[Cite as State ex rel. Hartlieb v. Cleveland, 2017-Ohio-372.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

The State ex rel. Carl W. Hartlieb,                      :

                 Relator,                                :

v.                                                       :              No. 16AP-257

City of Cleveland and                                    :           (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                         :
                 Respondents.


                                                DECISION

                                      Rendered on January 31, 2017


                 Robert C. Bianchi, for relator.

                 City of Cleveland Department of Law, Barbara Langhenry
                 and Lisa A. Mack, for respondent City of Cleveland.

                 Michael DeWine, Attorney General, and LaTawnda N.
                 Moore, for respondent Industrial Commission of Ohio.


                                              IN MANDAMUS
BRUNNER, J.
        {¶ 1} Relator, Carl W. Hartlieb, has filed this original action requesting this Court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied his application for temporary total
disability ("TTD") compensation, and ordering the commission to find that he is entitled to
that award.
        {¶ 2} We referred this matter to a magistrate of this Court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
found that Hartlieb has not demonstrated that the commission abused its discretion when
                                                                                          2
No. 16AP-257
it denied his application for TTD compensation. The magistrate recommends that this
Court deny Hartlieb's request for a writ of mandamus.
       {¶ 3} No objections have been filed to the magistrate's decision.
       {¶ 4} Having conducted an independent review of the record in this matter and
finding no error of law or other defect on the face of the magistrate's decision, this Court
adopts the magistrate's decision as our own, including the findings of fact and conclusions
of law contained therein. In accordance with the magistrate's decision, we deny the
requested writ of mandamus.
                                                                Writ of mandamus denied.

                           TYACK, P.J., and KLATT, J., concur.

                                    _____________
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No. 16AP-257
                                        APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT



The State ex rel. Carl W. Hartlieb,              :

               Relator,                          :

v.                                               :                 No. 16AP-257

City of Cleveland                                :           (REGULAR CALENDAR)
and
Industrial Commission of Ohio,                   :

               Respondents.                      :


                          MAGISTRATE'S DECISION

                              Rendered on September 20, 2016



               Robert C. Bianchi, for relator.

               City of Cleveland Department of Law, Barbara Langhenry
               and Lisa A. Mack, for respondent City of Cleveland.

               Michael DeWine, Attorney General, and LaTawnda N.
               Moore, for respondent Industrial Commission of Ohio.


                                      IN MANDAMUS

       {¶ 5} Relator, Carl W. Hartlieb, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied his application for temporary total
disability ("TTD") compensation, and ordering the commission to find that he is entitled to
that award.
                                                                                         4
No. 16AP-257
Findings of Fact:
       {¶ 6} 1. Relator sustained a work-related injury on November 10, 2014 while
employed with the city of Cleveland ("employer"). Relator was injured when he slipped
off the step of a snow plow truck while getting into the truck and his workers'
compensation claim has been allowed for the following conditions: "sprain left hip;
sprain left calf; sprain left knee; left medial meniscus tear."
       {¶ 7} 2. For the past 17 years, relator routinely worked approximately 5 months
out of the year for the city of Cleveland and collected unemployment the remaining part of
the year.
       {¶ 8} 3. In 2015, relator requested TTD compensation and, in an order mailed
September 14, 2015, the administrator of the Ohio Bureau of Workers' Compensation
("BWC") granted him TTD compensation for the period March 16 through July 24, 2015,
minus any sick leave used or salary continuation paid, and to continue upon submission
of supportive medical documentation. The BWC order was based on the September 9,
2015 physician review report performed by Donato Borrillo, M.D., and the fact that
relator's claim had only recently been allowed for the left knee medial meniscus tear.
       {¶ 9} 4. The employer filed an appeal and the matter was heard before a district
hearing officer ("DHO") on October 23, 2015. The DHO affirmed the prior BWC order
based upon the July 24, 2015 Medco-14 Physician's Report of Work Ability of Steven
Bernie, M.D., and the testimony of relator that "were it not for his knee injury he would
have worked the period in question performing road repair work."
       {¶ 10} 5. The employer appealed and the matter was heard before a staff hearing
officer ("SHO") on January 6, 2016. The SHO vacated the prior DHO order and denied
the request for TTD compensation for two reasons. First, the SHO determined that
relator had been a seasonal employee for the employer for the past 17 years and failed to
establish that he would have been in the workforce during this time period if it were not
for this injury. Specifically, the SHO order provides:
               The Injured Worker has been a seasonal employee for the
               named Employer for the past 17 years as a snow plow
               operator. He began receiving Social Security benefits
               approximately 13 years ago. The Injured Worker has never
               worked for the named Employer beyond the snow season
               despite being offered such positions periodically based upon
                                                                                      5
No. 16AP-257
               seniority. The purpose of temporary total disability
               compensation is to compensate Injured Worker's from lost
               earnings as a result of a work-related injury. The Hearing
               Officer finds that the Injured Worker has failed to establish[]
               that he would have been in the work force during this time
               period if it would not have been for this injury.

      {¶ 11} The SHO also found that the medical evidence was insufficient to support
the requested period of TTD compensation, stating:
               Further, the Hearing Officer finds insufficient medical
               evidence to support temporary total disability compensation
               during this time period as it relates to the newly allowed
               condition. The Injured Worker has undergone extensive
               therapy in the past for the knee and the back. He has
               received injections in the knee and he has been determined
               to not be a surgical candidate. Further treatment would be
               directed at pain control and would not produce additional
               functionality. For this reason, the Hearing Officer relies upon
               the 12/16/2015 report of Cynthia Taylor, D.O., in that the
               Injured Worker has reached maximum medical
               improvement for all the allowed conditions of this claim.

