[Cite as State ex rel. Vonderheide v. Multi-Color Corp., 2018-Ohio-1714.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Sharon Vonderheide,                   :

                 Relator,                               :

v.                                                      :                      No. 16AP-493

Multi-Color Corporation                                 :                   (REGULAR CALENDAR)
and
Industrial Commission of Ohio,                          :

                 Respondents.                           :


                                            D E C I S I O N

                                       Rendered on May 3, 2018


                 On brief: Clements, Taylor, Butkovich & Cohen LPA, Co.,
                 and Edward Cohen, for relator.

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

                                    IN MANDAMUS
                        ON OBJECTION TO MAGISTRATE'S DECISION

BRUNNER, J.
        {¶ 1} Relator, Sharon Vonderheide, filed this original action seeking a writ of
mandamus that would order respondent, Industrial Commission of Ohio ("the
commission"), to vacate the December 10, 2014 order of its staff hearing officer ("SHO")
denying her application for temporary total disability ("TTD") compensation beginning
July 31, 2012, and to find she is entitled to that compensation. At issue is whether the work
Vonderheide performed at her family's farm qualifies as employment, such that she was a
part of the active workforce immediately prior to the time for which she requested TTD
compensation.
        {¶ 2} Vonderheide argues "[t]here is no proper or competent evidence of the record
which supports [the commission's] denial" of the TTD compensation she requests, and,
No. 16AP-493                                                                           2


therefore, the commission abused its discretion in denying her request. (Jul. 5, 2016
Compl. at ¶ 8.)
       {¶ 3} We referred this matter to a magistrate of this Court 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. The magistrate
concluded the commission did not abuse its discretion in denying Vonderheide's
application for TTD compensation and decided this Court should deny Vonderheide's
request for a writ of mandamus.
       {¶ 4} Vonderheide timely filed an objection to the magistrate's findings and
memorandum in support.          The commission timely filed a memorandum opposing
Vonderheide's objection, asserting the objection lacked merit, and the magistrate had
decided the matter correctly.
       {¶ 5} Having examined the magistrate's decision, conducted an independent
review of the record pursuant to Civ.R. 53, and undertaken due consideration of the
objection, we sustain Vonderheide's objection and grant a writ of mandamus ordering the
commission to vacate the SHO's order denying TTD compensation.
I. FACTS AND PROCEDURAL BACKGROUND
       {¶ 6} No one disputes, on June 28, 1992, Vonderheide sustained an industrial
injury claim in the course of and arising out of her employment with respondent, Multi-
Color Corporation. Vonderheide's claim was allowed for "lumbar sprain; medial collateral
left knee ligament sprain; right knee loose body/enthesopathy; popliteal cyst both knees;
contusion right knee; medial meniscus tear right knee; chondromalacia right knee;
osteoarthritis lower leg, bilateral; right knee infection/hardware; and right knee
instability."   (Compl. at ¶ 4.)   Vonderheide was awarded TTD compensation. That
compensation was terminated on December 23, 2002, when Vonderheide had reached
maximum medical improvement ("MMI") for the industrial injury.
       {¶ 7} Vonderheide was enrolled in a vocational rehabilitation plan in 2003, but her
rehabilitation file was closed on November 26, 2003 after she voluntarily withdrew from
the rehabilitation program.
       {¶ 8} Vonderheide filed for and began receiving Social Security retirement benefits
in August 2002 and continues to receive those benefits to the present time.
No. 16AP-493                                                                           3


