[Cite as State ex rel. DiPietrantonio v. Indus. Comm., 2017-Ohio-720.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel.                                :
Benedetto DiPietrantonio,
                                                     :

                 Relator,                            :                      No. 16AP-391

v.                                                   :                   (REGULAR CALENDAR)

Industrial Commission of Ohio and                    :
Hammond Construction, Inc.,
                                                     :
                 Respondents.
                                                     :




                                            D E C I S I O N

                                    Rendered on February 28, 2017


                 On brief: Schiavoni, Schiavoni, Bush & Muldowney,
                 Shawn R. Muldowney, and Joseph J. Bush, III, for relator.

                 On brief: Michael DeWine, Attorney General, and
                 LaTawnda N. Moore, for respondent Industrial Commission
                 of Ohio.

                 On brief: Krugliak, Wilkins, Griffiths & Dougherty Co.,
                 L.P.A., Edward D. Murray, and James M. Williams, for
                 respondent Hammond Construction, Inc.

                                             IN MANDAMUS

DORRIAN, J.

        {¶ 1} In this original action, relator, Benedetto DiPietrantonio, requests this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order denying his request for temporary total disability
No. 16AP-391                                                                             2


("TTD") compensation based on a finding that he voluntarily abandoned his employment,
and ordering the commission to find that he is entitled to TTD compensation.
       {¶ 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
that this court deny relator's request for a writ of mandamus.
       {¶ 3} No party has filed objections to the magistrate's decision. The case is now
before this court for review.
       {¶ 4} We find no error of law or other defect evident on the face of the
magistrate's decision. Therefore, we adopt the findings of fact and conclusions of law
contained therein. Accordingly, relator's request for a writ of mandamus is denied.
                                                                 Writ of mandamus denied.

                      SADLER and LUPER SCHUSTER, JJ., concur.
No. 16AP-391                                                                            3


                                      APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Bennedetto DiPietrantonio, :

               Relator,                      :

v.                                           :                   No. 16AP-391

Industrial Commission of Ohio                :               (REGULAR CALENDAR)
and
Hammond Construction, Inc.,                  :

               Respondents.                  :



                          MAGISTRATE'S DECISION

                              Rendered on October 25, 2016



               Schiavoni, Schiavoni, Bush & Muldowney, Shawn R.
               Muldowney, and Joseph J. Bush, III, for relator.

               Michael DeWine, Attorney General, and LaTawnda N.
               Moore, for respondent Industrial Commission of Ohio.

               Krugliak, Wilkins, Griffiths, & Dougherty Co., L.P.A.,
               Edward D. Murray, and James M. Williams, for respondent
               Hammond Construction, Inc.


                                    IN MANDAMUS

       {¶ 5} Relator, Bennedetto DiPietrantonio, has filed this original action requesting
this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order denying his request for temporary total disability
("TTD") compensation based on a finding that he had voluntarily abandoned his
No. 16AP-391                                                                               4


employment, and ordering the commission to find that he is entitled to that
compensation.
Findings of Fact:
       {¶ 6} 1. Relator sustained a work-related injury on October 24, 2013 and his
workers' compensation claim has been allowed for the following conditions:
               Contusion right lower leg; abrasion right hip and leg;
               contusion right ankle; contusion right forearm; sprain right
               ankle; sprain right foot; high grade aft tear; calcaneus
               fracture; articular cartilage disorder right ankle; major
               depressive disorder single episode, mild.

       {¶ 7} 2. Although relator was unable to return to his former position of
employment, his physician of record released him to return to work with restrictions.
       {¶ 8} 3. Relator's employer, Hammond Construction, Inc. ("Hammond"), did not
have any positions available within relator's restrictions; however, relator was qualified to
participate in a Modified Duty Off-Site ("MDOS") program.
       {¶ 9} 4. In a letter dated January 30, 2015, Hammond explained the purpose of
relator's temporary placement, and informed him that the rules set forth in his employee
handbook would apply while he was temporarily assigned to work at the American Red
Cross facility. Specifically, that letter provides:
               As you are aware, your physician of record has released you
               to return to work with restrictions. A copy of the restricted
               work release has been attached for your review.

