[Cite as State ex rel. Koch v. Indus. Comm., 2019-Ohio-4438.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Tina M. Koch,                        :

                 Relator,                              :

v.                                                     :              No. 18AP-396

Industrial Commission of Ohio et al.,                  :           (REGULAR CALENDAR)

                 Respondents.                          :



                                           D E C I S I O N

                                    Rendered on October 29, 2019


                 Plevin & Gallucci Co., L.P.A., Franklin County Court of
                 Common Pleas L. Gallucci, III, Bradley Elzeer, II, and Fred S.
                 Papalardo, Jr.; Paul W. Flowers Co., L.P.A., Paul W. Flowers,
                 and Louis E. Grube, for relator.

                 Dave Yost, Attorney General, and Natalie J. Tackett, for
                 respondent Industrial Commission of Ohio.

                 Morrow & Meyer, LLC, Mary E. Ulm, for respondent Fresh
                 Mark, Inc.

                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
NELSON, J.
        {¶ 1} The Industrial Commission of Ohio is entitled to conclude that a company
employee —a payroll clerk, no less—who submits false time sheets and is released from
employment pursuant to established policy has voluntarily abandoned her job and is not
eligible for continued temporary total disability status. And because the claimant here has
made no argument to us that an employer's attempt to resolve issues with such employee
through potential (mis)use of another state system (by suggesting that a prospective
application for unemployment compensation be characterized as arising from a
"permanent lay-off" rather than the firing) necessarily estops the employer from making its
No. 18AP-396                                                                                2

voluntary abandonment case to the commission, we find that the magistrate was correct in
recommending that we deny the writ of mandamus the claimant requests to require the
commission to grant the claimed disability status.
       {¶ 2} This matter comes before us on the timely objections of relator Tina M. Koch
to the magistrate's May 29, 2019 decision recommending that we deny her request for a
writ of mandamus directing the commission to reverse the February 22, 2017 order of the
staff hearing officer that denied her claim for temporary total disability. Applying to the
facts of this case the holding of State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. of
Ohio, 72 Ohio St.3d 401 (1995), the staff hearing officer concluded that Ms. Koch had
"voluntarily abandon[ed] her former position" at respondent Fresh Mark, Inc., and denied
her claim. Feb. 24, 2017 SHO Order, Stip.R. 90; see Louisiana-Pacific, 72 Ohio St.3d at
403 (a termination is voluntary when it is "generated by the claimant's violation of a written
work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously
identified by the employer as a dischargeable offense, and (3) was known or should have
been known to the employee"). Our "independent review" of the matters to which Ms. Koch
objects leads us to conclude that "the magistrate has properly determined the factual issues
and appropriately applied the law." Civ.R. 53(D)(4)(d). Accordingly, we will adopt the
magistrate's decision, with one clarification, and deny the writ.
       {¶ 3} Ms. Koch, a Fresh Mark payroll clerk, "slipped on [a] wet floor and fell" at
work on April 19, 2016, injuring her left shoulder. July 27, 2016 First Report of Injury,
Stip.R. 2. She had shoulder surgery on July 21, 2016 and received temporary total disability
compensation from that date until she returned to work on September 19, 2016.
Jan. 9, 2017 Tr. at 4-6, Stip.R. 61-63. During that period, accountants at Fresh Mark
"discovered a discrepancy" on Ms. Koch's time sheets while conducting a "routine audit."
Id. at 22, Stip.R. 79. The time sheets recorded 16 hours of work for June 19, June 26, and
July 10, but the company's electronic system for recording employee badge swipes had no
record of Ms. Koch being there on those dates. Compare Stip.R. 27 & 29 (ADP Time &
Attendance records) with Stip.R. 34-36 ("All Events Over Time" report for June 1, 2016 to
July 31, 2016). Fresh Mark's employee handbook warned employees that "[t]ampering
with the time keeping system or falsifying time keeping records are grounds for
termination." Handbook for Salaried Employees, Stip.R. 23.
No. 18AP-396                                                                                3

