[Cite as State ex rel. Goff v. Indus. Comm., 2016-Ohio-7270.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel. Barbara Goff,                     :

                 Relator,                               :

v.                                                      :          No. 15AP-1016

The Industrial Commission of Ohio                       :       (REGULAR CALENDAR)
and John G. Cleminshaw, Inc.,
                                                        :
                 Respondents.
                                                        :




                                         D E C I S I O N

                                     Rendered on October 11, 2016



                 On brief: M. Blake Stone, L.P.A., Inc., and M. Blake Stone,
                 for relator.

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

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Barbara Goff, commenced this original action requesting a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying her application for temporary total disability ("TTD") compensation and
ordering the commission to find she is entitled to that 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 the appended decision,
No. 15AP-1016                                                                               2


including findings of fact and conclusions of law.        The magistrate determined the
commission's finding that relator had no wages to replace to support TTD compensation
was supported by some evidence in the record and, as a result, recommended that this
court deny the requested writ of mandamus. For the following reasons, we overrule the
objections and deny the requested writ.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 3} None of the parties have filed objections to the magistrate's findings of fact,
and following an independent review of the record, we adopt those findings as our own.
As more fully set forth in the magistrates' decision, relator sustained a work-related injury
in July 2008, and her worker's compensation claim was allowed for a left tibia/fibula
fracture along with moderate depressive psychosis, panic disorder, and psychogenic pain.
Following her initial injury, relator received approximately one year of TTD
compensation, six months of living maintenance, and approximately one year of non-
working wage loss compensation.        On January 16, 2012, relator's treating physician
released her to return to work with no restrictions. Relator did not return to work.
       {¶ 4} In August 2012, a new condition called Tailor's bunionette was allowed.
Several years later, on April 27, 2015, relator underwent an approved surgery on her left
foot to correct that condition.     Relator filed an application for TTD compensation
supported by the surgeon's opinion that she was temporarily and totality disabled from
the date of the surgery to May 20, 2015. A district hearing officer ("DHO") denied her
request, reasoning that relator had not re-entered the work force, and, therefore, no wages
exist to be replaced by TTD compensation. A staff hearing officer affirmed the DHO's
decision, concluding that "the reasons for the Injured Worker being out of the work force
are unrelated to the industrial injury," making relator ineligible for TTD compensation.
(Mag.'s Decision at ¶ 21.) Relator's further appeal was refused by the commission, and
thereafter she filed the instant mandamus action in this court.
       {¶ 5} As previously indicated, the magistrate recommended that this court deny
relator's request to issue the writ of mandamus. In its decision, the magistrate disagreed
with relator's argument that, because she testified that she did look for work for three
years but was unable to find employment due to the poor economy and because she did
not apply for social security or disability benefits, the commission abused its discretion by
No. 15AP-1016                                                                                3


finding she abandoned the work force. The magistrate noted that relator had been
released to work three years prior to her surgery and had not returned to employment,
that the burden to demonstrate entitlement to TTD compensation was on relator, and that
the commission's denial of her TTD compensation request was supported by some
evidence in the record.
II. OBJECTIONS
        {¶ 6} While relator does not separately set forth specific objections to the
magistrate's decision, she generally argues that the magistrate erred by not explaining
why relator had abandoned the work force. Specifically, relator argues there is no proof
that she abandoned the work force, and, to the contrary, that record evidence shows
relator did not abandon the work force.
III. DISCUSSION
        {¶ 7} Relator's objections are, in essence, the same arguments made to and
addressed by the magistrate. Contrary to relator's argument, the magistrate specifically
explained why she disagreed with relator's argument that she did not abandon the work
force and explained that TTD compensation is inappropriate where the claimant has no
wages to replace.
        {¶ 8} As stated, in relevant part, by the Supreme Court of Ohio in State ex rel.
Floyd v. Formica Corp., 140 Ohio St.3d 260, 2014-Ohio-3614:
               R.C. 4123.56 provides for compensation for temporary total
               disability when an industrial injury prevents a claimant from
               performing the duties of his position of employment. State ex
               rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 380, 2000-
               Ohio-168, 732 N.E.2d 355 (2000). The purpose is to
               compensate the injured worker for lost earnings during a
               period of disability while an injury heals. State ex rel.
               Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129,
               2013-Ohio-4538, 998 N.E.2d 442, ¶ 14.

