[Cite as State ex rel. Barnes v. Indus. Comm., 2016-Ohio-824.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Thelma Barnes, : 

 

 Relator, : 

 

v. : No. 15AP-170 

 

The Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Stark County Community Action Agency, 

 : 

 Respondents. 

 : 

 

 

D E C I S I O N 

Rendered on March 3, 2016 

 

On Brief: Bevan & Associates, LPA, and Christopher J. 

Stefancik, for relator. 

On Brief: Michael DeWine, Attorney General, and Lisa R. 

Miller, for respondent Industrial Commission of Ohio. 

On Brief: Day Ketterer Ltd., and R. Clint Zollinger, Jr., for 

respondent Stark County Community Action Agency. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BRUNNER, J. 

{¶ 1} Relator, Thelma D. Barnes ("Barnes"), has filed this original action and 

petitioned for a writ of mandamus ordering respondent, Industrial Commission of Ohio 

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

compensation beginning November 12, 2013, based on the commission's determination 

that she had voluntarily abandoned her employment with respondent Stark County 
2 

No. 15AP-170 

Community Action Agency ("SCCAA"), and ordering the commission to find that she is 

entitled to the requested compensation. 

{¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and 

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

decision, including findings of fact and conclusions of law, and recommended that this 

court deny Barnes' request for a writ of mandamus. Barnes filed objections to the 

magistrate's decision. 

{¶ 3} Barnes presents the following objections to the magistrate's decision: 

Relator objects to Magistrate's determination that the Staff 

Hearing Officer did not render a factual finding that Relator's 

termination was the result of inadvertently violating a work 

rule/policy. Said finding is not consistent with a reasonable 

interpretation of the plain language in the Staff Hearing 

Officer's Order. Relator further objects to the Magistrate's 

Decision in that it attempts to supply this supposedly missing 

factual determination on behalf of the Staff Hearing Officer. 

The Magistrate's Decision contains blatant factual errors 

regarding the evidence relied upon, and regardless, it is 

improper for this Court to supply factual findings where the 

Industrial Commission is the exclusive evaluator of 

evidentiary weight. Finally, Relator objects to the Magistrate's 

Decision in that it improperly focuses on the "physical 

activity" of leaving the child in an empty classroom, [sic] to 

establish that Relator's violation of the work rule/policy was 

not inadvertent. The proper analysis must consider Relator's 

reasonable but erroneous belief that the classroom was not 

empty. For these reasons Relator request [sic] that the Court 

reject the Magistrate's Decision and grant issuance of the 

requested writ. 

{¶ 4} The major thrust of Barnes' objections to the magistrate's decision is that 

the commission's staff hearing officer ("SHO") found that her violation of the work 

rule/policy was inadvertent and erroneous and that this finding was ignored by the 

magistrate, who did not reach a finding that the commission erred in applying the 

voluntary abandonment doctrine to her conduct. Barnes asserts that, for purposes of 

workers' compensation laws, it is not permissible to hold a claimant accountable for her 

erroneous or inadvertent conduct that results in the violation of an employer's written 

policies. 
3 

No. 15AP-170 

{¶ 5} For the reasons set forth below, Barnes' objections are overruled, and the 

magistrate's decision is adopted by the court. 

{¶ 6} Barnes sustained a work-related injury on September 26, 2012, which 

resulted in her workers' compensation claim being allowed for "sprain lumbar region" and 

"herniated discs L4-5, L5-S1." (Agreed Stipulations, 2-4.) 

{¶ 7} At the time of her injury, Barnes was employed by SCCAA as a 

transportation aide for Head Start. On September 11, 2012, Barnes had signed a form 

acknowledging that she had reviewed the company's Child Care Center licensing rules 

with the program administrator; that she knew where a copy of the rules was located for 

further review; and that she had received orientation training on a variety of subjects 

specific to her position, including "child management techniques and expectations," "who 

I will be responsible for," "active supervision of children," and "attendance requirements." 

(Agreed Stipulations, 122.) 

{¶ 8} SCCAA has a written policy entitled, "Safety of Children-Chain of Custody." 

The policy provides specific procedures to be followed by a child care staff member in 

charge of any child, including the following: 

A child care staff member in charge of a child or group of 

children shall be responsible for their safety. 

All children shall be supervised as outlined in rule 5101:2-

17:27 of the administrative code, (sic) no child shall be left 

alone or unsupervised. 

* * * 

When dropping the children off or picking the children up 

from the classroom, the driver and aides must sign-in and 

sign out each child from the classrooms. 

The following rules shall apply, 

* * * 

The driver and aid [sic] will then lead the children to the 

classroom. Each child is taken to the classrooms and then 

transferred to the center staff. The center staff signature is 

required on the passenger check list at the time each child is 

taken to his/her classroom. 

(Agreed Stipulations, 123.) The policy specifies that "[v]iolations of this procedure will 

warrant immediate suspension and/or termination." (Agreed Stipulations, 123.) 
4 

No. 15AP-170 

{¶ 9} Additionally, SCCAA has a "Zero Tolerance Policy" that specifically provides 

in pertinent part as follows: 

Purpose: 

Limits are necessary to maintain children safe and healthy at 

all times while in the care of the Head Start program staff. 

This policy is designed to reduce the risk of harm to children 

while being transported to and from the centers, in the 

learning environment of the classroom, outdoors, field trips 

and other activities designed for preschoolers. 

