[Cite as State ex rel. Bomer v. Indus. Comm. of Ohio, 2019-Ohio-1328.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. Kathleen Bomer,                          :

                Relator,                               :

v.                                                     :                    No. 17AP-701

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

                Respondents.                           :



                                           D E C I S I O N

                                      Rendered on April 9, 2019


                On brief: Sheldon Karp Co. LPA, Matthew Teeter, and
                David Steiger, for relator.

                On brief: [Dave Yost], Attorney General, and Andrew J.
                Alatis, for respondent, Industrial Commission of Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, P.J.

        {¶ 1} Relator, Kathleen Bomer, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order denying her application for permanent total disability ("PTD")
compensation and to enter an order granting said compensation.
        {¶ 2} Pursuant to Civ.R. 53 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. The magistrate found that the commission
did not abuse its discretion when it determined that relator had voluntarily abandoned the
No. 17AP-701                                                                                  2

workforce for reasons unrelated to the allowed conditions in her claim. Therefore, 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. Relator contends
that the magistrate erred because she failed to address the merits of relator's challenge to
the commission's November 2014 decision that denied relator temporary total disability
("TTD") compensation based upon voluntary abandonment of the workforce. Because that
finding was later used as the primary basis for the commission's June 28, 2017 denial of
relator's PTD request, relator argues the magistrate should have examined the merits of the
November 2014 decision. We agree. Nevertheless, for the following reasons, we conclude
that relator is not entitled to a writ of mandamus.
       {¶ 4} The issue of voluntary abandonment of the workforce was raised in
connection with relator's request for TTD in 2014. Relator concedes she has not worked
since a claim-related surgery in 2000. The record also reflects that relator was denied PTD
in January 2007 and in October 2009 because she was found to be capable of performing
sedentary work. Relator concedes she has not participated in any vocational rehabilitation
and that she was awarded social security disability benefits in 2007. Relator's social
security disability benefits were converted to social security retirement benefits in 2013
when she reached age 66. Relator testified that in approximately 2012, she went to three
different temporary agencies in order to find employment. However, she provided no
documentation or other details to corroborate that assertion. The commission found that
this effort, even if believed, was insufficient to establish that relator made a valid effort to
return to the workforce. Therefore, the commission denied relator TTD based upon its
finding that relator had voluntarily abandoned the workforce at least by 2009 for reasons
unrelated to the allowed conditions in her claim.
       {¶ 5} Given the evidence before the commission in 2014, we reject relator's
contention that the commission abused its discretion in denying relator TTD based upon
voluntary abandonment of the workforce. Again, relator had not worked since 2000 even
though she was deemed capable of performing sedentary work in 2007 and in 2009.
Relator made no attempt to participate in any vocational rehabilitation. Although relator
contended she contacted three temporary employment agencies in 2012, she offered no
corroborative documentation or any other details about the nature or extent of those
No. 17AP-701                                                                               3

contacts. She also began receiving social security retirement benefits in 2013 at age 66.
Relator's action and/or inaction is indicative of her intent. Given these undisputed facts,
there is some evidence to support the commission's finding that relator voluntarily
abandoned the workforce for reasons unrelated to the allowed conditions in her claim prior
to her 2014 request for TTD.
       {¶ 6} The commission's November 2014 decision denying relator TTD based upon
her voluntary abandonment of the workforce was the primary basis for the commission's
June 28, 2017 decision denying relator's third request for PTD. The commission also noted
that relator presented no evidence that she returned to the workforce or engaged in a good-
faith effort to return to the workforce since 2014. Therefore, the commission found that
relator voluntarily abandoned the workforce and was not eligible for PTD compensation.
Given the commission's 2014 decision and relator's failure to demonstrate a good-faith
effort to return to the workforce since that decision, we find that the commission did not
abuse its discretion in denying relator PTD.
       {¶ 7} For these reasons, we sustain relator's objection to the limited extent that the
magistrate should have addressed relator's challenge to the commission's November 2014
finding that relator voluntarily abandoned the workforce. Nevertheless, we find that the
commission did not abuse its discretion in denying relator's 2014 request for TTD and her
2017 request for PTD based upon her voluntary abandonment of the workforce.
       {¶ 8} Following an independent review of this matter, we adopt the magistrate's
findings of fact. However, we modify the magistrate's legal analysis as set forth above. In
accordance with the magistrate's decision, we deny relator's request for a writ of
mandamus.
                                  Objections sustained in part; writ of mandamus denied.