       {¶ 4} When Ms. Koch returned to work on September 19, 2016, her supervisor, Dan
Holt, and Fresh Mark's Human Resource Director, Tim Albrecht, confronted her about the
discrepancies. Jan 9, 2017 Tr. at 7, Stip.R. 64. She "denied falsifying her time sheets but
admitted that she may have completed them in advance in anticipation of the time she
thought she was going to be working," and failed to correct them before submitting them
to Fresh Mark. Feb. 24, 2017 SHO Order, Stip.R. 90.
       {¶ 5} Mr. Holt and Mr. Albrecht testified that they informed Ms. Koch that her
employment was terminated for falsifying time records. Jan. 9, 2017 Tr. at 10, Stip.R. 67;
Feb. 16, 2017 Tr. at 14, Stip.R. 106. She remembers the conversation differently, claiming
that she was given "a permanent layoff." Jan. 9, 2017 Tr. at 7, Stip.R. 64.
       {¶ 6} Fresh Mark then provided Ms. Koch with a proposed "Separation
Agreement" that would have given her six weeks of severance pay in exchange for a release
of all claims against Fresh Mark, along with the company's agreement not to "require the
reimbursement of wages that [Ms. Koch] received and [was] not entitled to." Stip.R. 83.
Fresh Mark proposed further language reading at paragraph 4 of the draft: "Fresh Mark
hereby agrees not to oppose, object to, or otherwise contest any application for
unemployment compensation benefits filed by Employee with the Ohio Department of Job
and Family Services as long as the reason is permanent lay-off." Although Ms. Koch signed
the proffered agreement, she added "additional language" and terms before returning it,
causing Fresh Mark to reject it. Feb. 16, 2017 Tr. at 18-19, Stip.R. 110-11.
       {¶ 7} Ms. Koch later filed a claim for total temporary disability for the period of
September 19, 2016 to November 28, 2016. Noting the "equivocal nature of the evidence"
surrounding Ms. Koch's termination, a district hearing officer ("DHO") concluded that no
voluntary abandonment under Louisiana-Pacific had occurred and awarded her TTD
compensation. Jan. 12, 2017 DHO Order, Stip.R. 55.
       {¶ 8} Fresh Mark appealed and a staff hearing officer heard additional testimony,
vacated the order, and denied Ms. Koch's claim. According to the staff hearing officer, Ms.
Koch's "failure to rectify the known errors in her time records resulted in false information
being provided to the Employer and the Injured Worker deriving a benefit from the same
in the form of receiving pay for time that she did not work." Feb. 24, 2017 SHO Order,
Stip.R. 90. This violated Fresh Mark's written work rule prohibiting the falsification of time
No. 18AP-396                                                                                   4

records, the staff hearing officer concluded, thereby satisfying the requirements of a
voluntary abandonment under Louisiana-Pacific.
       {¶ 9} Ms. Koch has raised several objections to the magistrate's decision, which
largely tracks the staff hearing officer's application of Louisiana-Pacific to the
circumstances surrounding the end of Ms. Koch's tenure at Fresh Mark. She first objects
to the magistrate's findings of fact "only to the extent that it was implicitly determined that
Relator was fired from her employment for any reason at all, including for violation of a
written work rule." Objections at 2. But the record contains evidence that the reason Fresh
Mark terminated Ms. Koch's employment was for violating the written work rule that
prohibited falsification of timesheets. "Where the record contains some evidence which
supports the commission's factual findings, such findings will not be disturbed." State ex
rel. Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202 (1988), syllabus.
       {¶ 10} The magistrate's task was to determine whether there was "some evidence"
in the record to support the staff hearing officer's determination that Fresh Mark
terminated Ms. Koch's employment for violating a written work rule. The magistrate
correctly found that there was such evidence, stating: "The SHO relied on the testimony of
Mr. Albrecht and Mr. Holt concerning the termination and further found, at the very heart,
relator's failure to correct her time sheets resulting in her providing false information and
the benefit of pay she did not earn." App'x at ¶ 35. Ms. Koch's objection, which amounts to
a plea to ignore that evidence as not "credible" and as "implausible" and therefore deserving
of rejection, see Objections of Relator at 3 and 4, is overruled, as are her corollary objections
to the magistrate's conclusions of law. "The commission is exclusively responsible for
evaluating the weight and credibility of the evidence." State ex rel. Black v. Indus. Comm.,
137 Ohio St.3d 75, 2013-Ohio-4550, ¶ 19, citing State ex rel. Burley v. Coil Packing, Inc.,
31 Ohio St.3d 18, 20-21 (1987). Thus, "a court must not substitute its judgment for that of
the commission or second-guess the commission's evaluation of the evidence." Id. at ¶ 22,
citing State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-4637, ¶ 11.
Because a reviewing court lacks the authority to reassess the credibility of the witnesses
upon whose testimony the commission relied, the magistrate did not err in accepting the
commission's evaluation of the credibility of the Fresh Mark representatives.
       {¶ 11} Ms. Koch also asserts: "Just as the SHO did, the Magistrate misread the
[proposed] Separation Agreement" by "concluding that there was 'no reference in this
No. 18AP-396                                                                             5