Policy: 

If a complaint or incident occurs with a Head Start children) 

(sic) where an employee is found to have violated regulations 

established by The Ohio Department of Job and Family 

Services (ODJFS) which governs the licensure and compliance 

of preschool daycares, the employee will be terminated with 

just cause. 

Zero Tolerance policy overs the following behaviors: 

* * * 

A child left alone and not actively supervised by a SCCAA 

employee during any activities, held in the inside or outside 

premises of a SCCAA Head Start facility. 

(Agreed Stipulations, 121.) 

{¶ 10} On April 9, 2013, Barnes delivered a child to a classroom, but left the child 

alone in the hallway outside the classroom. The child entered the classroom and, finding 

no one there, stepped back into the hallway, where a teacher found her. Barnes, seeing the 

child and teacher's encounter, asked the teacher if she had been in the classroom. The 

teacher replied she had not been in the classroom. Barnes self-reported the incident in a 

handwritten note dated April 9, 2013: 

At about 9:25 or 9:27 Bus 32 came in. I Thelma Barnes signed 

Yanitza into classroom 17. I didn't know that no one was in 

the room. Mrs. Campbells sign in board is int the hallway. 

There wasn't a note or anything outside the door letting me 

know that no one was in the room. I proceeded to Rm 16 and I 

turned around and I seen Mrs. Campbell with the child. I 

asked Mrs. Campbell you wasn't in the room. her class was in 

the orchestra. Yanitza & Mrs. Campbell where in the hallway 
5 

No. 15AP-170 

door standing. I proceeded to tell Bety myself what had 

occurred. I'm very sorry and take responsibility for what 

happened. 

(Sic passim.) (Agreed Stipulations, 124.) 

{¶ 11} An incident report signed by SCCAA supervisor Betty Thompson on 

April 9, 2013, indicated that Barnes was written up for safety rules/practices and 

carelessness. The report contained the following statement: 

Thelma Barnes a Program Aid [sic] on 4/9/2013 @ 9:30 came 

to Site Supervisor to report her leaving a child unsupervised in 

a classroom. Ms. Barnes sent a child into a classroom without 

proper supervision. Child was left alone. Procedure of custody 

of child was followed after child was attended to. 

(Agreed Stipulations, 126.) The incident report recommended Barnes' immediate 

dismissal. 

{¶ 12} In a letter dated April 22, 2013, SCCAA notified Barnes that her 

employment had been terminated: 

You have been terminated from employment effective 

April 18, 2013, due to the violation of the Zero Tolerance 

Policy that requires staff to maintain children safe at all times. 

The incident of April 9th, 2013 was investigated which resulted 

in confirmation that you did not obtain the teacher's signature 

on the custody paper work required when you deliver a child 

to the classroom, consequently the child was left alone in the 

classroom until the Teacher saw her in the hallway, she then 

joined the rest of the class. 

(Agreed Stipulations, 128.) 

{¶ 13} Barnes applied for unemployment benefits on April 19, 2013. On 

May 8, 2013, the Ohio Department of Jobs and Family Services ("ODJFS") issued a notice 

of a determination granting Barnes' application. The notice stated the basis of the 

determination as follows: 

[Barnes] was discharged by STARK COUNTY COMMUNITY 

ACTION AGENCY (INC) on 04/18/2013. The employer 

discharged [Barnes] for violating a company rule. The 

employer failed to establish negligence or willful disregard of 

the rule on the part of [Barnes]. Ohio's legal standard that 

determines if a discharge is without just cause is whether 

[Barnes'] acts, omissions, or course of conduct were such that 

an ordinary person would find the discharge not justifiable. 

After a review of the facts, this agency finds that [Barnes] was 
6 

No. 15AP-170 

discharged without just cause under Section 4141.29(D)(2)(a), 

Ohio Revised Code. 

(Agreed Stipulations, 48.) The record does not indicate what, if any, information SCCAA 

submitted to ODJFS in connection with Barnes' application for unemployment benefits. 

{¶ 14} Barnes, a union member, filed a grievance regarding her termination, and a 

grievance meeting was held on May 22, 2013. In a letter dated May 28, 2013, SCCAA 

affirmed its decision to terminate her: 

In response to the Grievance meeting on May 22nd,* * * there 

is no change to your employment termination effective April 

18, 2013. 

Your request for reconsideration based on self-reporting this 

incident, and the change of the location for the sign-in sheet 

which you feel caused the incident was reviewed with Ms. 

Goss, HS Director. The reason for no change is due to the 

seriousness of the incident in which [sic] violated "The Zero 

Tolerance Policy" implemented in August 2011. This policy 

has been cause for termination to those employees that have 

left a child unattended without the supervision of a staff 

member. In your specific incident, you did not take the child 

into the classroom (left outside the classroom) to perform 

your change of custody duties with the Teacher. Because you 

did not perform this required job function as Program Aide, 

you did not see the notice left for you to take the child to 

another classroom where they were attending a concert. The 

child remained alone in the classroom until she stepped out 

into the hallway and was then redirected to join her 

classroom. 

The parents of the Head Start Program entrust their children's 

safety to the staff at SCCAA, therefore management must 

maintain a Zero Tolerance Policy for incidents that jeopardize 

the safety of the children. 

