[Cite as State ex rel. Strahin v. Indus. Comm., 2016-Ohio-1323.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Frank Strahin,                    :

                 Relator,                               :

v.                                                      :              No. 15AP-490

Industrial Commission of Ohio                           :          (REGULAR CALENDAR)
and New Philadelphia ODOT
Mailstop 1520,                                          :

                 Respondents.                           :




                                          D E C I S I O N

                                      Rendered on March 29, 2016


                 Schiavoni, Schiavoni, Bush & Muldowney, and Shawn R.
                 Muldowney, for relator.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                 Buckingham, Doolittle & Burroughs, LLP, Marietta M.
                 Pavlidis, and Denise A. Gary, for respondent New
                 Philadelphia ODOT Mail Stop 1520.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Frank Strahin ("claimant"), 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 that denied his application for temporary total
disability ("TTD") compensation on grounds that he had voluntarily abandoned his
No. 15AP-490                                                                              2

employment when he retired for reasons unrelated to his allowed conditions, and to enter
an order granting said compensation.
       {¶ 2} This court referred the matter to a court-appointed magistrate pursuant to
Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate
issued the appended decision, including findings of fact and conclusions of law, and
recommended that this court deny claimant's request for a writ of mandamus. Claimant
has filed two objections to the magistrate's decision.
       {¶ 3} Claimant argues in his first objection that the magistrate erred when she
found the commission had some evidence to support its conclusion that claimant
voluntarily retired on November 1, 2012. Claimant contends that all of the medical
records submitted by Dr. David DeSantis, D.O., supported the fact that claimant's
retirement was solely related to his inability to continue to work as a direct result of the
allowed conditions. Claimant points out that Dr. DeSantis stated in his October 4, 2012
office note three weeks prior to claimant's retirement that the pain in his knee had
increased to a point where he was having trouble walking. Furthermore, Dr. DeSantis
submitted two December 2014 narrative reports expressing the opinion that claimant's
retirement was directly related to his industrial injury. Dr. DeSantis indicated that if
claimant had not retired on November 1, 2012, the doctor would have been forced to take
claimant off work on TTD at that time. Claimant also asserts that his own affidavits
indicate that his retirement was due exclusively to his inability to work as a result of his
allowed conditions in the claim, and claimant testified at the hearing that his retirement
was the direct result of his inability to work.
       {¶ 4} We disagree with claimant that there is nothing in the transcript or Dr.
DeSantis' medical records to support the commission's finding that he voluntarily
abandoned his employment due to reasons unrelated to his industrial injury. The district
hearing officer ("DHO"), the staff hearing officer ("SHO"), and the magistrate all issued
comprehensive determinations that sufficiently addressed claimant's argument and cited
evidence from the record that suggested claimant retired for reasons other than his injury.
The following is a summary of the pertinent findings made by the DHO, SHO, and
magistrate: claimant returned to work from his injury in August 2009 without restrictions
and continued to work full-time without restrictions until his retirement; claimant did not
No. 15AP-490                                                                            3

cite his injury or health as the reason for leaving his employment in his retirement
documents, instead merely indicating "retirement"; Dr. DeSantis noted a flare-up in
claimant's knee three weeks before retirement but did not impose any restrictions;
claimant testified that he began to research and contemplate retirement in June 2012,
which was before his October 2012 exacerbation; claimant testified that in June 2012, he
weighed retiring in November 2012 in order to take advantage of the current Public
Employees Retirement System ("PERS") rules; claimant began his retirement paperwork
before his October 2012 exacerbation; and there was no contemporaneous medical
evidence from the time of his retirement to demonstrate that the retirement was due to
his injury.
       {¶ 5} Although claimant may disagree with the commission's decision to find
claimant's and Dr. DeSantis' post-hoc reasons for claimant's retirement unpersuasive, the
commission is the sole evaluator of credibility and was free to reject their claims. See
State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987) (the commission is the
sole evaluator of credibility and is free to reject evidence it finds not credible).
Furthermore, the commission is well within its discretion to characterize retirement as
voluntary based on a lack of contemporaneous medical evidence of disability, although it
is not required to do so. State ex rel. Cinergy Corp./Duke Energy v. Heber, 130 Ohio
St.3d 194, 2011-Ohio-5027, ¶ 7. Therefore, we find the above evidence cited by the DHO,
SHO, and magistrate provides "some evidence" to support the commission's
determination. We overrule claimant's first objection.
       {¶ 6} Claimant argues in his second objection that the magistrate erred when she
found the commission did not misconstrue claimant's testimony. Claimant contests the
SHO's following finding:
              The Injured Worker testified at today's hearing, similarly to
              his testimony as reflected in the prior District Hearing Officer
              level decision. The Injured Worker testified that he began to
              contemplate retiring from employment at approximately June
              2012. The Injured Worker stated that he began to contemplate
              retirement at that time due to publicity surrounding the
              Public Employee's Retirement System, (hereafter PERS) and
              proposed legislative changes to this system.
No. 15AP-490                                                                              4

