[Cite as State ex rel. German v. Provider Servs. Holdings, L.L.C., 2014-Ohio-3336.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio ex rel. Dana M. German,                   :

                 Relator,                               :

v.                                                      :
                                                                           No. 13AP-149
Provider Services Holdings, LLC,                        :
Steven Buehrer, Administrator[,]                                    (REGULAR CALENDAR)
Bureau of Workers' Compensation[,]                      :
and The Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :



                                          D E C I S I O N

                                       Rendered on July 31, 2014


                 Dworken & Bernstein Co., L.P.A., Jonathan T. Stender, and
                 Jo A. Tatarko, for relator.

                 Andrews & Wyatt, LLC, Thomas R. Wyatt, and Jerry P.
                 Cline, for respondent Provider Services Holdings, LLC.

                 Michael DeWine, Attorney General, and Stephen D. Plymale,
                 for respondent Industrial Commission of Ohio.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

SADLER, P.J.
        {¶ 1} In this original action, relator, Dana M. German, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying her request for temporary total disability ("TTD") compensation and to
enter an order granting the compensation.
No. 13AP-149                                                                              2


       {¶ 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 concluded that
the commission did not abuse its discretion in determining that relator voluntarily
abandoned her employment with both Provider Services Holdings, LLC ("PSH") and
General Aluminum ("General").       Accordingly, the magistrate recommended that this
court deny the requested writ of mandamus.
I. RELATOR'S OBJECTIONS
       {¶ 3} Relator presents the following objections to the magistrate's decision:
               [I.] The Magistrate ignores clear error in the SHO order that
               referenced a "third job" from which Relator departed.

               [II.] The Magistrate failed to address Relator's arguments
               regarding the Staff Hearing Officer shifting the burden to
               Relator to disprove voluntary abandonment.

               [III.] The Magistrate erred in essentially supplementing the
               SHO's decision by explaining and justifying her decision.

II. DISCUSSION
       A. Background
       {¶ 4} Relator injured her lower back while cooking chicken in her employment as
a dietary cook with the Geneva Pointe facility nursing home owned and operated by
respondent PSH in Geneva, Ohio. Her industrial claim was allowed for a lumbar sprain.
Following her injury, relator returned to work at PSH in a light-duty position with a five-
pound lifting restriction. Relator's duties after her injury consisted primarily of standing
at a "steam table" serving the meal to residents of the nursing home and washing dishes.
(German Depo., 42.)
       {¶ 5} Relator resigned from PSH in March 2009. Relator acknowledged at her
deposition that she was physically able to work within her restrictions but stated she
resigned, both because she was getting married and relocating to Ravenna and because
she suffered pain while performing her job duties. After relocating, relator obtained
employment with General where her duties included buffing and sanding small car parts
weighing "a couple pounds." (German Depo., 37.) According to relator, when General put
No. 13AP-149                                                                               3


into place mandatory 12-hour shifts, she decided to resign from her position with General
because, due to lower back pain, she was unable to stand longer than eight hours.
According to the medical records of relator's treating physician, Todd S. Hochman, M.D.,
relator "got laid off" from General. (Joint Stipulation of Evidence, 2.) Relator testified
that, within a month of her resignation from General, she separated from her husband
and relocated to Jefferson to stay with her daughter. Relator has not worked, nor sought
employment, since her departure from General.
       B. Standard for Mandamus
       {¶ 6} To obtain a writ of mandamus, a relator must demonstrate that it has a clear
legal right to the relief sought and that the commission has a clear legal duty to provide
such relief. State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-
541, ¶ 14. "To show the clear legal right, relator must demonstrate that the commission
abused its discretion by entering an order unsupported by some evidence in the record."
State ex rel. Hughes v. Goodyear Tire & Rubber Co., 26 Ohio St.3d 71, 73 (1986). When
the record contains "some evidence" to support the commissions factual findings, a court
may not disturb the commission's findings in mandamus. State ex rel. Fiber-Lite Corp. v.
Indus. Comm., 36 Ohio St.3d 202 (1988), syllabus. " 'Where a commission order is
adequately explained and based on some evidence, * * * the order will not be disturbed as
manifesting an abuse of discretion.' " State ex rel Avalon Precision Casting Co. v. Indus.
Comm., 109 Ohio St.3d 237, 2006-Ohio-2287,¶ 9, quoting State ex rel. Mobley v. Indus.
Comm., 78 Ohio St.3d 579, 584 (1997).
       C. First and Third Objections
       {¶ 7} Because relator's first and third objections are interrelated, we address them
together. At issue in both objections is the magistrate's statement that "the SHO's order
refers to a 'departure from the third job' when only two employers are involved here.
Apparently, the SHO counted relator's return to work at PSH in a light-duty capacity as a
job separate from the job she worked prior to her injury." (Magistrate's Decision, ¶ 49.)
In her first objection, relator asserts that, because relator was employed with only two
employers, the magistrate's above statement ignores clear error in the Staff Hearing
Officer's ("SHO") decision which refers to a third job. In her third objection, relator takes
issue with the same statement of the magistrate arguing that the magistrate improperly
No. 13AP-149                                                                            4


