[Cite as State ex rel. Cummins v. Lee, 2014-Ohio-5296.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Cleveland Cummins,                          :

                                                          :
                 Relator,
                                                          :
v.                                                                           No. 14AP-10
                                                          :
Charles Kyun Lee Budget Host                                            (REGULAR CALENDAR)
Town Center Motel and The                                 :
Industrial Commission of Ohio,
                                                          :
                 Respondents.
                                                          :


                                           D E C I S I O N

                                  Rendered on November 26, 2014


                 Rendigs, Fry, Kiely & Dennis, L.L.P., and Arthur E. Phelps,
                 Jr., for relator.

                 Michael DeWine, Attorney General, and Eric J. Tarbox, for
                 respondent The Industrial Commission of Ohio.

                                             IN MANDAMUS

TYACK, J.

        {¶ 1} Cleveland Cummins filed this action in mandamus, seeking a writ to compel
the Industrial Commission of Ohio ("commission") to grant him temporary total disability
("TTD") compensation.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.                  The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
No. 14AP-10                                                                            2


law.   The magistrate's decision includes a recommendation that we grant a writ
compelling the commission to revisit the merits of Cummins' application for TTD
compensation.
       {¶ 3} No party has filed objections to the magistrate's decision. The decision is
now before the court for review.
       {¶ 4} No error of law or fact is present on the face of the magistrate's decision.
We therefore adopt the findings of fact and conclusions of law contained in the
magistrate's decision.   As a result, we grant a writ of mandamus compelling the
commission to vacate its order denying TTD compensation for Cleveland Cummins and
compelling the commission to address the merits of Cummins' application for TTD
compensation without relying on State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d
428, 2005-Ohio-2587.
                                                                           Writ granted.

                     BROWN and LUPER SCHUSTER, JJ., concur.
No. 14AP-10                                                                           3



                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Cleveland Cummins,             :

                                             :
              Relator,
                                             :
v.                                                              No. 14AP-10
                                             :
Charles Kyun Lee Budget Host                                 (REGULAR CALENDAR)
Town Center Motel and The                    :
Industrial Commission of Ohio,
                                             :
              Respondents.
                                             :



                         MAGISTRATE'S DECISION

                                 Rendered on July 31, 2014



              Rendigs, Fry, Kiely & Dennis, L.L.P., and Arthur E. Phelps,
              Jr., for relator.

              Michael DeWine, Attorney General, and Eric J. Tarbox, for
              respondent The Industrial Commission of Ohio.


                                   IN MANDAMUS

      {¶ 5} Relator, Cleveland Cummins, 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 his application for temporary total
disability ("TTD") compensation, and ordering the commission to find that he is entitled
to that award of compensation.
No. 14AP-10                                                                             4


Findings of Fact:
       {¶ 6} 1. Relator was employed at Budget Host Town Center Motel in Cincinnati,

Ohio, when, on October 16, 2006, he was severely injured when he was shot in the back

during a robbery attempt. As a result, relator's workers' compensation claim has been

allowed for the following conditions:

              Open wound anterior abdomen; traumatic shock; colon
              injury-open; peritoneum injury-open; liver injury with
              wound cavity; right femoral neuropathy; prolonged post
              traumatic stress.

       {¶ 7} 2. Relator received TTD compensation based on his allowed physical
conditions from October 17, 2006 through January 25, 2009, when his treating physician
agreed that his allowed physical conditions had reached maximum medical improvement
("MMI").
       {¶ 8} 3. Relator was examined by Michael A. Murphy, Ph.D., who opined in his
August 11, 2009 report that relator was suffering from post-traumatic stress disorder
("PTSD") as a direct result of the work-related injury, that he would need psychotherapy
not less than two visits per month for a period of nine to ten months, and should consider
a referral to rehabilitation in four to five months.
       {¶ 9} 4. In a letter dated October 30, 2009, Jennifer J. Stoeckel, Ph.D., requested
authorization for 12 visits on a bi-weekly basis over the course of 6 months.
       {¶ 10} 5. On December 1, 2009, Dr. Stoeckel completed a C-84 indicating that she
last saw relator on November 30, 2009 and certifying that he was temporarily and totally
disabled from October 2009 through February 2010.
       {¶ 11} 6. Relator received TTD compensation for his allowed psychological
condition for the period October 29, 2009 through February 27, 2010. His allowed
psychological condition was not found to have reached MMI. TTD compensation ceased
when relator stopped filing C-84s.
       {¶ 12} 7. A significant gap in treatment followed. During this period, there is no
evidence relator received any treatment, looked for work or worked, or that he was
capable of working.
No. 14AP-10                                                                              5