Id. at ¶ 13.
        {¶ 9} "There can be no lost earnings, however, or even a potential for lost
earnings, if the claimant is no longer part of the active work force." State ex rel. Pierron v.
Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, ¶ 9; State ex rel. Escajadillo v. Koch
No. 15AP-1016                                                                                4


Foods of Cincinnati, LLC, 10th Dist. No. 14AP-267, 2015-Ohio-1226, ¶ 15. "When the
reason for this absence from the work force is unrelated to the industrial injury,
temporary total disability compensation is foreclosed." Pierron at ¶ 9.
       {¶ 10} "There is no one-size-fits-all formula for circumstances involving the issue
of voluntary abandonment of employment prior to an alleged period of TTD; * * * the
central issue in such circumstances is whether there is a loss of earning as a result of the
industrial injury." Escajadillo at ¶ 16. In making this determination, the commission has
discretion to consider all the evidence before it to determine a claimant's intent, including
the weight and credibility of that evidence. State ex rel. Rockey v. Sauder Woodworking
Co., 10th Dist. No. 09AP-888, 2011-Ohio-1590, ¶ 17. "The commission may infer a
claimant's intent ' " 'from words spoken, acts done, and other objective facts.' " ' " Floyd at
¶ 16, quoting State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio
St.3d 381, 383 (1989), quoting State v. Freeman, 64 Ohio St.2d 291, 297 (1980), quoting
United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). Thus, while evidence could
support a contrary determination, if there is some evidence in the record to support the
commission's finding we will not find that the commission abused its discretion in
denying TTD compensation. Rockey.
       {¶ 11} We conclude that the magistrate correctly reasoned relator had not
demonstrated that the commission abused its discretion in denying her application for
TTD compensation. Record evidence shows that after being released to work without
restrictions, relator did not return to employment for the three years immediately prior to
her surgery. Her stated reason for not returning to work was due to the poor economy.
The commission had discretion to weigh relator's testimony regarding her apparently
undocumented efforts to return to the work force.          On this record, relator did not
establish a clear right to the relief requested or that the commission had a clear legal duty
to provide TTD compensation. Therefore, for the reasons set forth in the magistrate's
analysis, we overrule relator's objections. State ex rel. Schottenstein Stores Corp. v.
Indus. Comm., 10th Dist. No. 07AP-1066, 2009-Ohio-2142, ¶ 4-5.
IV. CONCLUSION
       {¶ 12} Following review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate properly
No. 15AP-1016                                                                            5


determined the facts and applied the appropriate law.          Therefore, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law. In
accordance with the magistrate's decision, the requested writ of mandamus is denied.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                             TYACK and KLATT, JJ., concur.
                               ___________________
No. 15AP-1016                                                                          6


                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


State of Ohio ex rel. Barbara Goff,          :

              Relator,                       :

v.                                           :              No. 15AP-1016

The Industrial Commission of Ohio            :         (REGULAR CALENDAR)
and John G. Cleminshaw, Inc.,
                                             :
              Respondents.
                                             :



                         MAGISTRATE'S DECISION

                                Rendered on May 17, 2016


              M. Blake Stone, L.P.A., Inc., and M. Blake Stone, for relator.

              Michael DeWine, Attorney General, and Andrew J. Alatis, for
              respondent Industrial Commission of Ohio.


                                      IN MANDAMUS
       {¶ 13} Relator, Barbara Goff, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying her application for temporary total disability
("TTD") compensation and ordering the commission to find that she is entitled to that
compensation.
No. 15AP-1016                                                                           7


Findings of Fact:
      {¶ 14} 1. Relator sustained a work-related injury on July 14, 2008 when, while
working as an appraiser, she slipped and fell.            Ultimately, relator's workers'
compensation claim was allowed for the following conditions:
             Distal tibia/fibula comminuted intra-articular fracture left;
             depressive psychosis moderate; panic disorder; psychogenic
             pain.

