[Cite as State ex rel. Montgomery v. Indus. Comm., 2013-Ohio-5295.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                 :
Thomas J. Montgomery,
                                                      :
                Relator,
                                                      :                  No. 12AP-759
v.
                                                      :               (REGULAR CALENDAR)
Industrial Commission of Ohio
and Advanced Composites, Inc.,                        :

                Respondents.                          :


                                        D E C I S I O N

                                   Rendered on December 3, 2013


                Larrimer and Larrimer, and Thomas L. Reitz, for relator.

                Michael DeWine, Attorney General, and Eric J. Tarbox, for
                respondent Industrial Commission of Ohio.

                Sebaly Shillito + Dyer, Karl R. Ulrich, and Danyelle S.T.
                Wright, for respondent Advanced Composites, Inc.


                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

DORRIAN, J.
                        {¶ 1}    Relator, Thomas J. Montgomery, commenced this original
               action requesting a writ of mandamus ordering respondent Industrial
               Commission of Ohio ("commission") to vacate its order denying him
               temporary total disability ("TTD") compensation beginning March 11, 2011
               and to find that he is entitled to that compensation.
                        {¶ 2}    Pursuant to Civ.R. 53(D) and Loc. R. 13(M) of the Tenth
               District Court of Appeals, this matter was referred to a magistrate, who
               issued the appended decision, including findings of fact and conclusions of
               law. In his decision, the magistrate observed that the March 5, 2012 order of
No. 12AP-759                                                                        2

          the commission's staff hearing officer ("SHO") denies TTD on two separate
          grounds: (1) that relator is ineligible for the compensation because he
          voluntarily abandoned the workforce, and (2) that the C-84 of Dr. Ward is
          rejected as being unpersuasive based on Dr. Hawkins' opinion that the
          neurotic depression is not work prohibitive.        The magistrate further
          observed that relator challenged the SHO's determination that he
          abandoned the workforce, but did not challenge the determination that the
          C-84 is rejected based on Dr. Hawkin's opinion.
                {¶ 3}     The magistrate recommends that we deny the writ of
          mandamus as the commission's determination that relator is ineligible for
          TTD compensation due to voluntary abandonment of the workforce is not
          ripe for judicial review in this action. Relator objects to this conclusion,
          arguing that the finding of voluntary abandonment is precedential and the
          request for TTD is continuing.
                {¶ 4}     Following an independent review pursuant to Civ.R. 53, we
          find the magistrate has properly determined the pertinent facts and applied
          the salient law to them. Accordingly, we overrule relator's objection and
          adopt the magistrate's decision as our own, including the findings of facts
          and conclusions of law contained in it. In accordance with the magistrate's
          decision, we deny the requested writ of mandamus.
                                                    Objection overruled; writ denied.
                        O'GRADY and T. BRYANT, JJ., concur.
           T. BRYANT, J., retired, of the Third Appellate District,
           assigned to active duty under the authority of Ohio
           Constitution, Article IV, Section 6(C).
No. 12AP-759                                                                      3




                                 APPENDIX


                        IN THE COURT OF APPEALS OF OHIO

                           TENTH APPELLATE DISTRICT


State of Ohio ex rel.                    :
Thomas J. Montgomery,
                                         :
            Relator,
                                         :                   No. 12AP-759
v.
                                         :               (REGULAR CALENDAR)
Industrial Commission of Ohio
and Advanced Composites, Inc.,           :

            Respondents.                 :




                        MAGISTRATE'S DECISION

                             Rendered on June 20, 2013


            Larrimer and Larrimer, and Thomas L. Reitz, for relator.

            Michael DeWine, Attorney General, and Eric J. Tarbox, for
            respondent Industrial Commission of Ohio.

            Sebaly Shillito + Dyer, Karl R. Ulrich, and Danyelle S.T.
            Wright, for respondent Advanced Composites, Inc.


                                  IN MANDAMUS

                   {¶ 5} In this original action, relator, Thomas J. Montgomery,
            requests a writ of mandamus ordering respondent Industrial Commission of
No. 12AP-759                                                                           4

             Ohio ("commission") to vacate its order denying him temporary total
             disability ("TTD") compensation beginning March 11, 2011 and to enter an
             order granting the compensation.


