[Cite as State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 2020-Ohio-5197.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Ryan Alternative Staffing, Inc., : 

 

 Relator, : 

 

v. : No. 19AP-245 

 

Bridget M. Moss et al., : (REGULAR CALENDAR) 

 Respondents. : 

 

D E C I S I O N 

Rendered on November 5, 2020 

 

On brief: Morrow & Meyer, LLC, and Mary E. Ulm, for 

relator. 

On brief: Boyd, Rummell, Carach, Curry, Kaufman & BinsCastronovo Co., LPA, and Matthew N. Bins-Castronovo, for 

respondent Bridget M. Moss. 

On brief: Dave Yost, Attorney General, and Douglas R. 

Unver, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, Ryan Alternative Staffing, Inc., commenced this original action in 

mandamus seeking an order compelling respondent, Industrial Commission of Ohio 

("commission"), to vacate its order that awarded temporary total disability ("TTD") 

compensation to claimant/respondent, Bridget M. Moss ("claimant"). Pursuant to Civ.R. 

53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a 

magistrate who issued a decision, including findings of fact and conclusions of law, which 
No. 19AP-245 2 

is appended hereto. The magistrate noted the commission's determination that relator 

exercised good faith in offering the claimant suitable alternative employment, which the 

claimant refused. Nevertheless, the magistrate found that the commission did not abuse 

its discretion in awarding the claimant a closed period of TTD compensation based upon 

its finding that the claimant's refusal of relator's offer of suitable alternative employment 

was also made in good faith. Therefore, the magistrate has recommended that we deny 

relator's request for a writ of mandamus. 

{¶ 2} Relator has filed objections to the magistrate's decision. Principally relying 

on State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio4920, relator argues the magistrate erred in finding that the commission did not abuse its 

discretion in awarding a closed period of TTD compensation when it considered both 

relator's good-faith offer of suitable alternative employment and claimant's good-faith 

rejection of that offer. We agree. 

{¶ 3} All parties contend that Ellis is dispositive of this case. However, the parties 

interpret Ellis differently. 

{¶ 4} In Ellis, the Supreme Court of Ohio was confronted with a factual scenario 

very similar to that presented in the case at bar. The claimant in Ellis was unable to return 

to her former position of employment due to a work-related injury. Her employer offered 

her a light-duty position consistent with her medical restrictions, but the claimant declined 

the offer because the position required her to work evenings. Apparently, the claimant 

could not work during the evenings because she had two teenage children that would be 

home alone on the nights that her husband worked. The staff hearing officer for the 

commission determined that the claimant had a valid reason for declining the offer of 

suitable alternative employment and, hence, did not abandon her former position of 

employment. Based upon this determination, the commission awarded claimant TTD 

compensation. The employer brought an action in mandamus in this court seeking to 

vacate the commission's award, but we denied the writ. The employer appealed this court's 

decision to the Supreme Court. 

{¶ 5} The Supreme Court began its analysis by emphasizing that this factual 

scenario does not involve the concept of voluntary abandonment, a concept that focuses on 

whether or not the claimant's inability to return to the former position of employment is 
No. 19AP-245 3 

due to the work-related injury or due to a nonmedical reason–most commonly, 

employment termination or a voluntary refusal to return. Ellis, 115 Ohio St.3d 224, 2007-

Ohio-4920, at ¶ 8. The Ellis court then contrasted the concept of voluntary abandonment 

with a claimant's refusal of suitable alternative employment, which does not require an 

assessment of why the claimant refused to return to his or her former position of 

employment. The court reasoned that this is so because there would be no need to propose 

suitable alternative employment if the claimant's inability to return to the former position 

of employment was caused by anything other than the work-related injury. Instead, the 

court stated: 

[T]he relevant inquiry in this situation is why the claimant has 

rejected an offer to ameliorate the amount of wages lost. This, 

in turn, can involve considerations of, for example, 

employment suitability, the legitimacy of the job offer, or 

whether the position was offered in good faith. The causalrelation question in this situation is different [from voluntary 

abandonment] because it derives from a different 

compensatory intent, which is to facilitate the claimant's return 

to the work force. As critical as compensating injured workers 

and their dependents is, it is not the only goal addressed by the 

workers' compensations system. Assisting a claimant's return 

to gainful employment is also important, benefiting not only 

the employer and employee, but society at large. 

Ellis at ¶ 9. 

