[Cite as State ex rel. Klein v. Precision Excavating & Grading Co., 2017-Ohio-1020.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. John Klein,                    :

                 Relator,                            :

v.                                                   :                       No. 15AP-908

Precision Excavating & Grading Co.,                  :                (REGULAR CALENDAR)
and Industrial Commission of Ohio,
                                                     :
                 Respondents.
                                                     :




                                            D E C I S I O N

                                      Rendered on March 21, 2017


                 On brief: Richard L. Williger Co., LPA, and Richard L.
                 Williger, for relator.

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

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} Relator, John Klein, has filed a request for a writ of mandamus ordering
respondent Industrial Commission of Ohio ("commission") to vacate the April 21, 2015
order of its staff hearing officer that grants temporary total disability ("TTD")
compensation for the closed period of November 6 through 19, 2014, but denies TTD
compensation beginning November 20, 2014 based on a finding that relator has
voluntarily abandoned his employment, and to enter an order that awards TTD
compensation absent the finding that relator voluntarily abandoned his employment.
No. 15AP-908                                                                             2


       {¶ 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 to
this court the granting of a limited writ of mandamus, with instructions.
       {¶ 3} The magistrate found the commission abused its discretion in determining
that relator voluntarily abandoned his employment on November 20, 2014 without
determining whether relator remained medically unable to return to his former position
of employment on that same date. Finding State ex rel. Reitter Stucco, Inc. v. Indus.
Comm., 117 Ohio St.3d 71, 2008-Ohio-499, to be dispositive, the magistrate found that
"this case hinges on the question of whether relator medically remained unable to return
to his former position of employment beginning November 20, 2014 [and that] [t]he
commission did not fully evaluate Dr. Marley's Medco-14 because it believed that relator
was ineligible for TTD compensation as of November 20, 2014." (Appended Magistrate's
Decision at ¶ 51.)
       {¶ 4} The magistrate recommended a limited writ of mandamus and ordered:
              On remand, if the commission determines that the medical
              evidence on which it relies establishes that relator remained
              unable to return to his former position of employment on
              November 20, 2014, it shall enter an order finding that relator
              did not voluntarily abandon his employment, and that he is
              entitled to further TTD compensation. On the other hand, if,
              on remand, the commission determines that the medical
              evidence on which it relies establishes that relator was able to
              return to his former position of employment as of
              November 20, 2014, it shall enter an order that relator
              became ineligible for TTD compensation as of November 20,
              2014.

(Appended Magistrate's Decision at ¶ 52.)
       {¶ 5} The commission has filed the following objection to the magistrate's
decision:
              The Magistrate erred in granting a limited writ of mandamus
              pursuant to State ex rel. Reitter Stucco, Inc. v. Indus.
              Comm., 117 Ohio St.3d 71, 2008-Ohio-499, 881 N.E.2d 861
              because, under State ex rel. Hildebrand v. Wingate
              Transport Inc., 16 N.E.3 798, 2015-Ohio-167, as the
              commission had some evidence that Klein abandoned his
              employment for reasons unrelated to his industrial injury.
No. 15AP-908                                                                              3


