[Cite as State ex rel. McKee v. Union Metal Corp., 2016-Ohio-1236.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio ex rel. Stephen McKee,                   :

                 Relator,                              :

v.                                                     :                 No. 15AP-414

Union Metal Corporation and                            :              (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                       :
                 Respondents.
                                                       :



                                           D E C I S I O N

                                     Rendered on March 24, 2016


                 On brief: The Mikulka Law Firm, LLC, and Angela J.
                 Mikulka, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 Amanda B. Brown, for respondent Industrial Commission of
                 Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Stephen McKee, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying his application for permanent total disability ("PTD")
compensation, and to enter an order granting said compensation.
        {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. Because relator was deemed
No. 15AP-414                                                                              2

capable of some sustained remunerative employment in 2000, but did not seek retraining
or further employment thereafter, the magistrate found that the commission did not
abuse its discretion in denying PTD compensation based on relator's voluntary
abandonment of the workforce. Accordingly, the magistrate has recommended that we
deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision.        In his first
objection, relator contends he did not voluntarily abandon the workforce because he
relied on and followed the advice of his physician who declared him unable to work. We
disagree.
       {¶ 4} To be entitled to PTD compensation, a claimant must establish a casual
relationship between the industrial injury and any loss of earnings. State ex rel. Roxbury
v. Indus. Comm., 138 Ohio St.3d 91, 2014-Ohio-84, ¶ 11 (applying this principle to
temporary total disability compensation), citing State ex rel. McCoy v. Dedicated
Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, ¶ 35. Absent the required causal
relationship, the claimant is not eligible for compensation. Id. A claimant who has
voluntarily abandoned the workforce for reasons not related to the allowed conditions is
therefore not eligible for compensation because the necessary causal link between the
allowed conditions and the loss of earnings is lacking. Id., citing State ex rel. Pierron v.
Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, ¶ 9. This is a question of fact for the
commission to determine. Id.
       {¶ 5} Here, the record reflects that relator abandoned his employment in the mid-
1990s. Subsequently, relator applied for and received social security disability benefits.
In 2000, relator applied for PTD compensation. The commission denied relator PTD
because it determined he was capable of sustained remunerative employment.
Nevertheless, relator did not seek or obtain further employment nor did he pursue
vocational rehabilitation. Relator filed another application for PTD in 2014, which the
commission denied. Relator did not appear and testify at the hearing before the staff
hearing officer ("SHO").     Relator's failure to seek other employment or to pursue
vocational rehabilitation when he was deemed capable of sustained remunerative
employment is some evidence that relator voluntarily abandoned the workforce. On this
record, we agree with the magistrate that the commission did not abuse its discretion in
No. 15AP-414                                                                               3

determining that relator voluntarily abandoned the workforce for reasons unrelated to his
allowed conditions, and therefore, was ineligible for PTD compensation. Accordingly, we
overrule relator's first objection.
       {¶ 6} In his second objection, relator contends that the magistrate erred when she
failed to find that the bureau waived the voluntary abandonment affirmative defense.
Relator also contends that there was no evidence presented that relator voluntarily
abandoned the workforce. We find both contentions unpersuasive.
       {¶ 7} Although relator asserts that the issue of voluntary abandonment was not
raised at the hearing before the SHO, relator points to nothing in the record that supports
this contention. The record does not contain a transcript of what was argued before the
SHO. Therefore, the record does not indicate how the issue of voluntarily abandonment
of the workforce came to the attention of the SHO. Relator has the burden in mandamus
and has failed to meet that burden when he fails to support an alleged error with evidence
in the record. State ex rel. Ormet Corp. v. Indus. Comm., 10th Dist. No. 87AP-1187
(Sept. 26, 1989) (claimant, not the commission, bears the burden to prove entitlement to
mandamus relief). If there is a deficiency in the record, it is because relator failed in his
burden of proof. Accordingly, we overrule relator's second objection.
       {¶ 8} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
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 relator's request
for a writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                            DORRIAN, P.J., and BRUNNER, J., concur.
No. 15AP-414                                                                            4

                                        APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel. Stephen McKee,        :

             Relator,                       :

v.                                          :                    No. 15AP-414

Union Metal Corporation and                 :               (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                            :
             Respondents.
                                            :



                         MAGISTRATE'S DECISION

                            Rendered on December 14, 2015



             The Mikulka Law Firm, LLC, and Angela J. Mikulka, for
             relator.