      {¶ 9} Vonderheide underwent surgery for her right knee on July 31 and November
6, 2012. Her claim was amended in January 2013 to include right knee infection/hardware.
      {¶ 10} On March 12, 2014, Vonderheide filed a motion requesting TTD
compensation be reinstated beginning July 31, 2012 based upon a significant change in
circumstance. In support of the motion, Vonderheide provided medical evidence from
various physicians, computer generated summaries of her Ohio tax returns from 2004
through 2007, and from 2009 through 2012, and Internal Revenue Service ("IRS") tax
return transcripts for the years 2009 and 2010. The IRS forms evidenced income in the
form of rent/royalty/partnership/estate.
      {¶ 11} Vonderheide also supported her TTD request by providing affidavits of
herself and her son, Michael Vonderheide. In her own affidavit, Vonderheide stated she
had worked, sought work, or participated in vocational rehabilitation between 2002 and
2012. She described how she had worked with her husband on their farm while he was alive
and how she had continued to work and help run the farm after his death. She stated she
began working exclusively at the farm after her medical condition began to deteriorate in
2002. Michael Vonderheide's affidavit corroborated his mother's account of the worked she
performed on the family farm. He averred, from 2003 through 2012, he had worked with
his mother on their family farm year-round, during which time he had personally witnessed
his mother "doing a variety of tasks involved with running and working the farm, including
driving a tractor, running the business of the farm, organizing and ordering work crews,
farming and stripping tobacco, etc." (M. Vonderheide Aff. at ¶ 3, Sept. 8, 2016 Stipulation
of Evidence at 20950-L21.) He averred further, "[t]o my knowledge, my mother continued
in this occupation until the end of July 2012 when she had serious knee surgery; to my
knowledge, she has not worked on the farm since that date." Id. at ¶ 4.
      {¶ 12} A commission district hearing officer ("DHO") heard Vonderheide's motion
for TTD compensation on October 27, 2014. The DHO denied the motion by order issued
on October 30, 2014 based on findings that Vonderheide: (1) had "not provided sufficient
evidence" to corroborate her testimony she was working on the family farm from November
2003 through the time period immediately prior to the requested period of TTD in this
claim, (2) had "not provided sufficient evidence that she worked or tried to be employed
since November, 2003," (3) had been on Social Security retirement "since that time," and
No. 16AP-493                                                                            4


(4) "was not removed from the workforce as a result of the newly allowed condition in this
claim." (Stipulation of Evidence at 20950-L11.) The DHO concluded Vonderheide had
failed to satisfy her burden of proving by a preponderance of the evidence she was entitled
to the award of TTD in this claim.
       {¶ 13} A commission SHO heard Vonderheide's appeal of the DHO order on
December 4, 2014. At the hearing, Vonderheide testified as to the year-round working
nature of the family farm on which Vonderheide, her husband, and her son had grown hay
and tobacco and, until her husband's death in 2009, raised cows. She described the work
she performed on the farm before and after her husband's death. She testified how the
income derived from the farming enterprise was distributed. Vonderheide also testified to
her efforts to find employment away from the farm after her industrial injury. She testified
she was actively working at the farm from 2009 until her surgery and had worked at the
farm as recently as two weeks before the SHO hearing.
       {¶ 14} Vonderheide's son also testified at the SHO hearing as to his involvement
with the farm operation, the work he had seen Vonderheide perform at the farm, and how
and when the farm income was distributed.
       {¶ 15} By order issued December 10, 2014, the SHO affirmed the DHO order and
denied Vonderheide's request for TTD compensation. The SHO stated the applicable legal
standard as follows:
              The Hearing Officer notes that [Vonderheide] has the burden
              of establishing with medical evidence that she is temporarily
              and totally disabled as a result of the allowed conditions in the
              claim and that she is legally entitled to the payment of [TTD]
              compensation because she is in the work force at the time that
              she is requesting compensation begin. The industrial injury
              must remove [Vonderheide] from the work force and the
              purpose of [TTD] compensation is to replace the wages she has
              lost.

