Courtesy Ambulance, Inc. v. Damschroder

2023 Ohio 421

• Court: Ohio Court of Appeals
• Decided: February 10, 2023
• Docket: 2022 CA 00090
• Status: Published

Opinion

[Cite as Courtesy Ambulance, Inc. v. Damschroder, 2023-Ohio-421.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

COURTESY AMBULANCE, INC. JUDGES: Hon. William B. Hoffman, P.J. Appellant Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2022 CA 00090 MATTHEW DAMSCHRODER, DIRECTOR, ODJFS, et al.,

Appellees OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 22 CV 00207

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 10, 2023

APPEARANCES:

For Appellant For Appellees

MICHAEL SOTO DAVE YOST M. Soto Law Office, LLC Ohio Attorney General 570 North State Street – Suite #220 Westerville, Ohio 43082 DAVID E. LEFTON Principal Assistant Attorney General Health and Human Services Section Unemployment Compensation Unit 30 East Broad Street – 26th Floor Columbus, Ohio 43215 Licking County, Case No. 2022 CA 00090 2

Hoffman, P.J. {¶1} Appellant Courtesy Ambulance, Inc. appeals the judgment entered by the

Licking County Common Pleas Court affirming the decision of the Unemployment

Compensation Review Commission finding Brandon Unger was entitled to unemployment

compensation after he was terminated from his employment with Appellant without just

cause. Appellee is Matthew Damschroder, Director of the Ohio Department of Job and

Family Services (hereinafter “ODJFS”), et al.

STATEMENT OF THE FACTS AND CASE

{¶2} Brandon Unger was employed by Appellant beginning on July 21, 2010. On

January 14, 2021, Unger left work, feeling ill. Unger tested positive for Covid-19 the

following day, and spent the next month in and out of the hospital for complications from

the disease. Appellant contacted Unger during one of his hospital stays, but Appellant

was incoherent. Appellant removed Unger from its payroll on February 1, 2021.

{¶3} Unger applied for unemployment compensation on May 17, 2021. His

application was initially denied, and he appealed the denial. On July 7, 2021, the director

of ODJFS issued a redetermination, finding Unger met the requirements of R.C.

4141.29(A)(4), and his application for benefits was allowed.

{¶4} Appellant filed an appeal from this redetermination. ODJFS transferred

jurisdiction to the Unemployment Compensation Review Committee. On January 26,

2022, a telephone hearing was held before a hearing officer. Following the hearing, the

hearing officer found Unger was unable to work due to circumstances beyond his control,

namely, complications from Covid-19. The hearing officer found Unger was discharged

by Appellant without just cause, and was therefore entitled to benefits. Licking County, Case No. 2022 CA 00090 3

{¶5} Appellant filed a request for review of the hearing officer’s decision by the

Unemployment Review Commission. The Commission disallowed the request.

{¶6} Appellant then appealed to the Licking County Common Pleas Court. The

trial court affirmed the decision of the hearing officer finding Unger was entitled to

unemployment benefits.

{¶7} It is from the September 26, 2022 judgment of the trial court Appellant

prosecutes its appeal, assigning as error:

I. THE TRIAL COURT ERRED IN CONCLUDING SOME

COMPETENT CREDIBLE EVIDENCE IN THE RECORD EXISTS TO

SUPPORT UNGER’S BURDEN UNDER R.C. 4141.29(A)(4)(a).

II. THE TRIAL COURT ERRED IN AFFIRMING ODJFS’S

CONCLUSION THAT COURTESY DISCHARGED UNGER WITHOUT

JUST CAUSE IN CONNECTION WITH WORK.

{¶8} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall

be sufficient compliance with App.R. 12(A) for the statement of the reason

for the court's decision as to each error to be in brief and conclusionary

form. Licking County, Case No. 2022 CA 00090 4

The decision may be by judgment entry in which case it will not be

published in any form.

{¶9} This appeal shall be considered in accordance with the aforementioned

rule.

I.

{¶10} In its first assignment of error, Appellant argues the trial court exceeded its

scope of review in finding Unger looked for work as required by R.C. 4141.29(A)(4)(a)

because the hearing officer did not make a finding on this issue, and further Unger’s

statement he searched for work per the order is not credible.