                           SADLER and DORRIAN, JJ., concur.
No. 17AP-701                                                                            4

                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT



The State ex rel. Kathleen Bomer,            :

              Relator,                       :

v.                                           :                   No. 17AP-701

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

              Respondents.                   :



                         MAGISTRATE'S DECISION

                              Rendered on October 12, 2018



              Sheldon Karp Co. LPA, Matthew Teeter, and David Steiger,
              for relator.

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


                                    IN MANDAMUS

       {¶ 9} Relator, Kathleen Bomer, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied her application for permanent total
disability ("PTD") compensation, and ordering the commission to find that she is entitled
to that award.
Findings of Fact:
       {¶ 10} 1. Relator was employed as a portable x-ray technician by respondent,
Integrated Health Services, Inc.
No. 17AP-701                                                                                             5

        {¶ 11} 2. Relator sustained a work-related injury on February 4, 1997 when she
slipped on ice and her workers' compensation claim has been allowed for the following
conditions:
                Left knee sprain/strain and contusion Coccyx; torn lateral
                meniscus left knee and torn medial collateral ligament left
                knee; anterior cruciate ligament tear left knee; post-traumatic
                osteoarthritis of left knee; chronic pes anserinus bursitis left
                knee; chronic trochanteric bursitis left hip; depressive
                disorder and pain disorder associated with both psychological
                factors and a general medical condition; abrasion face; closed
                fracture one rib, left; open fracture distal radius, left; closed
                fracture distal ulna, left; sprain/capsular injury left thumb
                and left thumb trigger finger; aggravation of pre-existing
                arthritis, left thumb; dislocation of metacarpophalangeal joint
                of let thumb; nasal bone fracture; non-displaced fifth
                metacarpal fracture right; superficial lip laceration; and rib
                contusion.

        {¶ 12} 3. Relator ultimately returned to work until sometime in 2000 or 2002.1 At
that time, relator was performing light duty office work.
        {¶ 13} 4.     Relator made no attempts to return to work thereafter, has not
participated in any vocational rehabilitation, and applied for Social Security Disability
payments in 2007.
        {¶ 14} 5. Relator filed her first application for PTD compensation on May 10, 2006
at which time she was 59 years of age.
        {¶ 15} 6. Relator's application was heard before a staff hearing officer ("SHO") on
January 3, 2007 and was denied. The SHO relied on medical evidence to find that relator
was capable of performing work at a sedentary level. Thereafter, the SHO determined that
relator's current age of 59 years would not prevent her from learning or performing jobs,
that her high school, college, and training were positive vocational factors, and that her
work experience was likewise a positive vocational factor. The SHO specifically discussed
a vocational report identifying numerous jobs which relator would be capable of
performing.



1Relator's brief indicates she last worked in 2000, the day before she had a surgery. The commission uses
the 2002 date relator indicated on her application for TTD compensation. The actual date is not relevant to
these proceedings.
No. 17AP-701                                                                              6

       {¶ 16} 7.    On May 14, 2008, relator filed her second application for PTD
compensation. At that time, relator was 61 years old.
       {¶ 17} 8. Relator's application was heard before an SHO on October 22, 2009. The
SHO denied relator's request for PTD compensation based on medical reports which found
she was capable of performing work at a sedentary level and her psychological conditions,
in and of themselves, did not prevent her from successfully returning to work. The SHO
further noted that, relator was currently 62 years old, a high school graduate with one year
of college experience who had fulfilled the requirements of a two-year course of study to
become an x-ray technician. The SHO noted further that the vocational assessment in the
record outlined many sedentary work opportunities which were available to relator, noting
further that relator had made no attempts to participate in any rehabilitation program.
       {¶ 18} 9. On September 19, 2014, relator filed an application for temporary total
disability ("TTD") compensation from August 7, 2014 through February 3, 2015 and
continuing.
       {¶ 19} 10. The matter was heard before a district hearing officer ("DHO") on
October 15, 2014 and was denied. The DHO specifically found that relator had left the
workforce several years earlier and that there was insufficient evidence that she desired to
re-enter the workforce.
       {¶ 20} 11.   Relator appealed and the matter was heard before an SHO on
November 24, 2014. Although the SHO modified the prior DHO order, the SHO denied
relator's request for TTD compensation finding as follows:
              The Injured Worker last worked in the work force in May
              2002. Since that time she has received periods of disability.
              She was released to return to the work force sometime in
              2009. The Injured Worker did not look for any work at that
              time. The Injured Worker began collecting Social Security
              Disability in 2007 which was later converted to Social Security
              Retirement. On 10/22/2009, permanent total disability was
              denied and it was found at that time that the Injured Worker
              was able to engage in sustained remunerative employment.

