[Cite as State ex rel. Jones v. Indus. Comm., 2014-Ohio-1528.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                  :
Loretta Jones,
                                                       :
                 Relator,
                                                       :               No. 13AP-241
v.
                                                       :           (REGULAR CALENDAR)
Industrial Commission of Ohio and
Mill Run Care Center,                                  :

                 Respondents.                          :


                                            D E C I S I O N

                                      Rendered on April 10, 2014


                 Law Office of Thomas Tootle Co., and Thomas Tootle, for
                 relator.

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

                 Dinsmore & Shohl, LLP, Christen S. Hignett and Brett L.
                 Miller, for respondent Mill Run Care Center.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

TYACK, J.

        { 1}     Relator, Loretta Jones, has filed this action in mandamus seeking to obtain

temporary total disability ("TTD") payments for her injuries suffered while she worked at

Mill Run Care Center.

        { 2}     In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate of this court to conduct appropriate proceedings. The parties
No. 13AP-241                                                                                 2


stipulated the pertinent evidence and filed briefs.       The magistrate then issued a
magistrate's decision, appended hereto, which contains detailed findings of fact and
conclusions of law. The magistrate's decision includes a recommendation that we deny
the request for a writ.
       { 3}   Counsel for Jones has filed an objection to the magistrate's decision.
Counsel for respondent Industrial Commission of Ohio ("commission") has filed a
memorandum in response. Her former employer, respondent Mill Run Care Center, has
also filed a memorandum in response. The case is now before the court for a full,
independent review.
       { 4}   Jones was originally injured in October 1998. Her workers' compensation
claim was originally recognized for back injuries. Over 12 years later, her claim was
expanded to include "major depression, severe, without psychotic features."         In the
meantime, Mill Run Care Center had fired Jones because of a claim she had slapped a
resident of the care center. Jones has always denied the slapping allegation.
       { 5}   In 2004, Jones had been provided a handbook which indicated that such
conduct could result in being fired. When Jones applied for TTD after her psychological
condition had been recognized, Mill Run Care Center argued that Jones had voluntarily
abandoned her employment.
       { 6}   The staff hearing officer ("SHO") who initially heard the application noted:
The Injured Worker has presented significant documentation which argues
that the discharge was unjust.
       { 7}   The SHO essentially allowed the Mill Run Care Center to decide whether the
firing constituted a voluntary abandonment of employment by Jones. If the person was
fired based upon the employer's finding that a dischargeable work rule had been violated,
the SHO found that a voluntary abandonment of employment existed.
       { 8}   Counsel for Jones pursued an action in mandamus which resulted in an
agreed remand of the application for a de novo review by a different SHO. The second
SHO also found that Jones had voluntarily abandoned her employment, although the
paperwork indicated that a different employee, Loretta Battle, did the striking. Again, the
employer's decision that Jones should be fired on the same day was deemed decisive.
Apparently a relative of a resident claimed that Jones struck a resident. The family
No. 13AP-241                                                                             3


member's statement does not extensively deal with the family member's ability to
distinguish between the two Lorettas. The family member did not testify before the
commission. As noted in our magistrate's decision, the Ohio Bureau of Employment
Services allowed Jones unemployment benefits based upon a finding that no just cause
for her firing had been demonstrated. Jones testified under oath that she did not strike
the resident.
       { 9}     Jones found a new job but also discovered that her conditions recognized in
her industrial claim prevented her from continuing that job, especially her back problem.
The SHO who conducted the second hearing found that the new job "does not represent a
good faith return to gainful employment and did not constitute gainful employment."
       { 10} Based upon the record before us, we cannot find that Jones has voluntarily
abandoned employment. First, there is strong reason to believe that Jones did not engage
in conduct which put her on notice that she would be fired. She had many years of
exemplary patient care. She always denied striking a patient. Mill Run Care Center's
paperwork said that a Loretta Battle was being fired for striking a patient. The family
member who provided a statement never testified under oath so it could be known the
family member's ability to distinguish one Loretta from the other Loretta. Jones testified
under oath that she did not strike anyone. The Ohio Bureau of Employment Services
concluded that Jones was not fired for just cause, after a contested proceeding. On this
basis alone, Jones cannot be seen to have abandoned her job at Mill Run Care Center.
Being fired does not in and of itself constitute abandoning a job.
       { 11} Further, Jones went back to work after being fired by Mill Run Care Center.
There is no question that she was paid for her time on the new job. Thus, it was both
gainful and constituted employment.
       { 12} There is no magic number of days that a person must work in pain before
saying "I can't do this job." Jones was being told by mental health professionals that she
had restrictions which prevented her from working at all. Still she sought out and
obtained another job. She clearly did not abandon employment completely or she could
have used her depression as an excuse for not working.
No. 13AP-241                                                                              4


