[Cite as State ex rel. Reichley v. Indus. Comm., 2017-Ohio-2939.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                :
James R. Reichley,
                                                     :
                 Relator,
                                                     :
v.                                                                      No. 16AP-263
                                                     :
Industrial Commission of Ohio                                       (REGULAR CALENDAR)
and Cooper Tire & Rubber Co.,                        :

                 Respondents.                        :




                                            D E C I S I O N

                                       Rendered on May 23, 2017


                 On brief: Law Offices of Thomas Tootle, and Thomas
                 Tootle, for relator.

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

                 On brief: Eastman & Smith Ltd., Richard L. Johnson, and
                 Lindsey K. Ohlman, for respondent Cooper Tire & Rubber
                 Company.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} Relator, James R. Reichley, has filed an original action requesting a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first
application for permanent total disability ("PTD") compensation ("February 2013 order")
and the January 27, 2016 order of its SHO that denied his second application for PTD
compensation ("January 2016 order"), and to enter an order that eliminates the finding
No. 16AP-263                                                                                2


that relator voluntarily abandoned the workforce and adjudicates the merits of relator's
PTD application.
       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny the request for a writ of mandamus.
       {¶ 3} Relator has filed the following two objections to the magistrate's decision:
              [I.] The record fails to contain "some evidence" to support a
              finding of voluntary abandonment of the work-force (and
              therefore precluding an award of permanent total disability).
              The Magistrate's conclusion of law finding otherwise was in
              error.

              [II.] Evidence demonstrating Relator's two week return-to-
              work was sufficient to establish a re-entry to the work-force.
              The Magistrate's conclusion of law finding otherwise was in
              error.

       {¶ 4} The facts of this case, as set forth in the magistrate's decision, indicate that
relator suffered a severe injury on March 4, 1988, while employed by respondent Cooper
Tire & Rubber Company ("Cooper Tire").          Relator's claim was allowed for multiple
conditions, including partial paraplegia. Despite these injuries, in June 1989, relator
returned to work as a supervisor at Cooper Tire, and remained in that position until
October 30, 2011. Relator's post-injury work history of more than 22 years certainly
demonstrates his willingness to remain in the workforce. After leaving employment with
Cooper Tire, relator filed a first application for PTD compensation on August 14, 2012.
He subsequently filed a second application for PTD compensation on December 23, 2014.
       {¶ 5} As explained in the magistrate's decision, the February 2013 order denied
relator's first PTD application on alternative bases: (1) that relator voluntarily abandoned
the workforce, and (2) that relator retained the ability to perform sustained remunerative
employment. The latter conclusion was based on the reports of Drs. Donato Borrillo and
Gerald Steinman, which constitute some evidence to support the SHO's finding.
Similarly, the January 2016 order denied relator's second PTD application on alternative
bases: (1) that relator voluntarily abandoned the workforce, and (2) that relator had not
reached maximum medical improvement for all of the allowed conditions in his claim.
No. 16AP-263                                                                             3


The latter conclusion was based on the reports of Drs. Franklin Kindl and Kurt Kuhlman,
which constitute some evidence to support the SHO's finding.
       {¶ 6} Relator's mandamus complaint and objections to the magistrate's decision
only challenge the findings and conclusions with respect to voluntary abandonment of the
workforce. Relator has not challenged the alternative basis for the February 2013 order or
the January 2016 order. "If it can be said that relator has challenged only one of two
bases [for denial of a PTD application], he cannot show entitlement to a writ of
mandamus if the basis he has failed to challenge supports the commission's decision."
State ex rel. Terry v. Anderson's, Inc., 10th Dist. No. 13AP-652, 2014-Ohio-4169, ¶ 57.
See also State ex rel. Davis-Hodges v. Indus. Comm., 10th Dist. No. 10AP-183, 2010-
Ohio-5871, ¶ 41 ("Where the commission provides an alternative rationale for its
determination which withstands the scrutiny of mandamus review and provides an
independent basis for the commission's decision, the fact that the commission incorrectly
applied the law in a separate portion of the order does not constitute grounds for the
granting of a writ of mandamus."). Accordingly, we need not reach the issue of voluntary
abandonment; the alternative bases in each order support the commission's decision and
relator has failed to challenge those conclusions.
       {¶ 7} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts. Moreover, we find that each order that relator seeks to
have vacated contained an alternative basis for the commission's decision, and that
relator has failed to challenge the alternative bases contained in those orders. Therefore,
relator is not entitled to a writ of mandamus and we overrule relator's objections to the
magistrate's decision. We adopt the magistrate's findings of fact as our own; because we
need not reach the issue of voluntary abandonment of the workforce, we do not adopt the
magistrate's conclusions of law. Accordingly, the requested writ of mandamus is hereby
denied.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                    TYACK, P.J., and LUPER SCHUSTER, J., concur.
No. 16AP-263                                                                                                4


                                             APPENDIX

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. James R. Reichley,                  :

                Relator,                               :

v.                                                     :                        No. 16AP-263

Industrial Commission of Ohio                         :                   (REGULAR CALENDAR)
and
Cooper Tire & Rubber, Co.,                            :

                Respondents.                          :



                              MAGISTRATE'S DECISION
                                    NUNC PRO TUNC1
                               Rendered on December 30, 2016


                Law Offices of Thomas Tootle, and Thomas Tootle, for
                relator.

                Michael DeWine, Attorney General, and Shaun Omen, for
                respondent Industrial Commission of Ohio.

                Eastman & Smith Ltd., Richard L. Johnson, and Lindsey K.
                Ohlman, for respondent Cooper Tire & Rubber, Co.


                                            IN MANDAMUS

        {¶ 8} In this original action, relator, James R. Reichley, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission") to
vacate the February 19, 2013 order of its staff hearing officer ("SHO") that denied his first
application for permanent total disability ("PTD") compensation based on a finding that

1 This magistrate's decision replaces, nunc pro tunc, the original magistrate's decision released December 29,

2016, and is effective as of that date. This magistrate's decision deletes the word "leaving" and replaces it
with the words "returning to" in the first paragraph at page eight of the original magistrate's decision.
No. 16AP-263                                                                                5


relator voluntarily abandoned the workforce, and to enter an order that eliminates the
finding that relator voluntarily abandoned the workforce.
         {¶ 9} Furthermore, relator requests that the writ order the commission to vacate
the January 27, 2016 order of its SHO that denies his second application for PTD
compensation based on a finding that he voluntarily abandoned the workforce, and to
enter an order that eliminates the finding that he voluntarily abandoned the workforce
and adjudicates the merits of the PTD application.
Findings of Fact:
         {¶ 10} 1. On March 4, 1988, relator was severely injured while employed as a
"Mobile Equipment Servicer" for respondent Cooper Tire & Rubber, Co. ("Cooper Tire"), a
self-insured employer under Ohio's workers' compensation laws. On that date, while
working on tread tray wheels, the tread tray rolled over onto relator's body pinning him to
the floor.
         {¶ 11} 2. The industrial claim (No. 968146-22) was initially allowed for:
                Burst fracture L3 with incomplete paraplegia; compound
                fracture right tibia and fibula; fracture of right calcaneus;
                laceration left forehead; ulcer of heel and midfoot; claw foot,
                acquired; left wrist scaphoid contusion.

         {¶ 12} 3. Following some recovery from the injury, relator was able to ambulate
with the use of bilateral leg braces and forearm crutches.
         {¶ 13} 4. In June 1989, relator returned to work as a supervisor at Cooper Tire.
He maintained his employment as a supervisor until he left his employment with Cooper
Tire on October 30, 2011.
         {¶ 14} 5. Relator applied for social security disability benefits. He began receiving
the benefits in April 2012.
         {¶ 15} 6. On March 29, 2012, attending physician Stephen J. Freshwater, M.D.,
wrote:
                James Reichley had a work related burst fracture of L3 in
                March 1988 which resulted in severe cauda equina
                compression and paraplegia. He has had increased pain in
                his buttocks and legs beginning in August last year. Narcotic
                pain medications were not effective for controlling his pain.
                He had a CT of the lumbar spine in September 2011 showing
                diffuse circumferential and internal dense calcifications of
No. 16AP-263                                                                            6


              the thecal sac between L3 and S2. His films were evaluated
              by Jason Schroeder, M.D. who did not believe there was any
              surgical procedure that could begin to help the changes
              present. He has been seeing Thomas Kindl, M.D. at Midwest
              Pain Treatment Center. He's had several different injections
              which have not made much difference with his pain. He is
              worse if he has to stand for more than a few minutes at a
              time, walk more that 50 feet, or sit for a prolonged period of
              time. Given this progression of his problem, I do not believe
              that he can return to work at Cooper Tire in his former
              capacity or in any available job with his current limitations. I
              believe that he qualifies for a total permanent disability.