(Stipulation of Evidence at 20950-L60.)
       {¶ 16} The SHO found Vonderheide had not established she was legally eligible for
TTD compensation because she had failed to meet her burden of proof establishing she was
in the active workforce and had wages to replace as of July 31, 2012. The SHO was not
persuaded by Vonderheide's claim she worked at the family farm, specifically noting
Vonderheide's testimony she did not live at the farm and did not receive wages on a regular
No. 16AP-493                                                                             5


basis for her work. The SHO found Vonderheide had not established her ownership of, and
participation in, the family farm evidenced she was in the workforce and receiving wages.
The SHO stated:
             The Hearing Officer concludes that the farm was, and
             continues to be, a passive investment that [Vonderheide] has
             which she sometimes performed chores on. The Hearing
             Officer finds that this is not evidence that [Vonderheide] was in
             the work force and actively working prior to the date that she is
             requesting [TTD] compensation begin. The Hearing Officer
             finds that there were no wages to replace as of 07/31/2012.
             Therefore, the Hearing Officer finds that [Vonderheide] is not
             entitled to the payment of temporary total disability
             compensation. The Hearing Officer orders that the C-86
             Motion is denied.

             This order is based upon the lack of evidence of employment,
             the BWC claim notes dated 03/21/2014, [State ex rel. Pierron
             v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245; State ex
             rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-
             Ohio-2579; and State ex rel. Hoffman v. Rexman Beverage
             Can Co., 137 Ohio St.3d 129 (2013)].

Id. at 20950-L61.
      {¶ 17} Vonderheide's further appeal was refused by order of the commission mailed
December 31, 2014.
      {¶ 18} On July 5, 2016, Vonderheide filed this mandamus action asserting the
commission's denial of her TTD compensation request is unsupported by "proper or
competent evidence of record" and constitutes an abuse of discretion. (Compl. at ¶ 8.)
      {¶ 19} The magistrate's decision discusses the law governing an award of TTD
compensation:
             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 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 MMI. See R.C.
             4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio
             St.2d 630 (1982).
No. 16AP-493                                                                             6


(App'x at ¶ 56.) The magistrate's decision indicates further "[t]here can be no lost wages,
or even the potential for lost wages, if the injured worker is no longer a part of the active
workforce. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245."
Id. at ¶ 57.
       {¶ 20} After reciting the findings on which the SHO relied to affirm the DHO's order
denying Vonderheide's request for TTD compensation, the magistrate assessed the
evidence Vonderheide had provided about her work at the farm, stating:
               In the present case, the commission found that [Vonderheide]
               failed to establish that she was receiving wages immediately
               prior to her claimed period of disability and was, therefore,
               ineligible to receive TTD compensation. At the hearing before
               the SHO, [Vonderheide] specifically testified that, after her
               husband died in 2009, she sold the cattle and leased the farm
               property to others. From that time on, [Vonderheide] did
               continue to maintain the property by cutting the grass and
               performing upkeep on the family home located on the property.
               This activity does not necessarily constitute work for purposes
               of TTD compensation. Grass needs to be cut and a house must
               be maintained, but these are every day tasks everyone
               performs. [Vonderheide] did not testify that she still planted
               seeds, cut and hung the tobacco in the barn to dry, and remove
               the leaves from the stalks. None of [Vonderheide's] testimony
               nor the tax information she submitted, nor her affidavit, nor
               the affidavit of her son proves that, after she leased out the
               property and sold the cattle, that she actually worked on the
               farm. Although [Vonderheide] indicated that she was working
               until the surgeries in 2012, as the SHO said, the evidence was
               conflicting.

Id. at ¶ 58.
       {¶ 21} The magistrate noted the paucity of tax records Vonderheide provided
documenting farm income, commenting "[i]f [Vonderheide] had farm income, she should
have presented the tax return to establish that fact. She did not." Id.
       {¶ 22} The magistrate, deferring to the commission on questions of credibility and
the weight to be given evidence, concluded the commission had not abused its discretion in
denying Vonderheide's application for TTD compensation:
               Based upon a review of the stipulation of evidence and the
               arguments of counsel, the magistrate concludes that the
               commission did not abuse its discretion when it determined
               that [Vonderheide] had failed to meet the burden of proof, by a
No. 16AP-493                                                                               7


               preponderance of the evidence, that she worked immediately
               prior to the alleged period of disability and, as such, the
               commission did not abuse its discretion when it denied her
               application for TTD compensation. As such, this court should
               deny [Vonderheide]'s request for a writ of mandamus.

