[Cite as State ex rel. Cook v. Indus. Comm., 2016-Ohio-8497.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



The State ex rel. Denzil Cook,                         :

                 Relator,                              :

v.                                                     :           No. 15AP-1025

Industrial Commission of Ohio                          :        (REGULAR CALENDAR)
and
Dominion Homes, Inc.,                                  :

                 Respondents.                          :



                                         D E C I S I O N

                                  Rendered on December 29, 2016


                 On brief: Law Office of Stanley R. Jurus, and Frank A.
                 Vitale, for relator.

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

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
        {¶ 1} Relator, Denzil Cook, commenced this original action requesting a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order exercising continuing jurisdiction over and vacating a June 5, 2015 order of a
staff hearing officer ("SHO") and to direct the commission to issue an order awarding
relator permanent total disability ("PTD") 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 the appended decision,
No. 15AP-1025                                                                              2


including findings of fact and conclusions of law. The magistrate determined that because
the SHO's order contained a clear mistake of law, the commission did not abuse its
discretion when it exercised continuing jurisdiction over the SHO's order. As a result, the
magistrate recommended that this court deny the requested writ of mandamus. For the
following reasons, we overrule relator's objections and deny the requested writ.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 3} None of the parties have filed objections to the magistrate's findings of fact,
and following an independent review of the record, we adopt those findings as our own.
As more fully set forth in the magistrate's decision, relator sustained a work-related injury
in 1967 when he was 20 years old, and his industrial claim was allowed for acute lumbar
myositis and depressive neurosis. Over the next 40 years, relator worked for several
employers in various positions such as a truck driver, machine operator, and warehouse
laborer. Relator ceased working in November 2008 when he was laid off from seasonal
construction work. Relator filed three applications for PTD compensation over the next
several years. His first two applications, filed in 2010 and 2013, were both denied by SHO
orders finding relator capable of performing sustained remunerative employment.
During a hearing regarding the 2013 application, relator testified that he stopped working
in 2008 because he could not keep up or do the work, which included heavy lifting and
cleaning dump truck beds, any longer.
       {¶ 4} Relator filed his third application for PTD compensation, the subject of this
action, in February 2015. In opposing the application, the Ohio Bureau of Workers'
Compensation ("BWC") argued that relator voluntarily abandoned the workforce
following the commission's 2010 and 2013 denials of PTD compensation. On June 5,
2015, the SHO granted relator's application for PTD compensation based on an April 12,
2015 report of a doctor finding relator unable to perform any sustained remunerative
employment due to the allowed medical conditions. The SHO found the BWC's argument
regarding voluntary abandonment of the workforce incorrect because relator's hearing
testimony from 2013 referencing why he stopped working in 2008 "was not the answer of
someone just trying to voluntarily abandon the workforce." (June 5, 2015 SHO Order at
2.)
No. 15AP-1025                                                                           3


       {¶ 5} The BWC requested reconsideration of the SHO's June 5, 2014 order.
Following a hearing, the commission found that the BWC met its burden of proving that
the SHO order contains a clear mistake of law to support the commission's exercise of
continuing jurisdiction. Specifically, the commission found that the SHO failed to
adequately analyze the BWC's contention that relator's inaction in seeking employment or
pursuing rehabilitation after the commission denied his prior two PTD applications
constitutes a mistake of law and that, considering such argument, relator had voluntarily
abandoned the workforce rendering him ineligible for PTD compensation.
       {¶ 6} Relator filed the present mandamus action. As previously indicated, the
magistrate recommended that this court deny relator's request to issue the writ of
mandamus. In its decision, the magistrate disagreed with relator's argument that the
commission abused its discretion by exercising its continuing jurisdiction when it granted
the BWC's motion for reconsideration of the SHO order. The magistrate noted that
relator's hearing testimony from January 2013 relating to why relator stopped working in
2008 does not dispose of the BWC's argument that relator abandoned the workforce since
the commission's rejections of his PTD applications in 2010 and 2013. As such, the
magistrate concluded that the SHO's failure to address the issue raised by the BWC
constitutes a clear mistake of law to support the commission's exercise of continuing
jurisdiction.
II. OBJECTIONS
       {¶ 7} Relator does not separately set forth specific objections to the magistrate's
decision but, instead, generally argues that the commission abused its discretion by
exercising its continuing jurisdiction to grant the BWC's request for reconsideration from
the SHO order awarding relator PTD compensation. Specifically, relator argues that the
SHO order did not contain a clear mistake of law regarding whether relator had
abandoned the workforce, implies that the magistrate incorrectly found that the SHO did
not consider the BWC's voluntary abandonment arguments in reaching these conclusions,
and asserts that the SHO had some evidence to support his conclusion that relator lacked
the intention to voluntarily abandon the workforce.
No. 15AP-1025                                                                            4


