State ex rel. B.O.C. v. Industrial Commission

Per Curiam. Two questions are directed at claimant’s layoff: (1) Is the issue res judicata or moot? and (2) If not, does layoff bar compensation for temporary total disability here? We answer both inquiries in the negative and for the following reasons affirm the appellate court’s judgment. Prior to the period at issue, claimant received other compensation for temporary total disability related to the injury. Claimant asserts that because B.O.C. never raised the layoff issue then, it is barred by res judicata from doing so now. We disagree. Res judicata operates “to preclude the relitigation of a point of law or fact that was at issue in a former action between the same parties and was passed upon by a court of competent jurisdiction.” Consumers’ Counsel v. Pub. Util. Comm. (1985), 16 Ohio St. 3d 9, 10, 16 OBR 361, 362, 475 N.E. 2d 782, 783. It applies “not only to defenses which were considered and determined but also to those defenses which could properly have been considered and determined.” State, ex rel. Moore, v. Indus. Comm. (1943), 141 Ohio St. 241, 25 O.O. 362, 47 N.E. 2d 767, paragraph two of the syllabus; Rogers v. Whitehall (1986), 25 Ohio St. 3d 67, 25 OBR 89, 494 N.E. 2d 1387. The principle applies to administrative proceedings. Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St. 3d 260, 31 OBR 463, 510 N.E. 2d 373. However, because of the commission’s continuing jurisdiction under R.C. 4123.52, “the defense of res judicata has only a limited application to compensation cases.” Cramer v. Indus. Comm. [201] (1944), 144 Ohio St. 135, 138, 29 O.O. 176, 177, 57 N.E. 2d 233, 234. Res judicata requires “an identity of parties and issues in the proceedings.” Beatrice Foods Co. v. Lindley (1982), 70 Ohio St. 2d 29, 35, 24 O.O. 3d 68, 71, 434 N.E. 2d 727, 731. In Beatrice, a 1959 tax audit resulted in a use tax assessment against rentals paid by plaintiff to a leasing agent. A 1963 Tax Commissioner order later deleted this tax. Plaintiff was again audited in 1972, resulting in a similar tax assessment in 1976. This tax assessment was not vacated. On appeal, plaintiff argued that the 1963 decision of the commissioner barred, under res judicata, the 1976 assessment. We disagreed, finding the doctrine of res judicata inapplicable because: “At issue in the case at bar is a separate assessment based on an entirely different audit period, and we find that the requisite identity of issues is not present.” Id. B.O.C. urges a similar result here, asserting that the issue of claimant’s earlier compensation for temporary total disability was an issue distinct from her current request. Its point is well-taken. As stated in 3 Larson, Workers’ Compensation Law (1989) 15:426,272(99) to 15-426,272(100), Section 79.72(f): “It is almost too obvious for comment that res judicata does not apply if the issue is claimant’s physical condition or degree of disability at two entirely different times * * *. A moment’s reflection would reveal that otherwise there would be no such thing as reopening for change in condition. The same would be true of any situation in which the facts are altered by a change in the time frame * * *.” Claimant also argues that the layoff issue has been mooted by her subsequent reinstatement by B.O.C. during this appeal. We again disagree. While her grievance and eventual reinstatement may ultimately bear on the question of whether claimant had abandoned her employment, it does not negate the layoff as a factor preventing work, unrelated to the accident, during the claimed period of disability. Having addressed these preliminary matters, we now analyze the significance of claimant’s layoff. The effect of employment termination on future temporary total disability compensation was initially discussed in State, ex rel. Jones & Laughlin Steel Corp., v. Indus. Comm. (1985), 29 Ohio App. 3d 145, 29 OBR 162, 504 N.E. 2d 451. In reviewing a retired claimant’s request for compensation for temporary total disability, the appellate court stressed that a temporary total disability is one which must prevent a return to the former position of employment, under State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630, 23 O.O. 3d 518, 433 N.E. 2d 586. The court stated: “* * * [T]he industrial injury must not only be such as to render the claimant unable to perform the functions of his former position of employment, but it must also prevent him from returning to that position.” State, ex rel. Jones & Laughlin Steel