[Cite as State ex rel. James v. Wal-Mart Stores, Inc., 2014-Ohio-2279.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Norman James, Jr.,                :

                 Relator,                               :
                                                                             No. 13AP-3
v.                                                      :
                                                                          (REGULAR CALENDAR)
Wal-Mart Stores, Inc. and                               :
Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :



                                            D E C I S I O N

                                       Rendered on May 29, 2014


                 Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and
                 Theodore A. Bowman, for relator.

                 Roetzel & Andress, LPA, Douglas E. Spiker, Timothy J.
                 Webster and Alexander J. Kipp, for respondent Wal-Mart
                 Stores, Inc.

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

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

CONNOR, J.

        {¶ 1} Relator, Norman James, Jr., filed this action in mandamus seeking a writ to
compel the Industrial Commission of Ohio ("commission") to grant him temporary total
disability ("TTD") compensation.
        {¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was
assigned to a magistrate to conduct appropriate proceedings. The parties stipulated the
No. 13AP-3                                                                                  2


pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision
containing detailed findings of fact and conclusions of law. A copy of the magistrate's
decision is appended hereto. The magistrate's decision includes a recommendation that
we deny the request for a writ of mandamus.
       {¶ 3} Counsel for relator has filed objections to the magistrate's decision. Counsel
for Wal-Mart Stores, Inc. ("Wal-Mart"), relator's former employer, has filed a
memorandum in response. The case is now before the court for a full, independent
review.
       {¶ 4} Relator has had a series of serious injuries to his neck, resulting in neck
surgery. He returned to work after the last surgery and was injured again, fracturing a
screw in the cervical fusion. Another surgery was required.
       {¶ 5} After his return to work, Wal-Mart placed relator in a new managerial
position which required significantly more physical labor. Relator left his employment
with Wal-Mart because he felt physically unable to perform the additional physical labor.
       {¶ 6} Relator did not leave the workforce altogether. He went to work for Petco
and soon followed that with employment at Casper Automotive. He was fired from the
job with Casper Automotive, allegedly for excessive absenteeism. The whole situation is
complicated by the fact that between the end of his work with Wal-Mart and the end of his
work with Casper Automotive, relator was in an automobile collision. That fact makes it
difficult to determine if the excessive absenteeism alleged was related to his injury on his
job at Wal-Mart, his automobile collision or neither. The medical picture is further
complicated by the fact that an additional medical condition was allowed in January
2009. That medical condition is "cervical canal stenosis."
       {¶ 7} The first two objections filed on behalf of relator address the ending of his
employment. The record before us clearly shows that relator chose to stop working at
Wal-Mart based upon his subjective belief that he could no longer do the job. The medical
evidence does not support his subjective belief. Therefore, the first two objections are
overruled.
       {¶ 8} The third objection reads:
              THE MAGISTRATE ERRED IN CONCLUDING THAT THE
              COMMISSION DID NOT ABUSE ITS DISCRETION IN ITS
No. 13AP-3                                                                                 3


               APPLICATION OF ECKERLY WITHOUT CONSIDERATION
               OF ESTES EXPRESS.

       {¶ 9} State ex rel. Estes Express Lines v. Indus. Comm., 10th Dist. No. 08AP-569,
2009-Ohio-2148 could apply to this situation, but requires a factual development of the
reasons relator's employment with Casper Automotive ended. If relator missed work as a
result of his automobile collision, Estes Express does not help him in his quest to receive
TTD compensation.        If the employment at Casper Automotive ended because of
complications from his neck injuries, TTD compensation should be allowed.
       {¶ 10} We sustain the third objection in part.
       {¶ 11} We, therefore, find that the case should be returned to the commission for it
to develop the facts surrounding the ending of relator's employment with Casper
Automotive. If relator did, in fact voluntarily abandon that employment, he is not entitled
to TTD compensation. If he lost the job due to his inability to make work on occasion due
to his ongoing problems from injuries sustained at work, he may be entitled to TTD
compensation.      These issues need to be clearly addressed after further factual
development.
       {¶ 12} As a result of the above, we adopt the findings of fact contained in the
magistrate's decision.    We adopt the conclusions of law as to the termination of
employment at Wal-Mart, but not as to the end of employment at Casper Automotive.
We, therefore, grant a limited writ of mandamus which vacates the denial of TTD
compensation for relator and compels the commission to further address the end of
employment at Casper Automotive and to address relator's entitlement to TTD
compensation once that issue has been resolved.
                 Objections overruled in part and sustained in part; limited writ granted.
                                 BROWN, J., concurs.
                      SADLER, P.J., concurs in part, dissents in part.

SADLER, P.J., concurring in part, dissenting in part.

