[Cite as State ex rel. Demellweek v. Indus. Comm., 2018-Ohio-714.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Robert Demellweek, : 

 Relator, : 

v. : No. 16AP-874 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Lowe's Home Centers, LLC, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on February 27, 2018 

 

On brief: Siferd & McCluskey, LPA, Lisa Bradley and 

Richard E. Siferd, for relator.

On brief: Michael DeWine, Attorney General, and Natalie 

J. Tackett, for respondent Industrial Commission of Ohio. 

On brief: Kastner Westman & Wilkins, LLC, Michael J. 

Spisak and Catherine R. Gambill, for respondent Lowe's 

Home Centers, LLC. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

TYACK, J. 

{¶ 1} Robert Demellweek filed this action in mandamus seeking a writ to compel 

the Industrial Commission of Ohio ("commission") to overturn its finding that 

Demellweek was not entitled to temporary total disability ("TTD") compensation because 

of a voluntary abandonment of his employment with Lowe's Home Centers, LLC 

("Lowe's"). 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated 
No. 16AP-874 2 

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's 

decision, appended hereto, which contains detailed findings of fact and conclusions of 

law. The magistrate's decision includes a recommendation that we grant a writ 

compelling the commission to vacate its order denying TTD compensation for 

Demellweek based on voluntary abandonment of employment and to conduct additional 

proceedings to determine if he otherwise is entitled to TTD compensation. 

{¶ 3} Counsel for Lowe's has filed objections to the magistrate's decision. Counsel 

for the commission has also filed objections to the magistrate's decision. Counsel for 

Demellweek has filed a memorandum in response. The case is now before the court for a 

full, independent review. 

{¶ 4} Demellweek was injured on October 31, 2015 while he was working for 

Lowe's, who is a self-insured employer. His workers' compensation claim has been 

recognized for "right shoulder sprain; right forearm injury due to overuse; right shoulder 

superior labrum anterior posterior (SLAP) lesion." 

{¶ 5} When hired, employees of Lowe's are provided a document of over 50 pages 

which is meant to guide their job activities. Apparently Demellweek received the 

document at some point in time. He signed an acknowledgement of receiving the 

document. 

{¶ 6} Over five months after he was injured, Demellweek was fired for operating 

an order picker while not wearing a harness and tether. Over one month later yet, 

Demellweek applied for TTD compensation. 

{¶ 7} Following a hearing before a district hearing officer ("DHO") of the 

commission, the TTD compensation was granted. The DHO rejected the argument on 

behalf of Lowe's that Demellweek had voluntarily abandoned his employment with 

Lowe's. 

{¶ 8} On June 1, 2016, Demellweek had surgery on his injured right shoulder. 

{¶ 9} Counsel for Lowe's appealed the order of the DHO granting TTD 

compensation. A staff hearing officer ("SHO") reviewed the situation and reached a 

different conclusion. Summaries of the orders of the DHO and SHO are contained in our 

magistrate's decision. Parts of the document from Lowe's, now frequently referred to as 

an employee handbook, are also in the magistrate's decision, specifically HR policy 315. 
No. 16AP-874 3 

{¶ 10} The understanding of a Class "A" violation is critical to this case. As noted 

in our magistrate's decision, Class "A" violations include the most serious misconduct and 

repeated job performance problems. These serious violations normally will result in 

immediate discharge. The magistrate concluded the handbook gave Lowe's discretion to 

treat the violation as Class "A" or Class "B." They treated it as Class "A" without 

explanation, evading review. 

{¶ 11} Demellweek was accused of using a picker only a matter of inches off the 

ground. This is no indication he endangered himself or others by not wearing a harness 

or tether under the circumstances. There is no indication that he did this on a regular or 

frequent basis. There are no claims he had been disciplined for this or any related 

conduct before. 

{¶ 12} Nothing in the record before us indicates that Demellweek was on notice 

that operating a picker a few inches off the ground was conduct which would warrant 

immediate firing. This case is not like the early abandonment of employment cases which 

involved situations in which employees comes to work drunk or stoned and therefore 

were on notice they could or would be immediately fired. This is not a case where 

Demellweek was endangering himself or others. This is a case where a worker violated 

one provision in a handbook of over 50 pages. 

