[Cite as State ex rel. Jenkins v. Indus. Comm., 2017-Ohio-7896.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Ralph Jenkins,                       :

                 Relator,                              :

v.                                                     :              No. 16AP-534

Industrial Commission of Ohio and                      :           (REGULAR CALENDAR)
Northwestern Schools,
                                                       :
                 Respondents.
                                                       :



                                            D E C I S I O N

                                   Rendered on September 28, 2017


                 On brief: Philip J. Fulton Law Office, and Chelsea Fulton
                 Rubin, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 Amanda B. Brown, for respondent Industrial Commission of
                 Ohio.


                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.

        {¶ 1} Relator, Ralph Jenkins, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order that denied relator's application for permanent total disability ("PTD")
compensation based on a finding that relator voluntarily abandoned the workforce, and to
enter an order that requires the commission to adjudicate his application on its merits,
without a finding of workforce abandonment.
No. 16AP-534                                                                               2

         {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that the
commission violated relator's right to due process of law when it denied relator's PTD
application on the basis of voluntary abandonment of the workforce without giving relator
an opportunity to present evidence on that issue.           Therefore, the magistrate has
recommended that we grant a limited writ of mandamus that provides relator the
opportunity to address the issue of voluntary workforce abandonment.
         {¶ 3} The commission has filed objections to the magistrate's decision. In its first
objection, the commission argues that the magistrate erred when it found that relator's
right to due process of law was violated because the commission sua sponte denied
relator's PTD application on the basis of voluntary workforce abandonment. Essentially,
the commission argues that the issue of voluntary abandonment is always a part of a PTD
determination because a claimant is not entitled to PTD compensation if he or she has
voluntarily abandoned the workforce. The commission's argument is misguided.
         {¶ 4} We agree that a claimant is not entitled to PTD compensation if he or she
has voluntarily abandoned the workforce and that this issue potentially can be raised in
connection with any PTD application. However, voluntary abandonment of the workforce
is an affirmative defense. Therefore, the burden of proof falls upon the employer or the
administrator. State ex rel. Black v. Indus. Comm., 10th Dist. No. 10AP-1168, 2012-Ohio-
2589, ¶ 18, rev'd. on other grounds, 137 Ohio St.3d 75, 2013-Ohio-4550. The commission
may also raise this issue sua sponte. State ex rel. Garrison v. Indus. Comm., 10th Dist.
No. 08AP-419, 2009-Ohio-2898, ¶ 46-47. We agree with the magistrate that due process
of law principles require that relator receive notice that the issue of voluntary workforce
abandonment has been raised and relator must be given the opportunity to address that
issue.
         {¶ 5} Here, it is uncontested that no party raised or argued the issue of voluntary
workforce abandonment at the hearing. Nor did the staff hearing officer ("SHO") raise
the issue during the hearing. It appears that the SHO raised this issue for the first time in
the decision denying relator's PTD application. Therefore, relator had no reason to
address this issue at the hearing. We agree with the magistrate that the commission
No. 16AP-534                                                                          3

violated relator's due process rights by denying his PTD application on the basis of
voluntary workforce abandonment without giving relator sufficient notice and an
opportunity to present evidence on that issue.       For this reason, we overrule the
commission's first objection.
       {¶ 6} In its second objection, the commission contends that the magistrate erred
by failing to apply the holding in State ex rel. Roxbury v. Indus. Comm., 138 Ohio St.3d
91, 2014-Ohio-84. Again, we disagree.
       {¶ 7} Roxbury provides guidance regarding what the commission may consider in
deciding whether a claimant has voluntarily abandoned the workforce.          However,
Roxbury is irrelevant to the magistrate's due process analysis. Until relator has the
opportunity to address the issue of voluntary workforce abandonment, Roxbury has no
application. Therefore, we overrule the commission's second objection.
       {¶ 8} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the decision as our own, including the findings of fact and conclusions of law contained
therein. In accordance with the magistrate's decision, we grant a limited writ of
mandamus and order the commission to vacate the November 12, 2015 order of its SHO
and to conduct further proceedings that allow relator the opportunity to rebut the
allegation of voluntary workforce abandonment.
                                Objections overruled; limited writ of mandamus granted.