       {¶ 6} The commission does not challenge the magistrate's findings of fact, but,
rather, challenges his application of law to the facts. The commission argues that Reitter
Stucco does not apply because in Reitter Stucco the claimant's loss of employment was
employer-initiated. Whereas in the case before us, relator's loss of employment was
worker-initiated. The commission suggests this court consider and apply State ex rel.
Hildebrand v. Wingate Transport, Inc., 141 Ohio St.3d 533, 2015-Ohio-167.
       {¶ 7} In Reitter Stucco, Tony A. Mayle, the injured worker, had surgery and
undertook physical therapy.        Although Mayle was a conscientious and dedicated
participant in physical therapy and his goal was to improve enough to return to his former
position of employment, his vocational team was unsure whether he would ever be
capable of the physical demands of his former position of employment on a sustained
basis. During this time, Reitter Stucco had been paying Mayle wages in lieu of TTD
compensation. Nevertheless, Reitter Stucco stopped paying Mayle wages after he was
fired for making comments about the company president. Mayle then applied for TTD
compensation which the commission ultimately granted. The Supreme Court of Ohio
denied Reitter Stucco's request for a writ of mandamus. The Supreme Court relied on the
precedent it had set in State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5
(1996), and determined that "even if a termination satisfies all three Louisiana-Pacific
criteria for being a voluntary termination, eligibility for [TTD] compensation remains if
the claimant was still disabled at the time the discharge occurred." Reitter Stucco at ¶ 10,
citing State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995).
The Supreme Court further stated that if the criteria of Louisiana-Pacific is satisfied,
suggesting that the termination was voluntary, "there must be consideration of whether
the employee was still disabled at the date of termination." Id. at ¶ 11. The Supreme
Court concluded that Louisiana-Pacific and Pretty Prods. are not mutually exclusive and
they may both factor into the eligibility analysis.
       {¶ 8} In Hildebrand, Brian J. Hildebrand, Jr., the injured worker, returned to
work with a physician's note restricting him to modified duty. The employer spoke with
Hildebrand to confirm he could return to light-duty work and, during the course of the
conversation, the employer asked Hildebrand to return the keys to the vehicle the
employer had previously loaned to him. According to the employer:
No. 15AP-908                                                                                4


              Hildebrand became agitated and asked if he was being fired.
              [The employer] replied that he was not fired, but that it was
              time for him to stop using [the employer's] Jeep. Hildebrand
              became upset and began loading tools and equipment into the
              pickup truck of an owner-operator who drove for [the
              employer]. [The employer] returned to the work site and
              asked Hildebrand to stop so that he could identify the items
              being taken. When Hildebrand refused, [the employer] called
              the police. Hildebrand eventually cooperated with the police
              officers who responded, unloaded the items, and left the
              premises.

Id. at ¶ 6. The commission denied Hildebrand's request for TTD compensation on the
basis that he had voluntarily quit his former position of employment and had not re-
entered the workforce. The commission further found that the employer had been
"ready, willing and able to offer light-duty employment" within Hildebrand's physical
capabilities. Id. at ¶ 8. The Supreme Court denied Hildebrand's request for a writ of
mandamus. The court began by noting that Hildebrand "does not appeal the finding
that he voluntarily quit his job for reasons unrelated to his industrial injury." Id. at ¶ 14.
The Supreme Court concluded:
              Because Hildebrand failed to demonstrate that his loss of
              earnings was due to the industrial injury, he did not meet that
              requirement for receiving [TTD] compensation.

              It is undisputed that evidence in the record supports that
              Hildebrand voluntarily quit his job following a disagreement
              with his employer that had nothing to do with his injury. This
              disagreement happened to occur shortly after he reported to
              work with a note from his doctor restricting him to modified
              duty. His departure was not causally related to the industrial
              injury. It was voluntary and broke the nexus between the
              injury and the unemployment; thus, he was not entitled to
              [TTD] compensation.

Id. at ¶ 21-22. The court further noted that Hildebrand could be distinguished from
Pretty Prods. and similar cases that followed because in those cases each injured worker
was already receiving TTD compensation when terminated from their employment and
had therefore already demonstrated that he or she was disabled as a result of an
industrial injury (which was the cause of a loss of earnings).
No. 15AP-908                                                                               5


       {¶ 9} The facts in the case before us are distinguishable from the facts in both
Reitter Stucco and Hildebrand. Accordingly, it is difficult to determine which precedent
should apply here. We do note, however, that here, as in Reitter Stucco, the injured
worker had not yet returned to work on the date he departed for Florida, November 20,
2014. Dr. Marley indicated on the Medco-14 that the "[i]njured worker is temporarily not
released to any work, including the former position of employment from (date):
11/5/2014 to 1/5/2015." (Stip. of Evidence, ex. 5 at 2.) In Hildebrand, on the other hand,
the injured worker had returned to work, albeit in a restricted capacity. Furthermore,
here, relator had already been receiving TTD compensation, as it was approved for the
period November 6 through 19, 2014. Therefore, a determination had already been made
that relator was disabled as a result of an industrial injury.
       {¶ 10} In Pretty Prods., the court held:
              The receipt of temporary total disability ("TTD")
              compensation rests on a claimant's inability to return to his or
              her former job as a direct result of an industrial injury. State
              ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630
              * * *, syllabus. However, eligibility may be compromised when
              the claimant is no longer employed at that job. Once a
              claimant is separated from the former position of
              employment, future TTD compensation eligibility hinges on
              the timing and character of the claimant's departure.

