COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73093 DARLENE BRENIZER : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : ADMINISTRATOR, OBES, ET AL. : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-331053 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: GEORGE W. MACDONALD, ESQ. 848 Rockefeller Building Cleveland, Ohio 44112 For Defendant-Appellee LAUREL BLUM MAZOROW, ESQ. Administrator, OBES: ASSISTANT ATTORNEY GENERAL State Office Building 615 West Superior Avenue Cleveland, Ohio 44113-1899 For Ohio Bell Telephone Co.: THOMAS A. LINTON, ESQ. 45 Erieview Plaza, Rm. 1424 Cleveland, Ohio 44114 DYKE, P.J.: Appellant, Darlene Brenizer, appeals the trial court's affir- mance of the decision of the Unemployment Compensation Board of -2- Review denying appellant unemployment compensation. For the following reasons, we reverse and remand. Appellant was employed as a maintenance administrator by appellee, The Ohio Bell Telephone Company. Appellant felt that for years, she was harassed by her co-workers and management. On February 12, 1996, appellant became upset over an incident with management. Appellant left and did not return to work. After a number of days of absence, appellant informed Ohio Bell that she was seeing a psychiatrist, Dr. Ahmed, and was applying for disability leave. On February 22, 1996, Ohio Bell sent Dr. Ahmed a letter stating that Ohio Bell required a DSM-IV diagnosis. The letter further requested that Dr. Ahmed fill out an attached form. Dr. Ahmed filled out an Ohio Bell form, dated it February 29, 1996, and sent the form to Ohio Bell. The form stated that appellant suffered from depression. The form further stated that appellant could not return to work because she: feels stressed, totally humiliated, treated unfairly, unkindly affecting her self esteem in the department she is working. The employer's representative, Mr. Shapiro, stated that general depression is not a DSM-IV diagnosis. Ohio Bell had appellant examined by an independent psychiatrist, Dr. Russo. Dr. Russo's report stated that it was not possible to form a clear impression of the situation, because appellant refused to do certain testing. It was clear appellant was experiencing considerable upset because of the harassment or -3- perceived harassment at work, which had likely evolved into significant clinical depression. The report stated: Given her level of emotional upset, it is doubtful that she can perform well in a work setting at present. Dr. Russo stated that he was unable to predict when appellant could return to work, because her ability to return to work depended upon being able to work out these problems with management. The report stated: At present, she has yet to explore her options, and it will take continued counseling for her to be able to do so. It is recommended that her counselor be consulted, and that she be reevaluated when she is better ready to fully participate. Based on these reports, Ohio Bell notified appellant that her disability benefits had been denied. Ohio Bell sent appellant a letter stating that appellant must return to work by April 3, 1996, or Ohio Bell would assume appellant abandoned her job. Appellant received this letter on April 2, 1996. Appellant contacted her union representative and management and informed them that she did not wish to abandon her job, but she could not return to her job at the present time. Appellant never returned to work. Ohio Bell received another report from Dr. Ahmed, dated April 3, 1996, written on another Ohio Bell form. It stated that appellant was, unable to return to her own same job because of stress from some co-workers and management. The report stated that appellant had no cognitive impairments, behavioral problems, anxiety symptoms, somatoform symptoms or neurotic symptoms. Appellant had weight loss, insomnia, deflated self esteem, -4- inability to feel pleasure, loss of interests, social withdrawal, and was very depressed and tearful. Ohio Bell determined that even with this additional report, appellant did not qualify for disability. Ohio Bell terminated appellant's employment effective April 8, 1996. After appellant was resigned, appellant's union representative and her psychiatrist requested that Ohio Bell transfer appellant to a different department. Appellant had requested transfers prior to February 12, 1996, but the requests were not for medical reasons. After she was terminated, appellant did some part-time work for the Blue Moon Cafe. Appellant did not work enough weeks at the Blue Moon to remove the disqualifying separation from Ohio Bell in order to make her eligible for unemployment benefits. Appellant's sole assignment of error states: THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION IN AFFIRMING THE DECISION OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW WHICH DENIED APPELLANT UNEMPLOYMENT COM- PENSATION, AS SAID DECISION WAS UNLAWFUL, UNREASONABLE, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN THAT THE EVIDENCE CLEARLY AND UNIFORMLY ESTABLISHED THAT APPELLANT HAD A MEDICAL DISABILITY AT THE TIME OF EMPLOY- MENT TERMINATION, AND THAT SHE