Id. at ¶ 60.
       {¶ 23} Vonderheide timely filed an objection to the magistrate's decision. The
commission timely filed a memorandum opposing Vonderheide's objection.
II. OBJECTION TO MAGISTRATE'S DECISION
       {¶ 24} Vonderheide presents a sole objection to the magistrate's decision:
               The Magistrate erred in denying Relator's requested writ of
               mandamus since the disputed Commission order was not
               based on "some evidence."

       {¶ 25} Vonderheide asserts she submitted sufficient evidence to the commission to
"shift the burden of proof back to her employer and the BWC to rebut her assertion that she
was engaged in the work force at the time the requested temporary total disability began."
(Emphasis omitted.) (Obj.to Mag.'s Decision at 1.)
III. LAW AND DISCUSSION
       {¶ 26} To be entitled to relief in mandamus, Vonderheide must establish she has a
clear legal right to relief, and the commission has a clear legal duty to provide such relief.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967), paragraph nine of the
syllabus. To do so, Vonderheide must demonstrate the commission abused its discretion
and, "in this context, abuse of discretion has been repeatedly defined as a showing that the
commission's decision was rendered without some evidence to support it." State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987). 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).     To be successful in this mandamus action, Vonderheide must show the
commission's decision is not supported by some evidence in the record. State ex rel. Elliott
v. Indus. Comm., 26 Ohio St.3d 76 (1986). Questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as the factfinder. State
ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
No. 16AP-493                                                                                         8


        {¶ 27} We find the commission focused on information Vonderheide did not provide
rather than the information she did provide and, in so doing, abused its discretion in
denying her request for TTD compensation.
        {¶ 28} The magistrate's decision includes a comprehensive discussion of the
statutory and case law regarding the award of TTD compensation and its application
generally. We agree with the commission and the magistrate that TTD compensation
awarded pursuant to R.C. 4123.56 is intended to provide compensation for wages lost
where an injured worker's injury prevents a return to the former position of employment.
We agree further, conversely, if an injured worker is no longer a part of the active workforce,
there can be no lost wages, or even the potential for lost wages. State ex rel. Pierron v.
Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245.
        {¶ 29} That said, however, we find the traditional understanding of what constitutes
being a part of the active workforce for the purpose of awarding TTD benefits has not taken
into account inherent differences in farm employment from other types of employment as
applied to the facts contained in the record.
        {¶ 30} We note at the outset of our discussion the Bureau of Labor Statistics of the
U.S. Department of Labor collects current employment statistics ("CES") only from
nonfarm employers and does not include statistics on self-employed individuals.1 The
Bureau of Labor Statistics instead uses the Current Population Survey ("CPS") to measure
employment in farming and vocation in self-employment.

                The CPS has a broad definition of employment and provides
                detailed demographic characteristics on individuals by their
                labor force status. The CPS includes groups of workers that are
                not included in CES estimates: the self-employed, agricultural
                workers, unpaid family workers, workers on unpaid leave, and
                employees of private households. * * *

                ***


1For more information, see Bowler and
                                    Marisi, Understanding Employment Measures from the CPS and CES
Survey,         Monthly      Labor      Review,        24       (Feb.    2006),       available        at
https://www.bls.gov/opub/mlr/2006/02/art2full.pdf (accessed Apr. 12, 2018) ("The CES survey is a Federal-
State cooperative program in which the Bureau of Labor Statistics works with State employment security
agencies to collect data each month on employment, hours, and earnings from a sample of nonfarm
establishments, including government. The CES survey sample, which includes about 160,000 U.S. firms of
all sizes, covers about 400,000 worksites. The survey counts nonfarm payroll jobs only—with no age
restriction on the employed—and does not include the self-employed.").
No. 16AP-493                                                                           9