To the contrary, claimant contends, he consistently testified at the SHO hearing that his
retirement was exclusively due to his allowed knee condition and inability to work.
       {¶ 7} We agree with claimant that in his direct examination testimony before the
SHO, claimant stressed that his injury was the basis for his retirement. However, on
cross-examination at the hearing before the SHO, claimant admitted that he "checked on"
retiring four months prior to his retirement at the end of October 2012 (in approximately
June 2012) by meeting with a PERS representative. Although at the hearing before the
SHO he said that the pending legislative changes to PERS did "[n]ot really" have much of
an effect on his decision to retire, he eventually admitted on cross-examination that he did
not know what effect the changes would have until he spoke to a PERS representative in
June 2012. When pressed on the issue during cross-examination, he eventually conceded
that he went to the PERS representative in June 2012 to get "some answers" about the
legislative changes to see when it would be most financially advantageous to retire.
Furthermore, claimant was asked the following question at the hearing before the SHO:
              Q. Okay. Back at this district hearing, when you went to that
              first hearing, did you tell the Hearing Officer at that time that
              you were concerned about these legislative changes and that is
              why you wanted to look into retirement? Did you tell the
              Hearing Officer that?

              A. Yes. We were all -- everybody in the whole state was
              probably looking at that.

       {¶ 8} While we agree that at the SHO hearing claimant testified that he began to
contemplate retirement due to his knee injury, given claimant's above testimony with
regard to the role the pending legislative changes to PERS played in his decision, we
cannot say the SHO's finding mischaracterized claimant's testimony. Claimant admitted
that the pending legislative changes were, in fact, one of the reasons he began
contemplating retirement four months prior to October 2012. The SHO's finding was
more likely a result of the SHO's apparent disbelief of claimant's testimony that it was his
injury that prompted him to investigate retirement in June 2012 than a
mischaracterization of his testimony. It was within the SHO's discretion to find claimant's
testimony not credible. See State ex rel. Collins v. Indus. Comm., 10th Dist. No. 04AP-31,
2004-Ohio-7201, ¶ 9, citing State ex rel. Baker v. Indus. Comm., 97 Ohio St.3d 267,
No. 15AP-490                                                                             5

2002-Ohio-6341, ¶ 6 (determination of the credibility of evidence belongs to the
commission alone). Therefore, we overrule claimant's second objection.
      {¶ 9} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of claimant's objections, we
overrule the objections and adopt the magistrate's findings of fact and conclusions of law.
Claimant's writ of mandamus is denied.
                                                                   Objections overruled;
                                                               writ of mandamus denied.

                             TYACK and KLATT, JJ., concur.

                               ___________________
[Cite as State ex rel. Strahin v. Indus. Comm., 2016-Ohio-1323.]

                                              APPENDIX
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Frank Strahin,                    :

                 Relator,                               :

v.                                                      :             No. 15AP-490

Industrial Commission of Ohio                           :          (REGULAR CALENDAR)
and New Philadelphia ODOT
Mailstop 1520,                                          :

                 Respondents.                           :

                                                        :



                               MAGISTRATE'S DECISION

                                   Rendered on December 14, 2015



                 Schiavoni, Schiavoni, Bush & Muldowney and Shawn R.
                 Muldowney, for relator.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                 Buckingham, Doolittle & Burroughs, LLP, Marietta M.
                 Pavlidis and Denise A. Gary, for respondent New
                 Philadelphia ODOT Mail Stop 1520.