                           BROWN and SADLER, JJ., concur.
No. 16AP-534                                                                           4

                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Ralph Jenkins,             :

              Relator,                       :

v.                                           :                   No. 16AP-534

Industrial Commission of Ohio               :                (REGULAR CALENDAR)
and
Northwestern Schools,                       :

              Respondents.                   :


                         MAGISTRATE'S DECISION

                                Rendered on April 21, 2017


              Philip J. Fulton Law Office, and Chelsea Fulton Rubin, for
              relator.

              Michael DeWine, Attorney General, and Amanda B. Brown,
              for respondent Industrial Commission of Ohio.


                                    IN MANDAMUS

       {¶ 9} In this original action, relator, Ralph Jenkins, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the
November 12, 2015 order of its staff hearing officer ("SHO") that denies relator's third
application for permanent total disability ("PTD") compensation based on a finding that
relator voluntarily abandoned the workforce, and to enter an order that adjudicates the
application absent a finding of workforce abandonment.
No. 16AP-534                                                                              5

Findings of Fact:
         {¶ 10} 1. On November 12, 2003, relator injured his left shoulder and cervical area
while employed as a janitor for respondent Northwestern Schools, a state-fund employer
under Ohio's workers' compensation laws.
         {¶ 11} 2. The industrial claim (No. 03-461176) is allowed for:
               Left shoulder sprain; cervical sprain; left shoulder contusion;
               left shoulder tendonosis; aggravation of pre-existing
               osteoarthritis of the left shoulder; aggravation of pre-existing
               degenerative disc disease; disc herniation at C5-6 and C6-7.

         {¶ 12} 3. In January 2004, relator underwent surgery to the cervical spine. The
surgery is described as:        "Posterior cervical laminectomy at C5, 6, and 7 with
foraminotomies at C4-C5, C5-C6, and C6-C7 bilaterally."
         {¶ 13} 4. On October 26, 2012, relator filed his first application for PTD
compensation.
         {¶ 14} 5. On January 31, 2013, at the commission's request, relator was examined
by Eugene Lin, M.D. In his four-page narrative report, Dr. Lin opines:
               Review of the medical records shows the claimant was able
               to tolerate work due to the conditions within the scope of this
               claim at a medium physical demand level. Current physical
               examination shows no persistence of any focal motor or
               sensory deficits. There is good range of motion of the left
               shoulder. Recent treatment has been chiropractic treatment
               for self-limited muscle spasms. As such, based on the
               allowed conditions the claimant would be able to continue to
               work in a medium demand category.

         {¶ 15} 6. On February 15, 2013, Dr. Lin completed a Physical Strength Rating
form. On the form, Dr. Lin indicated by his mark that relator is capable of "medium
work."
         {¶ 16} 7. Following an April 10, 2013 hearing, an SHO issued an order denying
relator's first PTD application. For the determination of residual functional capacity,
Ohio Adm.Code 4121-3-34(B)(4), the SHO relied exclusively on the report of Dr. Lin and
his finding that relator is capable of medium work. The SHO's order also considers the
non-medical disability factors. The SHO's order concludes that relator "is capable of
sustained gainful employment."
No. 16AP-534                                                                            6

         {¶ 17} 8. On December 26, 2013, relator filed his second PTD application.
         {¶ 18} 9. On February 10, 2014, at the commission's request, relator was examined
by James J. Sardo, M.D. In his four-page narrative report, Dr. Sardo opines "injured
worker is capable of medium work."
         {¶ 19} 10. On February 10, 2014, Dr. Sardo completed a Physical Strength Rating
form. On the form, Dr. Sardo indicated by his mark that relator is capable of "medium
work."
         {¶ 20} 11. Following an April 1, 2014 hearing, an SHO issued an order denying
relator's second PTD application. For the determination of residual functional capacity,
the SHO relied exclusively on the report of Dr. Sardo and his finding that relator is
capable of medium work. The SHO's order also considers the non-medical disability
factors. The SHO's order of April 1, 2014 concludes:
               Finally, the Staff Hearing Officer notes the Injured Worker
               previously      requested    permanent       total    disability
               compensation and such was denied by order issued
               04/16/2013. There is no evidence since that decision to
               indicate the Injured Worker attempted a return to work or
               initiated a retraining or rehabilitation program in order to
               facilitate a return to the work force. This is a factor against
               the application for permanent total disability compensation.