              * * * In the CES survey, the employment estimate provides a
              count of all nonfarm jobs. This means that persons working at
              more than one job would appear on more than one payroll and
              thus would be counted for each job. In contrast, the [CPS]
              household survey provides an estimate of employed persons,
              and each worker is counted once regardless of how many jobs
              he or she holds. * * *

              * * * The CPS counts a person as employed if the person
              performed at least 1 hour of work during the reference week,
              whether as a wage and salary worker, as a self-employed
              individual in his or her own business or farm, or as an employee
              of a private household. Unpaid family workers are counted if
              they worked at least 15 hours in a family-owned business.
              Workers away on temporary unpaid absences also are included
              as employed, falling into a category known as "with a job, not
              at work." This category includes workers who have a job at
              which they did not work during the survey week because they
              were on vacation, were ill, needed to take care of family or
              personal obligations, were on maternity or paternity leave,
              were involved in a labor dispute such as a strike, or could not
              work due to bad weather.

(Emphasis sic and added.) (Bowler and Marisi, Understanding Employment Measures
from the CPS and CES Survey, Monthly Labor Review, 24, 26 (Feb. 2006), available at
https://www.bls.gov/opub/mlr/2006/02/art2full.pdf (accessed Apr. 12, 2018).)
       {¶ 31} From this information, it is clear Vonderheide was employed when she
worked on the family farm, even if she did not receive a paycheck. From this information,
it is also clear the Bureau of Labor Statistics recognizes people running or working a farm
do not work a typical 40-hour work week and hours worked on a family farm typically do
not translate into compensation in the form of a regular paycheck or the typical payday
experienced by the majority of persons engaged in the work force and whose job statistics
are counted by the Bureau of Labor Statistics based on data supplied by employers in
nonfarm employment sectors. For the commission not to recognize this is an abuse of
discretion.
       {¶ 32} The record of this matter evidences Vonderheide submitted unrefuted
testimonial and documentary evidence demonstrating she was engaged in running and
working her family's farm in July 2012. Her testimony and the affidavits from her son and
herself recounted the farm chores she personally performed up until the time of her surgery
No. 16AP-493                                                                            10


for her allowed claim in July 2012, work she was unable to perform after the surgery. At
the hearing before the SHO, Vonderheide also testified about her participation in running
and working the family farm before and after her husband's death, up until the time her
industrial injury prevented her from work she had performed.
       {¶ 33} With respect to the commission's reliance on the fact Vonderheide did not
live at the farm, we are not aware of any legal provision that requires a person engaged in
farming to reside at the farm in order for the person's labor to constitute "work" or
employment so as to establish the person as being a part of the active workforce. In fact,
the Bureau of Labor Statistics places self-employed persons in the same category as farm
workers without distinction to their residence. Id. at 24. See also id. at 23, 26 ("[T]he CPS
is a household survey, while the CES survey is a survey of businesses as well as
government establishments. [T]he household survey provides an estimate of employed
persons, and each worker is counted once regardless of how many jobs he or she holds.").
(Emphasis sic.) In short, due to the nature of Vonderheide's claimed employment, she
only needed to be counted by the household where she lived in order to be counted as
employed working on the family farm.
       {¶ 34} We hold the commission's decision was not based on some evidence and as
such resulted in an abuse of discretion when it determined Vonderheide was not engaged
in the active workforce immediately before the time for which she requests TTD
compensation. The commission had a clear legal duty to consider Vonderheide's evidence
of farm employment, not to disregard it. We disagree with the magistrate's conclusion that
it was not an abuse of discretion for the commission to determine Vonderheide had failed
to prove by a preponderance of the evidence that she worked immediately prior to the
alleged period of disability, and, consequently, to deny Vonderheide's application for TTD
compensation.
       {¶ 35} Accordingly, we sustain Vonderheide's objection to the magistrate's decision.
IV. CONCLUSION
       {¶ 36} Upon review of the magistrate's decision, an independent review of the
record, and due consideration to Vonderheide's objection, we find the magistrate has
properly stated many of the pertinent facts. We adopt those facts with which we agree and
make the additional findings of fact based on the record and applicable law.
No. 16AP-493                                                                         11