             Michael DeWine, Attorney General, and Amanda B. Brown,
             for respondent Industrial Commission of Ohio.


                                       IN MANDAMUS

      {¶ 9} Relator, Stephen McKee, 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 denying his application for permanent total disability
("PTD") compensation, and to enter an order finding that he is entitled to that
compensation.
No. 15AP-414                                                                           5

Findings of Fact:
       {¶ 10} 1. Relator sustained a work-related injury on March 10, 1993, while working
for Union Metal Corporation ("Union Metal"). Relator's workers' compensation claim is
allowed for the following conditions:
              CERVICAL SPRAIN/STRAIN; FOCAL SPINAL STENOSIS
              DUE TO MARKED DEGENERATIVE DISC BULGE AND
              SPUR FORMATION AT C5-6; NEUROTIC DEPRESSION.

       {¶ 11} 2. Sometime in 1997, relator filed a motion asking that his claim be
additionally allowed for cervical spinal stenosis and that he be awarded temporary total
disability ("TTD") compensation.
       {¶ 12} 3. The matter was heard before a district hearing officer ("DHO") on
March 12, 1998. The DHO found that relator's "claim has previously been additionally
allowed for the condition of 'focal spinal stenosis due to marked degenerative disc bulge
and spur formation at C5-6' by order of the Stark County Court of Common Pleas dated 7-
10-97 and filed" and "the condition of 'cervical stenosis' is synonymous with the above
allowance."
       {¶ 13} Thereafter, the DHO discussed relator's request for TTD compensation and
ultimately determined that he was not entitled to that award because he had voluntarily
abandoned his employment with Union Metal. Specifically, the DHO made the following
findings and legal conclusions:
              With regard to the issue of claimant's entitlement to
              Temporary Total Compensation for the period from 4/19/97
              to 3/12/98, the District Hearing Officer must address the
              employer's argument that claimant voluntarily abandoned
              his employment on or about 12/14/95. The employer
              maintains that in early 1995 claimant returned to work at his
              regular job as an "auto welder" after being on light duty for a
              several month period. Claimant continued to work in his
              regular job until September, 1995 at which time he requested
              leave due to personal problems with his family. This leave
              was to extend until sometime in December, 1995. Thereafter,
              claimant was to return beck to work as an auto welder with
              Union Metal.

              However, the employer alleges that instead of returning to
              work as an auto welder, claimant found other employment in
              October, 1995, as a truck driver with Victory Express. The
No. 15AP-414                                                                  6

           employer further maintains that claimant did not in fact
           return to work as an auto welder in December, 1995 and that
           claimant notified the employer that he would not be
           returning to work at Union Metal. For these reasons, the
           employer terminated the claimant's employment on
           December 14, 1995. And, for these reasons, the employer
           now asserts that claimant voluntarily abandoned his
           employment with Union Metal so as to preclude claimant's
           receipt of Temporary Total Compensation in this claim.

           In response to the employer's argument, the claimant
           maintains that he sought employment with Victory Express
           in October, 1995 because his allowed physical conditions
           deteriorated to the point where he became precluded from
           further performing the essential functions of his job as an
           auto welder. Accordingly, claimant argues that he acquired
           work as a truck driver with Victory Express in an effort to
           find work within his restrictions. The claimant maintains
           that these facts, therefore establish that his failure to return
           to work at Union Metal was causally related to his allowed
           injuries rather than by a voluntary choice to be employed
           elsewhere.

           In evaluating the merit of the employer's "voluntary
           abandonment" argument, the District Hearing Officer
           reviewed the medical reports within the claim file to
           ascertain if any work restrictions were in place during the
           October 1995 time frame---the time period in which claimant
           sought and secured employment as a truck driver with
           Victory Express. The file establishes that on 2/20/1995 Dr.
           Gilliland issued a report which set forth restrictions
           precluding claimant from lifting greater than 25 lbs.,
           precluding claimant from performing repetitive work above
           shoulder level, and precluding claimant from activities
           involving turning of the head or bending of the neck. There
           were no other reports in the time period from 2/20/95 to
           10/1995 in file which addressed claimant's restrictions.