       {¶ 16} 7. On May 10, 2012, Thomas Kindl, M.D., relator's pain management
physician, wrote:
              [T]o a reasonable degree of medical certainty, I do not
              believe that Mr. Reichley is a candidate to return to work at
              his former employer in any reasonable capacity, given his
              functional and medical limitations. I believe that his
              condition is unlikely to change over the following 12-month
              period of thereafter. I believe he therefore qualifies for total
              permanent disability.

       {¶ 17} 8. On August 14, 2012, relator filed his first PTD application. In support,
relator submitted the March 29, 2012 report from Dr. Freshwater.
       {¶ 18} 9. On the PTD application, relator indicated that he was currently receiving
social security disability benefits which started in April 2012.
       {¶ 19} 10. On October 3, 2012, at the request of Cooper Tire, relator was examined
by neurologist Gerald S. Steiman, M.D. In his five-page narrative report dated October 7,
2012, Dr. Steiman opined:
              Mr. Reichley's history, medical record review, and physical
              exam provide credible evidence he is now at the point where
              he is unable to perform his prior job activity without
              restrictions. Clearly, he is able to return to a sedentary job
              activity but I do not believe he would be able to perform
              three hours of walking and two hours of standing. A job
              activity should be one in which he sits most of the day with
              intermittent and occasional standing and short distance
              walking. For longer distances a cart would be necessary.
No. 16AP-263                                                                           7


       {¶ 20} 11. On November 6, 2012, at the commission's request, relator was
examined by Donato J. Borrillo, M.D.          In his seven-page narrative report dated
November 8, 2012, Dr. Borrillo opined:
              Mr. Reichley is extremely motivated and admirably
              ambitious, having returned to work after a significant
              traumatic injury and having retired in 2011.

              Notwithstanding his retirement from the workforce, Mr.
              Reichley is capable of sedentary duty. His lumbar condition
              prevents [him] from lifting greater than this amount, and he
              requires ADA access for his Loftstrand crutch use and AFO
              use. Furthermore, because of his back injury and incomplete
              paraplegia, he is unable to bend, crawl, climb, walk on
              uneven surfaces, or kneel safely. He requires a sit or stand
              option.

       {¶ 21} On a form captioned "Physical Strength Rating," Dr. Borrillo indicated by
his mark that relator is capable of "sedentary work."
       {¶ 22} Under "[f]urther limitations," in the space provided, Dr. Borrillo wrote in
his own hand: "ADA access [with] crutch use."
       {¶ 23} 12. At the request of Cooper Tire, Al Walker, a certified vocational
evaluation specialist, prepared a document captioned "Vocational Assessment and
Transferrable Skills Analysis Report."
       {¶ 24} In his 16-page report dated January 14, 2013, Walker concluded:
              In summary, Mr. Reichley's demonstrated work history and
              his projected physical limitations, directly related to his
              allowed conditions of his workers' compensation claims, do
              allow for selective job placement. His work history has been
              skilled demonstrating his ability to learn and function
              adequately at higher levels of vocational competency. It is
              important to understand that this vocational evaluation can
              only show if an individual has sufficient residual physical
              and mental capacities to meet the demands of particular
              jobs. It is not possible to factor in motivation or the
              willingness of an individual to do what is necessary to
              overcome the barriers they face. Dr. Borrillo and Dr. Steiman
              both state that Mr. Reichley is capable of full time physical
              work activity. No psychological limitations were identified.
              Taking into consideration the medical examinations,
              transferable skills analysis and labor market analysis there
              are numerous jobs for which Mr. Reichley has demonstrated
No. 16AP-263                                                                       8


                the aptitudes and abilities, general educational development
                and physical capabilities to perform.

       {¶ 25} 13. On February 19, 2013, an SHO heard relator's first PTD application.
The hearing was recorded and transcribed for the record.
       {¶ 26} 14. At the hearing, the following exchange occurred between the hearing
officer and relator:
                Q. There is no doubt it was a significant injury; after the
                injury you were able to go back to work and did work for a
                number of years?

                A. I did.

                Q. With Cooper, and you quit or left work what year?

                A. Well, I --

                Q. Left the work force entirely?
                A. For the entirety, 2011.

                Q. 2011, okay.

                A. And the beginning of November of 2011 from severe back
                pain, and so I was off going to pain management. He gave me
                some injections, and then it seemed like I had to get more
                injections into the back trying to solve that problem. My leg
                pain had worsened.

                Q. And that was Dr. Kindl?

                A. Dr. Kindl. I was to the point of not being able to sleep. It
                used to be I could go to sleep and it wouldn't bother me, and
                now it wakes me up.

                Q. Okay. You got social security disability?

                A. Yes.

(Tr. at 4-5.)
       {¶ 27} 15. At the hearing, the following exchange occurred between counsel for
Cooper Tire and relator:
                Q. Let me ask you, would you be willing to do vocational
                retraining?
No. 16AP-263                                                                           9


               A. If he thinks, yeah, I guess, I could, but I guess I don't
               know whether that's going to gain anything, because by the
               time you go to vocational instructions or whatever, if they
               send you to college, aren't we talking two to four years, and
               by that time I am going to be 57, 58 years old, just about into
               the social security retirement.

               Q. But your response is that you would be willing to do
               vocational restraining [sic]?

               A. If that is what it takes, I guess, but I think with my age
               and the distance, I am not so sure, I am kind of on the fence,
               yes and no. I don't know whether I would benefit from it, and
               I feel like by going to school or going to do anything like that,
               you are not going to get much more years out of me. And
               you're right about retirement, yes, I have made up my mind
               to retire, and also made up my mind years ago that I was
               going to start collecting social security at 62 and not wait
               until 70, because my dad died at 70 and I decided I was not
               going to do that. So by being on the fence of what you are
               saying, I am not sure whether it would be a good thing or a
               bad thing.

(Tr. at 30.)
       {¶ 28} 16. Following the February 19, 2013 hearing, the SHO issued an order
denying the PTD application. The SHO's order provides alternative bases for denial of the
PTD application: (1) that relator voluntarily abandoned the workforce and is thus
ineligible for PTD compensation, and (2) that relator retains the ability to perform
sustained remunerative employment. The SHO's order of February 19, 2013 explains:
               There is a single claim in this application for permanent and
               total disability benefits. The injury occurred on 03/04/1988,
               at that time, the Injured Worker was employed as a mobile
               equipment servicer with the Employer of Record. At that
               time he was working on tread tray wheels and the tread tray
               rolled over the Injured Worker pinning him to the floor. He
               suffered a burst fracture at L3 with incomplete paraplegia. A
               compound fracture of the right tibia and fibula. A fracture of
               the right calcaneus. And a laceration of the left forehead. All
               of these conditions were certified by the Employer at the
               time of the original injury. Later, the Self-Insuring Employer
               certified ulcer of the heel and midfoot; claw foot, acquired
               and left wrist scaphoid contusion.
No. 16AP-263                                                                 10


           In spite of the significant injury, the Injured Worker was able
           to return to work with the Employer of Record in a different
           position, as a supervisor in June of 1989. He continued to
           work with the Employer of Record in this position until he
           left work on 10/30/2011. At that time, he took disability
           retirement.