               At this time, no position is available within your physician
               outlined temporary restrictions at your current employer.
               Per Company policy, it has been determined that you qualify
               to participate in the Modified Duty Off-Site Program.
               Through VocWorks, Hammond Construction Inc. has
               agreements with several non-profit organizations to provide
               temporary placement for you within your outlined
               restrictions.

               An alternative position has been secured at a local non-profit
               facility that is within your physician outlined restrictions.
               This is a temporary placement and the purpose of this
               temporary placement is to facilitate a timely and safe return
               to work with the ultimate goal of returning to work on-site at
               Hammond Construction Inc.
No. 16AP-391                                                                    5


               You are scheduled to report to work at the American Red
               Cross * * * Tuesday, February 3, 2015, at 9:00 a.m. Your
               work schedule will be Monday through Friday between the
               hours of 9:00 a.m. to 12:00 p.m. You will be reporting to
               Mark Morrow, and his phone number is * * *. Your
               VocWorks Case Manager, Linda Gillespie, will be meeting
               you at the off-site location on this day and her telephone
               number is * * *.

               You are also scheduled to report to work at the Jefferson
               County Humane Society, * * * on Tuesday, February 3, 2015,
               at 10:00 a.m. Your work schedule will be Monday through
               Friday between the hours of 1:00 p.m. to 5:00 p.m. You will
               be reporting to Cindy Bailey, and her phone number is * * *.
               Your VocWorks Case Manager, Linda Gillespie, will be
               meeting you at the off-site location on this day and her
               telephone number is * * *.

               While participating in the MDOS program, you will be
               required to follow all Company HR policy regarding
               attendance, reporting off, language, behavior, cell phone use,
               etc. (Please refer to Company Employee Handbook). An
               employee who fails to show up for a scheduled work day at
               the non-profit and has not followed the procedure for calling
               off will be considered to have quit without notice unless an
               acceptable reason has been given and is accepted by
               Company Management.

               Please note that refusal of the MDOS placement may result
               in termination of all Workers' Compensation benefits.

               Your employer is fully committed to bringing every injured
               employee back to work. If you select not to return to work on
               the date and time stated above, you will be considered to
               have voluntarily quit your employment with Hammond
               Construction, Inc.

      {¶ 10} 5. On February 3, 2015, relator and Hammond entered into an MDOS
program agreement, which provides:
               "I, Bennedetto Di[P]ietrantonio," understand that I remain
               an employee of Hammond Construction while working for
               the off-site facility:

               American Red Cross * * *
No. 16AP-391                                                                       6


               I will be working 15-20 hours per week, between the hours of
               9:00 a.m. to 12:00 p.m. (Monday through Friday). This
               position will be "temporary" and will not result in a
               permanent position with the placement organization.

               While participating in the Modified Duty Off-site program, I
               will continue to be covered under my employer[']s Workers'
               Compensation program and HR policies.

               I will be expected to document and have the agency
               supervisor sign the weekly time records. The signed weekly
               attendance record needs to be received at [sic] my employer
               by 8:00am-9:00am on Wednesday morning of each week.

       {¶ 11} 6. The employee handbook which relator received, provides the following
relevant policies:
               3.3 Recording Your Time

               Employees must record their hours on a Company approved
               time sheet and submit it to the Payroll/Accounting
               Department. Pay periods run from Wednesday through the
               following Tuesday. Employees are required to accurately
               record all time worked and submit the information to the
               Payroll/Accounting Department no later than Wednesday
               morning.

               ***

               3.10 Corrective Action

               Hammond Construction holds each of its employees to
               certain work rules and standards of conduct. When an
               employee deviates from these rules and standards, corrective
               action will be taken.

               Disciplinary action may include but is not limited to a verbal
               warning, written warning, suspension without pay and/or
               discharge. The appropriate disciplinary action will be
               imposed at the discretion of Hammond. We do not guarantee
               that one form of disciplinary action will necessarily precede
               another.

               In accordance with the employment-at-will relationship
               between the Company and the employees, dismissal or
               termination is within the solo discretion of the Company and
No. 16AP-391                                                                               7


               may be at any time for any or no reason, with or without
               notice.

               The Company considers certain rule infractions and
               violations of standards as grounds for immediate
               termination of employment. These include but are not
               limited to: theft in any form, insubordinate behavior,
               vandalism or destruction of Company property, being on
               Company property for non-business-related purpose during
               non-business hours, the use of Company equipment and/or
               Company vehicles without prior authorization by
               management, untruthfulness about personal work history,
               skills, or training, divulging Company business practices,
               and misrepresentations of the Company to a customer, a
               prospective customer, the general public, or an employee.