supplemented the commission's order by adding "context and content" to the
commission's decision. (Relator's Objections to Magistrate's Decision, 8.)
      {¶ 8} The record is clear that relator held three different positions with two
employers. While employed with PSH, prior to her injury, relator held a position as a
cook, and, upon her return from her injury, she held a light-duty position in which she
primarily served meals and washed dishes. After her resignation from PSH, relator
obtained employment with General in which she buffed and sanded small car parts
weighing approximately two pounds. Thus, we agree with the magistrate that no clear
error occurred when the SHO referred to relator holding three distinct positions because
such determination is consistent with the evidence in the record.
      {¶ 9} Moreover, the magistrate did not impermissibly supplement the
commission's order. Rather, the magistrate reviewed the facts and determined that the
commission's factual findings were consistent with the evidence presented. What relator
submits is an impermissible addition of content to the commission's order, we find to be
an explanation of why the commission's determination that relator held three jobs was
supported by some evidence and did not constitute an abuse of discretion.
      {¶ 10} Accordingly, relator's first and third objections are overruled.
      D. Second Objection
      {¶ 11} In her second objection, relator asserts the magistrate failed to address her
argument that the commission improperly shifted the burden of demonstrating voluntary
abandonment onto relator. We disagree.
      {¶ 12} The magistrate recapitulated relator's argument of improper burden
shifting when he stated in his opinion, "relator argues that the commission abused its
discretion by requiring that she 'produce evidence that she was advised by her doctor to
leave her employment.' " (Magistrate's Decision, 14, quoting Relator's Brief, 19.) The
magistrate's decision accurately addresses the law applicable to voluntary abandonment
and discusses State ex rel. Mid-Ohio Wood Prods., Inc. v. Indus. Comm., 10th Dist. No.
07AP-478, 2008-Ohio-2453, which relator asserts stands for the propositions that a
claimant neither has the burden to disprove voluntary abandonment nor is required to
provide objective medical evidence corroborating her testimony regarding her motivation
for abandoning her employment.
No. 13AP-149                                                                            5


       {¶ 13} In Mid-Ohio, we determined it to be well-settled law that a claimant does
not have a burden of disproving voluntary abandonment of a former position of
employment to show entitlement to TTD compensation. In so doing, we stated:
               [W]e find nothing * * * that holds that there must be objective
               medical evidence corroborating a claimant's testimony
               regarding his motivation for abandonment of his
               employment. On the contrary, as noted hereinabove, the
               commission must make a factual determination, based upon
               all of the surrounding circumstances, whether the motivation
               for the claimant's departure was, in whole or in part, the
               allowed conditions.

Id. at ¶ 18.
       {¶ 14} Though we agree with relator's reliance on Mid-Ohio for the above
propositions, upon careful review of the record, we find the commission's decision is
devoid of any indication that the commission abused its discretion by improperly shifting
the burden of demonstrating voluntary abandonment onto relator by requiring her to
produce objective medical evidence corroborating her testimony that she left her
employment due to the allowed conditions.
       {¶ 15} On the contrary, as noted above, the commission was required to make a
"factual determination, based upon all of the surrounding circumstances, whether the
motivation for the claimant's departure was, in whole or in part, the allowed conditions
for which the claimant has already discharged his burden of proof." Id. at ¶ 18. Here, as
recognized by the magistrate, the commission, as the exclusive evaluator of the weight
and credibility of the evidence, based upon the surrounding circumstances, made such a
factual determination. Accordingly, in light of relator's testimony that she resigned her
employment with PSH because she was getting married and relocating and the office
notes of Dr. Hochman which indicate that relator was laid off from General, the
commission did not abuse its discretion in determining that relator's abandonment of
both her employment with PSH and General were motivated by circumstances
independent of the allowed condition.
       {¶ 16} Relator next takes issue with the magistrate's statement that "[p]resumably,
if relator can show that her departure from employment at General was injury induced,
she can preserve her eligibility for TTD compensation that was undisputedly reestablished
No. 13AP-149                                                                              6