       {¶ 13} Because I agree with the majority's disposition of relator's first and second
objections to the magistrate's decision, but disagree with the disposition of relator's third
objection, I respectfully concur in part and dissent in part.
No. 13AP-3                                                                                4


       {¶ 14} As the magistrate explained, because the record lacks evidence to support a
conclusion that relator's departure from Casper was due to the allowed conditions in the
claim, relator has not demonstrated an abuse of discretion in the commission's
application of State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-
2587, rather than State ex rel. Estes Express Lines v. Indus. Comm., 10th Dist. No. 08AP-
569, 2009-Ohio-2148. Thus, for the reasons stated in the magistrate's decision, I would
overrule relator's third objection.
       {¶ 15} In conclusion, I would overrule relator's three asserted objections, adopt the
magistrate's decision, including the findings of fact and conclusions of law, and deny the
requested writ of mandamus. Because the majority does otherwise, I respectfully concur
in part and dissent in part.
No. 13AP-3                                                                              5



                                  APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

State of Ohio ex rel. Norman James, Jr.,    :

             Relator,                       :
                                                                 No. 13AP-3
v.                                          :
                                                            (REGULAR CALENDAR)
Wal-Mart Stores, Inc. and                   :
Industrial Commission of Ohio,
                                            :
             Respondents.
                                            :



                        MAGISTRATE'S DECISION

                             Rendered on January 29, 2014


             Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A., and
             Theodore A. Bowman, for relator.

             Roetzel & Andress, LPA, Douglas E. Spiker, Timothy J.
             Webster and Alexander J. Kipp, for respondent Wal-Mart
             Stores, Inc.

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


                                  IN MANDAMUS

      {¶ 16} Relator, Norman James, Jr., has filed this original action requesting that
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his request for temporary total disability
("TTD") compensation and ordering the commission to find that he is entitled to that
compensation.
No. 13AP-3                                                                               6


Findings of Fact:
       {¶ 17} 1. Relator sustained a work-related injury on November 30, 2004 while
putting up freight. He had lifted a box onto his shoulder and as he backed up he
accidentally backed into a pole. The box he was carrying hit him in the neck and fractured
a surgical screw from a prior surgery and necessitated a new cervical fusion surgery.
Relator's workers' compensation claim was originally allowed for the following
conditions:
              Neck spasm; mechanical complication of internal orthopedic
              device.

       {¶ 18} 2. Prior to this injury, relator had undergone two surgeries resulting in
fusion and the implantation of hardware. His work-related injury resulted in a broken
screw necessitating a third surgery on May 23, 2005.
       {¶ 19} 3. Following his surgery, relator was able to return to work with respondent
Wal-Mart Stores, Inc ("Wal-Mart").
       {¶ 20} 4. After relator returned to work with Wal-Mart, he was moved to night
shift which included a change in his normal duties. According to relator, significantly
more lifting and carrying was required of him on the night shift.
       {¶ 21} 5. On April 20, 2007, relator left his employment with Wal-Mart. Pursuant
to the exit interview, relator's termination was voluntary and he walked off the job.
Although the form provided space for relator to add any additional comments concerning
the nature of his departure with Wal-Mart, relator did not make any comments.
       {¶ 22} 6. Thereafter,    relator   secured   other    employment      with   Petco.
Approximately five to six weeks later, relator left Petco for a better paying position with
Casper Automotive ("Casper").
       {¶ 23} 7. Relator was terminated from Casper on November 16, 2007 for excessive
abseteeism.
       {¶ 24} 8. Relator has not returned to work since November 16, 2007.
       {¶ 25} 9. According to the medical records, relator was involved in a motor vehicle
accident in June 2007. According to an undated treatment note by Young Kim, M.D.,
relator's condition was getting worse.
No. 13AP-3                                                                                 7


       {¶ 26} 10. In a letter dated December 24, 2007, Dr. Kim indicated that the results
of a recent cervical MRI scan revealed the following:
                There are no obvious degenerated discs or obvious severe
                cervical canal stenosis. Your spinal fusion appears to be solid
                without any encroachment into your spinal cervical canal.

       {¶ 27} 11. On January 8, 2009, relator filed a C-86 motion asking to have his claim
additionally allowed for cervical canal stenosis and requesting the payment of TTD
compensation beginning November 17, 2007, the day after he was fired from Casper.
       {¶ 28} 12. The matter was heard before a district hearing officer ("DHO") on
March 25, 2009. At that time, relator withdrew his motion for an additional allowance.
The DHO specifically denied relator's request for TTD compensation from November 17,
2007 through January 17, 2008 because relator did not seek treatment from Brendan W.
Bauer, M.D., during that time.       The DHO did award TTD compensation beginning
January 18, 2008.
       {¶ 29} 13. Relator would ultimately have additional surgery on April 1, 2009.
       {¶ 30} 14. Wal-Mart appealed the DHO's order and the matter was heard before
an SHO on May 13, 2009. The SHO affirmed the prior DHO order finding first that TTD
compensation could not be paid from November 17, 2007 through January 17, 2008 as
Dr. Bauer did not have a valid basis for his opinion prior to his first evaluation of relator
on January 18, 2008. The SHO agreed that TTD compensation should be paid beginning
January 18, 2008 based upon the office notes and C-84 completed by Dr. Bauer. As part
of the SHO's analysis, the SHO noted that relator voluntarily quit his employment with
Wal-Mart on April 20, 2007, but that he did not voluntarily abandon the entire workforce
because he returned to employment following the voluntary termination.
       {¶ 31} 15. Wal-Mart's appeal was refused by order of the commission mailed
June 5, 2009.
       {¶ 32} 16. Thereafter, Wal-Mart filed a request for reconsideration which was
heard before the commission on September 29, 2009. By this time, relator's claim had
been allowed for the additional condition of aggravation of pre-existing cervical canal
stenosis and the commission considered that new allowance in its order. The commission
No. 13AP-3                                                                      8


granted Wal-Mart's request for reconsideration and denied the entire period of TTD
compensation as follows:
             The Commission finds the medical evidence submitted by
             the Injured Worker specifically addressing the issue of the
             Injured Worker's temporary total disability compensation to
             be inconsistent and equivocal. The inconsistencies concern
             the date of first treatment of the Injured Worker, and the
             specific periods of disability certified by Dr. Bauer. As a
             result of the inconsistencies and equivocation in the
             Questionnaire, office notes and C-84 of Dr. Bauer, the
             Commission finds it is not "some evidence" on which to rely
             to base payment of temporary total disability compensation.
             See State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio
             St.3d 649.

