[Cite as State ex rel. Schumacher v. Auto Sys. Ctrs. Inc., 2017-Ohio-5523.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Paul H. Schumacher,                   :

                 Relator,                               :

v.                                                      :                        No. 16AP-535

Auto Systems Centers Inc. and                           :                     (REGULAR CALENDAR)
The Industrial Commission of Ohio,
                                                        :
                 Respondents.
                                                        :



                                            D E C I S I O N

                                       Rendered on June 27, 2017


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

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


                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Paul H. Schumacher, commenced this original action in mandamus
seeking an order compelling respondent, Industrial Commission of Ohio ("commission"),
to vacate its order that denied his application for temporary total disability ("TTD")
compensation, and to enter an order granting relator said compensation.
        {¶ 2} Pursuant to Civ.R. 53 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 Dr.
Brue's report, coupled with relator's testimony, is some evidence that relator accepted
No. 16AP-535                                                                              2

work within his restrictions but was subsequently terminated for reasons unrelated to the
allowed conditions in his claim. Therefore, the commission did not abuse its discretion
when it denied relator's request for TTD compensation. Accordingly, the magistrate has
recommended that we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed an objection to the magistrate's decision. Relator argues
that the evidence is insufficient to support the commission's decision. We disagree.
       {¶ 4} Dr. Brue's report indicates that relator's level of disability did not preclude
him from work within his capabilities. This conclusion is also supported by relator's
testimony that he worked at a pizza shop, a job he lost because he missed his shift.
Relator presented no evidence that he lost his pizza job for reasons related to his allowed
conditions. The commission's order states the evidence it relied on and provides a brief
explanation for why relator is not entitled to TTD compensation. Because some evidence
supports the commission's order, the commission did not abuse its discretion when it
denied relator TTD compensation. For these reasons, we overrule relator's objection.
       {¶ 5} 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 magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                          Objection overruled; writ of mandamus denied.

                          DORRIAN and BRUNNER, JJ., concur.
No. 16AP-535                                                                            3

                                        APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel. Paul H. Schumacher,       :

             Relator,                       :

v.                                          :                    No. 16AP-535

Auto Systems Centers Inc.                   :               (REGULAR CALENDAR)
and
The Industrial Commission of Ohio,          :

             Respondents.                   :



                        MAGISTRATE'S DECISION

                             Rendered on January 25, 2017



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

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


                                     IN MANDAMUS

      {¶ 6} Relator, Paul Schumacher, 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 his application for temporary total
disability ("TTD") compensation, and ordering the commission to find that he is entitled
to that compensation.
No. 16AP-535                                                                              4

Findings of Fact:
       {¶ 7} 1. Relator sustained a work-related injury on July 25, 2011 when he fell
approximately 15 feet. Relator's workers' compensation claim was originally allowed for
the following conditions:
              Fracture sacrum/coccyx-closed, right; subluxation sacroiliac
              joint, left; contusion of elbow, right, contusion of chest wall;
              contusion of knee, right; contusion of abdominal wall;
              abrasion right forearm; abrasion right elbow; contusion
              genital organs; symphysis pubis separation; fracture anterior
              pubis, right; bladder collapse.

       {¶ 8} 2. Following his injury, relator's employer paid him salary continuation in
lieu of TTD compensation.
       {¶ 9} 3. In December 2011, relator signed an agreement for vocational
rehabilitation services and began receiving living maintenance benefits in March 2012.
       {¶ 10} 4. At some point in 2012, relator stopped rehabilitation services to help care
for his wife who was ill.
       {¶ 11} 5. By order mailed November 28, 2014, relator's workers' compensation
claim was additionally allowed for the following conditions:
              Lumbar disc protrusion                           L4-L5
              Sub agg pre-ex lumbar facet arthropathy          L4-L5
              Sub agg pre-ex lumbar facet arthropathy          L5-S1

       {¶ 12} 6. In December 2014, relator took a job at Jet's Pizza. That job ended in
February 2015 when he was terminated for missing a shift.
       {¶ 13} 7. In July 2015, relator requested TTD compensation based on the newly
allowed conditions as follows:
              The injured worker requests [to] be paid temporary total
              disability compensation from February 13, 2014 through the
              present and to continue upon submission of medical proof,
              based upon the newly allowed lumbar conditions in this
              claim; note that the claimant is not requesting TTD for the
              closed period of December 31, 2014 through February 20,
              2015, during which time he was engaged in a failed return to
              work attempt.

