[Cite as State ex rel. Republic Servs., Inc. v. Indus. Comm., 2014-Ohio-312.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio, ex rel.                                   :
Republic Services, Inc.,
                                                         :
                 Relator,
                                                         :                      No. 13AP-219
v.
                                                         :                  (REGULAR CALENDAR)
George L. Wright and
Industrial Commission of Ohio,                           :

                 Respondents.                            :

                                                         :


                                          D E C I S I O N

                                     Rendered on January 30, 2014


                 Taft Stettinius & Hollister LLP, Timothy L. Zix and
                 Christopher B. Ermisch, for relator.

                 Plevin & Gallucci Co., L.P.A., John C. Calabrese, and
                 David E. Gray, II, for respondent George L. Wright.

                 Michael DeWine, Attorney General, and John Smart, for
                 respondent Industrial Commission of Ohio.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1}     Relator, Republic Services, Inc., has filed this original action requesting
that this court issue a writ of mandamus ordering the Industrial Commission of Ohio
("commission") to vacate its order awarding to respondent-claimant, George L. Wright,
("claimant"), working wage loss ("WWL") compensation. Relator ask us to order the
commission to find that the claimant is not entitled to that compensation.
No. 13AP-219                                                                             2

         {¶ 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 a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny the request for a writ of mandamus.
         {¶ 3} Relator generally argues that the commission abused its discretion by
awarding claimant WWL compensation when he accepted a job at his brother's company
without registering with the Ohio Department of Job and Family Services ("ODJFS") and
conducting a job search for comparably paying work. He sets forth the following two
specific objections:
               [1.] Magistrate erred in affirming award of wage loss
               compensation to a claimant who accepted a job with his
               brother's company at half his previous pay rate without
               registering with ODJFS or conducting any job search for
               comparable paying work.

               [2.] Magistrate erred in finding that statutory job search
               requirement was inapplicable despite finding that claimant
               accepted work with his brother at "significantly less" than his
               pre-injury rate.

         {¶ 4} The arguments raised in relator's objections are essentially the same as
those raised previously and addressed by the magistrate. We discuss them together
below.
         {¶ 5} R.C. 4123.56(B)(1) states:
               If an employee in a claim allowed under this chapter suffers a
               wage loss as a result of returning to employment other than
               the employee's former position of employment due to an
               injury or occupational disease, the employee shall receive
               compensation at sixty-six and two-thirds per cent of the
               difference between the employee's average weekly wage and
               the employee's present earnings not to exceed the statewide
               average weekly wage. The payments may continue for up to a
               maximum of two hundred weeks.

{¶ 6}     Relevant provisions of Ohio Adm.Code 4125-1-01(A) state:

               (7) "Suitable employment" means work which is within the
               claimant's physical capabilities, and which may be
               performed by the claimant subject to all physical,
               psychiatric, mental, and vocational limitations to which the
No. 13AP-219                                                                            3

              claimant is subject at the time of the injury which resulted in
              the allowed conditions in the claim or, in occupational
              disease claims, on the date of the disability which resulted
              from the allowed conditions in the claim.

              (8) "Comparably paying work" means suitable employment
              in which the claimant's weekly rate of pay is equal to or
              greater than the average weekly wage received by the
              claimant in his or her former position of employment.

              (9) "Working wage loss" means the dollar amount of the
              diminishment in wages sustained by a claimant who has
              returned to employment which is not his or her former
              position of employment. However, the extent of the
              diminishment must be the direct result of physical and/or
              psychiatric restriction(s) caused by the impairment that is
              causally related to an industrial injury or occupational
              disease in a claim allowed under Chapter 4123. of the
              Revised Code.

Also relevant to these discussions is Ohio Adm.Code 4125-1-01(D).

              Pursuant to Ohio Adm.Code 4125-1-01(D), an injured worker
              has the burden of proving entitlement to wage-loss benefits.
              Ohio Adm.Code 4125-1-01(D)(1)(c) further states that a good-
              faith job search for comparably paying work is required of
              those seeking wage-loss compensation who have not returned
              to comparably paying work. "A good faith effort necessitates
              the claimant's consistent, sincere, and best attempts to obtain
              suitable employment that will eliminate the wage loss." Ohio
              Adm.Code 4125-1-10(D)(1)(c). That section continues to
              provide a non-exclusive list of relevant factors to be
              considered in evaluating whether a claimant has made a good-
              faith effort.