           Related to the allowed physical conditions within this claim,
           the Injured Worker was evaluated by an Industrial
           Commission Specialist, Donato Borrillo, M.D. Dr. Borrillo
           examined the Injured Worker on 11/06/2012, and in a report
           of 11/08/2012 Dr. Borrillo opined that Mr. Reichley is
           capable of working at sedentary duty. Dr. Borrillo also
           opined that the allowed conditions were at maximum
           medical improvement.

           The Injured Worker was also evaluated by a physician of the
           Employer's choice. On 10/07/2012 Gerald Steiman, M.D.,
           evaluated the Injured Worker on behalf of the Employer. Dr.
           Steiman offered no significant opinion regarding maximum
           medical improvement for the allowed physical conditions.
           However, Dr. Steiman did opine that Mr. Reichley is capable
           of performing sedentary work duties but would be unable to
           return to his position of employment as a supervisor, that he
           has been performing for the last twenty-three years,
           secondary to the need to stand for two hours and walk for
           three hours as part of the job duties.

           This Staff Hearing Officer finds Dr. Borrillo to be persuasive
           that the Injured Worker is, in fact, [at] maximum medical
           improvement for the allowed physical conditions within this
           claim.

           Further, this Staff Hearing Officer finds the reports of Drs.
           Borrillo and Steiman to be persuasive that the residual
           impairments secondary to the allowed conditions within this
           claim prevent Mr. Reichley from returning to his prior
           position of employment and from returning to work at his
           secondary position of employment as a supervisor. The
           reports of Drs. Borrillo and Steiman are found to be
           persuasive that the residual actions limit Mr. Reichley to a
           sedentary work position limiting him to exerting up to ten
           pounds of force occasionally and negligible amounts of force
           frequently. The physicians are found persuasive that Mr.
           Reichley would be capable of sedentary work which involves
           sitting most of the time but may involve walking or standing
           for brief periods of time.
No. 16AP-263                                                                  11


           This Staff Hearing Officer finds that Mr. Reichley does retain
           the physical capacity for sedentary work.

           The issue of Mr. Reichley's retirement was raised.

           ***

           Mr. Reichley's retirement was, at least in part, disability
           related. He was able to obtain Social Security Disability
           Benefits. However, at hearing Mr. Reichley did testify that he
           was planning on retiring at age sixty-two. He went on to
           indicate he had no interest in returning to the workforce and
           when question[ed] about vocational rehabilitation he was
           equivocal as he was not planning on working past age sixty-
           two.

           Mr. Reichley is currently fifty-five years of age and was fifty-
           four at the time he left the workforce. His age at worst, is a
           neutral factor. In fact, it could be viewed as a positive factor
           as he could, potentially, spend ten years, or more, in the
           workforce should he choose. Mr. Reichley can read, write
           and do basic math. He has a High School diploma. As such,
           he has the basic tools for entering the workforce at an entry
           level. Further, he has a long work history with the Employer
           of Record which is a positive factor, as Employer's value
           long-term Employees. He also has supervisory skills which
           are a positive factor. A vocational rehabilitation evaluation
           was performed by Al Walker, M.S. CVE-R, ABVE/AE on
           01/15/2013. Mr. Walker, based upon the reports of Drs.
           Borrillo and Steiman, indicated with a transferable skills
           analysis and a labor market analysis there were numerous
           jobs Mr. Reichley was potentially able to perform.
           Specifically, Mr. Walker listed at least thirty jobs in the
           sedentary work category ranging from skilled, to semi
           skilled, to unskilled for which Mr. Reichley is qualified to
           perform at the entry level.

           Mr. Reichley left his prior position of employment based
           upon allowed condition impairments. This finding is
           supported by the Employer examination performed by Dr.
           Steiman. However, the testimony of Mr. Reichley gives rise
           to the question of whether Mr. Reichley chose to not return
           to the workforce at a different level of employment.

           ***
No. 16AP-263                                                                         12


              This Staff Hearing Officer finds the testimony of Mr.
              Reichley clearly indicated that he left the workforce in 2011
              without any intent to return to the workforce in a lesser,
              sedentary capacity. This Staff Hearing Officer finds Mr.
              Reichley abandoned the workforce and not merely the
              previous job.

              This Staff Hearing Officer finds that Mr. Reichley has the
              basic tools and knowledge set for a return to work at entry
              level sedentary work at a clerical level.

              This Staff Hearing Officer finds no vocational preclusion to
              re-training or skills enhancement to increase Mr. Reichley's
              vocational potential. The Ohio Courts have indicated that the
              Industrial Commission may consider a failure of the Injured
              Worker to undertake rehabilitation or training that would
              permit a return to work. The relevant vocational inquiry is
              "whether the claimant may return to the job market by using
              past employment skills or those skills which may be
              reasonably developed." State ex rel. Speelman v. Industrial
              Comm., (1992) 73 Ohio App.3d 757, 762. In State ex rel.
              Bowling v. National Can Corp. (1996), 77 Ohio St.3d 148, the
              Ohio Supreme Court indicated that an injured worker must
              be held to a standard of accountability to both the Industrial
              Commission and the courts, when despite the opportunity
              for further education or advancement of skills, the Injured
              Worker has not done so. Mr. Reichley, when he found he
              could no longer perform his supervisory position, retired and
              did not pursue further educational or skills enhancement.

              This Staff Hearing Officer finds pursuant to the Ohio
              Supreme Court case law, particularly within State ex rel.
              Wilson v. Indus. Comm. (1997), 80 Ohio St.3d 250,
              permanent total disability compensation is compensation of
              last resort, to be awarded only when all reasonable avenues
              of accomplishing a return to sustained remunerative
              employment have failed. Thus it is not unreasonable to
              expect an Injured Worker to participate in return to work
              efforts to the best of his or her ability, or to take the initiative
              to improve re-employment potential.

              For the above reasons, the application for permanent and
              total disability filed 08/14/2012 is denied.

       {¶ 29} 17. On April 12, 2013, the three-member commission mailed an order
denying relator's request for reconsideration.
No. 16AP-263                                                               13


     {¶ 30} 18. On December 7, 2014, Dr. Freshwater wrote:
           James Reichley had an industrial accident in March 1988
           involving a burst fracture of L3 which resulted in severe
           cauda equina compression and paraplegia. Due to increasing
           pain beginning about August 2011, total permanent disability
           was recommended. * * *

           Due to continued pressure from his employer and a sense of
           despair/worthlessness related to not working, Mr. Reichley
           consented to return to a clerical job with his employer in
           October 2014. He states that his job duties were primarily
           sitting at a desk and performing data entry. Within two
           weeks, he discovered that he could not tolerated [sic] the
           pain across his low back radiating into his legs which was
           worsened by sitting even for short periods of time. He notes
           that he cannot walk very far because of back pain nor can he
           stand for any length of time due to back pain and the leg
           braces. Since the two-week trial, he has not worked.

           There is no amount of pain medication, therapy, or surgery
           which will alleviate his pain and allow him to do a sitting,
           standing or walking job. As stated previously, it is my
           opinion that he is totally and permanently disabled.

     {¶ 31} 19. On December 9, 2014, Dr. Kindl wrote:

           Mr. James Reichley has been evaluated and treated by the
           undersigned pursuant to back and leg condition. As you
           recall, he suffered an L3 burst fracture with resultant
           paraplegia.

           Despite near complete loss of leg use he has remained active
           with respect to remunerative labor. His physical limitations
           have precipitated the need for the use of bilateral one point
           [walking] devices to maintain [mobility].

           The protracted use of the bilateral one point walking devices
           has precipitated compensatory shoulder discomfort which is
           likely a sequela of the repetitive misuse accelerating
           degenerative change as a result of carrying near total body
           weight on the upper extremities. The likelihood of osseous
           and soft tissue derangement is high.

           In summary, Mr. Reichley presents with near complete
           paralysis of his legs after an L3 burst fracture. He has been
           reliant on upper extremity weight bearing for years which
No. 16AP-263                                                                             14


               has caused progressive shoulder deterioration. He is no
               longer able to support his body weight on two canes.

               I therefore indicate that to a reasonable degree of medical
               certainty Mr. Reichley does present with substantial physical
               barriers to performing remunerative labor. This condition is
               permanent to a greater than 50% degree of certainty.
               Improvement is not expected.

