[Cite as State ex rel. Yuravak v. Indus. Comm., 2016-Ohio-8343.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State of Ohio ex rel.                            :
Deborah Yuravak,
                                                     :
                 Relator,
                                                     :
v.                                                                        No. 16AP-45
                                                     :
The Industrial Commission of Ohio                                  (REGULAR CALENDAR)
and Fairview Hospital Cleveland Clinic,              :

                 Respondents.                        :




                                           D E C I S I O N

                                   Rendered on December 22, 2016


                 On brief: Shapiro, Marnecheck & Palnik, Matthew A.
                 Palnik, and Elizabeth M. Laporte, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 Natalie J. Tackett, for respondent Industrial Commission of
                 Ohio.

                 On brief: Gottfried Sommers LLC, R. Mark Gottfried, and
                 Sandra B. Sommers, for respondent Fairview Hospital
                 Cleveland Clinic.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.

        {¶ 1} Relator, Deborah Yuravak, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its orders1 which denied her application for temporary total


1On April 11, 2014, a district hearing officer ("DHO") held a hearing on temporary total disability ('TTD")
compensation. The decision to deny the compensation was typed April 14 and mailed April 16, 2014. On
June 2, 2014, a staff hearing officer ("SHO") held a hearing on the appeal of the April 16, 2014 order. The
decision to vacate the April 16, 2014 DHO order, but still deny TTD compensation, was typed June 2 and
No. 16AP-45                                                                                           2


disability ("TTD") compensation, denied continuing jurisdiction, and refused appeal.
Relator requests this court order the commission to find that she is entitled to TTD
compensation.
       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny relator's request for a writ of mandamus, finding that the commission did
not abuse its discretion when it denied relator's application for TTD compensation.
       {¶ 3} Relator has filed the following three objections to the magistrate's decision:
               [I.] The Magistrate erred in holding that it is automatically
               workforce abandonment when one is not working at the
               exact time they first request temporary total disability when
               all evidence supports that the reason for not working is
               injury-related.

               [II.] The Magistrate erred by ignoring intent and holding
               that when there is not enough evidence to support granting
               temporary total disability it automatically equates to
               workforce abandonment when all evidence in the record
               supports the conclusion that Relator's resignation was injury
               related.

               [III.] The Magistrate failed to address issue pled in Relator's
               Complaint and briefed in her Merit Brief of the Industrial
               Commission's refusal to exercise continuing jurisdiction on
               the basis of mistake of fact, mistake of law and new and
               changed circumstances.

       {¶ 4} We begin by addressing the third objection. Relator contends the magistrate
did not address the commission's refusal to exercise continuing jurisdiction. In her merit
brief in support of mandamus, relator specifically argued that the commission abused its
discretion on August 13, 2015 when the staff hearing officer ("SHO") refused to exercise
continuing jurisdiction on the mistake of law, mistake of fact, and new and changed

mailed June 5, 2014. On June 20, 2014, another SHO reviewed an appeal of the June 5, 2014 SHO order.
The decision to refuse appeal was typed June 20 and mailed June 25, 2014. On June 15, 2015, a DHO held a
hearing on the request for TTD compensation and continuing jurisdiction. The decision to deny the
compensation and continuing jurisdiction was typed June 16 and mailed June 18, 2015. On August 5, 2015,
an SHO held a hearing on the appeal of the DHO's June 18, 2015 order. The decision to modify the DHO's
order and still deny compensation and continuing jurisdiction was typed August 6 and mailed August 13,
2015. On August 28, 2015, another SHO reviewed an appeal of the SHO's August 13, 2015 order. The
decision to refuse appeal was typed August 28 and mailed September 1, 2015. We refer to these orders
pursuant to the date that they were mailed.
No. 16AP-45                                                                                3