       { 13} Looking at the totality of the circumstances, no evidence supports a finding
that Jones voluntarily abandoned employment in general. We sustain the objection to the
magistrate's decision.
       { 14} We adopt the findings of fact in the magistrate's decision, but not the
conclusions of law. As a result, we grant a writ of mandamus compelling the commission
to vacate its denial of TTD for Jones and compelling the commission to grant the
compensation.
                                                        Objection sustained; writ granted.

                                  CONNOR, J., concurs.
                                 SADLER, P.J., dissents.
SADLER, P.J., dissenting.

       { 15} The majority focuses on whether relator's termination from employment
with Mill Run Care Center constituted a voluntary abandonment of her employment.
However, as relator set forth in her objection to the magistrate's decision, "[t]he central
issue to this action is whether [her] two week return to work from December 3, 2012 to
December 14, 2012" constitutes gainful employment. Therefore, I disagree with the
analysis presented by the majority.
       { 16} Additionally, for the reasons set forth in the magistrate's decision, I believe
the commission did not abuse its discretion in determining that relator did not return to
gainful employment and, therefore, had not re-established entitlement to an award of
TTD compensation. Accordingly, I would overrule relator's objection to the magistrate's
decision, adopt the decision of the magistrate, and deny the requested writ of mandamus.
Because the majority does otherwise, I respectfully dissent.
No. 13AP-241                                                                          5


                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel.                          :
Loretta Jones,
                                               :
              Relator,
                                               :                No. 13AP-241
v.
                                               :           (REGULAR CALENDAR)
Industrial Commission of Ohio
and Mill Run Care Center,                      :

              Respondents.                     :


                         MAGISTRATE'S DECISION

                             Rendered on November 27, 2013


              Law Office of Thomas Tootle, and Thomas Tootle, for
              relator.

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

              Dinsmore & Shohl, LLP, Christen S. Hignett and Brett L.
              Miller, for respondent Mill Run Care Center.


                                      IN MANDAMUS
       { 17} Relator, Loretta Jones, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied relator's motion for temporary total
disability ("TTD") compensation on grounds that she had voluntarily abandoned her
employment and had not returned to gainful employment, and ordering the commission
to find that she is entitled to that compensation.
Findings of Fact:
No. 13AP-241                                                                           6


       { 18} 1. Relator sustained a work-related injury on October 5, 1998 and her
workers' compensation claim was allowed for the following physical conditions:
              Lumbosacral strain/sprain; aggravation of pre-existing L5-S1
              disc displacement.

       { 19} 2. On June 3, 2010, relator was terminated from her job with respondent
Mill Run Care Center. It was alleged that relator had slapped a resident.
       { 20} 3. Following a March 18, 2011 hearing before a district hearing officer
("DHO"), relator's claim was additionally allowed for the psychological condition: "major
depression, severe, without psychotic features."
       { 21} 4. On June 16, 2011, relator filed a motion seeking an award of TTD
compensation beginning September 28, 2010 and continuing.
       { 22} 5. Relator's motion was heard before a DHO on January 17, 2012. The
DHO denied relator's request after finding that she had voluntarily abandoned her
employment when she was terminated. Specifically, the DHO stated:
              It is the order of the District Hearing Officer that payment of
              temporary total disability compensation from 09/28/2010
              through 01/17/2012, based upon the allowed psychological
              condition, is denied. The District Hearing Officer finds that
              the Injured Worker's termination on 06/30/2010
              constituted a voluntary abandonment of her employment
              that precludes the payment of temporary total disability
              compensation from 09/28/2010 forward. The District
              Hearing Officer finds that the elements of State ex rel.
              Louisiana-Pacific v. Indus. Comm. (1995), 72 Ohio St.3d 401,
              have been satisfied.