Findings of Fact:
                    {¶ 6} 1. On September 30, 2001, relator injured his right shoulder
             while employed as a machine operator for respondent Advanced
             Composites, Inc., a state-fund employer. On that date, relator fell several
             feet from the platform holding his machine.
             2. The industrial claim is currently allowed for:
             Contusion right shoulder; tear right rotator cuff; right
             synovitis;     right     bicipital    tenosynovitis;      right
             acromioclavicular joint arthritis; labral degeneration; right
             shoulder glenohumeral arthritis; degenerative joint disease
             right shoulder; right shoulder arthropathy; articular cartilage
             disorder right shoulder; neurotic depression.

                    {¶ 7} 3. On July 24, 2003, at the request of the Ohio Bureau of
             Workers' Compensation ("bureau"), relator was examined by orthopedic
             surgeon E. Gregory Fisher, M.D. In his four-page narrative report dated July
             29, 2003, Dr. Fisher stated:
             The treatment that the injured worker has received to date
             has been reasonable, necessary and related to the allowed
             conditions of the claim. Unfortunately, the physical therapy
             has been canceled due to his cardiac condition and he may
             need to wait another few months to start physical therapy

             I agree with the recommendations being made by the
             physician of record, that after clearance from his
             cardiologist, physical therapy should be done for at least two
             months.

             ***

             I do not feel that the injured worker can return to his former
             position of employment due to the medical instability of his
             right shoulder and his cardiac problems at this point.

             ***
No. 12AP-759                                                                      5

           The claimant has not reached his maximum medical
           improvement and should have re-examination in
           approximately 3-4 months.

                 {¶ 8} 4. On December 10, 2003, at the bureau's request, relator was
          examined by Thomas N. Markham, M.D. In his four-page narrative report,
          Dr. Markham states:
           This injured worker has not reached MMI for the injury to
           his right shoulder. He has most recently started physical
           therapy to improve the strength and range of motion. This
           start of physical therapy was delayed due to unrelated
           medical conditions which themselves limit his ability to
           return to work. He has a significantly reduced left ventricular
           discharge and recovering congestive heart failure. As a result
           of this latter condition, he may require vocational
           rehabilitation. A skills assessment is recommended.

           ***

           The injured worker cannot return to his former position of
           employment at present. Although his right shoulder has not
           reached MMI, his employment limitations have been caused
           by the unrelated medical conditions. He could return to work
           which did not require more than light manual labor with the
           right arm. This return to work is dependent upon the control
           of his cardiac health condition.

                 {¶ 9} 5. On March 2, 2004, at the bureau's request, relator was
          examined by Donald J. Sherman, M.D. In his five-page narrative report, Dr.
          Sherman stated:
           The injured worker remains substantially symptomatic and
           impaired, but there is indication of improvement with
           physical therapy. I do not consider that the injured worker
           has reached maximum medical improvement. If he is not
           medically prevented from continuing physical therapy, he
           may derive further benefit. If, however, he participates in
           physical therapy for another eight to ten weeks, with no
           interruptions or limitations imposed by his cardiac
           condition, and if there were no substantial improvement by
           that time, I would then consider him to have reached
           maximum medical improvement.

           ***
No. 12AP-759                                                                       6

           I discussed Mr. Montgomery's condition with his treating
           physician, Dr. Travis. We talked about vocational
           rehabilitation, which will be discussed below. In my opinion,
           treatment to date has been both necessary and appropriate.

           ***

           It is my opinion, and also that of Dr. Travis, that if Mr.
           Montgomery cannot participate in meaningful vocational
           rehabilitation because of his cardiac condition, it is unlikely
           that he would be able to resume gainful physical work for
           which he is otherwise qualified by virtue of education,
           training, and experience.

           ***

           The injured worker is not able to return to his former
           position of employment.

                 {¶ 10} 6. Following a June 29, 2004 hearing, a staff hearing officer
          ("SHO") issued an order stating:
           Temporary total disability is denied from 03/17/2004 to the
           present, 06/29/2004. Based on the reports of Drs.
           Markham, Sherman and Fishinger [sic], the injured worker
           cannot work presently due to the injured worker's unrelated
           cardiac problems.