                                             IN MANDAMUS

        {¶ 10} Relator, Frank Strahin, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied relator's application for temporary total
disability ("TTD") compensation on grounds that he had voluntarily abandoned his
No. 15AP-490                                                                               7

employment when he retired for reasons unrelated to his allowed conditions, and
ordering the commission to find that he is entitled to that compensation.
Findings of Fact:
       {¶ 11} 1. Relator sustained a work-related injury on October 23, 2008, and his
workers' compensation claim was originally allowed for:
              SPRAIN LEFT HIP AND THIGH; SPRAIN LEFT KNEE AND
              LEG; TEAR LEFT MEDIAL MENISCUS; LOCALIZED
              PRIMARY OSTEOARTHRITIS LEFT LEG.

       {¶ 12} 2. Relator was released to return to work with no restrictions as of
August 11, 2009.
       {¶ 13} 3. Relator continued to work full-duty with no restrictions until 2012.
According to his testimony, relator began looking into retirement in June 2012. Relator
also testified that, as of October 2012, when he completed the paperwork for retirement,
he was still working without any restrictions.
       {¶ 14} 4. On October 5, 2012, relator completed a resignation/separation form
indicating that he was leaving his employment due to "Retirement." Relator had the
option to indicate that the reason he was leaving was due to "Health" or he could have
listed any other reason; however, he did not.
       {¶ 15} 5. Relator elected to take a retirement after 25 years of service and after his
60th birthday. His benefit was effective November 1, 2012. There is evidence in the
record that, on October 4, 2012, relator visited his treating physician because he had
increased pain in his knee and was having difficulty walking. According to the record of
that date, the treating physician stated:
              The pain increased the last several days to a point where he
              is having trouble walking. * * * I do feel this patient is
              suffering from a flare-up of his meniscus tear brought about
              by increased standing and walking. He is set to retire in 4
              weeks and he will be able to decrease his activities more at
              that time.

       {¶ 16} Although his doctor provided therapy for his knee, relator was not placed on
any restrictions at this time.
       {¶ 17} 6. On February 20, 2014, relator's left knee gave out and he fell. Ultimately,
his workers' compensation claim was additionally allowed for the following conditions:
No. 15AP-490                                                                             8

             DISPLACED FRACTURE RIGHT DISTAL                       FIBULA;
             AVULSION FRACTURE ANTEROLATERAL                       ASPECT
             DISTAL RIGHT TIBIA; SPRAIN RIGHT ANKLE.

      {¶ 18} 7. Based on these newly allowed conditions, relator filed an application
seeking TTD compensation from February 20 through May 31, 2014 and continuing.
      {¶ 19} 8. Relator's request for TTD compensation was heard before a district
hearing officer ("DHO") on July 28, 2014 and was denied. After recounting the facts
heretofor listed in the findings of fact, the DHO determined that relator made his decision
to accept an age and service term retirement more than one month before he experienced
an exacerbation of his condition, and that the changes in the pension plan were important
to relator's decision. The DHO explained:
             According to his testimony at the hearing, Mr. Strahin began
             to contemplate retirement in June of 2012 as a consequence
             of the proposed legislative changes to the public employee
             retirement service, which would have the effect of decreasing
             the benefits paid out, both in terms of compensation and the
             availability of health care benefits for retirees in the future.
             He conducted research on his options over the next three
             months and decided that an age and service term type of
             retirement was more lucrative than a disability retirement
             related to his left knee conditions. He also testified that his
             research led him to conclude that the health care options
             available with the age and service term retirement were more
             beneficial for his wife who also needed to be covered during
             his retirement. As a consequence, he began the process of
             filing for an age and service term type of retirement in
             September of 2012. His application was approved and he
             retired from his employment effective 11/01/2012.

             Mr. Strahin continued with treatments under this claim even
             after his retirement. In 2014, he experienced an episode of
             his left leg giving out, causing him to fall at home and injure
             his right foot. The Bureau of Workers' Compensation granted
             his request to add conditions related to this flow-through
             injury to his claim by issuing a decision on 04/02/2014. The
             current request for payment of Temporary Total Disability
             Compensation benefits relates to the date of this incident.

             Mr. Strahin maintains that, given his continued problems
             with his left knee, the reason at the core of his decision to
             retire in 2012 was his disability. In support of this conclusion
             he points to the fact that he had planned to retire after 30
No. 15AP-490                                                                9

           years of service, allowing him to draw a larger pension. He
           further points to the continued treatments under this claim
           as evidence that the true motivation for his retirement was
           the disability caused by his left knee.

