[Cite as State ex rel. Coltrane v. Indus. Comm., 2021-Ohio-3421.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Robert Coltrane, : 

 

 Relator, : 

v. : No. 20AP-338 

 

Industrial Commission of Ohio et al., : (REGULAR CALENDAR) 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on September 28, 2021 

 

On brief: Becker & Cade, and Dennis A. Becker, for relator. 

On brief: Dave Yost, Attorney General, and Cindy Albrecht, 

for respondent Industrial Commission of Ohio. 

On brief: Sybert, Rhoad, Lackey & Swisher, LLC, Brant K. 

Rhoad, and Matthew S. Goff, for respondent Sorenson 

Communications, LLC. 

 

IN MANDAMUS 

JAMISON, J. 

{¶ 1} In this original action, relator Robert Coltrane, seeks a writ of mandamus 

compelling respondent, the Industrial Commission of Ohio, to vacate its order finding that 

relator is not entitled to working wage loss compensation, and enter an order granting such 

compensation. 

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision 

that included findings of fact and conclusions of law, then recommended that this court 

deny the requested writ of mandamus (attached as appendix). Relator did not file an 

objection to the magistrate's decision. 
No. 20AP-338 2 

{¶ 3} Pursuant to Civ.R. 53(D)(4), the court conducted a full review of the 

magistrate's decision. The court finds that there is no error of law or other defect upon the 

face of the decision. Therefore, the court adopts the magistrate's decision as its own, 

including the findings of fact and conclusions of law contained therein, and denies the 

requested writ of mandamus.

 Writ of mandamus denied. 

SADLER and MENTEL, JJ., concur. 

 
No. 20AP-338 3 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Robert Coltrane, : 

 

 Relator, : 

v. : No. 20AP-338 

 

Industrial Commission of Ohio et al., : (REGULAR CALENDAR) 

 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on April 29, 2021

 

Becker & Cade, and Dennis A. Becker, for relator. 

Dave Yost, Attorney General, and Cindy Albrecht, for 

respondent Industrial Commission of Ohio. 

Sybert, Rhoad, Lackey & Swisher, LLC, Brant K. Rhoad, and 

Matthew S. Goff, for respondent Sorenson Communications, 

LLC. 

 

IN MANDAMUS 

{¶ 4} Relator, Robert Coltrane, seeks a writ of mandamus ordering respondent, 

Industrial Commission of Ohio ("commission"), to vacate its order finding that relator is 

not entitled to working wage loss compensation ("WWLC"), and enter an order granting 

such compensation. 

Findings of Fact: 

{¶ 5} 1. Relator, a professional sign-language interpreter, sustained an injury 

classified as an occupational disease arising in the course and scope of his employment 

with Sorenson Communications, LLC. 
No. 20AP-338 4 

{¶ 6} 2. Relator's claim was allowed with a date of injury of November 2, 2016 for 

stenosis, tenosynovitis of right ring finger. 

{¶ 7} 3. At the time of injury, relator performed part-time work as an interpreter 

for Sorenson Communications, and also worked full time with his own company, Deaf 

Choice, Inc. 

{¶ 8} 4. The Ohio Bureau of Workers' Compensation ("BWC") allowed the 

condition by order mailed November 9, 2016 designating Sorenson Communications as 

the responsible employer. Sorenson Communications filed an appeal. (Stip. at 10.) 

{¶ 9} 5. Relator's treating physician Edward A. Marcheschi, M.D., completed a 

series of BWC Medco-14 ("Physician's Report of Work Ability") forms indicating that 

relator was unable to perform his prior job and should be off work entirely. (Stip. at 18, 

22, 28, 34.) 

{¶ 10} 6. Successive district hearing officer ("DHO") and staff hearing officer 

("SHO") orders on May 10 and August 24, 2017 overruled Sorenson Communications' 

appeal and allowed the claim as granted by BWC. (Stip. at 40, 43.) 