{¶ 6} The Ellis court emphasized that the defense of "refusal of suitable alternative 

employment arises from R.C. 4123.56(A), which prohibits the payment of TTD 

compensation "when work within the physical capabilities of the employee is made 

available by [an] employer." Ellis at ¶ 6, quoting R.C. 4123.56(A). However, the court 

stated that R.C. 4123.56(A) must be read in pari materia with Ohio Adm.Code 4121-3-

32(A)(6) that defines "job offer" in this context as a proposal "made in good faith." The 

court further stated that whether the claimant "exercised good faith in refusing the job offer 

does not answer whether [the employer] exercised good faith extending it, which must be 

addressed." Ellis at ¶ 13. Because the commission never addressed whether the employer's 

offer of suitable alternative employment was made in good faith, the Ellis court reversed 

and remanded the case to the commission for a determination of that issue. Id. 
No. 19AP-245 4 

{¶ 7} We read Ellis as permitting the commission to consider the claimant's 

reasons for refusing the offer of suitable alternative employment only in the context of 

deciding whether the employer's offer was made in good faith. Unlike Ellis, here the 

commission determined that relator's offer of suitable alternative employment was made 

in good faith. Relator points out that if a claimant's good-faith refusal of an employer's 

good-faith offer of suitable alternative employment were a defense to the application of R.C. 

4123.56(A), there would have been no reason for the Ellis court to reverse and remand that 

decision for a determination of whether the employer's job offer was made in good faith, 

given that the claimant's good-faith refusal of the job offer was not disputed in Ellis. We 

agree. Ellis does not allow the commission to consider the claimant's reason for refusing 

the offer of suitable alternative employment after the commission has determined that the 

employer's offer was made in good faith. Any other conclusion would be inconsistent with 

R.C. 4123.56(A), Ohio Adm.Code 4121-3-32(A)(6), and the principle that there must be a 

causal relationship between the work-related injury and the claimant's inability to return 

to work to support an award of TTD compensation. That causal relationship would not 

exist if a claimant could reject an employer's good-faith offer of suitable alternative work 

for reasons unrelated to the claimant's workplace injury, even if the reasons for the 

claimant's rejection were understandable and based in good faith. For these reasons, we 

sustain relator's objections. 

{¶ 8} Following an independent review of this matter, we find that magistrate has 

properly determined the facts but erred in her application of the law. Therefore, we adopt 

the magistrate's findings of fact but not her conclusions of law. For the reasons set forth 

above, we sustain the relator's objections and grant relator's request for a writ of 

mandamus. 

Objections sustained; writ of mandamus granted.

BEATTY BLUNT and NELSON, JJ., concur. 

 
No. 19AP-245 5 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. Ryan Alternative Staffing, Inc., : 

 

 Relator, : 

 

v. : No. 19AP-245 

 

Bridget M. Moss 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 2, 2020

 

Morrow & Meyer, LLC, and Mary E. Ulm, for relator. 

Boyd, Rummell, Carach, Curry, Kaufman & BinsCastronovo, Co., L.P.A., and Matthew N. Bins-Castronovo, 

for respondent Bridget M. Moss. 

Dave Yost, Attorney General, and Douglas R. Unver, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 9} Relator, Ryan Alternative Staffing, Inc., has filed this original action 

requesting this court issue a writ of mandamus ordering respondent Industrial Commission 

of Ohio ("commission") to vacate its order which awarded temporary total disability 

compensation ("TTD") to respondent Bridget M. Moss ("claimant" or "Moss"), despite the 

fact that relator had offered Moss a job within her physical abilities. 
No. 19AP-245 6 

Findings of Fact: 

{¶ 10} 1. Claimant sustained a work-related injury on July 18, 2018 and her workers' 

compensation claim was allowed for "sprain of unspecified site of right knee." 

{¶ 11} 2. On the date of her injury, claimant was working at Ram Plastics as a 

machinist. Ram Plastics was a client of relator, a temporary staffing agency. 

{¶ 12} 3. Approximately two weeks later, claimant was released to return to work 

with restrictions. 

{¶ 13} 4. That same day, relator made a verbal offer of employment to claimant for 

a job at relator's Warren office. Claimant refused the job explaining she could not work 

those hours because she needed to be able to care for her disabled granddaughter during 

the hours offered. 