        {¶ 13} 8. On January 7, 2011, Dr. Stoeckel and Clinton B. Symons, a treating
therapist, provided the Ohio Bureau of Workers' Compensation ("BWC") with a progress
summary and treatment plan indicating that one of the goals was to "re-establish a
therapeutic relationship between patient and therapist."
        {¶ 14} 9. Dr. Stoeckel completed a C-9 dated January 10, 2011 requesting bi-
weekly therapy sessions for the next six months. That request was approved by the
employer's managed care organization ("MCO") on January 12, 2011.
        {¶ 15} 10. On February 28, 2011, Dr. Stoeckel completed a C-84 indicating that
she last saw relator on January 7, 2011 and certifying that he was temporarily and totally
disabled from February 28, 2010 through an estimated return-to-work date of March 28,
2011.
        {¶ 16} 11. The record contains a C-9 from Dr. Stoeckel requesting a psychological
consult and testing. The employer's MCO neither approved nor rejected this claim and
requested further information.
        {¶ 17} 12. The record also includes the November 20, 2012 letter from Dr.
Stoeckel asking why the employer's MCO was pending the requested C-9. In that letter,
Dr. Stoeckel noted that relator was last seen in her office on January 7, 2011, that he had
discontinued treatment prematurely, reportedly due to transportation problems, and that
relator was requesting to reinitiate services through her office for ongoing related
symptomatology. Dr. Stoeckel further noted that:
              We do not have any treatment notes beyond the 11-7-11 [sic]
              date to provide you since he has been absent from
              intervention since that time.

        {¶ 18} 13. On April 11, 2013, Dr. Stoeckel completed a C-9 requesting bi-weekly
counseling for four months. In an April 12, 2013 letter, Dr. Stoeckel provided additional
information, stating:
              As you are aware, he has a claim allowance for Posttraumatic
              Stress Disorder (309.81) associated with a traumatic work
              injury sustained 10-16-06. He previously treated at this
              office, but had not been seen since 2-3-10 due to
              transportation issues. Mr. Cummins presented to the office
              3-26-13 with ongoing complaints of impaired sleep, avoidant
              behavior, current nightmares of the traumatic injury,
No. 14AP-10                                                                              6


              anxiety, anhedonia, hyperarousal, flashbacks, a sense of
              impending doom, and general fearfulness. On the BAI
              administered at that time, Mr. Cummins achieved a score of
              35, which places him at the severe range for an Anxiety
              Disorder. Since his last psychotherapy visit in 2010, he has
              had no mental health intervention. He has deteriorated and
              requires immediate care. He reports resolution of his
              transportation issues, appears to be invested in treatment,
              and denial of services would be detrimental to his
              psychological well being and status.

       {¶ 19} 14. The employer's MCO neither approved nor rejected this claim and
instead forwarded the matter to the BWC for determination.
       {¶ 20} 15. Dr. Stoeckel completed a Medco-14 dated April 16, 2013 certifying that
relator was temporarily and totally disabled from March 26 through June 26, 2013.
       {¶ 21} 16. The record contains another C-9 from Dr. Stoeckel dated May 21, 2013
asking for a psychological consult.
       {¶ 22} 17. On May 23, 2013, the employer's MCO dismissed Dr. Stoeckel's C-9 for
the following reasons:
              There is no supporting medical evidence for inactive claims
              or the medical evidence is dated more than 60 sixty days
              prior to date of reactivation request.