       {¶ 14} 8. The start date coincides with relator's first examination by Mitchell E.
Simmons, M.D.
No. 16AP-535                                                                        5

        {¶ 15} 9. James D. Brue, M.D., provided a physician's review dated August 2,
2015.    Dr. Brue identified the allowed conditions in relator's claim, identified and
discussed the medical records which he reviewed, and opined that the evidence did not
support the payment of TTD compensation for the following reasons:
              This is a gentleman who fell through the ceiling and suffered
              injuries as allowed. By late 2012 the pelvic fractures had
              resolved and he had work restrictions. For personal reasons
              he did not return to work. He [had] been treated for low back
              pain and had responded to sacroiliac joint injections but still
              had complaints of pain ranging 2-6/10 with tenderness
              palpation of lumbar region. Injured worker did not seek
              treatment for 14 months again for personal reasons. Record
              indicated that he states [t]his was to stay home and take care
              of his wife until she was placed in a nursing home. It should
              be noted therefore he was physically able of taking care of [a]
              significantly impaired spouse. He was currently living in a
              house by himself so he was able to manage his activities of
              daily living and was able to transport himself in his own
              vehicle. Objective findings on 02/13/14 were not
              substantially different than those [that] had been previously
              documented in October 2012. Treatment after 02/13/14
              documented no significant change in his medical conditions.
              On 12/31/14 record indicates that he was able to work in a
              pizza shop and worked there to 02/20/15. There is no
              indication as to why his employment stopped. The record
              clearly indicates that this was a time in which he was doing
              "great", "wonderful" and "fantastic" only 8 days before he
              stopped working. Therefore, clearly his work injury and the
              allowed conditions was not the reason why he was no longer
              employed. He was also able to be employed prior to receiving
              any treatment for the disc protrusions and facet arthropathy.
              This does not support that he was totally disabled beginning
              on 02/13/14 as the clinical examination before his
              employment in the pizza shop was unchanged and was better
              when he ceased working. Subsequently his examinations
              were essentially unchanged and there is no support for
              period temporary total disability. Simply allowing additional
              conditions does not automatically mean that somebody has a
              change in functional capacities. Record indicates his physical
              abilities had not changed on or before 02/13/14. Therefore,
              there is insufficient evidence to support a new period of
              temporary total disability that begins on that date. Clearly
              the injured worker was able to work with restrictions as
              documented by his temporary employment. Cessation of
No. 16AP-535                                                                          6

              employment was clearly not due to the allowed conditions or
              his physical capacities.

       {¶ 16} 10. Relator's application for TTD compensation was heard before a district
hearing officer ("DHO") on August 26, 2015. The DHO relied on the report of Dr. Brue
and denied relator's request, stating:
              The Injured Worker's C-86 Motion, filed 07/16/2015, is
              denied.

              The Injured Worker's motion requesting temporary total
              disability compensation for the periods of 02/13/2014
              through 12/30/2014 and 02/21/2015 through 08/26/2015 is
              denied.

              The District Hearing Officer finds that the Injured Worker
              has failed to meet his burden of proof in establishing that the
              allowed conditions rendered him temporarily and totally
              disabled for the requested periods based upon the report of
              James Brue, M.D., dated 08/02/2015.

              By way of history, the Injured Worker did not treat in this
              claim between 10/23/2012 and 02/13/2014. Further, the
              Injured Worker worked delivering pizzas from 12/31/2014
              through 02/20/2015, at which time he was discharged for
              reasons unrelated to the allowed conditions in this claim.
              Specifically, the Injured Worker testified at hearing that he
              was terminated from his pizza delivery job because he
              missed a shift at work.

              All evidence on file was reviewed.

       {¶ 17} 11. Relator's appeal was heard before a staff hearing officer ("SHO") on
October 7, 2015. The SHO affirmed the prior DHO order and denied the requested period
of TTD compensation, stating:
              The Staff Hearing Officer notes that the Injured Worker's
              Motion requests temporary total disability compensation for
              the periods of 02/13/2014 through 12/30/2014 and
              02/21/2015 through 08/26/2015.

              Staff Hearing Officer notes, by way of history, that the
              Injured Worker did not treat in this claim between
              10/23/2012 and 02/13/2014. Staff Hearing Officer finds that
              the Injured Worker worked delivering pizzas from
              12/31/2014 through 02/20/2015. Staff Hearing Officer finds
No. 16AP-535                                                                                7

              at that time the Injured Worker was discharged for reasons
              unrelated to the allowed conditions in the claim. Staff
              Hearing Officer finds that the Injured Worker testified at the
              hearing that he was terminated from his pizza delivering job
              because he missed a shift at work.

