[Cite as State ex rel. Sheets v. Indus. Comm., 2017-Ohio-1169.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Cynthia D. Sheets,                        :

                 Relator,                               :
                                                                      No. 16AP-22
v.                                                      :
                                                                  (REGULAR CALENDAR)
Industrial Commission of Ohio et al.,                   :

                 Respondents.                           :




                                          D E C I S I O N

                                      Rendered on March 30, 2017


                 On brief: Philip J. Fulton Law Office, and Chelsea Fulton
                 Rubin; Barry A. Trattner, for relator. Argued: Chelsea
                 Fulton Rubin.

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

                 On brief: Barno Law, LLC, John C. Barno, Zeboney N.
                 Barranada, and Jamison S. Speidel, for respondent Cellco
                 Partnership. Argued: John C. Barno.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Cynthia D. Sheets ("claimant"), has filed this original action
requesting that this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate its order that denied her temporary total
disability ("TTD") compensation and to enter an order granting said compensation.
No. 16AP-22                                                                             2


       {¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, and recommended
that this court deny claimant's request for a writ of mandamus. Claimant has filed
objections to the magistrate's decision.
       {¶ 3} Claimant argues in her first objection that the magistrate erred when she
did not apply State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916
("Gross II") to the instant case and created new law. Claimant contends that Gross II
stands for the proposition that the voluntary abandonment doctrine cannot be applied to
pre-injury conduct or conduct contemporaneous with the injury, and this court found so
in State ex rel. Ohio State Univ. Cancer Research Hosp. v. Indus. Comm., 10th Dist. No.
09AP-1027, 2010-Ohio-3839, and State ex rel. Ohio Welded Blank v. Indus. Comm., 10th
Dist. No. 08AP-772, 2009-Ohio-4646, where we concluded that a claimant can abandon a
former position of employment only if the claimant has the physical capacity for
employment at the time of abandonment. Here, claimant points out, she was temporarily
and totally disabled at the time of her termination and was unable to return to her former
position at the time of termination. She also contests the commission's finding that Gross
II was inapplicable because the conduct leading to her termination was not related to the
allowed injury.
       {¶ 4} We disagree with claimant's arguments. We find Gross II distinguishable
from the present case. In Gross II, the Supreme Court of Ohio found that a pre-injury
infraction undetected until after the injury is not grounds for concluding a claimant
voluntarily abandoned his/her employment. Here, claimant's pre-injury infraction was
discovered prior to her injury. Not only was the pre-injury code of conduct violation
discovered prior to the injury in the present case, but the decision to terminate claimant
for such violation was determined prior to the injury.
       {¶ 5} Furthermore, in Gross II, the employee was terminated based on the
conduct that caused the injury. The court concluded that if the employee's departure from
the workplace was causally related to the injury, it does not preclude the employee's
eligibility for TTD compensation. In the present case, claimant was not terminated based
on the conduct that caused the injury. Claimant's conduct that led to her termination
No. 16AP-22                                                                              3


occurred prior to her termination. Thus, claimant's departure from the workplace was not
causally related to the injury.
       {¶ 6} One concern regarding termination for pre-injury conduct is apparent. The
fear is that an employer may use pre-injury conduct as a pretext for terminating an
employee who has been subsequently injured. The circumstances in the present case,
however, eliminate that concern, as noted by the magistrate. Here, the paperwork to
terminate claimant had already been signed and approved (on a Thursday and Friday)
several days before claimant was injured (on a Monday). The employer, Cellco
Partnership, respondent, had already decided to terminate claimant at the time of the
injury, and there is nothing in the record to suggest the termination was pre-textual.
       {¶ 7} Despite claimant's argument to the contrary, the magistrate's finding that
"[n]othing in the court's decision in Gross II provides that pre-injury conduct can never
be used to defeat payment of TTD compensation" is correct. (Appended Mag. Decision at
¶ 47.) The court in Gross II stated, "[t]he [voluntary-abandonment] doctrine has never
been applied to preinjury conduct or conduct contemporaneous with the injury." Id. at
¶ 19. Thus, the Supreme Court in Gross II never indicated that the voluntary-
abandonment doctrine can never be applied to pre-injury conduct, and it did not address
circumstances like those in the present case, in which the decision to terminate had
already been made prior to the workplace injury.
       {¶ 8} The magistrate's decision is consistent with one of the main principles set
forth in Gross II: "To be eligible for TTD compensation, 'the claimant must show not only
that he or she lacks the medical capability of returning to the former position of
employment but that a cause-and-effect relationship exists between the industrial injury
and an actual loss of earnings. In other words, it must appear that, but for the industrial
injury, the claimant would be gainfully employed.' " Id. at ¶ 15, quoting State ex rel.
McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, ¶ 35. In the
present case, because the unique circumstance that the decision to terminate claimant
had already been made prior to the industrial injury, we can be certain that claimant
would not have continued to be gainfully employed even if she had not been injured. In
other words, there was no cause-and-effect relationship between her injury and her loss of
No. 16AP-22                                                                             4


