[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 407.]
THE STATE EX REL. MCCLAIN, APPELLANT, v. INDUSTRIAL COMMISSION OF
OHIO ET AL., APPELLEES.
[Cite as State ex rel. McClain v. Indus. Comm., 2000-Ohio-208.]
Workers’ compensation—Industrial Commission does not abuse its discretion in
denying temporary total disability compensation, when.
(No. 99-419–Submitted July 6, 2000—Decided August 9, 2000.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-52.
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{¶ 1} Appellant-claimant, Jack E. McClain, was injured on July 26, 1997,
while employed as a truck driver for appellee White Swan, Inc. A workers’
compensation claim was allowed for “lumbar sprain.” Claimant continued working
thereafter and did not seek treatment until approximately one month later. Dr.
Charles B. May saw claimant for his back condition in late August and early
September 1997. Dr. May placed no restrictions on claimant’s ability to work.
{¶ 2} On September 4, 1997, claimant arrived for work. Claimant exhibited
signs of alcohol consumption and was sent to an urgent medical care facility for
testing. Tests confirmed alcohol consumption. Pursuant to White Swan’s
substance abuse policy for its drivers, claimant was terminated the following day.
{¶ 3} On September 25, 1997, claimant moved the Bureau of Workers’
Compensation for temporary total disability compensation (“TTC”) from
September 4, 1997 through September 25, 1997, alleging that shortly after his
alcohol test, his back began acting up. A district hearing officer of appellee
Industrial Commission of Ohio denied compensation, writing:
“Claimant had not been disabled from work prior to 09/04/1997 for the
injury that was sustained on 07/26/1997. Claimant had continued to work in his
regular position of employment as a driver. On 09-04-97 claimant reported to work
SUPREME COURT OF OHIO
and it was suspected that he was under the influence of alcohol. He consented to
be tested and when this was confirmed positive the employer terminated the
employment relationship. The employer explained that they could not tolerate an
employee who would report to work to drive a company vehicle while under the
influence of alcohol.
“Claimant argued that he had been having increasing problems with his
back and that the stress of the alcohol test made his back ‘tighten up.’ The office
notes from Dr. May do confirm prior treatment on 08/21, 08/28, 08/29, 09/02, and
then on 09/05. However, these notes do not relate a worsening of the condition to
support the need to take claimant off work for a period now extending to almost 2
months. No medical explanation is given as to how claimant could continue to
work up until 09/04/1997 but could not work further after this unrelated
termination.
“This decision is supported by [State ex rel.] Smith v. Superior’s Brand
Meats, Inc. (1996), 76 Ohio St.3d 408 [
667 N.E.2d 1217]. Claimant’s actions
wherein he reported to work and presented himself as able to drive the employer’s
vehicle but while under the influence of alcohol constitut[e] a voluntary act. The
employer’s termination is therefore a voluntary separation from the former position
of employment that precludes the payment of Temporary Total Compensation.”
{¶ 4} A staff hearing officer affirmed, adding:
“It is further noted [that] the claimant initially started working on
09/04/1997 without apparent disability until the issue of suspected influence of
alcohol arose. It was only after he was referred to, and had, an alcohol level test
that he alleged disability. In light of this[,] the allegation of disability, and medical
reports supporting such, are not found persuasive.”
{¶ 5} Further appeal was refused.
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January Term, 2000
{¶ 6} Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission had abused its discretion in denying
TTC. The court of appeals disagreed and denied the writ.
{¶ 7} This cause is now before this court upon an appeal as of right.
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Dean G. Reinhard Co., L.P.A., and Charles Zamora, for appellant.
Betty D. Montgomery, Attorney General, and Dennis L. Hufstader,
Assistant Attorney General, for appellee Industrial Commission.
Porter, Wright, Morris & Arthur and Adele E. O’Conner, for appellee
White Swan, Inc.
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Per Curiam.
{¶ 8} We are asked to determine whether the commission abused its
discretion in denying TTC. Because we find that it did not, we affirm the judgment
of the court of appeals.
{¶ 9} The commission alone is responsible for evaluating evidentiary
weight and credibility. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio
St.3d 18, 31 OBR 70,
508 N.E.2d 936. Here, the commission examined the totality
of circumstances and rejected claimant’s assertion of a sudden onset of temporary
total disability coinciding with his violation of White Swan’s substance abuse
policy.
{¶ 10} The commission acknowledged claimant’s medical treatment prior
to his termination but stressed that his allowed condition had not prevented him
from working before then. The commission further emphasized that claimant
reported for his regular shift on September 4, 1997, and did not complain of any
work-prohibitive problems at that time. It was only after claimant tested positive
for alcohol consumption that his condition suddenly became work-prohibitive.
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Based on this evidence, the commission did not abuse its discretion in denying
TTC.
{¶ 11} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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