(Agreed Stipulations, 129.) 

{¶ 15} Thereafter, on November 12, 2013, Barnes' physician, Mark R. Grubb, M.D., 

examined her for the allowed conditions arising from the prior-covered 

September 26, 2012 injury and subsequently submitted a Physician's Request for Medical 

Service, Form C9, requesting certain medical procedures. SCCAA approved the 

application, and Barnes underwent surgery on December 9, 2013. 
7 

No. 15AP-170 

{¶ 16} On January 22, 2014, Barnes' treating physician of record, John Pinghero, 

D.C., submitted a Physician's Report of Work Ability form, Form MEDCO-14, indicating 

that Barnes was temporarily disabled from any work from the date of surgery, 

December 9, 2013. 

{¶ 17} On January 22, 2014, Barnes filed a request for temporary total disability 

("TTD") compensation beginning November 12, 2013. 

{¶ 18} On January 28, 2014, Dr. Grubb submitted a Physician's Report of Work 

Ability form, MEDCO-14, indicating that Barnes was temporarily disabled from any work 

from November 12, 2013. 

{¶ 19} In an order mailed March 4, 2014, the Ohio Bureau of Workers' 

Compensation referred for hearing Barnes' application for TTD compensation to the 

commission, based on SCCAA's assertions that Barnes had been terminated effective 

April 18, 2013 for violating a work rule/policy, and that she had not worked or sought 

work since her termination date. 

{¶ 20} A district hearing officer ("DHO") heard Barnes' request on March 26, 2014. 

The DHO allowed the request, noting that the file contained only a copy of SCCAA's Zero 

Tolerance Policy, with nothing to indicate that it had been given to Barnes, and an 

unsigned copy of the termination letter. The DHO found no evidence of Barnes "ever 

having received or acknowledged a written handbook containing this specific work rule," 

and concluded that there was insufficient evidence that established that Barnes was 

terminated "for violation of a written work rule which she knew or should have known 

would result in her termination which was consistent was the decision in [State ex rel. 

Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995)]." (Agreed 

Stipulations, 51.) 

{¶ 21} SCCAA appealed, and a staff hearing officer ("SHO") heard the appeal on 

May 2, 2014. The SHO vacated the prior DHO order and denied Barnes' request for TTD 

compensation, finding that Barnes' testimony at the hearing supported a determination 

that she had voluntarily abandoned her employment, and that she had not re-entered the 

workforce following her termination. The SHO concluded that Barnes had failed to show 

that she was entitled to TTD compensation: 

Temporary total compensation is denied from 11/12/2013 

through 05/02/2014. [Barnes] has failed to substantiate she is 
8 

No. 15AP-170 

eligible for the receipt of temporary total compensation 

during this period. The evidence in file reflects [Barnes] was 

terminated on or about 04/18/2013 for violation of a written 

work policy. This termination was tantamount to a voluntary 

abandonment of employment. 

The evidence presented at hearing indicated that [Barnes] was 

employed by the named employer as a transportation aide for 

Head Start. [Barnes] testified she dropped a child off to a 

classroom on 04/09/2013, erroneously thinking a teacher was 

present, and inadvertently left the child unattended in the 

classroom. 

[Barnes] also testified she was aware of the employer's Zero 

Tolerance Policy which mandated staff maintain the safety of 

children at all times. [Barnes] testified that when she 

discovered her error, she reported herself to her supervisors 

as she was aware the employer had a strict policy regarding 

the safety of children. [Barnes] further testified that she was 

aware that leaving a child alone or unattended was a 

dischargeable offense. 

The employer has submitted a copy of its Zero Tolerance 

Policy wherein it expressly indicates a child who is left alone 

and not actively supervised by an employee is a violation of 

the policy and a dischargeable offense. [Barnes] does not 

dispute knowledge of this policy or her failure to comply with 

it. 

The Staff Hearing Officer finds [Barnes'] termination from 

employment under the above-noted circumstances is 

tantamount through [sic] a voluntary abandonment of 

employment under the holding of State ex rel. LouisianaPacific Corp. v. Industrial Commission (1995), 72 Ohio St.3d 

401. The employer had a written policy which apprised its 

employees of a standard of conduct. The violation of this 

conduct was expressly indicated to be a terminable offense. 

[Barnes] acknowledged knowing of both the existence of this 

policy and the consequences of her actions. 

No evidence was presented at hearing that [Barnes] has 

returned to work in any capacity since being terminated on or 

about 04/18/2013. Therefore, based on her termination, 

which amounts to a voluntary abandonment of employment, 

and the absence of re-entry into the workforce, [Barnes] is not 

 
9 

No. 15AP-170 

eligible for the payment of temporary total compensation for 

the time period 11/12/2013 through 05/02/2014. 

(Agreed Stipulations, 60-61.) 

{¶ 22} By order mailed June 6, 2014, the commission refused Barnes' appeal of the 

SHO order. 

{¶ 23} Barnes then filed a request for reconsideration, alleging that the SHO had 

failed to apply the appropriate legal analysis to the facts in evidence and had incorrectly 

found that Barnes had voluntarily abandoned her employment. Barnes argued that the 

voluntary abandonment doctrine did not apply because she had not intended to violate 

the written work rule, and that her conduct was neither voluntary nor willful, but 

inadvertent. 