{¶ 13} Voluntary abandonment of employment still is a doctrine that bars receipt 

of TTD compensation in a situation where an employee has to be on notice that his or her 

conduct can be expected to get him or her fired and then the employee chooses to engage 

in the conduct anyway. Voluntary abandonment of employment is not meant to be a 

vehicle which allows a self-insured employer to rid itself of injured workers for a minor 

violation of a work rule, written or not. 

{¶ 14} We overrule the objections to the magistrate's decision. We adopt the 

findings of fact in the magistrate's decision except the inaccurate indication that the DHO 

failed to grant TTD compensation. We also adopt the conclusions of law in the 

magistrate's decision as amplified herein. We grant a writ of mandamus ordering the 

commission to vacate the October 4, 2016 order of its SHO and to issue a new order that 

determines the merits of Demellweek's June 21, 2016 motion for TTD compensation 

absent a finding that Demellweek voluntarily abandoned his employment. 
No. 16AP-874 4 

Objections overruled; writ of mandamus granted.

 BROWN, P.J., concurs in judgment only 

 DORRIAN, J., concurs in judgment only. 

DORRIAN, J., concurring in judgment only. 

{¶ 15} I concur in judgment only. On the facts of the case, given the evidence 

regarding the practice, customs and usage of the picker device, as well as the common 

sense and good judgment standard of conduct incorporated into the HR policies, I would 

find State ex rel. Louisiana-Pacific, Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), 

criteria was not met even when considering the HR Policy 315 categories. 

 

 
No. 16AP-874 5 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Robert Demellweek, : 

 

 Relator, : 

 

v. : No. 16AP-874 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Lowe's Home Centers, LLC, : 

 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on August 7, 2017

 

Siferd & McCluskey, LPA, Richard E. Siferd, and Lisa R. 

Bradley, for relator. 

Michael DeWine, Attorney General, and Natalie J. Tackett, 

for respondent Industrial Commission of Ohio. 

Kastner Westman & Wilkins, LLC, and R. Clint Zollinger, for 

respondent Lowe's Home Centers, LLC. 

 

IN MANDAMUS 

{¶ 16} In this original action, relator, Robert Demellweek, requests a writ of 

mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate 

the October 4, 2016 order of its staff hearing officer ("SHO") that denies relator's June 21, 

2016 motion for temporary total disability ("TTD") compensation starting June 1, 2016 on 

grounds that relator voluntarily abandoned his employment with respondent, Lowe's 

Home Centers, LLC, and to enter an order awarding TTD compensation. 
No. 16AP-874 6 

Findings of Fact:

{¶ 17} 1. On October 31, 2015, relator injured his right shoulder and forearm while 

employed with respondent, Lowe's Home Centers, LLC ("Lowe's"), a self-insured 

employer under Ohio's workers' compensation laws. 

{¶ 18} 2. The industrial claim (No. 15-854338) is allowed for "right shoulder sprain; 

right forearm injury due to overuse; right shoulder superior labrum anterior posterior 

(SLAP) lesion." 

{¶ 19} 3. Earlier, on February 10, 2015, relator signed a three-page document 

prepared by Lowe's captioned "Key Responsibilities Guide." At the top of the first page, the 

document indicates that it is regarding "Job Title: Delivery Driver." 

{¶ 20} Thereunder, under the caption "Key Responsibilities," 28 unenumerated items 

are listed. For example, the first item reads: "Secures truck contents before operating 

vehicle." 

{¶ 21} Thereunder, under the caption "Physical Requirements," 13 unenumerated 

items are listed. For example, the first item reads: "Safety Harness: The ability to wear the 

safety harness to perform job functions." 

{¶ 22} At page three of the document, the following pre-printed "Acknowledgment" is 

printed above a signature line for the "Applicant/Associate." 

I acknowledge that I have read the Job Description and Key 

Responsibilities Guide and I understand what would be 

expected of me. The Company reserves the right to change 

or reassign job duties or to combine positions at any time. I 

also understand that I am an at-will employee, and the Job 

Description and Key Responsibilities Guide do not 

constitute a contract of employment. 

(Emphasis sic.) Apparently, relator signed the above acknowledgment on February 10, 

2015. 

{¶ 23} 4. The stipulation of evidence filed by the parties on February 17, 2017 

presents a multipage Lowe's document beginning at page 12of the stipulation and ending 

at page 40 of the stipulation. The pagination of this document is approximately 58 pages, 

including a 2-page appendix. The district hearing officer ("DHO") refers to this document 

as the "Employer's Handbook" or the "Employee Manual." The SHO refers to this 
No. 16AP-874 7 

document as the "guide." In its brief, Lowe's refers to this document as the "Guide." 