           The Employer of Record and the Bureau of Workers'
           Compensation, in response, rely upon the fact that his
           retirement was not disability-related in character. Further,
           they rely upon Mr. Strahin's testimony at the hearing that
           financial considerations were at the core of his decision,
           from the beginning of his process of contemplating
           retirement, due to proposed legislative changes, to the final
           decision not to apply for disability retirement, because he
           would be receiving a smaller pay-out and the consideration
           for his wife's future medical insurance.

           In this case, a review of the medical evidence on file reveals
           no opinion from a health care provider that Mr. Strahin
           should retire from employment as a consequence of the
           disability caused by the left knee conditions recognized in
           this claim in 2012, the time he began to contemplate
           retirement. In fact, based upon the medical evidence on file,
           Mr. Strahin had been working for nearly 3 years, without
           restrictions, when he first considered retirement in June of
           2012, as a result of proposed legislative changes which could
           adversely affect his pension income and retiree health
           benefits. While there is a reference to a period of disability
           from work, in the 10/25/2012 office note from the treating
           chiropractor, D. DeSantis, DC, the disability slip related to
           this absence from work has not been submitted to the file.
           Thus, it is impossible to determine if the disability was
           independently attributed to the conditions recognized in this
           claim at that time. In any case, Mr. Strahin had made his
           decision to accept an age and service term retirement more
           than one month prior to 10/25/2012 and made no attempt to
           change the nature of his retirement in the week he worked
           subsequent to the 10/25/2012 office visit. Thus, he had
           clearly made up his mind as to the form of the retirement he
           wished to pursue in September of 2012, and any subsequent
           disability related to his left knee was not sufficient to
           convince him to change his mind. Thus, in applying the
           "objective facts" standard urged by Diversitech, the medical
           evidence does not support a conclusion that the left knee
           conditions recognized in this claim, at the time Mr. Strahin
           made his final decision with regard to the form of
           retirement for which he would apply in September of 2012,
           mandated that he accept a disability retirement. In fact, at
No. 15AP-490                                                                         10

             that time, he had been working without restrictions for over
             3 years.

             In the context of his final choice, even Mr. Strahin does not
             dispute that he filed for and accepted an age and service term
             related retirement in 2012, based upon the fact that he
             determined it was in his financial interest. Only now, when
             his financial interests would be more aligned with construing
             his retirement as primarily related to disability, does he ask
             for a construction of his age and service term related
             retirement as something else. Thus, in light of Mr. Strahin's
             careful analysis of his retirement options in the five months
             prior to his retirement, the "objective facts" standard related
             in Diversitech would not support a construction of Mr.
             Strahin's retirement from age and service term related to
             disability. This is specially the case given the fact that Mr.
             Strahin has benefit reaping the benefits of his decision for 14
             months, by accepting the greater pension compensation
             afforded by his choice of an age and service term related
             retirement.

             Based upon the foregoing analysis, Mr. Strahin chose to exit
             the workforce in 2012 for reasons unrelated to the conditions
             recognized in this claim. Accordingly, he has sustained no
             injury-related loss of earnings which would need to be
             replaced by payments of Temporary Total Disability
             Compensation benefits. Thus, the request for payment of
             Temporary Total Disability Compensation benefits for the
             period from 02/20/2014 through 07/28/2014 is denied.

             This decision is based upon the testimony presented at the
             hearing by Mr. Strahin, as set forth above; the 08/12/2009
             and 04/02/2014 decisions of the Administrator; and, a
             review of the progress notes from the treating chiropractor.
             All evidence on file with regard to this mater was reviewed
             and considered.

(Emphasis sic.)

      {¶ 20} 9. Relator's appeal was heard before a staff hearing officer ("SHO") on
December 4, 2014. The SHO specifically noted that there was an absence of any medical
evidence of work restrictions contained within the record spanning the period when
relator returned to work on August 11, 2009 through the effective date of his retirement
November 1, 2012. The SHO noted further that relator had testified before the DHO that
No. 15AP-490                                                                             11

he began contemplating retirement in June 2012. At the hearing before the SHO, relator
asserted that his ongoing left knee problems were the basis for his decision to retire in
2012 and that, had it not been for his injury, he would not have retired before reaching 65
years of age. Ultimately, the SHO weighed the evidence and applied the law thereto and
concluded that relator had voluntarily abandoned his employment when he resigned from
his employer, stating:
              In reviewing the Injured Worker's retirement at hand, the
              Staff Hearing Officer finds that the medical evidence
              contained within the record fails to reflect any medical
              opinion from a health care provider recommending that the
              Injured Worker retire from employment or leave the
              workforce due to the injury and/or allowed conditions in this
              claim in 2012, specifically from June 2012 through
              11/01/2012, the effective date of the Injured Worker's
              retirement.

