[Cite as State ex rel. Merritt v. Indus. Comm. , 2020-Ohio-682.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


The State ex rel.                                        :
Christopher T. Merritt,
                                                         :
                 Relator,
                                                         :
v.                                                                    No. 18AP-234
                                                         :
Industrial Commission of Ohio et al.,                              (REGULAR CALENDAR)
                                                         :
                 Respondents.
                                                         :



                                             D E C I S I O N

                                    Rendered on February 27, 2020


                 On brief: Nager, Romaine & Schneiberg, Co., L.P.A.,
                 Jerald A. Schneiberg, and C. Bradley Howenstein, for relator.

                 On brief: Dave Yost, Attorney General, and Eric J. Tarbox,
                 for respondent Industrial Commission of Ohio.

                 On brief: Good & Good LLC, and Jonathan A. Good, for
                 respondent New Avenues to Independence, Inc.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Christopher T. Merritt, commenced this original action in
mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate its order denying his application for temporary total disability
("TTD") compensation and to enter an order granting TTD compensation.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
No. 18AP-234                                                                                2


conclusions of law, which is appended hereto. The magistrate noted it was undisputed that
relator was given a copy of the employer's drug-free workplace policy and that relator knew
or should have known that testing positive for certain substances would result in discipline
up to and including termination. The magistrate also noted it was undisputed that relator
tested positive for marijuana and that marijuana is one of the prohibited substances listed
in the employer's policy. Given these undisputed facts, the magistrate concluded that
(1) the commission did not abuse its discretion in denying relator TTD compensation based
upon his voluntary abandonment of his former position of employment due to his
termination for violating his employer's written drug-free workplace policy, and (2) the
absence of any evidence that relator returned to the workforce in any compacity since his
termination. Therefore, the magistrate has recommended that we deny relator's request
for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision. Relator argues that
the employer's policy manual states that a notice of termination for a positive drug test will
list "misconduct" as the reason for the discharge. Because relator's termination notice did
not list a reason, and did not state that "misconduct" was the reason for the discharge, there
is no evidentiary basis that relator was in fact terminated due to a positive drug test. In
turn, relator contends there is no basis for the commission to conclude that relator
voluntarily abandoned his employment by violating his employer's written drug-free
workplace policy. We disagree.
       {¶ 4} There is no dispute that relator was given a copy of the employer's drug-free
workplace policy and that relator knew or should have known that testing positive for
certain substances, including marijuana, would result in discipline up to and including
termination. There is also no dispute that relator tested positive for marijuana use. The
commission also points out that relator's termination notice indicates that relator could
reapply for employment with the employer in six months, which is an option given to job
applicants who have tested positive for drug use. Therefore, even though relator's discharge
notice did not list a reason for the discharge, there is some evidence on which the
commission could rely to conclude that relator was terminated for testing positive for
marijuana use. For these reasons, we overrule relator's objections and find, as did the
magistrate, that the commission did not abuse its discretion when it denied relator TTD
No. 18AP-234                                                                             3


compensation based upon his voluntary abandonment of his former position of
employment by violating his employer's written drug-free workplace policy.
       {¶ 5} Following an independent review of this matter, we find that the magistrate
has properly 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
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                     SADLER, P.J., and BEATTY BLUNT, J., concur.
No. 18AP-234                                                                             4


                                        APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel.                           :
Christopher T. Merritt,
                                            :
             Relator,
                                            :
v.                                                                No. 18AP-234
                                            :
Industrial Commission of Ohio et al.,                       (REGULAR CALENDAR)
                                            :
             Respondents.
                                            :



                          MAGISTRATE'S DECISION

                             Rendered on November 15, 2019



             Nager, Romaine & Schneiberg, Co., L.P.A., Jerald A.
             Schneiberg, and C. Bradley Howenstein, for relator.

             Dave Yost, Attorney General, and Eric J. Tarbox, for
             respondent Industrial Commission of Ohio.

             Good & Good LLC, and Jonathan A. Good, for respondent
             New Avenues to Independence, Inc.