III. DISCUSSION
      {¶ 8} Relator raises, in essence, the same arguments made to and addressed by
the magistrate. We conclude that the magistrate correctly reasoned that based on a clear
mistake of law, the commission did not abuse its discretion in exercising its continuing
jurisdiction to vacate the June 4, 2015 SHO order. The record shows that after the
commission denied relator's two prior applications for PTD compensation in 2010 and
2013 based on determinations that relator could engage in sustained remunerative
employment, relator did not attempt to seek or return to employment. Contrary to
relator's argument, the magistrate correctly explained that the SHO order did not address
this issue but, rather, only discussed evidence relating to why relator stopped working in
2008. Therefore, for the reasons set forth in the magistrate's analysis, we overrule
relator's objections. State ex rel. Schottenstein Stores Corp. v. Indus. Comm., 10th Dist.
No. 07AP-1066, 2009-Ohio-2142, ¶ 4-5.
IV. CONCLUSION
      {¶ 9} Following review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate properly
determined the facts and applied the appropriate law.          Therefore, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law. In
accordance with the magistrate's decision, the requested writ of mandamus is denied.
                                                                    Objections overruled;
                                                               writ of mandamus denied.

                          BROWN and BRUNNER, JJ., concur.
                               ___________________
No. 15AP-1025                                                                         5


                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Denzil Cook,                :

              Relator,                        :

v.                                            :                   No. 15AP-1025

Industrial Commission of Ohio                 :                (REGULAR CALENDAR)
and
Dominion Homes, Inc.,                         :

              Respondents.                    :


                         MAGISTRATE'S DECISION

                                 Rendered on August 26, 2016


              Law Office of Stanley R. Jurus, and Frank A. Vitale, for
              relator.

              Michael DeWine, Attorney General, and Natalie J. Tackett,
              for respondent Industrial Commission of Ohio.


                                      IN MANDAMUS

       {¶ 10} In this original action, relator, Denzil Cook, requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its
August 13, 2015 order that exercised continuing jurisdiction over the June 5, 2015 order
of its staff hearing officer ("SHO") that had awarded relator permanent total disability
("PTD") compensation beginning February 4, 2015, and to enter an order that reinstates
the SHO's award of PTD compensation.
Findings of Fact:
       {¶ 11} 1. On June 27, 1967, relator injured his lower back while employed as a
"dock worker" for respondent Dominion Homes, Inc. The industrial claim (No. 67-
No. 15AP-1025                                                                         6


37540) was initially allowed for "acute lumbar myositis."          Later, the claim was
additionally allowed for "depressive neurosis."
        {¶ 12} 2. Following his injury, relator returned to his job as a dock worker. He
continued to work there until about 1972. Following employment at Dominion Homes,
Inc., relator worked several other jobs. Relator last worked in November of 2008 when
he was laid off from seasonal construction work.
        {¶ 13} 3. On March 30, 2009, relator filed the first of three PTD applications.
Following an October 26, 2010 hearing, which was recorded and transcribed for the
record, an SHO mailed an order on November 6, 2010 denying the PTD application.
        {¶ 14} 4. The SHO's order states reliance upon three doctors who examined
relator for the allowed physical and psychological conditions of the claim. The SHO
determined:
              These physician's [sic] support the conclusion that the
              allowed physical and psychological conditions in this claim
              do not prevent the Injured Worker from engaging in certain
              types of sustained remunerative employment.