               Accordingly, finding the Injured Worker physically capable
               of up to medium strength work and noting the Injured
               Worker's education and work experience are vocational
               assets for a return to work as well as the fact that the Injured
               Worker has made no recent attempt to return to the work
               force, the Staff Hearing Officer finds the allowed conditions
               do not render the Injured Worker permanently and totally
               disabled.

         {¶ 21} 12. On June 10, 2015, relator filed his third application for PTD
compensation.
         {¶ 22} 13. On July 27, 2015, at the commission's request, relator was examined by
John W. Cunningham, M.D. In his four-page narrative report, Dr. Cunningham opined:
               In my medical opinion, this individual is capable of
               sedentary physical work activity, provided he is not asked to
               use his arms at or above mid-chest level, and provided he is
               not asked to lift, carry, push, pull, or otherwise move objects
No. 16AP-534                                                                         7

             greater than 5 lbs. with either or both hands above mid-chest
             level.

      {¶ 23} 14. On July 27, 2015, Dr. Cunningham completed a Physical Strength
Rating form. On the form, Dr. Cunningham indicated by his mark that relator is capable
of "sedentary work."
      {¶ 24} 15. On November 12, 2015, relator's third PTD application was heard by an
SHO. The hearing was not recorded.
      {¶ 25} 16. Following the November 12, 2015 hearing, the SHO issued an order
denying the third PTD application based on a finding that relator voluntarily abandoned
the workforce.
      {¶ 26} On the order, the SHO indicates that "Mr. Barnhart" and his client, "Mr.
Jenkins," appeared.    The order also indicates that "Mr. Goins" appeared for the
administrator of the Ohio Bureau of Workers' Compensation ("bureau").          No one
appeared for the employer.
      {¶ 27} Mailed November 14, 2015, the SHO's order of November 12, 2015 explains:
             The Injured Worker is found to have voluntarily abandoned
             his employment. Therefore, the Injured Worker has no
             wages to replace, and he is not entitled to permanent total
             disability compensation.

             The Injured Worker last worked in 2011, when he was 62
             years of age. The Injured Worker testified at hearing that he
             began to receive Social Security Retirement benefits in 2011,
             when he first qualified for these benefits. There is no
             evidence that the Injured Worker ever attempted to return to
             work after 2011.

             The Injured Worker was previously denied permanent total
             disability by the Industrial Commission at hearing on
             04/10/2013. The Hearing Officer in that decision found
             based on the report of Eugene Lin, M.D., the Injured Worker
             related to the allowed claim retained the capacity to perform
             work of a medium nature. The Injured Worker after the
             04/10/2013 order was issued never attempted to return to
             work.

             The Injured Worker was again denied permanent total
             disability by the Commission after a hearing on 04/01/2014.
             The Hearing Officer in that decision relied upon the
No. 16AP-534                                                                 8

           02/10/2014 report from James Sardo, M.D. Dr. Sardo found
           the Injured Worker related to the allowed claim was able to
           perform work at the medium classification. The Injured
           Worker after this decision was issued never attempted to
           return to work.

           Related to the Injured Worker's most recent application for
           Permanent Total Disability, the Injured Worker was
           examined on behalf of the Industrial Commission by John
           Cunningham, M.D. on 07/27/2015. Dr. Cunningham's report
           is on record and is dated 08/05/2015.

           Dr. Cunningham states in this report that the Injured
           Worker told the Doctor he last worked in 2011, the year he
           retired. Dr. Cunningham states further the Injured Worker
           reported to him that his symptoms are worse in the last year
           and that his symptoms have progressed as he has grown
           older.

           Dr. Cunningham does find a significant difference in the
           Injured Worker's condition compared with the prior reports
           from Dr. Lin and Dr. Sardo. Dr. Cunningham states in his
           report that presently the Injured Worker is limited to
           sedentary work related to the allowed claim. Dr.
           Cunningham's findings would be consistent with the Injured
           Worker's reported statements to Dr. Cunningham that he
           has gotten worse in the last year.

           The Injured Worker has on two previous occasions in 2013
           and 2014 been found capable of working related to the
           allowed claim. The Injured Worker after these previous
           findings never made any attempt to rehabilitate himself or
           return to work. The Injured Worker appears to have retired
           for reasons unrelated to the allowed claim and to have
           voluntarily left the work force.