              The Injured Worker was terminated on 06/03/2010 for
              slapping a resident. Although the associate discipline
              conference form dated 06/03/2010 identifies a co-worker,
              Loretta Battle, rather than the Injured Worker, the Injured
              Worker does not dispute that she was discharged on that
              date for the same offense. The conduct of being physically
              abusive toward a resident was identified as being a
              dischargeable offense on page 18 of the employer's associate
              handbook. The Injured Worker's knowledge of that policy is
              imputed from her signature on the handbook receipt dated
              01/06/2004, and from her signature on the orientation
              attendance sheet dated 01/06/2004 which indicates that
              rules of conduct were among the topics covered.
No. 13AP-241                                                                       7



             There is no evidence that the Injured Worker re-entered the
             workforce following her termination. Accordingly, payment
             of the requested period of temporary total disability
             compensation is denied.

      { 23} 6. Relator appealed and disputed that she had ever slapped a resident and
attached documentation from the Ohio Department of Job and Family Services
("ODJFS") demonstrating that her application for unemployment compensation had been
granted based on a finding that she had been discharged without good cause.
      { 24} 7. Relator's appeal was heard before a staff hearing officer ("SHO") on
March 12, 2012. The SHO affirmed the prior DHO order, stating:
             Temporary Total Disability Compensation, which is being
             sought based upon the allowed psychological conditions,
             remains denied for the period 09/28/2010 through
             01/17/2012 (the date of the District Hearing Officer
             Hearing). The Staff Hearing Officer affirms the District
             Hearing Officer's conclusion that payment of this
             compensation is barred by reason of a voluntary
             abandonment of the former position of employment under
             the rule of State ex rel. Louisiana Pacific vs. Indus. Comm.,
             (1995), 72 Ohio St. 3rd 401. The Injured Worker was
             terminated on 06/03/2010 for slapping a resident.
             Documentation in the claim file demonstrates that the
             Injured Worker had been advised in writing that this was a
             dischargeable offense. This is demonstrated by the Injured
             Worker's signature on the Receipt of Handbook dated
             01/06/2004, together with her signature on the Orientation
             Attendance Sheet of the same date.

             The    Injured    Worker     has    presented     significant
             documentation which argues that the discharge was unjust.
             The Industrial Commission has no role in determining if the
             employer acted with significant information or otherwise
             properly in making such a discharge, only in determining if it
             was in response to what they found to be a violation of a
             written work rule of which the Injured Worker was aware
             and which unambiguously identified the conduct as a
             dischargeable offense.

             ***
No. 13AP-241                                                                             8


              Finally, although the Injured Worker has sought re-
              employment, she has not been re-employed since this
              discharge.

        { 25} 8. Relator's appeal was refused by order of the commission mailed April 3,
2012.
        { 26} 9. Relator filed a mandamus action in this court which ultimately resulted
in the following stipulation of dismissal:
              In accordance with Civ.R. 41(A)(1)(b), the parties hereby
              stipulate that this action is dismissed with prejudice.
              Further, the claim is to be referred to the Hearing
              Administrator to schedule a hearing de novo before a Staff
              Hearing Officer, other than previous Staff Hearing Officer
              who issued the order dated March 12, 2012, to redetermine
              the merits of the application for temporary total disability
              compensation filed June 3, 2011.

(Emphasis sic.) See State ex rel. Jones v. Indus. Comm., 10th Dist. No. 12AP-591
(Oct. 29, 2012 JED).
        { 27} 10. In accordance with the stipulation of dismissal, relator's motion for TTD
compensation was scheduled for de novo hearing before a different SHO.
        { 28} 11. This hearing was held on December 18, 2012 and resulted in an order
modifying the DHO order from the January 17, 2012 hearing. The SHO again denied the
request for TTD compensation beginning November 28, 2010. The SHO first found that
relator had been terminated from her employment on June 3, 2010. The SHO discussed,
in great detail, the reasons for relator's termination, as well as relator's documentation
that: (a) she did not commit the offense as indicated, and (b) she was a good employee
and should not have been terminated, stating:
              The Staff Hearing Officer finds that Injured Worker was
              terminated from her employment on 06/03/2010 for
              violating a written work rule and that pursuant to State ex
              rel. Louisiana-Pacific v. Indus. Comm. (1995), 72 Ohio St. 3d
              401, the Injured Worker is found to have "voluntarily
              abandoned her employment."