during the time of her employment at General." (Magistrate's Decision, ¶ 72.) According
to relator, based on the above statement, the magistrate improperly shifted the burden of
disproving voluntary abandonment onto relator.
       {¶ 17} A claimant carries the initial burden to " 'persuade the commission that
there is a proximate causal relationship between his or her work-connected injuries and
disability, and to produce medical evidence to this effect.' " Id. at ¶ 17, quoting State ex
rel. College of Wooster v. Gee, 10th Dist. No. 03AP-389, 2004-Ohio-1898, ¶ 39. Once a
claimant establishes a prima facie causal connection based upon medical evidence, " 'the
burden should then properly fall upon the employer to raise and produce evidence on its
claim that other circumstances independent of the claimant's allowed conditions caused
him to abandon the job market.' " Id., quoting Gee at ¶ 39. Contrary to relator's
assertions otherwise, the above statement in the magistrate's decision does not shift the
burden on relator to disprove voluntary abandonment. Rather, it recognizes relator's
initial burden to demonstrate that her abandonment of her employment is causally
related to her allowed condition.
       {¶ 18} Finally, relator argues for the first time here that the commission abused its
discretion by not stating that the employer met its burden to demonstrate voluntary
abandonment. Because relator failed to raise this issue before the magistrate, relator has
waived this argument. State ex rel. Hackenburg v. Indus. Comm., 10th Dist. No. 06AP-
938, 2007-Ohio-4181, ¶ 4. Even so, our review of the record reveals the commission's
decision states "[t]he Hearing Officer finds that the Injured Worker's departure from the
third job was unrelated to the allowed injury and was voluntary. * * * In these
circumstances the Injured Worker is not eligible to receive temporary total disability
compensation."    (Emphasis added.)      (Record of Proceedings, 2.)     Thus, contrary to
relator's assertions otherwise, because the commission determined that PSH met its
burden to demonstrate voluntary abandonment, the commission did not abuse its
discretion.
       {¶ 19} Accordingly, having addressed each of relator's arguments, we overrule
relator's second objection to the magistrate's decision.
No. 13AP-149                                                                              7


III. CONCLUSION
       {¶ 20} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We, therefore, overrule
relator's objections to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
                                                                     Objections overruled;
                                                                writ of mandamus denied.

                            TYACK and O'GRADY, JJ., concur.
                        _____________________________
No. 13AP-149                                                                     8


                                    APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State of Ohio ex rel. Dana M. German,       :

               Relator,                     :

v.                                          :                  No. 13AP-149

Provider Services Holdings, LLC,            :               (REGULAR CALENDAR)
Steven Buehrer, Administrator[,]
Bureau of Workers' Compensation[,]          :
and The Industrial Commission of Ohio,
                                            :
               Respondents.
                                            :



                          MAGISTRATE'S DECISION

                               Rendered on March 27, 2014


               Dworken & Bernstein Co, L.P.A., Jonathan T. Stender and
               Jo A. Tatarko, for relator.

               Andrews & Wyatt, LLC, Thomas R. Wyatt and Jerry P.
               Cline, for respondent Provider Services Holdings, LLC.

               Michael DeWine, Attorney General, and Stephen D. Plymale,
               for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

      {¶21} In this original action, relator, Dana M. German, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its order denying her request for temporary total disability ("TTD")
No. 13AP-149                                                                           9


compensation beginning May 25, 2011, and to enter an order granting the
compensation.
Findings of Fact:
        {¶22} 1. On October 20, 2008, relator injured her lower back while employed as
a dietary cook/aide at a nursing home owned and operated by respondent Provider
Services Holdings, LLC ("PSH"), a state-fund employer. The nursing home is known as
the Geneva Pointe facility which is located in Geneva, Ohio. On that date, relator was
injured while lifting a strainer filled with chicken from a sink.
        {¶23} 2. The industrial claim (No. 08-884141) was initially allowed for "lumbar
sprain."
        {¶24} 3. Following her injury, relator returned to work in a light-duty capacity.
According to her deposition testimony in an action filed in the Ashtabula County Court
of Common Pleas, relator had a five-pound lifting restriction.
        {¶25} 4. Relator continued to work at the Geneva Pointe facility until March
2009 when she gave her employer a two-week notice that she was resigning her
employment.
        {¶26} 5. During her deposition, under cross-examination by PSH counsel,
relator testified as to her motivation for resigning her employment at the Geneva Pointe
facility:
               Q. And then under what circumstances did you leave, how
               did you leave Geneva Pointe?

               A. I went to give my two week notice, they wouldn't accept it
               because they said it was a three week notice, they said it was
               too soon and then I was moving to Ravenna and I got
               married.

               Q. So you gave them their two week notice that you were
               resigning?

               A. Yes.

               Q. And because you were getting married and you were
               moving and you couldn't work there anymore?

               A. Correct.
No. 13AP-149                                                                          10


               Q. You could work, you were physically capable of working
               but you just had to move?

               A. Well, it was -- you know, I didn't go to work every day as
               well as I did prior to the accident. I mean, I had pain and it
               was hard to go in there and constantly have somebody else
               doing half of the job for me. Plus I was also leaving and going
               to Ravenna. I just felt that I probably made it harder in the
               kitchen than…

               Q. But at the very least, when you resigned you were working
               within your restrictions and you were able to physically do
               the work every day?

