[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. James v. Wal-Mart Stores, Inc., Slip Opinion No. 2017-Ohio-1426.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-1426
   THE STATE EX REL. JAMES, APPELLEE/CROSS-APPELLANT, v. WAL-MART
               STORES, INC., ET AL., APPELLANTS/CROSS-APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. James v. Wal-Mart Stores, Inc., Slip Opinion No.
                                     2017-Ohio-1426.]
Workers’     compensation—Temporary-total-disability               compensation—Evidence
        supported Industrial Commission’s decision to deny temporary-total-
        disability compensation—Claimant was not working when the alleged
        period of disability began—Judgment of the court of appeals reversed and
        writ denied.
    (No. 2014-1157—Submitted February 7, 2017—Decided April 20, 2017.)
       APPEAL from the Court of Appeals for Franklin County, No. 13AP-3,
                                      2014-Ohio-2279.
                               _______________________
                              SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellants/cross-appellees, Wal-Mart Stores, Inc., and the Industrial
Commission, appeal from the judgment of the Tenth District Court of Appeals that
granted a limited writ of mandamus ordering the commission to vacate its order
denying temporary-total-disability benefits to appellee/cross-appellant, Norman
James Jr., and to further address his termination from employment and his
eligibility for temporary-total-disability compensation.
       {¶ 2} Because the evidence supported the commission’s decision to deny
temporary-total-disability compensation, we reverse the judgment of the court of
appeals and deny the writ.
                           I. Facts and Procedural History
                             A. Accident and Employment
       {¶ 3} James was injured on November 30, 2004, while employed by Wal-
Mart. The injury fractured a surgical screw in his neck from a previous operation
not related to his employment. His workers’ compensation claim was allowed for
neck spasm and mechanical complication of internal orthopedic device and was
later amended to allow the additional condition of aggravation of preexisting
cervical canal stenosis.
       {¶ 4} James returned to work at Wal-Mart in September 2005, after being
released by his doctor with no restrictions. He quit his job at Wal-Mart on April
20, 2007. He briefly worked for Petco and later got a job with a company that is
referred to in the record as Casper Transport, Inc., and as Casper Service
Automotive (“Casper”). Casper fired him on November 16, 2007, for excessive
absenteeism, and he has not worked since that time. On June 1, 2007, James was
involved in an auto accident unrelated to his employment.
         B. First Request for Temporary-Total-Disability Compensation
       {¶ 5} In January 2009, James filed a motion requesting temporary-total-
disability benefits beginning November 17, 2007, the day after he was fired from




                                          2
                               January Term, 2017




Casper. Following a hearing, the commission denied benefits for the period from
November 17, 2007, through September 29, 2009, the date of the commission
hearing. The commission concluded that the medical evidence in the record was
inconsistent and equivocal and that it raised questions about the intervening auto
accident in June 2007. The commission declined to address Wal-Mart’s argument
that James had voluntarily abandoned his job when he was fired by Casper because,
regardless of his employment status after leaving Casper, the record contained no
medical evidence to support a finding of temporary total disability.
        C. Second Request for Temporary Total Disability Compensation
       {¶ 6} In October 2009, James again filed for temporary-total-disability
benefits. A staff hearing officer heard the request on April 15, 2010. The hearing
officer concluded that based on the commission’s previous order, the request for
benefits from April 1, 2009, through September 29, 2009, was barred by res
judicata.
       {¶ 7} The hearing officer also denied benefits for the period from
September 30, 2009, through April 15, 2010, on the basis that James voluntarily
abandoned his former position with Casper and was not employed when the
disability recurred, citing State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376,
732 N.E.2d 355 (2000), State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, and State ex rel. Eckerly v. Indus.
Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, 838 N.E.2d 97.
       {¶ 8} The commission refused further appeal.
                        D. Original Action in Mandamus
       {¶ 9} James filed an original action in mandamus in the court of appeals
alleging that the commission abused its discretion when it determined that he had
voluntarily abandoned his position with Wal-Mart and was ineligible for
temporary-total-disability compensation from September 30, 2009, through April
15, 2010.