document to the Injured Worker being laid off,' " despite paragraph four of the draft.
Objections at 4, quoting Feb. 24, 2017 SHO Order. That is incorrect, and would not appear
dispositive in any event. We understand that all parties find the proposed Separation
Agreement potentially probative of Fresh Mark's intent and appear to agree that the
commission was justified in looking to this document, despite their differing
interpretations of it. Compare Objections at 4-6 with Jun. 25, 2019 Memorandum of
Respondent Fresh Mark, Inc. in Opposition to Relator's Objections to Magistrate's Decision
at 11 (the SHO "specifically noted this language and found, as a matter of fact, that the
Separation Agreement specifically states that Relator's employment was being
terminated") and July 1, 2019 Respondent's, Industrial Commission of Ohio,
Memorandum Contra to Objections of Relator, Tina Koch at 7-8 (provisions of proposed
Separation Agreement "support the commission's decision that Koch violated a known
written work rule sufficient to warrant termination"). But no one, including Ms. Koch, has
argued that the commission was limited to considering only the proposed agreement and
barred from considering any other evidence.
       {¶ 12} First, Ms. Koch misreads the magistrate's decision, which specifically
acknowledges that "the SHO did incorrectly state that there was no reference [in the
proposed Settlement Agreement] to relator being laid off." App'x at ¶ 38. Second, Ms. Koch
cites no reason why Fresh Mark would have been required to make its grounds for the firing
explicit in that writing. Third, the language of the proposed agreement as a whole,
including language that "Fresh Mark ha[d] decided to terminate Employee's employment"
and that payroll clerk Koch had received wages "you * * * were not entitled to" arguably
might weigh in favor of the commission's finding that she was fired; but in any event, and
if the references to "termination" did not signal for-cause dismissal, see Objections of
Relator at 5, the reason why Ms. Koch was terminated still could remain a fact question for
the commission to review on the evidence overall. Finally, and again, Ms. Koch presents
no argument that the company's suggested language about it not opposing an
unemployment compensation claim if based on an assertion of "permanent lay-off" wholly
nullified and prevented the commission from considering testimonial evidence that Ms.
Koch was fired.
       {¶ 13} Regardless of what the proposed but not adopted Separation Agreement said,
the staff hearing officer had evidence on which to conclude that Ms. Koch was indeed fired
No. 18AP-396                                                                                6