earnings; instead, there was a direct cause-and-effect relationship between claimant's
misconduct and her loss of earnings.
       {¶ 9} As the court summed up in Gross II, "[t]he distinctions between voluntary
and involuntary departure are complicated and fact-intensive." Id. at ¶ 23. An underlying
principle, however, is that if an employee's departure from the workplace " 'is causally
related to his injury,' " it is not voluntary and should not preclude the employee's
eligibility for TTD compensation. Id., quoting State ex rel. Rockwell Internatl. v. Indus.
Comm., 40 Ohio St.3d 44, 46 (1988); McCoy at ¶ 19. To be sure, the circumstances in the
present case are unique from those cases relied on by claimant. In none of those cases had
the employer already decided and completed administrative paperwork approving
termination of the employee immediately prior to the industrial injury. In such a case,
claimant's departure from the workplace was not causally related to her injury and was
voluntary and, thus, precluded her from eligibility for TTD compensation. For these
reasons, claimant's first objection is overruled.
       {¶ 10} Claimant argues in her second objection that the commission had no basis
to exercise continuing jurisdiction. Although before the commission the employer alleged
the staff hearing officer ("SHO") committed a clear mistake of law by following Gross II
and finding claimant was entitled to TTD compensation, claimant contends the SHO did
not commit a mistake of law by adhering to the Supreme Court precedent in Gross II. We
first note that claimant failed to raise this issue in her brief before the magistrate.
Nevertheless, given our finding above that the commission did not err when it found
Gross II did not apply here to entitle claimant to TTD compensation, claimant's argument
under her second objection is overruled. The commission properly exercised jurisdiction
based on a clear mistake of law, which is one of the five possible bases for exercising
continuing jurisdiction pursuant to State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d
454 (1998). Therefore, we overrule claimant's second objection.
       {¶ 11} Claimant argues in her third objection that the commission and magistrate
erred when they created policy, which is not their role. Claimant contends the commission
and magistrate did not have the authority to ignore the Supreme Court's decision in Gross
II and create new law and policy. However, again, given our above finding that Gross II is
distinguishable and not controlling here, we cannot conclude that the commission and
No. 16AP-22                                                                              5


magistrate ignored Gross II. Instead, the commission and magistrate reviewed the facts
of the case and found the legal precedent in Gross II inapplicable to the present
circumstances. Therefore, we overrule claimant's third objection.
       {¶ 12} Claimant argues in her fourth objection that the commission, and not the
magistrate, is the arbiter of the credibility and weight to be given to the evidence.
Specifically, claimant contends the magistrate made findings of fact that were not found
by the commission in its order. Claimant cites two specific examples. Claimant first cites
the magistrate's findings that her termination was approved by Michelle Worthington, the
associate director, and the human resource consultant on Thursday, October 3, 2013; the
termination was approved by the director, human resource associate director, and human
resource director, on Friday, October 4, 2013; and it was decided that claimant would be
terminated Monday, October 7, 2013.
       {¶ 13} Claimant also cites the magistrate's findings that on Monday, October 7,
2013, before the manager arrived to terminate her, claimant tripped, injured herself, and
returned to work with restrictions, and there was no evidence that claimant's manager or
claimant herself had any reason to believe that she would ultimately file a workers'
compensation claim or that her injuries would be as extensive as they ultimately became.
Claimant contends these findings of fact were nowhere in the commission's order and did
not play any role in the decision of the district hearing officer, SHO, or commission.
       {¶ 14} However, we do not find the magistrate's above findings infringed on the
commission's power as ultimate arbiter of credibility or its power to evaluate evidence and
determine the weight to be given such evidence. In order for this court to issue a writ of
mandamus as a remedy from a determination of the commission, a 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 the commission
abused its discretion by entering an order that 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
No. 16AP-22                                                                             6


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).
       {¶ 15} Here, although the commission did not specifically set forth the underlying
facts it relied on in arriving at its ultimate determination, the evidence the magistrate
cited was the underlying factual predicate for the commission's determination. The
commission found:
              [I]t is reasons other than the allowed conditions in the claim
              preventing the Injured Worker from working. The evidence
              presented at hearing and contained in the record indicates the
              Injured Worker was working in a modified light-duty position
              at the time she was terminated from her employment. The
              Commission finds the reason the Injured Worker was not
              working over the period for which compensation is requested
              has nothing to do with the allowed conditions in the claim.
              The Injured Worker is not working because she was
              terminated from her job for violating the Employer's Code of
              Conduct Policy.

              ***

              In this case, unlike Gross II, the Injured Worker's termination
              was completely unrelated to her industrial injury on
              10/07/2013, when she tripped and fell to the floor. The only
              reason the Injured Worker was terminated was because she
              allowed an unauthorized person access to a client's private
              information in violation of the Code of Conduct Policy. Since
              the conduct leading to the Injured Worker's termination in
              this case is not related to the allowed injury, the Commission
              finds the Jones case is applicable, and Gross II is not.

(Stip. of Evidence at 202.)