{¶ 11} 7. Relator was referred to Mark Yuhas, M.D., for evaluation and possible 

surgery. (Stip. at 58-59.) Dr. Yuhas performed surgery on November 14, 2017. (Stip. at 

91.) Dr. Yuhas released relator to perform full job duties effective December 18, 2017. 

(Stip. at 60, 62.) 

{¶ 12} 8. Relator applied for WWLC on June 22, 2018, requesting compensation 

paid from November 1, 2016 through December 18, 2017. (Stip. at 73.) With his 

application, relator included an affidavit indicating that his medical restrictions 

prevented his return to work for Sorenson Communications, while he continued to 

perform "ownership duties" for his own company, Deaf Choice: 

This Affidavit is being given to provide information in support 

of the Application for Wage Loss Benefits for the period of 

November 1, 2016 through December 5, 2017. 

At the time of injury, November 1, 2016, I was employed 

working two jobs as set forth in the previous Wage Affidavit as 

an owner operator of Deaf Choice and as an employee of 

Sorenson Communications. 
No. 20AP-338 5 

At the time of injury, I was no longer permitted to do signing 

activities and thus performed no services for Sorenson 

Communications during the period of November 1, 2016 to 

December 5, 2017; at which time I was released to perform full 

duty activities, i.e. with no further medical restrictions. 

During the period of November 1, 2016 through December 5, 

2017 I continued to perform ownership duties with Deaf Choice 

but performed no signing interpretive services for Deaf Choice. 

Because of the restrictions, my earnings were reduced as 

reflected in the attached statement from Deaf Choice, 

indicating my earnings for the period in question. 

(Stip. at 75.) 

{¶ 13} 9. Dr. Marcheschi submitted a Medco-14 dated November 21, 2017, again 

certifying relator as unable to return to work. 

{¶ 14} 10. Relator submitted his pay records from Deaf Choice and Sorenson 

Communications for 2016 and 2017, including W2s from both companies. (Stip. at 77, 

80-90.) Relator reported $45,405.21 in wages in 2016 and $38,833.17 in wages in 2017 

from Deaf Choice. (Stip. at 77-78, 84.) Relator reported $12,108.51 in wages from 

Sorenson Communications in 2016 and $738.68 in wages from Sorenson 

Communications in 2017. (Stip. at 87, 89.) 

{¶ 15} 11. A DHO issued an order on November 16, 2018, denying the requested 

WWLC from November 1, 2016 through December 18, 2017. (Stip. at 96.) 

{¶ 16} 12. On further appeal, an SHO heard the matter on October 10, 2019 and 

issued an order on October 16, 2019 upholding the DHO's order as follows: 

It is the finding of the Hearing Officer that the order of the 

District Hearing Officer, issued 11/16/2018, is affirmed with 

additional reasoning. 

It is the order of the Staff Hearing Officer that the Injured 

Worker's C-140 initial Application for Wage Loss 

Compensation, filed 06/22/2018 be denied. 

The Injured Worker's C-140, filed 06/22/2018 requests 

payment of working wage loss compensation for the period of 

11/02/2016 through 12/18/2017. 
No. 20AP-338 6 

The Hearing Officer finds that the Injured Worker has failed 

to meet his burden of proof of demonstrating that he has 

complied with the wage loss rules as set forth in Ohio 

Adm.Code 4125-1-01. Therefore, the Hearing Officer denies 

the Injured Worker's request for payment of working wage 

loss compensation. 

The Hearing Officer finds that prior to the Injured Worker 

contracting an occupational disease in this claim, the Injured 

Worker worked two jobs, one as an owner/operator of Deaf 

Choice and a second job with the employer of record, 

Sorenson Communications, as a sign language interpreter. 

The Injured Worker's employment as the owner/operator of 

Death [sic] Choice required the Injured Worker to work as a 

sign language interpreter as well as engage in administrative 

functions including training and evaluating interpreters and 

completing paperwork. Following the occupational disease in 

this claim, the Injured Worker testified that he continued to 

work as an owner/operator of Death [sic] Choice but was 

unable to continue as a sign language interpreter. Further, 

following the occupational disease, the Injured Worker was 

unable to return to his employment with the employer of 

record Sorenson Communications as a sign language 

interpreter. The Injured Worker's inability to return to his 

position of employment as a sign language interpreter with 

Sorenson Communications was based upon the medical 

documents from Edward Marcheschi, M.D. dated 11/02/2016 

and 11/21/2017. 