               A. Yes.

(Tr. 35-36.)
       {¶27} 6. After her marriage and move to Ravenna, Ohio, relator found
employment with General Aluminum ("General") at its plant.             The job at General
required her to buff car parts. Relator worked at General from September 21, 2009 to
March 24, 2010. During her deposition, relator described her job at General:
               Q. Physically what was involved in doing that?

               A. Picking up a part and using a little sander and buffing the
               two spots on the part, and putting it in a crate or on the side.

               Q. How much did the part weigh?

               A. Maybe a couple pounds was all.

(Tr. 37.)
       {¶28} 7. During her deposition, relator testified as to why she left her job at
General:
               Q. And you think you worked there for a couple months?

               A. A few months, maybe, maybe a little bit longer, I don't
               really recall. I do recall working eight hour shifts and they
               were putting in mandatory 12 hour shifts and it was way too
               much for me.

               Q. Way too much in what regard?
No. 13AP-149                                                                      11


               A. I couldn't do the work. I mean, I couldn't stand there any
               longer than eight hours a day.

               Q. Physically what were your problems that you were having
               that you couldn't work more than eight hours a day?

               A. Lower back pain and my right leg hurt so much.

               ***

               Q. [A]t [G]eneral Aluminum when you were polishing the
               part how much did the part weigh?

               A. Like one to two pounds.

               Q. Was there any other lifting involved in your job at General
               Aluminum?

               A. No.

               Q. Did you ever have to lift a crate pull [sic] full of parts or
               anything like that?

               A. No.

               Q. And then how many months did you work at General
               Aluminum?

               A. I was only there a few months.

               Q. And then you decided physically you couldn't do the job?

               A. Correct.

               Q. Did somebody take you off work or did you just decide
               that on your own?

               A. I just decided that on my own.

               Q. Did you ever talk to Dr. Hochman about the fact that you
               couldn't work anymore?

               A. I -- I may have told him that I didn't work anymore. I'm
               sure I did, I'm sure I did. I don't really recall.

(Tr. 37-38, 43-44.)
No. 13AP-149                                                                         12


      {¶29} 8. The stipulated record contains medical records documenting the visits
relator made to her treating physician Todd S. Hochman, M.D. The records document a
January 12, 2010 visit and end with a February 7, 2012 visit. Generally, relator made
monthly visits to Dr. Hochman during this two-year period.
      {¶30} 9. Dr. Hochman's office note regarding relator's June 15, 2010 visit
conflicts with relator's deposition testimony as to the circumstances of her departure
from General:
               She is currently out of work as she was terminated by her
               employer. She is having significant difficulty findings [sic]
               work within her restrictions. She is doing the best she can.

      {¶31} 10. Relator and her husband separated one or two months after she left
General.
      {¶32} 11. During her deposition, relator further testified as to the circumstances
of her job departure at General and that she did not look for other work after that job
departure:
               Q. And then when you were working at General Aluminum
               were you still having pain in your back and down into your
               right leg?

               A. Yes[.]

               Q. When you left General Aluminum was the pain in your
               low back and your leg, was it getting better or worse than it
               was when you left Geneva Pointe?

               A. I'd say it was probably about the same.

               Q. And I think I understand and I'm sorry to bring this up, at
               some point that marriage ended?

               A. Yes.

               Q. When did you and your husband separate?

               A. I left there in, it was around either the first or second week
               of April, I'm going to say, 010 [sic].

               Q. So -
No. 13AP-149                                                                  13


               A. Wait a minute. Let me think.

               Q. Yeah, think, I don't want you to …

               A. No, it was around the end of March or April, beginning of
               April of [']09.

               Q. Were you still working at General Aluminum?

               A. No.

               Q. Did you leave General Aluminum before or after you
               separated?

               A. Before.

               Q. How much time was between when you left General
               Aluminum and when you and your husband separated?

               A. A month or two.

               Q. When you separated were you working anywhere else?

               A. No, I was not.

               Q. After you separated did you move back?

               A. I moved to Jefferson and stayed with my daughter.

               Q. When you moved back to Jefferson did you try to find a
               job?

               A. No, I did not.

               Q. Have you ever worked since you left General Aluminum?

               A. No, I have not.

               Q. Have you tried to find work since you left General
               Aluminum?

               A. No, I haven't.

               Q. Between when you left General Aluminum and ultimately
               when you had to have more medical treatment did you try to
               find work anywhere?
No. 13AP-149                                                                     14


               A. No, I did not.

               Q. And why was that?

               A. I was in an awful lot of pain by that point and my daughter
               was taking care of me and I don't believe I could have done a
               job.