(Lowe's Brief at 13.) In its brief, the commission refers to the document as "Lowe's 

employee handbook." (Commission Brief at 15.) In its brief, the commission also refers 

to the document as simply the "handbook." Id. In his brief, relator refers to the document 

as the "handbook." (Relator's Brief at ix.) 

{¶ 24} 5. On the first page or cover page of the approximate 58 page document, 

Lowe's states: "New employees are to keep this guide in their apron or vest pocket during 

their first 30 days of employment." 

{¶ 25} 6. Cleary, on careful examination of the three-page document prepared by 

Lowe's and captioned "Key Responsibilities Guide" and relator's acknowledgment on the 

third page, there is nothing to suggest that relator acknowledged receipt of the so-called 

handbook when he signed the acknowledgment on February 10, 2015. 

{¶ 26} 7. However, in his brief, relator, through counsel, refers to "a 58 page 

handbook given to Demellweek when he was hired." (Relator's Brief at ix.) 

{¶ 27} 8. In its brief, the commission, through counsel, states: 

He signed his name acknowledging receipt of the handbook 

and policies. His signature also acknowledged that he had 

read the handbook and that he was willing to follow those 

policies as a condition of his employment by Lowe's. * * * 

Demellweek had been provided Lowe's work rules and knew 

the consequences of violation of Lowe's safety rules. * * * As 

of February 10, 2015, Demellweek had possession of Lowe's 

employee handbook. 

(Commission's Brief at 15.) 

{¶ 28} 9. The magistrate disagrees with the commission's assertion that relator 

acknowledged receipt of the handbook and that he had read the handbook when he signed 

the acknowledgment on page three of the Lowe's document captioned "Key 

Responsibilities Guide." 

{¶ 29} 10. Notwithstanding the magistrate's disagreement with the commission's 

assertion regarding the scope of relator's February 10, 2015 acknowledgment, it appears 

that relator concedes that he received the handbook when he was hired. 

{¶ 30} 11. On April 18, 2016, Lowe's management completed a Lowe's form 

captioned "Employee Corrective Action Report." On the form, Lowe's indicated that 
No. 16AP-874 8 

relator's employment was terminated. On the form, Lowe's responded to several preprinted queries: 

Describe the conduct/performance (who, what, when, why, 

where and how): On the morning of April 11, 2015 [sic], this 

associated [sic] was observed by several associates and he 

also admitted to operating the order picker without a harness 

and tether on. 

Expectations (what is expected in the future? Include followup dates): 

This associates [sic] is being terminated for a class A safety 

violation. 

{¶ 31} 12. Relator refused to sign the completed form. 

{¶ 32} 13. The parties stipulate that the "Employee Corrective Action Report" 

incorrectly states the date of the alleged violation. The date of the alleged violation is 

April 11, 2016. See supplemental stipulation of evidence filed on July 21, 2017. 

{¶ 33} 14. On June 1, 2016, treating physician Robert J. Nowinski, D.O., 

completed a form prepared by the Ohio Bureau of Workers' Compensation ("bureau") 

captioned "Physician's Report of Work Ability." The bureau designates the form as a 

"Medco-14." On the Medco-14, Dr. Nowinski certified that, effective June 1, 2016, relator 

cannot return to his former position of employment. On the form, Dr. Nowinski 

estimated that relator should be able to return to the job held on the date of injury on 

September 5, 2016. 

{¶ 34} 15. On June 14, 2016, Dr. Nowinski completed a bureau form captioned 

"Request for Temporary Total Compensation." The bureau designates the form as a C-84. 

{¶ 35} 16. On June 21, 2016, on form C-86, relator moved for the payment of TTD 

compensation starting June 1, 2016. In support, relator submitted the June 1, 2016 

Medco-14 from Dr. Nowinski and the June 14, 2016 C-84 from Dr. Nowinski. 

{¶ 36} 17. Following an August 18, 2016 hearing, a DHO issued an order denying 

relator's request for TTD compensation. Citing State ex rel. Louisiana-Pacific Corp. v. 

Indus. Comm., 72 Ohio St.3d 401 (1995), the DHO held that relator had not voluntarily 

abandoned his employment with Lowe's when he was terminated for violation of a safety 

rule. The DHO's order explains: 
No. 16AP-874 9 

It is the order of the District Hearing Officer that the C-86 

Motion filed by Injured Worker on 06/21/2016 is granted as 

provided by this order. Pay temporary total 06/01/2016 

through 09/05/2016 less any days worked. 