                 {¶ 11} 7. On July 23, 2004, at the bureau's request, relator was
          examined by Stephen W. Duritsch, M.D. In his three-page narrative report,
          Dr. Duritsch stated:
           The injured worker states that he has noted a great deal of
           improvement in his shoulder over the last several months[.]
           He states that from a medical standpoint he has been able to
           participate in therapy[.] Due to the stability of his medical
           problems he was not medically suited for therapy through a
           good portion of the last of 2003 and early 2004[.] He states
           that he feels stronger and his motion is better in the right
           shoulder[.] He still has some weakness with external rotation
           and overhead lifting[.] His symptoms are still a 5 on a 1 to 10
           scale[.] His symptoms are worse with heavy exercise and
           better with rest[.] Functionally he has returned to driving
           and doing housework[.] He is unable to swing tools so it is
           difficult for him to do yard work[.] He had to change his
           hobbies as he can no longer handle a high-powered rifle[.]
No. 12AP-759                                                                 7

           From a medical standpoint his internist, Dr. Olegario at
           Good Samaritan Hospital in Cincinnati, told him that he is
           disabled[.] Social Security Disability has been processed[.]
           The injured worker does not plan to return to work once his
           therapy is completed[.]

           ***

           The injured worker had a fall in 2001[.] He had his first
           surgical procedure in March of 2002 and needed a redo
           procedure in December of 2002[.] His postoperative
           rehabilitation has been complicated by medical conditions
           including congestive heart failure and irritable bowel
           syndrome[.] He states that his medical condition is unrelated
           to this claim and have been severe enough that he is not
           going to go back to work for those conditions alone[.] He is
           on Social Security Disability[.] The primarily [sic] issue here
           is how long to continue physical therapy for strengthening,
           as the original plan for reconditioning with return to work is
           no longer appropriate as this injured worker is not planning
           to return to work[.]

           ***

           This injured worker likely warrants another four weeks of
           physical therapy at three times a week[.] He likely will be at
           maximal medical improvement at the completion of those
           visits[.]

           ***

           He cannot return to his former position of employment due
           to medical conditions of congestive heart failure and chronic
           obstructive pulmonary disease[.] He does not plan to go back
           to his previous job[.]

           ***

           Based on the information available at this time and my
           examination today, I completed the Opinion of Physical
           Capacities form based only on his shoulder injury from
           2001[.] This injured worker will be capable of light duty
           work based on his shoulder injury alone[.] His other medical
           conditions, per his report today, are preventing him from
           going back to work[.]
No. 12AP-759                                                                         8

                    {¶ 12} 8. On March 11, 2011, at relator's own request, he was
            examined by clinical psychologist H. Owen Ward, Jr., Ph.D. In his five-page
            narrative report, Dr. Ward opined:
             CONCLUSIONS AND RECOMMENDATIONS

             Based upon the current data presented to me I have given
             Mr. Montgomery the following diagnosis for a work related
             condition based on ICD-9-CM criteria:

             300.4 Neurotic Depression.

             The causality seems clear in this case. Mr. Montgomery has
             suffered from chronic depression over the past 4 to 5 years
             that are generally mild to moderate with very brief periods of
             relief. While he did appear to have some adjustment
             problems with his alcoholic ex-wife, these symptoms were
             episodic and seemed to have abated once he divorced. His
             irritability and verbal assaultive tendencies appear to be
             related to his depression and coping difficulty with chronic
             pain. In this regard, some of his anxiety appears to be related
             to this process of internalizing anger.

             In terms of causality, I believe that the current data indicates
             clearly that his current condition is the direct and proximate
             result of his workplace injury. These symptoms seem to have
             their onset for the era following his surgery in 2003, when
             his physical condition worsened and his pain became
             increasingly debilitating.

             I have discussed with Mr. Montgomery the recommendation
             for psychotherapy and psychotropic medication. He seems to
             be a cooperative person and willing to engage in treatment if
             he is granted benefits through the BWC.

      {¶ 13} 9. On September 30, 2011, at the bureau's request, relator was examined by
psychiatrist and neurologist James R. Hawkins, M.D. In his nine-page narrative report
dated October 18, 2011, Dr. Hawkins answers seven questions:
             OPINION- The following opinions are based on the
             information obtained from the history, present complaints,
             mental status examination, review of medical records
             provided, and are to a reasonable degree of medical
             certainty.
No. 12AP-759                                                                  9

           [One] Do the submitted medical evidence and the
           examination findings support the existence of the requested
           condition according to DSM IV classifications?

           Medical evidence and examination findings support a
           diagnosis of a mild chronic depression best described as
           300.4 Neurotic Depression. He feels sad, somewhat
           hopeless, and is concerned about his future. Nevertheless, he
           retains nearly all of his functional abilities.