        {¶ 15} 5. The SHO's order of October 26, 2010 concludes:
              The Hearing Officer finds that the physical limitations due to
              the allowed conditions would limit the Injured Worker to
              light-duty work. The Injured Worker is capable of
              performing unskilled light-duty work based upon the Injured
              Worker's past work experience and his current physical
              restrictions and psychological restrictions. The Hearing
              Officer finds that the Injured Worker has an ability to be a
              courier, delivery driver, ticket taker, and greeter. Based upon
              the reports of Dr. Lewin, Dr. Tosi, and Dr. Freeman, the
              Hearing Officer finds that the Injured Worker is capable of
              performing sustained remunerative employment.

        {¶ 16} 6. On August 2, 2012, relator filed his second PTD application. Following
a January 9, 2013 hearing which was recorded and transcribed for the record, an SHO
mailed an order on March 9, 2013 denying the application. The SHO's order states in
part:
              It is the finding of the Staff Hearing Officer that the Injured
              Worker retains the residual physical, psychological, and
              intellectual capacities to engage in light, sedentary sustained
No. 15AP-1025                                                               7


            remunerative employment. In finding that the Injured
            Worker is not permanently and totally disabled due to the
            allowed conditions in the claim, the Staff Hearing Officer
            relies upon the medical report of Dr. Donald, [sic] Tosi,
            Ph.D., dated 09/06/2012, Dr. Vogelstein, M.D., dated [sic]
            and Mr. J. Kilbane, M.Ed., dated 12/12/2012.

            The Injured Worker is a 65-year-old male who completed the
            10th grade at Hilliard High School. The Staff Hearing Officer
            finds that the Injured Worker has the ability to read, write
            and perform basic math. After leaving school the Injured
            Worker did not attend any school for vocational training,
            however while the Injured Worker was in the workforce he
            was able to learn various skills through [sic] while
            performing various jobs.

            The records document that at the time of the injury the
            Injured Worker was only 20 years of age and continued to
            work for the next 40 years for various employers in different
            positions. The Injured Worker worked as [a] truck driver for
            19 years, self employed truck driver for 6 years, machine
            operator for 7 years, and for other years he was employed in
            various positions such as warehouse person, stocker, and
            laborer.

            ***

            It is the order of the Staff Hearing Officer that the Injured
            Worker's application for permanent and total disability
            benefits is denied for the reason set forth in this order.

            The Injured Worker is a 65-year-old male who completed the
            10th grade, has the ability to read, write and perform basic
            math. The Injured Worker has indicated that he does not
            read or write well. The Staff Hearing Officer does not find
            that statement to be credible. As the Injured Worker clearly
            has the intelligence to obtain commercial driver's license,
            obtain his own business as self-employed truck driver.

            The Injured Worker had to enter into contractual
            agreements, concerning the rate of pay, terms of the
            agreement and complete documents for his commercial
            license. The Injured Worker also was employed [as] a truck
            driver for numerous years which would require him to
            complete paperwork. The Staff Hearing Officer finds that the
            Injured Worker has demonstrated that he has the ability to
No. 15AP-1025                                                                 8


             learn new tasks, maintain and find employment as
             demonstrated by his 40 plus year employment history and
             self-employment.

             ***

             The Staff Hearing Officer further notes that on 03/30/2009,
             the Injured Worker had applied for permanent total
             disability and on 10/26/2010, the IC denied the application
             finding that the Injured Worker could engage in sustained
             remunerative employment. After the finding by the IC, for
             the next two [sic] the Injured Worker did not attempt to seek
             employment or further improve his marketability to obtain
             employment even though the IC found that Injured Worker
             was not permanently and totally disabled.

