Harmon v. Ohio Dept. of Job & Family Servs.

2022 Ohio 1142

• Court: Ohio Court of Appeals
• Decided: April 4, 2022
• Docket: CA2021-08-105
• Status: Published

Opinion

[Cite as Harmon v. ODJFS, 2022-Ohio-1142.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

MALISSA R. HARMON, : CASE NO. CA2021-08-105

Appellant, : OPINION 4/4/2022 : - vs - :

OHIO DEPARTMENT OF JOB AND : FAMILY SERVICES, et al., : Appellees.

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 021 04 0567

Malissa R. Harmon, pro se.

Dave Yost, Attorney General of Ohio, and Robin A. Jarvis, Sr., Assistant Attorney General, for appellee, Ohio Department of Job and Family Services.

M. POWELL, P.J.

{¶ 1} Appellant, Malissa Harmon, appeals from the decision of the Butler County

Court of Common Pleas affirming the decision of the Unemployment Compensation Review

Commission ("UCRC" or "Review Commission") to disallow her application for

unemployment compensation benefits on the basis that she did not meet the "employment" Butler CA2021-08-105

requirement of R.C. 4141.01(R). For the reasons that follow, we reverse the judgment of

the common pleas court.1

{¶ 2} Harmon began working for Intelligrated Services, LLC ("Intelligrated") in 2010.

In 2016, Intelligrated was acquired by Honeywell International, Inc. ("Honeywell"), and

Harmon's employment continued with Honeywell. Approximately two years later, in

February 2018, Harmon suffered an injury and took a leave of absence from work via

Honeywell's short term disability policy. Thereafter, Harmon was diagnosed with

depression and became totally disabled as a result of her diagnosis. At that point, Harmon

transitioned to long term disability pursuant to Honeywell's benefits plan.

{¶ 3} On August 15, 2018, Harmon began receiving long term disability payments

in the amount of $2,657.00 per week pursuant to Honeywell’s long term disability plan.

Harmon’s disability payments were paid by CIGNA Group Insurance ("CIGNA") under

Honeywell's policy with CIGNA.

{¶ 4} In August 2019, CIGNA informed Harmon that she had been absent from work

for more than 18 months, which is the maximum leave duration under Honeywell's medical

leave policy, and that the length of her absence could affect her "active job status."

According to CIGNA, because the last day Harmon physically worked prior to going on

disability leave was February 13, 2018, she had been absent for more than 18 months and

her employment would be terminated unless she was able to return to work at Honeywell

in the foreseeable future.

{¶ 5} On August 27, 2019, Harmon informed Honeywell that she was unable to

return to work. Honeywell responded that Harmon could not maintain her "current job

status" and terminated her employment, effective October 3, 2019. Despite her termination

1. Pursuant to Loc.R. 6(A), we have sua sponte removed this case from the accelerated calendar for purposes of issuing this opinion. -2- Butler CA2021-08-105

from Honeywell, Harmon continued to receive long term disability payments from CIGNA

under Honeywell's policy until August 15, 2020.

{¶ 6} After her termination, Harmon applied for unemployment compensation.

Although Harmon's application was filed on August 31, 2020, it includes a "designated

effective date" of March 15, 2020. On October 8, 2020, appellee, Ohio Department of Job

and Family Services ("ODJFS"), disallowed Harmon's application for unemployment

compensation on the basis that she did not have at least 20 qualifying weeks of employment

that was subject to the unemployment compensation law or did not earn a sufficient average

weekly wage as required by R.C. 4141.01(R). Harmon appealed ODJFS' determination.

Upon redetermination, ODJFS affirmed its decision and disallowed Harmon's application

on the same basis.

{¶ 7} Harmon appealed ODJFS' redetermination to the UCRC and a telephone

hearing was held before a hearing officer. At the hearing, the hearing officer indicated

Honeywell stopped reporting wages for Harmon the first quarter of 2019. The last time

Honeywell reported any weeks worked was in the third quarter of 2018, during which

Honeywell indicated Harmon worked for 6 weeks and earned $3,601.