              The Injured Worker testified that about two years ago she did
              go to three different temporary agencies in order to find
              employment, but has not made any other efforts beyond those
              few attempts to find employment. There is no documentation
              to corroborate this statement.
No. 17AP-701                                                                           7

             The Hearing Officer finds that this minimal effort is
             insufficient to find that the Injured Worker has made a valid
             effort to return to the work force. The Hearing Officer finds
             that for the Injured Worker has abandoned the workforce as
             early as 2009 and the minimal attempt to find employment
             two years ago is insufficient to find that the Injured Worker
             has not abandoned the work force.

      {¶ 21} 12. Relator's appeal was denied by order of the commission mailed December
18, 2014.
      {¶ 22} 13. Relator filed her third application for PTD compensation, which is the
matter currently before us, on February 14, 2017.
      {¶ 23} 14. Relator's application was heard before an SHO on June 28, 2017 and was
denied. The SHO specifically determined that relator was ineligible to receive PTD
compensation based on the November 7, 2009 commission order finding that she was
capable of engaging in gainful employment and the November 29, 2014 order denying her
TTD compensation on the basis that she had voluntarily abandoned the workforce. Finding
that there was no evidence that relator had returned to work or that she had engaged in a
good-faith effort to secure suitable employment, the SHO denied her request for PTD
compensation. Specifically, the SHO stated:
             The Hearing Officer finds that the Injured Worker is ineligible
             to receive permanent total disability compensation. The Staff
             Hearing Officer['s] findings issued 11/07/2009 determined
             that the Injured Worker was capable of engaging in
             substantial gainful employment. The Staff Hearing Officer['s]
             findings issued 11/29/2014 denied temporary total disability
             compensation on the basis that the Injured Worker
             voluntarily had abandoned the work force by not engaging in
             a good faith effort to find employment. There is no evidence
             that the Injured Worker has returned to the workforce since
             the 2014 order or that she has engaged in a good faith effort
             to find work since 2014. The Hearing Officer, therefore, finds
             that the Injured Worker was abandoned the workforce
             voluntarily and is ineligible to receive permanent total
             disability compensation. In this instance the issues of whether
             the Injured Worker has reached maximum medical
             improvement and whether the medical evidence submitted
             with the application is sufficient need not be addressed as the
             issue of voluntary abandonment of the workforce is
             dispositive. All proof on file was reviewed and considered.
No. 17AP-701                                                                                8

       {¶ 24} 15.   Relator's request for reconsideration was denied by order of the
commission mailed August 5, 2017.
       {¶ 25} 16. Thereafter, relator filed the instant mandamus action.
Conclusions of Law:
       {¶ 26} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 27} 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).
       {¶ 28} 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).
       {¶ 29} 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
No. 17AP-701                                                                             9

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).
       {¶ 30} Relator contends the commission abused its discretion by finding that she
had abandoned the workforce as early as 2009 without determining whether or not she was
capable of engaging in any sustained remunerative employment at that time. While relator
concedes that PTD compensation is not payable when an employee has retired or otherwise
voluntarily abandoned the workforce for reasons unrelated to the allowed injury, relator
points to Ohio Adm.Code 4121-3-34(D)(1)(d), which provides:
              If, after hearing, the adjudicator finds that the injured worker
              voluntarily removed himself or herself from the work force,
              the injured worker shall be found not to be permanently and
              totally disabled. If evidence of voluntary removal or
              retirement is brought into issue, the adjudicator shall
              consider evidence that is submitted of the injured worker's
              medical condition at or near the time of removal/retirement.