             The Questionnaire completed and signed by Dr. Bauer on
             12/18/2008, is inconsistent with the C-84 signed by Dr.
             Bauer on 12/18/2008. The Questionnaire indicates that Dr.
             Bauer first saw the Injured Worker on 01/18/2008 and that
             the Injured Worker was disabled "FROM 5/05 TO Totally
             disabled." The C-84 lists disability dates "From 11/07 To:
             11/09 or later."

             Furthermore, the C-84 is unclear and equivocal. Dr. Bauer
             checked the box to indicate the diagnosis and prognosis were
             related to the history of injury contained on the form, but
             made further reference to the Injured Worker's history of
             surgeries in 2002, 2003 and 2005. Dr. Bauer indicated there
             were no pre-existing conditions that contributed to the
             diagnosis and/or disability, yet also indicated that the
             mechanism of injury involved in the workplace injury caused
             a substantial aggravation of the pre-existing condition(s):
             "Injury caused redo cervical surgery." The form addressed a
             redo surgery in 2003, as well as a redo surgery in "5/2005."

             The accuracy of the information contained in both of these
             forms is further brought into question in narrative reports
             from Dr. Bauer dated 02/12/2008 and 03/20/2009. In the
             02/12/2008 report, Dr. Bauer wrote to the Injured Worker's
             family doctor, Dr. Bryan Kuns, that he, Dr. Bauer, was seeing
             the Injured Worker in neurological consultation on
             02/12/2008. Further, Dr. Bauer indicated that "the patient
             was last seen by me and our group in 2002." The
             03/20/2009 report of Dr. Bauer stated that the Injured
No. 13AP-3                                                                       9


             Worker "has been followed by myself and our group for the
             past 4 years."

             Finally, the Commission notes that the Injured Worker has
             not submitted a medical report from Dr. Bauer which
             addresses the inconsistencies in the dates of treatment and
             the inconsistencies in the alleged periods of disability.

             The Commission further finds that the medical evidence
             raises, but does not resolve an issue as to whether the
             Injured Worker's disability results from an intervening
             injury. The Injured Worker testified at today's hearing that
             he treated with his family physician, Dr. Kuns, since being
             off work from Wal-Mart. The Commission notes that the
             Injured Worker was involved in a motor vehicle accident on
             06/01/2007. Dr. Kuns was the ordering physician for a
             cervical MRI on 11/30/2007. The "Clinical Information"
             section on the MRI stated "Numbness in both arms and left
             shoulder pain since car accident in June 2007. Previous
             cervical fusion." No records from Dr. Kuns have been filed to
             review relative to the necessity of this diagnostic testing, or
             the referral from Dr. Kuns to Dr. Bauer.

             The Commission finds that other evidence on file does not
             clarify this confusion concerning the Injured Worker's
             alleged periods of disability and the cause of his disability. In
             what appears to be an abstract of office notes with
             handwritten notations there on, Young Kim, M.D. reported
             that the Injured Worker was last seen 2005 "and was
             tolerable and functional up until the spring of 2007. Things
             got progressively worse at that time. He was involved in a
             motor vehicle accident in June, 2007." Dr. Kim recorded a
             substantial list of cervical and other medical issues, and
             reported that the Injured Worker had not worked since
             November 2007 because the Injured Worker "was fired due
             to his absenteeism related to this problem." It is not clear
             which of the substantial medical conditions listed is "this
             problem." This Commission is uncertain if this office note is
             the item referenced in the Statement of Treating Physician
             signed by Dr. Kim on 05/21/2009. Dr. Kim clearly identified
             factors not related to the Injured Worker's industrial claim,
             i.e. the motor vehicle accident of June 2007, and the 2002
             cervical fusion.

             Based on the Injured Worker's failure to submit medical
             clarification regarding the above identified inconsistencies
No. 13AP-3                                                                           10


               and equivocal statements regarding treatment dates and
               disability dates relative to the periods at issue, as well as the
               unresolved issue of the intervening motor vehicle accident
               injury, temporary total disability compensation is denied.

       {¶ 33} Because the commission found that relator had failed to submit medical
evidence which would support his request for TTD compensation, the commission
specifically declined to address Wal-Mart's argument that relator was ineligible for the
payment of TTD compensation due to his voluntary abandonment of his employment
with Casper.
       {¶ 34} 17. On February 2, 2010, relator filed another request for TTD
compensation beginning April 1, 2009, the date of his latest surgery.
       {¶ 35} 18. A hearing was held before a DHO on February 25, 2010. The DHO
determined that TTD compensation should be paid beginning April 1, 2009.
       {¶ 36} 19. Wal-Mart appealed and the matter was heard before an SHO on
April 15, 2010. The SHO vacated the prior DHO order and denied relator's request for
TTD compensation. The SHO set forth the history of relator's claim, stating:
               The Injured Worker's industrial injury of 11/30/2004
               occurred while he was working as an assistant manager at a
               Wal-Mart Store. As he was putting away freight, in the toy
               department, he lifted a box onto his shoulder. He then
               accidentally backed into a pole, while backing up to avoid
               someone in the aisle. When he struck the pole, the box hit
               him in the neck with enough force to fracture one of the
               screws in his cervical vertebra which was there from a prior
               anterior cervical fusion at the C6 level. Therefore, the Self-
               Insuring Employer previously allowed this claim for
               mechanical complication of internal orthopedic device, with
               neck spasm. This claim was subsequently expanded to
               include the condition of aggravation of pre-existing cervical
               canal stenosis, pursuant to the prior Industrial Commission
               order of 10/15/2009.