       {¶ 12} 7. At some point, relator began submitting time sheets indicating that he
worked from 8:00 a.m. to 4:00 p.m.
       {¶ 13} 8. Hammond became suspicious of relator's reported time and hired a
private investigator to follow him. According to the private investigator's logs, relator was
observed on numerous occasions during the summer of 2015. Despite the fact that relator
submitted time sheets indicating that he was working at the Red Cross between the hours
of 8:00 a.m. and 4:00 p.m., relator was observed mowing his own yard, visiting the
grocery store, visiting his wife at work, and visiting family members in West Virginia.
       {¶ 14} 9. Relator acknowledges that he was not at the Red Cross on the days noted
by the investigator. Relator explains his behavior by stating that Mark Morrow, his
supervisor at the Red Cross, instructed him that such action was acceptable.
       {¶ 15} 10. In a letter dated August 31, 2015, relator was notified that his
employment was being terminated based on significant violations of the employee
handbook, standards of conduct, as well as the Modified Duty Off-Site program
agreement and time reports. Specifically, the letter provides:
               Please allow this letter to serve as notice of the termination of
               your employment with Hammond Construction, Inc., effective
               the date of this letter. Your termination is based on significant
               violations of the Employee Handbook; Standards of Conduct;
               as well as the Modified Duty Off-Site Program Agreement and
               Time Reports. These violations include but are not limited to
               dishonesty, alteration, falsification, and misrepresentation of
               time records, and attendance.
No. 16AP-391                                                                      8



               Your termination from employment also includes the
               immediate termination of any salary continuation and your
               assignment to modified duty off-site at the Red Cross or any
               other facility. In addition to your immediate termination of
               employment, Hammond Construction, Inc., reserves all legal
               recourse to pursue you for damages resulting from your
               actions.

       {¶ 16} 11. After his termination, relator filed a motion requesting TTD
compensation.
       {¶ 17} 12. Relator's request for TTD compensation was heard before a district
hearing officer ("DHO") on January 5, 2016. The DHO denied relator's request for TTD
compensation finding that he had voluntarily abandoned his employment when he
falsified his time sheets. Specifically, the DHO order provides:
               The District Hearing Officer finds that the Injured Worker
               violated a written work rule that the Injured Worker knew or
               should have known the violation of which could result in his
               termination. Specifically, the Injured Worker was on written
               notice (pursuant to the Employer's handbook, as well as
               every time sheet the Injured Worker signed) that the
               submission of inaccurate time sheets could result in the
               Injured Worker's termination. Despite this fact, the Injured
               Worker did submit numerous time sheets to the Employer of
               record that the Injured Worker does not dispute were
               inaccurate.

               This order is based on the Ohio Supreme Court's [State ex
               rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio
               St.3d 401 (1995)] case, the 08/31/2015 termination letter
               from the Employer to the Injured Worker, the Injured
               Worker's numerous signed time sheets on file, the
               Employer's handbook filed 11/12/2015 (especially sections 3
               and 5), the 02/02/2015 United States Postal Service item
               delivered receipt, the 06/24/2015, 07/10/2015, 07/29/2015,
               08/03/2015 and 09/02/2015 Investigation Reports, the
               11/09/2015 Staff Hearing Officer hearing transcript, the
               01/30/2015 light duty job offer correspondence from the
               Employer to the Injured Worker (stating that the Employer's
               policies would continue to be binding on the Injured Worker
               during the Injured Worker's light duty employment), the
               testimony at hearing of Mr. Bissemeyer regarding the
               numerous instances where the Injured Worker's observed
               activities on many days conflicted with the time sheets the
No. 16AP-391                                                                            9


               Injured Worker submitted to the Employer coinciding with
               those dates, and the testimony at hearing of Mr. Kirkpatrick
               that the Injured Worker was provided a copy of the
               Employer's handbook as part of the Injured Worker's light
               duty job offer, that the Injured Worker signed and returned
               the light duty job offer and that the Injured Worker was paid
               40 hours a week for his light duty work at Red Cross based
               upon the time sheets the Injured Worker submitted to the
               Employer. The District Hearing Officer also notes that there
               was no Mr. Morrow at hearing to testify or answer questions
               (or evidence from Mr. Morrow submitted at hearing) to
               corroborate the Injured Worker's statement that Mr. Morrow
               with the Red Cross authorized the Injured Worker
               completing the time sheets as he did.