      {¶ 17} 7. During the January 9, 2013 hearing, on direct examination by his
counsel, the following exchange occurred:
             Q. And then after Capital what did you do?

             A. Well, I tried to do my own trucking, but then I went to
             work for JF Reynolds.

             Q. And your own trucking, what did you do in your own
             trucking? You just drove -- what kind of truck did you drive?

             A. A dump truck. Doing the same thing I was doing at JF
             Reynolds.

             Q. Okay. Then you went to work for JF Reynolds in 1989?

             A. Yeah.

             Q. And you did that for almost -- ten years; is that correct?

             A. Almost 20 years, I think.

             Q. Between the two, you mean?

             A. Oh. Well, okay, yeah.

             Q. Okay. And you had to stop working in 2008?

             A. Yeah.
No. 15AP-1025                                                                         9


              Q. Why was that?

              A. I just couldn't keep up, couldn't do the work any longer. A
              lot of stress hold -- heavy lifting and cleaning up the beds of
              the dump truck that I operated.

(Jan. 9, 2013 Tr. at 6.)

       {¶ 18} 8. On February 20, 2015, relator filed his third PTD application.
       {¶ 19} 9. On June 5, 2015, the PTD application was heard by an SHO. The
hearing was recorded and transcribed for the record.         During the hearing, a staff
attorney for the Ohio Bureau of Workers' Compensation ("bureau") argued that the
record shows that relator voluntarily abandoned the workforce following the
commission's October 26, 2010 denial of the first PTD application and the commission's
January 9, 2013 denial of the second PTD application.          The bureau staff attorney
argued:
              So the argument is that Mr. Cook has not looked for work.
              He last worked in November of 2008. He has not looked for
              work since at least 2013 or possibly 2010. He has not
              engaged in any vocational, any vocational -- I said the word
              endeavors -- since that time. He was found capable by the
              Industrial Commission of returning to work in some
              capacity, not in his former position of employment, but in
              some capacity at least twice since 2010.

              As I indicated, there is no evidence since that time that he
              has engaged in any sort of job search activities or even
              worked in any capacity per his own indication to the IC
              examining physician.

(June 5, 2015 Tr. at 6-7.)

       {¶ 20} 10. Following the June 5, 2015 hearing, the SHO mailed an order on
June 9, 2015 granting relator's third PTD application. The SHO's order of June 5, 2015
explains:
              Permanent and total disability compensation is awarded
              from 02/04/2015 for the reason that the earliest supporting
              medical evidence for this 02/20/2015 application, is the
              02/04/2015 report of Charles May, D.O.
No. 15AP-1025                                                                    10


             Based upon the report of Marianne Collins, Ph.D., dated
             04/12/2015, it is found that the Injured Worker is unable to
             perform any sustained remunerative employment solely as a
             result of the medical impairment caused by the allowed
             psychological condition(s). Therefore, pursuant to State ex
             rel. Speelman v. Indus. Comm. (1992), 73 Ohio App.3d 757,
             it is not necessary to discuss or analyze the Injured Worker's
             non-medical disability factors.

             The Bureau of Workers' Compensation attorney argued that
             the Injured Worker voluntarily abandoned the work force.

             The Staff Hearing Officer does not find that to be correct.
             There is a transcript on file of a permanent total disability
             hearing held on 01/09/2013. On page 6, Mr. Muldoon asks
             the Injured Worker why he stopped working in 2008. The
             Injured Worker replied, "I just couldn't keep up, couldn't do
             the work any longer. A lot of stress hold -- heavy lifting and
             cleaning up the beds of the dump truck that I operated."

             The Staff Hearing Officer finds that the answer was not the
             answer of someone just trying to voluntarily abandon the
             workforce. The Staff Hearing Officer finds therefore, that
             there is jurisdiction to consider the merits of the application.