The parties stipulate to the following facts in this case. 

Injured Worker sustained an injury to the right shoulder on 

or about 10/31/2015. On 06/01/2016 the Injured Worker 

underwent a related surgery to the right shoulder which was 

approved by the Self-Insured Employer. 

The Employer offers a Louisiana-Pacific v. Industrial 

Commission defense to the payment of benefits. This defense 

is based upon post injury conduct occurring on 04/11/2015 

[sic]. 

On 04/11/2015 [sic], the Injured Worker was using a picker 

and per his own admission was not using a safety belt. 

A review of the Employer's handbook, specifically pages 22 

and 25 indicate that a Class A Safety Violation occurs when 

an Injured Worker uses a picker device without a safety 

harness. The written Employee Manual indicates that this 

[is] a dischargeable offense and for this reason the Employer 

seeks Louisiana-Pacific protection against paying further 

temporary benefits. 

The Injured Worker offers extensive testimony concerning 

the practice and application of using a picker as well as a 

specific events of 04/11/2015 [sic]. The Injured Worker 

testifies that the picker he was using on 04/11/2015 [sic] was 

at a very low height. Moreover, it is indicated that the safety 

belts offered no additional protection from injury based 

upon a fall of limited height which was the case on 

04/11/2015 [sic]. 

Moreover, the Injured Worker testified that this rule was 

widely ignored, particular[ly] when the safety belts in 

question offered no additional protection from injury. The 

Injured Worker testified that he had seen supervisory 

personnel using the picker without a safety belt. 

The Louisiana-Pacific case requires that an Injured Worker 

violate a written work rule of clearly prohibiting conduct. It 

must also be clear that the conduct could result in a 

termination from employment. This Hearing Officer 

concludes that the unrebutted testimony of the Injured 
No. 16AP-874 10 

Worker strongly suggest[s] that the consequence of this 

prohibited conduct was obscured by the practice, customs 

and usage of the picker device as described by the Injured 

Worker. 

It is also noted that the Employee Handbook outlines a 

standard of conduct which makes reference to common 

sense and good judgment. If the use of the safety belt in 

question offered no additional protection the Hearing Officer 

feels that the Injured Worker could have reasonably 

concluded that this was not a prohibited conduct in the 

consequence of a discharge was obscured by the usage and 

practice. [sic] 

The Hearing Officer relies upon the Injured Worker's 

testimony as indicated above. The Hearing Officer also relies 

upon the MEDCO-14 Physician's Report of Work Ability filed 

06/01/2016 authored by Robert J. Nowinski. The Hearing 

Officer also relies on the C-84 dated 06/14/2016. 

{¶ 37} 17. Lowe's administratively appealed the DHO's order of August 18, 2016. 

{¶ 38} 18. Following an October 4, 2016 hearing, an SHO issued an order that 

vacates the DHO order of August 18, 2016 and determines the request for TTD 

compensation. The DHO's order explains: 

This Hearing Officer denies payment of temporary total 

disability compensation from 06/01/2016 to present, 

10/04/2016. 

Consistent with Louisiana-Pacific this Hearing Officer finds 

payment of temporary total disability compensation is 

precluded as a result of the Injured Worker's voluntary 

abandonment of his employment. Under Louisiana-Pacific, 

an Injured Worker's termination from his employment is 

voluntary when it is generated by an Injured Worker's 

violation of a written work rule that (1) clearly defines the 

prohibited conduct (2) had been previously identified by the 

Employer as a dischargeable offense and (3) was known or 

should have been known to the employee. This Hearing 

Officer finds on 04/18/2016, the Injured Worker was 

terminated for a class A safety violation. The Injured Worker 

had been observed by several associates operating an order 

picker without the use of a harness and tether. The Injured 

Worker admitted to his Employer as well as admitted at 

hearing that he operated the picker without a harness and 

tether. However, he testified that the picker was only a few 
No. 16AP-874 11 

inches off of the ground and the safety harness would not 

have protected him from injury. He also testified that other 

personnel have operated this piece of equipment without a 

safety harness and it was not an unusual practice. At hearing, 

the Human Resources Manager for Lowe's testified to the 

contrary. 