              The timing of a claimant's separation from employment can,
              in some cases, eliminate the need to investigate the character
              of departure. For this to occur, it must be shown that the
              claimant was already disabled when the separation occurred.
              "[A] claimant can abandon a former position or remove
              himself or herself from the work force only if he or she has
              the physical capacity for employment at the time of the
              abandonment or removal. State ex rel. Brown v. Indus.
              Comm. (1993), 68 Ohio St.3d 45, 48 * * *.

(Emphasis added.) Id. at 6-7.
       {¶ 11} The Supreme Court recently reiterated this principle in State ex rel. Cordell
v. Pallet Cos., Inc., __ Ohio St.3d __, 2016-Ohio-8446. In Cordell, the injured worker,
James F. Cordell, was injured on the job and taken to a hospital. At the hospital, a urine
sample was collected and sent for toxicology screening. Cordell applied for TTD the
following day. Six days later, the toxicology results showed that Cordell tested positive for
No. 15AP-908                                                                              6


marijuana in violation of the employer's workplace policy. The employer terminated
Cordell.   Subsequently, the commission ultimately denied Cordell's request for TTD
compensation, finding that "prior to the industrial injury [Cordell] voluntarily abandoned
his employment" by using marijuana. Id. at ¶ 8. Cordell requested a writ of mandamus.
The Supreme Court granted the writ and held:
              [P]ursuant to R.C. 4123.54 and 4123.56 and our decisions in
              [State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249,
              2007-Ohio-4916] II and Reitter Stucco, an employee who is
              medically incapable of returning to work as a result of a
              workplace injury and who is terminated after the injury for
              preinjury conduct that was discovered as a result of the injury
              has not voluntarily abandoned employment.

(Emphasis added.) Id. at ¶ 22.
       {¶ 12} The case before us differs from Cordell in that relator herein did not violate
a workplace policy prior to his industrial injury. Nevertheless, in Cordell, the court noted
that "[t]here is no dispute that Cordell was injured while working for Pallet. Cordell's
use of marijuana was not the proximate cause of his injury. When Cordell was
terminated by Pallet, he had not returned to work, he had not been released by his
doctor to return to work, he had not reached maximum medical improvement, and he
was physically incapable of returning to work. Accordingly, under R.C. 4123.54 and
4123.56, Cordell was entitled to TTD benefits." Id. at ¶ 34.
       {¶ 13} We note that the Supreme Court stated that Cordell is a case "about
termination for violation of a work rule when the violation occurs before the injury and
is discovered as a result of the injury." Id. at ¶ 36. That is not the situation we have
here. Nevertheless, the facts which the Supreme Court found relevant to its
determination in Cordell are also found in this case: (1) there is no dispute that relator
was injured while working for respondent Precision Excavating & Grading Co.,
(2) relator's departure for Florida was not the proximate cause of his injury, (3) relator
had not been released by his doctor to return to work, and (4) there was no indication
that relator had reached maximum medical improvement.           However, the commission
did not consider whether relator was physically incapable of returning to work. To treat
relator differently from Cordell would result in a precedent that claimants who violate
workplace policies prior to injury are treated more favorably than claimants who did
No. 15AP-908                                                                             7


not. Given the Supreme Court's precedent in Pretty Prods. and Reitter Stucco, we do
not construe the Supreme Court's precedent in Cordell as intending such a result. To
reiterate, as the Supreme Court did in Cordell, " ' "[a] claimant can abandon a former
position or remove himself or herself from the workforce only if he or she has the physical
capacity for employment at the time of the abandonment or removal." ' " Id. at ¶ 29,
quoting Pretty Prods. at 7, quoting State ex rel. Brown v. Indus. Comm., 68 Ohio St.3d
45, 48 (1993). Such principle is also consistent with the mandate in R.C. 4123.95 to
liberally construe workers' compensation statutes in favor of employees. Accordingly,
the commission must determine whether relator herein remained medically unable to
return to his former position of employment beginning November 20, 2014.
      {¶ 14} On review of the magistrate's decision, an independent review of the record,
and due consideration of the commission's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
the commission's objection to the magistrate's decision and adopt the magistrate's
decision, as modified herein, as our own, including the findings of fact and conclusions of
law contained therein. Accordingly, a limited writ of mandamus is hereby granted. On
remand, if the commission determines that the medical evidence on which it relies
establishes that relator remained unable to return to his former position of employment
on November 20, 2014, it shall enter an order finding that relator did not voluntarily
abandon his employment, and that he is entitled to further TTD compensation. On the
other hand, if, on remand, the commission determines that the medical evidence on
which it relies establishes that relator was able to return to his former position of
employment as of November 20, 2014, it shall enter an order that relator became
ineligible for TTD compensation as of November 20, 2014.
                                                                     Objection overruled;
                                                      limited writ of mandamus granted.