           [Two] What is the normal onset of this type of diagnosis?

           Typically, this illness occurs with multiple losses over a long
           period of time. Mr. Montgomery has multiple medical
           illnesses which are impairing his ability to function to his
           premorbid level.

           [Three] What is the normal recovery period for this
           condition(s)?

           Dysthymia, is a chronic illness from which recovery is not
           likely.

           [Four] Is/are the alleged condition(s) a direct and proximate
           result of the industrial injury?

           No, the Dysthymic pre-existed the industrial injury.

           [Five] If the condition was present prior to the injury, did the
           injury aggravate the psychological condition?

           The injury did aggravate his pre-existing condition of
           Neurotic Depression.

           [Six] If, in your opinion, the psychological condition is
           present, what should current and future treatment include?
           Please indicate frequency and duration.

           Mr. Montgomery might benefit from a mild antidepressant
           and supportive counseling however there will be no long-
           term benefits given the chronicity of his depressive illness. I
           would recommend no more than 6 months of treatment.

           [Seven] Is this work prohibitive?

           The depression is not work prohibitive.
No. 12AP-759                                                                           10

                 {¶ 14} 10. On October 25, 2011, the bureau mailed an order
          additionally allowing the claim for "neurotic depression," based upon Dr.
          Hawkins September 30, 2011 examination and report.
                 {¶ 15} 11. On November 11, 2011, Dr. Ward completed a C-84 on
          which he certified TTD from March 11, 2011 to an estimated return-to-work
          date of February 3, 2012. Dr. Ward's certification was exclusively based
          upon the neurotic depression.
                 {¶ 16} 12. On November 18, 2011, relator moved for TTD
          compensation beginning March 3, 2011 based upon the C-84 from Dr. Ward.
                 {¶ 17} 13. Following a January 10, 2012 hearing, a district hearing
          officer ("DHO") issued an order denying the C-84 request for TTD
          compensation. The DHO's order explains:
           The District Hearing Officer finds the Injured Worker
           voluntarily abandoned the work force. From the Injured
           Worker's testimony and the Bureau of Worker's
           Compensation CSS notes dated 11/23/2011 and 12/02/2011,
           the District Hearing Officer finds the Injured Worker has not
           worked since 03/07/2002. At hearing, the Injured Worker
           acknowledged that he has not worked since this date. [H]e is
           currently receiving Social Security benefits, and since
           03/07/2002, has made no effort [to] obtain employment.
           Therefore, based upon this District Hearing Officer's finding
           that the Injured Worker voluntarily abandoned the
           workforce, the District Hearing Officer does not find the
           Injured Worker eligible for payment of temporary total
           disability compensation.

                 {¶ 18} 14. Relator administratively appealed the DHO's order of
          January 10, 2012.
                 {¶ 19} 15. On March 2, 2012, relator executed an affidavit stating:
           Now comes the affiant after first being dually cautioned and
           sworn and states that the following is a statement regarding
           my inability to continue working and the facts associated
           with my termination in 2003. I am making this statement in
           reference to the hearing officer's recent determination that I
           allegedly voluntarily abandoned the work force. This fact
           could not be further from the truth.

           At the time of my injury, I was working 40-50 hours per
           week. Directly following the injury I was not able to work
No. 12AP-759                                                                 11

           overtime but tried my best to continue light duty
           employment. Prior to my employment with Color and
           Composite Technologies, I was employed at Copeland
           Corporation working in full time capacity 40+ hours.

           When my injury first occurred, it was only recognized for
           contusion. Shortly thereafter, an MRI did confirm a tear of
           the right rotator cuff. This condition was eventually
           recognized in my claim and I began receiving temporary
           total disability benefits on March 15, 2002, the date of my
           first shoulder surgery. Following my surgery, I participated
           in vocational rehabilitation with the Bureau of Workers'
           Compensation and received living maintenance benefits. At
           the same time I was involved with vocational rehabilitation, I
           also was undergoing extensive physical therapy without
           much improvement. Unfortunately, my vocational
           rehabilitation plan had to be closed due to my inability to
           reach the physical capacity that would allow me to be
           productive with my employer of record. I was told that my
           vocational rehabilitation file was closed due to medical
           instability effective November 4, 2002.