       {¶ 16} The evidence cited by the magistrate regarding the Thursday, October 3,
and Friday, October 4, 2013 approval of termination by the employer's administration is
factual evidence included in the record. This evidence supports the commission's
conclusion that the reason claimant was not working had nothing to do with the allowed
conditions in the claim; claimant was not working because she was terminated from her
job for violating the employer's code of conduct policy. Claimant was required to show
that the commission's order was not supported by any evidence in the record, and the
No. 16AP-22                                                                              7


magistrate's citation to the above factual evidence demonstrated the order was supported
by evidence in the record. The facts cited by the magistrate provided some evidence from
the record to support the commission's findings.
       {¶ 17} As for the magistrate's reliance on the fact that there was no evidence that
claimant's manager or claimant herself had any reason to believe that she would
ultimately file a workers' compensation claim or that her injuries would be as extensive as
they ultimately became, these facts further buttress the commission's findings. These facts
support the commission's conclusion that claimant was not terminated due to her allowed
conditions but because of her violation of the employer's code of conduct. That there was
no evidence to believe claimant would file a claim or that her injuries were as serious as
they turned out to be tends to demonstrate that her termination was not due to pretext
but truly based on her work-policy violation. For these reasons, we find the magistrate
properly relied on the evidence in the record to provide some evidence to support the
commission's conclusions. Therefore, we overrule claimant's fourth objection.
       {¶ 18} After an examination of the magistrate's decision, an independent review of
the record, pursuant to Civ.R. 53, and due consideration of claimant's objections, we
overrule the objections and adopt the magistrate's findings of fact and conclusions of law.
Claimant's writ of mandamus is denied.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                      SADLER and LUPER SCHUSTER, JJ, concur.

                               ___________________
[Cite as State ex rel. Sheets v. Indus. Comm., 2017-Ohio-1169.]



                                             APPENDIX
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Cynthia D. Sheets,                    :

                 Relator,                               :

v.                                                      :             No. 16AP-22

Industrial Commission of Ohio                           :          (REGULAR CALENDAR)
and
Cellco Partnership, Verizon Wireless,                   :

                 Respondents.                           :



                               MAGISTRATE'S DECISION

                                     Rendered on August 31, 2016


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

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

                 John C. Barno, Zeboney N. Barranada, and Jamison S.
                 Speidel, for respondent Cellco Partnership.


                                             IN MANDAMUS

        {¶ 19} Relator, Cynthia D. Sheets, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which denied her application for temporary total
disability ("TTD") compensation, and ordering the commission to find that she is entitled
to that compensation.


Findings of Fact:
No. 16AP-22                                                                              9


       {¶ 20} 1. Relator had been an employee at Cellco Partnership, Verizon Wireless
("Verizon") since April 2007.
       {¶ 21} 2. On September 9, 2013, a customer lodged a complaint that relator had
permitted a third-party to access and view the customer's account.
       {¶ 22} 3. The unauthorized access is specifically prohibited by Verizon's guidelines
and Verizon began an investigation.
       {¶ 23} 4. On Thursday, October 3, 2013, when questioned about the matter,
relator denied the allegations.    Video surveillance was reviewed which specifically
demonstrated that relator did, in fact, allow an unauthorized person to view the account
information of a client.
       {¶ 24} 5. Following the interview with relator on October 3, 2013, relator's
manager, Michelle Worthington, prepared a business request for termination of relator's
employment review indicating that the reason for the request was "Code of Conduct." The
review document specifically provides:
              Triggering Event (include detailed information): On
              9/9 rm received a customer complaint from Henry Gehring
              that his account information was shared with his ex wife's
              friend. Upon review of the account, Cynthia was shown as
              accessing the account twice earlier that day. When
              questioned by corporate security on 10/3 Cynthia recalled
              the situation and claimed that a regular customer of hers
              (Jen Mulchay) came in asking to do an AOL on the account.
              Cynthia said once she saw Jen was not authorized on the
              account she told her she couldn't help process the
              transaction and gave her information on how to request
              through customer service once she gained authorization. She
              also said that Jen tried to come around the counter to view
              the screen, but she told her she couldn't be back there. Video
              pulled by corporate security shows that Cynthia allowed Jen
              behind the counter 3 separate times and they reviewed the
              account information together, for up to 8 minutes each time.

(Emphasis sic.)

       {¶ 25} 6. On the document, Michelle Worthington was asked to indicate whether
or not relator had a known disability or medical condition and the response was no.
       {¶ 26} 7. Thereafter, relator's termination was approved by Michelle Worthington,
the associate director, and the human resource consultant on Thursday, October 3, 2013
and was approved by the director, human resource associate director, and human
No. 16AP-22                                                                              10


resource executive director, on Friday, October 4, 2013. It was decided that relator would
be terminated on Monday, October 7, 2013.
       {¶ 27} 8. On the morning of October 7, 2013, relator sustained an injury when she
tripped while at work. Relator was seen at the Cleveland Clinic and released to return to
work as a greeter.
       {¶ 28} 9. Later that same day, October 7, 2013, relator's employment was
terminated as a result of her violating the code of conduct.
       {¶ 29} 10. On October 17, 2013, Dr. Patel completed a Medco-14 indicating that
relator was temporarily and totally disabled as of October 7, 2013.
       {¶ 30} 11. Relator's claim was eventually allowed for the following conditions:
              Sprain neck; sprain right shoulder/arm; contusion chest
              wall, bilateral; right knee sprain; sprain right 4th finger;
              sprain right fifth finger; sprain left fourth finger; disc
              herniation C5-6; disc herniation C6-7.