                                    IN MANDAMUS

      {¶ 6} Relator, Christopher J. Merritt, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied relator's application for temporary total
disability ("TTD") compensation, and order the commission to find that he is entitled to
that compensation.
No. 18AP-234                                                                           5


Findings of Fact:
      {¶ 7} 1. Relator sustained a work-related injury on February 1, 2015, and his
workers' compensation claim has been allowed for the following conditions:
             Lumbar strain; substantial aggravation of pre-existing L4-5
             disc bulge/tear; substantial aggravation of pre-existing L5-S1
             disc bulge/tear.

      {¶ 8} 2. As part of the treatment for his low back pain, relator was prescribed
Norco, an opioid medication.
      {¶ 9} 3. As part of the treatment center's policy, patients prescribed controlled
opioid medications were routinely tested to insure that they were taking their prescribed
medication as instructed.
      {¶ 10} 4. On June 23, 2015, relator submitted to a drug screen and tested positive
for marijuana metabolites with a THC concentration of 334 ng/ml.
      {¶ 11} 5. New Avenues to Independence, Inc. ("NATI") had a drug-free work place
policy of which relator was aware. The policy provides in part:
             STATEMENT OF POLICY

             NATI, as a result of its mission as a health care provider and
             status of providing residential care services/supports, has a
             compelling obligation to eliminate illegal drug use, as well as
             alcohol, from its workplace. In order to secure workplace
             safety, to protect its residents/consumers, and the public,
             NATI herein adopts the following rules concerning substance
             abuse. These rules are effective immediately and will be
             enforced uniformly with respect to all employees:

             [One] All employees are prohibited from being under the
             influence of illegal drugs, or alcohol during the working hours.

             [Two] The unlawful use, possession, sale, transfer, purchase,
             dispensation, distribution, or manufacture of any illegal drugs
             or alcohol is strictly prohibited while employees are on NATI
             property or while performing NATI business. Any such action
             by a NATI employee will subject the employee to disciplinary
             action, including termination. (Reference Personnel Policy
             #10).

             ***
No. 18AP-234                                                                            6


             We intend to hold all employees accountable in terms of
             substance use. However, we will support employees who
             voluntarily identify their substance problems prior to testing.
             We will offer the second chance agreement on a case by case
             basis to an employee who tests positive for alcohol and/or
             other drugs.

             Regardless, we will subject employees, who have substance
             problems but do not come forward and then test positive for
             drug or alcohol use, to the employment consequences stated
             in the policy.

(Emphasis sic.)
      {¶ 12} As above stated, a positive result would subject the employee to disciplinary
action up to and including termination.
      {¶ 13} 6. NATI's policy also provides protections for its employees and clearly
indicates that test results are confidential and not made available except where required
by law. Confidentiality of the records is mentioned in several portions of NATI's policy.
For example, Nati's policy provides:
             Protection for employees

             Our program protects employees from dangerous and
             unproductive behaviors attributable to substance use. It also
             has built-in protections of employee's rights.

             We keep employee records, such as testing results and
             referrals for help, confidential. We share information on a
             need-to-know basis only. Violation of confidentiality rights is
             subject to disciplinary action up to and including termination
             of employment.

(Emphasis sic.)
      {¶ 14} Section XI, Records and Confidentiality, provides:
             All referrals and treatment shall be confidential relating to
             records. The designated agency official (Clinical Director) as
             determined by the Executive Director will authorize the
             release of information to designated agency official(s)
             pertaining to the rehabilitation/treatment chosen by the
             employee. As a condition of employment the employee will
             authorize the release of information to designated agency
             official(s) pertaining to such treatment required by HIPAA.
No. 18AP-234                                                                          7


     {¶ 15} Section XVI, Specimen Collection Procedures, provides:
           We require confidentiality from our collection sites and labs.

           We permit employees to provide urine specimens in private,
           but subject to strict scrutiny by collection personnel. This
           avoids any alteration or substitution of the specimen.

           Likewise, the collection site will conduct breath alcohol
           testing in an area that affords the individual privacy. In all
           cases, there will only be one individual tested at a time.