(Tr. 46-48.)
      {¶33} 12. Following a January 4, 2011 hearing, a staff hearing officer ("SHO")
issued an order additionally allowing the claim for "substantial aggravation of pre-
existing lumbar spinal canal stenosis at L3-4." The SHO's order explains:
               This finding is based on the 12/03/2008 office notes of Dr.
               Itani and the 05/17/2010 report of Dr. Hochman.

               The Injured Worker underwent back surgery on 08/30/2007
               and did well post operatively to the extent that she ultimately
               return to work without restrictions. She injured her back
               again on 10/20/2008 when she lifted a heavy pot of chicken
               and experienced a significant worsening of symptoms. Based
               on the 05/17/2010 report of Dr. Hochman who found
               "disease progression" when "comparing the MRI studies,"
               the Staff Hearing Officer grants the request for additional
               allowance.

      {¶34} 13. On May 25, 2011, relator visited Dr. Hochman. In his office note of
that date, Dr. Hochman states:
               Patient returns today and we discussed several things. The
               claim has been recognized for clinically symptomatic lumbar
               spinal canal stenosis (724.02). She has been seen by Dr.
               Itani, the neurosurgeon. Dr. Itani has requested the
               decompression at L3 with fixation of L3 and L4. We
               submitted the C-9 requesting the surgery. * * * She does have
               quite a bit of pain into the right lower extremity and also
               pain into the left foot. * * * She continues with the tramadol
               for the pain. She is taking the maximum amount per day but
               there are no signs of misuse, abuse, diversion, or multi-
               sourcing. The medications help her to function through the
               pain.

      {¶35} 14. On a C-84 dated May 25, 2011, Dr. Hochman certified TTD from
May 25, 2011 to an estimated return-to-work date of September 1, 2011.
No. 13AP-149                                                                           15


      {¶36} 15. On a Physician's Report of Work Ability ("MEDCO-14") dated May 25,
2011, Dr. Hochman certified TTD from May 25, 2011 to September 1, 2011.
      {¶37} 16. On August 11, 2011, relator underwent lower back surgery performed
by Abdul L. Itani, M.D. In his operative report, Dr. Itani describes the operations:
               [One] Partial removal of retained fixation at L4-L5.

               [Two] Decompressive laminectomy, L3.

               [Three] Fixation L3 and L4 using screws and rod
               navigational system.

               [Four] Posterior lumbar interbody fusion at L3-L4.

      {¶38} 17. On November 9, 2011, relator moved for TTD compensation beginning
May 25, 2011. In support, relator submitted C-84 and MEDCO-14 reports from Dr.
Hochman and the August 11, 2011 operative report of Dr. Itani.
      {¶39} 18. Following a January 19, 2012 hearing, a district hearing officer
("DHO") issued an order granting TTD compensation beginning May 25, 2011. The
DHO's order explains:
               The Employer's request to deny temporary total disability
               compensation under the proposition that Injured Worker
               abandoned the workforce prior to the requested temporary
               total disability period, was rejected, based on Injured
               Worker's testimony that the only reason she stopped
               working was because of severe limitations from this injury
               and a knee condition which did not allow her to work, and
               that but for these restrictions she enjoyed and would have
               liked to continue working, but had no choice other than to
               pursue disability.

      {¶40} 19. PSH administratively appealed the DHO's order of January 19, 2012.
      {¶41} 20. Following a March 27, 2012 hearing, an SHO issued an order that
vacates the DHO's order of January 19, 2012 and denies TTD compensation beginning
May 25, 2011. The SHO's order explains:
               The request for payment of temporary total disability
               compensation for the period of 05/25/2011 through
               1/19/2012 is denied. Following the instant injury the Injured
               Worker returned to work in a light-duty position. She
               resigned from this position in March 2009. The Injured
No. 13AP-149                                                                          16


                Worker testified that she resigned due to a combination of
                injury related and personal factors. There is no
                contemporaneous proof from a physician that she left the job
                due to physical difficulties stemming from the allowed
                conditions. After relocating due to an upcoming marriage
                she began working for a temporary agency. She worked in
                this position from 09/21/2009 through 03/24/2010. The
                Injured Worker testified that she resigned from the position
                [due] to injury related symptomatology. The 06/15/2010
                records of Todd Hochman, M.D. indicate that she was
                terminated. There is no contemporaneous evidence from a
                physician that she left this job due to physical difficulties
                stemming from the allowed conditions. This resignation also
                coincided with the Injured Worker's marital separation and
                relocation. The Injured Worker has not worked or sought
                employment since 03/24/2010. She is currently receiving
                Social Security [D]isability benefits. The Hearing Officer
                finds that the Injured Worker has never been released to
                return to her former position of employment since the date
                of the instant injury. She did return to work in a light-duty
                position until she resigned from this position due to factors
                that were unrelated to the allowed injuries. She relocated due
                to an upcoming marriage. There is insufficient support in the
                record for a finding that she left the job due to the allowed
                conditions. The job change also coincided with a marital
                separation and relocation. The Injured Worker has not
                worked or sought work since that time even the limited work
                permitted of a Social Security Disability recipient. The
                Hearing Officer finds that the Injured Worker's departure
                from the third job was unrelated to the allowed injury and
                was voluntary. She has abandoned the work force since that
                time. In these circumstances the Injured Worker is not
                eligible to receive temporary total disability compensation.
                All proof on file was reviewed and considered.