{¶ 8} After considering the above, the hearing officer determined Harmon was not

eligible to receive unemployment compensation benefits because she did not work 20

weeks during her base period. Thus, the hearing officer affirmed ODJFS' redetermination,

and disallowed Harmon's application on the basis that she failed to establish enough

qualifying weeks during her base period or alternate base period. Harmon appealed the

UCRC's decision, however, the UCRC denied a further review.

{¶ 9} Thereafter, Harmon appealed the matter to the common pleas court. On

appeal, Harmon argued her disability benefits constituted remuneration and employment

for unemployment compensation purposes. After its review, the common pleas court

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rejected Harmon's argument and affirmed the decision of the UCRC. In so doing, the court

determined, in relevant part, that Harmon did not meet the employment requirement for

unemployment compensation because,

[r]egardless of whether one uses Harmon's base period of unemployment or alternate period of unemployment, the simple fact remains she did not work. Harmon received a benefit offered by her employer as a part of its compensation package, but performed no service benefitting that employer.

{¶ 10} Harmon now appeals, raising three assignments of error for our review.

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED BY FINDING APPELLANT'S DISABILITY

PAYMENTS DOES (SIC) NOT MEET THE DEFINITION OF REMUNERATION FOR

WORK UNDER OHIO COMPENSATION LAW.

{¶ 13} Assignment of Error No. 2:

{¶ 14} THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANT DID NOT

FILE A VALID APPLICATION FOR UNEMPLOYMENT COMPENSATION BENEFITS

BECAUSE SHE DID NOT WORK OR PERFORM ANY SERVICES FOR HER EMPLOYER

FOR TWENTY WEEKS DURING HER BASE PERIOD OR ALTERNATE BASE PERIOD.

{¶ 15} In her first and second assignments of error, Harmon argues the common

pleas court erred in affirming the UCRC's decision disallowing her application for

unemployment benefits on the basis that she did not meet the employment requirement for

unemployment compensation. Harmon claims the court's decision is contrary to Ohio law

and must be vacated and reversed.

{¶ 16} When reviewing a decision of the Unemployment Compensation Review

Commission, both the court of common pleas and appellate court must affirm the Review

Commission's decision unless it is unlawful, unreasonable, or against the manifest weight

of the evidence. Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d

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694, 696 (1995); R.C. 4141.282(H). In considering whether a judgment is against the

manifest weight of the evidence in civil or criminal cases, a reviewing court must "weigh the

evidence and all reasonable inferences, consider the credibility of witnesses, and determine

whether in resolving conflicts in the evidence, the finder of fact 'clearly lost its way and

created such a manifest miscarriage of justice that the [judgment] must be reversed[.]'"

Odom Indus., Inc. v. Shoupe, 12th Dist. Clermont No. CA2013-09-069, 2014-Ohio-2120, ¶

11, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

{¶ 17} Given the limited standard of review employed in unemployment

compensation cases, "reviewing courts are not permitted to make factual findings or

determine the credibility of the witnesses[,]" and "[f]actual questions remain * * * solely within

the province of the Review Commission." Odom Indus., Inc. at ¶ 12, citing Chen v. Ohio

Dept. of Jobs & Family Servs., 12th Dist. Clermont No. CA2011-04-026, 2012-Ohio-994, ¶

17. However, reviewing courts have the duty to determine whether the Review

Commission's decision is supported by the evidence in the record, and this duty is shared

by all reviewing courts, from the first level of review in the common pleas court through the

final appeal. R.C. 4141.282(H); Watts v. Cmty. Health Ctrs. Of Greater Dayton, 12th Dist.

Warren No. CA2015-07-068, 2015-Ohio-5314, ¶ 13. Indeed, "[t]he focus of an appellate

court's review on an unemployment compensation appeal is upon the Review

Commission's decision [rather than the common pleas court's decision] and whether such

decision is supported by evidence in the record." Watts at ¶ 13, citing Odom Indus., Inc.