      {¶ 37} However, we disagree with the magistrate's conclusions of law and do not
adopt them. We thus sustain Vonderheide's objection to the magistrate's decision and find
the commission abused its discretion in finding Vonderheide had not met her burden in
showing she was eligible for TTD compensation as of July 31, 2012.
      {¶ 38} Accordingly, we grant the requested writ of mandamus and order the
commission to vacate the SHO order of December 10, 2014.
                                                                     Objection sustained;
                                                             writ of mandamus granted.

                                  TYACK, J., concurs.
                                 SADLER, J., dissents.
SADLER, J., dissenting.
      {¶ 39} I agree with the magistrate's conclusion that the commission did not abuse
its discretion in determining relator had failed to meet her burden of proof, by a
preponderance of the evidence, that she was entitled to an award of temporary total
disability compensation, and I would adopt the magistrate's decision and deny the
requested writ of mandamus. Because the majority holds otherwise, I respectfully dissent.
No. 16AP-493                                                                          12


                                        APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT



The State ex rel. Sharon Vonderheide,        :

              Relator,                       :

v.                                           :                    No. 16AP-493

Multi-Color Corporation                      :               (REGULAR CALENDAR)
and
Industrial Commission of Ohio,               :

              Respondents.                   :


                         MAGISTRATE'S DECISION

                              Rendered on January 27, 2017


              Clements, Taylor, Butkovich, & Cohen LPA, Co., and Edward
              Cohen, for relator.

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


                                    IN MANDAMUS

       {¶ 40} Relator, Sharon Vonderheide, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied her application for temporary total
disability ("TTD") compensation and ordering the commission to find that she is entitled to
that compensation.
Findings of Fact:
       {¶ 41} 1. Relator sustained a work-related injury on June 28, 1992, and her workers'
compensation claim has been allowed for the following conditions:
No. 16AP-493                                                                               13


               Lumbar sprain; medial collateral left knee ligament sprain;
               right knee loose body/enthesopathy; popliteal cyst both
               knees; contusion right knee; medial meniscus tear right knee;
               chondromalacia right knee; osteoarthritis lower leg, bilateral;
               right knee infection/hardware; right knee instability.

        {¶ 42} 2. Relator received a period of TTD compensation which was terminated
effective December 23, 2002 after the commission found that relator's then allowed
conditions had reached maximum medical improvement ("MMI").
        {¶ 43} 3. Relator   was   enrolled   in   a   vocational   rehabilitation   plan    in
November 2003. Relator completed eight weeks of work conditioning followed by four
weeks of work hardening. Thereafter, there was a one week non-medical interruption when
relator was out of town followed by one or more missed appointments. Relator never began
a job search due to ongoing symptoms of edema and numbness of her right foot, as well as
personal family issues regarding healthcare for her adult son.
        {¶ 44} 4. By letter dated November 26, 2003, relator's rehabilitation file was closed
due to relator's request to withdraw.
        {¶ 45} 5. It is undisputed that relator began receiving Social Security Retirement in
2002.
        {¶ 46} 6. In 2012, relator underwent two knee surgeries.
        {¶ 47} 7. In January 2013, relator's claim was additionally allowed for right knee
infection/hardware.
        {¶ 48} 8. Following her surgery, relator filed a motion seeking the payment of TTD
compensation beginning July 31, 2012. Relator's motion was supported by medical
evidence from various physicians. Relator also included computer generated summaries of
her Ohio tax returns from 2004 through 2012 and Internal Revenue Service ("IRS") tax
return transcripts for the years 2009 and 2010. Those IRS forms show income in the form
of rent/royalty/partnership/estate. Although relator asserts she worked on her family
farm, the tax documents she supplied do not show any farm income.
               Relator also submitted an affidavit wherein she stated, in pertinent part, as
follows:
               [Two] Between 2002 and 2012, I have worked, sought work
               or participated in vocational rehabilitation; some of the places
               I sought work were at McDonald's & Pizza Hut.
No. 16AP-493                                                                           14