     {¶ 16} Section XX, Storage of Test Results and Right to Review Test, provides:
           We will store all records of drug/alcohol separately from the
           employee's general personnel documents. We will maintain
           these records under lock and key. We limit access to
           designated company officials.

           We will use the information only to properly administer this
           Policy and to provide to certifying agencies for review as
           required by law. We charge designated company officials with
           access to records with the responsibility for maintaining their
           confidentiality. Any breach of confidentiality may be an
           offense resulting in termination of employment.

           Any employees tested under this Policy have the right to
           review and/or receive a copy of their own test results. An
           employee may request to receive his or her test results by
           giving the drug-free coordinator a duly notarized Employee
           Request for Release of Drug Tests Results form. We will use
           our best efforts to promptly comply with this request. And we
           will issue to the employee a copy of the results personally or
           by U.S. Certified Mail, Return Receipt Requested.

     {¶ 17} Section XXII, Termination Notices, provides:
           In those cases, where substance testing results in the
           termination of employment, termination notices will list
           misconduct as the reason. We will deem termination for
           cause.

     {¶ 18} Lastly, Section XXIV, Confidentiality of Test Results, provides:
           A. The laboratory may disclose laboratory test results only to
           the Human Resources staff or Clinical Director via the fax
           machine. The laboratory will call the Human Resources staff
           prior to faxing any drug test results to assure that test results
No. 18AP-234                                                                          8


             are received directly by one of the above named individuals.
             The laboratory will send a hard copy of all drug screen test
             results. Via the U.S. mail, to the []attention Human Resources
             Confidential and Personal.[] Any positive result which the
             Clinical Director or designee justifies by acceptable and
             appropriate medical or scientific documentation to account
             for the result as other than the unlawful use of a drug, harmful
             intoxicant or use/possession of alcohol while on duty/NATI
             property will be treated as a negative test result and may not
             be released for purposes of identifying illegal drug use. Test
             results will be protected under the provisions of the Privacy
             Act, 5 U.S.C. {522, et seq., and Section 503 (e) of the Act, and
             may not be released in violation of either Act. Only those
             records necessary for compliance with this Plan may be
             maintained. Upon receiving the hard copy via the U.S. mail,
             faxed copy will be maintained in the staff's medical file. It is a
             positive test result, which has been confirmed and verified
             through prescription verification with the assistance and
             cooperation of the Clinical Director or designee, the hard copy
             and justification will be placed in a sealed envelope marked
             []Confidential Drug Screen[] in the medical file. Any records
             of the Clinical Director or designee, including drug test
             results, may be released to the Executive Director, the
             Manager, or Human Resources for the purposes of auditing
             the activities of the Clinical Director or designee, except that
             the disclosure of the results of any audit may include
             personally identifying information of any employee. NATI
             Board of Directors or [its] respective committees may have
             access to drug test results if necessitated by
             grievance/appeals,       abuse/neglect       investigations    or
             litigations.

(Emphasis sic.)
      {¶ 19} 7. Relator was terminated effective August 24, 2015. The Employee Status
Change form indicates that relator was discharged but does not indicate a reason for the
discharge.
      {¶ 20} 8. Relator filed a request for TTD compensation beginning August 19, 2015
and continuing.
      {¶ 21} 9. Relator's request for TTD compensation was heard before a district
hearing officer ("DHO") on September 20, 2016. The DHO granted the motion based on
the medical evidence submitted by relator.
No. 18AP-234                                                                            9


      {¶ 22} 10. NATI filed an appeal and the matter was heard before a staff hearing
officer ("SHO") on December 1, 2016. Based on the evidence of relator's termination, the
SHO vacated the prior DHO order and denied relator's request for TTD compensation
finding that he had been terminated for violation of a written work rule of which he had
knowledge that such violation would result in his termination. Specifically, the SHO order
provides:
             It is the order of the Staff Hearing Officer that the Injured
             Worker's C-86 Motion, filed 07/18/2016, is denied.

             The Staff Hearing Officer denies temporary total disability
             compensation from 08/19/2015 through the date of hearing,
             as not substantiated by the evidence on file.