                          TYACK, P.J., and BROWN, J., concur.
No. 15AP-908                                                                         8


                                       APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. John Klein,          :

              Relator,                      :

v.                                         :                   No. 15AP-908

Precision Excavating & Grading Co.,        :              (REGULAR CALENDAR)
and
Industrial Commission of Ohio,             :

              Respondents.                 :


                          MAGISTRATE'S DECISION

                             Rendered on September 23, 2016


              Richard L. Willinger Co., LPA, and Richard L. Willinger, for
              relator.

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


                                      IN MANDAMUS

       {¶ 15} In this original action, relator, John Klein, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission"), to vacate the
April 21, 2015 order of its staff hearing officer ("SHO") that grants temporary total
disability ("TTD") compensation for the closed period November 6 through November 19,
2014, but denies TTD compensation beginning November 20, 2014, based on a finding
that relator voluntarily abandoned his employment, and to enter an order that awards
TTD compensation absent the finding that relator voluntarily abandoned his employment
on November 20, 2014.
No. 15AP-908                                                                           9


Findings of Fact:
      {¶ 16} 1. On November 5, 2014, relator fractured two ribs while employed as a
laborer for respondent, Precision Excavating & Grading Co. ("Precision Excavating"), a
state-fund employer.
      {¶ 17} 2. On the date of injury, relator was admitted to the "Trauma Surgery
Service" at Akron General Health System. Relator was discharged from the hospital six
days later on November 11, 2014. At the hospital, relator was under the care of Robert A.
Marley, M.D. The hospital "Discharge Summary" reports:
             HISTORY OF PRESENT ILLNESS: This is a 52-year-old
             male, status post fall from an ATV. The patient stated he hit
             his right side after falling off the ATV. He denied hitting his
             head, and he denied any loss of consciousness. He
             complained of right-sided chest pain on arrival to the
             emergency department. Chest x-ray showed fourth and fifth
             right-sided rib fractures, with a hemopneumothorax on the
             right-hand side. A right-sided chest tube was placed in the
             emergency department, and the patient was admitted to the
             general surgery floor for further observation.

             BRIEF HOSPITAL COURSE: On hospital day #1, the
             patient's pain was controlled with oral pain medication. He
             was tolerating a regular diet. The patient was using his
             incentive spirometer appropriately and ambulating well. The
             following day, chest x-ray showed a larger pneumothorax,
             and the chest tube was placed to negative 40 suction. He was
             continued on his regular diet. Pain Management adjusted his
             pain medications throughout his hospital stay to make him
             comfortable. Chest tube was placed back to negative 20
             suction on 11/09/2014, and put on waterseal the following
             day. The chest tube was able to be removed on 11/11/2014.
             Follow-up x-rays showed no appreciable pneumothorax. The
             patient was able to be discharged on that day, without any
             further need for an inpatient hospital stay. The patient's pain
             was controlled with oral medication and he was tolerating a
             regular diet, and he was ambulating very well. He was using
             his incentive spirometer appropriately and he was sent home
             with this device,     with breathing at home.