circumstances regarding the June 5, 2014 commission finding that relator had voluntarily
abandoned the workforce so as to preclude the payment of TTD. Relator alleged the
commission committed mistakes of law and fact when it misapplied both State ex rel.
Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, and State ex rel.
Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 2013-Ohio-4538, and by
imposing a burden of proof on relator that this court has held impermissible. Relator
further alleged that there existed new and changed circumstances in the form of: (1) the
July 2, 2014 MRI, and (2) the subsequent third cervical surgery, both of which
corroborate relator's persistent worsening cervical complaints. Finally, she argued that
new and changed circumstances existed in the form of her August 19, 2013 resignation
letter as this was newly discoverable evidence since it was not raised at either the district
hearing officer ("DHO") or SHO hearings. Relator claimed she was not able to obtain the
resignation letter, even though she wrote it. Relator also claimed that the January 6, 2015
letter from Rick Di Domenico, former executive director of Life Care Center of Medina, is
new evidence of relator's intent on her resignation. It appears the magistrate did not
address the refusal to exercise continuing jurisdiction. Therefore, we will address the
same now.
       {¶ 5} On June 18, 2015, the DHO considered relator's request for continuing
jurisdiction regarding the June 5, 2014 SHO order and denied the same, finding that
relator's resignation letter was not evidence of new and changed circumstances. The DHO
also determined there was no evidence the Di Domenico letter could not have been
obtained or was not discoverable for the SHO hearing on June 2, 2014. There is no
indication in the DHO's order that the July 2, 2014 MRI and evidence of the third cervical
surgery were presented to the DHO. Furthermore, there is no indication that relator
raised any legal arguments that Eckerly or Hoffman were misapplied.             A review of
relator's April 28, 2015 C-86 motion to appeal confirms that neither the MRI, third
cervical surgery, Eckerly, or Hoffman were raised by relator.
       {¶ 6} On August 13, 2015, the SHO modified the prior DHO's June 18, 2015 order
but still denied the request for continuing jurisdiction. First, the SHO noted that no
evidence was presented regarding a mistake of fact. The SHO addressed relator's mistake
of law argument that the prior SHO did not have jurisdiction to sua sponte raise the issue
of voluntary abandonment. The SHO disagreed and noted that the transcript from the
No. 16AP-45                                                                                 4


April 11, 2014 DHO hearing reflects the circumstances surrounding relator's resignation
were discussed and, furthermore, had it not been discussed, the prior SHO was permitted
to conduct a de novo hearing. Furthermore, once again, there is no indication that relator
raised any legal arguments that Eckerly or Hoffman were misapplied.
        {¶ 7} The SHO then addressed relator's new evidence argument and stated that
the resignation letter could not be considered new evidence as it was in existence prior to
the June 5, 2014 SHO order. The SHO also found that relator had "not established [the Di
Domenico letter] could not have been obtained prior to the 2014 administrative
adjudications regarding the payment of temporary total compensation." (Stip. of Evid. at
268.) We note, once again, there is no indication in the August 13, 2015 SHO order that
the July 2, 2014 MRI and evidence of the third cervical surgery were even presented to the
SHO. Review of the July 7, 2015 online appeal reveals a notation that "[a]dditional
evidence will NOT be submitted" and thus confirms that relator did not submit additional
evidence in the form of the MRI or third cervical surgery. (Emphasis sic.) (Stip. of Evid. at
265.)
        {¶ 8} Finally, on September 1, 2015, the commission refused relator's appeal of
the SHO's August 13, 2015 order. Review of the August 26, 2015 online appeal contained
in the record reveals a notation "additional evidence will NOT be submitted" and thus
confirms that relator did not submit additional evidence in the form of the MRI or third
cervical surgery. (Emphasis sic.) (Stip. of Evid. at 273.) Again, there is nothing in the
record to indicate that relator raised the legal arguments regarding Eckerly or Hoffman.
        {¶ 9} Taking all this into consideration, we agree that relator's letter and the Di
Domenico letter are not new evidence or previously not obtainable.              We find the
commission did not abuse its discretion in denying continuing jurisdiction. The third
objection is overruled.
        {¶ 10} Regarding relator's first and second objections, relator essentially argues the
magistrate confused the standard for denying TTD with the standard for finding
workforce abandonment.         Relator argues that the burden for proving workforce
abandonment lies with the employer and that she, as the employee, was not required to:
(1) be working at the time of her disability, and (2) present contemporaneous medical
evidence of disability at the time of her resignation. Rather, relator argues the magistrate
erred by not focusing on evidence of relator's intent at the time of her resignation, in
No. 16AP-45                                                                                 5