for the fireable offense of submitting false time records. The staff hearing officer cited the
rule in Fresh Mark's employee handbook providing termination for "falsifying time keeping
records," cited Ms. Koch's admission that she filled time sheets out in advance and failed to
correct them after submitting them, and cited the testimony of Mr. Albrecht and Mr. Holt
that she was fired on that basis. Feb. 24, 2017 SHO Order. Ms. Koch concedes that "the
Employer's representatives insisted that she was really fired for having 'stoled' company
money * * *." Objections of Relator at 3-4. That concession establishes that there is some
evidence for the commission's conclusion that Ms. Koch voluntarily abandoned her
employment. Ms. Koch therefore is incorrect to assert that "[n]one of the evidence even
suggests that she was actually fired for any specific reason," or to assert that no evidence
supported the commission's conclusion that she "violated a written work rule which she
knew or should have known would have resulted in her termination." Objection at 6,
quoting App'x at ¶ 35.
       {¶ 14} We overrule all objections and adopt the magistrate's decision as our own,
while clarifying that we read the last full sentence of paragraph 38 of the appended decision
to mean that the draft agreement's "sole reference that the employer would not oppose an
application for unemployment compensation provided the relator notes the reason as
permanent layoff does not change the nature of" the termination (as opposed to "the
settlement agreement"). We therefore deny Ms. Koch's request that we issue a writ of
mandamus.
       {¶ 15} We are constrained to observe, however, that Ms. Koch is correct in noting
that generally "Ohio law prohibits workers who have been terminated for cause from
collecting unemployment benefits." Objections of Relator at 4, citing R.C. 4141.29(D)(2)(a).
The attorney general's office has represented the industrial commission in this matter, is
apprised of the facts of record including the terms of Fresh Mark's settlement proposal, and
is in a position to make any notifications or undertake further action if appropriate.
                                                         Objections overruled; writ denied.

                           KLATT, P.J., and BROWN, J., concur.
                               _________________
No. 18AP-396                                                                                 7

                                     APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Tina M. Koch,                :

              Relator,                         :

v.                                             :                     No. 18AP-396

Industrial Commission of Ohio et al.,          :               (REGULAR CALENDAR)

              Respondents.                     :



                          MAGISTRATE'S DECISION

                                  Rendered on May 29, 2019



              Plevin & Gallucci Co., L.P.A., Franklin County Court of
              Common Pleas L. Gallucci, III, Bradley Elzeer, II, and Fred S.
              Papalardo, Jr.; Paul W. Flowers Co., L.P.A., Paul W. Flowers,
              and Louis E. Grube, for relator.

              Dave Yost, Attorney General, and Natalie J. Tackett, for
              respondent Industrial Commission of Ohio.

              Morrow & Meyer, LLC, Mary E. Ulm, for respondent Fresh
              Mark, Inc.


                                      IN MANDAMUS

       {¶ 16} Relator, Tina M. Koch, has filed this original action requesting this court issue
a writ of mandamus against respondent, Industrial Commission of Ohio ("commission"),
which denied her request for temporary total disability ("TTD") after finding that her post-
injury violation of a written work rule constituted a voluntary abandonment of
employment, and ordering respondent to grant her that compensation.
Findings of Fact:
No. 18AP-396                                                                                  8

       {¶ 17} 1.    Relator worked as a payroll clerk for respondent Fresh Mark, Inc.
("employer"). According to her testimony at the hearings, she also occasionally worked
cleaning at three of relator's facilities.
       {¶ 18} 2. Relator was injured on April 19, 2016 when she slipped and fell on a wet
floor. Relator's claim is allowed for the following conditions: "neck sprain; left shoulder
sprain; left partial supraspinatus tear; left biceps tear."
       {¶ 19} 3. On July 21, 2016, Mark Shepard, M.D., performed the following surgical
procedure on relator's right shoulder:
               Right shoulder arthroscopy with extensive debridement of
               torn labrum, torn rotator cuff, torn biceps tendon,
               arthroscopic subacromial decompression, and arthroscopic
               distal clavicle excision, and arthroscopic rotator cuff repair.