              The Staff Hearing Officer finds the Injured Worker did not
              establish by a preponderance of the evidence that the
              allowed conditions in the claim rendered him temporarily
              and totally disabled for the requested periods of 02/13/2014
              through 12/30/2014 and 02/21/2015 through 08/26/2015.

              Therefore temporary total disability compensation is denied
              for the periods of 02/13/2014 through 12/30/2014 and
              02/21/2015 through 08/26/2015.

              This order is based on the report of James Brue, M.D., dated
              08/02/2015.

       {¶ 18} 12. Relator's appeal was refused by order of the commission mailed
October 30, 2015.
       {¶ 19} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 20} 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).
       {¶ 21} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
No. 16AP-535                                                                              8

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).
       {¶ 22} 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 maximum medical improvement ("MMI"). See R.C. 4123.56(A); State ex rel.
Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
       {¶ 23} It is undisputed that TTD compensation awarded pursuant to R.C. 4123.56
has been defined as compensation for wages lost when an injured worker's injury presents
a return to the former position of employment. There can be no lost wages nor 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.
       {¶ 24} In making his argument, relator focuses on the following facts which, in his
opinion, establish his entitlement to an award of TTD compensation: (1) none of his
allowed conditions were ever found to have reached MMI; (2) his job with Jet's Pizza
began after the initial period for which he seeks TTD compensation, does not include the
time he worked at Jet's Pizza, and includes the time after he left Jet's Pizza; and (3) the
newly allowed conditions represent a change in circumstances warranting the payment of
compensation.
       {¶ 25} In arguing that it did not abuse its discretion by denying the requested
period of compensation, the commission relies on the following: (1) in his review of
relator's medical evidence, Dr. Brue noted that the medical evidence from February 2014,
when relator first treated with Dr. Simmons, is not substantially different from the
medical evidence in the record from October 2012 and no significant change was noted
after February 2014; (2) relator did not treat for the newly allowed conditions before he
took the job with Jet's Pizza; and (3) relator testified that he was terminated from Jet's
No. 16AP-535                                                                              9

Pizza when he missed a shift and not because the allowed conditions rendered him
incapable of continuing his employment.
       {¶ 26} Relator is correct to assert that none of his conditions were ever found to
have reached MMI. Following his injury, relator was unable to return to his former
position of employment and his employer paid him wage continuation in lieu of TTD
compensation. In December 2014, relator took a light-duty job with Jet's Pizza. Relator
worked at Jet's Pizza until February 20, 2015 when he missed a shift at work and was
terminated.
       {¶ 27} Part of relator's argument appears to stem from a memorandum from his
attorney prepared after the SHO denied the requested period of TTD compensation. In
that memorandum, counsel indicated that relator "testified that the reason he lost a light
duty job was that he fell asleep due to the side effects of the prescription medications he
was receiving in the claim and accordingly was terminated due to this new employer's
zero tolerance policy." As such, relator asserts now that his termination was caused by the
allowed conditions in his claim.
       {¶ 28} First, there is no transcript from the hearing before the SHO so, aside from
the statement in the SHO order indicating that relator "testified at the hearing that he was
terminated from his pizza delivering job because he missed a shift at work," there is no
way to know the substance of relator's testimony.        Second, this memorandum was
presented to the commission as part of relator's appeal from the SHO order. As such, to
the extent that relator maintains that this is some evidence to support his argument that
he ceased his pizza job due to his allowed injuries, this piece of evidence was not before
the SHO when relator's TTD compensation was denied.
       {¶ 29} To the extent that relator argues that he presented medical evidence
showing a change in his circumstances resulting in the allowance of new conditions and
argues that, at a minimum, he should be entitled to an award of TTD compensation for
the period preceding his job with Jet's Pizza, the report of Dr. Brue constitutes some
evidence to the contrary. Specifically, after reviewing the medical evidence, Dr. Brue
noted that:
              [O]bjective findings on 02/13/14 were not substantially
              different than those had been previously documented in
              October 2012. Treatment after 02/13/14 documented no
No. 16AP-535                                                                          10

              significant change in his medical conditions. On 12/31/14
              record indicates that he was able to work in a pizza shop and
              worked there to 02/20/15. There is no indication as to why
              his employment stopped. The record clearly indicates that
              this was a time in which he was doing "great", "wonderful"
              and "fantastic" only 8 days before he stopped working.
              Therefore, clearly his work injury and the allowed conditions
              was not the reason why he was no longer employed.