particular: (1) the fact that her resignation letter indicates she is resigning for "medical
reasons" rather than retiring, and (2) the subsequent MRI and third cervical surgery.
       {¶ 11} State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988),
held that where a claimant's retirement is causally related to his injury, the retirement is
not "voluntary" so as to preclude eligibility for TTD, however, "[w]here * * * the Industrial
Commission determines that a claimant has not left a former position of employment due
to a work-related injury, it may properly deny an award of temporary total disability." Id.
at 46. The commission's determination regarding whether retirement was "voluntary"
will be upheld if there is some evidence to support it.
       {¶ 12} In support of her argument, relator points to our decision in State ex rel.
Montanez v. ABM Janitorial Servs., 10th Dist. No. 12AP-364, 2013-Ohio-4333. However,
in Montanez, as well as State ex rel. Cline v. Abke Trucking, Inc., 10th Dist. No. 10AP-
888, 2012-Ohio-1914, and State ex rel. MedAmerica Health Sys. Corp. v. Brammer, 10th
Dist. No. 11AP-904, 2012-Ohio-4416, on which Montanez relied, the relator's voluntary
abandonment took place after an involuntary abandonment, and the court held " 'a
voluntary abandonment of subsequent employment does not relate back and transform
an involuntary departure from the original employer into a voluntary departure so as to
render the employee ineligible for TTD compensation.' " Montanez at ¶ 10, quoting
MedAmerica at ¶ 5-7 and Cline at ¶ 14-15. That is not the case here.
       {¶ 13} As pointed out by the magistrate, the voluntary nature of any claimant's
departure from the workforce or abandonment is a factual question which centers around
the claimant's intent at the time of retirement and all relevant circumstances must be
considered in determining the same. In Hoffman, the Supreme Court of Ohio stated that
relevant factors include "evidence of the claimant's medical condition at or near the time
of departure from the workforce, if submitted, and any other evidence that would
substantiate a connection between the injury and retirement." Id. at ¶ 15. In the June 5,
2014 SHO decision, the commission considered the following relevant information in
determining relator's resignation was voluntary: (1) the fact that relator had a sedentary
position upon her return from a 2008 surgical procedure until her resignation
November 8, 2013, (2) the fact that it was her own personal assessment that she could not
continue to work, (3) the fact that despite testifying to excruciating levels of pain, relator
did not seek any medical treatment until January 2, 2014, almost two months after her
No. 16AP-45                                                                               6


resignation, (4) the lack of any medical evidence indicating she was incapable of working
to confirm her allegation that she was not physically capable of continuing in her
sedentary job upon the date of her resignation, and (5) the fact that relator had not looked
for any work since her resignation.
       {¶ 14} Accordingly, we cannot say that the commission abused its discretion in
finding that relator voluntary abandoned the workforce. Therefore, the first and second
objections are overruled.
       {¶ 15} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's three objections, we find the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule the three objections to the magistrate's decision and adopt the magistrate's
decision as modified by this decision. Accordingly, the requested writ of mandamus is
hereby denied.
                                                                     Objections overruled;
                                                                writ of mandamus denied.

                            TYACK and BROWN, JJ., concur.
No. 16AP-45                                                                             7


                                     APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Deborah Yuravak,          :

              Relator,                      :

v.                                          :                    No. 16AP-45

The Industrial Commission of Ohio           :               (REGULAR CALENDAR)
and
Fairview Hospital [dba]                     :
The Cleveland Clinic,
                                            :
              Respondents.
                                            :



                         MAGISTRATE'S DECISION

                               Rendered on July 29, 2016



              Shapiro, Marnecheck & Palnick, Matthew A. Palnik, and
              Elizabeth M. Laporte, for relator.