      {¶ 15} 2. Relator has not returned to work since the date of injury in 2008.
      {¶ 16} 3. Relator received approximately one year of TTD compensation
following her injury, approximately six months of living maintenance, and
approximately one year of non-working wage loss compensation.
      {¶ 17} 4. Relator's treating physician, Raymond L. Candage, M.D., released her
to return to work with no restrictions as of January 16, 2012.
      {¶ 18} 5. On April 27, 2015, Dr. Candage operated on relator's left foot and
completed Physician's Report of Work Ability forms opining that relator was
temporarily and totally disabled following the surgery from April 27 to May 20, 2015.
      {¶ 19} 6. Relator filed an application for TTD compensation beginning
April 27, 2015 supported by the medical documentation from Dr. Candage.
      {¶ 20} 7. Relator's application was heard before a district hearing officer
("DHO") on June 1, 2015. The DHO denied relator's request noting that relator had
been released to return to work without restrictions on January 16, 2012, but she had
not returned to work. Specifically, the DHO order provides:
             It is the order of the District Hearing Officer that the C-84
             Request For Temporary Total Compensation filed by Injured
             Worker on 04/24/2015 is denied. Therefore, temporary total
             compensation is denied from 04/27/2015 through
             06/01/2015. The District Hearing Officer finds that Injured
             Worker is not eligible for temporary total compensation for
             the reason that Injured [Worker] has not been actively
             employed since the date of injury.

             Injured Worker is requesting temporary total compensation
             as part of a post-operative recovery period from an approved
             surgery on 04/27/2015. The surgery was to correct the
No. 15AP-1016                                                                     8


             Tailor's bunionette, a condition which was not allowed in the
             claim until 08/06/2012.

             Prior to the allowance of this new condition, Raymond L.
             Candage, M.D., physician of record, released Injured Worker
             to return to work without restrictions effective 01/16/2012.
             Until the 04/27/2015 surgery, there was no indication that
             the newly allowed bunionette rendered Injured Worker
             temporarily and totally disabled.

             Injured Worker testified that she has continuously sought
             employment since her release to return to work. Injured
             Worker testified that she was offered a job as a manager at
             Wendy's in Dalton Ohio but had to turn it down because the
             job would have required her to work 40 to 60 hours per
             week. As previously stated, Dr. Candage released Injured
             Worker to return to work without restrictions.

             As Injured Worker has not reentered the workforce, there
             are no wages to replace. Therefore, the C-84 filed
             04/24/2015 is denied.

      {¶ 21} 8. Relator's appeal was heard before a staff hearing officer ("SHO") on
July 13, 2015. The SHO found that relator had not returned to work since the date of
injury and had no wages to replace. Specifically, the SHO order provides:
             It is the order of the Staff Hearing Officer that temporary
             total compensation is denied from 04/27/2015 through
             06/01/2015. The Staff Hearing Officer notes that the period
             of disability is contemporaneous with the surgical procedure
             on 04/27/2015 for a condition which is recognized in this
             claim. However, the Staff Hearing Officer finds that payment
             of temporary total compensation over this period is not
             appropriate as there are no wages to replace. The Staff
             Hearing Officer finds that the payment of temporary total
             compensation is for the purpose of replacing lost wages.

             Pursuant to the MEDCO-14, Physician's Report of Work
             Ability, dated 12/12/2011, the physician of record, Raymond
             Candage, M.D., released the Injured Worker to return to
             work with no restrictions as of 01/16/2012. The Injured
             Worker confirmed that she received a full duty release
             without an restrictions whatsoever as of 01/16/2012. There is
             no evidence that any physician disabled the Injured Worker
             from 01/16/2012 through 04/26/2015.
No. 15AP-1016                                                                           9



             The Injured Worker testified that she did look for work, but
             in the three years since she was released to return to work
             without restrictions she has not been able to find a job. The
             Injured Worker testified there was some confusion over the
             refusal to accept a job at Wendy's. The Injured Worker
             testified at today's hearing that the Wendy's job was in 2011
             while she was in vocational rehabilitation. Further, much of
             the Injured Worker's testimony regarding a job search
             concerned her efforts during vocational rehabilitation which
             was prior to her full duty release.

             The Injured Worker's testimony is noted. However, the Staff
             Hearing Officer finds that this does not change the fact that
             the Injured Worker had no wages to replace. Therefore,
             pursuant to State ex rel. Eckerly v. Industrial Commission
             (2005), 105 Ohio St.3d 428, temporary total compensation is
             not payable as the Injured Worker did not have a job at the
             time of the alleged disability; to wit, 04/27/2015. The
             Injured Worker has indicated that her lack of finding a job
             was due to a poor economy, rather than an allowed condition
             of this claim. Thus, the Staff Hearing Officer concludes that
             the reasons for the Injured Worker being out of the work
             force are unrelated to the industrial injury, as such, there is
             no loss of earnings due to the injury and the Injured Worker
             is not eligible for temporary total compensation. State ex rel.
             Pierron v. Industrial (2008), 120 Ohio St.3d 40.