               The Hearing Officer finds that the Claimant has reached
               maximum medical improvement. Maximum medical
               improvement is defined as a treatment plateau, static or
               well-stabilized, at which no fundamental, functional or
               physiological change can be expected within reasonable
               medical probability in spite of continuing medical or
               rehabilitative procedures (Ohio Adm. Code 4121-3-32).

      {¶ 12} 6. The SHO relied on the medical report of Cynthia Taylor, D.O., dated
December 27, 2015. In that report, Dr. Taylor listed the allowed conditions in relator's
claim, provided her physical findings upon examination, and concluded that relator's
allowed conditions had reached maximum medical improvement ("MMI"), stating:
               The injured worker has had conservative care and continues
               with chronic pain in the left hip and knee. He has reached a
               treatment plateau and MMI. He may have a hyaline injection
               into the left knee which could be helpful for pain
               management purposes, but this is not going to
               fundamentally change his functional status.

               ***
                                                                                            6
No. 16AP-257
               It is my medical opinion that the injured worker has reached
               MMI based on the review of records, his symptoms, and on
               my examination today.
               ***
               The injured worker had conservative care. He is going to
               have three injections into the left knee which could be
               helpful for pain management purposes. However, he has
               reached MMI as this will not change his functional status.

       {¶ 13} 7. There are several Medco-14s in the record signed by Phillip
Stickney, M.D. Dr. Stickney opined that relator was unable to perform any work from
March 16 through December 1, 2015.
       {¶ 14} 8. Relator's appeal was refused by order of the commission mailed
February 6, 2016.     The stipulation of evidence includes the Form 1099-G for 2014
indicating that relator was paid $6,102 of unemployment compensation that year.
       {¶ 15} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 16} For the reasons that follow, it is the magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 17} 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).
       {¶ 18} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
                                                                                          7
No. 16AP-257
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 19} 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).
       {¶ 20} In order to be entitled to the requested period of TTD compensation, relator
had the burden of proving that, but for the work-related injury, he would have been
employed. The evidence submitted indicates that, for the past 17 years, relator has
worked driving a snow plow for the city of Cleveland, and has not worked beyond the
snow season despite being offered such positions periodically based upon seniority. In
initially awarding relator TTD compensation, the DHO relied on his testimony that he had
planned on securing a job at the end of the snow season in 2015, but was precluded from
doing so because of the allowed conditions in the claim. Although relator was also present
for the hearing before the SHO and likely testified that 2015 was the year that he planned
to work after the close of the snow season, the SHO clearly did not find his testimony to be
credible.
       {¶ 21} Questions of fact and the credibility of evidence are within the discretion of
the commission as fact finder and it is immaterial whether other evidence, even if greater
in quality and/or quantity supports a decision contrary to the commission's. Teece; State
ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (1996). Further, the commission is
not required to accept self-serving statements as some evidence. State ex rel. Kidwell v.
Indus. Comm., 10th Dist. No. 02AP-940, 2003-Ohio-4509.
       {¶ 22} In support of his argument, relator cites the Supreme Court of Ohio's
decision in State ex rel. Crim v. Bur. of Workers' Comp., 92 Ohio St.3d 481 (2001). Susan
Y. Crim was hired by the Tuscawarus County Board of Mental Retardation and
                                                                                          8
No. 16AP-257
Developmental Disabilities to teach swimming during the 1996-1997 school year. Under
the terms of her contract, she had the option of and elected to receive her pay on a
prorated basis over a 12-month period. On May 29, 1997, Crim was injured while working
in the course of her employment and, as a result, she was unable to take a summer job
with an organization that had employed her the previous summer.
       {¶ 23} The commission denied her request for TTD compensation finding that she
did not establish a loss of earnings since she received prorated earnings during the
summer months.
       {¶ 24} Crim filed a mandamus action in this court, which was granted. Thereafter,
both the commission and the employer appealed that decision. The Supreme Court of
Ohio indicated that there were two issues presented. The first issue was whether a
teacher who contracts to teach during a school year is considered to have voluntarily
abandoned his or her employment at the end of an academic calendar year for the
purposes of TTD compensation. The second issue was whether a teacher, employed for
nine months of the year, who elects to receive prorated compensation over 12 months, is
entitled to TTD compensation for summer employment that he or she was unable to
perform because of the allowed conditions in the claim.
       {¶ 25} The court held that a teacher does not voluntarily abandon his or her
position of employment at the end of the school year and that, although receiving
prorated earnings, he or she is may be entitled to an award of TTD compensation.
       {¶ 26} Crim presented evidence that she had worked at the YMCA the previous
summer and that she intended to resume summer employment with the YMCA for the
summer of 1997. Based on Crim's intent to return to the summer position at the YMCA
and her previous history of summer employment, the court concluded that Crim did
suffer a loss of earnings.
       {¶ 27} By comparison, relator worked driving a snow plow for the city of Cleveland
for 17 years. Over the course of those 17 years, relator never worked during the off season.
Instead, he chose to receive unemployment compensation.              Although relator did
apparently testify that, after 17 years he intended to work in the off season, the
commission was not required to rely on his testimony. As such, based on the facts,
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No. 16AP-257
relator's case is clearly distinguishable from the facts in Crim. As such, the magistrate
finds that relator has not demonstrated that the commission has abused its discretion.
      {¶ 28} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in denying his application for
TTD compensation, and this court should deny relator's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               NOTICE TO THE PARTIES

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