          {¶42} 21. On May 3, 2012, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of March 27, 2012.
          {¶43} 22. On February 22, 2013, relator, Dana M. German, filed this mandamus
action.
Conclusions of Law:
          {¶44} To summarize the factual scenario, following her October 20, 2008 injury,
relator returned to work in a light-duty capacity at the Geneva Pointe facility owned and
No. 13AP-149                                                                           17


operated by PSH. Undisputedly, relator resigned from her employment with PSH in
March 2009. In her deposition testimony, relator indicates that her resignation was
motivated by the pain associated with her lower back injury and it coincided with her
upcoming marriage and planned move to Ravenna, Ohio. She also expressed a concern
that her co-workers were having to do some of the work she had previously performed.
      {¶45} In September 2009, some six months after leaving her employment with
PSH, relator found a factory job with General buffing car parts. The parts weighed only
a couple of pounds each. In her deposition testimony, relator also indicates that she
could not physically do the work when General moved from an 8-hour shift to a
mandatory 12-hour shift. According to relator, she decided, on her own, to quit her job
at General. However, her treating physician, Dr. Hochman, reported that relator was
terminated from her employment.        She also testified that she separated from her
husband one or two months after quitting her job at General in March 2010 and then
she moved in with her daughter.
      {¶46} Relator has not worked, nor sought work, since her March 2010 departure
from her employment at General.
      {¶47} The magistrate observes that the SHO's order of March 27, 2012 fails to
actually state that relator voluntarily abandoned her employment at PSH or that she
voluntarily abandoned her employment at General. However, concluding "[t]here is
insufficient support in the record for a finding that this resignation was related to the
allowed conditions," the SHO, in effect, determined that relator's departure from her
employment at PSH was not injury-induced and thus was voluntary.
      {¶48} Making a similar statement regarding "insufficient support in the record,"
the SHO also, in effect, determined that relator's departure from her employment at
General was not injury-induced and thus was voluntary.
      {¶49} The magistrate further observes that the SHO's order refers to a
"departure from the third job" when only two employers are involved here. Apparently,
the SHO counted relator's return to work at PSH in a light-duty capacity as a job
separate from the job she worked prior to her injury. Given this observation, the
magistrate rejects relator's conclusion that "[o]ddly, and astonishingly, the order refers
No. 13AP-149                                                                          18


to a non-existent 'third job' that German supposedly abandoned." (Relator's reply brief,
5.)
      {¶50} The magistrate also observes that the SHO determined that relator "has
abandoned the work force" since her departure from her employment at General.
Presumably, this determination is premised upon the finding that relator "has not
worked or sought employment since 03/24/2010."
      {¶51} Two main issues are presented:         (1) did the commission abuse its
discretion in determining that relator voluntarily abandoned her employment with PSH,
and (2) did the commission abuse its discretion in determining that relator voluntarily
abandoned her employment at General?
      {¶52} The magistrate finds: (1) the commission did not abuse its discretion in
determining that relator voluntarily abandoned her employment with PSH, and (2) the
commission did not abuse its discretion in determining that relator voluntarily
abandoned her employment at General.
      {¶53} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                                      Basic Law
      {¶54} Historically, this court first held that, 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 TTD benefits since it is his own action,
rather than the industrial injury, which prevents his returning to his former position of
employment. State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm., 29 Ohio
App.3d 145 (10th Dist.1985). The Jones & Laughlin rationale was adopted by the
Supreme Court of Ohio in State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42
(1987), wherein the court recognized a "two-part test" to determine whether an injury
qualified for TTD compensation. Ashcraft at 44. The first part of the test focuses upon
the disabling aspects of the injury whereas the latter part determines if there are any
other factors, other than the injury, which prevent the claimant from returning to his
former position of employment. Id.
No. 13AP-149                                                                        19


       {¶55} In State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44
(1988), the court held that an injury-induced abandonment of the former position of
employment, as in taking a retirement, is not considered to be voluntary.
       {¶56} In State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d
401, 403 (1995), the claimant was fired for violating the employer's policy prohibiting
three consecutive unexcused absences. The court held that the claimant's discharge was
voluntary, stating:
               [W]e 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 know to the employee. Defining such an
               employment separation as voluntary comports with Ashcraft
               and [State ex rel. Watts v. Schottenstein Stores Corp., 68
               Ohio St.3d 118 (1993)]—i.e., that an employee must be
               presumed to intend the consequences of his or her voluntary
               acts.