           As my complaints continued, I did seek consultation for
           additional surgery. There was a delay in obtaining approval
           for my surgery as my EKG testing need[ed] to be cleared. It
           was determined that I needed additional surgery and my
           employer was growing very impatient about my ability to
           return to work. In fact, the human resources department
           continued to question me about the situation "not moving
           along." I did undergo my second shoulder surgery in
           December of 2002, and unfortunately, was told by the
           employer that I was terminated effective March 31, 2003, as
           a result of my inability to return to work. This is despite the
           fact that the BWC physician's continued to note my ongoing
           disability associated with my shoulder injury.

           I again availed myself of vocational rehabilitation but again
           the case was closed due to medical instability on July 1,
           2003.

           On a fourth occasion, I again referred myself to vocational
           rehabilitation in 2004 however, by this time I was diagnosed
           with congestive heart failure in addition to the problems I
           was having with my shoulder. I was not able to participate in
           the vocational rehabilitation due to this and was forced to
           make a determination to file for social security disability.
No. 12AP-759                                                                   12

           My decision to file for social security disability was due to the
           fact that I had many medical bills to pay and no health
           insurance due to my termination. Clearly, it was my
           intention to return to work if I had the ability to do so. My
           shoulder condition has never resolved and has continued to
           weaken to this day. I have had several consultations with
           various physicians including one at the Cleveland Clinic who
           have told me a third surgery would not be beneficial.

           I am offended by the allegation that I somehow voluntarily
           abandoned the work force in 2002, when the truth clearly is
           documented in the medical evidence and rehabilitation
           records.

           Even after my cardiac condition became stable, I continued
           to try to find a resolution to my shoulder problem and
           actually consulted with the Orthopedic Institute as well as
           the Cleveland Clinic.

           My shoulder to this day is seriously weak. I have to use my
           left arm to assist it with many tasks. Pain causes me difficulty
           sleeping and has contributed to my frustration with
           performing daily activities. I do believe that the pain and the
           disability associated with my shoulder condition have led to
           the recent diagnosis of neurotic depression.

           I have never had a resolution of my right shoulder condition
           since my date of injury and would wish nothing better than
           to have the ability to return to work. I would ask hat the
           Industrial Commission please consider my statement in
           regard to fully evaluating the reason for my departure from
           work in 2003.

                  {¶ 20} 16. Following a March 5, 2012 hearing, an SHO issued an
          order affirming the January 10, 2012 order of the DHO and denying the C-
          84 request for TTD compensation. The SHO's order explains:
           The Injured Worker's C-86 motion, filed 11/18/2011,
           requests the payment of temporary total disability
           compensation for the period from 03/03/2011 through
           11/18/2011 and continuing. However, at the hearing of
           Monday, March 5, 2012, the Injured Worker's legal counsel
           modified that request and stated that the Injured Worker is
           only requesting temporary total disability compensation
           from 03/11/2011 through an estimated date of 05/02/2012
           and continuing. The change in the starting date of temporary
           total disability compensation was based on the fact that the
No. 12AP-759                                                                 13

           Injured Worker was first examined by Hensel Owen Ward,
           Jr, Ph.D., on 03/11/2011, not 03/03/2011.

           The Administrator of the Bureau of Workers' Compensation
           objected to said request, based, in part, upon the allegation
           that the Injured Worker has abandoned the workforce.

           The Injured Worker submitted an affidavit, dated
           03/02/2012, stating that the allegation that he voluntarily
           abandoned the workforce was not true. However, this Staff
           Hearing Officer does not find the Injured Worker's affidavit
           to be credible nor persuasive.

           This Staff Hearing Officer makes note of the fact that, when
           the Injured Worker was previously examined by Donald J.
           Sherman, M.D., an Occupational Medicine Specialist, on
           03/02/2004, the Injured Worker told the examining
           physician that, "he has been diagnosed with chronic
           obstructive pulmonary disease…irritable bowel syndrome
           and congestive heart failure." Furthermore, Dr. Sherman
           indicates that the Injured Worker told him that, "the Injured
           Worker believes he will not be able to resume gainful
           employment, because of his cardiac condition, and is intent
           on pursuing permanent total disability." Dr. Sherman then
           contacted the Injured Worker's attending physician, R.
           Daniel Travis, M.D. Dr. Sherman related that, "I discussed
           Mr. Montgomery's condition with his treating physician, Dr.
           Travis. We talked about vocational rehabilitation, which will
           be discussed below…it is my opinion, and also that of Dr.
           Travis, that if Mr. Montgomery cannot participate in
           meaningful vocational rehabilitation, because of the cardiac
           condition, it is unlikely that he would be able to resume
           gainful physical work for which he is otherwise qualified by
           virtue of education, training, and experience."

