[Cite as State ex rel. Marrero v. Indus. Comm., 126 Ohio St.3d 439, 2010-Ohio-3755.]




            THE STATE EX REL. MARRERO, APPELLANT, v. INDUSTRIAL
                     COMMISSION OF OHIO ET AL., APPELLEES.
                   [Cite as State ex rel. Marrero v. Indus. Comm.,
                        126 Ohio St.3d 439, 2010-Ohio-3755.]
Workers’ compensation — Wage-loss compensation — Good-faith job search is a
        prerequisite — Judgment affirmed.
     (No. 2009-1666 — Submitted July 6, 2010 — Decided August 18, 2010.)
      APPEAL from the Court of Appeals for Franklin County, No. 08AP-922,
                                    2009-Ohio-4382.
                                 __________________
        Per Curiam.
        {¶ 1} At issue is appellant Maria Marrero’s request for wage-loss
compensation.      Marrero was injured in the course of her employment with
Oakridge Home, a nursing facility owned by appellee Life Care Centers of
America, Inc. While the injury prevented a return to her former position of
employment as a nurse’s aide, it did not prevent her from doing light-duty work.
        {¶ 2} Marrero soon began working a light-duty job at Oakridge. Over
the next several months, Marrero rarely worked a 40-hour week, resulting in a
weekly income that was less than it was before her injury.                  Based on her
diminished earnings, Marrero sought to make up the difference and applied for
wage-loss compensation.
        {¶ 3} The Bureau of Workers’ Compensation granted Marrero’s
application, and Life Care appealed to appellee Industrial Commission of Ohio.
The commission denied wage-loss compensation because Marrero did not
perform a good-faith job search, and the Court of Appeals for Franklin County, in
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mandamus, upheld that decision. State ex rel. Marrero v. Indus. Comm., Franklin
App. No. 08AP-922, 2009-Ohio-4382, 2009 WL 2623784, ¶ 13.
        {¶ 4} Marrero now appeals as of right to this court.
        {¶ 5} R.C. 4123.56(B)(1) wage-loss compensation is intended for
claimants who are medically unable to return to their former positions of
employment but who can do other work. State ex rel. Ellis Super Valu, Inc. v.
Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, ¶ 11. It
encourages a return to the workforce by paying a percentage of the difference
between preinjury and postinjury wages in the event that the claimant’s postinjury
earnings are less than before due to the injury. Id.
        {¶ 6} Under Ohio Adm.Code 4125-1-01(D)(1)(c), claimants who are
seeking working-wage-loss compensation must show proof of a good-faith search
for work within his or her medical and vocational capabilities that has pay
comparable to that of the former position of employment. Marrero concedes that
she did not perform a job search. She insists, however, that her failure to do so is
excused by Life Care’s failure to act in good faith. Marrero alleges that Life Care
offered her full-time, light-duty employment, which she accepted.          She then
accuses Life Care of effectively reneging on its offer through selective scheduling
that gave her only part-time hours. Marrero argues that Life Care’s selective
scheduling not only limited her income but prevented her from seeking other
work.
        {¶ 7} For a writ of mandamus to issue, Marrero must demonstrate that
she has a clear legal right to the relief sought. State ex rel. Teece v. Indus. Comm.
(1981), 68 Ohio St.2d 165, 167, 22 O.O. 3d 400, 429 N.E.2d 433. In this case,
Marrero’s allegation of bad faith is not supported by the record. First, there is no
evidence that Life Care offered Marrero full-time, light-duty work. There is no
written job offer of record, and we do not find that Marrero’s handwritten record
of hours worked constitutes evidence of an offer of full-time, light-duty work.




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That document simply corroborates other evidence that Marrero worked less than
full time. We note, moreover, a February 8, 2008 letter to Marrero from Oakridge
that specifically states, “[W]e do not have permanent ‘light duty’ assignments * *
*.” Lacking any evidence of misrepresentation on Life Care’s part, we decline to
find that Life Care misled Marrero into forgoing a job search.
       {¶ 8} Equally untenable is Marrero’s claim that her schedule prevented a
search for other work. Marrero alleges that she could be added to or removed
from the daily schedule without warning, a circumstance that prevented her from
committing to an additional part-time job that could ameliorate her wage loss.
This situation, she contends, rendered a job search pointless. Her argument,
however, assumes that the only way to diminish her wage loss was by taking a
second part-time job. It ignores the possibility that had Marrero done a job
search, she might have found more satisfactory full-time work elsewhere. And
because she worked third shift, any assertion that her hours — erratic or otherwise
— prevented her from effectively looking for other work is baseless.
       {¶ 9} The judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., concur.
       BROWN, C.J., and PFEIFER and LUNDBERG STRATTON, JJ., dissent.
                              __________________
       BROWN, C.J., dissenting.
       {¶ 10} I respectfully dissent. Consistent with the opinion of the court of
appeals’ magistrate, I would remand this case to the Industrial Commission for
reevaluation of Marrero’s application for wage-loss compensation.
       {¶ 11} In my view, the Industrial Commission abused its discretion in
denying in its entirety Marrero’s working-wage-loss compensation application.
The commission denied the application on the sole basis that “there is no evidence