       {¶57} In State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 561 (2001),
the Supreme Court of Ohio held that the rule or policy supporting an employer's
voluntary abandonment claim must be written. The court explained:
               Now at issue is Louisiana-Pacific's reference to a written rule
               or policy. Claimant considers a written policy to be an
               absolute prerequisite to precluding TTC. The commission
               disagrees, characterizing Louisiana-Pacific's language as
               merely illustrative of a TTC-preclusive firing. We favor
               claimant's position.

               The commission believes that there are common-sense
               infractions that need not be reduced to writing in order to
               foreclose TTC if violation triggers termination. This
               argument, however, contemplates only some of the
               considerations. Written rules do more than just define
               prohibited conduct. They set forth a standard of enforcement
               as well. Verbal rules can be selectively enforced. Written
               policies help prevent arbitrary sanctions and are particularly
               important when dealing with employment terminations that
               may block eligibility for certain benefits.
No. 13AP-149                                                                           20


       {¶58} The syllabus of State ex rel. McCoy v. Dedicated Transport Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, states:
               A claimant who voluntarily abandoned his or her former
               position of employment or who was fired under
               circumstances that amount to a voluntary abandonment of
               the former position will be eligible to receive temporary total
               disability compensation pursuant to R.C. 4123.56 if he or she
               reenters the work force and, due to the original industrial
               injury, becomes temporarily and totally disabled while
               working at his or her new job.

       {¶59} The McCoy holding was further explained by the court in State ex rel.
Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587.             In that case, the
claimant, Shawn E. Eckerly, was fired from his job for unexcused absenteeism.
Thereafter, the commission declared that the discharge constituted a voluntary
abandonment of his employment under Louisiana-Pacific, and denied TTD
compensation. Citing McCoy, the Eckerly court upheld the commission's denial of TTD
compensation. The Eckerly court explains:
               The present claimant seemingly misunderstands McCoy. He
               appears to believe that so long as he establishes that he
               obtained another job-if even for a day-at some point after his
               departure from Tech II, TTC eligibility is forever after
               reestablished. Unfortunately, this belief overlooks the tenet
               that is key to McCoy and all other TTC cases before and
               after: that the industrial injury must remove the claimant
               from his or her job. This requirement obviously cannot be
               satisfied if claimant had no job at the time of the alleged
               disability.

(Emphasis sic.) Id. at ¶ 9.
                                        First Issue
       {¶60} To begin, it can be noted that relator's presumed inability to perform all of
the duties of her former position of employment at the time she resigned her
employment with PSH did not bar a commission finding that she voluntarily abandoned
her employment with PSH.         That is to say, a commission finding of a voluntary
abandonment was not precluded by the fact that relator was working in a light-duty
capacity at the time of her resignation and was thus presumed to be unable to perform
all the duties of her former position of employment. State ex rel. Adkins v. Indus.
No. 13AP-149                                                                          21


Comm., 10th Dist. No. 07AP-975, 2008-Ohio-4260; State ex rel. Apostolic Christian
Home, Inc. v. King, 10th Dist. No. 08AP-1078, 2009-Ohio-5670.
         {¶61} In finding that relator's departure from her employment at PSH was not
injury induced and therefore voluntary, the SHO relied in part upon a finding that
"[t]here is no contemporaneous evidence from a physician that she left the job due to
physical difficulties stemming from the allowed conditions." Citing this court's decision
in State ex rel. Mid-Ohio Wood Prods., Inc. v. Indus. Comm., 10th Dist. No. 07AP-478,
2008-Ohio-2453, relator contends that the commission abused its discretion by relying
upon the lack of contemporaneous medical evidence to support the finding that the
departure from employment at PSH was not injury induced. As relator puts it, the
commission "can rely solely upon the injured worker's testimony of his physical
condition."    (Relator's brief, 18.)   Put another way, relator posits "[t]here is no
requirement of objective medical evidence corroborating an injured worker's testimony
regarding why he left his employment." (Relator's brief, 18.) Put yet another way,
relator argues that the commission abused its discretion by requiring that she "produce
evidence that she was advised by her doctor to leave her employment." (Relator's brief,
19.)
         {¶62} Relator's reliance upon Mid-Ohio is misplaced and her arguments lack
merit.
         {¶63} In Mid-Ohio, the commission awarded TTD compensation to claimant,
David L. Franks, and in so doing, determined that his job departure was injury-induced.
In determining that the job departure was injury-induced, the commission seemingly
relied exclusively upon the claimant's testimony.
         {¶64} The Mid-Ohio court states, at ¶ 18:
               We have carefully reviewed the cases that the magistrate
               cites in his decision, and we find nothing in them that holds
               that there must be objective medical evidence corroborating
               a claimant's testimony regarding his motivation for
               abandonment of his employment. On the contrary, as noted
               hereinabove, the commission must make a factual
               determination, based upon all of the surrounding
               circumstances, whether the motivation for the claimant's
               departure was, in whole or in part, the allowed conditions for
               which the claimant has already discharged his burden of
No. 13AP-149                                                                          22