              Michael DeWine, Attorney General, and Natalie J. Tackett,
              for respondent Industrial Commission of Ohio.

              Gottfried Sommers LLC, R. Mark Gottfried, and Sandra B.
              Sommers, for respondent Fairview Hospital dba The
              Cleveland Clinic.


                                     IN MANDAMUS
      {¶ 16} Relator, Deborah Yuravak, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied her application for temporary total
disability ("TTD") compensation, and ordering the commission to find that she is entitled
No. 16AP-45                                                                                  8


to that compensation. Relator also asks this court to issue a writ of mandamus ordering
the commission to grant her motion for continuing jurisdiction, reconsider the issue of
voluntary abandonment, and find in her favor.
Findings of Fact:
       {¶ 17} 1. Relator sustained a work-related injury on January 10, 1997 while
working as a file clerk/forms coordinator for respondent, Fairview Hospital dba The
Cleveland Clinic ("Fairview"), a self-insured employer.
       {¶ 18} 2. Fairview initially certified relator's claim for cervical strain and herniated
disc C5-6.
       {¶ 19} 3. On November 30, 1998, relator underwent an interior C5 discectomy
with posterior decompression and interbody fusion, underwent physical therapy, and was
ultimately able to return to work approximately six months later.
       {¶ 20} 4. Relator voluntarily left Fairview in September 1999 and took a job at Life
Care Center of Medina ("Life Care") as a receptionist, and ultimately became the office
manager. Relator acknowledged that, while still employed at Fairview, another employee
was assigned to perform any lifting tasks for her. According to her testimony, she left
Fairview because she was in a lot of pain, the employee assigned to assist her harassed
her, and the job at Life Care was within walking distance of her home.
       {¶ 21} 5. In 2004, relator's claim was additionally allowed for: "spondylogenic
compression at C5-6 and C4-5; disc bulge without myelopathy."
       {¶ 22} 6. On March 7, 2008, relator had a second surgery to re-explore the
"anterior cervical fusion * * * done at the C5-6 level and * * * a C4-5 anterior cervical
decompression with fusion."
       {¶ 23} 7. Relator received TTD compensation following this second surgery until
she returned to work at Life Care in June 2008.
       {¶ 24} 8. Relator indicated that she was essentially pain free until March 2009.
       {¶ 25} 9. In 2010, relator's claim was additionally allowed for disc herniation C3-4
and C6-7 as flow-through conditions.
       {¶ 26} 10. Relator was treated by Cyril E. Marshall, M.D., on December 13, 2012,
because she was experiencing a lot of neck pain and headaches, and she indicated that her
neck pops and cracks. At that time, Dr. Marshall noted that relator's range of motion of
No. 16AP-45                                                                              9


her cervical spine was decreased by 50 percent. Dr. Marshall prescribed Vicodin and
Flexeril and completed a C-9 form requesting massage therapy.
       {¶ 27} 11. In a letter dated August 19, 2013, relator notified her employer that she
found it necessary to resign from her position. In that letter, relator explained:
              I am writing this letter with deepest sadness. At this time I
              feel it necessary to resign from my position as Business
              Office Manager with Life Care Center of Medina, due to
              medical reasons. I feel it is in the best interest for the
              company and myself. My last day of employment will be
              September 18, 2013.

       {¶ 28} 12. Relator did not resign on September 18, 2013 as she had indicated in
her letter because her employer had not yet found a replacement. Relator's last day of
work at Life Care was November 8, 2013.
       {¶ 29} 13. Relator did not seek medical attention until January 2, 2014 when she
returned to Dr. Marshall. In his office note of the same date, Dr. Marshall noted that
relator was having a lot of neck pain and that she felt like she was getting worse. Dr.
Marshall noted that relator had a 50 percent decrease in range of motion of her cervical
spine and tenderness in the paraspinals.
       {¶ 30} 14. That same day, Dr. Marshall completed a Medco-14 Physician's Report
of Work Ability indicating that relator was temporarily not released to any work including
her former position of employment from January 2 through April 1, 2014. He noted as his
clinical findings that relator had a 50 percent decrease in cervical range of motion,
worsening pain which he indicated was an 8 out of 10, and further noted that they were
awaiting approval for a cervical spine MRI.
       {¶ 31} 15. Dr. Marshall authored a letter to relator's counsel explaining her
situation further:
              She has been suffering with progressive pain in her neck. She
              has been unable to work since 11-8-13 due to the severity of
              neck pain with marked restriction in cervical range of
              motion. I have ordered updated cervical MRI. Based on
              exam today, she is disabled as a direct result of the cervical
              spine conditions. She is in horrible pain with only 50%
              retained cervical range of motion.