       {¶ 31} 12. Relator's request for TTD compensation was heard before a district
hearing officer ("DHO") on January 13, 2014.           The DHO granted the requested
compensation beginning October 8, 2013 based upon the Medco-14s completed by Dr.
Patel. At the hearing, the employer argued that TTD compensation was not properly
payable because relator was terminated for reasons unrelated to the injuries in her claim.
The DHO found that relator's discharge could not be used to preclude her award of TTD
compensation, stating:
              At hearing, the Employer's attorney argued that temporary
              total disability compensation was not properly payable since
              the Injured Worker was terminated due to reasons unrelated
              to the claim later in the day on 10/07/2013. On 10/03/2013,
              the Injured Worker met various people regarding an alleged
              "unauthorized use" incident that occurred on or about
              09/09/2013. The Injured Worker sustained a slip and fall
              injury that was certified by the Self-Insuring Employer on
              10/07/2013 and was released to return to work with
              restrictions on that date. The Injured Worker was terminated
              on 10/07/2013 after returning to work in her light duty
              capacity. Under these facts, the Injured Worker may have
              been properly terminated, but that termination does not
              preclude the receipt of temporary total disability
              compensation because, pursuant to [State ex rel. Pretty
              Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996)] and its
              progeny, the Injured Worker was unable to return to work at
No. 16AP-22                                                                         11


              her former position of employment at the actual time of
              firing.

      {¶ 32} 13. The employer appealed and the matter was heard before a staff hearing
officer ("SHO") on July 15, 2014. The SHO modified the prior DHO order, granted TTD
compensation, and rejected the employer's argument that TTD compensation was not
payable due to relator's voluntary abandonment, stating:
              Temporary total disability compensation is to be paid for the
              period of 10/08/2013 through 07/15/2014. This finding is
              based on the 10/07/2013 disability slip from the Cleveland
              Clinic Center for Corporate Health and the 11/21/2013,
              12/22/2013,      01/06/2014,     02/04/2014,      02/25/2014,
              03/19/2014, 05/13/2014 and 07/08/2014 MEDCO-14s of
              M.P. Petal, M.D. Further temporary total is to be paid on
              submission of proof of temporary total disability causally
              related to the allowed conditions. The Self-Insuring
              Employer argued that the Injured Worker is not eligible to
              receive temporary total as her 10/07/2013 termination
              constitutes a voluntary abandonment of employment and
              she has not returned to the workforce. The Hearing Officer
              does not find this to be a well taken argument. On
              10/03/2013 the Injured Worker was questioned in
              connection with an incident on 09/09/2013 during which
              she had allegedly given access to a customer's account to a
              person who did not have authorization to access the account.
              This action was in violation of a written policy that specified
              termination as a possible consequence of violation. On the
              date of the injury the Injured Worker sought treatment at the
              Cleveland Clinic. She was released to return to modified duty
              which the Self-Insuring Employer provided. On that same
              day she was terminated for violation of the written policy
              concerning unauthorized access to a customer account. The
              Self-Insuring Employer cited [State ex rel. Lackey v. Indus.
              Comm., 129 Ohio St.3d 119, 2011-Ohio-3089] and argued
              that the termination was involuntary as it was not related to
              the Industrial Injury. The involuntary termination would
              render the Injured Worker ineligible to receive temporary
              total. The Hearing Officer finds nothing in Lackey that would
              overrule the holding of the same Court in [State ex rel.
              Gross v. Indus. Comm. ("Gross II"), 115 Ohio St.3d 249,
              2007-Ohio-4916]. In [Gross II] the Court stated that pre-
              injury conduct had never been used as a basis for
              determination that a termination was a voluntary
              abandonment. Since the Injured Worker's violative conduct
              here occurred prior to the injury it may not be used to deny
No. 16AP-22                                                                             12


              temporary total. All proof on file was reviewed and
              considered.

       {¶ 33} 14. The employer's further appeal was refused by order of the commission
mailed August 12, 2014.
       {¶ 34} 15. Thereafter, the employer filed a request for reconsideration and the
commission determined the employer had presented evidence of sufficient probative
value to warrant adjudication of the request for reconsideration.
       {¶ 35} 16. The matter was heard before the full commission on December 9, 2014.
The commission vacated the prior SHO order and denied relator's request for TTD
compensation finding that the SHO's reliance on State ex rel. Gross v. Indus. Comm.
("Gross II"), 115 Ohio St.3d 249, 2007-Ohio-4916, was misplaced.
       {¶ 36} First, the commission analyzed the relevant case law which includes State
ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm., 29 Ohio App.3d 145 (10th
Dist.1985), State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987), and State ex
rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, which all
held that, in order to qualify for TTD compensation, an injured worker must show not
only that he or she lacks the medical capability to return to the former position of
employment but that a causal relationship exists between the industrial injury and the
actual loss of earnings. The commission found that it was clear the employer terminated
relator because she violated the company's written work rule by allowing an unauthorized
person to view the account of another and that it was clear relator's subsequent injury was
not the reason why she was terminated.
       {¶ 37} With regards to the inapplicability of Gross II, the commission's order
provides:
              It is the finding of the Commission the Staff Hearing Officer
              made a clear mistake of law in relying on the case of State ex
              rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-
              4916, 874 N.E.2d 1162 ("Gross II"), in finding there was no
              voluntary abandonment of employment, and the Employer's
              Request for Reconsideration, filed 08/29/2014, is granted.