      {¶ 21} 11. On June 23, 2015, the bureau requested reconsideration of the SHO's
order of June 5, 2015. In its memorandum in support, the bureau argued:
             The SHO clearly did not understand the BWC's position at
             the 06/09/2015 hearing. The precise argument made was
             that the Industrial Commission had twice previously denied
             the Injured Worker PTD benefits in 2010 and 2013. There
             were clear findings in both orders that PTD was denied
             because the Injured Worker was capable of performing
             sustained remunerative employment within physical and
             psychological restrictions. At the very least, an abandonment
             of the workforce occurred subsequent to the PTD denial in
             2013 if not in 2010. Since 2010, the Injured Worker has not
             sought nor has he expressed an interest [in] rehabilitation
             services. The [Injured Worker] has not looked or sought
             employment elsewhere since at least 2010. The allowed
             physical and psychological conditions upon which the IC
             decided that the injured worker was capable of restricted
             work have not changed since the 2013 PTD denial.

             ***
No. 15AP-1025                                                                   11


             The Industrial Commission has established that the injured
             worker was capable of returning [to] some form of sustained
             remunerative employment physically and psychologically in
             both 2010 and 2013. The evidence is clear that the injured
             worker has not made any effort to return to work since PTD
             was denied. The SHO in 2013 also noted that the injured
             worker failed to look for any work or become marketable
             since the prior denial in 2010.

             Despite the overwhelming evidence of voluntary
             abandonment, the SHO relied upon a transcript of the
             injured worker's testimony from the 2013 PTD denial and
             indicated that the injured worker stopped working in 2008
             because he couldn't do the work any longer. The Industrial
             Commission has already determined that the injured worker
             was capable of work so the injured worker's 2013 testimony
             is irrelevant. The correct inquiry should be: "what
             opportunities the injured worker has availed himself to since
             at least 2013?" The Injured Worker did not look for work
             since the initial denial in 2010 and did not look for work
             since the most recent denial in 2013.

      {¶ 22} 12. On June 29, 2015, relator filed a memorandum in opposition to the
bureau's motion for reconsideration.
      {¶ 23} 13. On July 16, 2015, the three-member commission mailed an
"Interlocutory Order," stating:
             It is the finding of the Industrial Commission the
             Administrator has presented evidence of sufficient probative
             value to warrant adjudication of the Request for
             Reconsideration regarding the alleged presence of a clear
             mistake of fact in the order from which reconsideration is
             sought, and a clear mistake of law of such character that
             remedial action would clearly follow.

             Specifically, it is alleged in rejecting the Administrator's
             argument the Injured Worker is not entitled to permanent
             total disability compensation due to voluntary abandonment
             of the workforce, the Staff Hearing Officer erred in
             referencing only the circumstances under which the Injured
             Worker quit work in 2008. It is further alleged the Staff
             Hearing Officer failed to analyze the Administrator's
             contention the Injured Worker's inaction in seeking suitable
             employment or pursuing rehabilitation subsequent to the
             denials in 2010 and 2013 respectively of two of his prior
No. 15AP-1025                                                                    12


             applications for permanent total disability constitutes a
             voluntary abandonment of the entire workforce, since each
             denial order at the time found the Injured Worker capable of
             sustained remunerative employment within his claim-related
             restrictions.

             Based on these findings, the Industrial Commission directs
             that the Administrator's Request for Reconsideration, filed
             06/23/2015, be set for hearing to determine whether the
             alleged clear mistakes of fact and law as noted herein are
             sufficient for the Industrial Commission to invoke its
             continuing jurisdiction.

             In the interest of administrative economy and for the
             convenience of the parties, after the hearing on the question
             of continuing jurisdiction, the Industrial Commission will
             take the matter under advisement and proceed to hear the
             merits of the underlying issue(s). The Industrial Commission
             will thereafter issue an order on the matter of continuing
             jurisdiction under R.C. 4123.52. If authority to invoke
             continuing jurisdiction is found, the Industrial Commission
             will address the merits of the underlying issue(s).