              [Three] On August 5, 2014 copies of my 2009 & 2010 Tax
              Return Transcripts were filed with the Industrial Commission
              as I am unable to locate all of my wages showing both rental
              income and farm income (bailing hay); however, I worked on
              and helped run the farm this entire time. Likewise;

              [Four] My husband and I worked the farm together; however
              I did work additional jobs throughout our marriage. In
              October of 2001 I was permanently laid off by Standex
              Electronics and began working only on the farm when my
              medical condition began deteriorating in 2002.

              [Five] Once my medical condition from this injury worsened
              in 2012, I was no longer able to continue with any work.

              Relator also included the affidavit of her son, wherein he stated:
              [Two] From 2003 through 2012, I personally worked with my
              mother on our family farm; this work was year around,
              weather permitting;

              [Three] During this time, I personally witnessed my mother
              doing a variety of tasks involved with running and working the
              farm, including driving a tractor, running the business of the
              farm, organizing and ordering work crews, farming and
              stripping tobacco, etc.

              [Four] To my knowledge, my mother continued in this
              occupation until the end of July 2012 when she had serious
              knee surgery; to my knowledge, she has not worked on the
              farm since that date.

       {¶ 49} 9. Relator's motion for TTD compensation was heard before a district
hearing officer ("DHO") on October 27, 2014. The DHO denied the request for TTD
compensation finding that relator failed to satisfy her burden of proving by a
preponderance of the evidence that she was entitled to that award; specifically, she failed
to show that she was employed at the time of the beginning of the alleged period of
disability. The DHO specifically noted that relator had been on Social Security Retirement
since 2002 and failed to provide sufficient evidence that she worked or tried to be employed
since November 2003.
       {¶ 50} 10. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on December 4, 2014. The SHO affirmed the prior DHO order and denied relator's
No. 16AP-493                                                                           15


request for TTD compensation finding that relator failed to meet her burden of proof
establishing that she was in the workforce and that she had wages to replace beginning July
2012. The SHO explained:
              In making this finding, the Hearing Officer relies on several
              factors. First, the Injured Worker applied for and began
              receiving social security retirement benefits beginning in
              2002. The Injured Worker submitted an affidavit and testified
              at hearing that she made some attempts to look for work
              following the date that she started receiving social security
              benefits. However, there is no evidence that she has worked
              or looked for work in the years leading up to July of 2012.

              The Injured Worker's attorney argued that the Injured
              Worker owned and ran a family farm and that this is evidence
              that she had not left the work force prior to the requested start
              date of temporary total disability compensation. The Hearing
              Officer finds that the evidence that has been submitted on the
              farm work is conflicting. The Injured Worker submitted an
              affidavit of her own and from her son, Mr. Michael
              Vonderheide, which indicated that she worked from 2003 to
              2012 on her family farm. The Injured Worker also submitted
              tax information to show that she reported income for the
              period from 2003 through 2012.

              The Injured Worker testified at hearing that she and her
              husband had owned the farm for years since before 2003. The
              Injured Worker did not live at the farm, although her husband
              did. Instead, she lived an hour and a half away from the farm.
              She testified to performing work and different farm chores on
              the farm on weekends when she had a full time job. She
              further testified to having employees who worked on the farm.
              Since her husband's death, she has begun leasing the farm out
              for someone else to farm. At hearing, when questioned about
              the last time she worked, she testified to performing work
              activities on the farm two weeks ago.