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that the Injured Worker engaged in a good faith job search for alternate work
consistent with her physical restrictions in order to mitigate her wage loss.”
       {¶ 12} Marrero argues that her employer had led her to believe she would
be provided full-time, light-duty employment at the same rate of pay she received
prior to her injury.    She provided supporting evidence of that fact, and the
employer provided no evidence to the contrary. Her evidence demonstrated that
during the month of March 2007, her employer originally scheduled her to work
full-time hours, but thereafter sent her home twice, took her off the schedule five
times, and cut short her hours on three other occasions. With the exception of one
day in July 2007, Marrero worked a full-time, light-duty schedule that entire
month. It was not until the end of August 2007 that Marrero noted that her
employer was “no longer giving [her a] full time 5 days a week schedule.” While
it is true that the employer sent Marrero a letter specifically stating that it had no
“permanent ‘light duty’ assignments,” that letter was not sent until February
2008—nearly a year after her return to work.
       {¶ 13} The employer concedes that Marrero “apparently worked all hours
available and offered to her” but nevertheless argues that she alone “has the
burden to insure the presentation and preservation of evidence in the record as to
the reasons she did not have full time work.” In effect, it is the position of
Marrero’s employer that an employer may lead a returning worker to the
reasonable belief that she has a full-time job consistent with her postinjury
limitations at the same rate of pay—then, in the event that the employer fails to
provide the expected work and the worker subsequently applies for wage-loss
compensation, fault the worker for not looking for a different full-time job.
       {¶ 14} In denying Marrero’s claim, the commission improperly made
evidence of a “good faith effort to search for suitable employment which is
comparably paying work,” Ohio Adm.Code 4125-1-01(D)(1)(c), a sine qua non of
an award of wage-loss compensation—even in circumstances in which the worker




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reasonably believes that she already has secured comparably paying work. The
text of R.C. 4123.56 (the wage-loss-compensation statute) does not justify that
conclusion; neither does Ohio Adm.Code 4125-1-01 or this court’s precedent.
       {¶ 15} R.C. 4123.56 does not expressly impose on a wage-loss claimant
the duty to engage in a job search. It simply provides that an employee with an
allowed workers’ compensation claim who “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” shall receive wage-loss
compensation for up to 200 weeks. (Emphasis added.) R.C. 4123.56(B)(1). An
award of wage-loss compensation thus requires a causal relationship between the
wage loss and the allowed injury. The implementing regulation, Ohio Adm.Code
4125-1-01(D)(1)(c)—not the statute—provides that in giving consideration to a
claimant’s search for suitable employment, a “good faith effort to search for
suitable employment which is comparably paying work is required * * *.”
(Emphasis added.) In my view, this provision is consistent with R.C. 4123.56,
and therefore valid and enforceable, only to the extent that a failure to undertake a
job search demonstrates that the wage loss is not causally related to the allowed
injury, i.e., that the wage loss is the result of a separate and independent reason.
       {¶ 16} Accordingly, this court has held that it is the responsibility of the
commission to view “the claimant’s employment situation broadly” to determine
whether a worker who works part-time hours without looking for a full-time
position has voluntarily limited her income. State ex rel. Brinkman v. Indus.
Comm. (1999), 87 Ohio St.3d 171, 174, 718 N.E.2d 897. In that event, the wage
loss is not causally related to the allowed injury, as required by R.C. 4123.56. In
recognizing exceptions to the good-faith job- search requirement of Ohio
Adm.Code 4125-1-01(D)(1)(c), this court has held that it is inconsistent with the
wage-loss-compensation statute to require a good-faith job search in every wage-
loss compensation case. See, e.g., Brinkman, id.; State ex rel. Timken Co. v.



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Kovach, 99 Ohio St.3d 21, 2003-Ohio-2450, 788 N.E.2d 1037, ¶ 22. I support the
conclusion of the Tenth District Court of Appeals that “the analysis discussed in
Brinkman should be applied to all situations in which an injured employee obtains
post-injury part-time employment to determine whether, under the totality of that
individual employee’s circumstances, the limitation of income was voluntary.”
State ex rel. Borden, Inc. v. Martin, Franklin App. No. 03AP-257, 2004-Ohio-
4647, ¶ 12.
        {¶ 17} In my view, this case should be remanded for adjudication of the
point in time at which Marrero reasonably should have recognized that her
employer was not going to provide her with full-time work. Until that time, her
failure to look for other full-time light-duty work should not bar an award of
wage-loss compensation. A worker should not be required to undertake a good-
faith job search if she reasonably believes that she already has a job providing
equivalent pay. I would therefore expressly recognize an exception to the good-
faith job-search requirement of Ohio Adm.Code 4125-1-01(D)(1)(c) when an
employer leads an injured worker to the reasonable belief that full-time,
comparably paid working hours will be offered, but thereafter fails to provide that
work.
        {¶ 18} Accordingly, and consistent with the reasoning of the magistrate in
the court of appeals, I would issue a writ of mandamus ordering the commission
to consider the facts and circumstances surrounding       Marrero’s employment
situation prior to either granting or denying Marrero’s wage-loss-compensation
claim. Only then will the commission be able to make an informed determination
as to whether the claimant voluntarily limited her compensation to preclude an
award of wage-loss compensation and, if so, determine the date at which
Marrero’s acceptance of part-time work may be deemed voluntary so as to
thereafter bar an award of wage-loss compensation.
        PFEIFER and LUNDBERG STRATTON, JJ., concur in the foregoing opinion.




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                               __________________
       Shapiro, Shapiro & Shapiro Co., L.P.A., Leah P. VanderKaay, and Daniel
L. Shapiro, for appellant.
       Richard Cordray, Attorney General, and Elise Porter, Assistant Attorney
General, for appellee Industrial Commission.
       Deborah Sesak, for appellee Life Care Centers of America, Inc.
                             ______________________




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