Nancy Shepherd ,
Appellee,
vs.
Wearever-Proctor Silex,
Inc. and Administrator, Ohio Bureau
of Employment Services,
Appellant
No. 462
COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT,
PIKE COUNTY
599 N.E.2d 789, 75 Ohio App. 3d 414
August 1, 1991
COUNSEL
Mr. Lee I. Fisher, Ohio Attorney General, and Mr. David E. Lefton,
Assistant Attorney General, Cincinnati, Ohio, for Appellant.
Mowery, Brown & Blume, Mr. T. Kevin Blume, Wheelersburg, Ohio,
for Appellee.
JUDGES
For the Court: By: William H. Harsha, Judge. Stephenson, P.J., And
Abele, J., Concur in Judgment and Opinion.
AUTHOR: HARSHA
OPINION
{*415} DECISION AND JUDGMENT ENTRY
This is an appeal from a judgment entered by the Pike
County Court of Common Pleas reversing the decision of the Ohio
Unemployment Compensation Board of Review and determining that
Nancy shepherd, appellee, is eligible for unemployment compensation
benefits.
Appellant assigns the following error:
The lower court erred to the prejudice of the appellant
in reversing the decision of the unemployment compensation board of
review where such decision was not unreasonable, unlawful, or
against the manifest weight of the evidence.
In 1977, appellee began working for the Anchor Hocking
Corporation, which later became known as Wearever-Proctor Silex,
Inc. On April 15, 1988, appellee was placed on medical leave and
received disability income in the amount of $ 153 a week. These
payments were made by the Connecticut General Insurance Company
under a disability insurance policy with Wearever-Proctor Silex,
Inc. Appellee returned to work on February 2, 1989 and was
eventually laid off on May 25, 1989. On May 30, 1989, appellee
filed an application for unemployment compensation
benefits.
Appellee's application was denied by appellant, both
initially, and on reconsideration. Following a telephone hearing
before a referee of the Ohio Unemployment Compensation Board of
Review, the referee issued a decision affirming appellant's denial
of unemployment compensation benefits on the basis that appellee
had insufficient qualifying weeks in either her regular base period
or her alternate base period to be eligible for unemployment
compensation benefits. By decision issued November 8, 1989, the
Board of Review disallowed appellee's application to institute
further appeal. Appellee appealed the{*416} decision of
the Board of Review to the Pike County Court of Common Pleas
pursuant to R.C. 4141.28(O). On November 5, 1990, the court below
determined that the Board of Review erroneously excluded weeks
during which appellee received disability payments from its
calculation of qualifying weeks, and, thus, reversed and vacated
the decision of the Board of Review.
Appellant's sole assignment of error on appeal asserts
that the court below erred in reversing the decision of the
Unemployment Compensation Board of Review where such decision was
not unreasonable, unlawful, or against the manifest weight of the
evidence.
This court's role in the appellate process involving an
administrative appeal is far more limited than that of the trial
court. The Ohio Supreme Court in Lorain City Bd. of Edn. v. State
Emp. Relations Bd. (1988), 40 Ohio St. 3d 257 held as follows at
260-261:
In reviewing an order of an administrative agency, an
appellate court's role is more limited than that of a trial court
reviewing the same order. It is incumbent on the trial court to
examine the evidence. Such is not the charge of the appellate
court. The appellate court is to determine only if the trial court
has abused its discretion. An abuse of discretion "* * * implies
not merely error of judgment, but perversity of will, passion,
prejudice, partiality, or moral delinquency." State ex rel.
Commercial Lovelace Motor Freight, Inc., v. Lancaster (1986), 22
Ohio St. 3d 191, 193, 22 OBR 275, 277, 489 N.E.2d 288, 290. Absent
an abuse of discretion on the part of the trial court, a court of
appeals must affirm the trial court's judgment. See Rohde v. Farmer
(1970), 23 Ohio St.2d 82, 52 O.O 2d 376, 262 N.E.2d
685.
With this limited role of appellate review in mind, we
now proceed to analyze the merits of the instant
appeal.
The burden of proof is upon the claimant to establish
the right to unemployment compensation benefits under the
unemployment compensation law of Ohio. Irvine v. Unemployment Comp.
Bd. of Review (1985), 19 Ohio St. 3d 15, 17; Krawczyszyn v. Ohio
Bur. of Emp. Serv. (1989), 54 Ohio App. 3d 35, 36. Pursuant to R.C.