             The Staff Hearing Officer finds Injured Worker was
             terminated on 08/24/2015 for violation of the Employer's
             drug-free workplace policy after testing positive for marijuana
             from his random drug screen on 08/12/2015.

             The Staff Hearing Officer finds, as Injured Worker was
             terminated for violation of a written work rule for which
             Injured Worker had knowledge that violation of same would
             result in termination, that Injured Worker voluntarily
             abandoned his employment, as of the date of his termination
             on 08/24/2015.

             The Staff Hearing Officer additionally finds no evidence that
             Injured Worker has returned to the workforce in any capacity
             since his termination on 08/24/2015.

             The Staff Hearing Officer, accordingly, finds that the
             requested temporary total disability compensation from
             08/19/2015 through the present is denied. Any overpayment
             which occurs as a result of this order is declared such, and is
             to be recouped pursuant to R.C. 4123.511 (K).

      {¶ 23} 11. Relator's appeal was refused by order of the commission mailed
December 29, 2016.
      {¶ 24} 12. Thereafter, relator filed the instant mandamus action in this court.
No. 18AP-234                                                                               10


Conclusions of Law:
       {¶ 25} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 26} 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).
       {¶ 27} 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).
       {¶ 28} This case must be considered within the historical context in which the
voluntary abandonment doctrine has developed. In State ex rel. Jones & Laughlin Steel
Corp. v. Indus. Comm., 29 Ohio App.3d 145 (10th Dist.1985), Ernesto Rosado sustained
a work-related injury. At some point in time, Rosado voluntarily retired from his job with
Jones & Laughlin. Based on Rosado's voluntary retirement, Jones & Laughlin argued in
this court that Rosado should not be entitled to an award of TTD compensation. Because
Jones & Laughlin had failed to raise the issue before the commission, this court denied
Jones & Laughlin's request for a writ of mandamus ordering the commission to vacate its
award of TTD compensation; however, this court did address the issue of whether or not
an employee's voluntary retirement from the workforce for reasons unrelated to an
industrial injury precludes the payment of TTD compensation.
No. 18AP-234                                                                           11


       {¶ 29} After citing the syllabus rule of State ex rel. Ramirez v. Indus. Comm., 69
Ohio St.2d 630 (1982), this court stated:
              [T]he industrial injury must not only be such as to render the
              claimant unable to perform the functions of his former
              position of employment, but it also must prevent him from
              returning to that position.

Jones & Laughlin at 147. Thereafter, this court set forth the issue before it:

              Accordingly, the issue before us is whether a person who has
              voluntarily taken himself out of the work force and abandoned
              any future employment by voluntarily retiring is prevented
              from returning to his former position of employment by an
              industrial injury which renders him unable to perform the
              duties of such former position. This raises an issue of causal
              relationship.

Id. Ultimately, this court concluded as follows:

              [O]ne who has voluntarily retired and has no intention of ever
              returning to his former position of employment is not
              prevented from returning to that former position by an
              industrial injury which renders him unable to perform the
              duties of such former position of employment. A worker is
              prevented by an industrial injury from returning to his former
              position of employment where, but for the industrial injury,
              he would return to such former position of employment.
              However, where the employee has taken action that would
              preclude his returning to his former position of employment,
              even if he were able to do so, he is not entitled to continued
              temporary total disability benefits since it is his own action,
              rather than the industrial injury, which prevents his returning
              to such former position of employment. Such action would
              include such situations as the acceptance of another position,
              as well as voluntary retirement.

Id.
       {¶ 30} It was not until State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42
(1987), that the foundation for the voluntary abandonment doctrine as we know it today
began to take shape. In that case, Nelson C. Ashcraft was injured while working in the
scope of his employment as a welder and received TTD compensation for a period of time.
After his TTD compensation ceased, Ashcraft was incarcerated in West Virginia on a
No. 18AP-234                                                                          12