              It is the further finding of the Commission the Injured
              Worker voluntarily abandoned her employment, and based
              on this finding, her C-86 Motion requesting temporary total
              disability compensation, filed 11/12/2013, is denied.
              Therefore, it is the order of the Commission that temporary
No. 16AP-22                                                                    13


              total   disability    compensation     from     10/08/2013
              through 11/22/2014, the date last certified by an attending
              physician, is denied.

              In State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm.
              (1985), 29 Ohio App.3d 145, 504 N.E.2d 451, the Court
              determined the purpose of temporary total disability
              compensation is to compensate an injured worker for the
              loss of earnings while the injured worker is recovering from
              an industrial injury. The Court held where an injured worker
              has taken action that would preclude a return to
              employment, even if the injured worker were able to do so,
              the injured worker is not entitled to temporary total
              disability compensation since it is the injured worker's own
              action, and not the industrial injury, that prevents the
              injured worker from returning to his former position of
              employment. Id. at 147.

              In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio
              St.3d 42, 517 N.E.2d 533, the Court stated, "While a
              prisoner's incarceration would not normally be considered a
              'voluntary' act, one may be presumed to tacitly accept the
              consequences of his voluntary acts. When a person chooses
              to violate the law, he, by his own action, subjects himself to
              the punishment which his state has prescribed for him." The
              Court found in Ashcraft the injured worker's incarceration
              would, excluding the consideration of the recognized work-
              related injury, preclude the receipt of temporary total
              disability compensation. Id.

              In State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
              St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, the Court held:

              Thus, in order to qualify for TTD [temporary total disability]
              compensation, the claimant must show not only that he or
              she lacks the medical capability of returning to the former
              position of employment but that a cause-and-effect
              relationship exists between the industrial injury and an
              actual loss of earnings. In other words, it must appear that,
              but for the industrial injury, the claimant would be gainfully
              employed.

              Id. at para. 35.

              The Commission finds in this case it is reasons other than
              the allowed conditions in the claim preventing the Injured
              Worker from working the evidence presented at hearing and
              contained in the record indicates the Injured Worker was
No. 16AP-22                                                                          14


              working in a modified light-duty position at the time she was
              terminated from her employment. The Commission finds the
              reason the Injured Worker was not working over the period
              for which compensation is requested has nothing to do with
              the allowed conditions in the claim. The Injured Worker is
              not working because she was terminated from her job for
              violating the Employer's Code of Conduct Policy.

              The Staff Hearing Officer's reliance on Gross II, is found to
              be misplaced as Gross II does not change the requirement
              set forth in Jones, Ashcraft, and McCoy, that the basis for the
              loss of earnings must be solely related to the work injury and
              not to be a voluntary act of the injured worker. In Gross II,
              the injured worker's conduct caused the injury leading to his
              termination, placing water into a deep-fryer, did not
              preclude the payment of temporary total disability
              compensation.

              In this case, unlike Gross II, the Injured Worker's
              termination was completely unrelated to her industrial
              injury on 10/07/2013, when she tripped and fell to the floor.
              The only reason the Injured Worker was terminated was
              because she allowed an unauthorized person access to a
              client's private information in violation of the Code of
              Conduct Policy. Sine the conduct leading to the Injured
              Worker's termination in this case is not related to the
              allowed injury, the Commission finds the Jones case is
              applicable, and Gross II is not.

      {¶ 38} Thereafter, the commission found that the employer met its burden of
proving that relator violated a written work rule, previously defined as a dischargeable
offense, which relator knew or should have known was prohibited and could lead to her
termination. Specifically, the commission's order provides:
              It is the further finding of the Commission the Injured
              Worker voluntarily abandoned her employment, and based
              on this finding, her request for temporary total disability
              compensation is denied.

              The Injured Worker was injured on 10/07/2013, when she
              tripped and fell forward onto the floor, sustaining the
              injuries of record. She returned to work in a restricted light-
              duty capacity later the same day, 10/07/2013, and was
              terminated at the end of work that same day. These facts
              were not disputed at the hearing.
No. 16AP-22                                                                    15


              Pursuant to State ex rel. Louisiana-Pacific Corp. v. Indus.
              Comm., 72 Ohio St.3d 401,1995-Ohio-153, 650 N.E.2d 469, a
              termination from employment by the employer is considered
              a voluntary abandonment when the injured worker engages
              in clearly defined prohibited conduct, previously defined as a
              dischargeable offense, and the injured worker knew or
              should have known the conduct was prohibited and could
              lead to termination.