                                         3
                                 SUPREME COURT OF OHIO




        {¶ 10} A magistrate appointed to hear the case issued a decision
recommending that the court deny the writ. The magistrate concluded that the
evidence supported the commission’s finding that James voluntarily quit his job
with Wal-Mart and further concluded that there was no evidence in the record that
James left his job with Casper due to the allowed conditions in his claim. The
magistrate also concluded that the commission did not abuse its discretion when it
denied benefits on the basis that James was not working at the time he became
disabled. The magistrate rejected James’s argument that State ex rel. Estes Express
Lines v. Indus. Comm., 10th Dist. Franklin No. 08AP-569, 2009-Ohio-2148, a case
in which the claimant was laid off, applied to the facts of this case.
        {¶ 11} James filed objections to the magistrate’s report. In a split decision,
the court of appeals determined that the commission did not abuse its discretion in
finding that James had voluntarily abandoned his employment with Wal-Mart, but
the appellate court sustained, in part, James’s objection to the magistrate’s
conclusion that Estes Express did not apply. The court granted a limited writ
vacating the denial of temporary-total-disability benefits and returning the case to
the commission to further address the end of James’s employment at Casper.
        {¶ 12} The dissenting judge agreed with the affirmance of the commission’s
finding that James had voluntarily abandoned his employment with Wal-Mart, but
she also stated that there was no evidence that James’s departure from Casper was
due to the allowed conditions in his claim and that she would deny the writ of
mandamus.
        {¶ 13} This matter is before the court on the direct appeals filed by Wal-
Mart and the commission and the cross-appeal of James.1




1
  The court referred this case to mediation and stayed briefing. After mediation was unsuccessful,
the case was returned to the regular docket and briefing commenced.




                                                4
                                January Term, 2017




                                II. Legal Analysis
                    A. Standard of Review in Mandamus Cases
       {¶ 14} Mandamus is an extraordinary remedy granted when a relator
establishes a clear legal right to the relief requested and a clear legal duty on the
part of the commission to provide such relief. State ex rel. Rouch v. Eagle Tool &
Machine Co., 26 Ohio St.3d 197, 198, 498 N.E.2d 464 (1986). This requires the
relator to demonstrate that the commission abused its discretion by entering an
order that was not supported by any evidence in the record. State ex rel. Avalon
Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, 846
N.E.2d 1245, ¶ 9.
              B. Eligibility for Temporary-Total-Disability Benefits
       {¶ 15} To be eligible for temporary-total-disability benefits, an injured
worker must demonstrate (1) that he or she is medically unable to return to the
duties of the former position and (2) that the industrial injury is the reason for the
loss of earnings. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d
25, 2002-Ohio-5305, 776 N.E.2d 51, ¶ 35. The burden is on the claimant to prove
these elements with affirmative evidence. State ex rel. Yellow Freight Sys., Inc. v.
Indus. Comm., 81 Ohio St.3d 56, 57, 689 N.E.2d 30 (1998).
       {¶ 16} If an injured worker does not return to his or her former position of
employment as a result of the worker’s own actions rather than the industrial injury,
the worker is considered to have voluntarily abandoned his or her employment and
is no longer eligible for temporary-total-disability compensation. Baker, 89 Ohio
St.3d at 380-381, 732 N.E.2d 355. However, a claimant who voluntarily abandoned
employment but reenters the workforce will be eligible to receive temporary-total-
disability compensation if, due to the original industrial injury, the claimant
becomes temporarily and totally disabled while working at the new job. McCoy at
syllabus.