         {¶ 32} 20. On December 23, 2014, relator filed his second PTD application. In
support, relator submitted the December 7, 2014 report of Dr. Freshwater and the
December 9, 2014 report of Dr. Kindl.
         {¶ 33} 21. Also, relator submitted wage statements from R & R Chinchilla, Inc.
showing that he was employed from September 28, 2014 through October 25, 2014.
         {¶ 34} Relator was paid biweekly at $10 per hour. During the first biweekly period,
relator worked 40 hours and received gross pay of $400. During the second biweekly
period, relator worked 35 hours and received gross pay of $350.
                             Additional Claim Allowances
         {¶ 35} 22. Earlier, on May 10, 2013, relator moved for additional allowances in the
claim.
         {¶ 36} 23. Following a July 26, 2013 hearing, a district hearing officer ("DHO")
issued an order additionally allowing the claim for "bilateral supraspinatus tendon tear;
bilateral shoulder impingement syndrome."
         {¶ 37} 24. Cooper Tire administratively appealed the DHO's order of July 26,
2013.
         {¶ 38} 25. Following a September 6, 2013 hearing, an SHO issued an order
additionally allowing the claim for "bilateral supraspinatus tendon tear; bilateral shoulder
impingement syndrome."
         {¶ 39} 26. On October 4, 2013, another SHO mailed an order refusing the
employer's appeal from the SHO's order of September 6, 2013.
         {¶ 40} 27. On January 5, 2015, relator moved for an additional claim
allowance─"bicipital tenosynovitis left."
         {¶ 41} 28. On January 9, 2015, an SHO issued an "Ex Parte Order," stating:
               Injured Worker's IC-2 Application for Permanent Total
               Disability, filed 12/23/2014, is continued because the
No. 16AP-263                                                                        15


              Injured Worker's C-86 motion requesting an additional
              allowance, filed 01/05/2015 and received 12/22/2014 by
              Self-Insured Employer, must be processed prior to
              consideration of the Injured Worker's IC-2, pursuant to Ohio
              Adm.Code 4121-3-34.

              The Injured Worker's C-86 motion requesting an additional
              allowance, filed 01/05/2015, is referred for processing.
              Thereafter, the IC-2 should be referred to the Industrial
              Commission for adjudication.

       {¶ 42} 29. Following a February 17, 2015 hearing, a DHO issued an order
additionally allowing the claim for "bicipital tenosynovitis, left."
       {¶ 43} 30. The employer administratively appealed the DHO's order of
February 17, 2015.
       {¶ 44} 31. Following a May 11, 2015 hearing, an SHO issued an order stating that
the DHO's order of February 17, 2015 is "modified." However, the May 11, 2015 order of
the SHO additionally allowed the claim for "bicipital tenosynovitis left."
       {¶ 45} 32. On June 10, 2015, another SHO mailed an order refusing the
employer's appeal from the SHO's order of May 11, 2015.
       {¶ 46} 33. Earlier, on December 3, 2014, relator underwent left shoulder surgery
that was performed by orthopaedic surgeon Michael R. Tremains, M.D.
       {¶ 47} Dr. Tremains performed an arthroscopic rotator cuff repair, a subacromial
decompression, an arthroscopic Mumford procedure, and a biceps tenotomy.
       {¶ 48} 34. On February 4, 2015, at the request of Cooper Tire, relator was
examined by Douglas C. Gula, D.O. Dr. Gula examined only for the allowed conditions
related to the left shoulder.
       {¶ 49} 35. On August 10, 2015, Dr. Gula issued an addendum to his February 4,
2015 report. In his addendum, Dr. Gula opined:
              In my medical opinion, Mr. Reichley is capable of
              performing work in the sedentary category when considering
              my examination of the left shoulder that was performed on
              February 4, 2015.

       {¶ 50} 36. On August 26, 2015, at the commission's request, relator was examined
by Kurt A. Kuhlman, D.O. In his five-page narrative report, Dr. Kuhlman listed the
allowed conditions of the claim:
No. 16AP-263                                                                  16


            Burst fracture L3 with incomplete paraplegia; compound
            fracture right tibia and fibula; fracture of right calcaneus;
            laceration left forehead; ulcer of heel and midfoot; claw foot,
            acquired; left wrist scaphoid contusion; bilateral
            supraspinatus tendon tear; bilateral shoulder impingement
            syndrome; bicipital tenosynovitis, left.

     {¶ 51} Page five of Dr. Kuhlman's report states:

            ANSWER TO QUESTIONS: After performing a thorough
            history and physical examination, as well as review of
            multiple medical records, I can answer the following
            questions with a reasonable degree of medical certainty and
            probability.

            [One] Has the Injured worker reached maximum medical
            improvement with regard to each specified allowed
            condition? Briefly describe the rationale for your opinion. If
            yes, then please continue to items #2 and #3.

            a. Regarding burst fracture L3 with incomplete
            paraplegia, compound fracture right tibia and
            fibula, fracture right calcaneus, laceration left
            forehead, ulceration of heel and midfoot, clawfoot
            acquired, left wrist scaphoid contusion, left
            supraspinatus        tendon    tear,    left   shoulder
            impingement syndrome, bicipital tenosynovitis left,
            the patient has reached maximum medical improvement. He
            has underwent extensive work up and treatment including
            multiple surgeries. His symptoms are not changing
            significantly at this time with respect to these allowed
            conditions. Therefore, he has reached maximum medical
            improvement.

            b. Regarding right supraspinatus tendon tear, right
            shoulder impingement syndrome, he has not reached
            maximum medical improvement. This is because he is
            scheduled for surgery on the right shoulder in November
            2015. After his left shoulder surgery in December 2014, he
            did make definite improvement. Therefore, I am optimistic
            his right shoulder will improve after surgery as well.
            Therefore, he has not reached maximum medical
            improvement with respect to these allowed conditions.

            [Two] Based on the AMA Guides, 5th Edition, and with
            reference to the Industrial Commission Medical
            Examination Manual, provide the estimated percentage of
No. 16AP-263                                                                       17


             whole person impairment arising from each allowed
             condition. Please list each condition and whole person
             impairment separately, and then provide a combined whole
             person impairment. If there is no impairment for an
             allowed condition, indicate 0 percent. Following the
             Industrial Commission guidelines, I was instructed not to
             answer this question because he has not reached maximum
             medical improvement for all of the allowed conditions of this
             claim. I would consider reevaluating this claim six months
             after his scheduled right shoulder surgery in November 2015
             as he will probably be maximally medically improved at that
             time.

             [Three] Complete the enclosed physical strength rating. In
             your narrative report provide a discussion setting forth
             physical limitations resulting from the allowed conditions.
             Following the Industrial Commission guidelines, I was
             instructed not to answer this question because he has not
             reached maximum medical improvement for all of the
             allowed conditions of this claim.

(Emphasis sic.)
      {¶ 52} 37. On December 9, 2015, relator underwent right shoulder surgery
performed by Dr. Tremains.    Dr. Tremains performed a right shoulder arthroscopic
rotator cuff repair, an arthroscopic subacromial decompression, an arthroscopic
Mumford procedure, and an arthroscopic biceps tenotomy.
      {¶ 53} 38. On January 27, 2016, relator's second PTD application was heard by an
SHO. The hearing was recorded and transcribed for the record. On February 10, 2016,
the SHO mailed an order denying relator's second PTD application. The SHO's order of
January 27, 2016 explains:
             First and foremost, this Hearing Officer finds the Injured
             Worker voluntarily abandoned the entire job market. This
             Hearing Officer finds the Injured Worker filed a prior
             08/14/2012 application for permanent total disability which
             was addressed by a Staff Hearing Officer order issued
             02/27/2013. The Staff Hearing Officer found the Injured
             Worker to have voluntarily removed himself from the work
             force. It was found that the Injured Worker had worked for
             the Employer of record, as a supervisor, until he left his
             employment on 10/30/2011, at which time, he took disability
             retirement. The testimony of the Injured Worker was
             memorialized by the prior Staff Hearing Officer order
No. 16AP-263                                                                18


           indicating the Injured Worker testified that he was planning
           on retiring at the age of 62, had no interest in returning to
           the work force, and when he was questioned about
           vocational rehabilitation he was equivocal as he was not
           planning on working past the age of 62. This Hearing Officer
           finds it notable that the Injured Worker's current application
           for permanent total disability, filed 12/23/2014, indicates he
           is not interested in rehabilitation services and does not
           desire to undergo a rehabilitation evaluation. From the
           Injured Worker's testimony and application for permanent
           temporary disability, this Hearing Officer finds the Injured
           Worker worked two weeks, doing data entry, for a business
           named R & R Chinchilla during the period 10/06/2014 to
           10/21/2014. He testified that he left this employment due to
           having a progression of low back pain with neurological pain
           radiating to his hips and legs. However, this Hearing Officer
           finds the claim file does not contain any contemporaneous
           medical documentation indicating Injured Worker was
           removed from and/or disabled from doing this work.