 State ex rel. Bishop v. Indus. Comm., 10th Dist. No. 04AP-747, 2005-Ohio-4548, ¶ 10.
      {¶ 7}   While it is true that full-time employment does not automatically eliminate
a claimant's duty to search for comparably paying work, State ex rel. Yates v. Abbott
Laboratories, Inc., 95 Ohio St.3d 142 (2002), it is equally true that the Supreme Court of
Ohio has held that the job search is not mandatory. State ex rel. Timken Co. v.
Kovach, 99 Ohio St.3d 21, 2003-Ohio-2450, ¶ 22. Rather, under certain circumstances, a
claimant's failure to continue to seek employment will be excused.
No. 13AP-219                                                                              4

       {¶ 8} In Yates, the Supreme Court emphasized that these determinations must be
made on a case-by-case basis. "In reality, the issue comprises two questions: (1) is a job
search necessary and (2) if so, what is required? We have not been confronted with the
first question within the context of regular full-time employment. What other cases have
so far taught, however, is that the question is not amenable to hard-and-fast rules―it is
very dependent on circumstances." (Emphasis added.) Yates at 146-47.
       {¶ 9} Yates further directed that "the overriding concern in all of these cases—as
it has been since the seminal case of State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995),
72 Ohio St.3d 210—is the desire to ensure that a lower-paying position—regardless of
hours—is necessitated by the disability and not motivated by lifestyle choice." Yates at
146-47.
       {¶ 10} Relator here, nevertheless, argues that the failure to conduct a good-faith
job search for suitable employment which is comparably paying work precludes an
award of wage-loss compensation. Given the Supreme Court precedent cited above, we
reject this argument and find no merit for the reasons stated in the magistrate's decision.
The Supreme Court has very clearly stated that such requirement shall be considered on a
case-by-case basis.
       {¶ 11} Furthermore, for the reasons stated in the magistrate's decision, we reject
relator's argument that the commission's reliance on State ex rel. Brinkman v. Indus.
Comm., 87 Ohio St.3d 171 (1999), and State ex rel. Ameen v. Indus. Comm., 100 Ohio
St.3d 161, 2003-Ohio-5362, was misplaced. We also note that, while the facts in State ex
rel. Ooten v. Indus. Comm., 84 Ohio St.3d 255 (1998), may indeed be more analogous
considering the deference we must accord the commission regarding matters concerning
credibility and the weight of the evidence, we find the magistrate did not err in concluding
the commission did not abuse its discretion in awarding WWL compensation. The SHO
affirmed the district hearing officer's ("DHO") order, which stated: "The [DHO] can find
no evidence that the Injured Worker is attempting to voluntarily limit his earnings."
(DHO order at 2.)
       {¶ 12} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find that the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
No. 13AP-219                                                                           5

overrule relator's two objections to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein. Accordingly, the requested writ of mandamus is hereby denied.
                                                      Objections overruled; writ denied.
                         TYACK and McCORMAC, JJ., concur.
             McCORMAC, J., retired, of the Tenth Appellate District,
             assigned to active duty under the authority of the Ohio
             Constitution, Article IV, Section 6(C).
                                _________________
No. 13AP-219                                                                                6

                                     APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

State of Ohio, ex rel.                        :
Republic Services, Inc.,
                                              :
              Relator,
                                              :                     No. 13AP-219
v.
                                              :                (REGULAR CALENDAR)
George L. Wright and
Industrial Commission of Ohio,                :

              Respondents.                    :

                                              :



                           MAGISTRATE'S DECISION

                             Rendered on September 13, 2013


              Taft Stettinius & Hollister LLP, Timothy L. Zix and
              Christopher B. Ermisch, for relator.

              Plevin & Gallucci Co., L.P.A., John C. Calabrese, and
              David E. Gray, II, for respondent George L. Wright.

              Michael DeWine, Attorney General, and John Smart, for
              respondent Industrial Commission of Ohio.


                                     IN MANDAMUS

       {¶ 13} Relator, Republic Services, Inc., 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 awarded working wage-loss ("WWL")
No. 13AP-219                                                                             7

compensation to respondent George L. Wright ("claimant") and ordering the commission
to find that claimant is not entitled to that compensation.
Findings of Fact:
       {¶ 14} 1. Claimant sustained a work-related injury on January 28, 2010 and his
workers' compensation claim has been allowed for the following conditions:
              Left shoulder sprain; sprain left rotator cuff; superior glenoid
              labrum lesions (SLAP); left biceps tendon tear; osteoarthritis
              left shoulder.