{¶ 14} 5. In a letter dated August 2, 2018, relator offered claimant the same-light 

duty position which met the restrictions of her treating physician. That letter provides: 

This letter is to confirm your refusal of the offer of light duty 

to begin on Friday, August 3, 2018 at our Warren office at 8:30 

am. You refused this light duty offer on Thursday, August 2, 

2018 due to not being able to work a day shift. You stated that 

you are only able to work 2nd shift due to watching your 

grandbaby during the day while your daughter is working. 

The light duty offer was to work in our Warren office located 

at * * *. 

Your work schedule would have been for 8:30am-5pm with a 

1/2 hour unpaid lunch. You could have left for your follow up 

appointments as they became scheduled. 

The dress code would have been business casual and the pay 

rate would have been $8.30/HR. Your job duties would have 

included sit down inside clerical work. A list of job duties is 

attached that meets your current restrictions. 

 

Relator also included a list of specific duties which claimant would be required to perform 

in this position. 

{¶ 15} 6. Claimant refused to accept the position offered by relator on grounds that 

she was not available to work those hours because she provided childcare for her 

granddaughter. 
No. 19AP-245 7 

{¶ 16} 7. Claimant filed a motion seeking TTD compensation beginning August 2, 

2018. 

{¶ 17} 8. Claimant's motion was heard before a district hearing officer ("DHO") on 

October 5, 2018. The DHO denied claimant's motion finding that relator had made a good 

faith offer of suitable employment which claimant had rejected thereby making her 

ineligible for the requested award of TTD compensation. The DHO summarized the basic 

facts: 

Subsequent to the industrial injury, which is the basis of this 

claim, the Injured Worker attempted to return to work, but 

was unable to work at her former position of employment as 

a machinist for a client of the temporary staffing agency, 

which employed her at that time. Upon following up with 

John Baumeier, DO, on 08/02/2018, the physician opined 

that the Injured Worker could return to restricted duty. In 

accordance with the Self-insuring employer's policy, Ms. 

Plasky contacted "RAM Plastics," the client company for 

which the Injured Worker was working when injured, to 

determine whether a position was available consistent with 

the restrictions imposed by Dr. Baumeier. When the client 

informed her that no such position was available, she 

contacted the Injured Worker by telephone to offer her a 

position with the temporary staffing agency itself. The Injured 

Worker refused this position, because the hours of work 

conflicted with her ability to care for her daughter's disabled 

child. As a consequence of the Injured Worker's refusal of this 

verbal offer, the Self-insuring Employer drafted a letter 

reducing the modified-duty job offer to writing and noting the 

Injured Worker's failure to accept same. This refusal to accept 

the modified-duty offer was the basis of Self-insuring 

Employer's denial of the request for payment of temporary 

total disability compensation benefits from 08/02/2018 

through 09/08/2018. The Injured Worker testified that she 

returned to work with another employer on 09/09/2018. 

{¶ 18} Thereafter, the DHO explained the parties' positions as follows: 

The Injured Worker maintains that the Self-insuring 

Employer was aware of her scheduling requirements, when 

she first signed up for work with the temporary staffing 

agency. Thus, she maintains that the modified-duty job offer 

for employment, at a shift which the temporary staffing 

agency knew she could not work, does not constitute a "good-
No. 19AP-245 8 

faith" offer under the provisions of Ohio Adm. Code 4123-3-

32(A)(6). 

In response, Ms. Plasky noted that the temporary staffing 

agency is only open during business hours. She further 

testified that other injured workers in the same situation have 

been provided with work at the temporary staffing agency's 

offices, when the client company at which they were injured 

could not accommodate the modified-duty work required by 

their injuries. Thus, she disputed any intent to fashion a 

position which the Injured Worker was incapable of filling. 

{¶ 19} Thereafter, the DHO denied the requested period of compensation reasoning 

as follows: 

The facts presented in this case are nearly identical to those in 

State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio 

St.3d 224, 2007-Ohio-9240, 874 N.E.2d 780. In Ellis, the 

parties agreed that the light-duty position offered by the 

employer was consistent with the restrictions imposed by the 

injured worker's physician. Id. at ¶ 1. The only dispute was 

whether the injured worker was justified in refusing the offer, 

based upon the fact that it would require her to work a 

different shift Id. in sending the matter back to the Industrial 

Commission for further consideration, the Court held that the 

operative question was whether the employer "consciously 

crafted a job offer with work shifts that it knew Hudgel could 

not cover * * *. " Id. at ¶ 13. 