           This Hearing Officer finds the Injured Worker's two week
           return to employment in October of 2014 did not cure his
           voluntary abandonment of the work force so as to establish
           his eligibility for temporary total disability compensation or
           permanent total disability compensation. The Supreme
           Court of Ohio in State ex rel. McCoy v. Dedicated Transport,
           Inc., 97 Ohio St.3d 25, 2002-Ohio-5305 held that an Injured
           Worker who abandons his or her former position of
           employment will be eligible to receive temporary total
           disability compensation if he or she re-enters the work force
           and, due to the original industrial injury, becomes
           temporarily and totally disabled while working at his or her
           new job. This Hearing Officer finds no evidence that the
           Injured Worker became temporarily and totally disabled
           while working for R & R Chinchilla in October of 2014,
           including any request for payment of temporary total
           disability compensation contemporaneous to leaving this
           position. Thus, this hearing Officer finds the Injured Worker
           did not cure his voluntary abandonment so as to establish his
           eligibility for permanent total disability should he be found
           to be permanently and totally disabled subsequent to
           October of 2014.

           In addition, the Injured Worker's application for permanent
           total disability is denied for the reason that this Hearing
           Officer does not find the Injured Worker to have reached
           maximum medical improvement for all of the allowed
No. 16AP-263                                                               19


           conditions in this claim. This Hearing Officer finds in
           support of the Injured Worker's application for permanent
           total disability, the Injured Worker submitted a 12/09/2014
           report of Franklin Kindl, M.D. wherein he opined the Injured
           Worker to present with near complete paralysis of his legs
           after an L3 burst fracture for which he is relying on upper
           extremity weight bearing for years which has caused
           progressive shoulder deterioration. He indicated the Injured
           Worker is no longer able to support his body weight onto
           canes. He opined the Injured Worker to have substantial
           physical barriers to performing remunerative labor and his
           condition is permanent. This Hearing Officer finds the
           Injured Worker recently had right shoulder arthroscopic
           rotator cuff repair with subacromial decompression,
           Mumford procedure, biceps tenotomy and debridement of
           the subscapularis and labral rim. At hearing, the Injured
           Worker acknowledged that once he healed up from his
           shoulder surgeries, the goal was for him to be able to use
           crutches again.

           On 08/26/2015, an independent medical examination was
           conducted on behalf of the Industrial Commission by Kurt
           Kuhlman, D.O. He acknowledged that the Injured Worker
           was scheduled for right shoulder surgery, believed to be in
           November of 2015. Dr. Kuhlman indicated that he was
           optimistic that the Injured Worker's right shoulder would
           improve after surgery as well. Dr. Kuhlman concluded that
           the Injured Worker had not reached maximum medical
           improvement with respect to his right supraspinatus tendon
           tear and right shoulder impingement syndrome. This
           Hearing Officer finds no medical evidence that the Injured
           Worker has reached maximum medical improvement for the
           allowed right shoulder conditions. Lastly, this Hearing
           Officer does not find a persuasive opinion from any
           physician supporting the Injured Worker to be permanently
           and totally disabled as a result of any of the recognized
           physical conditions which do not pertain to the right
           shoulder.

           Based on the aforementioned findings, this Hearing Officer
           does not find sufficient medical evidence that the Injured
           Worker is permanently and totally disabled, and if the
           medical evidence had established that the Injured Worker
           was permanently and totally disabled, this Hearing Officer
           does not find the Injured Worker eligible for permanent total
           disability benefits based on the finding that he has
           voluntarily abandoned the work force. Therefore, the Injured
No. 16AP-263                                                                            20


                Worker's application for permanent total disability, filed
                12/23/2014, is denied.

          {¶ 54} 39. On April 7, 2016, relator, James R. Reichley, filed this mandamus
action.
Conclusions of Law:
          {¶ 55} Two issues are presented: (1) whether the SHO's order of February 19, 2013
contains an abuse of discretion in finding that relator voluntarily abandoned the
workforce at the time he left work at Cooper Tire on October 30, 2011; and (2) whether
the finding of workforce abandonment in the SHO's order of January 27, 2016 constitutes
an abuse of discretion by failing to find that relator re-established PTD eligibility by
working at R & R Chinchilla, Inc. for a four-week period during September and October
2014.
                      Basic Law─PTD─Workforce Abandonment
          {¶ 56} Ohio Adm.Code 4121-3-34 provides the commission's rules for the
adjudication of PTD applications.
          {¶ 57} Thereunder, Ohio Adm.Code 4121-3-34(D) provides guidelines for the
adjudication of PTD applications.
          {¶ 58} Ohio Adm.Code 4121-3-34(D)(1) (d) currently provides:
                If, after hearing, the adjudicator finds that the injured
                worker voluntarily removed himself or herself from the work
                force, the injured worker shall be found not to be
                permanently and totally disabled. If evidence of voluntary
                removal or retirement is brought into issue, the adjudicator
                shall consider evidence that is submitted of the injured
                worker's medical condition at or near the time of
                removal/retirement.

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

                An employee who retires subsequent to becoming
                permanently and totally disabled is not precluded from
No. 16AP-263                                                                           21


              eligibility for permanent total disability compensation
              regardless of the nature or extent of the retirement.

       {¶ 60} Two cases involving PTD are instructive.
       {¶ 61} In State ex rel. Black v. Indus. Comm., 137 Ohio St.3d 75, 2013-Ohio-4550,
the claimant, Billy G. Black, applied for PTD compensation following an industrial injury.
The commission's denial of PTD compensation prompted Black to file a mandamus action
in this court. Ultimately, on appeal, the Supreme Court of Ohio upheld the commission's
denial of the application.
       {¶ 62} Black was employed as a press operator for Park Ohio, a self-insured
employer, when he injured his lower back on October 7, 2000. Dr. Elizabeth Mease
diagnosed lumbar strain and placed Black on modified duty with restrictions. When he
returned to work two days later, he was assigned to clean bathrooms. After a few hours,
he returned to Dr. Mease who indicated that Black should not engage in any activity.
       {¶ 63} On November 10, 2000, Dr. Mease authorized Black to return to work with
restrictions and referred him to Dr. Mark Panigutti, an orthopedic physician.
       {¶ 64} On December 11, 2000, Dr. Panigutti authorized Black to return to work on
December 13, 2000 with weight and standing restrictions for one month, and after one
month, to return to full duty.
       {¶ 65} Also, on December 11, 2000, Black notified his employer that he intended to
retire on February 28, 2001.
       {¶ 66} Black returned to work on modified duty on December 13, 2000.            On
January 22, 2001, Black saw Dr. Panigutti for back pain and a possible hernia. Dr.
Panigutti increased Black's weight restrictions based in part on complaints of pain
unrelated to his back injury.
       {¶ 67} The court, in Black, states:
              Black worked until February 9, 2001. He retired on
              February 28, 2001, at the age of 55 with 38 years of service.
              At no time following his retirement did Black pursue
              vocational training or seek other employment. In September
              2001, he began receiving Social Security disability benefits.
              The record does not contain an explanation of the reasons
              for granting these benefits, but Black testified in 2009 that
              they may have included, in part, his lack of education and
              medical conditions not related to his industrial injury.
No. 16AP-263                                                                           22



                On August 14, 2009, Black applied for permanent-total-
                disability compensation. Following a hearing on July 1, 2010,
                a hearing officer denied his application. The hearing officer
                noted that there was no medical evidence that any physician
                had advised Black to retire because of his previously allowed
                injuries and that Black had not worked or looked for work
                since his retirement on February 28, 2001. Thus, the hearing
                officer concluded that Black's retirement was both voluntary
                and an abandonment of the entire workforce, making him
                ineligible    for   subsequent      permanent-total-disability
                compensation.