{¶ 18} Pursuant to R.C. 4141.01(R)(1), Harmon's application for unemployment

compensation benefits was valid if (1) she was unemployed, (2) she had been employed

for at least 20 qualifying weeks during her base period, and (3) she had earned or been

paid remuneration at an average weekly remuneration of not less than 27.5 percent of the

statewide average weekly wage for those weeks. R.C. 4141.01(R)(1).

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{¶ 19} Because the UCRC denied Harmon's application on the basis that she was

not employed for at least 20 qualifying weeks during her base period, our review is limited

to whether Harmon's employment at Honeywell satisfied the second prong of R.C.

4141.01(R)(1).

{¶ 20} The term "[q]ualifying week" means any calendar week in an individual's base

period with respect to which the individual earns or is paid remuneration in employment

subject to this chapter. R.C. 4141.01(O)(1). The term "[b]ase period" means "the first four

of the last five completed calendar quarters immediately preceding the first day of an

individual's benefit year[.]" R.C. 4141.01(Q)(1). Using March 15, 2020, i.e., the backdated

effective date of Harmon's application, and her established benefit year of March 15, 2020

to March 13, 2021, Harmon's base period is the fourth quarter of 2018 through the third

quarter of 2019. Thus, in order for her application to be valid, Harmon was required to have

earned or been paid remuneration while "employed" for 20 weeks between the fourth

quarter of 2018 and the third quarter of 2019.

{¶ 21} It is undisputed that Harmon was on Honeywell's long term disability benefit

plan throughout her entire base period. Consequently, the dispositive issue in this case is

whether Harmon's receipt of disability payments, resulting from an employer-approved

medical leave and paid by an insurance company via her employer's policy, constitutes

"employment" pursuant to R.C. 4141.01(R).

{¶ 22} Employment is generally defined as "service performed by an individual for

remuneration under any contract of hire, written or oral, express or implied." R.C.

4141.01(B)(1). Thus, the statute requires both remuneration and service in order to be

eligible for unemployment compensation. Koval v. Dir. Ohio Dept. of Jobs & Family Servs.,

8th Dist. Cuyahoga No. 79424, 2001 Ohio App. LEXIS 5080, *5 (Nov. 15, 2001).

"'Remuneration' means all compensation for personal services, including commissions and

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bonuses and the cash value of all compensation in any medium other than cash[.]" R.C.

4141.01(H)(1).

{¶ 23} It is undisputed that Harmon did not actually perform any work during her base

period or alternate base period. As such, appellee, ODJFS, contends Harmon does not

meet the employment requirement because she performed no service for Honeywell after

February 13, 2018. Conversely, Harmon contends she was employed during her base

period due to her receipt of disability benefits from Honeywell's policy during that time.

{¶ 24} In support of her position, Harmon relies extensively on Shepherd v.

Wearever-Proctor Silex, Inc., 75 Ohio App.3d 414 (4th Dist.1991). In that case, the plaintiff

was placed on medical leave and received disability income from an insurance company

pursuant to a disability insurance policy with her employer. Shepherd at 415. The plaintiff

returned to work approximately ten months later but was laid off shortly thereafter. Id. At

that point, the plaintiff applied for unemployment compensation. Id. Upon reviewing the

plaintiff's application, which was initially denied, the Review Commission determined that

the disability income received by the plaintiff did not meet the statutory definition of

"remuneration" and, consequently, the weeks in which she received disability income did

not constitute "qualifying weeks" during her base period. Id. at 415-416.