      {¶ 18} 3. The hospital discharge summary states that relator was instructed to
follow-up with Dr. Marley in one to two weeks.
      {¶ 19} 4. Apparently, relator did follow-up with Dr. Marley on November 20, 2014.
No. 15AP-908                                                                               10


       {¶ 20} 5. On December 4, 2014, Dr. Marley completed a form provided by the
Ohio Bureau of Workers' Compensation ("bureau"). The form is captioned "Physician's
Report of Work Ability" and is designated by the bureau as a Medco-14.
       {¶ 21} The Medco-14 asks the treating physician to indicate disability by marking a
box beside the pre-printed statement: "Injured worker is temporarily not released to any
work, including the former position of employment from (date): 11/5/2014 to 1/5/2015."
       {¶ 22} Although Dr. Marley failed to mark the box, he indicated in the spaces
provided that the disability period is from November 5, 2014 to January 5, 2015.
       {¶ 23} 6. The industrial claim (No. 14-857779) is allowed for "non-displaced
anterior 4th and 5th rib fracture, right."
       {¶ 24} 7. It is undisputed that the last date that relator worked at Precision
Excavating was the date of injury.
       {¶ 25} 8. Earlier, as noted in the commission's orders at issue, Ms. Kendall, the
controller for Precision Excavating, testified at hearing that relator called her on
October 31, 2014 and stated that he was moving to Florida, and asked her what the
procedures were for quitting his job. Ms. Kendall did not receive a written resignation
from relator, but his last date of work was November 5, 2014.
       {¶ 26} 9. The record contains the notarized statement of Rodney Myers who was
relator's co-worker at Precision Excavating. Myers states:
              On Monday November 3, John Kline [sic] let me know that
              he was going to work two more weeks then was qitting [sic]
              work to go to Florida.

       {¶ 27} 10. The record also contains the notarized statement of Dawn R. Withem,
another co-worker of relator. Withem states: "When I took John Klein to the hospital on
Wednesday, November 5th, 2014, he told me that he had recently turned his two week
notice in to go to Florida to live with his mother."
       {¶ 28} 11. The record contains chronological notations authored by relator's
managed care organization's nurse, Lori Biddinger, R.N.         On November 11, 2014,
Biddinger noted that she had spoken with "Melissa" at Precision Excavating, and that
Melissa had stated "there is light duty available and she can accommodate restrictions."
No. 15AP-908                                                                            11


       {¶ 29} 12. On November 13, 2014, Biddinger wrote: "[Injured Worker] stated he
plans on moving to Florida 11/20/14. His mother lives there. His son is going to drive him
there. He will ask Dr. Marley for a referral for a BWC certified doctor in Florida."
       {¶ 30} 13. On November 21, 2014, Biddinger wrote that she had spoken to relator
by telephone to give relator the name and telephone number of a bureau certified
physician whose office is located in Bradenton, Florida.
       {¶ 31} 14. On November 24, 2014, Biddinger indicated that relator "has relocated
to Florida."
       {¶ 32} 15. On December 30, 2014, relator moved for TTD compensation beginning
November 6, 2014 based on the December 4, 2014 Medco-14 completed by Dr. Marley.
       {¶ 33} 16. Following a February 18, 2015 hearing, a district hearing officer
("DHO") issued an order awarding TTD compensation for the closed period November 6
through November 19, 2014, but denying TTD compensation beginning November 20,
2014 based on a finding that relator had voluntarily abandoned his employment at
Precision Excavating on November 20, 2014. The DHO's order explains:
               This Hearing Officer finds that Injured Worker voluntarily
               terminated his employment on or about 11/20/2014 for
               reasons unrelated to the injuries he sustained in this claim.
               This finding is based upon Injured Worker's testimony at
               today's hearing. Injured Worker testified that he had plans to
               move to Florida before his workplace accident on
               11/05/2014. He stated that he was moving because the
               weather is better in Florida than in Ohio and there are more
               job opportunities in Florida. Injured Worker could not
               provide the actual date he moved to Florida. However,
               Bureau of Workers' Compensation notes dated 11/13/2014
               state that Injured Worker informed them that he was moving
               to Florida on 11/20/2014. Further Ms. Kendall, the
               controller for the employer, testified that Injured Worker
               called her on 10/31/2014 and stated that he was moving to
               Florida and asked her what the proper procedures were for
               quitting his job. Ms. Kendall stated that she did not receive a
               written resignation from the Injured Worker and confirmed
               that the last day he worked for the named employer
               was 11/05/2014.