The Injured Worker is requesting payment of working wage 

loss compensation based upon his inability to return to his 

position of employment as a sign language interpreter with 

Sorenson Communications. 

* * * 

In the present case, the Hearing Officer finds that there is no 

evidence that the Injured Worker engaged in a good faith job 

search for suitable employment. The Hearing Officer finds 

that there is no record of a job search or any evidence that the 

Injured Worker attempted to find employment that would 

eliminate his loss in wages. 

* * * 
No. 20AP-338 7 

The Hearing Officer finds that the Injured Worker has failed 

to meet his burden of proof of demonstrating that he has 

complied with the wage loss rules as set forth in Ohio 

Adm.Code 4125-1-01 as he has failed to engage in a good faith 

effort to search for suitable employment which is required of 

individuals seeking working wage loss compensation. 

Therefore, the Hearing Officer denies the Injured Worker's 

request for payment of working wage loss compensation from 

11/02/2016 through 12/18/2017. 

(Stip. at 100.) 

{¶ 17} 13. The commission refused relator's appeal from the SHO's order. (Stip. 

at 104.) 

{¶ 18} 14. Relator filed his complaint for writ of mandamus on July 2, 2020. 

Discussion and Conclusions of Law: 

{¶ 19} 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). 

{¶ 20} Relator asserts he has a clear legal right to a writ of mandamus because the 

commission abused its discretion when it found that relator had not met his burden of 

proof to establish that he had either engaged in a good-faith effort to find suitable 

employment or complied with wage loss rules as set forth in Ohio Adm.Code 4125-1-01, 

and that he was therefore not entitled to WWLC. Relator asserts that the commission 

applied the incorrect standard to his application, and further asserts that Ohio Adm.Code 
No. 20AP-338 8 

4125-1-01 as amended effective June 26, 2017 is deficient because it fails to define specific 

guidance for WWLC applicants with dual employment. 

{¶ 21} Wage loss compensation is provided under R.C. 4123.56(B) to compensate 

for the wage loss of persons who are unable to return to a former position of employment 

due to an allowed condition. State ex rel. Oldaker v. Indus. Comm., 143 Ohio St.3d 405, 

2015-Ohio-2569, ¶ 8. Entitlement to wage loss compensation first requires the claimant 

to demonstrate that the allowed conditions actually caused a wage loss. Id. The claimant 

must also demonstrate that the claimant has made a search for suitable employment to 

mitigate the loss of income caused by the allowed conditions. Id. Such compensation may 

be classified as either WWLC or non-working wage loss compensation, with 

correspondingly different requirements and benefits. Ohio Adm.Code 4125-1-01(A)(8) 

and (15); Ohio Adm.Code 4125-1-01(C) and (D). WWLC applies to claimants who, like 

relator here, suffer a wage loss but are still able to work on a limited basis. Oldaker at ¶ 

8. 

{¶ 22} The Administrative Code defines the requisite wage loss as follows: 

"Non-working wage loss" means the dollar amount of the 

diminishment in wages sustained by an injured worker who 

has not returned to work because he or she has been unable to 

find suitable employment despite a good faith job search (as 

described in paragraph (E)(1)(c) of this rule). However, the 

extent of the diminishment must be the direct result of 

physical and/or psychiatric restrictions caused by the 

impairment that is causally related to an industrial injury or 

occupational disease in a claim allowed under Chapter 4123. 

of the Revised Code. 