Id. at ¶ 7-8.
       {¶ 68} In its opinion, the court, in Black, sets forth basic law instructive on the
issue before the court:
                A claimant's eligibility for permanent-total-disability
                compensation may be affected if the claimant has voluntarily
                retired or abandoned the job market for reasons not related
                to the industrial injury. State ex rel. McAtee v. Indus.
                Comm., 76 Ohio St.3d 648, 1996 Ohio 297, 670 N.E.2d 234
                (1996); State ex rel. Rockwell Internal. v. Indus. Comm., 40
                Ohio St.3d 44, 531 N.E.2d 678 (1988). Thus, the character of
                the    employee's     retirement—whether       voluntary  or
                involuntary—is critical to the commission's analysis of a
                claimant's right to permanent-total-disability compensation.
                State ex rel. Cinergy Corp./Duke Energy v. Heber, 130 Ohio
                St.3d 194, 2011-Ohio-5027, 957 N.E.2d 1, ¶ 5.

                ***

                Whether a claimant has voluntarily retired or has abandoned
                the workforce is a question of fact for the commission to
                determine. State ex rel. Pierron v. Indus. Comm., 120 Ohio
                St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140, ¶ 10. This court
                has described the question of abandonment as "'primarily
                * * * [one] of intent * * * [that] may be inferred from words
                spoken, acts done, and other objective facts.'" State ex rel.
                Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 Ohio
                St.3d 381, 383, 544 N.E.2d 677 (1989), quoting State v.
                Freeman, 64 Ohio St.2d 291, 297, 414 N.E.2d 1044 (1980).
                Accordingly, the commission must consider all relevant
                circumstances, including evidence of the claimant's medical
                condition at or near the time of departure from the
                workforce, if submitted, and any other evidence that would
No. 16AP-263                                                                           23


               substantiate a connection between the injury and retirement.
               Ohio Adm.Code 4121-3-34(D)(1)(d); Cinergy Corp., 130
               Ohio St.3d 194, 2011-Ohio-5027, 957 N.E.2d 1, ¶ 7.

               The commission is exclusively responsible for evaluating the
               weight and credibility of the evidence. State ex rel. Burley v.
               Coil Packing, Inc., 31 Ohio St.3d 18, 20-21, 31 Ohio B. 70,
               508 N.E.2d 936 (1987). If the commission's order is
               supported by some evidence in the record, then the
               commission has not abused its discretion and mandamus is
               not appropriate. Id. at 21.

Id. at ¶ 14, 18-19.
       {¶ 69} The court, in Black, concluded:
               Because the record contained some evidence to support the
               commission's decision that Black's retirement was voluntary
               and not injury-induced, we hold that the commission did not
               abuse its discretion when it determined that Black was
               ineligible for permanent total-disability compensation.
               Consequently, we reverse the judgment of the court of
               appeals and deny the writ.

Id. at ¶ 23.
       {¶ 70} In State ex rel. Kelsey Hayes Co. v. Grashel, 138 Ohio St.3d 297, 2013-
Ohio-4959, the claimant, Arthur Grashel applied for and obtained PTD compensation.
Grashel's employer, Kelsey Hayes Company, filed an original action in this court in which
it contended that Grashel had voluntarily abandoned the workforce and was thus
ineligible for PTD compensation.
       {¶ 71} This court granted the writ ordering the commission to rehear the matter
and to consider whether Grashel had voluntarily abandoned the workforce when he
retired in 2004. Id. at ¶ 10.
       {¶ 72} Following a September 1, 2009 hearing, a commission SHO again awarded
PTD compensation. Id. at ¶ 11.
       {¶ 73} The hearing officer concluded that Grashel had left the workforce due to the
allowed conditions in his claim.
       {¶ 74} Kelsey Hayes filed another mandamus in this court. This court denied the
writ and Kelsey Hayes appealed as of right to the Supreme Court of Ohio.
No. 16AP-263                                                                            24


       {¶ 75} In reversing the judgment of this court and granting the writ, the court, in
Kelsey Hayes explained:
                  Kelsey Hayes further maintains that not only did Grashel
                  voluntarily retire in 2004 but he also failed to seek other
                  employment or vocational training, thereby abandoning the
                  entire job market and making himself ineligible for
                  compensation for permanent total disability. State ex rel.
                  Baker Material Handling Corp, 69 Ohio St.3d 202, 1994
                  Ohio 437, 631 N.E.2d 138, paragraph two of the syllabus.

                  We agree that the evidence clearly demonstrates that Grashel
                  had abandoned the entire job market. After he stopped
                  working in September 2004, there is no evidence that he
                  sought other employment. He did not attempt vocational
                  rehabilitation despite statements from his treating physician
                  indicating that he could return to work in an environment
                  away from the fumes that had aggravated his condition. In
                  October 2005, Grashel testified before the commission that
                  he had opted to take an early social security retirement for
                  financial reasons after his claim for temporary-total-
                  disability compensation was denied in 2005.

Id. at ¶ 18-19.
                       Basic Law─TTD─Workforce Abandonment
       {¶ 76} State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245
is the seminal case regarding denial of TTD eligibility based on voluntary workforce
abandonment where the claimant failed to look for work following an involuntary job
abandonment.
       {¶ 77} Because Pierron is at the core of Cooper Tire's position in this action, a
review of that case is instructive.
       {¶ 78} In Pierron, the claimant, Richard Pierron, was seriously injured in 1973
while working as a telephone lineman for Sprint/United Telephone Company
("Sprint/United").
       {¶ 79} After Pierron's injury, his doctor imposed medical restrictions that were
incompatible with his former position of employment as a lineman.             Sprint/United
offered Pierron a light-duty job consistent with those restrictions and Pierron continued
to work in that position for the next 23 years.
No. 16AP-263                                                                            25


       {¶ 80} In 1997, Sprint/United informed Pierron that his light-duty position was
being eliminated. Sprint/United did not offer Pierron an alternative position, but did give
him the option to retire or be laid off. Pierron chose retirement.
       {¶ 81} In the years that followed, Pierron remained unemployed except for a brief
part-time stint as a flower delivery person.         In later 2003, he moved for TTD
compensation beginning June 17, 2001.
       {¶ 82} Ultimately, the three-member commission determined that Pierron had
voluntarily abandoned the workforce when he retired in 1997. Pierron then filed a
mandamus action in this court. This court denied the writ and Pierron appealed as of
right to the Supreme Court of Ohio.
       {¶ 83} In affirming the judgment of this court and, thus, upholding denial of the
writ, the Pierron court explained:
              We are confronted with this situation in the case before us.
              The commission found that after Pierron's separation from
              Sprint/United, his actions—or more accurately inaction—in
              the months and years that followed evinced an intent to leave
              the work force. This determination was within the
              commission's discretion. Abandonment of employment is
              largely a question "'of intent * * * [that] may be inferred from
              words spoken, acts done, and other objective facts.'" State ex
              rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm.
              (1989), 45 Ohio St.3d 381, 383, 544 N.E.2d 677, quoting
              State v. Freeman (1980), 64 Ohio St.2d 291, 297, 18 O.O.3d
              472, 414 N.E.2d 1044. In this case, the lack of evidence of a
              search for employment in the years following Pierron's
              departure from Sprint/United supports the commission's
              decision.