{¶11} The applicable standard of review a court must implement in reviewing a

decision of the Unemployment Compensation Review Commission is whether the Board's

decision is unlawful, unreasonable, or against the manifest weight of the evidence. E.g.,

Brown-Brockmeyer Co. v. Roach, 148 Ohio St. 511, 518, 76 N.E.2d 79 (1947). There is

no distinction between the scope of review of trial courts and appellate courts on appeals

from the Unemployment Compensation Review Commission. Tzangas, Plakas &

Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 696, 653 N.E.2d 1207, 1210

(1995).

{¶12} A reviewing court is not permitted to make factual findings, determine the

credibility of witnesses, or substitute its judgment for that of the commission. Bonanno v.

Ohio Dept. of Job & Family Servs., 5th Dist. Tuscarawas No. 2012 AP 02 0011, 2012-

Ohio-5167, 2012 WL 5439043, ¶ 15. Where the commission might reasonably decide

either way, the courts have no authority to upset the Unemployment Compensation Licking County, Case No. 2022 CA 00090 5

Review Commission's decision. Id. “‘Every reasonable presumption must be made in

favor of the [decision] and the findings of facts [of the Review Commission].’” Id., citing

Ro–Mai Industries, Inc. v. Weinberg, 176 Ohio App.3d 151, 2008-Ohio-301, 891 N.E.2d

348, ¶ 7 (9th Dist.), quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350

(1988). This Court is required to focus on the decision of the commission, rather than the

decision of the trial court. Grier, supra at ¶23.

{¶13} The trial court held, “The record contains Unger’s assertions that he

searched for work ‘per the order.’ (Cert. Rec. 4). The hearing officer was permitted to

believe him.” While Appellant is correct the hearing officer did not specifically find Unger’s

representation he looked for work to be credible, the only issue before the hearing officer

was whether Unger was discharged for just cause. Appellant did not challenge Unger’s

representation he looked for work as required by law, but rather solely argued he was

discharged for just cause, and/or he had a job available with Appellant if he chose to

return. We find the trial court did not exceed its scope of authority.

{¶14} By finding Unger qualified for benefits, the hearing officer impliedly found

he met the requirements concerning looking for work. We find Unger’s unchallenged

representation he complied with the order regarding looking for work is competent,

credible evidence supporting a finding Unger complied with R.C. 4141.29(A)(4)(a).

{¶15} The first assignment of error is overruled. Licking County, Case No. 2022 CA 00090 6

II.

{¶16} In its second assignment of error, Appellant argues the trial court erred in

affirming the finding of the Unemployment Review Commission Unger was discharged

without just cause.1

{¶17} The Ohio Supreme Court has defined “just cause” as that which, to an

ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.

Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73

Ohio St.3d 694, 697, 1995–Ohio–206, 653 N.E.2d 1207. The determination of whether

just cause exists for an employee's dismissal under R.C. 4141.29 is based upon whether

there was some fault on the part of the employee that led to the dismissal. Id. at paragraph

two of the syllabus. “Just cause” does not typically require intentional action, and the

determination of just cause depends upon the “unique factual considerations of the

particular case” and is therefore an issue for the trier of fact. Irvine v. Unemp. Comp. Bd.

Of Review, 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).

{¶18} The trial court affirmed the finding of the hearing officer Unger was

discharged without just cause:

Here, Unger became ill such that he could not perform his ordinary

work. Nothing about such a state of affairs suggests that Unger was in any

sense responsible for his own predicament and was thus at fault for the

1 At the same time, Appellant appears to argue Unger was not “discharged” from work, but rather was removed from the payroll for insurance reasons, and could return at any time. We find this argument was not raised in the trial court, and further conflicts with Appellant’s argument it discharged Unger for just cause. The record affirmatively demonstrates Unger was removed from his employment on February 1, 2021. Licking County, Case No. 2022 CA 00090 7

circumstances that led to his termination. Further, to the extent that

Appellant argues that it was error to attribute Unger’s inability to work to

Covid-19 because to do so requires medical expertise beyond that of a

layperson, this argument is unavailing. As the Court has noted, the rules of

evidence are not strictly applied in proceedings related to unemployment

compensation. Taralla at ¶¶12-14. See also R.C. 4141.281(C)(2). Rather,

the hearing officer is given broad discretion to consider evidence and

develop a full record of the proceeding. R.C. 4141.281(C)(2).

{¶19} Judgment entry, 9/26/22, p. 6-7.

{¶20} For the reasons stated by the trial court, we find the hearing officer’s

determination Unger was not discharged for just cause is supported by the record.

{¶21} The second assignment of error is overruled.

{¶22} The judgment of the Licking County Common Pleas Court is affirmed.

By: Hoffman, P.J. Wise, J. and Baldwin, J. concur