              The tax records are also conflicting. The income reported from
              the family farm fluctuated from year to year. There does not
              appear to be any correlation with the amounts earned in the
              years that she worked on the farm compared to when she was
              unable to work on the farm. The Injured Worker testified that
              she did not receive wages on a regular basis for her work.
              Instead, she testified that her husband would give her money
              that remained at the end of the year after expenses were paid.
No. 16AP-493                                                                             16


              The Hearing Officer finds that the Injured Worker has not
              established that her ownership of, and participation in, the
              family farm is evidence that she was in the work force and
              receiving wags. The Hearing Officer concludes that the farm
              was, and continues to be, a passive investment that the
              Injured Worker has which she sometimes performed chores
              on. The Hearing Officer finds that this is not evidence that the
              Injured Worker was in the work force and actively working
              prior to the date that she is requesting temporary total
              disability compensation begin. The Hearing Officer finds that
              there were no wages to replace as of 07/31/2012. Therefore,
              the Hearing Officer finds that the Injured Worker is not
              entitled to the payment of temporary total disability
              compensation. The Hearing Officer orders that the C-86
              Motion is denied.

              This order is based upon the lack of evidence of employment,
              the BWC claim notes dated 03/21/2014, [State ex rel. Pierron
              v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245; State
              ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202,
              2012-Ohio-2579; and State ex rel. Hoffman v. Rexman
              Beverage Can Co., 137 Ohio St.3d 129 (2013)].

       {¶ 51} 11. Relator's further appeal was refused by order
of the commission mailed December 31, 2014.
       {¶ 52} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 53} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 54} 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).
       {¶ 55} 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
No. 16AP-493                                                                              17


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).
       {¶ 56} 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
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 MMI. See R.C.
4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
       {¶ 57} It is undisputed that TTD compensation awarded pursuant to R.C. 4123.56
has been defined as compensation for wages lost where an injured worker's injury prevents
a return to the former position of employment. There can be no lost wages, or even the
potential for lost wages, if the injured worker is no longer a part of the active workforce.
State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245.
       {¶ 58} In the present case, the commission found that relator failed to establish that
she was receiving wages immediately prior to her claimed period of disability and was,
therefore, ineligible to receive TTD compensation. At the hearing before the SHO, relator
specifically testified that, after her husband died in 2009, she sold the cattle and leased the
farm property to others. From that time on, relator did continue to maintain the property
by cutting the grass and performing upkeep on the family home located on the property.
This activity does not necessarily constitute work for purposes of TTD compensation. Grass
needs to be cut and a house must be maintained, but these are every day tasks everyone
performs. Relator did not testify that she still planted seeds, cut and hung the tobacco in
the barn to dry, and remove the leaves from the stalks. None of relator's testimony nor the
tax information she submitted, nor her affidavit, nor the affidavit of her son proves that,
No. 16AP-493                                                                            18


after she leased out the property and sold the cattle, that she actually worked on the farm.
Although relator indicated that she was working until the surgeries in 2012, as the SHO
said, the evidence was conflicting. Further, relator did not present tax records beyond 2010
because her husband prepared their tax returns. Her husband died in 2009. Thereafter,
relator's taxes were prepared by someone other than her husband. If she had farm income,
she should have presented the tax return to establish that fact. She did not.
       {¶ 59} Credibility and the weight to be given the evidence are clearly within the
discretion of the commission as fact finder and it is immaterial whether there is other
evidence, even if greater in quality and/or quantity supports a decision contrary to the
commission's. Teece; State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (1996).
       {¶ 60} Based upon a review of the stipulation of evidence and the arguments of
counsel, the magistrate concludes that the commission did not abuse its discretion when it
determined that relator had failed to meet the burden of proof, by a preponderance of the
evidence, that she worked immediately prior to the alleged period of disability and, as such,
the commission did not abuse its discretion when it denied her application for TTD
compensation. As such, this court should deny relator's request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA




                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
              unless the party timely and specifically objects to that factual
              finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