              We recognize that Pierron did not initiate his departure from
              Sprint/United. We also recognize, however, that there was
              no causal relationship between his industrial injury and
              either his departure from Sprint/United or his voluntary
              decision to no longer be actively employed. When a
              departure from the entire work force is not motivated by
              injury, we presume it to be a lifestyle choice, and as we stated
              in State ex rel. Pepsi—Cola Bottling Co. v. Morse (1995), 72
              Ohio St.3d 210, 216, 1995 Ohio 82, 648 N.E.2d 827, workers'
              compensation benefits were never intended to subsidize lost
              or diminished earnings attributable to lifestyle decisions. In
              this case, the injured worker did not choose to leave his
              employer in 1997, but once that separation nevertheless
No. 16AP-263                                                                            26


                  occurred, Pierron had a choice: seek other employment or
                  work no further. Pierron chose the latter. He cannot,
                  therefore, credibly allege that his lack of income from 2001
                  and beyond is due to industrial injury. Accordingly, he is
                  ineligible for temporary total disability compensation.

Id. at ¶ 10-11.
       {¶ 84} Here, Cooper Tire relies heavily on State ex rel. Floyd v. Formica Corp., 140
Ohio St.3d 260, 2014-Ohio-3614, a case that relies on Pierron.
       {¶ 85} In the Floyd case under "Facts," the Supreme Court of Ohio states:
                  On March 11, 2000, Darwin Floyd was injured while working
                  for the Formica Corporation, a self-insured employer. A
                  workers' compensation claim was allowed for various
                  shoulder conditions. Following surgery on his left shoulder,
                  he returned to light-duty work in September 2000, until his
                  light-duty assignment ended on January 21, 2001. At that
                  time, Formica no longer had any position to accommodate
                  Floyd's medical restrictions, so he began receiving
                  temporary-total-disability compensation. Shortly afterward,
                  Floyd, at age 63, applied for and began receiving Social
                  Security retirement benefits, effective April 2001.

                  Floyd's temporary-total-disability compensation continued
                  until June 21, 2006, when the commission determined that
                  his condition had reached maximum medical improvement
                  and terminated his compensation. A year later, he applied for
                  permanent-total-disability benefits but withdrew his
                  application. Following additional surgery on July 18, 2008,
                  Floyd      began     receiving     temporary-total-disability
                  compensation until the commission concluded that his
                  condition had again reached maximum medical improvement
                  on May 26, 2009.

                  Floyd's current request for temporary-total-disability
                  compensation followed surgery on November 26, 2010. A
                  staff hearing officer denied his request, finding that Floyd
                  was ineligible because he was not in the workforce as of
                  November 26, 2010. The order stated:

                  The Staff Hearing Officer notes that in 2001, the Injured
                  Worker was working for the Employer on a light duty basis
                  when the Self-Insuring Employer informed the Injured
                  Worker they no longer had light duty work available for him.
                  The Staff Hearing Officer finds that the Injured Worker was
                  placed on temporary total disability and later was found to
No. 16AP-263                                                                     27


                have reached maximum medical improvement for the
                recognized conditions in the claim. The Injured Worker
                testified that he had not worked anywhere since he had
                stopped working in 2001 when there was no light duty work
                available. He applied for and began receiving social security
                retirement benefits in May, 2001. Although the Injured
                Worker testified at the hearing he would have kept working
                for the Employer if light duty work had remained available,
                he acknowledged he did not attempt to return to work
                anywhere else after 2001.

                The hearing officer found that there was no evidence that
                Floyd had tried to find any employment since 2001.
                According to the hearing officer, who cited State ex rel.
                Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-
                5245, Floyd's failure to look for any other employment was
                evidence that he did not intend to re-enter the workforce
                after leaving Formica, thus making him ineligible for further
                compensation. The commission agreed.

Id. at ¶ 4-7.
       {¶ 86} In upholding the commission's decision that denied the request for TTD
compensation, the court explained:
                An injured worker's eligibility for temporary-total-disability
                compensation depends not only on whether the claimant is
                unable to perform the duties of the position of employment,
                but also on whether the claimant continues to be a part of the
                active workforce. Baker at 380. Because temporary-total-
                disability compensation is intended to compensate an
                injured worker for the loss of earnings while the industrial
                injury heals, a claimant who is no longer part of the
                workforce can have no lost earnings. Pierron, 120 Ohio St.3d
                40, 2008-Ohio-5245, 896 N.E.2d 140, ¶ 9; State ex rel.
                Ashcraft v. Industrial Com. of Ohio, 34 Ohio St.3d 42, 43-
                44, 517 N.E.2d 533 (1987).

                A claimant who voluntarily retires for reasons unrelated to
                the industrial injury may no longer be eligible for temporary-
                total-disability compensation to which he otherwise might be
                entitled if, by retiring, he has voluntarily removed himself
                permanently from the workforce. Baker at 383. Moreover, if
                the departure is related to the industrial injury, "it is not
                necessary for the claimant to first obtain other employment,
                but it is necessary that the claimant has not foreclosed that
                possibility by abandoning the entire workforce" in order to
No. 16AP-263                                                                            28


                  remain eligible for temporary-total-disability compensation.
                  State ex rel. Lackey v. Indus. Comm., 129 Ohio St.3d 119,
                  2011-Ohio-3089, 950 N.E.2d 542, ¶ 11; Baker at 383-384.

                  Thus, the critical issue for postretirement eligibility for
                  temporary-total-disability compensation is whether the
                  injured worker permanently abandoned the entire job
                  market after retirement. This is a factual question for the
                  commission that depends primarily on what the claimant
                  intended. State ex rel. Diversitech General Plastic Film
                  Div. v. Industrial Com. of Ohio, 45 Ohio St.3d 381, 383, 544
                  N.E.2d 677 (1989). The commission may infer a claimant's
                  intent "'"from words spoken, acts done, and other objective
                  facts."'" Id., quoting State v. Freeman, 64 Ohio St.2d 291,
                  297, 414 N.E.2d 1044 (1980), quoting United States v.
                  Colbert, 474 F.2d 174, 176 (5th Cir.1973). The commission
                  must consider all relevant circumstances existing at the time
                  of the alleged abandonment, including evidence of the
                  claimant's intention to abandon the work place as well as
                  acts by which the intention is put into effect. Id.

Id. at ¶ 14-16.
                                           First Issue
       {¶ 87} The first issue is whether the SHO's order of February 19, 2013 contains an
abuse of discretion in finding that relator voluntarily abandoned the workforce at the time
he left work at Cooper Tire on October 30, 2011. Relator contends that the finding is not
supported by some evidence on which the SHO relied. The magistrate disagrees.
       {¶ 88} Relator begins his argument by pointing out that the voluntary
abandonment issue was raised sua sponte by the SHO at the February 19, 2013 hearing,
and that the only evidence relied upon was relator's own hearing testimony. Relator
argues:
                  [W]hen provided with an invitation from the SHO -- through
                  the use of a leading question -- Reichley declined to affirm
                  his intent to leave the work force entirely. Instead, he merely
                  confirmed that he had left the work force for the entirety of
                  2011. Reichley's accurate testimony─that he left the work
                  force for the "entirety" of 2011─is "entirely" different than
                  leaving the workforce permanently as claimed by the SHO.
                  This testimony fails to act as some evidence to support the
                  Commission's finding.

(Emphasis sic.) (Relator's Brief at 15.)
No. 16AP-263                                                                             29


       {¶ 89} In the magistrate's view, relator posits a strained interpretation of the
recorded exchange between the SHO and relator.
       {¶ 90} Relator's statement "For the entirety, 2011" can be legitimately viewed as an
affirmative response to the SHO's query "Left the work force entirely?" and that it began
during the year 2011.
       {¶ 91} It can be emphasized that the SHO's order of February 19, 2013 finds:
               This Staff Hearing Officer finds the testimony of Mr.
               Reichley clearly indicated that he left the workforce in 2011
               without any intent to return to the workforce in a lesser,
               sedentary capacity. This Staff Hearing Officer finds Mr.
               Reichley abandoned the workforce and not merely the
               previous job.