{¶ 23} The Administrative Code further defines suitable employment as follows: 

"Non-working wage loss" means the dollar amount of the 

diminishment in wages sustained by an injured worker who 

has not returned to work because he or she has been unable to 

find suitable employment despite a good faith job search (as 

described in paragraph (E)(1)(c) of this rule). However, the 

extent of the diminishment must be the direct result of 

physical and/or psychiatric restrictions caused by the 

impairment that is causally related to an industrial injury or 

occupational disease in a claim allowed under Chapter 4123. 

of the Revised Code. 
No. 20AP-338 9 

{¶ 24} Finally, the Administrative Code defines comparably paying work as 

follows: 

"Comparably paying work" means suitable employment in 

which the injured worker’s weekly rate of pay is equal to or 

greater than the average weekly wage of the injured worker. 

{¶ 25} Current Ohio Adm.Code 4125-1-01(D), as amended effective June 26, 2017, 

governs applications for WWLC and specifies the steps an applicant must take to 

substantiate the applicant's attempts to mitigate the claimed wage loss: 

(D) Working wage loss compensation. — 

Except as otherwise provided in paragraphs (D)(4) and (D)(5) 

of this rule, an injured worker applying for or receiving 

working wage loss compensation shall supplement his or her 

wage loss application with a job search statement describing 

the injured worker’s search for comparably paying work 

unless excused by the bureau of workers’ compensation, the 

industrial commission, or the self-insuring employer in selfinsured employer claims. 

(1) Unless a job search has been excused by the bureau of 

workers’ compensation, the industrial commission, or the 

self-insuring employer in self-insured employer claims, the 

job search statements shall comply with the following 

requirements: 

(a) Job search statements shall be submitted for every week 

where working wage loss compensation is sought; 

(b) The completed job search statements shall be submitted 

with any subsequent request for working wage loss 

compensation; 

(c) An injured worker who receives working wage loss 

compensation for periods after the filing of the application for 

wage loss compensation shall submit the job search 

statements completed pursuant to this rule, at a minimum, 

every four weeks to the bureau of workers’ compensation or 

the self-insuring employer in self-insured employer claims 

during the period when working wage loss compensation is 

requested; 

(d) Job search statements shall include the name and address 

of each employer contacted, the employer’s telephone 
No. 20AP-338 10 

number, the position sought, a reasonable identification by 

name or position of the person contacted, the date and 

method of contact, for on-line job searches, a copy of the online posting and verification of the application submission, 

the result of the contact, and any other information required 

by the bureau of workers’ compensation job search statement; 

(2) Job search statements shall be submitted on forms 

provided by the bureau of workers’ compensation or 

equivalent forms. 

(3) Failure to perform a job search as required by 

paragraph (D) of this rule will be construed as a voluntary 

limitation of income in accordance with paragraph (G)(2) of 

this rule. 

 Further requirements are specified at Ohio Adm.Code 4125-1-01(E): 

In considering an injured worker’s eligibility for wage loss 

compensation the adjudicator shall give consideration to, and 

base the determinations on, evidence in the file, or presented 

at hearing, relating to: 

(1) The injured worker’s search for suitable employment when 

required under the provisions of this rule. 

(a) As a prerequisite to receiving * * * working wage loss 

compensation * * * for any period during which such 

compensation is requested, the injured worker shall 

demonstrate that he or she has: 

(i) Complied with paragraph (B)(2) of this rule and, if 

applicable, with paragraph (B)(3) of this rule; 

(ii) Sought suitable employment with the employer of record at 

the onset of the first period for which wage loss compensation 

is requested unless the injured worker establishes that it would 

be futile to seek suitable employment with the employer of 

record. (e.g. The injured worker was discharged or the 

employer of record is out of business.); and 

(iii) In the case of non-working wage loss, the injured worker 

must register with the Ohio department of job and family 

services or, if the injured worker is an out-of-state resident, 

must register with the equivalent of the Ohio department of job 

and family services in the state of residence and begin or 

continue a job search if no suitable employment is available 
No. 20AP-338 11 

with the employer of record. Proof of registration with the 

applicable agency is required for both in-state and out-of-state 

residents to demonstrate compliance with this rule. 

(b) An injured worker may first search for suitable employment 

which is within his or her skills, prior employment history, and 

educational background. If within sixty days from the 

commencement of the injured worker’s job search, he or she is 

unable to find such employment, the injured worker shall 

expand his or her job search to include entry level and/or 

unskilled employment opportunities. 