       {¶ 32} 16. Relator filed her application for TTD compensation on January 6, 2014.
No. 16AP-45                                                                            10


      {¶ 33} 17. An independent medical evaluation was performed by Barry J.
Greenberg, M.D. In his February 26, 2014 report, Dr. Greenberg listed the allowed
conditions in relator's claim, identified the medical records which he reviewed, discussed
the history of relator's conditions, and provided his physical findings upon examination.
Dr. Greenberg opined that relator was voluntarily limiting her neck motion, concluded
that her allowed conditions had reached maximum medical improvement ("MMI"), and
concluded that she was not temporarily and totally disabled, instead noting that she had
decided to stop working because of continuing neck pain and restricted motion which, as
he noted, were not new issues.
      {¶ 34} 18. Relator's application was heard before a district hearing officer ("DHO")
on April 11, 2014. The DHO relied on the report of Dr. Greenberg to conclude that relator
was not entitled to an award of TTD compensation.
      {¶ 35} 19. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on June 2, 2014. The SHO vacated the prior DHO order and denied relator's
request for TTD compensation finding that she had voluntarily abandoned her
employment when she left work on November 8, 2013. The SHO explained that relator
had failed to provide any contemporaneous evidence relative to the date she quit work
which would indicate that she was medically incapable of working. The SHO noted
further that relator did not look for any work after leaving her employment in
November 2013. Specifically, the SHO order provides:
              Ms. Yuravak left the Employer of Record in 1999 in order to
              take a job as an office manager for another employer. The
              Injured Worker has testified that the new job as an office
              manager entailed working on the computer all day and
              answering phones. The Injured Worker confirmed that this
              was a sedentary position. The Injured Worker indicated that
              she underwent a second surgical procedure in 2008 and was
              able to return to the sedentary position and continued to
              work until 11/08/2013.

              The Injured Worker testified that on 11/08/2013 she quit her
              sedentary job with the now Employer. The Injured Worker
              testified that it was her own personal assessment that she
              could not continue to work. The Injured Worker testified
              that she had gotten to the point where she wanted to commit
              suicide because the pain was so bad, so she went off work
              on 11/08/2013. However, despite describing excruciating
              level of pain, the Staff Hearing Officer notes that the Injured
No. 16AP-45                                                                       11


              Worker did not seek any medical treatment until 01/02/104
              [sic].

              The Staff Hearing Officer finds that the Injured Worker had
              not provided any medical evidence contemporaneous with
              the date she quit work, 11/08/2013, indicating that she was
              medically incapable of working to confirm her allegation that
              she was not physically capable of continuing in her sedentary
              job. Further, the Injured Worker has testified that it was her
              own assessment and that she did not have medical
              corroboration that she was unable to work as she did not
              seek treatment. Additionally, the Injured Worker has
              indicated that she has not looked for any work since leaving
              her employment on 11/08/2013.

              As such, the Staff Hearing Officer finds that there is no
              medical evidence contemporaneous with Ms. Yuravak
              leaving work 11/08/2013 which indicates that she was
              unable to work due to the allowed conditions of this claim.

              Accordingly, the Staff Hearing Officer finds that Ms. Yuravak
              has abandoned the workforce when she quit her job
              on 11/08/2013. According to State ex rel. Hoffman v Rexam
              Beverage Can Co. (2013) 137 Ohio St.3d 129, if an Injured
              Worker leaves the workforce for reasons unrelated to the
              industrial injury, there is no loss of earnings due to the injury
              and the Injured Worker is no longer eligible for temporary
              total compensation.