               The Injured Worker had surgery, under this claim, for a redo
               of the fusion of his cervical spine, at the St. Vincent Charity
               Hospital, in Cleveland, Ohio, on 05/23/2005. He was then
               able to return to his former position of employment, as an
               assistant manager at a Wal-Mart Store. However, his job
               duties were subsequently changed from that of a day shift
               assistant manager to a night shift assistant manager. The day
No. 13AP-3                                                                        11


             shift assistant manager position was mainly supervisory in
             nature, but the Injured Worker felt that the night shift
             assistant manager position was "a manager, in name only",
             and he was then really a "glorified stock person with a title."
             The night shift assistant manager position required him to
             unload freight, as well as to stock their storeroom and the
             shelves of the store. He felt that the physical labor involved
             was more than his cervical condition would allow.
             Therefore, the Injured Worker voluntarily quit his former
             position of employment with Wal-Mart on 04/20/2007.

             The Ohio Supreme Court has previously held, in the case of
             State ex rel. Schack v. Indus. Comm. (2001), 93 Ohio St[.]3d
             247, that an Injured Worker who leaves his former position
             of employment does not forfeit temporary total disability
             compensation eligibility, so long as his decision to leave his
             former position of employment is followed by another job -
             as opposed to abandonment of the entire labor market. In
             the instant claim, the Injured Worker subsequently found
             employment with Petco, after leaving his employment with
             Wal-Mart. Furthermore, he subsequently found other
             employment, at Casper Transport. However, the Injured
             Worker was subsequently terminated from his new position
             of employment, at Casper Transport, due to excessive
             absenteeism.

      {¶ 37} The SHO then discussed the fact that relator requested TTD compensation
beginning November 17, 2007, and acknowledged that period of compensation had
previously been denied, stating:
             That period of disability was previously addressed by the
             Industrial Commission, and denied, pursuant to the order
             from the hearing of 09/29/2009, mailed 12/03/2009. The
             Industrial Commission found that the medical evidence
             submitted by the Injured Worker to support temporary total
             disability compensation was inconsistent and equivocal. The
             physician certifying disability made reference to the Injured
             Worker's history of surgeries in "2002, 2003 and 2005",
             despite the fact that the recognized injury in this claim did
             not occur until 11/30/2004. The supporting medical
             evidence also specifically referred to, "a redo surgery in
             2003, as well as a redo surgery in 05/2005." Also, the
             Industrial Commission made note of the fact that the Injured
             Worker was involved in a motor vehicle accident, on
             06/01/2007, and that his attending physician, Dr. Kuns,
No. 13AP-3                                                                          12


              ordered a cervical MRI because of symptoms, "since the car
              accident in June, 2007." For all of the above reasons, the
              Industrial Commission of Ohio previously denied the
              requested period of temporary total disability compensation,
              as previously requested, from 11/17/2007 through
              09/29/2009.


(Emphasis sic.)
       {¶ 38} Thereafter, the SHO considered whether or not the commission had
continuing jurisdiction to further address the issue of the payment of TTD compensation
from April 1 through September 29, 2009, the date of the hearing before the commission
on Wal-Mart's request for reconsideration wherein the commission had determined that
relator did not meet his burden of proving entitlement to TTD compensation. The SHO
noted that relator's counsel argued there were new and changed circumstances since
September 29, 2009, that being relator's claim was additionally allowed for the
aggravation of pre-existing cervical canal stenosis.
       {¶ 39} However, the SHO specifically noted that, although the commission hearing
was on September 29, 2009, the commission did not publish its order "until 12/03/2009
and, more importantly, the order itself specifically referred to the order granting the
additional allowance and stated that, 'notwithstanding the granting of the additional
condition, by Staff Hearing Officer order issued 10/20/2009, after this hearing, but
before this order was issued, it is the order of the Commission that the portion of the
Injured Worker's C-86 motion filed 01/08/2009, requesting temporary total disability
compensation from 11/17/2007 through 09/29/2009, is denied.' " As such, the SHO
concluded that the commission did not have continuing jurisdiction to address that
portion of relator's request for TTD compensation for the period April 1 through
September 29, 2009, as it was barred by res judicata.
       {¶ 40} Thereafter, the SHO considered whether or not relator was entitled to TTD
compensation from September 30, 2009 through April 15, 2010. The SHO concluded that
relator was not entitled to compensation for that time period because, although he had
secured other employment after he voluntarily abandoned his employment with Wal-
No. 13AP-3                                                                                13