4141.01(R), a claimant is eligible for unemployment compensation
benefits when the individual is 1) unemployed; 2) has been employed
at least twenty qualifying weeks within the base period; and 3) has
earned remuneration at the statutory rate during those
weeks.
A "qualifying week" means any calendar week in an
individual's base period where the claimant earns or is paid
remuneration in employment. R.C. 4141.01(O)(1). Under appellee's
applicable base and alternate base periods, see, R.C. 4141.01(Q),
it is clear that appellee had at least fifteen of the twenty
qualifying weeks necessary to be eligible for unemployment
compensation. {*417} The dispositive issue in the case at
bar is whether the weeks in which appellee received disability
income payments, i.e., April 15, 1988 through February 2, 1989,
represented additional qualifying weeks in order to make appellee
eligible.
The referee of the Unemployment Compensation Board of
Review determined that the disability income received by appellee
did not meet the statutory definition of "remuneration" and,
consequently, the weeks in which appellee received disability
income did not constitute "qualifying weeks." R.C. 4141.01(H)(1)
provides as follows:
(H)(1) "Remuneration" means all compensation for
personal services, including commissions and bonuses and the cash
value of all compensation in any medium other than cash, except
that in the case of agricultural or domestic service,
"remuneration" includes only cash remuneration. * * * provided that
"remuneration" does not include:
(a) Payments as provided in divisions (b)(2) to (b)(16)
of 'section 3306 of the "Federal Unemployment Tax Act," 84 Stat.
713, 26 U.S.C.A. 3301, as amended;
Appellant initially claims that the trial court abused
its discretion in holding appellee's disability income payments
constituted "remuneration" pursuant to R.C. 4141.01(H)(1) because
disability income is "not payment for personal services". This is
the same position taken by the referee of the Board of Review, who,
in his September 21, 1989 decision upholding appellant's denial of
benefits stated that "disability income is not compensation for
personal services, it is a form of compensation for those unable to
perform personal services."
R.C. 4141.46 provides that the unemployment compensation
statutes shall be "liberally construed" in favor of the person to
be benefited. See, e.g., Johnson v. Ohio Bur. of Emp. Services
(1990), 48 Ohio St. 3d 67, 70. However, we are further aware that a
direction to liberally construe a statute in favor of certain
parties will not authorize a court to read into the statute
something which cannot reasonably be implied from the language of
the statute. See, Szekely v. Young (1963), 174 Ohio St. 213, second
paragraph of the syllabus, as cited in Johnson, supra, at
70.
The issue here is whether disability income, received by
an employee pursuant to an employer's disability insurance policy
for its employees constitutes "remuneration." R.C. 4141.01(H)(1)
broadly encompasses "all compensation for personal services" within
the statutory definition of "remuneration." (Emphasis added.) At
least one Ohio appellate court has held that vacation pay
constitutes remuneration although the employee performs
no{*418} services while on vacation. See, e.g., DeGenova
v. Bd. of Review (1985), 24 Ohio App. 3d 125; cf., also, Budd Co.
v. Mercer (1984), 14 Ohio App. 3d 269. In Bilankov v. Unemp. &
Disab. Ins. Div. Rev. Bd. (N.J. App. 1983), 463 A.2d 957, the
Appellate Division of the Superior Court of New Jersey held that a
monthly displacement allowance received by an unemployment
compensation claimant constituted earned "remuneration" within the
contemplation of New Jersey's unemployment compensation law, and
therefore, the claimant had accumulated sufficient earnings during
his base year to qualify for benefits. Like R.C. 4141.01(H)(1), New
Jersey's applicable statute defines "remuneration" as "all
compensation for personal services." The Bilankov court emphasized
the following at p. 960 in holding that the monthly displacement
allowance constituted remuneration:
Finally, and perhaps most importantly, the displacement
allowance is subject to federal and state taxes. At the hearing
before the Appeal Tribunal, plaintiff testified that federal and
state taxes as well as state unemployment insurance were deducted
from his monthly allowance and that the allowance was treated as
earned income on his income tax return.
* * *
Such statutory treatment by the federal government of
the allotment as earned income for taxation purposes virtually
compels the conclusion that it be treated similarly for
unemployment compensation purposes.
Similarly, appellee testified in her September 18, 1989
telephone hearing before the referee of the Unemployment
Compensation Board of Review that her disability income payments
were subject to taxation.
In Groce v. Review Bd. of Ind. Employ. Ser. Div. (Ind.