              It is noted at the District Hearing Officer hearing that there
              was a discussion regarding the confusion between a co-
              worker named Loretta Battle and the Injured Worker. The
No. 13AP-241                                                                 9


           Employer's termination letter refers to a Loretta Battle, but
           there was no dispute at today's hearing that the termination
           was related to the Injured Worker. The Injured Worker at
           hearing disputed that she ever slapped a resident, but she
           did not dispute that she was fired for that reason.
           Accordingly, no true mistaken identity is found, just an
           inadvertent error.

           The Injured Worker's handbook does state that an employee
           may be subject to immediate termination under the
           following circumstances: "Being verbally and/or physically
           abusive toward a resident /client, associate or member of the
           community." The Injured Worker was fired pursuant to
           striking a resident.

           The Injured Worker signed a statement on 01/06/2004
           indicating that she had received a copy of the handbook,
           which stated that she could be fired for striking a resident.
           The Injured Worker knew or should have known that she
           could be immediately terminated if she she [sic] physically
           abused a resident.

           The Injured Worker argued at hearing that pursuant to the
           Employee Handbook that she was entitled to three written
           notices before she could be fired pursuant to the Employee
           Handbook. The Injured Worker points to page three of the
           handbook which refers to standards of conduct. It states on
           this page: "Upon the third offense, the associate shall receive
           a written notice that is a final warning or, the associates
           employment may be terminated, depending on the nature of
           the offense and the disciplinary actions that have previously
           been taken."

           In this case, the Employer has provided a record of two
           previous offenses, one on 03/26/208 [sic] and another on
           05/21/2010. The above stated section states that the
           associate my [sic] receive written notice or may be
           terminated. The Injured Worker states that the rule requires
           a third written notice before being fired, but the language of
           the above quoted procedure states that the Injured Worker
           may be terminated without a written notice, depending on
           the nature of the offense.

           More importantly, the rule book states that the associate may
           be fired immediately for physical abuse of a client.
           Accordingly, if the Injured Worker did slap a client, the
No. 13AP-241                                                               10


           Injured Worker did violate a rule where she was subject to
           immediate termination.

           It is noted that the Injured Worker in this case denies that
           she ever physically abused any client. In State ex rel. Brown
           v. Hoover [U]niversal, Inc. 132 Ohio St.3d 520, 2012-Ohio-
           6174, [t]he Ohio Supreme Court held that the deliberate
           misconduct at issue to support the voluntary abandonment
           could not be imputed to the Injured Worker unless it was
           clear that the Injured Worker had actually violated the
           policy. Accordingly, an examination of the circumstances of
           the alleged event for which the Injured Worker was fired
           must be examined.

           There is a 07/14/2010 statement on record on file from a
           Sarah Netler, who identifies herself as a family member of a
           resident. She states that she witnessed the Injured Worker
           slapping a resident. This statement is found to support a
           finding that the Injured Worker was physically abusive
           towards a resident.

           The Injured Worker does not dispute a version of the events
           that are recorded above. The Injured Worker testified at
           hearing that one resident struck another resident and that
           she put her arm on the offending resident and escorted that
           resident to another table. The Injured Worker's testimony
           was considered, but it is concluded that the Injured Worker
           did slap the resident. It seems unlikely that a family member
           would have reported the event unless it actually happened.
           The fact that the Injured Worker remembers the incident,
           although her version of events does not include any physical
           abuse of a resident, supports a conclusion that the event
           occurred.

           There are various written testimonials on file that support a
           conclusion that the Injured Worker generally did do a good
           job when interacting with the residents, but the only event
           under review at this hearing is the one time alleged slapping
           of a resident. The Injured Worker's overall performance may
           be a mitigating circumstance for the Employer to consider,
           but it is not a factor in this evaluation. The only
           consideration here is whether the Injured Worker was fired
           for violating a written work rule and if the Injured Worker
           was aware of the possible circumstances of violating that
           written work rule.
No. 13AP-241                                                                11


           The Injured Worker worked with individuals that suffer from
           dementia. Working with these residents undoubtedly
           presented some challenges. However, the Employer required
           that its associates not be physically abusive towards the
           residents.