              Despite the allegation of excruciating levels of pain, the
              Injured Worker did not seek treatment until 01/02/2014.
              She had already been off work for almost two months at that
              time for reasons unrelated to the claim. The Staff Hearing
              Officer also relies on State ex rel. Eckerly v. Industrial
              Commission (2005), 105 Ohio St.3d 428 which indicates the
              industrial injury must remove the Injured Worker from his
              or her job and this requirement cannot be satisfied if the
              Injured Worker did not have a job at the time they are
              alleging disability. The first evidence of disability related to
              the claim is not until 01/02/2014, well after the Injured
              Worker had already quit her job. Thus, there are no wages to
              replace and temporary total compensation is not payable.

              It is the further order of the Staff Hearing Officer that the C-
              9 Request for Medical Service, dated 01/02/2014, is denied.
No. 16AP-45                                                                               12


       {¶ 36} 20. Relator's further appeal was refused by order of the commission mailed
June 25, 2014.
       {¶ 37} 21. On September 19, 2014, relator filed a C-86 motion requesting the
approval of surgery and asking that TTD compensation be paid from the date of that
surgery, September 19, 2014.
       {¶ 38} 22. Relator's C-86 motion was heard before a DHO on November 14, 2014
and was denied based on the prior SHO order determining that relator had voluntarily
abandoned her employment.
       {¶ 39} 23. Relator appealed; however, she later withdrew that appeal.
       {¶ 40} 24. On April 29, 2015, relator filed a motion asking that the commission
exercise its continuing jurisdiction alleging a mistake of fact, a mistake of law, and that
new evidence which was not available at the time of the June 2, 2014 SHO hearing was
now available.
       {¶ 41} 25. On June 15, 2015, relator's request was heard before a DHO and was
denied. In support of her motion, relator had submitted a copy of her August 2013 letter
of resignation as support for new and changed circumstances. The DHO noted that letter
was authored prior to the SHO hearing on June 2, 2014 and did not constitute evidence of
new and changed circumstances.
       {¶ 42} Relator had also submitted a letter from the former executive director of
Life Care dated January 6, 2015 wherein he explained that relator had complained of
constant neck pain and that her resignation was due to her neck pain.             The DHO
determined that relator failed to establish that this letter could not have been obtained or
was not discoverable to be submitted in time for the June 2014 SHO hearing. Finding
that relator failed to present any evidence of a mistake of fact or law in the June 2, 2014
SHO order, the DHO denied relator's request for relief pursuant to R.C. 4123.52.
       {¶ 43} 26. Relator appealed and the matter was heard before an SHO on August 5,
2015. The SHO also denied relator's request for relief pursuant to R.C. 4123.52, but for
different reasons. The SHO noted that, at the June 2, 2014 hearing, there was no
contemporaneous medical evidence relative to the time when relator left the workforce
and the prior finding that relator left the workforce for reasons unrelated to the industrial
injury did not constitute a mistake of fact.
No. 16AP-45                                                                                13