               This order is based on the MEDCO-14 filed on 12/04/2014
               signed by Robert Marley, M.D.
No. 15AP-908                                                                     12


        {¶ 34} 17. Relator administratively appealed the DHO's order of February 18,
2015.
        {¶ 35} 18. Following an April 21, 2015 hearing, an SHO issued an order that
affirms the DHO's order of February 18, 2015. The SHO's order explains:
              The Hearing Officer finds that the District Hearing Officer
              order issued 02/25/2015, is affirmed.

              The C-84 Request for Temporary Total Compensation filed
              by the Injured Worker on 12/30/2014, is granted to the
              extent of this order.

              As indicated in the District Hearing Officer's order the
              Injured Worker is to be granted the payment of temporary
              total compensation for a closed period from 11/06/2014
              through 11/19/2014 inclusive.

              As indicated in the District Hearing Officer's order the
              Hearing Officer finds that the Injured Worker voluntarily
              terminated his employment with the instant Employer on
              11/20/2014, for reasons unrelated to the injuries he
              sustained in this matter.

              The District Hearing Officer at her hearing indicated that at
              that time, when he was unrepresented, he indicated to her
              that he planned to move to Florida before his work place
              accident on 11/05/2014. At the District Hearing Officer
              hearing he stated that he was moving because of the weather
              is better in Florida and that his family was down there and
              also more job opportunities in that state.

              At the District Hearing Officer hearing, he indicated that he
              did not tell the Hearing Officer what was just stated and also
              did not tell the comptroller Ms. Kendall that he was moving
              to Florida, contrary to what Ms. Kendall indicated at the
              Staff Hearing Officer's hearing.

              M[s]. Kendall had indicated that she was called on
              10/31/2014, by the Injured Worker, prior to the injury date
              of 11/05/2014, indicating that he was going to terminate his
              employment and asked the procedure on how to do that. The
              Injured Worker's last day worked was the date of injury
              11/05/2014.

              The Hearing Officer finds that the Injured Worker's
              testimony that he did not inform the comptroller of the
No. 15AP-908                                                                              13


                Employer that he was going to quit his employment and
                move to Florida on a permanent basis is not well taken as the
                Hearing Officer was explicit in her indication of what the
                Injured Worker stated at hearing.

                The Injured Worker's statements at the Staff Hearing
                Officer's hearing were not well taken and changed to an
                extent that the Staff Hearing Officer chose not to rely upon
                the Injured Worker's testimony.

                This order granting limited payment of temporary total
                compensation is based on the MEDCO-14 Physician's Report
                of Work Ability dated 12/04/2014, by Robert Marley, M.D.

          {¶ 36} 19. On May 28, 2015, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of April 21, 2015.
          {¶ 37} 20. On June 13, 2015, the three-member commission mailed an order
denying relator's request for reconsideration.
          {¶ 38} 21. On September 29, 2015, relator, John Klein, filed this mandamus
action.
Conclusions of Law:
          {¶ 39} The issue is whether the commission abused its discretion in determining
that relator voluntarily abandoned his employment with Precision Excavating on
November 20, 2014 and, therefore, is ineligible for TTD compensation beginning
November 20, 2014.
          {¶ 40} Finding that the commission abused its discretion in determining that
relator voluntarily abandoned his employment on November 20, 2014, it is the
magistrate's decision that this court issue a writ of mandamus, as more fully explained
below.
          {¶ 41} State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-
Ohio-499, is dispositive, and requires that this court issue a writ of mandamus.
          {¶ 42} In 2003, Tony A. Mayle injured his back while employed with Reitter
Stucco, Inc. Over the next several months, Mayle's symptoms did not improve, and
surgery was recommended. That operation was performed on July 12, 2004.
          {¶ 43} After surgery, Mayle undertook physical therapy, and a work-conditioning
program. Relevant documentation reveals that Mayle was a conscientious and dedicated
No. 15AP-908                                                                          14