In this case, Ms. Plasky's testimony regarding the regular 

course of business of the temporary staffing agency in such 

situations is found to be probative. Thus, the offer of 

employment at the temporary staffing agency's offices, albeit 

at a different time than the Injured Worker was accustomed 

to work, is not deemed to have been "consciously crafted" to 

present the Injured Worker with a position which she could 

not accept. Accordingly, this offer is deemed to have been 

made in "good faith," in accordance with the provisions of 

Ohio Adm.Code 4121-3-32(A)(6). 

Based upon the foregoing analysis, the Self-insuring 

Employer did indeed offer employment within the Injured 

Worker's physical capabilities, as required by the provisions 

of R.C. 4123.56(A). Thus, the Injured Worker is not legally 

entitled to receive payments of Temporary Total Disability 
No. 19AP-245 9 

Compensation benefits and such compensation for the period 

from 08/02/2018 through 09/08/2018 is denied. 

This decision is based upon the testimony presented at the 

hearing by Ms. Plasky and the letter, dated 08/02/2018, from 

the Self-insuring Employer presenting a written offer of 

employment to the Injured Worker and noting her verbal 

refusal of same. The Hearing Officer reviewed and considered 

all evidence on file in issuing this decision. 

{¶ 20} 9. Claimant appealed and the matter was heard before a staff hearing officer 

("SHO") on November 19, 2018. The SHO vacated the prior DHO order and found that 

claimant was entitled to the requested closed period of compensation. The SHO specifically 

found that relator did make a good faith offer of employment; however, the SHO also found 

that claimant refused the light-duty job offered to her in good faith. Specifically, the SHO 

order provides: 

The Staff Hearing Officer finds that the Employer asserted 

that temporary total disability compensation is not payable 

for this period because the Injured Worker's refusal of a light 

duty job offer constituted a voluntary abandonment of 

employment. However, the Staff Hearing Officer finds that 

this assertion is not well taken. The Staff Hearing Officer finds 

that the Employer offered the Injured Worker a light duty job 

within her physical restrictions on 08/02/2018 to begin work 

on 08/03/2018, for the Employer, the temporary agency, at 

the Employer's Warren office, in a sedentary, clerical position 

from 8:30 a.m. to 5:00 p.m. The Staff Hearing Officer 

specifically finds that the job offer was made in good faith by 

the Employer as this was the only position that the Employer 

had available to accommodate the Injured Worker's physical 

restrictions. 

* * * 

The Staff Hearing Officer finds the case of State ex rel. Ellis 

Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224 (2007) 

to be instructive on this issue and specifically references the 

language in paragraph 13 of the opinion. The Staff Hearing 

Officer finds that the determinative issue with regard to the 

Injured Worker's entitlement to temporary total disability 

compensation in this claim is fact specific. The Staff Hearing 

Officer finds that whether the job offer was made in good faith 

and whether the Injured Worker exercised good faith in 
No. 19AP-245 10 

refusing the job offer are factual determinations for the 

Industrial Commission. Herein, the Staff Hearing Officer 

finds that both the Employer and the Injured Worker acted in 

good faith. The Staff Hearing Officer finds that while the 

Injured Worker was physically capable of performing the light 

duty work, the reason that she was unable to accept the 

position was because she had family obligations and the 

timing for the shift of the light duty job was not feasible. 

Notwithstanding, the Staff Hearing Officer finds that the 

Injured Worker was unable to accept the light duty job offer, 

and she was also unable to return to her former position of 

employment due to the allowed condition of the claim. 

Accordingly, the Staff Hearing Officer finds that the 

temporary total compensation is payable in this claim. 

This portion of the decision is based on the Injured Worker's 

testimony at hearing, the Employer's 08/04/2018 letter, and 

the Ellis Super Valu case. 

The Self-Insuring Employer is hereby ordered to comply with 

the above findings. 

{¶ 21} 10. Relator's appeal was refused by order of the commission mailed 

December 13, 2018. 

{¶ 22} 11. Relator's request for reconsideration was denied by order of the 

commission mailed January 30, 2019. 

{¶ 23} 12. Thereafter, relator filed the instant mandamus action in this court. 

 Conclusions of Law: 

{¶ 24} For the reasons that follow, it is this magistrate's decision that relator has not 

demonstrated the commission abused its discretion in awarding claimant a closed period 

of TTD compensation, and this court should deny relator's request for a writ of mandamus.

