STATE UPTON v. INDUSTRIAL COMMISSION OF OHIO (2008)

{¶ 1} At issue is appellee Robert W. Upton Jr.'s eligibility for temporary total disability compensation.  Upton was a truck driver for appellant, Crown Battery.  Between March 5, 2003, and September 26, 2005, Upton was involved in five motor-vehicle accidents while operating a Crown Battery vehicle.  The fifth accident seriously damaged the truck, destroyed the cargo, and resulted in a hazardous-waste spill.  Upton was cited for that accident, which also resulted in his injury.

{¶ 2} After investigating the incident, Crown Battery concluded—as did law-enforcement officers—that the accident was caused by operator error.  On September 30, 2005, Crown Battery fired Upton:

{¶ 3} “On September 26, while driving Crown's vehicle, you hit a guardrail causing significant damage to the truck and an acid spill.  Additionally, the product you were carrying was destroyed.

{¶ 4} “Bob, you have had 5 vehicle related mishaps or accidents in less than 3 years.  This is an unacceptable safety record and performance;  therefore, you are being terminated from Crown Battery.”

{¶ 5} Upton filed a workers' compensation claim for the injuries he sustained in the accident, and his claim was allowed.  His accompanying request for temporary total disability compensation was more contentious.  A district hearing officer for the Industrial Commission of Ohio awarded temporary total disability compensation, but a staff hearing officer reversed.  In a lengthy order, the latter concluded that Upton's firing constituted a voluntary abandonment of the former position of employment that precluded temporary total disability compensation.  Further appeal was refused.

{¶ 6} On petition for a writ of mandamus, the Court of Appeals for Franklin County held that the commission had abused its discretion in finding that Upton's firing had been a voluntary abandonment of the former position of employment.  Compensation was accordingly approved.

{¶ 7} Crown Battery now appeals to this court as of right.

 {¶ 8} The court of appeals decision was issued before State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916, 874 N.E.2d 1162 (“Gross II ”).  Gross II held that if a claimant is injured by the same misconduct that led to his or her termination, eligibility for temporary total disability compensation is not compromised.  Gross II controls and renders the court of appeals reasoning moot.  Compensation is therefore payable.

{¶ 9} The judgment of the court of appeals is affirmed.

Judgment affirmed.

PER CURIAM.

MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O'CONNOR, O'DONNELL, LANZINGER, and CUPP, JJ., concur.