{¶ 24} In an interlocutory order mailed July 21, 2014, the commission granted 

Barnes' request for reconsideration, stating: 

 It is the finding of the Industrial Commission [that Barnes] 

has presented evidence of sufficient probative value to 

warrant adjudication the Request for Reconsideration 

regarding the alleged presence of a clear mistake of fact in the 

order from which reconsideration is sought, and a clear 

mistake of law of such character that remedial action would 

clearly follow. 

Specifically, it is alleged that in denying [Barnes'] request for 

temporary total disability compensation, the Staff Hearing 

Officer misinterpreted the standard set forth in State ex rel. 

Louisiana-Pacific Corp. v. Indus. Commn., 72 Ohio St.3d 401, 

650 N.E.2d 469 (1995), regarding the circumstances under 

which termination of employment may properly be deemed a 

voluntary abandonment of employment such as to preclude 

entitlement to temporary total disability compensation. 

The order issued 06/06/2014 is vacated, set aside, and held 

for naught. 

(Agreed Stipulations, 110.) 

{¶ 25} After a hearing on October 21, 2014, the commission determined that it did 

not have authority to exercise continuing jurisdiction, effectively denying Barnes' 

application for TTD benefits: 

After further review and discussion, it is the finding of the 

Industrial Commission it does not have authority to exercise 

continuing jurisdiction pursuant to R.C. 4123.52 and State ex 
10 

No. 15AP-170 

rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 692 N.E.2d 

188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio 

St.3d 320, 707 N.E.2d 1122(1999), and State ex rel. Gobich v. 

Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817 

N.E.2d 398. [Barnes] has failed to meet her burden of proving 

sufficient grounds exist to justify the exercise of continuing 

jurisdiction. Therefore, [Barnes'] Request for 

Reconsideration, filed 06/25/2014, is denied, the refusal 

order, issued 06/06/2014, is reinstated, and the Staff Hearing 

Officer order, issued 05/15/2014, remains in full force and 

affect. 

(Agreed Stipulations, 137.) 

{¶ 26} Barnes filed this action in mandamus on the grounds that the SHO's 

decision denying her TTD compensation was defective and contained a clear mistake of 

law, and that the commission's refusal to exercise continuing jurisdiction to correct the 

defect was improper and warranted the requested writ. 

{¶ 27} The magistrate recommends in the attached decision that this court deny 

Barnes' request for a writ of mandamus for the reason that Barnes has not shown that she 

has a clear legal right to the relief sought from the commission or 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). 

{¶ 28} After an examination of the magistrate's decision, an independent review of 

the record pursuant to Civ.R. 53, and due consideration of the objection, we overrule 

Barnes' objections and adopt the magistrate's findings of fact and conclusions of law. To 

be entitled to relief in mandamus, Barnes must establish that she has a clear legal right to 

relief 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), paragraph nine of the syllabus. To do 

so, she must demonstrate that the commission abused its discretion and, "in this context, 

abuse of discretion has been repeatedly defined as a showing that the commission's 

decision was rendered without some evidence to support it." State ex rel. Burley v. Coil 

Packing, Inc., 31 Ohio St.3d 18, 20 (1987). 

{¶ 29} Barnes does not dispute that she had left a child alone and unsupervised 

outside a classroom, conduct that she knew violated a written work policy and constituted 

grounds for termination. Rather, Barnes disputes the nature of her action, arguing that 

she did not intend to leave the child alone and unsupervised and thus had not intended to 
11 

No. 15AP-170 

violate the work rule/policy. She argues that she should not be held accountable for her 

unintentional violation of the written work rule/policy. 

{¶ 30} The magistrate's decision contains a comprehensive review of the case law 

that evolved into the current voluntary abandonment doctrine as manifested in 

Louisiana-Pacific and subsequent decisions that have expounded on that holding. 

Louisiana-Pacific stands for the proposition that termination of employment can 

constitute voluntary abandonment when it is "generated by the claimant's violation of a 

written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been 

previously identified by the employer as a dischargeable offense, and (3) was known or 

should have been known to the employee." Id. at 403. Voluntariness can be imputed to a 

claimant's misconduct only under such conditions. State ex rel. Brown v. Hoover 

Universal, Inc., 132 Ohio St.3d 520, 2012-Ohio-3895, ¶ 1. The magistrate's decision, 

however, also notes that, "because of the potential for abuse, a postinjury firing must be 

carefully scrutinized. Written termination criteria aid this inquiry and are why LouisianaPacific requires them." State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 562 

(2001). 

{¶ 31} The magistrate's decision contains a review of how courts have 

distinguished between conduct that gives rise to "voluntary" and "involuntary" separation 

and, with respect to the present case, the magistrate concluded: 

Examining the present facts, we find it difficult to characterize 

as "involuntary" a termination generated by [Barnes'] 

violation of a written work rule or policy that (1) clearly 

defined the prohibited conduct, (2) had been previously 

identified by the employer as a dischargeable offense, and (3) 

was known or should have been known to the employee. 

Defining such an employment separation as voluntary 

comports with Ashcraft and Watts – i.e., that an employee 

must be presumed to intend the consequences of his or her 

voluntary acts. 

[Barnes] contends that her termination should not be deemed 

a voluntary abandonment because the termination was not 

the result of voluntary misconduct that she willingly 

undertook, but conduct which was inadvertent or accidental. 