{¶ 25} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course of 

the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 26} 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 
No. 19AP-245 11 

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). 

{¶ 27} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as 

compensation for wages lost where a claimant's injury prevents a return to the former 

position of employment. Upon that predicate, TTD compensation shall be paid to a 

claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's 

treating physician has made a written statement that claimant is able to return to the former 

position of employment; (3) when work within the physical capabilities of claimant is made 

available by the employer or another employer; or (4) claimant has reached MMI. See R.C. 

4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982). 

{¶ 28} Ohio Adm.Code 4121-3-32(A)(3) defines "suitable employment" as "work 

that is within the employee's physical capabilities." "Job offer" is defined as a "proposal, 

made in good faith, of suitable employment within a reasonable proximity of the injured 

worker's residence." Ohio Adm.Code 4121-3-32(A)(6) If an injured worker refuses an oral 

job offer, the employer must put the offer in writing and describe the duties of the job if the 

employer wants to use the worker's refusal as grounds upon which to deny payment of TTD 

compensation. 

{¶ 29} Both parties agree the Supreme Court of Ohio's decision in State ex rel. Ellis 

Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-4920, is instructive. 

Susan B. Hudgel was unable to return to her former position of employment with her 

employer, Ellis Super Valu, Inc. as a result of the allowed conditions in her claim. The 

employer offered her a light-duty position consistent with her medical restrictions; 

however, Hudgel declined that position because it required her to work evenings. The 

employer argued that Hudgel was not eligible for TTD compensation because her refusal of 
No. 19AP-245 12 

the light-duty job constituted a voluntary abandonment of employment. A DHO denied 

TTD compensation finding Hudgel's refusal of the good faith job offer constituted a 

voluntary abandonment of her job and rendered her ineligible to receive TTD 

compensation. The SHO determined that Hudgel did not voluntarily abandon her job 

finding Hudgel had a valid reason for the refusal. Further appeal was denied. 

{¶ 30} The employer filed a mandamus action in this court in State ex rel. Ellis Super 

Valu, Inc. v. Indus. Comm., 10th Dist. No. 05AP-531, 2006-Ohio-3014. This court's 

magistrate concluded there was no abuse of discretion on the part of the commission─

because the commission found Hudgel had a good faith reason to reject the employer's offer 

of employment, she was eligible for TTD compensation. Specifically, this magistrate 

summarized the parties' positions before reaching her conclusion:

In the present case, relator argues that the job offer it made to 

claimant was made in good-faith, since it was within 

claimant's restrictions, and was within a reasonable proximity 

of claimant's residence. As such, relator contends that 

claimant's refusal to accept its job offer, for any reason, 

constituted a voluntary abandonment of her employment and 

negated her right to receive TTD compensation. Relator 

argues that where a job offer is within the injured worker's 

restrictions and is within reasonable proximity to their 

residence, an injured worker is required to accept the job offer 

or forfeit TTD compensation. 

Conversely, claimant argues that, while the job offer was 

within her physical restrictions and was within a reasonable 

proximity to her residence, the job offer was not made in 

good-faith because the employer knew that those hours would 

pose a significant hardship on claimant. Furthermore, 

claimant made a "counter offer," so to speak, indicating that 

she was willing to work some nights provided that she be 

allowed to work nights when her husband could be home to 

be with the children. Relator did not respond. While deciding 

to have children is a lifestyle decision which some people 

make, in the present case, the magistrate finds that relator's 

need and desire to be home in the evenings with her children 

does not constitute the type of "lifestyle choice" that the courts 

have identified as one which cuts against an injured worker's 

entitlement to compensation. 

In the present case, the magistrate finds that the commission 

did not abuse its discretion. The record reflects that claimant 
No. 19AP-245 13 

made a good-faith effort to work with relator in light of 

relator's willingness to put claimant back on the payroll. 

However, the magistrate finds that relator's argument, that 

the only valid reason claimant could have refused the job offer 

was if the job offer was either outside her medical restrictions 

or was too far from her home, ignores the fact that there could 

be other reasons why a determination could be made that the 

employer's offer was not made in good-faith or that the 

employee had a valid reason, other than a "lifestyle choice," to 

refuse the job offer without compromising her ability to 

receive TTD compensation. These matters should be decided 

by the commission on a case-by-case basis. At oral argument, 

counsel for relator asserted that there was no specific finding 

by the SHO that its job offer was not made in good faith and, 

at least, a limited writ should be granted. The magistrate 

disagrees and finds that, even without expressly stating that it 

found the job offer was not made in good-faith, by finding 

claimant had a valid reason to refuse it, the commission found 

a lack of "good-faith" and there is no reason to send this back 

to the commission. The magistrate finds no abuse of 

discretion in this situation. 