Mart, relator was not employed at the time of the recurrence of his disability. Specifically,
the SHO stated:
              As previously stated above, the Injured Worker voluntarily
              quit his former position of employment, with the named
              Employer, Wal-Mart Stores Inc., on 04/20/2007. The
              Injured Worker subsequently obtained other employment,
              with two different Employers, Petco, Inc. and Casper
              Transport, Inc. However, the Injured Worker was terminated
              from Casper Transport, due to excessive absenteeism.
              Therefore, it is the finding of this Staff Hearing Officer that
              the facts and circumstances of the instant claim fall under
              the Ohio Supreme Court's hold in the Baker and McCoy
              cases.
              In the case of [S]tate ex rel. Baker v. Indus. [C]omm. (2000),
              89 Ohio St. 3d 376, the Ohio Supreme Court held that an
              Injured Worker who has previously left his former position
              of employment is, once again, eligible to receive temporary
              total disability compensation, pursuant to R.C. 4123.56(A), if
              the Injured Worker re-aggravates the original industrial
              injury, while working at his or her new job.

              Likewise, in the case of State ex rel. McCoy v. Dedicated
              Transport, Inc. (2002), 97 Ohio St. 3d 25, the Ohio Supreme
              Court held that an Injured Worker who voluntarily abandons
              his or her former position of employment will, once again, be
              eligible to receive temporary total disability compensation,
              pursuant to R.C. 4123.56, if he or she re-enters the work
              force and, due to the original industrial injury, becomes
              temporarily and totally disabled while working at his or her
              new job.

              Furthermore, the facts and circumstances in the instant
              claim are even more analogous to the facts in the case of
              Eckerly v. Indus. Comm. (2005), 105 Ohio St. 3d 428, where
              the Ohio Supreme Court held that an Injured Worker who
              voluntarily abandoned his former position of employment
              was not entitled to the payment of temporary total disability
              compensation, when he was not employed at the time of the
              recurrence of his disability.

              Therefore, it is the order of this Staff Hearing Officer that the
              Injured Worker's request for the payment of temporary total
              disability compensation, for the period from 09/30/2009
              through 04/15/2010, is hereby DENIED, based upon the
              finding that the Injured Worker had previously voluntarily
No. 13AP-3                                                                               14


              abandoned his former position of employment and that,
              furthermore, he was not employed at the time of the
              recurrence of his disability, which required surgery on
              04/01/2009.

(Emphasis sic.)
       {¶ 41} 20. Relator's appeal was refused by order of the commission mailed
May 12, 2010.
       {¶ 42} 21. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 43} In this mandamus action, relator contends that the commission abused its
discretion: (1) by finding that he voluntarily abandoned his employment with Wal-Mart
when his resignation was causally related to his industrial injury, and (2) by finding that
the termination of relator's employment with Casper precluded him from receiving TTD
compensation under State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-
Ohio-2587, without applying this court's holding from State ex rel. Estes Express Lines v.
Indus. Comm., 10th Dist. No. 08AP-569, 2009-Ohio-2148.
       {¶ 44} The magistrate finds that the commission did not abuse its discretion by:
(1) finding that relator voluntarily abandoned his employment with Wal-Mart, and (2)
applying Eckerly instead of Estes Express, which does not apply here.
       {¶ 45} 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
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).
No. 13AP-3                                                                             15


      {¶ 46} R.C. 4123.56 has been defined as compensation for wages lost when a
claimant's injury prevents a return to the former position of employment. State ex rel.
Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982). Where an employee's own actions,
for reasons unrelated to the injury, preclude him or her from returning to their former
position of employment, he or she is not entitled to TTD benefits, since it is the
employee's own actions, rather than the injury, that precludes return to the former
position of employment. State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm., 29
Ohio App.3d 145 (10th Dist.1985).
      {¶ 47} When demonstrating whether an injury qualifies for TTD compensation, it
two-part test is used. The first part of the test focuses on the disabling aspects of the
injury. The second part of the test determines if there are any factors, other than the
injury, which would prevent the employee from returning to his or her former position of
employment. State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987). However,
only a voluntary abandonment precludes the payment of TTD compensation. State ex rel.
Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988). As such, voluntary
abandonment of a former position of employment can, in some instances, bar eligibility
for TTD compensation.
      {¶ 48} The voluntary nature of any claimant's departure from the workforce or
abandonment is a factual question which centers around the claimant's intent at the time
of departure. In State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio
St.3d 381 (1989), the Supreme Court of Ohio stated that consideration must be given to all
relevant circumstances existing at the time of the alleged abandonment period. Further,
the court stated that the determination of such intent is a factual question which must be
determined by the commission.
      {¶ 49} If it is determined that a claimant's departure from a job was voluntary,
TTD compensation can be awarded only if the claimant has re-entered the workforce and,
due to the allowed conditions from the industrial injury, becomes temporarily and totally
disabled while working at the new job. State ex rel. McCoy v. Dedicated Transport, Inc.,
97 Ohio St.3d 25, 2002-Ohio-5305. However, a claimant's complete abandonment of the
entire workforce precludes the payment of TTD compensation all together. Jones; State
ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376 (2000).
No. 13AP-3                                                                            16