              It is the finding of the Commission the Injured Worker was
              terminated on 10/07/2013, for violating the Employer's Code
              of Conduct Policy. The Employer's policy, titled Your Code of
              Conduct, states under Section 4.1.1, Customer Privacy and
              Communications, paragraph 3, page 19, that employees may
              not access, view, share, or distribute customer information
              without a proper business reasons. The policy goes on to
              state in the Conclusion section, page 30, that violations of
              the law, the Code, and other company policies, procedures,
              instructions, practices, and the like can lead to disciplinary
              action, up to and including termination of employment. Mr.
              Gerot testified the policy is provided to all employees,
              training is done online, and all employees must sign off on
              the training. A log of the online training courses completed
              by the Injured Worker, titled VZLearning History -
              Completed, documents on the last page, under VZW2491,
              Your Code of Conduct: Online Course, the Injured Worker
              completed this course on 08/02/2010. This evidence shows
              the Injured Worker was aware, or should have been aware,
              that allowing a customer to access the information of another
              customer when such access had not been authorized and
              without a proper business reason was grounds for
              disciplinary action up to and including termination.

              The Employer's 10/03/2013 Business Request For
              Termination Of Employment Review form, under the Reason
              for Request section, indicates as follows: The Employer
              received a customer complaint from a Henry Gehring that
              his account information was shared with his ex-wife's friend.
              Upon review of the account, the Injured Worker was shown
              accessing the account twice earlier that day. When
              questioned by the Employer about this review
              on 10/03/2013, the Injured Worker indicated she recalled
              the situation, and a regular customer of hers, Jen Mulchay,
              came in asking to do an AOL on the account. The Injured
              Worker stated once she saw Ms. Mulchay was not authorized
              on the account she told her she could not help her and gave
              her information on how to make her request through
              customer service once she gained authorization. The Injured
No. 16AP-22                                                                            16


              Worker also said Ms. Mulchay tried to come around the
              counter and view the screen, but the Injured Worker told Ms.
              Mulchay she could not be back there. However, video pulled
              by corporate security shows that the Injured Worker allowed
              Ms. Mulchay behind the counter three separate times, and
              they reviewed the account information together, for up to
              eight minutes at a time. The Injured Worker testified at the
              District Hearing she did let Ms. Mulchay come around the
              desk and look at the computer screen at least three times.
              (Transcript, pg. 15 & 16.)

              The Employer has submitted still photographs from the
              video noted above to document the Injured Worker did allow
              Ms. Mulchay to view the account information of Mr.
              Gehring. Mr. Gerot persuasively testified at hearing the file
              accessed was of Henry Gehring, and Ms. Mulchay did not
              have authorization to view Mr. Henry's [sic] account
              information. Mr. Gerot also testified that the Employer
              determined it was the Injured Worker who accessed Mr.
              Gehring's account. This evidence shows that the Injured
              Worker allowed Ms. Mulchay access to Mr. Gehring's
              account information when Ms. Mulchay did not have
              authorization to do so, in violation of the Code of Conduct
              Policy. The policy, training documentation, and testimony
              from Mr. Gerot noted previously show the Injured Worker
              was aware, or should have been aware, that allowing such
              improper access of Mr. Gehring's account information to Ms.
              Mulchay was a violation of the policy and could result in
              termination. Based on this evidence, it is found the
              requirements for a voluntary abandonment under the
              Louisiana-Pacific Corp. case have been met.

       {¶ 39} One commissioner dissented from the majority. First, the dissenter pointed
out that this court's decision in State ex rel. Paysource USA, Inc. v. Indus. Comm., 10th
Dist. No. 08AP-677 (June 30, 2009), upon which the commission relied to exercise its
continuing jurisdiction, has been rejected numerous times by this court, specifically
because this court did not consider the applicability of Gross II to the facts. Next, the
dissenter stressed that pre-injury conduct cannot be used to break the causal relationship
between a work-related injury and the disability because pre-injury conduct is never
intervening. Specifically, the dissenter stated:
              The majority distinction regarding a causal connection
              between the injury and the termination completely ignores
              [State ex rel. Ohio State Univ. Cancer Research Hosp. v.
              Indus. Comm., 10th Dist. No. 09AP-1027, 2010-Ohio-3839]
No. 16AP-22                                                                      17


              There, the injured worker sustained a work-related
              lumbosacral sprain in 2009. For some time prior to the date
              of injury, he had been under investigation for numerous
              allegations he had violated the employer's sexual harassment
              policy spanning from 2004 to 2008. The injured and
              employer entered into two transitional work agreements.
              While working with restrictions, he was terminated from his
              position two months following the injury for "conduct
              unbecoming a medical center employee and violation of
              university policy." Id. at ¶ 22 of the Magistrate's Decision. In
              reliance on [State ex rel. Ohio Welded Blank v. Indus.
              Comm., 10th Dist. No. 08AP-772, 2009-Ohio-4646] and
              Gross II, the court refused to apply the voluntary
              abandonment doctrine to the facts at hand, as the violative
              conduct occurred pre-injury.