DID NOT ABANDON OR VOLUNTARILY LEAVE HER EMPLOYMENT. A decision of the unemployment compensation board of review may only be reversed if the decision is unlawful, unreasonable or against the manifest weight of the evidence. R.C. 4141.28(O), Irvine v. Unemployment Comp. Board of Review (1985), 19 Ohio St.3d 15, Tzangas, Plakas & Manos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694. The appellate court is not permitted to make factual findings or determine the credibility of witnesses, but the -5- appellate court may determine whether the board's decision is supported by the evidence in the record. Id. A claimant is not eligible for unemployment compensation benefits if the claimant quit without just cause, or if the claimant was discharged for just cause. R.C. 4141.29(D)(2)(a), Irvine, Tzangas, supra. Just cause means that which to an ordinarily intelligent person is a justifiable reason for doing or not doing a particular act. Irvine, Tzangas, supra. Just cause determinations must be consistent with the legislative purpose of the Unemployment Compensation Act, to provide financial assistance to individuals who are able and willing to work, but are unemployed through no fault of their own. Id. The board found that Ohio Bell discharged appellant for just cause because she failed to report for work. Failure to report to work when reasonably ordered to do so constitutes just cause for termination of employment. See Modic v. R.J. Frazier Co. (Nov. 30, 1989), Cuyahoga App. No. 56292, unreported, Durgan v. Ohio Bur. Emp. Serv. (1996), 110 Ohio App.3d 545. Health problems may constitute just cause for an employee to fail to report for work, however. See Irvine, supra, King v. State Farm Mutual Ins. Co. (1996), 112 Ohio App.3d 664. Absenteeism or inability to work due to a bona fide illness is not just cause to terminate an employee. See Pearson v. Ohio Bur. Emp. Serv. (1985), 21 Ohio App.3d 127, Durgan, supra at 549. In this case, the board found that the medical evidence did not establish that appellant had a bona fide illness which rendered -6- her unable to report for work. We must determine whether this finding was supported by some competent, credible evidence. See Angelkowski v. Buckeye Potato Chips Co. (1983) 11 Ohio App.3d 159, 161. Dr. Ahmed's report stated that appellant suffered from depression, but did not specify one of the DSM-IV categories of depressive disorders.1 The report states that appellant could not return to her same job because of stress from co-workers and management. Dr. Russo's report is inconclusive as to whether appellant could return to work, but indicated that her ability to return depended upon resolving the problems with management. Dr. Russo recommended that appellant be reevaluated later. The medical evidence clearly established that appellant could not return to the same job in the same department. There was no evidence to support the board's conclusion that appellant was capable of returning to her job. The evidence indicates appellant was capable of work in another department. If an employee voluntarily resigns because of health problems, it is without just cause if the employee fails to show that she inquired of the employer before she quit whether employment opportunities were available which conformed to her capabilities.Irvine v. Unemployment Comp. Board of Review (1985), 19 Ohio St.3d 15, King v. State Farm Mutual Ins. Co. (1996), 112 1DSM-IV classifies depressive disorders as major depressive disorder, single episode or recurrent; dysthymic disorder and depressive disorder not otherwise specified. See American Psychiatric Assoc., Diagnostic & Statistical Manual of Mental Disorders, (4th Ed. 1994), at 20. -7- Ohio App.3d 664 , Kingery v. Unemployment Comp. Bd. of Review (Sept. 30, 1986), Ross App. No. 1251, unreported. The employer must be given an opportunity to look into whether work within the employee's restrictions is available. Id. In the present case, appellant did not inquire before her discharge whether a job in a different department was available. However, this case is distinguishable from Irvine, King and Kingery because in those cases, the employees quit before the employer could try to find alternative work for the employee. In this case, the employer was in possession of Dr. Ahmed's report, stating that appellant could not work in the same department. The employer had every opportunity to look for work in another department, but chose instead to terminate appellant's employment. As stated above, an employee's inability to work due to illness does not provide just cause to terminate the employee. Under the facts of this case, appellant would not be ineligible for benefits because of her failure to request alternative employment. Appellees Ohio Bell and Administrator, Ohio Bureau of Employment Services argue that appellant failed to provide appro- priate documentation justifying her medical leave. Failure to submit any documents justifying medical leave is sufficient just cause for termination. Durgan v. Ohio Bur. Emp. Serv. (1996), 110 Ohio App.3d 545, 549, Flake v. Bd. of Review (Nov. 19, 1981), Cuyahoga App. No. 43395, unreported. Even if the employee provides a doctor's excuse, if the collective bargaining agreement states that the employer may request other medical information, and the -8- employee fails to sign a medical release provided by the employer, the employer has just cause to terminate employment. Spake v. Hedstrom Corp.