      {¶ 50} As early as the March 25, 2009 hearing before the DHO, it appears that
everyone acknowledged that relator had voluntarily abandoned his former position of
employment with Wal-Mart. The issue was whether or not this voluntary abandonment
precluded relator from receiving any TTD compensation. As the SHO stated: "[T]here is
no issue regarding voluntary abandonment as the Injured Worker returned to other
employment after he quit work with [Wal-Mart], the risk employer in April of 2007."
Because relator became reemployed, the DHO determined that he was eligible for TTD.
      {¶ 51} When the appeal from the March 25, 2009 DHO order was heard before the
SHO on May 13, 2009, it was accepted that relator did voluntarily abandon his
employment with Wal-Mart. As the SHO stated:          "Therefore, he voluntarily quit on
04/20/2007." Again, Wal-Mart argued that this voluntary abandonment precluded an
award of later TTD compensation. Because relator became employed again, the SHO
determined that he had made himself eligible for an award of TTD compensation.
      {¶ 52} When the commission granted reconsideration and conducted a hearing on
September 29, 2009, the commission vacated the May 13, 2009 SHO order. Because the
commission found that relator's medical evidence was insufficient to support an award of
TTD compensation from November 17, 2007 through September 29, 2009, the
commission specifically declined to consider Wal-Mart's argument that relator's voluntary
abandonment of his former position of employment and subsequent voluntary
abandonment of employment with Casper barred his entitlement to TTD compensation.
Specifically, the commission stated:
      {¶ 53} The Commission declines to address the Employer's argument that the
Injured Worker was ineligible for the payment of temporary total disability compensation
due to the Injured Worker voluntarily abandoning his later employment when the Injured
Worker was fired by Caspar [sic] Transport on 11/16/2007. Regardless of the Injured
Worker's work status on 11/17/2007, temporary total disability compensation is not
medically supported.
      {¶ 54} As evidenced by the above orders, it does appear that the parties never
disputed the fact that relator voluntarily abandoned his former position of employment
with Wal-Mart on April 20, 2007. The disputed issues have always been whether or not
relator's subsequent employment with Petco and Casper rendered him eligible for TTD
No. 13AP-3                                                                             17


compensation, and whether or not relator voluntarily abandoned his subsequent
employment with Casper when he was terminated for excessive absenteeism on
November 16, 2007.
       {¶ 55} At this time, relator asserts that, the SHO who presided over the recent
hearing on April 15, 2010, specifically found that he left his former position of
employment with Wal-Mart due to the allowed conditions in his claim.
       {¶ 56} Specifically, relator notes that the SHO stated: "He felt that the physical
labor involved was more than his cervical condition would allow." The magistrate finds
that relator's interpretation of the commission's order is incorrect.
       {¶ 57} First, relator's argument ignores the other commission orders in the record
which indicate that the parties never disputed that relator did, in fact, voluntarily
abandon his employment with Wal-Mart on April 20, 2007, and that the only disputed
issue (other than sufficiency of the evidence) was whether or not relator's subsequent
employment made him eligible to receive TTD compensation.               While the SHO who
presided over the May 13, 2009 hearing found that although relator voluntarily
abandoned his employment with Wal-Mart, relator had met his burden of proving that he
did not abandon the entire workforce since he became re-employed with Petco and
Casper, this order was vacated by the commission. As such, while it has been accepted
that relator voluntarily abandoned his employment with Wal-Mart, the parties continued
to disagree on the effect of relator's subsequent employment and termination.
       {¶ 58} Second, instead of reading the one sentence in isolation, the magistrate
notes that the commission specifically found that he voluntarily left Wal-Mart and noted
that his voluntary departure from Wal-Mart would not necessarily preclude his
entitlement to TTD compensation specifically because relator reentered the workforce.
Specifically, the commission stated:
              He felt that the physical labor involved was more than his
              cervical condition would allow. Therefore, the Injured
              Worker voluntarily quit his former position of employment
              with Wal-Mart on 04/20/2007.
              The Ohio Supreme Court has previously held, in the case of
              State ex rel. Schack v. Indus. Comm. (2001), 93 Ohio St[.]3d
              247, that an Injured Worker who laves his former position of
              employment does not forfeit temporary total disability
No. 13AP-3                                                                     18


             compensation eligibility, so long as his decision to leave his
             former position of employment is followed by another job -
             as opposed to abandonment of the entire labor market. In
             the instant claim, the Injured Worker subsequently found
             employment with Petco, after leaving his employment with
             Wal-Mart. Furthermore, he subsequently found other
             employment, at Casper Transport. However, the Injured
             Worker was subsequently terminated from his new position
             of employment, at Casper Transport, due to excessive
             absenteeism.
             Therefore, the Injured Worker previously requested the
             payment of temporary total disability compensation from the
             date that he left Casper Transport, of 11/17/2007, through
             01/08/2009 and continuing.
             That period of disability was previously addressed by the
             Industrial Commission, and denied, pursuant to the order
             from the hearing of 09/29/2009, mailed 12/03/2009. The
             Industrial Commission found that the medical evidence
             submitted by the Injured Worker to support temporary total
             disability compensation was inconsistent and equivocal. The
             physician certifying disability made reference to the Injured
             Worker's history of surgeries in "2002, 2003 and 2005",
             despite the fact that the recognized injury in this claim did
             not occur until 11/30/2004. the supporting medical evidence
             also specifically referred to, "a redo surgery in 2003, as well
             as a redo surgery in 05/2005." Also, the Industrial
             Commission made note of the fact that the Injured Worker
             was involved in a motor vehicle accident, on 06/01/2007,
             and that his attending physician, Dr. Kuns, ordered a cervical
             MRI because of symptoms, "since the car accident in June,
             2007." For all of the above reasons, the Industrial
             Commission of Ohio previously denied the requested period
             of temporary total disability compensation, as previously
             requested, from 11/17/2007 through 09/29/2009.