           The Courts have consistently stated that an award of
           permanent total disability is an award of last resort, and that
           an Injured Worker prior to qualifying for this award, where
           he is deemed to have the potential to return to work, must
           make a good faith effort to return to work. The Injured
           Worker has not made any effort to return to work after either
           of the previous denials of his applications for permanent
           total disability.

           The Courts have also stated that an award of permanent total
           is not made simply because an Injured Worker has grown
No. 16AP-534                                                                           9

              older. The Injured Worker's condition, based on the report
              from Dr. Cunningham, does appear to have worsened since
              the last denial of permanent total disability compensation in
              this claim. However, the Injured Worker has never returned
              to work since 2011. The Injured Worker reportedly told Dr.
              Cunningham that he retired in 2011. The Injured Worker
              after previous denials of permanent total disability never
              attempted a return to work. The Injured Worker has
              previously been found capable of working and he has never
              made any attempt to return to work.

              Because the Injured Worker abandoned the workforce, he
              has no wages to replace, and he is not entitled to an award of
              permanent total disability compensation.

       {¶ 28} 17. On November 23, 2015, on form C-86, relator timely moved for the
commission's reconsideration of the SHO's order of November 12, 2015.
       {¶ 29} 18. On the C-86 form, in the space provided for description of the request,
relator stated:
              Now comes claimant and moves the Industrial Commission
              to grant reconsideration on the denial of the permanent total
              disability from the order issued from [sic] by Staff Hearing
              Officer Havener on November 12, 2015. The SHO committed
              a clear mistake of law by adjudicating the issue of voluntary
              abandonment when no argument was raised below by either
              the administrator or by the hearing officer in his questioning
              of the injured worker prior to making a decision. This is a
              clear error of law according to [State ex rel. Stevens v. Indus.
              Comm., 10th Dist. No. 10AP-1147, 2012-Ohio-4408].
              Furthermore, the previous two orders of the Industrial
              Commission on the denial of permanent total disability have
              never raised the issue of voluntary abandonment.
              Consequently, the matter should be considered to be res
              judicata, or at least collaterally estopped.

       {¶ 30} In support of the motion, relator, through counsel, submitted a
memorandum in support of reconsideration and the affidavit of David B. Barnhart, Esq.,
who appeared at the November 12, 2015 hearing for relator.
       {¶ 31} The Barnhart affidavit avers in pertinent part:
              I am an attorney licensed to practice law before the Supreme
              Court of the State of Ohio, and have been so licensed since
              November of 1981.
No. 16AP-534                                                                10

           Since November of 1981, I have practiced exclusively in the
           area of workers' compensation.

           ***

           On November 12, 2015, I traveled to Portsmouth, Ohio to
           appear before Staff Hearing Officer John Havener on the
           claim file of Ralph Jenkins, claim no. 03-461176. The hearing
           commenced at 9:00 a.m. in Portsmouth. During the course
           of the hearing, the employer was not present. The only other
           parties in the room besides the SHO, Mr. Jenkins and me,
           was Mr. Goins, the BWC representative.

           I attach a copy of my notes of the hearing taken on
           November 12, 2015 at 9:00 a.m. outlining the parties that
           were present as well as my notes that voluntary
           abandonment was never argued at the hearing. The reason
           for this is that the administrative representative, Mr. Goins,
           never raised the question of voluntary abandonment. His
           argument was limited to approximately two sentences.
           (1) The hearing officer should rely upon previous two
           denials; and (2) Dr. Cunningham indicated the claimant
           could engage in sedentary work.

           Mr. Havener questioned Mr. Jenkins about his employment
           history. Mr. Jenkins responded to the questions and
           indicated that, "He and his wife worked at a doctor's office
           doing cleaning of the doctor's offices two days a week, for
           one hour each day." Mr. Jenkins indicated his wife did more
           of the heavier work, such as mopping and sweeping, and Mr.
           Jenkins cleaned the offices or performed the trash removal."

           At no time, did Mr. Havener inquire of me or Mr. Jenkins
           about the issue of "voluntary abandonment." Mr. Goins
           never uttered the phrase voluntary abandonment in the
           course of his argument.

           I did not address the issue of voluntary abandonment
           inasmuch as it was not raised by any of the parties at the
           hearing. Mr. Havener did not phrase any question regarding
           the issue of voluntary abandonment. His inquiry was limited
           strictly to what Mr. Jenkins did for the doctor.