       {¶ 15} 2. Claimant's initial treating physician, John J. Kavlich, M.D., immediately
placed restrictions on claimant which prohibited him from returning to his former
position of employment.
       {¶ 16} 3. Claimant underwent surgery, epidural steroid injections, and physical
therapy.
       {¶ 17} 4. Claimant received temporary total disability ("TTD") compensation until
it was determined that his restrictions had become permanent and he would not be able
to return to his former position of employment.
       {¶ 18} 5. Because he was unable to return to work with relator, claimant began
working full time at Marshall Wright Construction, a heavy construction company owned
by his brother.
       {¶ 19} 6. Claimant's hourly wage at Marshall Wright Construction was $10.00 per
hour, significantly less than the $19.50 per hour he had been earning when employed by
relator.
       {¶ 20} 7. On July 23, 2012, claimant filed an application for WWL compensation.
       {¶ 21} 8. Claimant's motion was heard before a district hearing officer ("DHO") on
November 19, 2012 and was granted.
       {¶ 22} The DHO relied on medical reports from Paul Freedman, M.D., and Paul M.
Saluan, M.D., to find that claimant had physical restrictions which made it impossible for
him to return to his former position of employment. Thereafter, the DHO awarded
claimant WWL compensation commencing June 26, 2012, stating:
              The Injured Worker has returned to work full time at
              Marshall Wright Construction, a heavy construction
              company owned by his brother. The Injured Worker testified
No. 13AP-219                                                                          8

             at today's hearing that his brother has him doing primarily
             office work at this time to learn that aspect of the business;
             specifically taking bids, writing bids, contracts etc…. The
             Injured Worker also testified that he has done some light
             construction within his limitations when asked by his
             Employer. The Injured Worker testified that once his
             training period is over his wages are expected to increase.

             It is the finding of the District Hearing Officer that in light of
             the fact that the Injured Worker's employed [sic] full time in
             a position with expected wage increases commensurate with
             his increasing knowledge of the business, it is not reasonable
             to require the Injured Worker to continue to look for
             employment with a comparable pay rate.

             The District Hearing Officer can find no evidence that the
             Injured Worker is attempting to voluntarily limit his
             earnings as he testified that the current Employer is his
             brother's construction business which he inherited from
             their father and that Injured Worker was training to be the
             manual aspect of the construction trade by his father as he
             was growing up. The District Hearing Officer finds that the
             Injured Worker believes and has established that he is taking
             employment in a position that will support him long after his
             eligibility for wage loss compensation has expired, Brinkman
             v. Industrial Commission, 87 Ohio St.3d 171, 1999 Ohio 320.

      {¶ 23} 9. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on January 7, 2013. The SHO affirmed the prior DHO order, stating:
             The Staff Hearing Officer affirms the District Hearing
             Officer's finding that the impairment due to the allowed
             injury restricts the Injured Worker from returning to his
             former position of employment. The Injured Worker has
             returned to working full time at a construction company
             owned by his brother. This job allows him to work within his
             Restrictions as there is no job available working for his
             former Employer within his current restrictions. The Staff
             Hearing Officer specifically affirms the District Hearing
             Officer's finding that in light of the fact that the Injured
             Worker's full time employment is a position with expected
             wage increases commensurate with his increasing knowledge
             of the business, it is not reasonable to require the Injured
             Worker to continue to work for a less secure job with a
             higher pay rate.
No. 13AP-219                                                                                9

       {¶ 24} 10. Relator's further appeal was refused by order of the commission mailed
February 1, 2013.
       {¶ 25} 11. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 26} Relator contends that the commission abused its discretion by awarding
claimant WWL compensation when claimant accepted a job at his brother's company
without conducting a job search for comparably paying work.
       {¶ 27} The magistrate finds that the commission did not abuse its discretion in
awarding claimant WWL compensation because the commission relied on claimant's
testimony that he was earning $10.00 per hour while learning the business and that he
expected that his wages would increase as he continued his training.
       {¶ 28} 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).
       {¶ 29} 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).
       {¶ 30} Entitlement to wage-loss compensation is governed by R.C. 4123.56(B)(1),
which provides:
              If an employee in a claim allowed under this chapter suffers
              a wage loss as a result of returning to employment other than
No. 13AP-219                                                                            10

             the employee's former position of employment due to an
             injury or occupational disease, the employee shall receive
             compensation at sixty-six and two-thirds per cent of the
             difference between the employee's average weekly wage and
             the employee's present earnings not to exceed the statewide
             average weekly wage. The payments may continue for up to a
             maximum of two hundred weeks.