This Hearing Officer finds the Injured Worker acknowledged 

by signature, on 02/10/2015, that he read the job description 

and key responsibilities guide and understood what was 

expected of him. This Hearing Officer finds this guide, under 

the section regarding standards of conduct, made reference 

to class (A) violations which were defined as actions which 

would normally subject an employee to immediate 

termination on the first occurrence. The list of class A 

violations included violations of safety rules or hazardous 

materials procedures. This Hearing Officer finds the safety 

rules listed under the loss prevention and safety section of 

this guide state "an order picker and lift truck cage requires 

you to wear a safety belt or harness and fall protection 

tether." "Make sure you're attached before using the 

equipment." This Hearing Officer finds there is no dispute 

that the Injured Worker violated this safety rule and this 

Hearing Officer finds it was the prerogative of the Employer 

to terminate the Injured Worker based upon his violation. In 

light of the aforementioned findings, this Hearing Officer 

finds payment of temporary total disability compensation is 

precluded based upon the Injured Worker's voluntary 

abandonment of his employment under Louisiana-Pacific.

{¶ 39} 19. On October 27, 2016, another SHO mailed an order refusing relator's 

appeal of the October 4, 2016 order of the SHO. 

{¶ 40} 20. On December 3, 2016, the three-member commission mailed an order 

denying relator's November 15, 2016 request for reconsideration. 

{¶ 41} 21. As earlier noted, the stipulation of evidence filed by the parties on 

February 17, 2017 presents a multipage Lowe's document beginning at page 12and ending 

at page 40 of the stipulation. The actual pagination of this document runs approximately 

58 pages as each page of the stipulation presents 2 pages from the document. The 

magistrate shall refer to this document as the Lowe's handbook. 
No. 16AP-874 12 

{¶ 42} The Lowe's handbook presents 32 unenumerated sections containing a 

caption. Relevant here is a section captioned "Standards of Conduct" and a subsequent 

section captioned "Loss Prevention and Safety." 

{¶ 43} Under the caption "Standards of Conduct," the handbook provides: 

In your day-to-day conduct at Lowe's, you will be expected to 

use common sense and good judgment. We believe most 

employees know what behavior is acceptable in the work 

environment and what is not. Certain kinds of actions or 

conduct are obviously unacceptable, but no list of standards 

can possibly cover every circumstance. 

HR Policy 315 identifies three categories of unacceptable 

performance or conduct. Examples of violations in the 

respective categories are listed in the policy quoted below; 

however, the examples show the relative severity of 

violations and are not intended to and do not identify all 

possible violations. 

Class "A" includes the most serious misconduct and 

repeated job performance problems. These serious violations 

normally will result in immediate discharge. 

Class "B" includes serious acts, which indicate a disregard 

of, established rules and/or standards of conduct but are not 

so serious as to compel immediate termination. Class "B" 

violations will normally result in a written warning for a first 

offense, final warning for a second offense and termination 

for a subsequent offense. Depending upon the severity of the 

infraction or past work history, termination may be 

appropriate for the first offense. An employee may commit 

multiple Class "B" violations that are not serious when 

considered separately, but when grouped together indicate a 

pattern of unacceptable behavior. In such cases, 

management should consider multiple Class "B" violations 

committed in a short period of time as grounds for more 

serious corrective action, up to and including termination. 

Class "C" generally results in an initial warning. However, 

an employee may commit multiple Class "C" violations that, 

when considered together, are grounds for more serious 

corrective action up to and including termination. 

The following categorization is suggested for some of the 

more frequent types of violations. If, because of other 

circumstances, the manager feels that the suggested category 
No. 16AP-874 13 

and accompanying discipline are not appropriate, the 

manager should normally discuss it with his/her immediate 

supervisor and the appropriate Human Resources Manager 

before discipline is administered to an employee. 

Class A, B and C- Examples

A. Class "A" Violations

The following violations are examples of actions, which will 

normally subject an employee to immediate termination on 

the first occurrence: This list is not intended to identify all 

possible violations. 

* * * 

[Twenty-three] Violations of safety rules or hazardous 

materials procedures. 

* * * 

B. Class "B" Violations

The following violations are examples of actions, which 

normally will subject an employee to a written warning for a 

first offense, a final warning for a second offense and 

termination for a subsequent offense. Depending on the 

severity of the violation, a final warning may be given rather 

than a written warning. (While termination is normally not 

appropriate for a first offense, it is possible, particularly if 

the employee's length of service is short or their overall work 

record is considered less than acceptable.) 