           Mr. Jenkins then testified about his difficulties with
           education, the fact that he did graduate from high school at
           age 19, after being held back a number of years, and his
           education being primarily in special education classes. He
No. 16AP-534                                                                                11

               then testified about his other work experience which is that
               of a truck driver.

               At no time were we given the opportunity to address or argue
               the question of voluntary abandonment inasmuch as there
               was never a question raised by the hearing officer.

         {¶ 32} 19. On December 2, 2015, the three-member commission, on a vote of two-
to-one, denied relator's request for reconsideration of the SHO's order of November 12,
2015.
         {¶ 33} 20. On July 22, 2016, relator, Ralph Jenkins, filed this mandamus action.
Conclusions of Law:
         {¶ 34} The SHO's order of November 12, 2015 finds that relator voluntarily
abandoned the workforce and is thus ineligible for PTD compensation. The issue here is
whether that finding violated relator's right to due process of law because allegedly relator
had no opportunity to rebut the finding.
         {¶ 35} Finding that relator's right to due process of law was violated, it is the
magistrate's decision that this court issue a writ of mandamus, as more fully explained
below.
                                Procedural Due Process
         {¶ 36} "Procedural due process includes the right to a reasonable notice of hearing
as well as a reasonable opportunity to be heard." State ex rel. Finley v. Dusty Drilling
Co., Inc., 2 Ohio App.3d 323, 324-25 (10th Dist.1981), citing State ex rel. Allstate Ins. Co.
v. Bowen, 130 Ohio St. 347 (1936).
         {¶ 37} "[T]he right to a reasonable opportunity to be heard includes reasonable
notice of the time, date, location and subject matter of the hearing." (Emphasis sic.)
State ex rel. LTV Steel Co. v. Indus. Comm., 102 Ohio App.3d 100, 103-04 (10th
Dist.1995) citing Finley.
         {¶ 38} Moreover, "procedural due process requirements cannot be satisfied by
implication." State ex rel. Steinbrunner v. Indus. Comm., 10th Dist. No. 05AP-626,
2006-Ohio-3444, ¶ 16, citing Finley.
No. 16AP-534                                                                            12

       {¶ 39} "The due process rights conferred by the United States and Ohio
Constitutions must be recognized and upheld during administrative proceedings such as
those before the commission." Id.
       {¶ 40} In State ex rel. Canter v. Indus. Comm., 28 Ohio St.3d 377 (1986), on
application for reconsideration of the termination of temporary total disability
compensation, the commission ordered the appeal to be heard by its SHOs. The staff
obtained from Dr. Kackley a supplemental report which was dated October 18, 1984
without further examination. Later, the SHOs denied the appeal specifying Dr. Kackley's
reports of February 1, 1983 and October 18, 1984 as the basis for their decision. Albert R.
Canter then filed a mandamus action in this court. This court denied the writ and Canter
appealed as of right to the Supreme Court of Ohio.
       {¶ 41} In Canter, the Supreme Court states:
              Appellant complains that Dr. Kackley's report of October 18,
              1984 "* * * was rendered after the hearing, the * * *
              [appellant] was not given an opportunity to present further
              evidence or to rebut Dr. Kackley's opinion, and any order
              rendered on such an opinion amounts to an ex parte hearing.
              * * *" Appellant contends that the lack of a chance to rebut
              Dr. Kackley's latest report was a denial of due process of law.

              In Bowman Transportation, Inc. v. Arkansas-Best Freight
              System, Inc. (1974), 419 U.S. 281, 288, at fn. 4, the Supreme
              Court stated: "* * * A party is entitled, of course, to know the
              issues on which [the] decision will turn and to be apprised of
              the factual material on which the agency relies for decision
              so that he may rebut it. Indeed, the Due Process Clause
              forbids an agency to use evidence in a way that forecloses an
              opportunity to offer a contrary presentation. Ohio Bell
              Telephone Co. v. Pub. Utilities Comm., 301 U.S. 292 (1937);
              United States v. Abilene & S. R. Co., 265 U.S. 274 (1924).
              * * *." See, also, Goldberg v. Kelly (1970), 397 U.S. 254, 267-
              268. Thus, Dr. Kackley's report of October 18, 1984 could not
              be considered by the Industrial Commission's staff hearing
              officers without contravening appellant's constitutional
              rights.