       {¶ 44} Relator had alleged that the original SHO did not have jurisdiction to raise
the issue of voluntary abandonment arguing that her employer had failed to raise it.
However, the SHO disagreed relying in part on the transcript from the DHO hearing held
April 11, 2014. As the SHO noted, the circumstances surrounding relator's resignation
were in fact discussed. Regardless, the prior SHO was not precluded from addressing any
legal defense to an issue noticed for hearing as each administrative level of adjudication
represents a de novo hearing on the merits.
       {¶ 45} The SHO also found that relator's letter of resignation and the letter from
the executive director did not constitute evidence which could not have been presented at
the 2014 hearing. As such, the SHO determined that relator failed to provide evidence to
substantiate the invocation of the extraordinary remedy of continuing jurisdiction.
       {¶ 46} 27. Relator's further appeal was refused by order of the commission mailed
November 1, 2015.
       {¶ 47} 28. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 48} Relator argues that the commission abused its discretion in the following
manner: (1) unilaterally raising the affirmative defense of voluntarily abandonment of the
workforce when the self-insured employer did not; (2) misapplying State ex rel. Hoffman
v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 2013-Ohio-4538 and State ex rel.
Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, which deal with
voluntary abandonment compared with the commission's finding of workforce
abandonment; and (3) finding a workforce abandonment where there are no facts to
suggest that relator's inability to work is anything other than related to the allowed
conditions in her claim.
       {¶ 49} The magistrate finds that the commission did not abuse its discretion: (1)
relator's absence from the workforce was an issue and the commission did not abuse its
discretion by discussing the issue; (2) the SHO did not apply rationale from Hoffman and
Eckerly; and (3) the commission did not abuse its discretion by finding that relator failed
to establish that she left the workforce due to the allowed conditions in her claim.
       {¶ 50} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
No. 16AP-45                                                                               14


requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 51} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 52} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d
630 (1982).
       {¶ 53} Where an employee's own actions, for reasons unrelated to the injury,
preclude him or her from returning to their former position of employment, he or she is
not entitled to TTD benefits, since it is the employee's own actions, rather than the injury,
that precludes return to the former position of employment.          State ex rel. Jones &
Laughlin Steel Corp. v. Indus. Comm., 29 Ohio App.3d 145 (1985).
       {¶ 54} When demonstrating whether an injury qualifies for TTD compensation, a
two-part test is used. The first part of the test focuses on the disabling aspects of the
injury. The second part of the test determines if there are any factors, other than the
injury, which would prevent claimant from returning to his or her former position of
No. 16AP-45                                                                              15


employment. State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987). However,
only a voluntary abandonment precludes the payment of TTD compensation. State ex rel.
Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988). As such, voluntary
abandonment of a former position of employment can, in some instances, bar eligibility
for TTD compensation.
       {¶ 55} The voluntary nature of any claimant's departure from the workforce or
abandonment is a factual question which centers around the claimant's intent at the time
of retirement. In State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45
Ohio St.3d 381 (1989), the Supreme Court stated that consideration must be given to all
relevant circumstances existing at the time of the alleged abandonment. Further, the
court stated that the determination of such intent is a factual question which must be
determined by the commission.
       {¶ 56} If it is determined that a claimant's retirement from a job was voluntary,
TTD compensation can be awarded only if the claimant has re-entered the workforce and,
due to the allowed conditions from the industrial injury, becomes temporarily and totally
disabled while working at the new job. State ex rel. McCoy v. Dedicated Transport, Inc.,
97 Ohio St.3d 25, 2002-Ohio-5305. However, a claimant's complete abandonment of the
entire workforce precludes the payment of TTD compensation all together. Jones and
State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376 (2000).
       {¶ 57} Relator first asserts that the commission abused its discretion by
unilaterally raising the affirmative defense of voluntary abandonment when the employer
had not done so. For the reasons that follow, the magistrate disagrees.
       {¶ 58} First, it must be remembered that the burden of proof is always on the
claimant to establish entitlement to an award of compensation. All claimants, including
relator herein, are required to present medical evidence sufficient to establish entitlement
to an award. In order to be entitled to an award of TTD compensation, relator was
required to demonstrate that she had sustained a loss of earnings as a result of the
allowed conditions in her claim. Here, relator sought an award of TTD compensation
beginning November 8, 2013, the date she last worked. Relator was required to present
sufficient medical evidence that, at that time, her allowed conditions rendered her
incapable of working. In her letter of resignation, dated August 19, 2013, relator indicated
that she found it necessary to resign from her position "due to medical reasons."
No. 16AP-45                                                                                16