      {¶ 22} 9. Relator's further appeal was refused by order of the commission mailed
August 12, 2015.
      {¶ 23} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
      {¶ 25} 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 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).
No. 15AP-1016                                                                         10


      {¶ 26} 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).
      {¶ 27} 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 maximum medical improvement. See R.C. 4123.56(A); State ex
rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
      {¶ 28} In the present case, relator has not worked since the date of her injury,
July 14, 2008. Relator was released to return to work without any restrictions on
January 16, 2012. She did not do so. Relator testified and argues here that she did look
for work; however, in the three years since she was released to return to work without
restrictions, she has been unable to secure employment due to the poor economy.
Because she did not apply for either Social Security retirement or disability benefits
during that three-year period, relator asserts there is no evidence that she intended to
abandon the workforce. As such, relator asserts that the cases cited by the commission
(State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587; State ex
No. 15AP-1016                                                                              11


rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245) do not apply here.
For the reasons that follow, this magistrate disagrees.
       {¶ 29} In Eckerly, Shawn Eckerly was fired and the commission determined that
his discharge constituted a voluntary abandonment of his former position of
employment pursuant to State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio
St.3d 401 (1995). After his discharge, Eckerly was engaged in sporadic employment.
The commission denied his later request for TTD compensation on grounds that he had
voluntarily abandoned the workforce. Eckerly argued that, because he presented some
evidence that he did return to some employment, pursuant to State ex rel. McCoy v.
Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, he was entitled to TTD
compensation.
       {¶ 30} In his mandamus action, Eckerly argued that, so long as he established
that he obtained any other job after his termination, even if for one day, his eligibility for
TTD compensation was forever re-established. The Supreme Court of Ohio disagreed
emphasizing that, in order to be entitled to TTD compensation, the industrial injury
must remove the claimant from his or her job, and this requirement cannot be satisfied
where the claimant had no job at the time of the alleged disability.
       {¶ 31} In Pierron, Richard Pierron was seriously injured in 1973, and his doctor
imposed medical restrictions which were incompatible with his former position of
employment as a lineman. His employer offered him a light-duty warehouse job which
Pierron performed for the next 23 years.
       {¶ 32} In 1997, when that light-duty position was eliminated, Pierron retired. In
the years that followed, Pierron remained unemployed except for a brief part-time
position as a flower delivery person.
       {¶ 33} When Pierron later requested TTD compensation, the commission denied
his request finding that his separation and departure from the workforce was unrelated
to his work injury.
       {¶ 34} Pierron sought relief in mandamus; however, both this court and the
Supreme Court found that the commission did not abuse its discretion in denying his
request for TTD compensation. Both courts noted that, while Pierron did not initiate his
departure from his employment (his job was eliminated), there was no causal
No. 15AP-1016                                                                          12


relationship between his industrial injury and either his departure or his decision to no
longer be actively employed. Because TTD compensation is designed to replace lost
wages, both courts found that TTD compensation was not appropriate where a claimant
had no wages to replace.
      {¶ 35} In the present case, relator asserts that, for three years she tried to find
employment; however, she was unable to find any employment due to the poor
economy. As such, relator asserts that the commission abused its discretion by finding
that she had abandoned the workforce. For the reasons that follow, the magistrate
disagrees.
      {¶ 36} The magistrate first notes that relator did participate in vocational
rehabilitation services for approximately 20 weeks, ending in March 2010. She asserts
that her vocational rehabilitation file was closed because she did not secure
employment.     However, she engaged in this vocational rehabilitation prior to
January 16, 2012, when Dr. Candage released her to return to work without any
restrictions. Aside from her testimony, relator did not present any evidence that she
diligently searched for work during this time period.
      {¶ 37} The burden was on relator to demonstrate that she was entitled to an
award of TTD compensation. Following surgery, she was unable to work; however,
relator had been released to work with no restrictions three years earlier, and she did
not return to any employment. Because TTD compensation is designed to compensate
an employee for lost wages when the allowed conditions in their claim prevent them
from working, TTD compensation is not appropriate where a claimant has no wages to
replace. Here, the commission denied relator's request for TTD compensation because
she had not been working at the time of the alleged disability. This finding is supported
by some evidence in the record and does not constitute an abuse of discretion.
      {¶ 38} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied her application
for TTD compensation and this court should deny her request for a writ of mandamus.


                                            /S/ MAGISTRATE
                                            STEPHANIE BISCA
No. 15AP-1016                                                                   13




                            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).