               proof. Here, the commission did so, and did not abuse its
               discretion in crediting the claimant's testimony, particularly
               in light of the office notes from Drs. Bennington, Ellis, and
               Dyer, which indicate that the claimant reported suffering
               severe, constant back pain since the date of injury. The
               commission is the exclusive evaluator of weight and
               credibility of the evidence.

Id. ¶ 18.
       {¶65} While the commission may credit a claimant's testimony as to his or her
motivation for abandonment of employment without corroborating medical evidence,
the commission need not do so.        That is, the commission is free to discredit the
claimant's testimony because there is no corroborating medical evidence or because the
commission finds that the medical evidence is insufficient to corroborate the testimony.
Accordingly, the magistrate finds relator's arguments unpersuasive.
       {¶66} Citing this court's decision in State ex rel. Monroe v. Indus. Comm., 10th
Dist. No. 04AP-1198, 2005-Ohio-5157, relator suggests that the commission was
required to find that the job abandonment at PSH was injury induced because relator
gave two reasons for her job departure—that is, relator testified that the pain motivated
her decision and she was getting married and moving to Ravenna. Relator points out
that "[a]t no time, however, did she indicate that moving due to a new marriage and
relocation was the primary reason or even a compelling reason to leave [PSH]."
(Relator's reply brief, 1-2.)
       {¶67} Relator's argument and reliance upon Monroe is incorrectly premised
upon the unstated presumption that the commission was required to give full credit to
all of relator's testimony and to give her testimony an interpretation favorable to an
injury-induced job abandonment.
       {¶68} The commission, and its hearing officers, like any fact-finder in any
administrative, civil or criminal proceeding, may draw reasonable inferences and rely
upon its own common sense in evaluating the evidence. See State ex rel. Supreme
Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089.
       {¶69} Here, the commission, through its SHO, apparently found that it was
relator's remarriage and relocation that primarily motivated her job departure. This
No. 13AP-149                                                                         23


finding was clearly within the commission's fact-finding discretion based upon the
evidence of record.
      {¶70} Accordingly, the magistrate finds that the commission did not abuse its
discretion in determining that relator voluntary abandoned her employment with PSH.
                                     Second Issue
      {¶71} The second issue is whether the commission abused its discretion in
determining that relator voluntarily abandoned her employment at General. It should
be observed that this inquiry is only relevant because the commission correctly
determined that relator voluntarily abandoned her employment with the employer of
injury, PSH, and, thus, she is ineligible for TTD compensation unless she reestablished
her eligibility by reentering the workforce under McCoy and Eckerly.
      {¶72} Presumably, if relator can show that her departure from employment at
General was injury induced, she can preserve her eligibility for TTD compensation that
was undisputedly reestablished during the time of her employment at General.         If,
however, the commission correctly determined that relator's departure from her
employment at General was not injury induced, she consequently lost her eligibility at
the time of her departure from General and has not reestablished that eligibility.
      {¶73} The magistrate concludes that the commission did not abuse its discretion
when it determined that relator's departure from her employment at General was not
injury induced.
      {¶74} Relator's challenge to the commission's determination that her departure
from General was voluntary is essentially the same as her challenge to the commission's
determination that her departure from PSH was voluntary.
      {¶75} That is, relator contends that the commission abused its discretion in
placing reliance upon the finding "[t]here is no contemporaneous evidence from a
physician that she left the job due to physical difficulties stemming from the allowed
conditions." As earlier noted, relator's reliance upon Mid-Ohio is misplaced.
      {¶76} Relator points to her deposition testimony in which she states that she left
her position as General because she was not able to physically perform the buffing job
when the employer changed to mandatory 12-hour shifts. Relator, in effect, asks this
court to reweigh the evidence—something this court will not do in a mandamus action.
No. 13AP-149                                                                         24


The commission weighed the evidence and determined that relator's departure from her
employment at General was primarily motivated by matters unrelated to the allowed
conditions of the claim. This determination was within the sound discretion of the
commission and cannot be disturbed in this mandamus action.
      {¶77} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


                                          /S/ MAGISTRATE
                                         KENNETH W. MACKE




                              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).
