rel. Pressley v. Indus. Comm
., 11 Ohio St.2d
141,
employment for violating the attendance policy was evidence of voluntary abandonment that justified the commission’s order denying temporary-total- disability compensation. Parraz does not dispute that she had accumulated 14 points and was subject to termination under the union contract. Instead, she argues that the commission had no evidence that she knowingly and intentionally engaged in conduct that she knew would lead to termination; rather, her tardiness and absences were not intentional. This court has held that an employee’s firing can constitute
voluntary abandonment of a former position of employment because discharge “
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‘is often a consequence of behavior that the claimant willingly undertook, and
may thus take on a voluntary character.’ ”
Louisiana-Pacific,
72 Ohio St.3d at
403,
willful or deliberate, but merely a voluntary act that the employee knew may lead
to termination of employment.
State ex rel. Brown v. Hoover Universal, Inc
., 132
Ohio St.3d 520,
of the attendance policy in her union contract. She had a history of attendance
problems prior to her industrial injury. She was warned of the number of points
she had accumulated and was aware that she was close to the mandatory number
for discharge. Consequently, we agree that the commission did not abuse its
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discretion when it determined that her termination was the result of a voluntary
abandonment that precluded payment of temporary-total-disability compensation.
In addition, Parraz failed to demonstrate a causal relationship
between her industrial injury and the loss of earnings she hoped to replace with
temporary-total-disability compensation.
Parraz did not provide any
contemporaneous medical evidence to establish that her absences or tardiness that
resulted in termination had been caused by her industrial injury. “[T]o qualify for
[temporary-total-disability] compensation, the claimant must show not only that
he or she lacks the medical capability of returning to the former position of
employment but that a cause-and-effect relationship exists between the industrial
injury and an actual loss of earnings. In other words, it must appear that, but for
the industrial injury, the claimant would be gainfully employed.”
State ex rel.
McCoy v. Dedicated Transport, Inc
., 97 Ohio St.3d 25,
she voluntarily and intentionally engaged in misconduct that she knew would
result in her discharge. She contends that there was insufficient evidence to
support that conclusion; thus, the employer failed to meet its burden of proof. We
do not agree. As the court of appeals concluded, “[t]he burden of proof was on
Diamond Crystal to establish that [the claimant] violated a written-work rule she
knew or should have known would result in her termination. Diamond Crystal
did.”
State ex rel. Parraz v. Indus. Comm
., 10th Dist. Franklin No. 11AP-806,
abused its discretion when it denied her request for temporary-total-disability compensation. Consequently, we affirm the judgment of the court of appeals.
Judgment affirmed. *7 O’C ONNOR , C.J., and P FEIFER , O’D ONNELL , L ANZINGER , K ENNEDY , and F RENCH , JJ., concur.
O’N EILL , J., dissents without opinion.
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Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A.
Bowman, for appellant.
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