       {¶ 31} When the commission denied relator's second application for PTD
compensation filed in 2008, the commission relied on four medical reports to find relator
was currently capable of performing sustained remunerative employment at a sedentary
level with restrictions and her allowed psychological conditions would not prohibit her
from working. At that time, the SHO also noted that relator had made no attempts to
participate in any rehabilitation program despite the fact that vocational assessments
specifically identified numerous jobs for which relator was otherwise qualified. As such,
there was medical evidence that relator was capable of working in 2008 through 2009,
which is the relevant time period at issue.
       {¶ 32} In 2014, relator's request for TTD compensation was denied following a
hearing before an SHO on November 24, 2014. As indicated in the findings of fact, the SHO
noted relator had not worked since 2002 and began collecting Social Security Disability in
2007. The SHO also noted that relator was found capable of engaging in sustained
remunerative employment in 2009 when her second application for PTD compensation
was denied. Apparently, relator testified, approximately two years earlier (2012), she went
to three temporary agencies in order to find employment, but was unsuccessful. The SHO
specifically noted relator did not present any documentation to substantiate her claim she
No. 17AP-701                                                                               10

had tried to return to work. As a result, the SHO found her minimal effort to be insufficient
and again concluded she had abandoned the workforce as early as 2009.
       {¶ 33} The magistrate specifically notes relator did not file a mandamus action from
either the commission's order in 2009 finding she had made no attempts to return to the
workforce nor the November 2014 order denying her TTD compensation finding that she
had abandoned the workforce. As such, finding relator had an adequate remedy at law at
that time to challenge the determination that she had abandoned the workforce, relator
cannot raise that issue for the first time almost ten years later.
       {¶ 34} Relator cites this court's recent decision in State ex rel. Digiacinto v. Indus.
Comm., 10th Dist. No. 16AP-248, 2018-Ohio-1999, in support.              Paul A. Digiacinto
sustained a work-related injury during the course of his employment with Wheeling-
Pittsburgh Steel Corporation. Digiacinto filed his first application for PTD compensation
in June 2016. The matter was heard before an SHO who denied the application finding that
Digiacinto was capable of medium level work. Based on Dr. Sethi's report and two
vocational reports, the SHO concluded that he was able to return to his former job as a
"tractor operator at a steel mill." Id. at ¶ 31. The SHO also found that Digiacinto had "last
worked on 12/06/2001, at which time he was 52 years old." Id.
       {¶ 35} Digiacinto filed his second application for PTD compensation in September
2013. Following a hearing before an SHO, the application was denied based on a finding
Digiacinto was capable of functioning at the sedentary work level and, considering the non-
medical disability factors, Digiacinto was capable of performing sustained remunerative
employment.
       {¶ 36} Digiacinto's claim was later additionally allowed for various psychological
conditions and, in October 2014, the Ohio Bureau of Workers' Compensation ("bureau")
awarded Digiacinto TTD compensation beginning February 7, 2014. In July 2015, an SHO
extended TTD compensation to June 5, 2015 and continuing. In November 2015, a DHO
terminated Digiacinto's compensation finding that his allowed psychological conditions
had reached maximum medical improvement. Digiacinto did not administratively appeal
that decision.
       {¶ 37} In July 2015, Digiacinto filed his third application for PTD compensation.
Following a hearing before an SHO, the application was granted. In the order, the SHO
No. 17AP-701                                                                              11

specifically addressed the bureau's argument that Digiacinto had voluntarily abandoned
the entire workforce for reasons unrelated to the allowed conditions in his claim and had
failed to seek work or otherwise participate in vocational rehabilitation.       The SHO
determined the bureau had multiple opportunities to raise the issue previously (in 2014
when PTD compensation was denied for medical reasons, when TTD compensation was
allowed in 2014, and in 2015 when TTD compensation was continued), but had failed to do
so. The SHO stated further that Digiacinto had begun receiving Social Security Disability
benefits in May 2002 due to the lumbar conditions allowed in his claim. A copy of the
decision from the administrative law judge ("ALJ") was part of the record. The ALJ
specifically found that Digiacinto's impairments were " 'severe' under the Social Security
Act are as follows: lumbar disc herniations with foraminal stenosis and lumbar
radiculopathy." Id. at ¶ 31. Digiacinto's workers' compensation claim was specifically
allowed for lumbar disc herniations and lumbar radiculopathy. The ALJ found that
Digiacinto could perform exertion demands of no more than sedentary work and that there
were no jobs existing in significant numbers which he could perform.
       {¶ 38} The bureau asked the commission to exercise its continuing jurisdiction and
the commission did so. Following a hearing on February 25, 2016, the commission vacated
the SHO's order and specifically found Digiacinto was ineligible to receive PTD
compensation because he had voluntarily abandoned the workforce.
       {¶ 39} Digiacinto filed a writ of mandamus in this court. The matter was referred to
a magistrate who found the commission's finding that the bureau was barred from
challenging Digiacinto's eligibility for PTD compensation because the bureau had failed to
raise it earlier was a clear mistake of law and that, in ultimately denying Digiacinto PTD
compensation, the commission did not abuse its discretion by failing to find the decision of
the ALJ excused Digiacinto from searching for work or pursuing vocational rehabilitation.
Digiacinto filed objections.
       {¶ 40} This court sustained the objections to the magistrate's decision first finding
that the magistrate erred in concluding that the commission had considered the ALJ's
decision finding that Digiacinto was incapable of work. This court stated:
              Based on the evidence in the record, the ALJ's decision would
              seem to carry considerable weight in the commission's
              determination of Digiacinto's capability to work and,
No. 17AP-701                                                                            12