              Obviously, the injured worker's numerous violations of the
              sexual harassment policies of the employer were in no way
              related to or contemporaneous with the industrial injury.
              The court made it clear that was not the reason for rejecting
              the voluntary abandonment defense; instead, it was the
              simple temporal relationship between the violative conduct
              and the injury. The reason for this is not arbitrary.
              Louisiana-Pacific rests on the notion that a voluntary
              abandonment can be found when it is the injured worker's
              voluntary conduct and not the injury that is the cause of the
              loss of earnings. Had the employer in OSU Cancer Research
              Hospital been quicker in the investigation of the injured
              worker and terminated him prior to the date of injury, there
              would never have been an injury.

              Likewise, had the Employer here been more prudent in the
              investigation of the Injured Worker's infractions and
              terminated her sooner, there would never have been a work
              injury. Instead, there was a work injury which, in hand,
              caused the Injured Worker's disability. It is undisputed the
              Injured Worker is unable to return to her former position of
              employment due to the injury she sustained while in the
              course of and arising out of her employment with the
              Employer.

              Pre-injury conduct cannot be used to break the chain of
              causation between the injury and the disability, as the
              conduct is not intervening; only the Employer's decision to
              terminate is intervening, and allowing employers to do so
              and avoid paying temporary total disability compensation
              despite a legitimate work injury is simply inequitable and
No. 16AP-22                                                                                18


              against the mandate of R.C. 4123.95 as well as the entire
              intent of the workers' compensation system in Ohio.

(Emphasis sic.)

       {¶ 40} 17. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 41} Relator asserts that, pursuant to Gross II, the voluntary abandonment
doctrine cannot be applied to pre-injury conduct. In other words, relator asserts that pre-
injury conduct can never be used to defeat or award TTD compensation. For the reasons
that follow, the magistrate disagrees.
       {¶ 42} 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).
       {¶ 43} 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
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).
       {¶ 44} 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
No. 16AP-22                                                                      19


claimant is made available by the employer or another employer; or (4) claimant has
reached maximum medical improvement. See R.C. 4123.56(A); State ex rel. Ramirez v.
Indus. Comm., 69 Ohio St.2d 630 (1982).
      {¶ 45} In State ex rel. Haddox v. Indus. Comm., 135 Ohio St.3d 307, 2013-Ohio-
794, the Supreme Court of Ohio discussed the interplay of the payment of TTD
compensation and the doctrine of voluntary abandonment. The court stated:
              The purpose of temporary-total-disability compensation is to
              compensate an injured employee for lost earnings during the
              period of disability while the injury heals. State ex rel.
              McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002
              Ohio 5305, 776 N.E.2d 51, ¶ 35; State ex rel. Ashcraft v.
              Indus. Comm., 34 Ohio St.3d 42, 517 N.E.2d 533 (1987). To
              qualify for temporary-total-disability compensation, an
              injured worker must demonstrate that he or she is medically
              unable to return to the former position and that the
              industrial injury is the reason for the loss of earnings. State
              ex rel. McCoy at ¶ 35.

              When the employee no longer has a loss of earnings,
              temporary-total-disability benefits terminate. This occurs
              when the employee returns to work or is capable of returning
              to work. Benefits for temporary total disability also
              terminate when the injury has reached maximum medical
              improvement. R.C. 4123.56. Benefits may also terminate if
              the employee voluntarily leaves the workforce. Rockwell
              Internatl. v. Indus. Comm., 40 Ohio St.3d 44, 46, 531
              N.E.2d 678 (1988). (After termination of benefits for
              temporary total disability, a claimant remains entitled to
              payments for medical expenses and may be eligible for
              compensation for any permanent disability. R.C. 4123.57 and
              4123.66.)

              When an employee is fired for misconduct, the dismissal
              may be deemed a voluntary abandonment of employment
              "when it arises from the employee's decision to engage in
              conduct that he or she knows will result in termination."
              State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio
              St.3d 520, 2012 Ohio 3895, 974 N.E.2d 1198, ¶ 11; State ex
              rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d
              401, 403, 1995 Ohio 153, 650 N.E.2d 469 (1995). The
              commission must look to the underlying facts and
              circumstances of the discharge, including its timing and
              nature, when classifying the employee's departure as
              voluntary or involuntary. McCoy, 97 Ohio St.3d 25, 2002
              Ohio 5303, 776 N.E.2d 51, ¶ 20; State ex rel. Smith v.
No. 16AP-22                                                                               20


                 Superior's Brand Meats, Inc., 76 Ohio St.3d 408, 411, 1996
                 Ohio 166, 667 N.E.2d 1217 (1996). The underlying principle
                 is that the employee's departure from employment must be
                 causally related to the injury for the employee to be eligible
                 for temporary-total-disability compensation. Rockwell
                 Internatl. v. Indus. Comm., 40 Ohio St.3d at 46, 531 N.E.2d
                 678.

Id. at 310-11.

       {¶ 46} In Gross II, the court reviewed the voluntary abandonment doctrine in the
context of an employee who had been fired for the very conduct that resulted in his
industrial injury. David Gross burned himself and two co-workers when he placed water
in a pressurized deep fryer, heated the fryer, and then opened the lid.             Gross was
discharged for violating a workplace safety rule and defying repeated verbal warnings.
The commission determined this was a voluntary abandonment of his employment and
terminated Gross's TTD benefits.
                 The Haddox court explained its ultimate decision in Gross II, stating:
                 This court initially upheld the commission's decision, State
                 ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006 Ohio
                 6500, 858 N.E.2d 335 ("Gross I"), but later reconsidered and
                 ordered the commission to reinstate benefits, State ex rel.
                 Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007 Ohio 4916,
                 874 N.E.2d 1162 ("Gross II"). In Gross II, the court explained
                 that it had not intended Gross I to create an exception to or
                 an expansion of the voluntary-abandonment doctrine or to
                 inject fault into the no-fault nature of workers'
                 compensation. Id. at ¶ 19-21.