      {¶ 31} In order to receive workers' compensation, a claimant must show not only
that a work-related injury arose out of and in the course of employment, but, also, that a
direct and proximate causal relationship exists between the injury and the harm or
disability. State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). This principle
is equally applicable to claims for wage-loss compensation. State ex rel. The Andersons v.
Indus. Comm., 64 Ohio St.3d 539 (1992). As noted by the court in State ex rel. Watts v.
Schottenstein Stores Corp., 68 Ohio St.3d 118 (1993), a wage-loss claim has two
components: a reduction in wages and a causal relationship between the allowed
condition and the wage-loss.
      {¶ 32} In considering a claimant's eligibility for wage-loss compensation, the
commission is required to give consideration to, and base the determination on, evidence
relating to certain factors including claimant's search for suitable employment. The
Supreme Court of Ohio has held that a claimant is required to demonstrate a good-faith
effort to search for suitable employment which is comparably paying work before a
claimant is entitled to both nonworking and WWL compensation. State ex rel. Pepsi-Cola
Bottling Co. v. Morse, 72 Ohio St.3d 210 (1995); State ex rel. Reamer v. Indus. Comm., 77
Ohio St.3d 450 (1997); and State ex rel. Rizer v. Indus. Comm., 88 Ohio St.3d 1 (2000). A
good-faith effort necessitates a claimant's consistent, sincere, and best attempt to obtain
suitable employment that will eliminate the wage-loss.
      {¶ 33} As a general rule, even after a claimant has secured employment, the
claimant is required to continue searching for suitable employment which is comparably
paying work. The goal is for the claimant to secure employment which alleviates the
wage-loss.   However, in certain instances, claimants have been relieved of the
responsibility to continue searching for other employment to alleviate the wage-loss.
      {¶ 34} The receipt of wage-loss compensation hinges on whether there is a causal
relationship between the injury and the claimant's reduced earnings. Specifically, the
No. 13AP-219                                                                             11

commission and courts look at whether the claimant's choice of a job was motivated by an
injury-induced unavailability of other work and was not simply a lifestyle choice. See, for
example, State ex rel. Brinkman v. Indus. Comm., 87 Ohio St.3d 171 (1999) and State ex
rel. Ooten v. Siegel Interior Specialists Co., 84 Ohio St.3d 255 (1998) and State ex rel.
Ameen v. Indus. Comm., 100 Ohio St.3d 161, 2003-Ohio-5362.
       {¶ 35} In Brinkman, William A. Brinkman was a Columbus Police Officer who
sustained multiple injuries in a work-related car accident. Brinkman was unable to return
to his former position of employment and was granted a disability retirement.
       {¶ 36} Following Brinkman's retirement, he obtained a part-time job that included
the promise of a full-time position as they became available. The commission denied his
request for wage-loss compensation finding that he had made a voluntary choice to
maintain part-time work which resulted in an indefinite decrease in his wages.
       {¶ 37} Ultimately, the Supreme Court of Ohio determined that Brinkman was
entitled to wage-loss compensation.       The court focused on the fact that wage-loss
compensation does not last indefinitely; it ends after 200 weeks. The court noted that
Brinkman had testified that part-time workers were given preference when full-time
positions became available, finding that "[v]iewed in totality, the facts do not establish
such a limitation or a life-style-motivated job selection—the two concerns that have
prompted close examination of part-time work." Brinkman at 174.
       {¶ 38} Similarly, in Ameen, Jane Ameen, sustained a work-related injury while
employed as a nurse.      Ameen's physical ability to return to her former position of
employment was compromised and she was advised to explore different options.
Eventually, Ameen returned to college and received a teaching degree.
       {¶ 39} Ameen's teaching job paid slightly less than her nursing position and she
applied for wage-loss compensation.         The commission denied that request after
concluding that she had voluntarily limited her income.
       {¶ 40} Ultimately, the Supreme Court of Ohio determined that Ameen was entitled
to wage-loss compensation.       After reiterating that full-time employment does not
necessarily relieve a claimant of continuing to seek other employment, the court found
that requiring Ameen to continue looking for work with the expectation that she would
leave her teaching job was not appropriate. Specifically, the court stated:
No. 13AP-219                                                                   12

           Employment that coincides with one's interests, desires, or
           aptitudes is not inherently suspect. The present claimant was
           permanently disqualified from her former position of
           employment, so a new career was a logical option, and
           claimant prepared for one. Claimant's decision to teach
           rather than to pursue an allied medical career should not,
           under these circumstances, be viewed unfavorably.