participant. The documents indicate that Mayle's goal was to improve enough to return to
his former position of employment at Reitter Stucco. His vocational team, however, was
unsure whether Mayle would ever be capable of performing the heavy physical demands
of that job on a sustained basis.
       {¶ 44} On April 15, 2005, Mayle was fired for comments he made about the
company's president. Prior to that time, Reitter Stucco had been paying him wages in lieu
of temporary total disability compensation. The payments stopped after the termination,
prompting Mayle to file a motion with the commission for TTD compensation.
       {¶ 45} A DHO denied Mayle's motion finding that Mayle's termination constituted
a voluntary abandonment of the former position of employment under State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995). An SHO reversed,
finding that Mayle was temporarily and totally disabled when he was fired, rendering
State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996), not Louisiana-
Pacific, controlling. The commission affirmed that order.
       {¶ 46} Reitter Stucco filed a complaint for a writ of mandamus in this court. This
court upheld the commission decision, and the company appealed as of right to the
Supreme Court of Ohio.
       {¶ 47} In affirming this court's judgment, the Supreme Court explained:
              Pretty Prods. was decided shortly after Louisiana-Pacific. In
              Pretty Prods., we held that the character of the employee's
              departure -- i.e., voluntary versus involuntary -- is not the
              only relevant element and that the timing of the termination
              may be equally germane. In Pretty Prods., we suggested that
              a claimant whose departure is deemed voluntary does not
              surrender eligibility for temporary total disability
              compensation if, at the time of departure, the claimant is still
              temporarily and totally disabled. [Citations Omitted.] Thus,
              even if a termination satisfies all three Louisiana-Pacific
              criteria for being a voluntary termination, eligibility for
              temporary total disability compensation remains if the
              claimant was still disabled at the time the discharge
              occurred.

              The present litigants treat the two cases as mutually
              exclusive, with the company urging that Louisiana-Pacific is
              dispositive and Mayle and the commission citing Pretty
              Prods. Yet Louisiana-Pacific and Pretty Prods. may each
              factor into the eligibility analysis. If the three requirements
No. 15AP-908                                                                          15


             of Louisiana-Pacific regarding voluntary termination are not
             met, the employee's termination is deemed involuntary, and
             compensation is allowed. If the Louisiana-Pacific three-part
             test is satisfied, however, suggesting that the termination is
             voluntary, there must be consideration of whether the
             employee was still disabled at the date of termination. We
             thus take this opportunity to reiterate that Louisiana-Pacific
             and Pretty Prods. are not mutually exclusive and that they
             may both factor into the eligibility analysis.

             We affirm the judgment of the court of appeals, which held
             in favor of Mayle and the commission. No one disputes that
             Mayle was medically incapable of returning to his former
             position of employment at the time of his discharge. Mayle's
             eligibility for temporary total disability compensation
             accordingly remains intact.
Id. at 73.

       {¶ 48} Here, analysis begins with the observation that the commission, through its
hearing officer, relied on the December 4, 2014 Medco-14 report of Dr. Marley. In his
report, Dr. Marley certified that relator was temporarily unable to return to any work
including the former position of employment for the period beginning the date of injury
November 5, 2014 to January 5, 2015, a period of 90 days.
       {¶ 49} While the commission relied on Dr. Marley's report to award TTD
compensation for the period November 6 through November 19, 2014, it refused to grant
compensation beyond November 19, 2014 because it determined that relator had
voluntarily abandoned his employment on November 20, 2014.             Significantly, the
commission did not end the award at November 19, 2014 due to any problem with Dr.
Marley's report.
       {¶ 50} Clearly, under Reitter Stucco, if relator remained temporarily and totally
disabled on November 20, 2014, by law, he was unable to voluntarily abandon his
employment at Reitter Stucco.
       {¶ 51} Thus, this case hinges on the question of whether relator medically
remained unable to return to his former position of employment beginning November 20,
2014. The commission did not fully evaluate Dr. Marley's Medco-14 because it believed
that relator was ineligible for TTD compensation as of November 20, 2014.
No. 15AP-908                                                                             16


       {¶ 52} On remand, if the commission determines that the medical evidence on
which it relies establishes that relator remained unable to return to his former position of
employment on November 20, 2014, it shall enter an order finding that relator did not
voluntarily abandon his employment, and that he is entitled to further TTD
compensation. On the other hand, if, on remand, the commission determines that the
medical evidence on which it relies establishes that relator was able to return to his
former position of employment as of November 20, 2014, it shall enter an order that
relator became ineligible for TTD compensation as of November 20, 2014.


                                              /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).