                 Upon reconsideration, Gross II reiterated that the
                 underlying issue in a voluntary-abandonment case is
                 "whether his injury or his termination * * * is the cause of his
                 loss of earnings." Id. at ¶ 23. "The distinctions between
                 voluntary and involuntary departure are complicated and
                 fact-intensive." Id. Gross II examined the evidence and
                 concluded that KFC's termination letter—in which KFC
                 stated that it was Gross's rule violation, resulting in the
                 injury that had triggered the investigation and led to his
                 subsequent termination—established that his discharge was
                 related to the industrial injury. Thus, Gross's termination
                 was involuntary and did not bar temporary-total-disability
                 benefits. Id. at ¶ 25-26.
No. 16AP-22                                                                             21


                 This court had the opportunity to apply Gross II in State ex
                 rel. Upton v. Indus. Comm., 119 Ohio St.3d 461, 2008 Ohio
                 4758, 895 N.E.2d 161. In that case, Upton had been
                 discharged for causing multiple motor vehicle accidents,
                 including the one in which he was injured. The commission
                 denied      his    request     for    temporary-total-disability
                 compensation, filed prior to Gross II, because his discharge
                 constituted a voluntary abandonment of his former position.
                 Id. at ¶ 5. In a split decision, the court of appeals concluded
                 that Upton did not have clear notice in advance of the
                 grounds for his termination, so it was an involuntary
                 departure. The court granted a writ of mandamus. State ex
                 rel. Upton v. Indus. Comm., 10th Dist. No. 06AP-594, 2007
                 Ohio 3283.

                 We affirmed, stating: "Gross II held that if a claimant is
                 injured by the same misconduct that led to his or her
                 termination, eligibility for temporary total disability
                 compensation is not compromised. Gross II controls and
                 renders the court of appeals reasoning moot." 119 Ohio St.3d
                 461, 2008 Ohio 4758, 895 N.E.2d 161, at ¶ 8.

Id. at 311-12.

       {¶ 47} The court held that if a claimant is injured by the same misconduct that led
to their termination, eligibility for TTD compensation is not compromised. The court
wanted to prevent employers from terminating employees in order to avoid paying TTD
compensation. As the court stated in State ex rel. Supreme Bumpers, Inc. v. Indus.
Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, "we recognize the great potential for
misconduct to preclude temporary total disability compensation. We therefore find it
imperative to carefully examine the totality of the circumstances when such a situation
exists." Id. at 411. Nothing in the court's decision in Gross II provides that pre-injury
conduct can never be used to defeat payment of TTD compensation. To the extent courts
have discussed the issue post-Gross II, courts have only said that pre-injury conduct has
never been used to defeat an award of TTD compensation. As such, the magistrate
concludes that there may be a situation where pre-injury conduct can defeat the payment
of TTD compensation if it is found that the decision to terminate the injured worker is not
a pre-textual excuse intended to avoid the employer's obligation to pay compensation.
       {¶ 48} In light of the above, the magistrate finds that the commission did not abuse
its discretion when it determined that relator's termination was unrelated to her
No. 16AP-22                                                                               22


industrial injury─she was terminated because she allowed an unauthorized person to
access a client's private information in violation of her employer's code of conduct policy.
       {¶ 49} Here, relator's manager approached her on Thursday, October 3, 2013 and
asked her if she had allowed a person to access another's personal account information.
While relator acknowledged she knew the people involved, relator specifically denied
allowing anyone behind the counter to view the client's personal account information.
However, video evidence established that relator allowed an unauthorized person to
review account information at least three times. As a result, relator's manager initiated
the necessary paperwork to terminate relator's employment. As of Friday, October 4,
2013, relator's manager had the signatures necessary to terminate relator and, on
Monday, October 7, 2013, relator was terminated because she allowed an unauthorized
person to access a client's personal information in violation of the employer's code of
conduct policy.
       {¶ 50} The magistrate acknowledges that, on Monday, October 7, 2013, before her
manager arrived to terminate her, relator tripped, injured herself, and returned to work
with restrictions. However, there is no evidence that relator's manager or relator herself
had any reason to believe that relator would ultimately file a workers' compensation
claim, or that her injuries would be as extensive as they ultimately became. The decision
to terminate relator was made on Thursday, October 3, 2013 and all necessary signatures
were acquired by Friday, October 4, 2013.
       {¶ 51} The magistrate finds the commission did carefully scrutinize the facts and
did not abuse its discretion when it found relator was not entitled to an award of TTD
compensation and this court should deny her request for a writ of mandamus.


                                                  /S/ MAGISTRATE
                                                  STEPHANIE BISCA
No. 16AP-22                                                                       23


                              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).