       {¶ 23} 18. On June 17, 2013, Dr. Stoeckel completed another Medco-14 certifying
that relator was unable to return to any work from June 26 through September 26, 2013.
       {¶ 24} 19. On May 21, 2013, Dr. Stoeckel again, requested a consult.
       {¶ 25} 20. Relator was evaluated by Roberto Madigral, Ph.D. In his July 10, 2013
report, Dr. Madigral opined that relator's PTSD had never resolved, that he needed the
requested psychotherapy to address his PTSD symptoms, that the services requested were
reasonably necessary and appropriate for the treatment of his allowed conditions, and
that the cost of such treatment was medically reasonable.
       {¶ 26} 21. In an order mailed July 25, 2013, the BWC informed relator that his
claim was being reactivated, stating:
              The following decision was made by the Bureau of Workers'
              Compensation (BWC).
No. 14AP-10                                                                              7


              BWC is reactivating this claim. We have determined a causal
              relationship exists between the original injury and current
              incident, which has prompted the medical treatment request.
              The request for treatment filed on 07-03-13 is allowed for
              Psycho Mod Consult (1 visit).

              BWC will pay medical benefits in accordance with our rules
              and guidelines.

              This decision is based on:

              The examination done by Dr. Madrigal 07-03-13 [sic].

      {¶ 27} 22. Thereafter, Dr. Stoeckel renewed her request for a psychological
consultation which was approved by the BWC.
      {¶ 28} 23. In an August 19, 2013 progress summary and treatment plan note, Dr.
Stoeckel indicated that relator had made moderate progress in his recent psychotherapy
sessions, but continued to have great difficulty. Dr. Stoeckel requested additional therapy
which was approved.
      {¶ 29} 24. Relator's motion seeking an award of TTD compensation beginning
March 26, 2013 was heard before a district hearing officer ("DHO") on August 27, 2013.
The DHO denied the request, stating:
              [T]he injured worker did not return to the workforce after
              02/27/2010 and based upon his testimony at the hearing he
              has no intent to re-enter the workforce. Therefore, the
              District Hearing Officer finds that the injured worker
              voluntarily abandoned the workforce.

      {¶ 30} 25. Relator's appeal was heard before a staff hearing officer ("SHO") on
October 7, 2013. The SHO vacated the prior DHO order, but still denied the request for
TTD compensation, stating:
              The Staff Hearing Officer notes that the Injured Worker's
              last day worked was 10/16/2006, the date of the injury. The
              Staff Hearing Officer finds that the Injured Worker did
              receive temporary total disability compensation for the
              physical allowed conditions from 10/17/2006 through
              01/25/2009 and for a psychological condition for the period
              of 10/29/2009 through 02/27/2010. The Staff Hearing
              Officer finds that the Injured Worker did not return to the
              workforce after 02/27/2010. The Staff Hearing Officer finds
No. 14AP-10                                                                                 8


              that the Injured Worker testified at the hearing that he was
              not capable from a physical standpoint and a mental
              standpoint to be employed at this time. The Staff Hearing
              Officer notes that the Injured Worker testified at the hearing
              that he wants to go back to work but currently feels he is not
              capable.

              The Staff Hearing Officer finds that a key component
              regarding temporary total disability compensation is the
              Injured Worker's work-related injuries must remove the
              Injured Worker from employment. The Staff Hearing Officer
              finds that this requirement for temporary total disability
              compensation can't be satisfied if an Injured Worker is not
              employed at the time beginning of the alleged period of
              disability. State ex rel. Eckerly v. Indus. Comm. 2005,
              105 Ohio St.3d 428. The Staff Hearing Officer finds that the
              Injured Worker has not provided any evidence that he has
              been employed since the date of injury of 10/16/2006 or
              tried to be employed. The Staff Hearing Officer finds that the
              Injured Worker's lack of action in trying to find employment
              shows that he has voluntarily abandoned the workforce,
              therefore precluding him from receiving temporary total
              disability compensation in this claim at this time.

              Therefore the Staff Hearing Officer finds the Injured Worker
              is not entitled to receive temporary total disability
              compensation for the period of 03/26/2013 through
              08/27/2013. This order is based upon the reasoning as
              stated above, the case of Eckerly v. Indus. Comm.
              (2005) and the Injured Worker's testimony.

(Emphasis sic.)