      {¶ 24} 14. Following an August 13, 2015 hearing, the three-member commission
mailed an order that exercises continuing jurisdiction over the SHO's order of
June 5, 2015 (mailed June 9, 2015) and vacates the SHO's order. Then the commission
determined that relator had voluntarily abandoned the workforce, and on that basis,
denied the PTD application. The commission's order more fully explains:
             [I]t is the decision of the Industrial Commission the
             Administrator has met his burden of proving the Staff
             Hearing Officer order, issued 06/09/2015, contains a clear
             mistake of law of such character that remedial action would
             clearly follow. Specifically, the Staff Hearing Officer failed to
             adequately analyze the Administrator's contention the
             Injured Worker's inaction in seeking suitable employment or
             pursuing rehabilitation subsequent to the denials of the
             Injured Worker's two prior applications for permanent total
             disability, in 2010 and 2013 respectively, constitutes a
             voluntary abandonment of the entire workforce, since each
             denial order at the time found the Injured Worker capable of
             sustained remunerative employment within the Injured
             Worker's claim-related restrictions. Therefore, the Industrial
             Commission exercises continuing jurisdiction. * * *
No. 15AP-1025                                                                    13


                It is the order of the Commission the order of the Staff
                Hearing Officer, issued 06/09/2015, is vacated, and the IC-2,
                Application for Compensation for Permanent Total
                Disability, filed 02/20/2015, is denied. In accordance with
                Ohio Adm.Code 4121-3-34(D)(1)(d), the Commission finds
                the Injured Worker is not permanently and totally disabled
                because the Injured Worker voluntarily removed himself
                from the entire work force.

                Permanent total disability compensation was previously
                denied by Staff Hearing Officer orders, issued 11/06/2010
                and 03/09/2013, respectively. Both orders were based upon
                the determination the allowed conditions were not
                permanently and totally disabling. The latter order
                specifically commented upon the Injured Worker's lack of
                vocational rehabilitation and job search, stating, "[O]n
                10/26/2010, the IC denied the application finding that the
                Injured Worker could engage in sustained remunerative
                employment. After the finding by the IC, for the next two
                (sic) the Injured Worker did not attempt to seek employment
                or further improve his marketability to obtain employment
                even though the IC found that Injured Worker was not
                permanently and totally disabled."

                The Injured Worker last worked in 2008. The Injured
                Worker has not participated in a vocational rehabilitation
                program and he has not sought suitable employment
                consistent with the two prior orders, determining the Injured
                Worker retained the physical, psychological, and vocational
                capacity for sustained remunerative employment. The
                Commission finds the Injured Worker has abandoned the
                entire work force as evidenced by the Injured Worker's
                inaction to seek work or vocational rehabilitation. State ex
                rel. Kelsey Hayes Co. v. Grashel, 138 Ohio St.3d 297, 2013-
                Ohio-4949, 6 N.E.3d 1128. As a result of the Injured
                Worker's voluntary abandonment of the entire work force,
                the Injured Worker is not eligible for permanent total
                disability compensation. Baker Material Handling Corp. v.
                Indus. Comm., 69 Ohio St.3d 202, 631 N.E.2d 138, 1994-
                Ohio-437.

          {¶ 25} 15. On November 9, 2015, relator, Denzil Cook, filed this mandamus
action.
No. 15AP-1025                                                                         14