(Emphasis added; emphasis sic.)
      {¶ 59} Before addressing whether or not relator's subsequent employment made
him eligible to receive TTD compensation, the SHO again stated:
             As previously stated above, the Injured Worker voluntarily
             quit his former position of employment, with the named
             Employer, Wal-Mart Stores Inc., on 04/20/2007.

(Emphasis added.)
No. 13AP-3                                                                             19


       {¶ 60} Contrary to relator's argument, the commission found that his departure
from his employment with Wal-Mart was voluntary. This one sentence to which relator
directs this court's attention is the only statement in the record indicating that his
departure from Wal-Mart was anything other than voluntary. Besides consideration of
the aforementioned prior orders, a review of the remainder of the stipulation of evidence
supports the commission's determination.
       {¶ 61} First, in his exit interview with Wal-Mart, relator never indicated that his
allowed conditions were impacting his ability to perform his job duties at Wal-Mart.
Second, relator left Wal-Mart in April 2007. There is no contemporaneous medical
evidence in the record which would indicate that his departure from Wal-Mart was
related to the allowed conditions in his claim. This lack of contemporaneous medical
evidence cuts against relator's argument. Third, the evidence indicates that relator was
involved in a motor vehicle accident in June 2007 and sought medical treatment
thereafter.   The evidence includes an undated medical report from Dr. Kim who
specifically noted that relator's overall condition was getting worse after the June 2007
motor vehicle accident.   While the record does contain an MRI and an x-ray from
November 2007, as the commission stated in earlier orders, relator did not seek
treatment until January 18, 2008 when he first saw Dr. Bauer. As such, the evidence
supports the commission's determination that the medical evidence was insufficient to
show that relator's allowed conditions necessitated his departure from his employment
with Wal-Mart. In light of the above, the magistrate finds that the commission did not
abuse its discretion when it determined that relator's departure from his employment
with Wal-Mart was voluntary.
       {¶ 62} After acknowledging that his departure from Wal-Mart was voluntary, the
commission specifically acknowledged that relator's eligibility for TTD compensation did
not end because relator subsequently became employed by Petco and then by Casper. As
the Supreme Court of Ohio indicated in McCoy, despite the fact that an injured worker
voluntarily abandons their employment with their former employer, the injured worker
can again be entitled to an award of TTD compensation if, while working at their new job,
they again become disabled.
No. 13AP-3                                                                               20


       {¶ 63} According to the evidence, relator was terminated from his employment
with Casper due to excessive absenteeism.        Relator appears to argue here that his
excessive absenteeism was due to the allowed conditions in his claim. As such, relator
asserts that his departure from Casper was not voluntary, but was involuntary.
Alternatively, relator asserts that his termination from Casper was an employer initiated
departure and asserts that the commission should have conducted an analysis pursuant to
State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995).
However, there is nothing in the record which would indicate that relator ever raised this
alternative issue with the commission or that relator presented any evidence which would
support this contention. Ordinarily, reviewing courts do not consider errors which the
complaining party could have called, but did not call, to the lower court's attention at the
time it could have been avoided or corrected. See State ex rel. Quarto Mining Co. v.
Foreman, 79 Ohio St.3d 78 (1997), and State ex rel. Gibson v. Indus. Comm., 39 Ohio
St.3d 319 (1988).
       {¶ 64} Even if this argument were to be considered, there is no contemporaneous
medical evidence in the record which would indicate that relator left his employment with
Casper due to the allowed conditions in his claim.              In the absence of that
contemporaneous medical evidence, relator's argument is not supported by any evidence
in the record.
       {¶ 65} Relator's final argument is that the commission abused its discretion by
applying Eckerly when the commission should have applied this court's decision from
Estes Express. For the reasons that follow, this magistrate disagrees.
       {¶ 66} Shawn N. Eckerly sustained a work-related injury. Three months later,
Eckerly was fired for unexcused absenteeism. The commission declared that Eckerly's
discharge constituted a voluntary abandonment of his former position of employment
pursuant to Louisiana-Pacific.
       {¶ 67} At sometime thereafter, Eckerly sought an award of TTD compensation
which the commission denied.       Although Eckerly's claim was allowed for additional
conditions, the court noted that there was no evidence that Eckerly was gainfully
employed for any specific length of time after his discharge from his former position of
No. 13AP-3                                                                                   21


employment.     The commission denied Eckerly's request for TTD compensation and
Eckerly filed a mandamus action which this court denied.
       {¶ 68} In affirming this court's decision, the Supreme Court of Ohio stated:
              The present claimant seemingly misunderstands McCoy. He
              appears to believe that so long as he establishes that he
              obtained another job—if even for a day—at some point after
              his departure from Tech II, TTC eligibility is forever after
              reestablished. Unfortunately, this belief overlooks the tenet
              that is key to McCoy and all other TTC cases before and
              after: that the industrial injury must remove the claimant
              from his or her job. This requirement obviously cannot be
              satisfied if claimant had no job at the time of the alleged
              disability.