           The District Hearing Officer finds that the relevance and the
           credibility of the 2/20/95 report of Dr. Gilliland is
           undermined by the length of time between its issuance and
           the claimant's acquisition of employment at Victory Express
           in October, 1995. The Gilliland report is undermined as well
           by the actions taken by the claimant subsequent to 2/20/95.
           From the claimant's testimony at hearing, it was established
           that claimant returned to his job duties as an auto welder in
           early 1995 and that he continued to work in that position
No. 15AP-414                                                                             7

              nearly seven months before his "leave" period of September,
              1995. The fact that claimant was able to perform his regular
              job duties for a seven month period of time casts suspicion
              on the necessity of the restrictions noted by Dr. Gilliland on
              2/20/95. Furthermore, at hearing, claimant testified that his
              duties at Victory Express required lifting at times of objects
              nearly 100 Lbs. in weight. This testimony in and of itself also
              contradicts the validity of the necessity of the restrictions
              imposed by Dr. Gilliland as it establishes that claimant
              continued to perform tasks beyond his alleged capabilities
              even after he left Union Metal. And, these facts when
              considered together, negate the claimant's argument that he
              left his employment with Union Metal in October, 1995
              because of the impairments stemming from his allowed
              conditions in this claim. (The District Hearing Officer finds
              claimant's argument that he was medically forced to leave his
              employment with Union Metal as a result of his allowed
              condition to be inherently contradictory when the new
              employment claimant secured was outside his work
              restrictions as well.)

       {¶ 14} 4. Relator's appeal was heard before a staff hearing officer ("SHO") on April
22, 1998. The SHO denied relator's appeal and affirmed the DHO order.
       {¶ 15} 5. On May 20, 1998, relator filed another motion requesting TTD
compensation beginning March 13, 1998.
       {¶ 16} 6. The matter was heard before a DHO on July 20, 1998 and was denied.
Specifically, the DHO found that the March 12, 1998 DHO order, which was affirmed
administratively, was res judicata.
       {¶ 17} 7. Relator filed his first application for PTD compensation on November 19,
1999. In support of his application, relator submitted the August 13, 1998 report of
Robert L. Gilliland, M.D., who opined that he was permanently and totally disabled,
stating:
              The above patient remains under my care for injuries
              sustained in a work related injury on 03/10/93. He
              continues with pain in his neck and into his shoulder. He has
              headaches, numbness in the neck and burning down the left
              arm.

              H[e] has a diagnosis of cervical strain/sprain, spinal
              enthesopathy; cervical spinal stenosis, disc bulge C-6 with
No. 15AP-414                                                                          8

              spur formation; depression and post operative cervical
              fusion.

              He underwent an anterior cervical fusion in Pittsburgh on
              02/24/98, but has continued having pain in the neck and left
              arm.

              I consider this patient to be permanently disabled from
              gainful employment.

       {¶ 18} Relator also submitted the August 25, 1998 report of Larry K. Truzzie, who
was treating relator for depression. Truzzie opined that relator was permanently and
totally disabled as a result of his allowed psychological condition, stating:
              Mr. McKee presented for counseling on 04-27-98 to deal
              with depression resulting from a neck injury suffered 03/93.
              Various treatments were unsuccessful and disc fusion was
              performed 02/98. At this point, the surgery appears to have
              been unsuccessful. He reports that the pain on the left side of
              his neck is greater than before the surgery as is the pain in
              his buttocks and left leg. While the pain in his left arm is
              unchanged, it now descends to his hand more frequently. He
              is able to dress without assistance. He shaves less often as
              the fusion of three discs in his neck makes it difficult and
              tiring to hold his head properly to see clearly to shave. He
              now takes a mid-shave break.

              He continues on medication for depression as typical
              symptoms involving erratic sleep, appetite disturbance,
              depressed mood, inconsistent energy and impaired memory
              and concentration persist.

              Given his self-report, my observations of his impaired gait
              and frequent pain in his neck and the effects of the
              depression, it is my opinion that Mr. McKee is unable to
              perform gainful employment at this time.

       {¶ 19} 8. Relator's application was heard before an SHO on June 6, 2000. The
SHO relied on two medical reports which have not been filed with the stipulation of
evidence.   The SHO found that relator was capable of performing some sustained
remunerative employment and analyzed the non-medical disability factors as follows:
              As Drs. Raghavan and DeRosa indicate claimant is unable to
              perform his former position of employment, an analysis of
              the non-medical disability factors is appropriate.
No. 15AP-414                                                                 9

           After reviewing claimant's age, education, and work
           experience, the Staff Hearing Officer concludes claimant can
           engage in sustained remunerative employment consistent
           with the restrictions of Drs. Raghavan and DeRosa.