Id. at 380.

       {¶ 42} Canter has been followed in numerous cases involving workers'
compensation. State ex rel. Chrysler Plastic Prods. Corp. v. Indus. Comm., 39 Ohio
No. 16AP-534                                                                           13

App.3d 15 (10th Dist.1987); State ex rel. Owens-Illinois, Inc. v. Indus. Comm., 61 Ohio
St.3d 456-57 (1991); State ex rel. Didiano v. Beshara, 65 Ohio St.3d 256-57 (1992).


                     Basic Law─PTD─Workforce Abandonment
       {¶ 43} Ohio Adm.Code 4121-3-34 provides the commission's rules for the
adjudication of PTD applications.
       {¶ 44} Thereunder, Ohio Adm.Code 4121-3-34(D) provides guidelines for the
adjudication of PTD applications.
       {¶ 45} Ohio Adm.Code 4121-3-34(D)(1)(d) currently provides:
               If, after hearing, the adjudicator finds that the injured
               worker voluntarily removed himself or herself from the work
               force, the injured worker shall be found not to be
               permanently and totally disabled. If evidence of voluntary
               removal or retirement is brought into issue, the adjudicator
               shall consider evidence that is submitted of the injured
               worker's medical condition at or near the time of
               removal/retirement.

       {¶ 46} Paragraphs two and three of the syllabus of State ex rel. Baker Material
Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994) state:
               An employee who retires prior to becoming permanently and
               totally disabled is precluded from eligibility for permanent
               total disability compensation only if the retirement is
               voluntary and constitutes an abandonment of the entire job
               market.

               An employee who retires subsequent to becoming
               permanently and totally disabled is not precluded from
               eligibility for permanent total disability compensation
               regardless of the nature or extent of the retirement.

                          Burden of Proof─The Quarto Case
       {¶ 47} In State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997), the
employer, Quarto Mining Company, filed a mandamus action challenging the
commission's award of PTD compensation to the claimant, Glen Foreman. Quarto failed
to raise the retirement issue administratively. In effect, Quarto argued before the court
"that the issue raises itself by virtue of being manifest in the record." Id. at 81.
       {¶ 48} In denying the writ, the Supreme Court explained:
No. 16AP-534                                                                            14

              Ordinarily, reviewing courts do not consider questions not
              presented to the court whose judgment is sought to be
              reversed." * * * Nor do appellate courts have to consider an
              error which the complaining party "could have called, but
              did not call, to the trial court's attention at a time when such
              error could have been avoided or corrected by the trial
              court." * * *

              These rules are deeply embedded in a just regard for the fair
              administration of justice. They are designed to afford the
              opposing party a meaningful opportunity to respond to
              issues or errors that may affect or vitiate his or her cause.
              Thus, they do not permit a party to sit idly by until he or she
              loses on one ground only to avail himself or herself of
              another on appeal.

              ***

              The suggestion here is that, since it is claimant's burden to
              prove that his disability is causally related to allowed
              conditions in the claim, it is necessarily claimant's burden to
              prove that nonallowed conditions played no part in his
              decision to retire.

              The argument is misguided. The claimant's burden is to
              persuade the commission that there is a proximate causal
              relationship between his work-connected injuries and
              disability, and to produce medical evidence to this effect.
              * * * The claimant's burden in this regard does not extend so
              far as to require him to raise, and then eliminate, other
              possible causes of his disability. This is not a case in which
              the cause remains unexplained as in slip-and-fall cases.
              Here, the claimant has produced direct medical evidence
              linking his disability with the injuries allowed in the claim.
              This evidence is sufficient to establish a prima facie causal
              connection. The burden should then properly fall upon the
              employer to raise and produce evidence on its claim that
              other circumstances independent of the claimant's allowed
              conditions caused him to abandon the job market.

Id. at 81, 83-84.