       {¶ 20} 4. Dr. Shepard completed a Medco-14 Physician's Report of Work Ability
certifying that relator was temporarily not released to any work, including the former
position of employment, from July 21 to July 29, 2016.
       {¶ 21} 5.    While relator was off work, the employer's accounting department
conducted a routine audit. Discrepancies were found in relator's time sheets. In a July 27,
2016 e-mail from Karen Dunn to Tom Fee, a discrepancy of 16 hours was noted between
June 19 and July 10, 2016. The discrepancies were noted because relator has an electronic
system (Lenel) which requires that each employee swipe his/her badge when entering the
facilities. According to Lenel, there was no record that relator worked at any of the facilities
on June 19, June 26, or July 10, 2016. Sign-in sheets and cameras were also reviewed and
there was no record that relator was in any of the buildings on those dates. Further, relator
did not log into her work computer on those days.
       {¶ 22} 6. The employer did not immediately contact relator because she was off
work recovering from surgery.
       {¶ 23} 7. The employer provided a copy of its handbook for salaried employees. The
handbook provides, in relevant part:
               Federal and state regulations require that accurate time
               records be maintained for all non-exempt employees. Upon
               employment, you will be informed of the time keeping system
               in place at your facility. It is your responsibility to follow the
               system in place at your facility. The time keeping system is a
               legal record of time worked. An employee's attendance is
No. 18AP-396                                                                            9

              determined by the system in place. Tampering with the time
              keeping system or falsifying time keeping records are grounds
              for termination.

       {¶ 24} 8. When relator returned to work on September 19, 2016, Tim Albrecht, the
employer's human resource manager, had a discussion with relator concerning the
discrepancies. After being presented with the evidence indicating that she had not entered
any of the employer's facilities on the dates in question, relator admitted that she
occasionally fills out a time sheet ahead of schedule and marks down the hours which she
believes she will work. Relator indicated that she must have forgotten to go back and
correct the time sheets.
       {¶ 25} 9. Relator prepared a separation agreement and release of claims for relator
to sign. That agreement provides, in pertinent part:
              WHEREAS, Fresh Mark has decided to terminate Employee's
              employment with Fresh Mark effective as of the close of
              business on September 19, 2016; and

              WHEREAS, the Parties have deemed it prudent and advisable
              and wish to resolve all matters and issues between them
              arising from or relating to Employee's employment with Fresh
              Mark and the termination of Employee's employment with
              Fresh Mark.

              NOW, THEREFORE, in consideration of the mutual promises
              and covenants contained herein, Employee and Fresh Mark
              hereby agree as follows:

              [One] Severance Pay. Upon the Effective Date of this
              Agreement, and retroactive to Employee's Date of Separation,
              Fresh Mark will continue Employee's regular base pay, less
              applicable payroll taxes and withholdings, for a period of 6
              weeks (the "Severance Pay Period"). Such payments to
              Employee will be made in accordance with the Company's
              regular payroll practices.

              [Two] Waiver of Overpayment. Fresh Mark will not require
              the reimbursement of wages that you received and were not
              entitled to.

              ***
              [Four] Unemployment Benefits. Fresh Mark hereby agrees
              not to oppose, object to, or otherwise contest any application
              for unemployment compensation benefits filed by Employee
No. 18AP-396                                                                            10

              with the Ohio Department of Job and Family Services as long
              as the reason is permanent lay-off.

              [Five] Neutral Reference. If inquiries are made of Fresh Mark
              by potential employers of Employee, Fresh Mark will provide
              a neutral reference confirming that Employee was employed,
              date of employment, and position held. No further
              information will be provided.

              ***

              [Fourteen] Re-Employment. Employee acknowledges that,
              because of payments and benefits offered to her by Fresh
              Mark in this Agreement, she has no right to future
              employment with Fresh Mark, and she agrees that she shall
              not apply in the future for employment with Fresh Mark.
              Employee acknowledges that Fresh Mark is not obligated to
              consider any application from her in the future.

              ***

              [Sixteen] Entire Agreement. Employee and Fresh Mark agree
              that this Agreement contains the entire agreement between
              the Parties hereto and replaces any prior agreements,
              contracts and/or promises, whether written or oral, with
              respect to the subject matters included herein. This
              Agreement may not be changed orally, but only in writing,
              signed by each of the Parties hereto.