(Aug. 1, 1988), Ashland App. No. CA-898, unreported. Here, the collective bargaining agreement required a DSM-IV diagnosis and Dr. Ahmed's reports do not provide such a diagnosis. There is no evidence in the record that Ohio Bell ever informed appellant or her doctor that depression was not a sufficient diagnosis. It was not appellant's fault that a DSM-IV diagnosis was not provided, and just cause to discharge occurs when an employee is at fault. Additionally, there is no evidence in the record indicating why disability benefits would be denied for one type of depression, but not another. Ohio Bell did not have just cause to terminate appellant on the basis of failure to document her illness. Appellees also argue that appellant was insubordinate for failing to cooperate in Dr. Russo's examination. No evidence indicates that this was the reason for the discharge. The board's finding that Ohio Bell terminated appellant's employment for just cause was against the manifest weight of the evidence, and was unreasonable or contrary to law. Appellant's assignment of error is sustained. The decision of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, J., CONCURS O'DONNELL, J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73093 DARLENE BRENIZER : : Plaintiff-Appellant : DISSENTING -10- : v. : OPINION : ADMINISTRATOR, OBES, ET AL. : : Defendants-Appellees : : DATE: AUGUST 20, 1998 TERRENCE O'DONNELL, DISSENTING: I respectfully dissent and would vote to affirm the judgment of the trial court in this case which, I believe, followed and applied the law as enunciated in Salzl v. Gibson Greeting Cards, Inc. (1980), 61 Ohio St.2d 35. The facts of this case are generally agreed upon: Darlene Brenizer had been employed by Ohio Bell as a maintenance administrator for 18 years. On February 12, 1996, after being questioned about a customer complaint letter, Brenizer left work and never returned. Brenizer thereafter notified Ohio Bell that she had consulted Dr. Razia Ahmed, a psychiatrist, and she applied for disability leave. In order to evaluate her disability claim, Ohio Bell requested medical reports from Dr. Ahmed, and also sent Brenizer to Dr. Michael Russo, a clinical psychologist, who then reported that due to Brenizer's unwillingness to cooperate, he could not form a clear impression of her situation. After evaluating the medical reports, Ohio Bell denied Brenizer disability leave and ordered her to report to work April 3, 1996. On April 8, 1996, Ohio Bell terminated her employment. -11- The Unemployment Compensation Board of Review, after conducting a hearing, examining evidence, and making extensive fact findings, issued a decision determining Brenizer ineligible for benefits because: * * * when claimant was discharged for failure to return to work, her discharge was with just cause in connection with work within the meaning of the Ohio Unemployment Compensation Law. When Brenizer appealed this decision to the common pleas court, the court affirmed, finding the decision not unlawful, unreasonable, or against the manifest weight of the evidence. On Brenizer's appeal to this court, our standard of review is limited, as the court stated in Irvine v. Unemployment Compensation Board of Review (1985), 19 Ohio St.3d 15, at 18: Like other courts serving in an appellate capacity, we sit on a court with limited power of review. Such courts are not permitted to make factual findings or to determine the credibility of witnesses. The duty or authority of the courts is to determine whether the decision of the board is supported by the evidence in the record. The fact that reasonable minds might reach different conclusions is not a basis for the reversal of the board's decision. (Citations omitted). Further, the concurring opinion in Irvine compared this court's limited power of judicial review in unemployment cases to that of zoning determinations and warned at 21: Just as a court of appeals * * * should not be a super zoning board of review, as we have often stated, * * * the court of appeals likewise should not be a super unemployment compensation board of review. Furthermore, as the court stated in Salzl, supra, at 39, R.C. 4141.29(D)(2)(a) was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was -12- temporarily without employment through no fault or agreement of his own. In this case, the Board of Review found that based upon the reports of both doctors Brenizer failed to establish she was unable to return to work due to medical reasons. Therefore, she failed to carry her burden to prove she was without employment through no fault of her own. In this case, my view is that the decision of the trial court is supported by evidence in the record. Accordingly, as we are constrained to our limited role as set forth by the Supreme Court .