           The Injured Worker is found to have violated a written work
           rule when she was physically abusive to a resident.
           Accordingly, she is found to have voluntarily abandoned her
           employment and she is not entitled to temporary total
           disability compensation.

           The Ohio Supreme Court has stated that the circumstances
           of a termination of employment related to a violation of a
           written work rule must be careful [sic] examined to make
           sure that the Injured Worker is not being fired as a pretext.
           In this case, the Employer rule against abusing residents
           appears reasonable. Accordingly, a firing related to this rule
           would not appear to represent an "ulterior motive" or a firing
           of the Injured Worker because she had a work injury.

           It is also noted that the claim in question represents a 1998
           injury. A review of the record indicates that the Injured
           Worker related to this claim previously received temporary
           total disability compensation back in 2000. The Employer
           after this passage of time would not appear to have a motive
           to fire the Injured Worker because of the 1998 work injury
           claim.

           The Injured Worker stated at hearing that when she was
           granted "unemployment benefits" by another state agency
           that there was a finding that she was "not terminated for just
           cause." The Injured Worker argued that based on this
           decision by another state agency that there should be no
           finding of a "Voluntary Abandonment" of employment by the
           Injured Worker in this case. This argument is rejected. The
           standards of adjudication and issues involved in an
           unemployment benefits case are different from workers'
           compensation, and the findings from the agency responsible
           for adjudicating unemployment benefit claims are not
           binding on the Industrial Commission.

           This does not mean that the finding and decision of the other
           agency may not be considered as evidence in adjudicating a
           workers' compensation case, but the decisions of that other
No. 13AP-241                                                                        12


             agency, involving a completely different type of benefit, are
             not biding on the Industrial Commission.

      { 29} The SHO also addressed relator's evidence that, since the last hearing, she
did attempt to return to work; however, she was unable to do so because of her allowed
back conditions:
             The Injured Worker also argues that since the last hearing,
             the Injured Worker attempted to return to work, and that
             therefore, the Injured Worker is now entitled to temporary
             total disability benefits. Specifically the Injured Worker cited
             to the State ex rel. Hassan v. Marsh Bldg. Products, 100 Ohio
             St.3d 300, 2003-Ohio-6022.

             The Injured Worker testified at hearing that she attempted
             to return to work from 12/03/2012 through 12/14/2012 and
             that she was unable to do so because of her back. The Injured
             Worker also submitted a report from Dr. Palma, dated
             12/14/2012, which states the Injured Worker cannot work at
             the present time related to her lower back.

             The Injured Worker argued at hearing that pursuant to the
             above referenced Hassan case, "any employment -- no
             matter how insubstantial --" is "sufficient" to overcome the
             previous "voluntary abandonment," and that any return to
             employment requires the payment of temporary total
             disability compensation. This presentation is found to
             represent an oversimplification of the required analysis.

             This issue has prior to the Hassan case been addressed by
             the Ohio Supreme Court in State ex rel. McCoy v. Dedicated
             Transport, Inc. 97 Ohio St.3d 25, 2002-Ohio-5305. The issue
             has been addressed since the Hassan case in the Appellate
             decision of State ex rel. Pierron v. Indus. Comm., 172 Ohio
             App.3d 168, 2007-Ohio-3292. The Pierron decision was
             affirmed by the Ohio Supreme Court in State ex rel. Pierron
             v. Indus. Comm., 120 Ohio St[.]3d 40, 2008-Ohio-5245.

             The Appellate Court in Pierron discusses the McCoy case,
             and states that when a Injured Worker who voluntarily
             leaves the work force re-enters the work force, and due to the
             original industrial injury, becomes temporarily and totally
             disabled while working at that new job, that the Injured
             Worker will be eligible to receive temporary total disability
             compensation. In Pierron, however, the court found that the
No. 13AP-241                                                                13


           Injured Worker's return to part time work delivering flowers
           did not constitute "gainful employment" for these purposes.