       {¶ 18} 13. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on March 2, 2016. At this hearing, Hammond presented the affidavit of Mark
Morrow, the volunteer at the American Red Cross, who signed relator's time sheets, and
who relator argued counseled him on the manner in which to complete those time sheets.
Specifically, Mr. Morrow's affidavit provides:
               [Ten] I did not track or verify Mr. DiPietrantonio's time on a
               daily basis. Based on my awareness that he was only to be
               present at the Red Cross on Monday through Friday from
               9:00 A.M. to 12:00 P.M., I cannot state with any certainty
               what days he actually worked and whether or not he actually
               worked the entire three hours from 9:00 A.M. to noon on
               any specific date.

               [Eleven] I did sign Mr. DiPietrantonio's timesheets on a
               weekly basis. However, I always signed those time sheets in
               blank at the beginning of each week before the work was
               performed. At the time I signed the timesheet, the timesheets
               were blank and did not have information or any dates and
               times worked completed [sic]. At no time did I instruct Mr.
               DiPietrantonio to complete his timesheets in an inaccurate
               or false manner.

               [Twelve] I relied on Mr. DiPietrantonio to completely,
               honestly, and accurately fill out the dates and times worked
               and submit the time reports to his employer.

               [Thirteen] I have never seen the completed timesheets which
               are attached to this Affidavit until after Mr. DiPietrantonio's
               assignment at the Red Cross was ended (after August 2015).
No. 16AP-391                                                                     10


               [Fourteen] Based on the timesheets submitted, it appears
               that Mr. DiPietrantonio was submitting time sheets generally
               representing 40 hours of work at the Red Cross each week.
               This representation is not accurate given my understanding
               that he was to work at the Red Cross generally three hours
               per day (unless absent for a doctor's appointment or other
               issue).

               [Fifteen] The time reflected on Mr. DiPietrantonio's time
               sheets does not appear accurate.

               [Sixteen] Beginning in April of 2015, Mr. DiPietrantonio's
               timesheets reflect his representation that he generally
               worked from 8:00 A.M. to 4:00 P.M. each day at the Red
               Cross. Again, this is not consistent with my understanding
               that he was generally working only three hours per day (9:00
               A.M. to noon, Monday─Friday) when available.

               [Seventeen] My reasoning for signing the blank timesheets at
               the beginning of each week was that I trusted Mr.
               DiPietrantonio to submit an accurate, complete, and truthful
               timesheet.

               [Eighteen] I am now aware that timesheets that have been
               submitted in many respects are not an accurate and truthful
               representation of the time he actually worked with the Red
               Cross in Wintersville, OH.

      {¶ 19} The SHO affirmed the prior DHO order, and denied relator's request for
TTD compensation. Specifically, the SHO concluded that relator voluntarily abandoned
his employment with Hammond when he was terminated, stating:
               The District Hearing Officer found that the Injured Worker
               had violated a written work rule of which he was aware and
               that violation led directly to his termination from
               employment. Specifically, the District Hearing Officer found
               that the Injured Worker submitted numerous time sheets to
               his Employer from June through August, 2015 that did not
               contain an accurate representation of his hours of work for
               the American Red Cross. The Injured Worker had accepted a
               modified duty off-site (MDOS) work assignment at the Red
               Cross. The Injured Worker had accepted a modified duty off-
               site (MDOS) work assignment at the Red Cross, offered by
               his Employer, as he could not return to work at his former
               position of employment due to work restrictions from his
               treating physician. The District Hearing Officer found that
No. 16AP-391                                                                            11


               the investigation report submitted by Mr. Bissemeyer for
               Infoquest indicates that the Injured Worker did not work the
               hours he listed on his time sheets on numerous occasions
               and this was a violation of the Employer's written work rules.