(c) A good faith effort to search for suitable employment that is 

comparably paying work is required of those seeking nonworking wage loss compensation pursuant to paragraph (C) of 

this rule and of those seeking working-wage loss compensation 

pursuant to paragraph (D) of this rule, who have not returned 

to suitable employment that is comparably paying work, except 

for those injured workers who are receiving public relief and 

are defined as work relief employees in Chapter 4127. of the 

Revised Code. A good faith effort necessitates the injured 

worker’s consistent, sincere, and best attempts to obtain 

suitable employment that will eliminate the wage loss. 

{¶ 26} The general thrust of these provisions is to ensure that the claimant has 

made a " 'good faith effort to search for suitable employment which is comparably paying 

work.' " State ex rel. Roberts v. Indus. Comm., 10th Dist. No. 15AP-892, 2016-Ohio-7570, 

¶ 6, quoting former Ohio Adm.Code 4125-1-01(D)(1)(c). 

{¶ 27} Relator first argues that the commission applied the wrong standard to his 

application because his period of lost wages extends from November 1, 2016 through 

December 18, 2017, and the latest amendments to Ohio Adm.Code 4125-1-01 intervened 

in June 2017. Relator appears to argue that any regulatory changes would be prospective 

only, and that the former version of Ohio Adm.Code 4125-1-01 should govern the first 

months of his application period. Without disagreeing with relator's view on the 

presumptively prospective effect of such amendments, the magistrate must note that 

relator does not point out any substantive changes to the pertinent WWLC sections that 

would impact his application, nor does an independent review of the former and current 

versions reveal any meaningful variation. The commission therefore did not err in its 

application of the standard of review for relator's WWLC application. 
No. 20AP-338 12 

{¶ 28} Moreover, in the present case, relator does not argue that he in fact fulfilled 

the precise and extensive documentation requirements of Ohio Adm.Code 4125-1-01, but 

rather that the unique factual circumstances of his position as an employee with dual 

employment, and the Administrative Code's complete failure to address WWLC under 

such circumstances, excuses him in some manner from the documentation and good faith 

job search requirements. Factually, it is undisputed that relator worked for both his own 

company, Deaf Choice, and Sorenson Communications. Relator's affidavits, and 

apparently his testimony before the DHO and SHO, which is not available in the record, 

state that relator continued to work for Deaf Choice performing administrative functions 

but not working as a sign-language interpreter, and worked not at all for Sorenson 

Communications. What relator does not articulate is how continued work, in a lesser 

capacity, for one of his dual employers would excuse a job search to replace the lost wages 

from the second position (and to a lesser extent, a reduction in wages from the first). The 

Ohio Administrative Code is explicit and detailed regarding the documentary 

requirements needed to establish a qualifying job search. While relator has indisputably 

suffered a reduction in wages, the fact that this reduction is spread across two former 

employers does not excuse compliance with the documentation requirements to establish 

his job search for replacement income. 

{¶ 29} The Ohio Administrative Code requires an applicant for WWLC to provide 

specific documentation to prove the applicant's search for comparably paying work to 

eliminate the loss of wages. Relator does not dispute that he furnished no such 

documentation, but asserts that as long as he remained working with Deaf Choice, he was 

not required to demonstrate such entitlement to compensation for the loss of his 

Sorenson Communications wages. The commission applied the proper legal standard 

when it stated that relator had not undertaken the required search for replacement 

comparable work. This court may not read an exception into the code that does not exist. 

The commission in this case stated its rationale and explained the evidence ─ undisputed, 

as relator admits in this action ─ upon which it relied when it correctly applied the wage 

loss rules to relator's request. Relator did not fulfill his burden of proof to demonstrate 

entitlement to WWLC, and the commission did not abuse its discretion in denying that 
No. 20AP-338 13 

application. For those reasons, it is the magistrate's decision and recommendation that 

no writ shall issue in this case. 

 /S/ MAGISTRATE 

 MARTIN L. DAVIS