Normally, offenses occurring outside the immediately 

preceding 12-month period will not be counted for this 

purpose. 

* * * 

[Eight] Working in an unsafe manner. 

(Emphasis sic.) 

{¶ 44} Under the caption "Loss Prevention and Safety[;] Safety First," the 

handbook provides: 

Safety procedures are usually common sense, but common 

sense sometime causes us to touch wet paint. Procedures are 

in place to help provide a safe and health[y] work place for 
No. 16AP-874 14 

you, our customers and fellow employees. Disregarding 

safety rules is serious business. When a rule is broken, a 

Lowe's employee or customer may be put in danger. For that 

reason, violations of safety rules could be grounds for 

immediate termination. If you do not know the safety 

requirements of your job─ask! 

* * * 

Safety Rules

Here are some of the common safety rules to be followed at 

Lowe's: 

* * * 

An order picker and lift truck cage requires you to wear a 

safety belt or harness and fall protection tether. Make sure 

you're "attached" before using the equipment. 

* * * 

When working "inside" or "on" shelving units over four feet 

from the ground, you must have a safety belt or harness and 

tether attached to the lift or shelving unit. 

(Emphasis sic.) 

{¶ 45} 22. On December 22, 2016, relator, Robert Demellweek, filed this 

mandamus action. 

Conclusions of Law: 

{¶ 46} Several issues are presented: (1) did the commission abuse its discretion in 

failing to determine whether or not the "order picker" was elevated when it was used by 

relator on April 11, 2016, and (2) did the commission abuse its discretion by accepting 

Lowe's determination that the safety violation was a class A violation rather than a class B 

violation? 

{¶ 47} The magistrate finds: (1) the commission did not abuse its discretion in 

failing to determine whether or not the "order picker" was elevated when it was used by 

relator on April 11, 2016, and (2) the commission abused its discretion by accepting 

Lowe's determination that the safety rule violation was a class A violation. 
No. 16AP-874 15 

{¶ 48} Accordingly, it is the magistrate's decision that this court grant relator's 

request for a writ of mandamus, as more fully explained below. 

Basic Law: Work Rule Violation Resulting in Termination of Employment 

{¶ 49} Louisiana-Pacific is the seminal case regarding work rule violations 

resulting in termination of employment. 

{¶ 50} In Louisiana-Pacific, the court held that a claimant can voluntarily abandon 

his employment and, thus lose eligibility for TTD compensation when he is terminated by 

his employer for violation of a written work rule. The court set forth a three-part test 

which it described: 

[W]e find it difficult to characterize as "involuntary" a 

termination generated by the claimant's violation of a 

written work rule or policy that (1) clearly defined the 

prohibited conduct, (2) had been previously identified by the 

employer as a dischargeable offense, and (3) was known or 

should have been known to the employee. Defining such an 

employment separation as voluntary comports with [State ex 

rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, and 

State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 

Ohio St.3d 118, 121] -- i.e., that an employee must be 

presumed to intend the consequences of his or her voluntary 

acts. 

Id. at 403. 

{¶ 51} In State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 561 (2001), 

the court had occasion to clarify the three-part test of Louisiana-Pacific: 

Now at issue is Louisiana-Pacific's reference to a written rule 

or policy. Claimant considers a written policy to be an 

absolute prerequisite to precluding TTC. The commission 

disagrees, characterizing Louisiana-Pacific's language as 

merely illustrative of a TTC-preclusive firing. We favor 

claimant's position. 

The commission believes that there are common-sense 

infractions that need not be reduced to writing in order to 

foreclose TTC if violation triggers termination. This 

argument, however, contemplates only some of the 

considerations. Written rules do more than just define 

prohibited conduct. They set forth a standard of enforcement 

as well. Verbal rules can be selectively enforced. Written 

policies help prevent arbitrary sanctions and are particularly 
No. 16AP-874 16 

important when dealing with employment terminations that 

may block eligibility for certain benefits. 

Id. at 561. 

First Issue: Elevation of the Order Picker

{¶ 52} As indicated in the SHO's order of October 4, 2016, relator admitted to his 

employer and at the hearing that he operated the picker without a harness and tether. 