felony charge, subsequently convicted and imprisoned for first degree murder.
Thereafter, Ashcraft sought TTD compensation from the commission.
      {¶ 31} The commission ordered Ashcraft's motion suspended until he was released
from incarceration. As such, Ashcraft was precluded from receiving any TTD
compensation while incarcerated.
      {¶ 32} Ashcraft filed a mandamus action in this court seeking an order compelling
the commission to hear the application for TTD compensation. This court granted the
writ and the matter was appealed to the Supreme Court of Ohio.
      {¶ 33} After considering the purpose of TTD compensation and considering the
holding from Jones & Laughlin, the Ashcraft court, at 44, reiterated that the crux of the
decision in Jones & Laughlin was:
             The crux of this decision was the court's recognition of the
             two-part test to determine whether an injury qualified for
             temporary total disability compensation. The first part of this
             test focuses upon the disabling aspects of the injury, whereas
             the latter part determines if there are any factors, other than
             the injury, which would prevent the claimant from returning
             to his former position. The secondary consideration is a
             reflection of the underlying purpose of temporary total
             compensation: to compensate an injured employee for the
             loss of earnings which he incurs while the injury heals.

      {¶ 34} The Ashcraft court concluded that when a claimant has voluntarily removed
himself or herself from the workforce, he or she no longer suffers a loss of earnings
because he or she is no longer in a position to return to work. The court concluded that
this logic would apply whether the claimant's abandonment of his position was temporary
or permanent. Ultimately, the court concluded that Ashcraft's incarceration constituted a
factor which, independently of his previously recognized work-related injury, precluded
his receipt of TTD compensation. In so finding, the Ashcraft court stated, at 44:
             While a prisoner's incarceration would not normally be
             considered a "voluntary" act, one may be presumed to tacitly
             accept the consequences of his voluntary acts. When a person
             chooses to violate the law, he, by his own action, subjects
             himself to the punishment which the state has prescribed for
             that act.
No. 18AP-234                                                                            13


      {¶ 35} In State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44
(1988), the court again considered whether or not retirement should preclude the
payment of TTD compensation. In that case, Rollin Sharp sustained a low back injury in
the course of his employment with Rockwell International. TTD compensation was paid
until such time as Sharp was released to return to light-duty work. Ultimately, Sharp
retired from his employment but, thereafter, filed an application to reactivate his claim
and requested TTD compensation. Rockwell International argued that TTD
compensation should not be paid to Sharp because he had voluntarily retired from his
employment.
      {¶ 36} Ultimately, the Supreme Court found that TTD compensation was payable
based on the commission's finding that Sharp's retirement was causally related to his
industrial injury and, thus, was not voluntary. Specifically, the Rockwell court stated, at
46:
              Neither Ashcraft nor Jones & Laughlin states that any
              abandonment of employment precludes payment of
              temporary total disability compensation; they provide that
              only voluntary abandonment precludes it. While a distinction
              between voluntary and involuntary abandonment was
              contemplated, the terms until today have remained
              undefined. We find that a proper analysis must look beyond
              the mere volitional nature of a claimant's departure. The
              analysis must also consider the reason underlying the
              claimant's decision to retire. We hold that where a claimant's
              retirement is causally related to his injury, the retirement is
              not "voluntary" so as to preclude eligibility for temporary total
              disability compensation.

(Emphasis sic.)

      {¶ 37} In 1995, the Supreme Court decided the seminal case of State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995). In that case, Patrick
Longmore sustained an injury while in the course of his employment with Louisiana-
Pacific Corporation, a self-insured employer under Ohio's workers' compensation laws,
who began paying TTD compensation. Longmore was released to return to work on
December 17, 1990; however, he did not report to work nor did he call in on December 17,
18, or 19, 1990. In a letter dated December 20, 1990, Louisiana-Pacific notified Longmore
No. 18AP-234                                                                               14


that his failure to report to work for three consecutive days violated the company's policy
and he was terminated.
       {¶ 38} The commission awarded Longmore TTD compensation and this court
denied Louisiana-Pacific's request for a writ of mandamus.
       {¶ 39} On appeal, the Supreme Court granted the writ of mandamus after finding
that Longmore's termination did bar his receipt of TTD compensation. Specifically, the
Louisiana-Pacific court stated, at 403:
              Recognizing the parallels underlying incarceration and firing,
              we observed in State ex rel. Watts v. Schottenstein Stores
              Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202, 1204:

              "We agree that firing can constitute a voluntary abandonment
              of the former position of employment. Although not generally
              consented to, discharge, like incarceration, is often a
              consequence of behavior that the claimant willingly
              undertook, and may thus take on a voluntary character. * * *"

              Examining the present facts, we find it difficult to characterize
              as "involuntary" a termination generated by the claimant's
              violation of a written work rule or policy that (1) clearly
              defined the prohibited conduct, (2) had been previously
              identified by the employer as a dischargeable offense, and (3)
              was known or should have been known to the employee.
              Defining such an employment separation as voluntary
              comports with Ashcraft and Watts—i.e., that an employee
              must be presumed to intend the consequences of his or her
              voluntary acts.

       {¶ 40} Here, it is undisputed that relator was given a copy of NATI's drug-free
workplace policy. As such, relator knew or should have known that testing positive to
certain substances would result in discipline up to and including termination. Further, it
is undisputed that relator tested positive for marijuana and that he did not come forward
and report prior to testing. Marijuana is one of the substances listed in NATI's policy.
       {¶ 41} In arguing the commission abused its discretion, relator first asserts there
is no evidence that he was actually terminated because he tested positive for marijuana.
Relator points to Section XXII of the policy, which provides:
              In those cases, where substance testing results in the
              termination of employment, termination notices will list
No. 18AP-234                                                                             15


              misconduct as the reason. We will deem termination for
              cause.

       {¶ 42} A review of the termination form itself indicates that no reason is given for
the discharge.   In fact, there is no space on the form where a specific reason for
termination can be provided other than the checking of specific boxes. Failing a drug test
is not a reason listed on the termination form. Relator asserts that, because NATI did not
list "misconduct" as the reason for which he was discharged, it is unclear that he was
actually discharged because he tested positive for marijuana.
       {¶ 43} As indicated in the findings of fact, NATI has gone to great lengths to ensure
the privacy of its employees. NATI's drug-free workplace policy provides numerous
expressed provisions to protect the privacy of any of its employees or applicants for
employment who test positive for certain substances. NATI's policy makes it clear the
positive drug results would not become a part of relator's personnel file and that his
positive test result would not be disclosed unless disclosure was required by law. As such,
it is clear that NATI would never list a positive drug test as a reason for discharging an
employee so that information would not be disclosed unless required. Here, it is clear
that the reason NATI indicated that "misconduct" would be listed as the reason for
termination was to protect employees, including relator, from inappropriate disclosure of
this information to anyone else. The magistrate does not find relator's argument that the
word "misconduct" must be listed on the discharge form in order to substantiate that his
termination was actually due to his having tested positive for marijuana. The magistrate
simply finds that relator's argument lacks merit.
       {¶ 44} Relator next challenges the commission's order asserting the commission
had no basis on which to find that relator had abandoned the entire labor market. Counsel
for relator indicates that because relator was not present at the hearing, the commission
could not have taken testimony from relator as to his efforts to secure other employment.
For the reasons that follow, this argument fails as well.
       {¶ 45} The magistrate finds the commission did not make any finding that relator
had voluntarily abandoned the entire workforce. Instead, after finding that relator had
voluntarily abandoned his former position of employment after testing positive for
No. 18AP-234                                                                           16


marijuana, the SHO found there was "no evidence that [relator] has returned to the
workforce in any capacity since his termination on 08/24/2015."
      {¶ 46} Based on the evidence or lack of evidence in the record, this finding is
accurate. TTD compensation is designed to compensate an injured worker for lost wages
where the allowed condition in the claim has precluded a return to the workforce. Having
concluded that relator voluntarily abandoned his employment with NATI on August 24,
2015, the commission could not award relator TTD compensation unless relator
presented evidence that he had returned to some employment and, as a result of the
allowed conditions in his claim, was now unable to work. Having failed to present that
evidence, relator did not meet his burden of proving that he was entitled to TTD
compensation.
      {¶ 47} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion when it denied his request for TTD
compensation, and 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).