(Emphasis sic and added.)
       {¶ 26} 10. On October 21, 2016, relator filed a motion seeking the payment of TTD
compensation from September 19 through November 28, 2016, when she returned to work
with a different employer.
       {¶ 27} 11. The matter was heard before a district hearing officer ("DHO") on January
9, 2017. The DHO granted the requested period of TTD compensation finding that the
employer had not met its burden of proving that relator was, in fact, terminated. Relator
had asserted she had been laid off.
       {¶ 28} 12. The employer filed an appeal and the matter was heard before a staff
hearing officer ("SHO") on February 16, 2017. The SHO vacated the prior DHO order and
denied the requested period of TTD compensation finding that relator had been terminated
for violation of a written work rule. The SHO explained:
No. 18AP-396                                                                   11

           By way of history, the Staff Hearing Officer notes that prior to
           09/19/2016 the Employer of record had been paying the
           Injured Worker temporary total disability compensation as a
           result of surgery that was authorized in this claim. However,
           while the Injured Worker was off on temporary total disability
           compensation it came to the Employer's attention that some
           of the Injured Worker's time records prior to her going off on
           disability did not match the hours that she worked. As the
           Injured Worker was off on temporary total disability
           compensation no action was taken by the Employer. However,
           when the Injured Worker reported for work on 11/19/2016 to
           resume the duties of her former position of employment the
           Employer confronted her about these discrepancies and
           immediately terminated her employment.

           The Staff Hearing Officer finds that the Injured Worker's
           termination of employment on 09/19/2016 was a voluntary
           abandonment under the holding of State ex rel. Louisiana-
           Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401,
           thereby precluding the payment of temporary total disability
           compensation. The Court in Louisiana-Pacific found that a
           discharge from employment was voluntary when termination
           resulted from violation of a written work rule or policy that:
           (1) clearly define the prohibited conduct; (2) had been
           previously identified by the employer as a dischargeable
           offense; and (3) was known or should have been known to the
           employee. The Employer's handbook for salaried employees
           clearly indicates that tampering with the time keeping system
           or falsifying time keeping records are grounds for
           termination. The Injured Worker was aware of this policy as
           she was required to use this handbook in performing her
           duties with the Employer. The Staff Hearing Officer notes that
           the Injured Worker denied falsifying her time sheets but
           admitted that she may have completed them in advance in
           anticipation of the time she thought she was going to be
           working and that she may not have corrected the same prior
           to submitted them to the Employer. However, giving the
           Injured Worker the benefit of the doubt, the Staff Hearing
           Officer finds that her failure to rectify the known errors in her
           time records resulted in false information being provided to
           the Employer and the Injured Worker deriving a benefit from
           the same in the form of receiving pay for time that she did not
           work.

           The Staff Hearing Officer notes that while the Injured Worker
           testified that she was told on 09/19/2016 that she was being
           laid off and there was no indication that she was being
No. 18AP-396                                                                               12

              terminated, both Mr. Albrecht and Mr. Holt testified to the
              contrary. Moreover, the Separation Agreement and Release
              prepared by the Employer on 09/19/2016 clearly states that
              the Injured Worker's employment was being terminated.
              There is no reference in this document as to the Injured
              Worker being laid off. While the Injured Worker declined to
              sign the Agreement the language contained therein clearly
              states that the Injured Worker's employment with the
              Employer was being terminated.

              As such, it is clear that the Injured Worker's termination of
              employment on 09/19/2016 was tantamount to her having
              voluntarily abandon her former position of employment for
              reasons unrelated to the allowed conditions in this claim.

              Accordingly, the C-86 Motion filed by the Injured Worker on
              10/21/2016 is denied.

       {¶ 29} 13. Relator's appeal and request for reconsideration were both refused and
denied.
       {¶ 30} 14. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 31} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 32} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 33} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the former
position of employment; (3) when work within the physical capabilities of claimant is made
available by the employer or another employer; or (4) claimant has reached MMI. See R.C.
4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
No. 18AP-396                                                                                 13

       {¶ 34} Relator argued that she was permanently laid off and not terminated. In
support of her argument, relator pointed to paragraph four of the separation agreement
which pertained to unemployment benefits. That paragraph provides:
              Unemployment Benefits. Fresh Mark hereby agrees not to
              oppose, object to, or otherwise contest any application for
              unemployment compensation benefits filed by Employee with
              the Ohio Department of Job and Family Services as long as
              the reason is permanent lay-off.