           Claimant is thirty-eight years of age and is classified as a
           younger person. This age is a positive factor with respect to
           re-employment as it gives claimant ample time to engage in a
           training program. Ms. Kolks, vocational evaluator, concurs
           in her report dated 4/27/2000. She indicates claimant's age
           would not preclude him from performing entry-level work.

           Claimant's educational level is also a positive attribute.
           Claimant possesses a college degree with a major in
           accounting. Per claimant's counsel at hearing, claimant
           graduated from Bary University with his accounting degree.
           This demonstrates claimant's mental acumen and Ms. Kolks
           finds claimant's education would be consistent with the
           ability to perform skilled work.

           Claimant's prior work activities consist of unskilled, semi-
           skilled, and skilled activity. Claimant has performed jobs as a
           bookkeeper, dump-truck driver, cable television installer,
           tractor-trailer truck driver, gun welder, and dental assistant.
           Clearly claimant has performed a variety of tasks, including
           some skilled activities, during his lifetime. Ms. Kolks notes
           that numerous positive temperaments are demonstrated,
           including doing precise work to close tolerances, doing
           repetitive work, working alone or apart from others, dealing
           with people, and making judgments and decisions.

           Ms. Kolks analyzed the restrictions of Drs. Raghavan and
           DeRosa and found a host of jobs claimant could perform.
           Said jobs include animal-hospital clerk, insurance clerk,
           brokerage clerk, chauffeur, production assistant, and check
           cashier. The Staff Hearing Officer finds Ms. Kolks' opinion is
           well supported given claimant's education and work
           experience.

           The claimant is a college graduate with experience in several
           skilled jobs. Thus, the Hearing Officer finds claimant retains
           the ability to perform entry-level unskilled and semi-skilled
           work. Accordingly, claimant's disability is not total in nature
           and the Application for Permanent and Total Disability
           benefits is denied.
No. 15AP-414                                                                              10

      {¶ 20} 9. Apparently, relator was paid some TTD compensation and the Ohio
Bureau of Workers' Compensation ("BWC") declared an overpayment. As a result, relator
filed a motion which the commission construed as a request to exercise continuing
jurisdiction and declare the overpayment null and void. The basis for relator's request
was his assertion that the DHO order from March 12, 1998, as well as the SHO order from
April 22, 1998 finding that he had voluntarily abandoned his employment, were based
upon a clear mistake of law. Relator's argument was based on the Supreme Court of
Ohio's decision in State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376 (2000).
      {¶ 21} The matter was heard before an SHO on December 19, 2014. The SHO
denied relator's request because of relator's failure to pursue an adequate administrative
remedy from the BWC and prior commission orders.
      {¶ 22} 10. Relator filed his second application for PTD compensation on May 21,
2014. In support of his application, relator submitted the April 25, 2014 report of Thomas
A. Thomas, D.C., who opined that relator was permanently and totally disabled, stating:
             After reviewing the results of the physical examination, his
             pain index, and taking into consideration his age, the
             continued deterioration of his conditions and based upon the
             subjective complaints and mechanism of injury, it is my
             medical opinion that, as a result of his injuries of March 10,
             1993, Mr. McKee is physically totally and permanently
             incapacitated from gainful employment, and IS
             entitled to permanent total disability benefits.

(Emphasis sic.)

      {¶ 23} Relator also submitted the June 6, 2014 progress note of Stephen A. King,
M.D., who stated: "Occupational industrial injuries sustained and client unable to return
to active employment."
      {¶ 24} Relator also submitted the September 4, 2014 psychological evaluation of
James M. Lyall, Ph.D., who opined that relator was incapable of working, stating:
             This claimant's impairment is moderate at 30% due to his
             neurotic depression. As such he would have great difficulty
             maintaining and performing usual, competitive work
             activities. He needs continued supportive mental health
             care.
No. 15AP-414                                                                         11

       {¶ 25} 11. Relator's second application for PTD compensation was heard before an
SHO on March 4, 2015. The SHO denied his application. First, the SHO noted that
relator's previous application for PTD compensation had been denied following a hearing
on June 6, 2000 based upon a finding that he was able to perform some sustained
remunerative employment. The SHO specifically noted that there was no documentation
that relator had attempted vocational retraining following the denial.
       {¶ 26} Thereafter, the SHO noted the issue of voluntary abandonment was first
addressed in 1998 when TTD compensation was denied because relator had voluntarily
abandoned his employment with Union Metal. The SHO noted that the issue of whether
or not relator had abandoned the entire workforce had not been addressed in 1998 and
set out to make that determination. Specifically, the SHO stated:
              After December 1995 there is no documentation contained
              within the record regarding any employment by the Injured
              Worker from any actual employer. However, from a review
              of the Injured Worker's Application in issue, the Injured
              Worker states that he last worked 03/11/1998 and that was
              with Union Metal Corp., the employer of record, and that he
              began to receive Social Security Disability benefits in 1998 at
              the rate of $1,000 per month. (See IC-2 Application pages 1
              & 3).