{¶ 25} On appeal, the court analyzed whether the plaintiff's disability payments

constituted payment for personal services when the plaintiff was unable to physically work

due to her disability. Id. at 417. In reversing the Review Commission's decision, the court

found that the weeks the plaintiff received disability income constituted qualifying weeks

toward her base period. Id. Specifically, the court determined that the plaintiff's disability

income constituted remuneration, i.e., compensation for personal services, during her base

period, as the benefits were provided by the employer's insurance policy and were part of

its "compensation for personal services rendered" by its employees. Id. Thus, the weeks

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the plaintiff received such payments constituted "qualifying weeks" to be added to her "base

period" and "alternate base period" in order to determine her eligibility for unemployment

compensation benefits. Id. at 419.

{¶ 26} After a review, we agree with the Fourth District's interpretation of the

definition of remuneration, and similarly conclude that Harmon's disability payments paid

by CIGNA through Honeywell's policy constitute remuneration and compensation for

personal services rendered by Harmon. As noted by the court in Shepherd, classifying

Harmon's disability income as remuneration is consistent with the broad language of R.C.

4141.01(H)(1), which encompasses "all compensation for personal services" in its definition

for remuneration. (Emphasis added.) Id. at 418-419. Additionally, such a broad

interpretation of the definition of remuneration is supported by the Ohio Administrative

Code, which defines the term "remuneration" to include "vacation pay or allowance,

separation pay, holiday pay, paid absence allowance [and] downtime paid absence

allowance[.]" Ohio Adm.Code 4141-9-04(B). As such, it is evident that the term

"remuneration" was intended to encompass private disability payments an employee

receives pursuant to her employer's disability policy. See Shepherd at 419.

{¶ 27} Because we conclude Harmon's disability payments constitute remuneration,

we must next analyze whether Harmon satisfied the "service" requirement of "employment"

during her base period. R.C. 4141.01(B).

{¶ 28} As noted above, although Harmon was an "active job status" employee during

her applicable base period, she did not provide any physical service to Honeywell during

that time. Notably, other courts in Ohio have found applicants eligible to receive

unemployment compensation benefits in instances where they were "employed" but did not

physically work or provide service during some or all of their applicable base periods. See

Shepherd at 419; Brooks v. Unemployment Comp. Review Commision, 7th Dist. Monroe

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No. 07-MO-1, 2007-Ohio-4986, ¶ 32-35; In re Claim of Richardson, 6th Dist. Erie No. E-97-

140, 1998 Ohio App. LEXIS 3131, 10-11 (July 10, 1998); see also Radcliffe v. Artromick

International, Inc., 31 Ohio St. 3d 40, (1987) (finding an applicant eligible for unemployment

compensation under R.C. 4141.291 where the employee remained under the employer's

"employ" when she received severance pay but did not provide any services); Dickson v.

Thousand Trails Resorts, 12th Dist. Clinton No. CA88-06-008, 1988 Ohio App. LEXIS 4443,

*6 (Nov. 7, 1988) (finding the appellant's nine days of vacation pay should be treated as a

period of employment).

{¶ 29} When considering these cases, Ohio law clearly recognizes that an applicant

may be entitled to unemployment compensation and can establish "qualifying weeks"

during her base period without providing actual service to an employer during that time.

Such a proposition is consistent with the statutory language of R.C. Chapter 4141, which

suggests an employee's service and remuneration for that service are not required to be

contemporaneous to establish a qualifying week or constitute remuneration. See R.C.

4141.01(O)(1) (defining qualifying week to include weeks the individual "earns or is paid

remuneration in employment"). (Emphasis added.); R.C. 4141.01(H)(1) (defining

remuneration to include "all compensation for personal services"). (Emphasis added.)

{¶ 30} Based upon this language, we find that an employee's past "service" can be

used to establish a "qualifying week" for unemployment compensation purposes. This is

because R.C. 4141.01(O)(1) clearly indicates a qualifying week may be based upon

remuneration that is earned before it is ultimately paid to the employee. As such, we

conclude that an applicant, like Harmon, can establish a "qualifying week" based upon her

receipt of disability benefits paid by her employer as remuneration in exchange for services

she previously provided during her employment.