App. 1984), 463 N.E.2d 505, an Indiana appellate court held that an
employer's payments pursuant to a benefit plan involving temporary
absence from work due to sickness with the expectation that the
disabled employee receiving disability benefits would eventually
return to work should be considered as remuneration accumulated for
wage credit purposes. Analogously, appellee returned to work after
receiving approximately nine and one-half months of disability
income.
Accordingly, in liberally construing R.C. 4141.01(H)(1)
and in light of DeGenova, Bilankov, and Groce, supra, we are
persuaded that appellee's disability income constituted
"remuneration" since the disability benefits provided by
Wearever-Proctor Silex, Inc.'s insurance policy constituted part of
the "compensation for personal services rendered" by its employees,
including appellee. As noted by appellee, the fact that Ohio Adm.
Code 4141-9-04 defines the term "remuneration" to include "vacation
pay or allowance, separation pay, holiday{*419} pay, paid
absence allowance . . ." further supports the lower court's
conclusion.
Appellant additionally contends that appellee's
disability benefits were specifically excluded from the statutory
definition of "remuneration" pursuant to R.C. 4141.01 (H)(1)(a)
which excludes "payments as provided in divisions (b)(2) to (b)(16)
of section 3306 of the Federal Unemployment Tax Act, 84 Stat. 713,
26 U.S.C.A. 3301, as amended." Appellant claims that under the
foregoing act, payments to an employee or any of his dependents
under an employer-established plan or system for his employees
generally made on account of "sickness or accident disability" are
excluded pursuant to 26 U.S.C.A. 3301(b)(2)(A). However, as
appellee and the court below state, such exception is limited since
26 U.S.C.A. 3301 (b)(2)(A) explicitly notes that "in the case of
payments made to an employee or any of his dependents, this
subparagraph shall exclude from the term 'wages' only payments
which are received under a workmen's compensation law." (Emphasis
added.) In the instant case, appellee's disability payments were
received pursuant to Wearever-Proctor Silex, Inc.'s insurance
policy and not pursuant to any workers' compensation law.
Therefore, appellee's disability payments constituted
"remuneration" and the weeks she received such payments constituted
additional "qualifying weeks" to be added to her "base period" and
"alternate base period" in order to determine her eligibility for
unemployment compensation benefits.1
Accordingly, the trial court did not abuse its
discretion in determining that the Board of Review's decision
denying appellee's application to institute further appeal was
erroneous. In essence, the Board's definition of remuneration
presented a question of law which it incorrectly answered. The
trial court properly addressed a legal question by defining
remuneration to include private disability payments.2 For the
foregoing reasons, appellant's assignment{*420} of error
is overruled, and the judgment entered by the court below is
affirmed.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Pike County Court of Common Pleas to carry this
judgment into execution.
Any Stay previously granted by this Court is hereby
terminated as of the date of filing of this Entry.
A certified copy of this Entry shall constitute the
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
NOTICE TO COUNSEL
Pursuant to Local Rule No. 11, this document constitutes
a final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
JUDGMENT AFFIRMED.
DISPOSITION
JUDGMENT AFFIRMED.
OPINION FOOTNOTES
1 As noted by appellee, 26 U.S.C. 3306(b)(4)'s exclusion from the
federal term "wages" of any payment on account of "sickness or
accident disability" after the expiration of 6 calendar months
following the last month in which the employee worked for such
employer would not affect appellee's eligibility in the case at bar
since the 6 months of disability benefits that would be included in
appellee's "remuneration" would be sufficient to give her the
necessary "qualifying weeks" in her "base period." Additionally, we
note that appellant relies only on the 26 U.S.C.A. 3306 (b)(2)
exclusion in its argument on appeal.
2 The lower court determined that the R.C.
4141.01(H)(1)(a) - 26 U.S.C. 3306(b)(2) exception did not apply to
appellee's disability benefits for the following reasons: (1) they
were not made on account of sickness or accident disability; (2)
they were not made under a plan established by an employer which
makes provision for his employees generally; and (3) they were not
payments received under a workers' compensation law. We agree with
appellant that the Common Pleas Court's first two reasons were
erroneous given the evidence in the administrative file. However,
it is axiomatic that a reviewing court is not authorized to reverse
a correct judgment merely because erroneous reasons were assigned
as the basis thereof. Joyce v. General Motors Corp. (1990), 49 Ohio
56 3d 93, 96. Since we have determined that the lower court's last
reason for not applying the 26 U.S.C. 3306(b)(2) exception to the
instant case was proper, no reversal is mandated.