              Given the above, this Staff Hearing Officer finds guidance in
              the decision set forth in State ex rel. Garrison v. Indus.
              Comm., 2009 WL 1709041, (unreported decision of Tenth
              District Court of Appeals, Franklin County). Therein, the
              Court of Appeals overruled objections to the Magistrate's
              decision. The Magistrate states in his decision as follows:

              The case law indicates that a two step analysis is involved in
              the determination of whether a claimant has voluntarily
              removed himself from the work force prior to becoming PTD
              such that a permanent total disability award is precluded.
              The first step requires the Commission to determine whether
              the retirement or job departure was voluntary or
              involuntary. If the Commission determines that the job
              departure was involuntary, the inquiry ends. If, however, the
              job departure is determined to be voluntary, the Commission
              must consider additional evidence to determine whether the
              job departure is an abandonment of the work force in
              addition to an abandonment of the job. State of Ohio ex rel.
No. 15AP-414                                                                   12

           Ohio Dept. of Transportation v. Indus. Comm., (Franklin
           App. No. 08AP-303, 2009-Ohio-700).

           Utilizing this analysis, the Staff Hearing Officer finds that the
           prior District Hearing Officer decision from 1998, cited
           above, previously determined that the Injured Worker's
           departure from the Employer of Record did constitute a
           voluntary abandonment of the employment. However,
           although it is a final administrative decision, the issue of
           voluntary abandonment of the work force was never
           addressed. Here, the documentation of the Injured Worker's
           work history, other than with the Employer of Record, is
           basically limited to references in various medical reports and
           the IC-2 Application itself.

           It was clearly found in the prior District Hearing Officer
           decision that the Injured Worker's departure from
           employment with the Employer of Record, was not based
           upon the Injured Worker's attempt to find suitable
           employment within his restrictions. Thereafter, the Injured
           Worker's purported employment with Victory Express is not
           documented within the record, nor is there any
           documentation within the record of any subsequent return to
           employment with the employer of record as reflected on this
           IC-2 Application. Furthermore, the Injured Worker was not
           present at hearing to offer any testimony in support of his
           Application or to clarify his work history.

           In reliance upon the prior Staff Hearing Officer Permanent
           Total Disability decision finding the Injured Worker was
           capable of working at the entry level of work, at both the
           unskilled and semi-skilled levels, coupled with absence of
           any documentation regarding any employment history after
           the Injured Worker left the Employer herein, as well as the
           statement contained within the IC-2 Application indicating
           the Injured Worker began receiving Social Security Disability
           benefits in 1998, the Staff Hearing Officer concludes that the
           Injured Worker's departure from the work force was
           voluntary and constitutes a voluntarily abandonment of the
           entire work force.

           The Injured Worker was found to have voluntarily
           abandoned his last documented position of employment; he
           began receiving Social Security Disability benefits in 1998;
           he was subsequently denied permanent total disability status
           pursuant to the 06/10/2000 Staff Hearing Officer decision
           on the basis that he was able to perform entry level work;
No. 15AP-414                                                                               13

              and there is no documentation contained within the record
              that the Injured Worker either returned to the work force or
              attempted vocational rehabilitation thereafter, as required by
              the Cunningham decision. State ex rel. Cunningham v.
              Indus. Comm. (2001), 91 Ohio St.3d 261. Therein it was
              stated that it is not "unreasonable to expect an injured
              worker to participate in return to work efforts to the best of
              his or her abilities or to take the initiative to improve
              rehabilitation potential." (Id. at p. 262) Continuing, the Ohio
              Supreme Court stated that while extenuating circumstances
              can excuse an injured worker's participation in re-education
              or retraining efforts, "Injured Worker's should no longer
              assume that a participatory role, or lack thereof, will go
              unnoticed."

              In a light most favorable to the Injured Worker, the record
              reflects that the last known purported employment was with
              the employer herein, and ended 03/11/1998, over 17 years
              ago and during the same year the Injured Worker reports the
              commencement of monthly Social Security benefits.
              Furthermore, it is also almost 15 years since the first
              Permanent Total Disability Application decision finding the
              Injured Worker was capable of working, was issued.