       {¶ 31} 26. Relator's appeal was refused by order of the commission mailed
October 30, 2013.
       {¶ 32} 27. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 33} For the reasons that follow, it is this magistrate's decision that this court
should grant relator's request for a writ of mandamus.
       {¶ 34} 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
No. 14AP-10                                                                              9


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).
       {¶ 35} 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).
       {¶ 36} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d
630 (1982).
       {¶ 37} In the present case, the commission cited State ex rel. Eckerly v. Indus.
Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, as the sole rationale for determining that
relator was not entitled to an award of TTD compensation. Relator asserts that the
Eckerly decision does not support the commission's determination here and, for the
reasons that follow, the magistrate agrees.
       {¶ 38} It is undisputed that a voluntary departure from employment precludes
receipt of TTD compensation. 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
No. 14AP-10                                                                            10


Ohio St.3d 42 (1987). An involuntary departure, such as one that is injury induced,
cannot bar TTD compensation. State ex rel. Rockwell Internatl. v. Indus. Comm., 40
Ohio St.3d 44 (1988).
        {¶ 39} Shawn E. Eckerly sustained a work-related injury when he broke one of his
right metacarpals and a workers' compensation claim was allowed. Eckerly was able to
return to his employment; however, three months later, he was fired for unexcused
absenteeism.     The commission determined that Eckerly's discharge constituted a
voluntary abandonment of his former position of employment pursuant to State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), and denied him TTD
compensation.
        {¶ 40} Two years later, Eckerly's claim was allowed for the more significant
conditions of reflex sympathetic dystrophy and chronic regional pain syndrome, right
upper extremity. Eckerly sought a period of TTD compensation beginning in February
2003.
        {¶ 41} The commission denied Eckerly's request for TTD compensation finding
that there was no evidence that he was gainfully employed for any specific length of time
between his termination in May 2001 and his request for TTD compensation beginning
February 2003. Citing State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d
25, 2002-Ohio-5305, the commission stated that Eckerly was required to provide
evidence that he had not abandoned the entire workforce and had returned to
employment following his prior termination.
        {¶ 42} Ultimately, the Ohio Supreme Court upheld the commission's decision
finding Eckerly was not entitled to an award of TTD compensation because he was not
able to show that the industrial injury removed him from his job. As the Supreme Court
stated, this requirement could not be satisfied by Eckerly because he had no job at the
time of the alleged disability.
        {¶ 43} Relator asserts that his situation is distinguishable from Eckerly because,
while Eckerly was able to return to employment following his work-related injury, relator
was never released to return to work.
        {¶ 44} Although not on point, the magistrate finds State ex rel. MedAmerica
Health Sys. Corp. v. Brammer, 10th Dist. No. 11AP-904, 2012-Ohio-4416, to be
No. 14AP-10                                                                          11


instructive. Sherry Brammer sustained a work-related injury and ultimately returned to
work without restrictions; however, her symptoms increased and her physician of record
again placed restrictions on her ability to work. Brammer's request for surgery was
denied by her employer and, ultimately, Brammer was terminated for excessive
absenteeism. Brammer would later testify that the majority of her absences were due to
increased pain from the allowed conditions and the commission would ultimately
conclude that her departure from the workforce was involuntary.
       {¶ 45} Brammer obtained other employment which she could perform within her
restrictions. However, due to a non-work related injury to her back, Brammer was forced
to leave this employment.
       {¶ 46} Because additional more substantial conditions had been allowed in her
claim, Brammer sought authorization for surgery which her employer granted. Although
her employer initially paid TTD compensation, her employer filed a motion to terminate
that compensation and asked the commission to declare an overpayment. Her employer
argued that Brammer was actually disabled due to a non-work related medical condition
and was not working prior to surgery. The commission found Brammer's departure from
her former position of employment was involuntary and that her return to other
employment demonstrated that she had not abandoned the entire workforce and denied
the employer's request.
       {¶ 47} The employer filed a mandamus action and argued that, pursuant to
Eckerly, Brammer was not entitled to TTD compensation because she was not working at
the time of surgery and, as such, had no wages to apply. This court disagreed and
discussed the applicability of Eckerly, stating:
              Relator points to the court's statement in Eckerly that the
              key aspect in all TTD cases is that the industrial injury must
              remove the claimant from his or her job, and this
              requirement cannot be satisfied if the claimant had no job at
              the time of the alleged disability. * * *

              However, Eckerly is distinguishable in several respects. In
              Eckerly, the worker was permitted to return to his former
              position of employment with no restrictions but then
              voluntarily abandoned his former position when he was fired
              for unexcused absenteeism. He subsequently voluntarily
No. 14AP-10                                                                           12


                abandoned the entire workforce. In the present case,
                claimant did not voluntarily leave her former position of
                employment with relator; rather, she was terminated for
                reasons related to the allowed conditions in her claim. * * *
                Thus, her departure from her employment with relator was
                involuntary, unlike the employee's voluntary abandonment
                in Eckerly.

