[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

. Appell ant Hon. John W. Wise , J. Hon. Craig R. Baldwin , J.

- vs Case No. 2022 CA 00090 MATTHEW DAMSCHRODER, DIRECTOR , ODJFS, et al., Appell ees O P I N I O N

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 Appell ant For Appell ees 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

– 26 th Floor Columbus, Ohio 43215Licking 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 employme nt 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, 2 010. 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 st ays, 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 Compensatio n 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 h earing 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 unemploym ent 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 e ach 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, Ap pellant 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 o rder 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 evide nce. 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

- 5 167, 2012 WL 5439043, ¶ 15. Where the commission might reasonably decide either way, the courts have no authority to upset the Unemployment CompensationLicking 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). Thi s 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 f or 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 cour t 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 loo king 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} T he 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 part icular 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 w hether 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 consid erations 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 ju st 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 con flicts 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, t he 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