           Based on the Pierron case, an examination of the
           circumstances of the return to work must be examined. In
           this case the Injured Worker is found to have voluntarily
           abandoned her job when she violated a written work rule in
           June of 2010. The Injured Worker testified at hearing that
           after being terminated that she applied for social security
           benefits and was granted these benefits. She testified that
           these benefits were back dated to some time in 2010.

           On 11/18/2011, the Injured Worker applied for temporary
           total disability benefits related to a psychological condition
           that was allowed in the claim on 03/11/2011. This motion for
           temporary total disability compensation was denied by the
           District Hearing Officer on 01/17/2012 related to a
           "Voluntary Abandonment." This decision was affirmed by
           Staff Hearing Officer order of 03/12/2012. This Staff
           Hearing Officer order was appealed into Court and by agreed
           entry and stipulation the Mandamus Action was dismissed,
           the Staff Hearing Officer order vacated, and the matter
           ordered reset on the appeal from the previous District
           Hearing Officer order.

           It was not until after this time that the Injured Worker
           returned to work for the two week period from 12/03/2012
           until 12/14/2012. The Injured Worker testified at hearing
           that she became unable to work this job because of her back.
           The Injured Worker submitted the previously referenced
           12/14/2012 report from Dr. Palma to support this assertion.

           This sporadic work is not found to represent a gainful return
           to work. The Injured Worker is found to have abandoned any
           desire to return to work when she filed for social security
           disability. Further, the Injured Worker originally requested
           the temporary total disability compensation related to a
           psychological condition. Dr. Malinky in a 11/11/2012 report
           states the Injured Worker can not do any work at the present
           time related to the allowed psychological condition in the
           claim. The brief return to work is inconsistent with the
           Injured Worker's own medical evidence. Further, the
           claimed basis for the Injured Worker's inability to continue
           her return from work from 12/03/2012 through 12/14/2012
           is not her psychological condition, but related to her back
           condition. As previously stated in this order, the Injured
No. 13AP-241                                                                           14


             Worker's last temporary total disability compensation paid
             related to her to her back injury was in 2000, over ten years
             ago. In light of this evidence, the Injured Worker's brief
             return to work force on 12/03/2012 through 12/14/2012
             does not represent a good faith return to gainful employment
             and the evidence is not persuasive that the Injured Worker
             has now become temporarily and totally disabled related to
             the back injury.

             Accordingly, the Injured Worker's brief working experience
             from 12/03/2012 through 12/14/2012 does not constitute
             "gainful employment" or a desire by the Injured Worker to
             re-enter the work force. The Injured Worker is found to have
             voluntarily abandoned her employment and she is not
             entitled to temporary total disability compensation at this
             time.

      { 30} 12. Relator's appeal was refused by order of the commission mailed
January 24, 2013.
      { 31} 13. Thereafter, relator file the instant mandamus action in this court.
Conclusions of Law:
      { 32} Relator contends that the commission abused its discretion when it denied
her request for TTD compensation on grounds that she had voluntarily abandoned her
employment and had not made a good-faith effort to return to gainful employment.
      { 33} Relator contends that her attempt to return to work from December 3
through December 14, 2012 satisfies the requirements of State ex rel. McCoy v. Dedicated
Transport Inc., 97 Ohio St.3d 25, 2002-Ohio-5305 and that the commission abused its
discretion when the commission applied State ex rel. Pierron v. Indus. Comm., 120 Ohio
St.3d 40, 2008-Ohio-5245 and found that her brief return to work did not constitute
gainful employment.
      { 34} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated that the commission abused its discretion when it applied rationale
from Pierron in finding that relator did not return to gainful employment and, therefore,
had not reestablished entitlement to an award of TTD compensation.
      { 35} 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
No. 13AP-241                                                                               15


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.
       { 36} 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.
       { 37} 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.

       { 38} In McCoy, the Supreme Court of Ohio explained that an injured worker who
voluntarily abandons their employment can become entitled to a new period of TTD
compensation. The court stated:
              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
No. 13AP-241                                                                             16


              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.