              Notably, the Staff Hearing Officer finds per a review of the
              medical evidence contained within the record that the
              Injured Worker had been working in his former position of
              employment, without any physical restrictions, for nearly
              three years when he first began to consider his retirement
              options in June 2012. The Staff Hearing Officer
              acknowledges that there is a reference to a period of
              disability from work in the 10/25/2012 office visit record
              from David P. DeSantis, D.C., however, no contemporaneous
              disability slip or other such document has been made a part
              of the record that specifies what condition or conditions this
              disability was predicated upon. As such, it cannot be
              ascertained if the disability alleged was independently
              attributable to the conditions recognized in this claim at that
              time.

              Notwithstanding the 10/25/2012 office visit record, the
              Injured Worker made his decision to accept an age and
              service type retirement approximately one month before that
              office visit and made no attempt to change the nature of his
              retirement in the week he worked subsequent to that office
              visit. It is concluded therefore, that the Injured Worker had
              clearly made up his mind as to the form of the retirement he
              wanted to elect and any subsequent disability encompassed
              by the 10/25/2012 office visit record, whether related to the
              Injured Worker's left knee or not, was insufficient to
              convince the Injured Worker to change his original election
              to accept an age and service type pension from PERS.
No. 15AP-490                                                                  12

           Based upon an "objective facts" standard as per the
           Diversitech case, the Staff Hearing Officer concludes that the
           contemporaneous medical evidence on record at the time of
           the Injured Worker's election to take an age and service type
           retirement through PERS, does not support a conclusion that
           the left knee conditions recognized in this claim, mandated
           that the Injured Worker elect a disability retirement type
           pension. Again, at the time of the Injured Worker's election,
           he had been working without any physical restrictions for
           over three years. The Staff Hearing Officer finds this fact very
           significant.

           As found by the District Hearing Officer below, the Staff
           Hearing Officer finds that since the Injured Worker's original
           election to accept an age and service type retirement from
           PERS, the Injured Worker did not attempt to change this
           election to be viewed as a disability based retirement until
           now when, after surgery, the Injured Worker is unable to
           work, purportedly on a temporarily and totally disabling
           basis. The Staff Hearing Officer finds that the Injured
           Worker accepted his age and service type benefits for 14
           months based upon his original election.

           It is the finding of the Staff Hearing Officer that when the
           Injured Worker elected to leave the workforce effective
           11/01/2012 by accepting an age and service type pension
           from PERS, said election was accepted for reasons unrelated
           to allowed conditions in this claim. As such, it is found that
           the Injured Worker's said retirement constitutes a voluntary
           removal from the workforce, i.e. a voluntary abandonment of
           the workforce, which precludes the payment of temporary
           total disability compensation benefits thereafter. It is noted
           the Injured Worker testified at today's hearing that he has
           not worked for anyone in any capacity, including self-
           employment, since his retirement date of 11/01/2012.

           For the reasons set forth above, it is the decision of the Staff
           Hearing Officer to deny authorization for the payment of
           temporary total disability compensation benefits for the
           period from 02/02/2014 through 12/04/2014, the date of
           this hearing, as the Injured Worker is found to have
           voluntarily retired by accepting an age and service type
           pension from PERS, effective 11/01/2012 thereby precluding
           his eligibility for temporary total disability compensation
           benefits. By accepting said voluntary retirement, it is the
           finding of the Staff Hearing Officer that the Injured Worker
           had no injury-related loss of earnings to be replaced by
No. 15AP-490                                                                               13

              payment of temporary total disability compensation benefits
              for the period addressed above.

              Accordingly, the Injured Worker's request for payment of
              temporary total disability compensation benefits is denied as
              specified and ordered above.

              In rendering this decision, the Staff Hearing Officer has
              relied upon the Injured Worker's testimony as reflected
              above as well as in the prior District Hearing Officer level
              decision; the 08/12/2009 and 04/02/2014 decisions of the
              bureau of Workers' Compensation; a review of the
              medical opinions/office visit records from Dr. DeSantis
              contemporaneous to the period of time in which the Injured
              Worker was contemplating, researching and actually electing
              his retirement plan.