                In addition, Eckerly clearly does not stand for the
                proposition that TTD is precluded when a worker
                involuntarily abandons her former position of employment
                but then voluntarily departs a subsequent position of
                employment with another employer, which is the case here.
                To the contrary, as we recently found in State ex rel. Cline v.
                Abke Trucking, Inc., 10th Dist. No. 10AP-888, 2012-Ohio-
                1914, ¶ 14-15, a voluntary abandonment of subsequent
                employment does not relate back and transform an
                involuntary departure from the original employer into a
                voluntary departure so as to render the employee ineligible
                for TTD compensation. Id. at ¶ 15.

Id. at ¶ 3-5.

       {¶ 48} As noted in the findings of fact, relator received TTD compensation for his
allowed physical conditions from October 17, 2006 through January 25, 2009, at which
time his allowed physical conditions were found to have reached MMI. Thereafter, relator
received TTD compensation for his allowed psychological condition from October 29,
2009 through February 27, 2010. At that time, relator was not released to return to any
work, relator did not return to either his former position of employment or any other
work, and, although his allowed psychological condition had not been found to have
reached MMI, relator did not receive additional psychological treatment between
November 30, 2009 and March 26, 2013.
       {¶ 49} According to Dr. Stoeckel's records, relator had stopped treating for his
allowed psychological conditions because of transportation issues and that, as of January
7, 2011, Dr. Stoeckel was attempting to re-establish a therapeutic relationship with him.
Ultimately, the BWC reactivated relator's claim and he resumed treatment with
Dr. Stoeckel who certified that he was temporarily and totally disabled from March 26,
2013 through June 26, 2013.
No. 14AP-10                                                                                   13


         {¶ 50} The magistrate finds it significant that, at this time, relator is not seeking an
award of TTD compensation during the time period in which he was not treating with Dr.
Stoeckel. This requested period of TTD compensation also coincides with the order from
the BWC dated July 25, 2013, wherein the BWC re-activated his workers' compensation
claim.
         {¶ 51} Unlike Eckerly, relator never returned to work after his work-related injury.
Further, although his allowed physical conditions had reached MMI, his allowed
psychological condition had not. Similarly to Brammer, relator's allowed psychological
condition prevented him from returning to work.             In his July 10, 2013 report, Dr.
Madigral specifically stated:
                Summary

                Results from this evaluation indicate the presence of
                psychopathology. Mr. Cummins was treated briefly. Eight
                sessions are not enough to address a Post-Traumatic Stress
                Disorder. He went without treatment for two years and
                apparently remained pathological. I believe he is in need of
                at least, six months of treatment.

                These results represent valid medical evidence with a
                reasonable degree of psychological certainty.

                Opinion

                [One] Claimant current symptoms are directly related
                causally to the prior active claim. He shows symptoms
                consistent with a Post-Traumatic Stress Disorder, which is
                his allowed condition. This condition was never resolved.

                [Two] Medical services requested are reasonably related to
                the allowed condition. They are requesting psychotherapy
                twice a month for four months which is a little less than what
                he needs. This psychotherapy is requested to address his
                PTSD symptoms.

         {¶ 52} There is no medical evidence that relator was ever able to return to his
former position of employment or to any other employment. While it is true that he
stopped treating with Dr. Stoeckel for a significant period of time, there is no evidence in
the record that he was able to work during that time and, more specifically, relator is no
No. 14AP-10                                                                                  14


longer seeking TTD compensation during the time that he was not treating with Dr.
Stoeckel. Because he was not able to return to work, the magistrate specifically finds that
the Eckerly decision does not apply here.
       {¶ 53} Because the commission's citation to Eckerly was the only rationale given
for denying relator's TTD compensation and because the magistrate finds that the Eckerly
decision does not apply to relator's situation, it is this magistrate's decision that this court
should issue a writ of mandamus ordering the commission to vacate its order which
denied relator TTD compensation and re-determine whether or not relator is entitled to
an award of TTD compensation in a manner consistent with this magistrate's decision.


                                            /S/ MAGISTRATE
                                            STEPHANIE BISCA BROOKS




                               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).
No. 14AP-10   15