                                   The Stevens Case
       {¶ 49} As earlier noted, in his November 23, 2015 motion for reconsideration,
relator, through counsel, cited to this court's decision in State ex rel. Stevens v. Indus.
No. 16AP-534                                                                             15

Comm., 10th Dist. No. 10AP-1147, 2012-Ohio-4408. Accordingly, a review of that case is
appropriate here.
       {¶ 50} Following an unrecorded hearing, an SHO granted PTD compensation to
Sophia Stevens. The administrator of the Ohio Bureau of Workers' Compensation moved
the full commission to reconsider the order because the SHO failed to consider the issue
of voluntary abandonment. The full commission then scheduled a hearing to determine
whether the SHO had made a clear mistake of law. The commission's order stated:
              "Specifically, the Staff Hearing Officer's order failed to
              address the issue of whether the Injured Worker voluntarily
              abandoned the job market, which was raised by the
              Administrator at hearing. The issue of abandonment is an
              affirmative defense that should have been addressed.
              Therefore, the Commission exercises continuing jurisdiction
              * * * in order to correct this error."

(Emphasis sic.) Id. at ¶ 5.

       {¶ 51} The    commission     therefore   considered   the   question   of   voluntary
abandonment and determined that Stevens had not abandoned her employment.
Nevertheless, the commission went on to determine that Stevens was not entitled to PTD.
Id.
       {¶ 52} Stevens' complaint for a writ of mandamus filed in this court alleged "there
is no evidence in the record" showing that the abandonment issue was administratively
raised by the administrator. Id. at ¶ 6.
       {¶ 53} In denying the writ, this court explained:
              To be entitled to the requested extraordinary relief in
              mandamus, relator had to establish a clear legal right to the
              requested relief, a corresponding clear legal duty on the part
              of the commission, and the lack of an adequate remedy in the
              ordinary course of the law. State ex rel. Waters v. Spaeth,
              131 Ohio St.3d 55, 2012-Ohio-69, ¶ 6, 960 N.E.2d 452. The
              burden on relator is a heavy one. As the Supreme Court of
              Ohio recently explained, the standard of proof in mandamus
              cases is proof by clear and convincing evidence. State ex rel.
              Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 55,
              958 N.E.2d 1235. In such a case, a relator must submit facts
              and produce proof that is plain, clear, and convincing before
              we may grant a writ. State ex rel. Pressley v. Indus. Comm.,
              11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967). The elements
No. 16AP-534                                                                 16

           required for mandamus relief reflect this heightened
           standard in two ways—by requiring "a 'clear' legal right to
           the requested extraordinary relief and a corresponding 'clear'
           legal duty on the part of the respondents to provide it."
           Doner at ¶ 56.

           Relator has not met the heightened burden required for
           mandamus relief. She presented no evidence, let alone clear
           and convincing evidence, to prove a clear legal right or duty
           arising from the commission's alleged failure to raise the
           issue of voluntary abandonment before the SHO. Instead,
           relator relied on the absence of evidence in the stipulated
           record before us to argue there was no evidence to support
           the commission's factual finding that the issue was raised,
           thus shifting the burden to the respondents to prove that the
           issue was raised and, therefore, that relator has no right to
           the relief.

           This court addressed a similar issue in State ex rel. Ormet
           Corp. v. Indus. Comm., 10th Dist. No. 87AP-1187, 1989 Ohio
           App. LEXIS 3773 (Sept. 26, 1989), in which the relator
           alleged that its due process rights were violated when the
           commission denied it an opportunity to rebut a medical
           report. The relator did not file a transcript of the hearing at
           which the alleged error occurred. In denying a writ of
           mandamus, this court stated:

                  Relator is correct that the Industrial
                  Commission claim file does not indicate exactly
                  what transpired at the August 25, 1987 hearing.
                  But in so contending, relator forgets who has
                  the burden of proof in an original action in
                  mandamus to show both that the Industrial
                  Commission abused its discretion and that
                  there is a clear legal right to the requested
                  relief. That burden is upon relator. If there be a
                  deficiency in the evidence, it is because the
                  relator failed in its burden of proof and its
                  burden of presenting evidence.

           This court went on to state that, "relator could have
           requested an admission as to what transpired in this regard,
           filed an affidavit with respect to what transpired, or taken a
           deposition of someone who was present as to what
           transpired at the hearing." The relator's failure to take these
           actions, however, left a record that was silent on the critical
           question of what transpired at the hearing. "When
No. 16AP-534                                                                         17

                 confronted with a silent record," this court said, "a reviewing
                 court will ordinarily presume that the proceedings were
                 conducted in a proper manner rather than in an improper
                 manner. Thus, we will not presume that the Industrial
                 Commission affirmatively denied relator an opportunity to
                 present further evidence * * *."