Corp., supra, at 146-147, 29 OBR at 163, 504 N.E. 2d at 453. Accordingly, it held: “ * * * A worker is prevented by an industrial injury from returning to his former position of employment where, but for the industrial injury, he would return to such former position of employment. However, where the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability [202] benefits since it is his own action, rather than the industrial injury, which prevents his returning to such former position of employment. Such action would include such situations as the acceptance of another position as well as voluntary retirement.” Id. at 147, 29 OBR at 164, 504 N.E. 2d at 454. _ _ Jones & Laughlin’s prohibition against temporary total disability compensation to claimants who voluntarily leave their jobs was adopted in State, ex rel. Rockwell Internatl., v. Indus. Comm. (1988), 40 Ohio St. 3d 44, 531 N.E. 2d 678. Rockwell examined the eligibility for temporary total disability compensation of a claimant who retired after his industrial injury forced him from his job. In upholding continued eligibility, we recognized that construing “voluntary” retirement literally would preclude compensation whenever the decision to retire was made by the employee, even if the retirement was related to the injury. An entire class of claimants, including those who would not have retired but for their injury, would therefore be automatically disqualified from temporary total disability compensation. Finding such a result unacceptable, we ordered the commission to thenceforth consider whether retirement was injury-related. If it was, the retirement was deemed involuntary and the claimant’s eligibility for future temporary total compensation was preserved. Relying on Rockwell, B.O.C. asserts that temporary total disability compensation is improper since claimant’s departure was not injury-related. This is incorrect. An employer-initiated departure is still considered involuntary as a general rule. Rockwell did not narrow the definition of “involuntary,” it expanded it. While certain language in Rockwell may be unclear, its holding is not. The lack of a causal connection between termination and injury has no bearing where .the employer has laid off the claimant. The foregoing discussion, however, assumes that before even proceeding to the layoff issue, “some evidence” of an inability to return to the former position of employment exists. Absent such medical evidence, it is unnecessary to reach the layoff question. In the case at bar, we are prevented from answering this preliminary question. Evidentiary review is confined to the evidence on which the commission, in its order, stated that it relied. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 31 OBR 70, 508 N.E. 2d 936; State, ex rel. General American Transp. Corp., v. Indus. Comm. (1990), 49 Ohio St. 3d 91, 551 N.E. 2d 155. Here, the order improperly listed the evidence considered instead of only that on which it relied. The evidence, moreover, conflicts. While Dr. Urban and Dr. Novosel found that the allowed conditions barred claimant’s return to her former position, Dr. Dominic disagreed. Dr. Brodell did not specifically address claimant’s ability to work, but found nothing wrong with her. In General American Transportation after reviewing a similar order of the commission, we ordered the commission to specify the evidence relied on, reasoning: “* * * [0]ur review is limited to that evidence specifically relied on by the commission. * * * Under Mitchell, the commission must ‘specifically state which evidence and only that evidence which has been relied upon to reach [its] conclusion * * *.’ Id. at 483-484, 6 OBR at 534, 453 N.E. 2d at 724. Here, the commission appears to have listed all the evidence considered, instead of narrowing its citation to the evidence on which it relied. This conclusion is suggested by the order’s language and [203] by simple logic—the commission could not have relied on both Dr. Sparks and Dr. Urban in concluding that claimant was temporarily and totally disabled due to the allowed conditions. It is thus unclear which doctors’ reports were properly before us.” (Emphasis sic.) Id. at 92, 551 N.E. 2d at 157. We thus find that further review is impossible absent a clear statement of the evidence on which the commission relied. For. this reason, the appellate judgment is affirmed. Judgment affirmed. Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ., concur. Wright, J., concurs in judgment only. Holmes, J., dissents.