           ***

           The commission has put claimant in a "Catch–22." If
           claimant had declined the teaching job and had kept looking
           for something more lucrative—as the order implies she
           should have—claimant would have been wageless. We
           suspect, however, that had claimant applied for nonworking
           wage-loss compensation during this search period, such
           compensation would have been denied because of her failure
           to take the teaching job that reduced her wage loss.

           This case differs from the full-time employment situation in
           State ex rel. Yates v. Abbott Laboratories, Inc., [95 Ohio
           St.3d 142, 2002-Ohio-2003]. There, the full-time clerical
           employment obtained by the claimant grossly underutilized
           her college degree and real estate license. Her
           underemployment was pivotal in determining that claimant
           was required to maintain—despite her full-time job—an
           ongoing search for something more in keeping with her
           talents and earning capability.

           Here, claimant exploited the intellectual abilities that
           allowed her to become a nurse and accepted a commensurate
           academic challenge that led to a new career. Her career
           choice, moreover, was not one that was economically out of
           line with her former livelihood. Unlike in Yates, the present
           claimant's job has a future. There is a degree of job security,
           the expectation of raises, and potential for advancement.

           Requiring this claimant to continue looking for work with
           the expectation that she will leave her teaching job is
           inappropriate. See Brinkman, 87 Ohio St.3d 171, 718 N.E.2d
           897. Brinkman's injury forced him from his police officer's
           job. After a fruitless, full-time job search, he accepted a part-
           time position that paid $20 an hour and could expand to
           full-time. The commission denied wage-loss compensation,
           citing claimant's failure to keep looking for full-time work.
           We overturned that order, criticizing the commission's
           narrow analysis. Looking more broadly, we emphasized that
No. 13AP-219                                                                           13

               wage-loss compensation was statutorily limited to 200
               weeks.

               "[W]hen a claimant seeks new post-injury employment,
               contemplation must extend beyond the short term. The job
               that a claimant takes may have to support that claimant for
               the rest of his or her life—long after wage-loss compensation
               has expired." Id. at 174, 718 N.E.2d 897.

               We cited with approval a Florida case, Stahl v. Southeastern
               X-Ray (Fla.App.1984), 447 So.2d 399, which upheld a
               claimant's right to wage-loss compensation despite
               termination of a job search. Stahl's postinjury employment
               paid less than his former job but showed real promise for
               advancement. Lauded by his supervisor, he had already
               received a significant raise despite his short tenure. His boss
               assured him that he had a future with the company and,
               considering everything, the claimant concluded—and the
               court agreed—that it would be foolish to "leave a good thing."
               Id. at 402.

               Applying this reasoning to the current debate, it is equally
               inappropriate to have expected claimant to decline the
               teaching job or to continue seeking other work. As previously
               stated, claimant has a future with the school district. Again,
               there is job security, the prospect of salary increases, and
               advancement possibility. And there are other considerations
               that militate against the commission's determination.
               Claimant's position is presumably contractual and forecloses
               the option of leaving for another position on short notice.
               Equally important are the intangibles. Teaching entails
               commitment. It is a disservice to the claimant and the
               administration, faculty, and students who rely upon her to
               expect her to leave midterm should a better position surface.

Id. ¶ 11, 14-20.
       {¶ 41} In the present case, it is undisputed that claimant cannot return to his
former position of employment. In awarding him WWL compensation, the commission
relied on claimant's testimony that he had the opportunity to work in his brother's
construction business. At present, claimant is learning the business and, as a result, his
pay is not commensurate with his pre-injury rate. However, claimant testified that, as he
learns the business and becomes more involved, he will be making more money. As in
some of the other cases, claimant secured steady employment, within his restrictions,
No. 13AP-219                                                                           14

with a promise of longevity and increased wages. In this situation, the magistrate finds
that the commission did not abuse its discretion in finding that claimant has not
voluntarily limited his wages; instead, claimant has taken a job with the potential to
minimize and eventually erase the wage-loss.
      {¶ 42} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion by awarding WWL compensation
to claimant 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).