               consequently, whether he left the workforce of his own
               volition. Under the facts presented, we find that the
               magistrate could not presume that the commission had
               considered "all the evidence" before it, specifically the ALJ's
               decision. [State ex rel. Lovell v. Indus. Comm., 74 Ohio St.3d
               250, 252, (1996)]. As a result, we disagree with the
               magistrate's conclusion that the commission's failure to
               mention the ALJ's decision in the February 25, 2016 order was
               not an abuse of discretion.

Id. at ¶ 23.

       {¶ 41} The magistrate had concluded that the ALJ's decision could not be relied on
because the medical impairments underlying the ALJ's decision included the non-allowed
condition of foraminal stenosis. Relying on State ex rel. Waddle v. Indus. Comm., 67 Ohio
St.3d 452 (1993), the magistrate concluded that relator could not use that non-allowed
condition to show that he was excused from searching for work or pursuing vocational
rehabilitation. Digiacinto argued that the magistrate's analysis was flawed because he
merely submitted the ALJ's decision to show that he did not intentionally abandoned the
workforce. This court concluded that the magistrate:
               [E]rred in upholding the commission's apparent failure to
               consider the ALJ's decision based on the magistrate's belief
               that the ALJ decision was intended to support Digiacinto's
               request for PTD compensation, when in fact the decision was
               not provided for that purpose.

Id. at ¶ 28.

       {¶ 42} The magistrate disagrees with relator's argument that the above decision
requires this court issue a writ of mandamus here. First, relator has not submitted a copy
of the determination from the Social Security Administration granting her benefits. As
such, unlike Digiacinto whose application for Social Security benefits was granted, in
significant part, based on conditions allowed in his workers' compensation claim, neither
the commission nor this court can review the reason Social Security benefits were awarded.
Secondly, in the statement of facts prepared for the 2017 hearing, the commission
specifically noted the following medical factors which are wholly unrelated to the allowed
conditions in relator's workers' compensation case. Those medical conditions include:
"Diabetes, hypothyroidism; heart attack (2015); cancer; anxiety, high blood pressure; sleep
No. 17AP-701                                                                              13

deprivation." The magistrate specifically notes that those conditions are indeed significant
and, it goes without saying, that they are not related to the allowed conditions in relator's
claim. Third, when her application for TTD compensation was denied, relator testified that
she had approached three temporary agencies looking for work but was unsuccessful.
Clearly, relator attempted to refute the determination of voluntary abandonment but failed
to present sufficient evidence. As such, the magistrate finds that relator's reliance on
Digiacinto is unpersuasive.
       {¶ 43} The record in the present case is clear. On several occasions, the commission
found, based on the allowed conditions in her claim, relator was capable of performing work
activity at a sedentary level with restrictions. Specifically, there is evidence relator was
capable of working in 2009, the time period used by the commission to determine when
she abandoned the workforce. Although relator's treating physician indicated she could not
work and did not release her to return to work, the fact remains the commission did not
rely on her medical evidence; instead, the commission specifically found she was capable
of working during the time periods at issue. Despite that fact, relator never participated in
any rehabilitation and never returned to work.
       {¶ 44} Based on the foregoing, the magistrate finds that the commission did not
abuse its discretion when it determined relator had voluntarily abandoned the workforce
for reasons unrelated to the allowed conditions in her claim, and relator has not
demonstrated she is entitled to 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).