              When the totality of the circumstances are viewed, it is clear
              that the Injured Worker did make a life style choice and that
              was to voluntarily abandon the entire work force and
              effectively retire, for reasons other than allowed conditions
              in this claim.

(Emphasis sic.)

       {¶ 27} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 28} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 29} 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).
No. 15AP-414                                                                             14

       {¶ 30} The relevant inquiry in a determination of permanent total disability is
claimant's ability to do any sustained remunerative employment. State ex rel. Domjancic
v. Indus. Comm., 69 Ohio St.3d 693 (1994). Generally, in making this determination, the
commission must consider not only medical impairments but also the claimant's age,
education, work record and other relevant non-medical factors. State ex rel. Stephenson
v. Indus. Comm., 31 Ohio St.3d 167 (1987). Thus, a claimant's medical capacity to work is
not dispositive if the claimant's non-medical factors foreclose employability. State ex rel.
Gay v. Mihm, 68 Ohio St.3d 315 (1994). The commission must also specify in its order
what evidence has been relied upon and briefly explain the reasoning for its decision.
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
       {¶ 31} Relator continues to challenge the finding of voluntary abandonment. At
this time, relator argues that the attorney for the BWC who attended the March 4, 2015
hearing did not raise the issue of voluntary abandonment and, as such, the commission
abused its discretion when it sua sponte considered the issue. Thereafter, relator asserts
that, if the SHO did properly address voluntary abandonment, his departure from the
workforce was injury-induced, and therefore is not a bar to an award of PTD
compensation.
       {¶ 32} As noted in the findings of fact, the SHO first reviewed the record
concerning relator's request for TTD compensation and specifically noted that the
commission had determined that relator's departure from Union Metal was not injury-
induced and constituted a voluntary abandonment of the workforce. Thereafter, as the
SHO correctly noted, a departure from the workforce which precludes the payment of
TTD compensation does not necessarily defeat either a later application for TTD
compensation or an application for PTD compensation. Where an injured worker re-
enters the workplace and, as a result of the allowed conditions in their claim, becomes
disabled, they may qualify for an award of TTD compensation even if their departure from
their original employer was considered to be a voluntary abandonment. State ex rel.
McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305. Likewise, even
if it is determined that an injured worker voluntarily abandoned their employment and, as
such, is denied TTD compensation, if the employee re-enters the labor force, the employee
may later qualify for an award of PTD compensation. However, if the injured worker,
No. 15AP-414                                                                               15

despite an ability to do so, does not re-enter the workforce after they have voluntarily
abandoned their employment with their original employer, they will be denied PTD
compensation.
       {¶ 33} In the present case, relator's original requests for TTD compensation were
denied in 1998 based upon a finding that he had voluntarily abandoned his employment
with Union Metal. At that hearing, relator had stated that, although he did leave his
employment with Union Metal in 1995 and took employment as a truck driver with
Victory Express, in part because his allowed conditions deteriorated, and he was no longer
able to perform his job. This 1998 order occurred before the Supreme Court of Ohio
released State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376 (2000) and McCoy,
holding that an injured worker could leave the former position of employment for any
reason and, as long as they took other employment, could be eligible for TTD
compensation if the allowed conditions rendered them unable to perform this new job.
Pursuant to Baker and McCoy, relator theoretically could or could have asked the
commission to exercise its continuing jurisdiction and revisit this issue as it relates to his
requests for TTD compensation; however, this 1998 order is immaterial to the reasons
relator was denied PTD compensation.
       {¶ 34} In 2000, relator's first application for PTD compensation was denied based
upon a finding that he was capable of performing some sustained remunerative
employment.     In the years between 2000 and 2014, when relator filed his second
application for PTD compensation, relator did not seek to be retrained nor did he seek any
employment. Relator has remained unemployed since 1998. Based on those facts, the
commission determined that relator had abandoned the entire workforce and was,
therefore, ineligible for an award of PTD compensation. It is immaterial that relator
submitted medical reports with his application from doctors who opined that he was
permanently and totally disabled at this time. Because he made no attempts to re-enter
the workforce between 1998 and 2015, it was not an abuse of discretion for the
commission to find that it was not the allowed conditions in his claim which have
prevented him from working, but that he had made a lifestyle choice.
No. 15AP-414                                                                           16

      {¶ 35} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion when it denied his application for
PTD compensation and this court should deny his 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).