(Emphasis sic.)

       {¶ 21} 10. Relator's appeal was refused by order of the commission mailed
January 13, 2015.
       {¶ 22} 11. Relator filed a request for reconsideration again arguing that the facts
clearly establish that his retirement was causally related to the allowed industrial injury;
however, the commission disagreed, and denied his request for reconsideration in an
order mailed January 30, 2015.
       {¶ 23} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 25} 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).
       {¶ 26} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
No. 15AP-490                                                                                            14

treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached maximum medical improvement. See R.C. 4123.56(A); State ex rel. Ramirez v.
Indus. Comm., 69 Ohio St.2d 630 (1982).
        {¶ 27} TTD compensation is intended to compensate injured workers for their loss
of wages while they are recuperating from a work-related injury.                     See State ex rel.
Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987) and State ex rel. McCoy v. Dedicated
Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305. If an injured worker leaves the
workforce for reasons unrelated to his or her industrial injury, he or she is not legally
entitled to receive payments of TTD compensation because there is no corresponding
injury-related loss of earnings to replace. State ex rel. Pierron v. Indus. Comm., 120 Ohio
St.3d 40, 2008-Ohio-5245. The determination of whether an injured worker voluntarily
abandoned his or her former position of employment is primarily one of intent which may
be inferred from objective facts, such as words spoken and acts performed. See State ex
rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio St.3d 381 (1989). The
presence of such intent is a factual question left to the discretion of the commission. Id.
        {¶ 28} In determining that relator's retirement was voluntary, the SHO relied on
the following: relator's testimony at the hearing before the DHO1, prior Ohio Bureau of
Workers' Compensation ("BWC") findings and commission determinations, and a review
of the medical evidence contemporaneous to the period of time in which relator was
contemplating, researching, and actually electing his retirement plan. The SHO noted
that, at the hearing before the DHO, relator testified that he began contemplating
retirement in June 2012. At that time, he was working with his employer of record full-
time and without any restrictions. According to the DHO order, the upcoming changes in
the retirement plans under the Public Employees Retirement System motivated relator to
consider retirement. The DHO and SHO both found it significant that relator started



1 The transcript in the stipulation of evidence pages 69-119 is mistakenly identified as occurring before a

DHO. However, the transcript is actually from the hearing before the SHO, C. Hudzik, and not from the
hearing before the DHO, B. Alex Khavri. As such, to the extent counsel argued at oral argument that the
SHO misconstrued relator's testimony before the DHO and pointed to portions of the transcript to prove
the point, it is clear that the transcript is mistakenly labeled as occurring before a DHO. December 4,
No. 15AP-490                                                                                         15

paperwork before the October 2012 exacerbation. Further, there are no medical records
in the stipulation of evidence which would indicate that relator was having any problems
with his knee or even receiving ongoing supportive care for his knee in June 2012. The
BWC record referenced indicates that relator went back to full-duty work on August 11,
2009 and there was no specific ongoing treatment plan in place.                     The BWC order
referenced is the order granting relator's motion that his claim be additionally allowed for
certain conditions to his right leg which occurred after relator fell.
        {¶ 29} Relator has submitted affidavits asserting that the worsening of his knee
condition in October 2012 was the primary reason he chose to retire. However, in June
2012, when relator began contemplating his retirement options, there is no medical
evidence in the record nor has relator testified that he was experiencing an exacerbation
of problems with his left knee. As the SHO noted, relator was performing full-duty work
without any restrictions. Where there is conflicting evidence, the commission, as the trier
of fact, has the discretion to weigh the evidence and make a determination. Inasmuch as
there is some evidence in the record to support the commission's determination that
relator's retirement was not related to the allowed conditions in his claim, relator cannot
demonstrate an abuse of discretion.
        {¶ 30} Based on the forgoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it determined that he had
voluntarily abandoned his employment and that abandonment barred his receipt of TTD
compensation, and this court should deny relator's request for a writ of mandamus.




                                                   /S/ MAGISTRATE
                                                   STEPHANIE BISCA




2014 is the date of the hearing before the SHO and not the DHO and Hudzik is the hearing officer and not
Khavari. Without a copy of the DHO transcript, counsel's argument cannot be corroborated.
No. 15AP-490                                                                   16

                           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).