In support of her argument, [Barnes] directs this court's 

attention to its decision in State ex rel. Feick v. Wesley 

 
12 

No. 15AP-170 

Community Servs., 10th Dist. No. 04AP-166, 2005-Ohio3986. 

(Magistrate's Decision,¶ 75-76.) 

{¶ 32} The magistrate found Barnes' reliance on State ex rel. Feick v. Wesley 

Community Servs., 10th Dist. No. 04AP-166, 2005-Ohio-3986 misplaced, noting that the 

Feick court had held that "while there are scenarios where a claimant should not be held 

accountable for a negligent act, there are also scenarios where it is permissible to hold a 

claimant accountable for his or her negligence and/or careless acts." Id. at ¶ 3. 

{¶ 33} The magistrate determined that there was some evidence in the record from 

which the commission could determine that Barnes' termination did constitute a 

voluntary abandonment. Specifically, the magistrate noted the following: 

While [Barnes] acknowledges the seriousness of her actions, 

she asserts that this was the only time she dropped off a child 

without following the specific protocol for ensuring that the 

child had been delivered to the proper adult. [Barnes] asserts 

that, not only was her action inadvertent, the action did not 

demonstrate any type of careless pattern discussed in Feick. 

Further, [Barnes] asserts that the commission made a specific 

finding that her action was inadvertent based on her 

erroneous assumption the teacher was present in the 

classroom. 

The magistrate finds that there is some evidence in the record 

from which the commission could determine that [Barnes'] 

termination did constitute a voluntary abandonment. The 

policy specifically required [Barnes] to leave the child in the 

presence of an adult and that a signature was required. The 

policy required certain action on [Barnes'] part: leaving the 

child with a teacher and receiving a signature indicating that 

the child was properly accounted for. [Barnes] specifically 

failed to take those two steps. The "nature" of her inaction is 

extremely serious: the safety of children. There is no evidence 

in the record that her employer did not actually follow the 

procedures. As such, the action which caused [Barnes'] 

violation of a policy was her failure to take specific action. She 

left the child outside the classroom unattended. It certainly 

can be said that she willfully or voluntarily walked away from 

that child without ensuring the child was supervised. [Barnes] 

failed to take the acts necessary to ensure that the child was 

properly and safely supervised. It cannot be said that she 

inadvertently forgot to perform this act. 

(Magistrate's Decision, ¶ 78-79.) 
13 

No. 15AP-170 

{¶ 34} The magistrate was not persuaded by Barnes' argument that the 

commission, through its SHO, had determined that her action in leaving the child alone 

was "erroneous" and "inadvertent," and that the voluntary abandonment doctrine should 

not apply to her violation of SCCAA's written work rule because her conduct was neither 

voluntary nor willful. 

In the present case, the magistrate finds that [Barnes] 

dropped the child at the school without transferring her to a 

center staff member as required by the rule. The commission 

never made a finding that her action was inadvertent. Instead, 

the commission used that language solely to describe 

[Barnes'] testimony. Stark County's zero tolerance policy 

clearly emphasizes the importance of maintaining the safety 

of the children at all times and employees who violate the 

policy regarding child safety will be terminated with just 

cause. [Barnes'] failure to take specific steps was a voluntary 

act and the magistrate finds that the commission's 

determination is supported by some evidence. 

(Magistrate's Decision, ¶ 81.) 

{¶ 35} The magistrate has noted in the attached decision that this court has held 

that Barnes' conduct, although not willful, could rise to such a level of indifference or 

disregard for workplace rules and policies as to support a finding for voluntary 

abandonment. State ex rel. Parraz v. Diamond Crystal Brands, Inc., 141 Ohio St.3d 31, 

2014-Ohio-4260, ¶ 13. The Supreme Court of Ohio in Parraz also, however, makes the 

following observation: 

An employee's violation of a work rule or policy need not be 

willful or deliberate, but merely a voluntary act that the 

employee knew may lead to termination of employment. State 

ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St.3d 520, 

2012-Ohio-3895, 974 N.E.2d 1198, ¶ 11; Watts at 121; 

Louisiana-Pacific at 403. With respect to negligent or careless 

actions that result in termination of employment, "there may 

be situations in which the nature or degree of the conduct, 

though not characterized as willful (e.g., repeated acts of 

neglect or carelessness by an employee), may rise to such a 

level of indifference or disregard for the employer's workplace 

rules/policies to support a finding of voluntary 

abandonment." State ex rel. Feick v. Wesley Community 

Servs., 10th Dist. Franklin No. 04AP-166, 2005-Ohio-3986, 

¶ 6. These cases are fact driven and must be determined on a 

case-by-case basis. Id. at ¶ 4. 
14 

No. 15AP-170 

Parraz at ¶ 16. The injured worker employee in Parraz committed repeated workplace 

violations relating to attendance and did not offer evidence whether her attendance 

problems related to her injury. Here, Barnes was apparently a conscientious employee 

who self-reported her single act of inadvertence. However, the nature of the infraction 

was admittedly more serious—so serious, according to SCCAA policy, that it warranted 

termination the first time it was committed. 