Id. at ¶ 36-38. 

{¶ 31} In affirming the magistrate's decision, this court reaffirmed certain 

principles: (1) whether a claimant has abandoned her job is a factual determination for the 

commission; (2) where a commission order is adequately explained and based on some 

evidence, even evidence that may be persuasively contradicted by other evidence of record, 

the order will not be disturbed as manifesting an abuse of discretion. Finding some 

evidence supported the SHO's determination that Hudgel did not voluntarily abandon her 

employment, this court agreed with the magistrate that the commission did not abuse its 

discretion. Ellis Super Valu, Inc. appealed this court's decision to the Supreme Court. 

{¶ 32} At the outset, the Supreme Court noted this was not a case of voluntary 

abandonment but that the facts raised the possibility of a different defense: the refusal of 

suitable alternate employment. Finding the commission had not properly addressed all the 

relevant issues, the court granted a writ of mandamus. 

{¶ 33} The court discussed both the considerations of whether or not an employer 

has made a good faith offer of suitable employment and whether or not an employee has 

justifiably refused an offer of suitable employment. The court concluded by stating: 
No. 19AP-245 14 

In this case, all agree that the light-duty job offered was within 

Hudgel's medical ability. This is all that R.C. 4123.56(A) 

expressly requires, but the statute must be read in pari 

materia with the Ohio Administrative Code provision that 

supplements it. Ohio Adm.Code 4121-3-32(A)(6) defines "job 

offer" in this context as a proposal "made in good faith." The 

parties debate whether good faith existed, but contrary to 

their suggestion, the commission has not addressed this issue. 

Whether Hudgel exercised good faith in refusing the job offer 

does not answer whether ESV exercised good faith in 

extending it, which must be addressed. If ESV consciously 

crafted a job offer with work shifts that it knew Hudgel could 

not cover ─ as Hudgel alleges and ESV denies ─ then good 

faith may not exist. That, however, is a factual determination 

for the commission. 

Id. at ¶ 13. 

{¶ 34} Relator argues here that, inasmuch as the commission determined that its 

offer of modified-duty work to Moss was made in good faith, Moss was required to accept 

that position or find herself ineligible to receive TTD compensation. Ellis Super Valu, Inc.

had made the same argument to this court. However, in the present case, after making the 

factual finding that the offer of modified-duty work was, in fact, made in good faith, the 

commission also made the factual determination that Moss, in good faith, refused to accept 

that position. The magistrate finds there is no reason, legal or otherwise, for this court to 

find that the commission, as fact finder, cannot make both these findings in a particular 

case such as the one currently before us. Such a determination accepts that, in this 

situation, relator can only offer Moss a job during hours which Moss is unable to work while 

at the same time conceding that, but for the fact that Moss could not work these hours, she 

would not have had a good faith reason to reject this offer of employment. 

{¶ 35} Counsel for relator argues that if the Supreme Court in Ellis actually intended 

to create a defense for claimants who, in good faith, reject an offer of suitable employment, 

the court would have awarded Hudgel TTD compensation after agreeing she had, in good 

faith, refused the offer of employment.1 Instead, the court first clarified this was not a 

voluntary abandonment situation because the lack of Hudgel's inability to return to her 

former position of employment is not in question: she was medically unable to do so. 

 

1 In fact, this magistrate had recommended the same in Ellis and this court agreed. 
No. 19AP-245 15 

Second, the relevant inquiry is why Hudgel rejected an offer to ameliorate her lost wages. 

Third, the court stressed that factual determinations are the province of the commission 

and that, before a determination could be made, the commission had to first determine 

whether the offer of employment had indeed been made in good faith. 

{¶ 36} In the present case, the commission considered the evidence before it, made 

factual determinations, cited the evidence upon which it relied, applied the relevant case 

law to those factual determinations, and provided an explanation for its conclusion. In so 

doing, the magistrate finds the commission did not abuse its discretion when it found that 

Moss was eligible to receive the closed period of TTD compensation and this court should 

deny relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), 

unless the party timely and specifically objects to that factual 

finding or legal conclusion as required by Civ.R. 53(D)(3)(b).