However, relator did not seek medical treatment for almost five months         In early 2013,
relator sought an increase in her award of permanent partial disability compensation.
Jess G. Bond, M.D., examined her in January 2013 and Catherine Campbell, M.D.,
examined her in March 2013. Relator complained to both physicians that she still had
considerable neck pain rated at a level 7 to 8 out of 10, and that injury to her neck severely
affected her ability to do everything. However, relator never specifically indicated that her
sedentary job was more difficult due to this pain. Based on these reports, the commission
determined that relator had a 36 percent permanent partial disability, an increase of 1
percent. While the medical reports upon which the commission relied indicated that
relator had significant impairments, at no time did either report indicate that relator was
unable to work, and relator did not inform them that she was having increased difficulties
working.
       {¶ 59} As indicated in the findings of fact, there was a 13-month gap between
relator's treatment with Dr. Marshall on December 13, 2012 and subsequent treatment on
January 2, 2014, after her resignation. Relator simply did not seek any medical treatment
during this time period. In the transcript, relator provided two explanations for her
failure to see Dr. Marshall sooner: (1) the employer objected to every doctor visit, and (2)
she hoped that when she left work in November 2013, her symptoms would decrease.
That is the explanation relator provided for not providing any contemporaneous medical
evidence that her allowed conditions forced her to leave her sedentary position at Life
Care. The commission could have relied on her explanation, but did not.
       {¶ 60} Based on this lack of medical evidence to support her assertion that she was
not working due to the allowed conditions in her claim, the SHO concluded that relator
failed to establish that the allowed conditions in her claim removed her from her job, and
she had no wages to replace.       The magistrate finds that this was not an abuse of
discretion.
       {¶ 61} Relator also takes issue with the commission's finding that she "voluntarily
abandoned the workforce." Relator asserts that the commission's reliance on Eckerly and
Hoffman is misplaced because those cases dealt with voluntary abandonment and not
workforce abandonment. Relator asserts that Eckerly is inapplicable because that case
involved the claimant's voluntary abandonment from his former position of employment
after being terminated for cause. Finding that the claimant had not re-entered the
No. 16AP-45                                                                             17


workforce, he was denied TTD compensation. Relator argues that neither this court nor
the Supreme Court of Ohio ever stated that Mr. Eckerly had abandoned the workforce.
       {¶ 62} Relator's characterization of the holding from Eckerly is inaccurate. Mr.
Eckerly was terminated from his job and made no attempts to re-enter the workforce. As
such, the commission found that he was not entitled to an award of TTD compensation.
When a claimant is not working for reasons unrelated to the allowed conditions in the
claim, the departure is considered voluntary. Whenever a claimant declines to re-enter
the workforce, it can be said that, for all intents and purposes, they have abandoned the
workforce.
       {¶ 63} Relator also asserts that the commission abused its discretion by citing to
the Hoffman decision. In that case, approximately three months after Mr. Hoffman's
TTD compensation was terminated, he retired based on years of service. Sixteen months
later, Mr. Hoffman required a second knee surgery and applied for TTD compensation.
The commission denied that request finding that Mr. Hoffman had voluntarily abandoned
the workforce and cited his employment records, which indicated that his retirement was
based on years of service, medical reports that he had reached MMI, his receipt of Social
Security Disability benefits, and his testimony that he had applied for only one job in the
month since his retirement. Relator says that her situation is different because she had
never been determined to have reached MMI and she has never applied for Social Security
Disability benefits.
       {¶ 64} The magistrate disagrees. Relator is directing attention to certain specific
facts which differentiate Eckerly from Hoffman; however, those differences do not change
the law.     As stated previously, when an injured worker is not working for reasons
unrelated to the allowed conditions in the injured worker's claim, the injured worker's
departure from not only their previous position of employment, but the entire workforce,
is considered voluntary. In the present case, the commission found that relator failed to
establish that her departure from the workforce in November 2013 was related to the
allowed conditions in her claim. As such, the commission found that her departure from
her job with Life Care was voluntary. Because relator never re-entered the workforce or
even attempted to re-enter the workforce, the commission was entitled to find that she did
not meet her burden of proof and instead the facts, at that point in time, led to the
conclusion that she had voluntarily abandoned the workforce.
No. 16AP-45                                                                              18


       {¶ 65} Finding that the commission did not abuse its discretion when it denied
relator's application for TTD compensation, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              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).