               In affirming the findings and order of the District Hearing
               Officer, the Staff Hearing Officer relies upon the Infoquest
               investigation reports that describe numerous dates in June,
               July, and August 2015 where the Injured Worker did not
               work for the Red Cross on the dates and times indicated on
               his time sheets; the time sheets signed by the Injured Worker
               in June, July, and August 2015 that indicate that he worked
               eight hours per day for the Red Cross and that contain a
               statement below his signature warning him that "falsification
               or misrepresentation of these hours will result in removal
               from the MDOS program and disciplinary action up to and
               including termination;" the Employee Handbook that was
               sent to the Injured Worker by the Employer of Record that
               indicates in item 3.3 that "employees are required to
               accurately record all time worked" and also indicates in
               item 5.1 that "altering or falsifying your time record, that of
               another employee or allowing your time record to be altered
               or falsified" is punishable by discipline up to and including
               termination of employment. The Staff Hearing Officer also
               relies upon the Injured Worker's testimony wherein he
               admitted that he falsely completed his time sheets regarding
               the dates and times of work for the Red Cross. Although the
               Injured Worker claims his supervisor at the Red Cross, Mark
               Morrow, permitted or even encouraged him to record false
               times, that testimony is directly opposed by Mr. Morrow's
               01/07/2016 affidavit. Nonetheless, it is clear that the Injured
               Worker was ultimately responsible for signing and
               submitting inaccurate time sheets to the Employer in
               violation of the Employer's express policy.

               Based on this evidence, the Staff Hearing Officer concludes
               that the Employer has met its burden of proving that the
               Injured Worker was terminated from employment for
               violation of a written work rule of which he was aware, which
               is sufficient to bar the requested period of temporary total
               disability.

      {¶ 20} 14. Relator's further appeal was refused by order of the commission mailed
March 23, 2016.
      {¶ 21} 15. Thereafter, relator filed the instant mandamus action in this court.
No. 16AP-391                                                                               12


Conclusions of Law:
       {¶ 22} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 23} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 24} 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).
       {¶ 25} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the
former position of employment; (3) when work within the physical capabilities of
claimant is made available by the employer or another employer; or (4) claimant has
reached maximum medical improvement ("MMI"). See R.C. 4123.56(A); State ex rel.
Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
       {¶ 26} The principles behind the voluntary abandonment doctrine and the
adherence to the requirements of State ex rel. Louisiana-Pacific Corp. v. Indus.
No. 16AP-391                                                                               13


Comm., 72 Ohio St.3d 401 (1995), are obvious. The Supreme Court of Ohio recognized
the possibility that some employers would summarily terminate injured workers in an
effort to avoid the possibility of having to pay TTD compensation. In order to prevent this
abuse of the system, the Supreme Court held in Louisiana-Pacific that there must be a
written work rule or policy that (1) clearly defines the prohibited conduct, (2) has been
previously identified by the employer as a dischargeable offense, and (3) is known or
should be known to the employee. By following this test, an employer can establish that
an injured worker has lost wages not due to the allowed conditions in a workers'
compensation claim, but due to their own voluntary acts and the potential for abuse is
significantly minimized if not eliminated altogether.
       {¶ 27} Following his injury, relator was not able to return to his former position of
employment. However, Hammond was able to offer him modified work duties which
were within his restrictions. Because relator was working this modified job, the principals
of Louisiana-Pacific and the voluntary abandonment doctrine apply.                Hammond
demonstrated that there was a written work rule contained in its employee handbook
which clearly identified the prohibited conduct and was identified as a dischargeable
offense, which relator knew or should have known. Further, Hammond presented the
MDOS agreement signed by relator acknowledging that he understood that, while
working in the modified job at the Red Cross, all the rules contained in the employee
handbook still applied.
       {¶ 28} At the hearing before the SHO, relator acknowledged that he falsified his
time records. Relator's only explanation was that Morrow instructed him how to fill out
these time forms and essentially acquiesced in his deception. Morrow submitted an
affidavit indicating that he did not tell relator to falsify his time sheets and acknowledging
that he was guilty of signing blank time sheets, and allowing relator to fill in the hours he
worked. Morrow acknowledged that this was not a good idea. The commission did not
find relator's testimony to be credible and found that Hammond met its burden of
proving that relator was discharged for violating a written work rule.
       {¶ 29} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied his application
for TTD compensation based on a finding that he had voluntarily abandoned his
No. 16AP-391                                                                       14


employment with Hammond, and this court should deny his request for a writ of
mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA



                               NOTICE TO THE PARTIES

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