      {¶ 30} Relator cites to this court's decision in State ex rel. German v. Provider
Servs. Holdings, LLC, 10th Dist. No. 13AP-149, 2014-Ohio-3336, and asserts that an
injured worker's voluntary abandonment of a subsequent light-duty job is only relevant
after the commission has correctly determined that the injured worker voluntarily
abandoned their employment with the employer of record. In making this argument,
relator again emphasizes that he was never released to return to his former position of
employment.
      {¶ 31} The magistrate finds that relator is misinterpreting this court's decision.
Dana German sustained a work-related injury while employed as a dietary cook/aide at a
nursing home owned and operated by Provider
Services Holdings, LLC ("PSH"). Following her injury, German returned to work in a
light-duty capacity. German left PSH because she was getting married and moving.
      {¶ 32} Later, German found employment with General Aluminum ("General").
Although German testified that she left the job with General due to her injury, there was
evidence in the record that she was terminated.
      {¶ 33} Ultimately, German's request for TTD compensation was denied and she
filed a mandamus action in this court. German argued that the commission abused its
discretion in determining that she voluntarily abandoned her employment with PSH and
also with General. In discussing her departure from PSH, the magistrate noted:
              To begin, it can be noted that relator's presumed inability to
              perform all of the duties of her former position of
              employment at the time she resigned her employment with
              PSH did not bar a commission finding that she voluntarily
              abandoned her employment with PSH. That is to say, a
              commission finding of a voluntary abandonment was not
              precluded by the fact that relator was working in a light-duty
              capacity at the time of her resignation and was thus
              presumed to be unable to perform all the duties of her
No. 16AP-535                                                                            11

                former position of employment. State ex rel. Adkins v. Indus.
                Comm., 10th Dist. No. 07AP-975, 2008-Ohio-4260; State ex
                rel. Apostolic Christian Home, Inc. v. King, 10th Dist. No.
                08AP-1078, 2009-Ohio-5670.

                In finding that relator's departure from her employment at
                PSH was not injury induced and therefore voluntary, the
                SHO relied in part upon a finding that "[t]here is no
                contemporaneous evidence from a physician that she left the
                job due to physical difficulties stemming from the allowed
                conditions." Citing this court's decision in State ex rel. Mid-
                Ohio Wood Prods., Inc. v. Indus. Comm., 10th Dist. No.
                07AP-478, 2008-Ohio-2453, relator contends that the
                commission abused its discretion by relying upon the lack of
                contemporaneous medical evidence to support the finding
                that the departure from employment at PSH was not injury
                induced. As relator puts it, the commission "can rely solely
                upon the injured worker's testimony of his physical
                condition." (Relator's brief, 18.) Put another way, relator
                posits "[t]here is no requirement of objective medical
                evidence corroborating an injured worker's testimony
                regarding why he left his employment." (Relator's brief, 18.)
                Put yet another way, relator argues that the commission
                abused its discretion by requiring that she "produce evidence
                that she was advised by her doctor to leave her employment."
                (Relator's brief, 19.)

                Relator's reliance upon Mid-Ohio is misplaced and her
                arguments lack merit.

Id. at 29-30.

       {¶ 34} As above indicated, German was unable to return to her former position of
employment and was performing light-duty work. Similarly, although not for the same
employer, relator herein was performing light-duty work. Neither German nor relator
were able to return to their former positions of employment. To the extent that relator
argues there is a distinction in performing light-duty work for the employer of record and
performing light-duty work for another employer, there is no such distinction. TTD
compensation is designed to compensate an injured worker for loss of wages caused by
work-related injuries. Here, there was some evidence that relator's departure from Jet's
Pizza was not related to the allowed conditions in his claim. That is some evidence upon
which the commission could rely to deny relator's request for a writ of mandamus.
No. 16AP-535                                                                            12

       {¶ 35} Furthermore, to the extent that Dr. Brue's report indicates that relator's
symptoms remained relatively stable between 2012 and 2014, relator's argument that
there is no evidence in the record to support the commission's determination that he is
not entitled to TTD compensation for the period preceding his job at Jet's Pizza fails.
Relator ceased rehabilitation services to care for his wife. There is no evidence from that
time to indicate he could not perform the light-duty job he began with Jet's Pizza in 2014.
The medical evidence shows a relatively stable condition.
       {¶ 36} Lastly, relator argues that the commission must first find that he was
capable of returning to his former position of employment before termination from a
light-duty job can disqualify him from receiving TTD compensation. This is not accurate.
Many claimants cannot return from their former position of employment. If they take
work within their restrictions and later are incapable of working due to the allowed
conditions, they are eligible to receive TTD compensation. Likewise, if they take work
within their restrictions and are terminated for reasons unrelated to the allowed
conditions, they are not eligible to receive TTD compensation.
       {¶ 37} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his request for
TTD compensation, and this court should deny his 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).