{¶ 36} In reviewing Barnes' case in the manner prescribed by Parraz, on a "caseby-case basis," we find it difficult to factually find an exception from the Supreme Court's 

holding in Parraz. The record contains evidence of Barnes' testimony that she was aware 

of the written policy; that she knew that leaving a child alone and unsupervised was cause 

for discharge under the SCCAA's Zero Tolerance Policy; and that, when she realized she 

had violated the policy, she promptly reported the violation to her supervisor. We hold 

this evidence satisfies the criteria of the Louisiana-Pacific. Consequently, the 

commission's denial of TTD compensation was not an abuse of discretion and can stand. 

{¶ 37} Upon review of the magistrate's decision, an independent review of the 

record, and due consideration of relator's objection, we find the magistrate has properly 

stated the pertinent facts and applied the appropriate law. Therefore, we overrule relator's 

objection to the magistrate's decision and adopt the decision as our own, including the 

findings of facts and conclusions of law therein, in accordance with the magistrate's 

decision, we grant respondent's motion to dismiss relator's petition for writ of mandamus. 

Objections overruled; 

writ of mandamus denied. 

TYACK and KLATT, JJ., concur 

_________________ 

 
15 

No. 15AP-170 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Thelma Barnes, : 

 

 Relator, : 

 

v. : No. 15AP-170 

 

The Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Stark County Community Action Agency, 

 : 

 Respondents. 

 : 

 

 

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

Rendered on October 28, 2015

 

Bevan & Associates, LPA, and Christopher J. Stefancik, for 

relator. 

Michael DeWine, Attorney General, and Drew Alatis, for 

respondent Industrial Commission of Ohio. 

Day Ketterer Ltd., and R. Clint Zollinger, Jr., for respondent 

Stark County Community Action Agency. 

 

IN MANDAMUS 

{¶ 38} Relator, Thelma Barnes, has filed this original action requesting that this 

court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to vacate its order which denied her application for temporary total 

disability ("TTD") compensation based on a finding that she had voluntarily abandoned 

her employment with respondent, Stark County Community Action Agency ("employer" 
16 

No. 15AP-170 

or "Stark County"), and ordering the commission to find that she is entitled to that 

compensation. 

Findings of Fact: 

{¶ 39} 1. Relator sustained a work-related injury on September 26, 2012 and her 

workers' compensation claim has been allowed for the following conditions: "sprain 

lumbar region; herniated discs L4-5, L5-S1." 

{¶ 40} 2. At the time of injury, relator was employed by Stark County as a 

transportation aide for Head Start children. 

{¶ 41} 3. On September 11, 2012, relator signed a form acknowledging that she 

had received copies of the company's home/parent and employee information, home, 

medical, dental, and general emergency plan, that she had received orientation training 

involving various safety measures specific to her position, which included the following 

topics: "[c]hild management techniques and expectations, [w]ho I will be responsible 

for, including names and age, [a]ctive supervision of children, [and] [a]ttendance 

requirements." 

{¶ 42} The written policy specifically provides that, when a child gets off the bus: 

The driver and aid[e] will then lead the children to the 

classroom. Each child is taken to the classrooms and then 

transferred to the center staff. The center staff signature is 

required on the passenger check list at the time each child is 

taken to his/her classroom. 

{¶ 43} Further, the policy provides that "[v]iolations of this procedure will 

warrant immediate suspension and/or termination." 

{¶ 44} Further, the employer has a zero tolerance policy which specifically 

provides, in pertinent part: 

Purpose: 

Limits are necessary to maintain children safe and healthy at 

all times while in the care of the Head Start program staff. 

This policy is designed to reduce the risk of harm to children 

while being transported to and from the centers, in the 

learning environment of the classroom, outdoors, field trips 

and other activities designed for preschoolers. 
17 

No. 15AP-170 

Policy: 

If a complaint or incident occurs with a Head Start (children) 

where an employee is found to have violated regulations 

established by the Ohio Department of Jobs Ohio and Family 

Services (ODJFS) which governs the licensure and 

compliance of pre-school daycares, the employee will be 

terminated with just cause. 

{¶ 45} 4. On April 9, 2013, relator dropped off a child outside of a classroom, 

unattended, and without a supervisor or other staff member present. Apparently, the 

child then entered the classroom and was alone in the classroom until she stepped out 

into the hallway and a teacher saw her. In a note written April 9, 2013, relator 

explained, in her own words, what happened: 

At about 9:25 or 9:27 bus 32 came in. I Thelma Barnes 

signed Yanitza into classroom 17. I didn't know that no one 

was in the room. Mrs. Campbell's sign in board is in the 

hallway[.] There wasn't a note or anything outside the door 

letting me know that no one was in the room. I proceeded to 

[room] 16 and I turned around and I seen Mrs. Campbell 

with the child. I asked Mrs. Campbell you wasn't in the 

room. [H]er class was in the orchestra. Yanitza [and] Mrs. 

Campbell [were] in the hallway door standing. I proceeded to 

tell Betty myself what had occurred. I'm very sorry and take 

responsibility for what happened. 

{¶ 46} 5. In a letter dated April 22, 2013, relator was notified that she was 

terminated as follows: 

You have been terminated from employment effective 

April 18, 2013, due to the violation of the Zero Tolerance 

Policy that requires staff to maintain children safe at all 

times. The incident of April 9th, 2013 was investigated which 

resulted in confirmation that you did not obtain the teacher's 

signature on the custody [paperwork] required when you 

deliver a child to the classroom, consequently the child was 

left alone in the classroom until the Teacher [sic] saw her in 

the hallway, she then joined the rest of the class. 