                 Similarly here, while our record reflects a finding by the
                 commission, after a hearing, that the issue of voluntary
                 abandonment was raised before the SHO, our record does
                 not indicate exactly what transpired before the SHO or the
                 full commission because we have no transcript of either
                 hearing. Nor does our record reflect any steps taken by
                 relator to complete the record in any other ways. A silent
                 record does not change the applicable burdens under the
                 facts of this case, however. The relator, not the respondent,
                 bears the burden to prove entitlement to mandamus relief,
                 and a relator may not avoid that burden simply by noting the
                 absence of a transcript. Just as this court concluded in
                 Ormet, we conclude here that, if there is a deficiency in the
                 record, it is because relator failed in her burden of proof.
                 Having failed to meet her burden, she is not entitled to relief
                 in mandamus on the question of continuing jurisdiction, and
                 we sustain the commission's objection to the magistrate's
                 decision.

Id. at ¶ 7-11.

                      The Commission's Authority to Sua Sponte
                   Raise an Issue in Adjudicating a PTD Application
        {¶ 54} In State ex rel. Garrison v. Indus. Comm., 10th Dist. No. 08AP-419, 2009-
Ohio-2898, this court, speaking through its magistrate, stated:
                 Nothing in the Quarto Mining case prohibits the commission
                 from sua sponte raising the defense of voluntary
                 abandonment or removal from the workforce. Nothing in the
                 Quarto Mining case prohibited the SHO from questioning
                 relator regarding the circumstances of his October 30, 2003
                 job departure and on that basis entering a determination on
                 the issue.

                 While the Quarto Mining court placed the burden on the
                 employer to raise and produce evidence on the retirement
                 issue, it did not prohibit the commission itself from
                 undertaking the burden of raising the issue and producing
                 evidence by questioning the PTD claimant.
No. 16AP-534                                                                            18


Id. at ¶ 46-47.

       {¶ 55} The magistrate notes that this court adopted the magistrate's decision as its
own, including the findings of fact and conclusions of law. However, in its opinion, this
court did not directly discuss the commission's sua sponte authority.
       {¶ 56} Nevertheless, Garrison is authority for the proposition that the commission
has authority to sua sponte raise an affirmative defense to a PTD application.
                                        Analysis
       {¶ 57} Here, as in Stevens, we have an unrecorded hearing at issue.
       {¶ 58} The SHO's order of November 12, 2015 denies relator's third PTD
application based solely on a finding that relator voluntarily abandoned the workforce.
On motion for reconsideration, relator claimed a deprivation of due process of law
because the bureau's representative at the hearing, Mr. Goins, did not raise the issue of
workforce abandonment, nor did the SHO mention workforce abandonment at the
hearing. According to relator, because the issue was not raised at the hearing, he had no
reason to endeavor to rebut the issue at the hearing.
       {¶ 59} According to relator, because the SHO sua sponte addressed workforce
abandonment after the hearing and the commission refused to grant reconsideration,
relator was deprived of due process of law.
       {¶ 60} As the Stevens case instructs, relator has the burden of proof in this
mandamus action to show by clear and convincing evidence his entitlement to the writ.
Stevens instructs as to how an unrecorded hearing can be remedied by a party who bears
the burden of proof. That is, relator can file an affidavit as to what transpired at the
hearing.
       {¶ 61} Here, relator's counsel did file an affidavit averring that workforce
abandonment was not raised by the bureau at the hearing, and that the SHO failed to
indicate at the hearing that workforce abandonment was an issue to be addressed by the
SHO in the order to be issued.
       {¶ 62} Significantly, the bureau could have offered an opposing affidavit but did
not do so.
No. 16AP-534                                                                           19

      {¶ 63} Under the circumstances, the magistrate finds that relator has met his
burden in this mandamus action showing that relator was deprived of due process of law
by the absence of any meaningful notice that workforce abandonment would be sua
sponte addressed in the order adjudicating the PTD application.
      {¶ 64} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the November 12, 2015 order of its SHO
that denies the PTD application, and to conduct further proceedings that allow relator the
opportunity to rebut the allegation of voluntary workforce abandonment.


                                             /S/ MAGISTRATE
                                             KENNETH W. MACKE
                             NOTICE TO THE PARTIES

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