       Id. at syllabus.
       { 39} As noted in the findings of fact, relator sustained her injury on October 5,
1998. At that time, relator's claim was allowed solely for physical conditions affecting her
back. On June 3, 2010, relator was terminated from her job with Mill Run Care Center for
violating a written work rule.     In March 2011, relator's claim was allowed for the
psychological condition major depression, severe, without psychotic features.
       { 40} In June 2011, relator filed a motion seeking an award of TTD compensation
beginning September 28, 2010 and continuing. Relator's motion was supported by a C-84
completed by her treating psychologist John M. Malinky, Ph.D., who opined that her
allowed psychological condition had rendered her temporarily unable to return to her
former position of employment.        Allen B. Levy, M.D., conducted an independent
psychiatric evaluation. In his January 3, 2011 report, Dr. Levy opined that, while relator's
depression was directly due to her job-related injury, there was no evidence that the
depression was independently disabling. Donald S. Scott, Ph.D., evaluated relator on
November 11, 2011 and he opined that relator's psychiatric condition had rendered her
disabled beginning September 28, 2010.
       { 41} As noted in the findings of fact, relator's request for TTD compensation was
denied following a hearing before an SHO on March 12, 2012. The SHO concluded that
relator had voluntarily abandoned her employment and was not eligible for TTD
compensation.    Relator filed a mandamus action in this court; however, the parties
voluntarily dismissed the mandamus action and the matter was returned to the
commission for a new hearing.       After the parties voluntarily dismissed the original
mandamus action here, relator attempted to return to work for the two-week period from
December 3 until December 14, 2012. Relator testified that she was not able to continue
to work this job because of her allowed back conditions. The fact that it was her back
conditions which prevented her from continuing in this job was supported by the
December 14, 2012 letter from her treating physician Bernard Palma, D.O.
No. 13AP-241                                                                            17


       { 42} When the matter of relator's entitlement to TTD compensation was again
heard before the commission, the SHO essentially determined that relator's brief return to
the workforce two years after she was terminated from her former position of
employment was not sufficient to reestablish a causal connection between her lack of
earnings and her allowed conditions. Stated another way, the SHO found that relator
failed to meet her burden of proving that, after her voluntary abandonment of
employment, she (1) returned to gainful employment, and (2) became disabled from that
new employment due to the allowed conditions in her claim.
       { 43} In the McCoy case, Lester McCoy sustained an injury in the course of his
employment and was later terminated in March 1998 for tardiness and insubordination.
In June 1999, McCoy underwent surgery and sought an award of TTD compensation. The
record revealed that his only employment, from March 1998 when he was fired to June
28, 1999 when he underwent surgery, consisted of driving his cousin's truck on 12 to 15
separate days between February and April 1999. The commission found that this activity
did not constitute sustained gainful employment and the Supreme Court of Ohio agreed.
       { 44} In Pierron, the Supreme Court of Ohio again considered whether a
claimant's return to sporadic employment following the elimination of his job
(involuntary departure) was a return to gainful employment sufficient to entitle him to an
award of TTD compensation.       Richard Pierron was seriously injured in 1973 while
working as a telephone lineman. Following his injury, Pierron had medical restrictions
which were incompatible with his former position of employment. Pierron was offered
and accepted a light-duty warehouse job consistent with those restrictions and continued
to work in that position for the next 23 years. In 1997, Pierron's light-duty warehouse
position was eliminated and, in the years that followed, Pierron remained unemployed
except for a brief part-time stint as a flower delivery person. In late 2003, Pierron moved
for TTD compensation beginning in June 2001 and the commission denied that request
finding that he had voluntarily abandoned his former position of employment when he
retired.
       { 45} The court recognized that Pierron did not initiate his departure from the
workforce; however, the court also noted that there was no causal relationship between
his industrial injury and either his departure from his former position of employment or
No. 13AP-241                                                                             18