{¶ 47} 6. Relator, as a union member, filed a grievance and the employer notified 

relator that its decision to terminate her did not change. In a May 28, 2013 letter, 

relator was informed: 
18 

No. 15AP-170 

In response to the Grievance meeting on May 22nd, at 4:30 

p.m. at William Hunter where you were represented by Chris 

Dandrow, Union President, there is no change to your 

employment termination effective April 18, 2013. 

Your request for reconsideration based on self-reporting the 

incident, and the change of location for the sign-in sheet 

which you feel caused the incident was reviewed with Ms. 

Goss, HS Director. The reason for no change is due to the 

seriousness of the incident in which violated "The Zero 

Tolerance Policy" implemented in August 2011. This policy 

has been cause for termination to those employees that have 

left a child unattended without the supervision of a staff 

member. In your specific incident, you did not take the child 

into the classroom (left outside the classroom) to perform 

your change of custody duties with the Teacher [sic]. Because 

you did not perform this required job function as Program 

Aide, you did not see the notice left for you to take the child 

to another classroom where they were attending a concert. 

The child remained alone in the classroom until she stepped 

out into the hallway and was then redirected to join her 

classroom. 

The parents of the Head Start Program entrust their 

children's safety to the staff at SCCAA, therefore 

management must maintain a Zero Tolerance Policy for 

incidents that jeopardize the safety of the children. 

{¶ 48} 7. Eight months later, on December 9, 2013, relator underwent back 

surgery and relator's treating physician's signed Physician's Report of Work Ability 

forms indicating that relator was unable to work from the date of surgery and 

continuing. 

{¶ 49} 8. On January 23, 2014, relator filed a request for TTD compensation. 

{¶ 50} 9. In an order mailed March 4, 2014, the Ohio Bureau of Workers' 

Compensation ("BWC") referred the claim to the commission for consideration. 

{¶ 51} 10. Relator's request for TTD compensation was heard before a district 

hearing officer ("DHO") on March 26, 2014 and was allowed. Specifically, the DHO 

order states: 

Prior to a discussion on the merits, the representative for the 

Injured Worker clarified the period of disability requested 

for adjudication at today's hearing. The period requested is 
19 

No. 15AP-170 

from 11/12/2013 through the date of today's hearing and 

continuing. 

This file contains evidence that the Employer is relying on an 

argument of voluntarily abandonment which they allege 

impacts the Injured Worker's right to receive temporary total 

disability compensation. The file contains one page of 

apparently a handbook providing for a zero tolerance 

paragraph. There is no evidence of the Injured Worker ever 

having received or acknowledged a written handbook 

containing this specific written work rule. Further, there is a 

termination letter which is unsigned by her Employer. This 

Hearing Officer finds there is insufficient evidence which 

establishes that this Injured Worker was terminated for 

violation of a written work rule which she knew or should 

have known would result in her termination which is 

consistent with the decision in [State ex rel. LouisianaPacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995)]. 

Further, present on behalf of the Employer was a third party 

administrator who was unable to present a legal argument 

on this issue. 

It is ordered temporary total disability compensation shall be 

paid for the period 11/12/2013 through 03/26/2014 and 

continuing upon submission of medical proof certifying 

disability based on the recognized conditions in this claim. 

This Injured Worker underwent surgery in this claim by Dr. 

Grubb on 12/09/2013. Dr. Grubb provides a Medco-14 which 

disables this Injured Worker for the period commencing 

11/12/2013 through 03/11/2014. Further, this file contains a 

Medco-14 from Dr. Pinghero dated 03/19/2014 which also 

disables this Injured Worker. 

{¶ 52} 11. Stark County appealed and, on May 2, 2014, a hearing was heard 

before a staff hearing officer ("SHO"). At that time, the SHO vacated the prior DHO 

order and denied relator's request for TTD compensation finding that her termination 

from her job constituted a voluntarily abandonment of employment under LouisianaPacific and, inasmuch as she had not returned to any employment after her termination, 

the SHO concluded that she was not entitled to an award of TTD compensation. 

Specifically, the SHO stated: 

Temporary total compensation is denied from 11/12/2013 

through 05/02/2014. The Injured Worker has failed to 

substantiate she is eligible for the receipt of temporary total 

compensation during this period. The evidence in file reflects 
20 

No. 15AP-170 

Injured Worker was terminated on or about 04/18/2013 for 

violation of a written work policy. This termination was 

tantamount to a voluntary abandonment of employment. 

The evidence presented at hearing indicated the Injured 

Worker was employed by the named employer as a 

transportation aide for Head Start. The Injured Worker 

testified she dropped a child off to a classroom on 

04/09/2013, erroneously thinking a teacher was present, 

and inadvertently left the child unattended in the classroom. 

The Injured Worker also testified she was aware of the 

employer's Zero Tolerance Policy which mandated staff 

maintain the safety of children at all times. The Injured 

Worker testified that when she discovered her error, she 

reported herself to her supervisors as she was aware the 

employer had a strict policy regarding the safety of children. 

The Injured Worker further testified that she was aware that 

leaving a child alone or unattended was a dischargeable 

offense. 