           The Injured Worker was next examined [by] a Physical
           Medicine and Rehabilitation Specialist, Stephen W.
           Duritsch, M.D., on 07/23/2004. The Injured Worker related
           a similar history to Dr. Duritsch and stated that he had other,
           non-industrial illnesses, including Histoplasmosis, Chronic
           Obstructive Pulmonary Disease, Congestive Heart Failure
           and Irritable Bowel Syndrome. Furthermore, the Injured
           Worker told Dr. Duritsch that, "From a medical standpoint,
           his Internist, Dr. Olegarrio, at Good Samaritan Hospital, in
           Cincinnati, told him that he is disabled. Social Security
           Disability has been processed. The Injured Worker does not
           plan to return to work, once his therapy is completed."
           Furthermore, Dr. Duritsch also stated that Injured
No. 12AP-759                                                                   14

           [W]orker's, "post-operative rehabilitation has been
           complicated by medical conditions, including congestive
           heart failure and irritable bowel syndrome. He states that his
           medical condition is unrelated to this claim and have been
           severe enough that he is not going to go back to work for
           those conditions alone…the original plan for reconditioning,
           with return to work, is no longer appropriate, as this Injured
           Worker is not planning to return to work." Dr. Duritsch then
           stated his professional medical opinion that, "He cannot
           return to his former position of employment, due to medical
           conditions of congestive heart failure and chronic obstructive
           pulmonary disease. He does not plan to go back to his
           previous job…This Injured Worker will be capable of light
           duty work, based on his shoulder injury alone. His other
           medical conditions, per his report today, are preventing him
           from going back to work."

           Furthermore, this Staff Hearing Officer makes note of the
           fact that the Injured Worker's affidavit, dated 03/02/2012,
           stated that he attempted to participate in vocational
           rehabilitation, on four different occasions, and went on to
           state that, "Clearly, it was my intention to return to work, if I
           had the ability to do so."

           However, the vocational rehabilitation closure letter of
           01/27/2004, specifically stated that, "Mr. Montgomery is not
           interested in pursuing vocational rehabilitation services. He
           is currently receiving just over $500.00 in Social Security
           payments due to his heart condition and Irritable Bowel
           Syndrome…Mr. Montgomery has been referred for
           vocational rehabilitation services, due to his work-related
           injury on September 30, 2001. OEHP is the MCO
           responsible for managing Mr. Montgomery's Workers'
           Compensation claim. Mr. Montgomery indicated that his
           doctor does not believe that he is capable of sustained
           remunerative employment, due to his heart condition.
           Consequently, Mr. Montgomery denied services due to his
           heart condition and consequently Mr. Montgomery denied
           services" (emphasis added).

           Therefore, it is the finding of this Staff Hearing Officer that
           the Injured Worker voluntarily abandoned the entire labor
           market, "due to medical conditions of congestive heart
           failure and chronic obstructive pulmonary disease" which are
           conditions unrelated to the incident claim. Therefore, it is
           the finding of this Staff Hearing Officer that the Supreme
           Court's Holding in the case of State ex rel. Lackey v. Indus.
           Comm. (2011), 129 Ohio St.3d 119, is applicable to the facts
No. 12AP-759                                                                  15

           in the instant claim. The Injured Worker did not
           demonstrate, through medical evidence at the time of his
           departure from the workforce, that said departure was
           causally related to the industrial injury, as opposed to his
           non-industrial conditions of congestive heart failure and
           chronic obstructive pulmonary disease.

           The Ohio Supreme Court has also held that eligibility for
           compensation, under these circumstances, depends on
           whether the separation from appointment was "injury-
           induced". In the instant claim, the Injured Worker sought
           Social Security Disability not because of his right shoulder
           injury, but due to his cardiac condition. The Industrial
           Commission has previously held, in this claim, in an order
           dated 06/29/2004, published 07/01/2004, that, "Based on
           the reports of Dr. Markham, Sherman and Fishinger [sic],
           the Injured Worker cannot work, presently, due to the
           Injured Worker's unrelated cardiac problems." Therefore, at
           that time, temporary total disability compensation was
           denied, from 03/17/2004 forward.