{¶ 31} ODJFS argues the above cases are distinguishable from the case at hand, as

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they are based on a "flawed" application of R.C. Chapter 4141, in that they construe the

unemployment compensation statutes liberally in favor of the applicant. See Shepherd at

417; Brooks at ¶ 40. In support, ODJFS cites Bernard v. Unemp. Comp. Rev. Comm., 136

Ohio St.3d 264, 2013-Ohio-3121. In Bernard, the Ohio Supreme Court addressed the

statutory mandate of R.C. 4141.46, which states that "Sections 4141.01 to 4141.46,

inclusive, of the Revised Code shall be liberally construed." Bernard at ¶ 10. In so doing,

the Ohio Supreme Court noted that '"courts * * * must give due deference to an

administrative interpretation formulated by an agency that has accumulated substantial

expertise, and to which the General Assembly has delegated the responsibility of

implementing the legislative command."' Id. at ¶ 12, quoting Swallow v. Indus. Comm., 36

Ohio St.3d 55, 57 (1988). Thus, we must defer to the Review Commission's interpretation

of R.C. 4141.01(R) "so long as the interpretation is reasonable." Id.

{¶ 32} After our review of the relevant cases, including Bernard, we conclude there

is nothing in Shepherd, Brooks, Richardson, or Radcliffe to suggest that the various courts

improperly applied R.C. 4141.46 in reaching their decisions. Furthermore, Bernard

mandates that we defer to the UCRC's interpretation of R.C. 4141.01(R) only in instances

where the agency's interpretation is reasonable. After reviewing the record and pertinent

law, we find the UCRC's interpretation of the statute was unreasonable in this case. That

is, we find it was unreasonable to conclude that Harmon was not employed during her base

period simply because she did not physically provide services during that time. This is

because, and as explained above, Harmon was an active status employee receiving

remuneration in the form of disability payments while on an employer-approved disability

leave during her entire base period. Harmon received this remuneration in consideration

of the services she had previously provided to Honeywell before becoming injured and

totally disabled in 2018.

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{¶ 33} In light of the above, we conclude that the weeks during which Harmon

received disability benefits during her base period are "qualifying weeks," and the UCRC

erred in disallowing Harmon's application on the basis that she did not have 20 weeks of

employment during her base period. Accordingly, we find that the UCRC's decision was

unlawful, unreasonable, and against the weight of the evidence. Thus, the common pleas

court's decision to affirm the UCRC's findings was equally erroneous.

{¶ 34} Therefore, Harmon's first and second assignments of error are sustained.

The decision of the common pleas court is reversed and the UCRC's decision is reversed

and vacated. The cause is remanded to the UCRC for further proceedings consistent with

this opinion.

{¶ 35} Assignment of Error No. 3:

{¶ 36} BUTLER COUNTY COURT OF COMMON PLEAS ERRED IN ITS

REASONING THAT HONEYWELL'S FAILURE TO PROPERLY REPORT DISABILITY

PAYMENTS PAID TO ODJFS WAS NOT GERMANE TO THE PRESENT MATTER.

{¶ 37} In her final assignment of error, Harmon argues the common pleas court erred

in concluding that Honeywell's alleged failure to report her disability payments to ODJFS

was not relevant to her appeal. As discussed above, our review is limited to evaluating

whether the findings of the UCRC are against the manifest weight of the evidence.

Tzangas, 73 Ohio St.3d 694 at 696. Here, the UCRC disallowed Harmon's application on

the basis that she did not meet the employment requirements of R.C. 4141.01(R). Whether

Honeywell accurately reported Harmon's disability benefits has no impact on whether

Harmon's application is sufficient pursuant to the second prong of R.C. 4141.01(R)(1) or

whether she had sufficient qualifying weeks of employment. Consequently, because

Honeywell's reporting of Harmon's disability benefits is not dispositive of any issue on

appeal, it is not within the limits of our review. Accordingly, we reject Harmon's argument

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and overrule her third assignment of error.

{¶ 38} Judgment reversed and remanded.

HENDRICKSON and PIPER, JJ., concur.

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