(Emphasis sic.) Eckerly at ¶ 9.
       {¶ 69} In citing the Supreme Court's decision in Eckerly, the commission
specifically noted that, at the time relator alleged that he again became disabled, he was
not working. While relator acknowledges this, he argues that the commission abused its
discretion by not applying this court's analysis from Estes Express.
       {¶ 70} In Estes Express, Jason Chasteen sustained a work-related injury during the
course of his employment with Estes Express. A short time thereafter, Chasteen was
terminated for supplying false information regarding his medical treatment. As such,
Chasteen's departure from his employment with Estes Express was found to be voluntary.
       {¶ 71} Chasteen subsequently re-entered the workforce as a golf ranger at Belterra
Casino Resort & Spa ("Belterra Casino"). Chasteen was laid off from this position on
November 3, 2006. That same day, Chasteen was re-examined by Bradley Skidmore,
M.D., who noted that Chasteen continued to have a combination of low back pain, left leg
radicular pain with numbness in his left lateral calf, as well as a positive strait leg raise on
the left and a negative strait leg raise on the right. Chasteen underwent surgery on
November 6, 2006 and sought an award of TTD compensation.                    The commission
determined that Chasteen was entitled to an award of TTD compensation. Specifically,
the commission's order stated:
              Pursuant to the Staff Hearing Officer order issued
              07/29/2006, the Injured Worker was found to have
              voluntarily abandoned his former position of employment as
No. 13AP-3                                                                           22


             a loading dock worker for violation of a written work rule.
             Thus, the payment of temporary total disability
             compensation was denied at that time. The Commission now
             finds, however, that the Injured Worker returned to work for
             a different employer, Belterra Casino, in August of 2006.
             Therefore, pursuant to State ex rel. Baker v. Industrial
             Commission (2000), 89 Ohio St.3d 376, 732 N.E.2d 355, also
             know[n] as "Baker II," the Injured Worker is entitled to
             temporary total disability compensation should he be
             disabled from work at Belterra Casino due to the allowed
             injury.

             The Commission finds that the Injured Worker last worked
             for Belterra Casino on 11/03/2006. He underwent a
             laminectomy for the allowed conditions in this claim on
             11/06/2006, and was subsequently off work due to the
             allowed conditions and recovery from surgery through
             05/06/2007. The Commission further finds that the Injured
             Worker's “layoff,” which occurred three days prior to
             previously scheduled surgery on 11/06/2006, can not be
             deemed to be a "voluntary abandonment of employment" so
             as to preclude eligibility for temporary total disability
             compensation, pursuant to State ex rel. BOC Group, General
             Motors Corporation v. Indus. Comm. (1991), 58 Ohio St.3d
             199, 569 N.E.2d 496. In BOC, the Court held that it is
             immaterial whether there is a causal connection between the
             injury and the termination in cases where the Injured
             Worker has been laid off by the Employer. The Court further
             held that, as a general rule, where the Employer lays off the
             Injured Worker, the layoff is considered to be involuntary
             departure from the workforce. According to the Injured
             Worker's testimony at today's hearing, he would have
             continued to work at Belterra but for his impending back
             surgery. The Injured Worker did not quit nor was he
             terminated from his employment, but instead he was "laid
             off" by Belterra. Finally, the Commission is persuaded by the
             Injured Worker's testimony that his layoff was planned to
             coincide with his surgery.

Id. at 44.
       {¶ 72} Estes Express filed a mandamus action in this court arguing that Chasteen
was not working on November 6, 2006 when he had surgery. Therefore, inasmuch as he
was not working, he could not establish a loss of wages and was not entitled to an award
of TTD compensation.
No. 13AP-3                                                                                23


       {¶ 73} This court ultimately concluded the fact that Chasteen was laid off from his
position with Belterra Casino was employer initiated and was therefore involuntary.
Finding that his departure from the workplace was involuntary, this court rejected Estes
Express' argument that, because Chasteen was not working at the time he became
disabled, he was barred from receiving TTD compensation.
       {¶ 74} Relator again continues to argue that, either he was absent from the
workforce due to the allowed conditions in his claim, or his discharge from Casper was
employer initiated, like a lay-off and, pursuant to this court's finding in Estes Express, an
employer initiated termination does not bar the receipt of TTD compensation.
       {¶ 75} Aside from the fact that relator was terminated from Casper due to
excessive absenteeism, relator has not presented any evidence to support a finding that
his excessive absenteeism was due to the allowed conditions in his claim or that he argued
that his employer-initiated termination violated the principles of Louisiana-Pacific and
does not bar his subsequent entitlement to an award of TTD compensation. It was
relator's burden to prove that the absences were due to the allowed conditions in his
claim. As the commission noted in its order, relator failed to present sufficient medical
evidence to support his contention that his departure was due to the allowed conditions.
As such, relator has failed to demonstrate that the commission abused its discretion when
it applied the rationale from Eckerly and, finding that he was not working at the time he
became disabled, he was not entitled to an award of TTD compensation.
       {¶ 76} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his request for
TTD compensation, and this court should deny relator's request for a writ of mandamus.
                                          /S/ MAGISTRATE
                                          STEPHANIE BISCA BROOKS
                              NOTICE TO THE PARTIES
              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
              as error on appeal the court's adoption of any factual finding
              or legal conclusion, whether or not specifically designated as
              a finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically
              objects to that factual finding or legal conclusion as required
              by Civ.R. 53(D)(3)(b).