           It is the finding of this Staff Hearing Officer that the Injured
           Worker, himself, has foreclosed the possibility of finding and
           obtaining other employment, as he abandoned the entire
           workforce. Therefore, payment of temporary total disability
           compensation is barred pursuant to the Ohio Supreme
           Court's holding in the case of State ex rel. Ashcraft v. Indus.
           Comm. (1987), 34 Ohio St.3d 42. In that case, the Court
           stated that, when a Injured Worker voluntarily exits the
           entire market, "He no longer incurs a loss of earnings,
           because he is no longer in a position to return to work."
           Ashcraft at page 44.

           Furthermore, assuming, arguendo, that the Injured Worker
           had not voluntarily abandoned the workforce, this Staff
           Hearing Officer makes note of the fact that the requested
           period of disability is based upon the newly allowed
           condition of neurotic depression, which was additionally
           allowed in this claim pursuant to the Administrator's order
           of 10/25/2011. That order specifically stated that, "This claim
           is additionally allowed for the medical condition of 300.4
           neurotic depression" and that, "This decision is based on: Dr.
           Hawkins examine of 09/30/2011."

           The Administrator's order refers to the narrative report of
           James R. Hawkins, M.D., a Board-Certified Psychiatrist and
           Neurologist, who examined the Injured Worker on
           09/30/2011, at the request of the Bureau of Workers'
No. 12AP-759                                                                            16

             Compensation. Dr. Hawkins confirmed that the, "medical
             evidence and examination findings support a diagnosis of a
             mild chronic depression, best described as 300.4 neurotic
             depression…The Injury did aggravated his pre-existing
             condition of neurotic depression". However, in regard to the
             issue of whether or not the Injured Worker's neurotic
             depression was "work prohibitive", Dr. Hawkins specifically
             stated his professional medical opinion that the Injured
             Worker's, "depression is not work prohibitive."

             This Staff Hearing Officer also finds the opinion of James R.
             Hawkins, M.D., to be persuasive. Therefore, it is the finding
             of this Staff Hearing Officer that the Injured Worker's
             neurotic depression is not work [prohibitive].

             Therefore, it is the order of this Staff Hearing Officer that
             the requested period of temporary total disability
             compensation,          from       03/11/2011       through
             03/05/2012, is hereby DENIED.

(Emphasis sic.)
                      {¶ 21} 17. On April 3, 2012, another SHO mailed an order refusing
            relator's appeal from the SHO's order of March 5, 2012.
                      {¶ 22} 18. On September 4, 2012, relator, Thomas J. Montgomery,
            filed this mandamus action.
Conclusions of Law:
                      {¶ 23} It is the magistrate's decision that this court deny relator's
            request for a writ of mandamus, as more fully explained below.
                      {¶ 24} Analysis begins with the observation that the SHO's order of
            March 5, 2012 denies TTD compensation on two separate grounds: (1) that
            relator is ineligible for the compensation because he voluntarily abandoned
            the workforce, and (2) that the C-84 of Dr. Ward is rejected as being
            unpersuasive based upon Dr. Hawkins' opinion that the neurotic depression
            is not work prohibitive.
                      {¶ 25} An injured worker who has voluntarily abandoned the entire
            workforce for reasons unrelated to his industrial injury is ineligible for TTD
            compensation. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40,
            2008-Ohio-5245.
No. 12AP-759                                                                        17

                  {¶ 26} Of course, an injured worker who is eligible for TTD
          compensation has the burden "to pursuade the commission that there is a
          proximate causal relationship between his work-connected injuries and
          disability, and to produce medical evidence to this effect." State ex rel.
          Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 83 (1997)
                  {¶ 27} Here, quoting from the numerous medical reports of record
          regarding relator's non-allowed medical conditions that have restricted his
          ability to work and participate in rehabilitation of his shoulder injury, the
          SHO's order of March 5, 2012 presents a lengthy explanation as to why the
          SHO found that relator voluntarily abandoned the workforce. It is that
          explanation of ineligibility that relator challenges in this action.
                  {¶ 28} But the SHO's order of March 5, 2012 also presents an
          alternative basis for denial of the compensation requested:
           Furthermore, assuming, arguendo, that the Injured Worker
           had not voluntarily abandoned the workforce, this Staff
           Hearing Officer makes note of the fact that the requested
           period of disability is based upon the newly allowed
           condition of neurotic depression, which was additionally
           allowed in this claim pursuant to the Administrator's order
           of 10/25/2011. That order specifically stated that, "This claim
           is additionally allowed for the medical condition of 300.4
           neurotic depression" and that, "This decision is based on: Dr.
           Hawkins examine of 09/30/2011."