his voluntary decision to no longer be actively employed. Relying on its earlier decision in
State ex rel. Pepsi-Cola Bottling Co. v. Morse, 72 Ohio St.3d 210 (1995), the court noted
that when a departure from the entire workforce is not motivated by an injury, the court
presumes it to be a lifestyle choice and, inasmuch as workers' compensation benefits were
never intended to subsidize lost or diminished earnings attributable to lifestyle decisions,
the court upheld the commission's decision to deny Pierron TTD compensation.
       { 46} In the present case, relator was performing her former position of
employment without any restrictions in June 2010 when she was terminated. Between
June 2010 and December 2012 relator did not work. It was not until after relator's
motion for TTD compensation was originally denied that returned to employment. At
that time, her application for TTD compensation was based on medical evidence
indicating that, due solely to the allowed psychological condition in her claim, relator was
incapable of performing any employment. After performing this new job for two weeks,
relator testified that her allowed back conditions were the cause of her inability to remain
and never inferred that her allowed psychological condition was preventing her from
remaining in that job.
       { 47} Relator relies heavily on State ex rel. Hassan v. Marsh Bldg. Prods., 100
Ohio St.3d 300, 2003-Ohio-6022, which was decided shortly after the court decided
McCoy and prior to the court's decision in Pierron.        Abdikarim Hassan voluntarily
abandoned his former position 10 days after his industrial injury. Approximately 7 weeks
later, Hassan began working for Airborne Express. In the next 3 weeks, Hassan worked 8,
19 and one-half, and 24 hours respectively. Hassan asserted that, since the date of injury,
his condition worsened and prohibited him from being able to perform the position he
had taken with Airborne Express. Hassan's claim was additionally allowed for significant
conditions and surgery was recommended.
       { 48} Hassan requested TTD compensation, which the commission denied
finding that he had voluntarily abandoned his employment. While Hassan's mandamus
action was pending in this court, the Supreme Court of Ohio decided McCoy. This court
issued a limited writ, returning the matter to the commission to consider Hassan's
medical evidence.
No. 13AP-241                                                                              19


       { 49} Hassan's employer appealed and the Supreme Court of Ohio affirmed this
court's decision. At the end of its decision, the court stated:
              [W]e are persuaded by claimant's assertion that because any
              employment—no matter how insubstantial—bars TTC, see
              State ex rel Blabac v. Indus. Comm. (1999), 87 Ohio St.3d
              113, 717 N.E.2d 336, then any employment should be
              sufficient to invoke McCoy.

Id. at ¶ 8.
       { 50} Relator asserts that this court should reject the holding from Pierron and
find, as a matter of law, that return to any employment after the voluntary abandonment
of employment is sufficient to entitle a claimant to an award of TTD compensation.
Finding that the injured worker's intent is a crucial factor to consider in a voluntary
abandonment situation where it is not a factor to consider when determining whether or
not an injured worker is working while receiving TTD compensation, the magistrate
rejects relator's argument.
       { 51} The magistrate finds that, the commission did not abuse its discretion in
finding that relator's return to work two years after she was terminated and after TTD
compensation was originally denied on grounds that she had not attempted to return to
any work was not sufficient to re-establish her entitlement to an award of TTD
compensation.
       { 52} Relator also challenges the commission's statement in its order that her
receipt of Social Security Disability benefits was some evidence supporting a finding that
she did not intend to return to work. The magistrate disagrees with relator's argument.
       { 53} It is undisputed that recipients of Social Security Disability may attempt
trial returns to work. Relator equates her attempt to return to work as evidence that,
although receiving Social Security Disability, she did attempt a trial return to work.
       { 54} Here, the commission's decision that relator was not entitled to an award of
TTD compensation was based on several findings: (1) relator waited two and one-half
years from the date she was terminated before she to returned to any employment; (2)
relator only remained in that employment for two weeks; (3) at the time that relator
returned to this new employment, she was under medical restrictions indicating that,
from a psychological standpoint, she was not capable of working at all; (4) relator's
No. 13AP-241                                                                          20


reasons for leaving this new employment were not related to the allowed psychological
condition but were, instead, related to the allowed physical conditions in her claim; and
(5) relator had been receiving Social Security Disability benefits since 2010.       The
magistrate finds that it was not improper for the commission to consider all of these
factors in determining that relator was not entitled to an award of TTD compensation.
The magistrate finds that the commission's order is supported by some evidence.
      { 55} Based on the forgoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied her an award of
TTD compensation and this court should deny relator's request for a writ of mandamus.


                                         /S/ MAGISTRATE
                                         STEPHANIE BISCA BROOKS


                             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).