(Emphasis sic and added.)
       {¶ 35} The commission disagreed with relator's argument finding that relator had,
in fact, violated a written work rule which she knew or should have known would have
resulted in her termination. State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio
St.3d 401 (1995). The SHO relied on the testimony of Mr. Albrecht and Mr. Holt concerning
the termination and further found, at the very heart, relator's failure to correct her time
sheets resulted in her providing false information and the benefit of pay she did not earn.
The requirements of Louisiana-Pacific were met here. The SHO also noted that the
separation agreement and release clearly indicated that relator was being terminated.
       {¶ 36} Relator points to the fact that the SHO said that there was no reference in the
agreement to her being laid off as evidence of a clear mistake of fact on the part of the SHO
and contends the commission abused its discretion when it refused to exercise its
continuing jurisdiction to correct same. For the reasons that follow, the magistrate
disagrees.
       {¶ 37} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission and
the authority of the administrator of workers' compensation over each case is continuing,
and the commission may make such modification or change with respect to former findings
or orders with respect thereto, as, in its opinion is justified." In State ex rel. B & C Machine
Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), the court examined the judicially-
carved circumstances under which continuing jurisdiction may be exercised, and stated as
follows:
              R.C. 4123.52 contains a broad grant of authority. However, we
              are aware that the commission's continuing jurisdiction is not
              unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight
              System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480
              N.E.2d 487 (commission has inherent power to reconsider its
No. 18AP-396                                                                              14

              order for a reasonable period of time absent statutory or
              administrative restrictions); State ex rel. Cuyahoga Hts. Bd.
              of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d 128,
              388 N.E.2d 1383 (just cause for modification of a prior order
              includes new and changed conditions); State ex rel. Weimer
              v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174,
              404 N.E.2d 149 (continuing jurisdiction exists when prior
              order is clearly a mistake of fact); State ex rel. Kilgore v.
              Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio Law Abs. 62,
              174 N.E. 345 (commission has continuing jurisdiction in cases
              involving fraud); State ex rel. Manns v. Indus. Comm. (1988),
              39 Ohio St.3d 188, 529 N.E.2d 1379 (an error by an inferior
              tribunal is a sufficient reason to invoke continuing
              jurisdiction); and State ex rel. Saunders v. Metal Container
              Corp. (1990), 52 Ohio St.3d 85, 86, 556 N.E.2d 168, 170
              (mistake must be "sufficient to invoke the continuing
              jurisdiction provisions of R.C. 4123.52"). Today, we expand
              the list set forth above and hold that the Industrial
              Commission has the authority pursuant to R.C. 4123.52 to
              modify a prior order that is clearly a mistake of law.

Id. at 541.
       {¶ 38} Although the SHO did incorrectly state there was no reference to relator
being laid off, the magistrate agrees with the SHO's finding that the separation agreement
clearly provides that relator's employment was being terminated. At the outset, the
agreement notes the employer has "decided to terminate [relator's] employment," the
parties deem it "prudent and advisable * * * to resolve all matters and issues * * * relating
to * * * the termination of [relator's] employment," the employer agreed to "provide a
neutral reference" confirming relator's employment without providing any further
information, relator acknowledged that she had "no right to future employment." The
magistrate finds the sole reference that the employer would not oppose an application for
unemployment compensation provided the relator notes the reason as permanent layoff
does not change the nature of the separation agreement.
       {¶ 39} The magistrate finds the commission did not abuse its discretion when it
determined the employer had presented sufficient evidence to satisfy the requirements of
Louisiana-Pacific and denying relator's request for TTD compensation. As such, it is this
magistrate's decision that this court should deny relator's request for a writ of mandamus.
No. 18AP-396                                                                    15

                                           /S/ MAGISTRATE
                                           STEPHANIE BISCA




                           NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
           error on appeal the court's adoption of any factual finding or
           legal conclusion, whether or not specifically designated as a
           finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
           unless the party timely and specifically objects to that factual
           finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