           The Administrator's order refers to the narrative report of
           James R. Hawkins, M.D., a Board-Certified Psychiatrist and
           Neurologist, who examined the Injured Worker on
           09/30/2011, at the request of the Bureau of Workers'
           Compensation. Dr. Hawkins confirmed that the, "medical
           evidence and examination findings support a diagnosis of a
           mild chronic depression, best described as 300.4 neurotic
           depression…The Injury did aggravate his pre-existing
           condition of neurotic depression". However, in regard to the
           issue of whether or not the Injured Worker's neurotic
           depression was "work prohibitive", Dr. Hawkins specifically
           stated his professional medical opinion that the Injured
           Worker's, "depression is not work prohibitive."

           This Staff Hearing Officer also finds the opinion of James R.
           Hawkins, M.D., to be persuasive. Therefore, it is the finding
No. 12AP-759                                                                          18

           of this Staff Hearing Officer that the Injured Worker's
           neurotic depression is not work [prohibitive].

                  {¶ 29} Relator does not challenge here the alternative basis for denial
          of the compensation request. That is, relator does not argue that the report
          of Dr. Hawkins fails to constitute some evidence supporting denial of the C-
          84 request for TTD compensation.
                  {¶ 30} Thus, even if this court were to determine that the
          commission abused its discretion in finding a voluntary abandonment of the
          workforce, Dr. Hawkin's report remains as some evidence supporting denial
          of the compensation.
                  {¶ 31} Under the circumstances, a writ of mandamus must not issue.
                  {¶ 32} The commission's determination that relator is ineligible for
          TTD compensation due to a voluntary abandonment of the workforce is not
          ripe for judicial review in this action.
                  {¶ 33} State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio
          St.3d 88, 89 (1998), is instructive. In that case, the Supreme Court of Ohio
          applied the ripeness doctrine in a mandamus action brought by an employer
          who challenged the claimant's entitlement to workers' compensation. The
          Elyria court denied the requested writ on grounds that the question
          presented was not ripe for review. The Elyria court states:
           The ripeness doctrine is motivated in part by the desire "to
           prevent the courts, through avoidance of premature
           adjudication, from entangling themselves in abstract
           disagreements over administrative policies * * *." Abbott
           Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87 S.Ct.
           1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed:

           "The basic principle of ripeness may be derived from the
           conclusion that 'judicial machinery should be conserved for
           problems which are real or present and imminent, not
           squandered on problems which are abstract or hypothetical or
           remote.' * * * [T]he prerequisite of ripeness is a limitation on
           jurisdiction that is nevertheless basically optimistic as regards
           the prospects of a day in court: the time for judicial relief is
           simply not yet arrived, even though the alleged action of the
           defendant foretells legal injury to the plaintiff." Comment,
           Mootness and Ripeness: The Postman Always Rings Twice
           (1965), 65 Colum.L.Rev. 867, 876.
No. 12AP-759                                                                             19


                  {¶ 34} Here, relator is asking this court to issue a writ ordering the
          commission to vacate one of the two grounds the commission gave for denial
          of compensation. As noted, that ground is the determination of ineligibility
          due to a voluntary workforce abandonment. But a court ordered elimination
          of the commission's ineligibility determination cannot result in an award of
          compensation under the circumstances here.
                  {¶ 35} Conceivably, the instant determination of ineligibility could
          come into play if relator were to make a further request for TTD
          compensation. In the event that such a scenario develops in the future, it is
          conceivable that the finding of a voluntary abandonment of the workforce
          would be ripe for judicial review.
                  {¶ 36} For now, it is the magistrate's view that the commission's
          eligibility determination is not ripe for review in this action. See State ex rel.
          Park Poultry, Inc. v. Indus. Comm., 10th Dist. No. 03AP-1122, 2004-Ohio-
          6831. State ex rel. YRC, Inc. v. Hood, 10th Dist. No. 09AP-529, 2010-Ohio-
          2190.
                  {¶ 37} Accordingly, for all the above reasons, it is the magistrate's
          decision that this court deny relator's request for a writ of mandamus.




                                        /S/ MAGISTRATE
                                        KENNETH W. MACKE




                           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).