       {¶ 92} The SHO was not required to give relator's hearing testimony the strained
interpretation that relator posits here. Moreover, to the extent that relator's hearing
testimony can be given two legitimate interpretations, it is the commission and its hearing
officers that weigh the evidence. Clearly, relator's testimony, as interpreted by the SHO,
provides some evidence to support the finding of a voluntary workforce abandonment.
       {¶ 93} Moreover, relator's hearing testimony, as previously discussed, cannot be
viewed in isolation with his later hearing testimony on February 19, 2013. As earlier
noted, a lengthy exchange occurred between counsel for Cooper Tire and relator. That
exchange began with a question from counsel for Cooper Tire "would you be willing to do
vocational retraining?"    The SHO's description of relator's testimony as "equivocal"
accurately describes the testimony. With respect to the question from counsel regarding a
willingness to undergo vocational retraining, relator stated "I am not so sure, I am kind of
on the fence, yes and no." Certainly, relator's response was equivocal.
       {¶ 94} Significantly, during the exchange, relator states:
               And you're right about retirement, yes, I have made up my
               mind to retire, and also made up my mind years ago that I
               was going to start collecting social security at 62 and not wait
               until 70, because my dad died at 70 and I decided I was not
               going to do that.

(Tr. at 30.)
No. 16AP-263                                                                              30


       {¶ 95} Relator's statement can be divided into two parts. One, that he has made up
his mind to retire, and two, he intends to start collecting social security at age 62.
       {¶ 96} The SHO's finding that relator "went on to indicate he had no interest in
returning to the workforce" is supported by relator's transcribed testimony.
       {¶ 97} Based on the foregoing analysis, the magistrate concludes that the SHO's
order of February 19, 2013 finding a voluntary abandonment of the workforce is
supported by some evidence and does not constitute an abuse of discretion.
                                       Second Issue
       {¶ 98} The second issue is whether the finding of a workforce abandonment in the
SHO's order of January 27, 2016 that denied the second PTD application constitutes an
abuse of discretion. That portion of the SHO's order of January 27, 2016 relevant to this
issue is repeated:
              This Hearing Officer finds the Injured Worker's two week
              return to employment in October of 2014 did not cure his
              voluntary abandonment of the work force so as to establish
              his eligibility for temporary total disability compensation or
              permanent total disability compensation. The Supreme
              Court of Ohio in State ex rel. McCoy v. Dedicated Transport,
              Inc., 97 Ohio St.3d 25, 2002-Ohio-5305 held that an Injured
              Worker who abandons his or her former position of
              employment will be eligible to receive temporary total
              disability compensation if he or she re-enters the work force
              and, due to the original industrial injury, becomes
              temporarily and totally disabled while working at his or her
              new job. This Hearing Officer finds no evidence that the
              Injured Worker became temporarily and totally disabled
              while working for R & R Chinchilla in October of 2014,
              including any request for payment of temporary total
              disability compensation contemporaneous to leaving this
              position. Thus, this Hearing Officer finds the Injured Worker
              did not cure his voluntary abandonment so as to establish his
              eligibility for permanent total disability should he be found
              to be permanently and totally disabled subsequent to
              October of 2014.

       {¶ 99} In reaching his finding, the SHO relied heavily, if not exclusively, upon State
ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, the
syllabus of which provides:
No. 16AP-263                                                                      31


             A claimant who voluntarily abandoned his or her former
             position of employment or who was fired under
             circumstances that amount to a voluntary abandonment of
             the former position will be eligible to receive temporary total
             disability compensation pursuant to R.C. 4123.56 if he or she
             reenters the work force and, due to the original industrial
             injury, becomes temporarily and totally disabled while
             working at his or her new job.

      {¶ 100} Applying its holding to the two cases before the court, the McCoy court
explains:
             It is important to note that this holding is limited to
             claimants who are gainfully employed at the time of their
             subsequent disabilities. In contrast, every case that we
             decided before Baker involved a claimant who had not only
             voluntarily abandoned the former employment, but who also
             had no job at the time of the subsequent period of disability.
             Thus, none of our prior decisions is affected by our holding
             today, and claimants in those situations will continue to be
             ineligible for TTD compensation.

             We now proceed to apply our holding to the facts presented
             in the instant cases. In case No. 2001-0232, claimant McCoy
             voluntarily abandoned his former position of employment at
             Dedicated Transport on March 13, 1998, by virtue of being
             justifiably fired. He sought TTD compensation beginning on
             January 26, 1999, the date he was allegedly diagnosed with a
             disc herniation, or alternatively on June 28, 1999, the date of
             his surgery. However, there is no evidence in the record to
             suggest that McCoy was gainfully employed at these times or
             that he would have been employed if not for his industrial
             injury. To the contrary, the record reveals that McCoy's only
             employment from March 13, 1998, when he was fired, to
             June 28, 1999, when he underwent surgery, consisted of
             driving his cousin's truck on 12 to 15 separate days between
             February 3, 1999, and April 15, 1999 for $ 12 each day.
             Indeed, McCoy's attorney succinctly stated during a hearing
             held on October 29, 1999, before the commission's hearing
             officer that this "activity * * * did not constitute sustained
             gainful employment."

             Accordingly, McCoy is not eligible to           receive TTD
             compensation for the periods in question.

             In case No. 2001-0406, claimant Brandgard voluntarily
             abandoned his former position of employment at America's
No. 16AP-263                                                                            32


                 Body Co. on September 10, 1999, when he was justifiably
                 fired after testing positive for cocaine. He sought TTD
                 compensation from September 24, 1999, the date he
                 underwent surgery, to October 22, 1999, the date he returned
                 to work for a different employer. However, there is no
                 evidence in the record of this case to suggest that Brandgard
                 was actually employed at his new job prior to September 24,
                 1999, or between September 24 and October 22, 1999.

Id. at ¶ 40-43.
                 Here, besides its citation to McCoy, respondent-employer cites to that
portion of Pierron wherein the court notes that, in the years that followed his
involuntary retirement from Sprint/United Telephone Company, "Pierron remained
unemployed except for a brief part-time stint as a flower delivery person." Pierron at
¶ 4. That is, Pierron's brief part-time stint did not serve to re-establish eligibility for
TTD compensation.
      {¶ 101} In State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-
2587, the Supreme Court of Ohio had occasion to further explain the McCoy holding:
                 The present claimant seemingly misunderstands McCoy. He
                 appears to believe that so long as he establishes that he
                 obtained another job -- if even for a day -- at some point after
                 his departure from Tech II, TTC eligibility is forever after
                 reestablished. Unfortunately, this belief overlooks the tenet
                 that is key to McCoy and all other TTC cases before and
                 after: that the industrial injury must remove the claimant
                 from his or her job. This requirement obviously cannot be
                 satisfied if claimant had no job at the time of the alleged
                 disability.

                 In the case at bar, there is no evidence that claimant was
                 employed in February 2003 when the requested period of
                 TTC was alleged to have begun. To the contrary, it appears
                 that claimant was almost entirely unemployed in the two
                 years after his discharge from Tech II, earning only
                 approximately $ 800 during that period.

Id. at ¶ 9-10.
No. 16AP-263                                                                                33


      {¶ 102} The magistrate recognizes that McCoy and its progeny, including Eckerly,
are cases involving TTD compensation.          That is, the cases do not adjudicate PTD
compensation.
      {¶ 103} Nevertheless, the magistrate finds that the syllabus of McCoy is applicable
here where a claimant who has voluntarily abandoned the workforce seeks to reinstate his
PTD eligibility by evidence of subsequent employment.
      {¶ 104} As the SHO's order of January 27, 2016 finds, relator's brief return to
employment in September and October 2014 does not show that relator permanently re-
entered the workforce nor does it re-establish eligibility for PTD compensation. While it
may be argued that relator was engaged in gainful employment during a four-week period
from September 28 through October 25, 2014, relator did not remain at the job and he
has presented no contemporaneous medical evidence that his quitting the job was
causally related to the allowed conditions of the industrial claim.
      {¶ 105} Accordingly, based on the above analysis, the magistrate concludes that the
SHO's order of January 27, 2016 does not constitute an abuse of discretion in refusing to
find that relator re-established eligibility for PTD compensation by working at R & R
Chinchilla, Inc.
      {¶ 106} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE


                              NOTICE TO THE PARTIES

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