However, relator testified that "the picker was only a few inches off the ground and the 

safety harness would not have protected him from injury." It can be further noted that the 

DHO's order of August 18, 2016 states that relator testified that the picker he used on 

April 11, 2016 "was at a very low height." It can be further noted that Lowe's submitted no 

evidence to contradict relator's testimony regarding elevation of the picker. 

{¶ 53} As relator correctly points out, the SHO's order of October 4, 2016 fails to 

determine whether or not the order picker was elevated (or the extent of the elevation) 

when relator used the picker on April 11, 2016. Lowe's and the commission argue that the 

elevation of the picker on April 11, 2016 is irrelevant and, thus the SHO was not required 

to make a finding regarding the elevation. The magistrate agrees with Lowe's and the 

commission on this point. 

{¶ 54} Again, the safety rule at issue states: 

An order picker and lift truck cage requires you to wear a 

safety belt or harness and fall protection tether. Make sure 

you're "attached" before using the equipment. 

 Again, a subsequent safety rule states: 

When working "inside" or "on" shelving units over four feet 

from the ground, you must have a safety belt or harness and 

tether attached to the lift or shelving unit. 

{¶ 55} Here, relator seems to suggest that because the latter safety rule, by its 

terms, pertains to shelving units over four feet from the ground, the former rule must 

provide a similar height requirement. Relator is incorrect. 

{¶ 56} The commission has no authority to rewrite the order picker safety rule so 

that some measure of elevation was required. A plain reading of the safety rule indicates 

that use of the order picker without a harness and tether is prohibited at any elevation. 
No. 16AP-874 17 

{¶ 57} It is the employer's prerogative to write its own safety rules and to require 

its employees to follow them. It is not the duty of this court to second-guess the wisdom 

or effectiveness of the safety rule as written. 

{¶ 58} Thus, the magistrate concludes that the commission did not abuse its 

discretion in failing to determine whether or not the order picker was elevated when it 

was being used by relator on April 11, 2016. 

Second Issue: Class A versus Class B Violations

{¶ 59} Under "Standards of Conduct," the handbook lists 24 violations that will 

"normally" subject an employee to immediate termination on the first occurrence. These 

are examples of class A violations. The 23rd violation on the list is "violations of safety 

rules or hazardous materials procedures." 

{¶ 60} Also under "Standards of Conduct," the handbook lists 11 violations that will 

"normally" subject an employee to a written warning for a first offense. The eighth 

violation on the list is "working in an unsafe manner." These are examples of class B 

violations. 

{¶ 61} Under "Loss Prevention and Safety," the handbook sets forth the safety rule 

at issue, i.e., the rule regarding use of the order picker. Also, prefacing the safety rule 

regarding the order picker, the following warning is given under "Loss Prevention and 

Safety:" 

Disregarding safety rules is serious business. When a rule is 

broken, a Lowe's employee or customer may be put in 

danger. For that reason, violations of safety rules could be 

grounds for immediate termination. 

{¶ 62} Given the above, the magistrate concludes that the handbook, by its own 

terms, gave Lowe's the discretion to treat the order picker violation as either a class A or 

class B violation. Lowe's management decided to treat the order picker violation as a class 

A violation that subjected relator to immediate termination. 

{¶ 63} Significantly, Lowe's provided the commission with no explanation or 

supporting documentation to justify treating the order picker violation as a class A 

violation rather than a class B violation. 
No. 16AP-874 18 

{¶ 64} As relator points out, Lowe's "Employee Corrective Action Report," dated 

April 18, 2016, fails to indicate that relator had any prior violations of the safety rules. 

And while the order picker safety rule does not require elevation for the rule to apply, 

clearly, common sense would dictate that a highly elevated order picker would present 

more danger than an unelevated one. 

{¶ 65} Accepting Lowe's decision to treat the alleged April 11, 2016 violation as a 

class A violation rather than a class B violation without an explanation from Lowe's and 

supporting evidence, potentially sanctions an arbitrary decision. Also, the lack of an 

explanation renders this court unable to review Lowe's decision to treat the alleged 

violation as a class A violation. 

{¶ 67} Because there was no evidence in the record before the commission on 

which the SHO could determine that treatment of the April 11, 2016 alleged violation as a 

class A violation was justified, it is the magistrate's decision that this court issue a writ of 

mandamus ordering the commission to vacate the October 4, 2016 order of its SHO and 

to issue a new order that determines the merits of relator's June 21, 2016 motion for TTD 

compensation absent a finding that relator voluntarily abandoned his employment. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).