                                          5
                              SUPREME COURT OF OHIO




        {¶ 17} In light of these legal principles, we must determine whether there
was some evidence in the record supporting the commission’s finding that James
voluntarily abandoned his job with Wal-Mart and its decision denying James’s
request for temporary-total-disability compensation for the period from September
30, 2009, through April 15, 2010.
                  C. Status of James’s Departure from Wal-Mart
        {¶ 18} There is no dispute that James quit his job at Wal-Mart in April 2007.
In his brief, he concedes that he did so in order to seek other employment. James
did not submit to the commission any affirmative evidence demonstrating that the
allowed conditions of his claim contributed to his decision to leave Wal-Mart.
Thus, he failed to meet his burden of proving that his industrial injury was the cause
of his lost earnings. See Yellow Freight Sys., 81 Ohio St.3d at 57, 689 N.E.2d 30.
Consequently, the commission did not abuse its discretion when it characterized
James’s departure from Wal-Mart as voluntary.
   D. Evidence Supporting the Denial of Temporary-Total-Disability Benefits
        {¶ 19} Wal-Mart maintains that the hearing officer properly applied
Eckerly, 105 Ohio St.3d 428, 2005-Ohio-2587, 838 N.E.2d 97, as authority to deny
benefits, and that Estes Express, 10th Dist. Franklin No. 08AP-569, 2009-Ohio-
2148, is distinguishable. According to Wal-Mart, James failed to meet his burden
under McCoy, 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, because he was
not working when the alleged period of disability began and he did not produce
evidence that he lost his job with Casper for reasons related to the allowed
conditions in his claim. We agree.
        {¶ 20} Eckerly involved a claimant who was fired from his job for
unexcused absenteeism three months after his workplace injury occurred. The
commission denied his claim for temporary-total-disability compensation because
there was no evidence in the record that he was employed. We affirmed, reasoning
that a key tenet in temporary-total-disability cases is that “the industrial injury must




                                           6
                                  January Term, 2017




remove the claimant from his or her job. This requirement obviously cannot be
satisfied if [the] claimant had no job at the time of the alleged disability.”
(Emphasis sic.) Eckerly at ¶ 9.
       {¶ 21} Estes Express involved an injured worker who was laid off by his
employer. At the same time, the worker underwent a medical procedure related to
his industrial injury. The court of appeals concluded that although no longer
employed, the injured worker remained eligible for temporary-total-disability
compensation because his departure was initiated by his employer and because the
worker had submitted medical evidence substantiating that his disability existed at
the time of his layoff. Estes Express at ¶ 14-16, 19-21.
       {¶ 22} Here, the court of appeals concluded that Estes Express “could apply
to this situation, but requires a factual development of the reasons [the claimant’s]
employment with Casper Automotive ended.” 2014-Ohio-2279, at ¶ 9. We do not
agree. The record here demonstrates that like the claimant in Eckerly, James was
terminated from Casper for excessive absenteeism. He offered no evidence that his
workplace injury caused the absences for which Casper terminated him, and there
is no evidence that he was working when he later claimed to be disabled.
Consequently, the commission did not abuse its discretion when it applied Eckerly
and denied temporary-total-disability compensation. There is no need to further
consider the facts surrounding James’s termination of employment from Casper.
       {¶ 23} Therefore, we reverse the judgment of the court of appeals to the
extent that the court issued a limited writ of mandamus vacating the denial of
temporary-total-disability compensation, and we affirm the remainder of the
appellate court’s judgment.
                                                           Judgment affirmed in part
                                                                and reversed in part,
                                                                    and writ denied.




                                          7
                              SUPREME COURT OF OHIO




          O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE, JJ.,
concur.
          O’CONNOR, C.J., not participating.
                                _________________
          Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A.
Bowman, for appellee/cross-appellant.
          Roetzel & Andress, Douglas E. Spiker, and Timothy J. Webster, for
appellant/cross-appellee Wal-Mart Stores, Inc.
          Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellant/cross-appellee Industrial Commission.
                                _________________




                                          8