Conclusions of Law:
       {¶ 26} The issue is whether the commission abused its discretion when it
exercised its continuing jurisdiction over the June 5, 2015 order of the SHO that had
awarded relator PTD compensation. Finding no abuse of discretion, it is the magistrate's
decision that this court deny relator's request for a writ of mandamus, as more fully
explained below.
                                 Continuing Jurisdiction
       {¶ 27} Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and
changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law,
or (5) error by an inferior tribunal. State ex rel. Royal v. Indus. Comm., 95 Ohio
St.3d 97 (2002).
       {¶ 28} The presence of one of these prerequisites must be clearly articulated in
any commission order seeking to exercise reconsideration jurisdiction, i.e., continuing
jurisdiction. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-
5990, ¶ 15. This means that the prerequisite must be both identified and explained. Id.
       {¶ 29} In Royal, the commission had awarded Gerald Royal PTD compensation.
Thereafter, the employer timely sought reconsideration. After initially denying the
motion, the commission granted reconsideration.          Pertinent here is the court's
discussion of mistake of fact:
              The reliance on "mistake of fact" is equally untenable. When
              the initial PTD order and disputed reports are read closely,
              the perceived error is not so much mistake as a difference in
              evidentiary interpretation. The report of vocational
              consultant Roger Livingston is confusing and can be
              interpreted several ways. The commission and appellant-
              employer took the narrow interpretation, looking exclusively
              at the academic and vocational conclusions. The SHO, on the
              other hand, read these things in conjunction with the
              unfavorable medical prognosis that Livingston repeatedly
              stressed, and concluded that regardless of an affirmative
              vocational profile, claimant could not overcome the obstacles
              imposed by the loss of his right arm.

              This is significant because a legitimate disagreement as to
              the evidentiary interpretation does not mean that one of the
No. 15AP-1025                                                                          15


              interpretations is wrong. Thus, any assertion of a clear error
              of fact is questionable.

Id. at 100.

                              Workforce Abandonment
        {¶ 30} "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."
State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202
(1994), paragraph two of the syllabus.
        {¶ 31} Workforce abandonment can also bar temporary total disability
compensation. State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-
5245. State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-
2579.
        {¶ 32} A failure to seek other work or pursue vocational rehabilitation after a
commission adjudication that a claimant is capable of sustained remunerative
employment can support a finding that, by his own inaction, the claimant has
voluntarily abandoned the workforce. State ex rel. Roxbury v. Indus. Comm., 138 Ohio
St.3d 91, 2014-Ohio-84; State ex rel. Krogman v. B & B Ents. Napco Flooring, LLC,
10th Dist. No. 14AP-477, 2015-Ohio-1512.
                                         Analysis
        {¶ 33} Relator has filed three successive PTD applications. In 2010 and 2013, the
commission denied the first and second applications. In each case, the commission
determined that, based on the medical evidence and consideration of the non-medical
factors, relator is able to perform sustained remunerative employment.          However,
relator did not pursue employment after the 2010 and 2013 commission adjudications.
        {¶ 34} When relator filed his third PTD application in February 2015, the bureau
clearly had an argument for a finding of a voluntary workforce abandonment based
upon relator's inaction following denial of his first two applications.
        {¶ 35} As earlier noted, the transcript of the June 5, 2015 hearing before the SHO
undisputedly shows that the bureau argued for a denial of the application based on an
No. 15AP-1025                                                                           16


alleged voluntary workforce abandonment. Notwithstanding the bureau's argument and
its presentation of its position, the SHO's order of June 5, 2015 fails to even mention the
bureau's argument. Rather, the SHO's order of June 5, 2015 is focused on a portion of
relator's recorded testimony at the January 9, 2013 hearing of his second PTD
application. In awarding PTD compensation, the SHO's order of June 5, 2015 relies on
relator's testimony that he stopped working in 2008 because he could no longer do the
work at which he was last employed.
      {¶ 36} Even if relator's January 9, 2013 hearing testimony is accepted, that
cannot end the SHO's inquiry because the bureau's argument for a workforce
abandonment is not at odds or inconsistent with relator's testimony that he was no
longer able to perform the work that he was doing in 2008. That is, relator's hearing
testimony does not, in any way, undermine the bureau's argument. Thus, relator cannot
successfully argue here that the SHO's acceptance of relator's January 9, 2013 hearing
testimony can be viewed as an implicit rejection of the bureau's argument. Clearly, the
SHO's order of January 9, 2013 completely fails to address an issue that was clearly put
before the SHO. The SHO's failure to address the issue constitutes a clear mistake of
law. State ex rel. Gen. Am. Transp. Corp. v. Indus. Comm., 49 Ohio St.3d 91 (1990).
      {¶ 37} Accordingly, 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).