The employer has submitted a copy of its Zero Tolerance 

Policy wherein it expressly indicates a child who is left alone 

and not actively supervised by an employee is a violation of 

the policy and a dischargeable offense. The Injured Worker 

does not dispute knowledge of this policy or her failure to 

comply with it. 

The Staff Hearing Officer finds the Injured Worker's 

termination from employment under the above-noted 

circumstances is tantamount through a voluntary 

abandonment of employment under the holding of State ex 

rel. Louisiana-Pacific Corp. v. Industrial Commission (1995), 

72 Ohio St.3d 401. The employer had a written policy which 

apprised its employees of a standard of conduct. The 

violation of this conduct was expressly indicated to be a 

terminable offense. The Injured Worker acknowledged 

knowing of both the existence of this policy and the 

consequences of her actions. 

No evidence was presented at hearing that the Injured 

Worker has returned to work in any capacity since being 

terminated on or about 04/18/2013. Therefore, based on her 

termination, which amounts to a voluntary abandonment of 

employment, and the absence of re-entry into the workforce, 

the Injured Worker is not eligible for the payment of 
21 

No. 15AP-170 

temporary total compensation for the time period 

11/12/2013 through 05/02/2014. 

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

June 6, 2014. 

{¶ 54} 13. Thereafter, relator filed a request for reconsideration arguing that she 

had not intended to violate the written work rule and that her action was neither 

voluntary nor willful, but inadvertent, and the voluntary abandonment doctrine should 

not apply. 

{¶ 55} 14. In an interlocutory order mailed July 12, 2014, the commission 

determined that relator presented evidence of sufficient probative value to warrant 

adjudication, stating: 

It is the finding of the Industrial Commission the Injured 

Worker has presented evidence of sufficient probative value 

to warrant adjudication of the Request for Reconsideration 

regarding the alleged presence of a clear mistake of fact in 

the order from which reconsideration is sought, and a clear 

mistake of law of such character that remedial action would 

clearly follow. 

Specifically, it is alleged that in denying the Injured Worker's 

request for temporary total disability compensation, the Staff 

Hearing Officer misinterpreted the standard set forth in 

State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 

Ohio St.3d 401, 650 N.E.2d 469 (1995), regarding the 

circumstances under which termination of employment may 

properly be deemed a voluntary abandonment of 

employment such as to preclude entitlement to temporary 

total disability compensation. 

The order issued 06/06/2014 is vacated, set aside, and held 

for naught. 

{¶ 56} 15. Following a hearing on October 21, 2014, the commission declined to 

exercise its continuing jurisdiction and reinstated the prior SHO order effectively 

denying relator's application for TTD compensation. 

{¶ 57} 16. Thereafter, relator filed the instant mandamus action in this court. 
22 

No. 15AP-170 

Conclusions of Law: 

{¶ 58} For the reasons that follow, it is this magistrate's decision that this court 

should deny relator's request for a writ of mandamus. 

{¶ 59} 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). 

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

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

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

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

claimant's treating physician has made a written statement that claimant is able to 

return to the former position of employment; (3) when work within the physical 

capabilities of claimant is made available by the employer or another employer; or (4) 

claimant has reached maximum medical improvement. See R.C. 4123.56(A); State ex 

rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982). 

{¶ 61} This case must be considered within the historical context in which the 

voluntary abandonment doctrine has developed. In State ex rel. Jones & Laughlin Steel 

Corp. v. Indus. Comm., 29 Ohio App.3d 145, 504 (1985), Ernesto Rosado sustained a 

work-related injury. At some point in time, Rosado voluntarily retired from his job with 

Jones & Laughlin. Based on Rosado's voluntary retirement, Jones & Laughlin argued in 

this court that Rosado should not be entitled to an award of TTD compensation. Because 

Jones & Laughlin had failed to raise the issue before the commission, this court denied 
23 

No. 15AP-170 

Jones & Laughlin's request for a writ of mandamus ordering the commission to vacate 

its award of TTD compensation; however, this court did address the issue of whether or 

not an employee's voluntary retirement from the workforce for reasons unrelated to an 

industrial injury precludes the payment of TTD compensation. 

{¶ 62} After citing the syllabus rule of Ramirez, this court stated that: 

[T]he industrial injury must not only be such as to render the 

claimant unable to perform the functions of his former 

position of employment, but it also must prevent him from 

returning to that position. * * * 

Id. at 147. 

{¶ 63} Thereafter, this court set forth the issue before it: 

Accordingly, the issue before us is whether a person who has 

voluntarily taken himself out of the work force and 

abandoned any future employment by voluntarily retiring is 

prevented from returning to his former position of 

employment by an industrial injury which renders him 

unable to perform the duties of such former position. This 

raises an issue of causal relationship. 

Id. 

{¶ 64} Ultimately, this court concluded as follows: 

[O]ne who has voluntarily retired and has no intention of 

ever returning to his former position of employment is not 

prevented from returning to that former position by an 

industrial injury which renders him unable to perform the 

duties of such former position of employment. A worker is 

prevented by an industrial injury from returning to this 

former position of employment where, but for the industrial 

injury, he would return to such former position of 

employment. However, where the employee has taken action 

that would preclude his returning to his former position of 

employment, even if he were able to do so, he is not entitled 

to continued temporary total disability benefits since it is his 

own action, rather than the industrial injury, which prevents 

his returning to such former position of employment. Such 

action would include such situations as the acceptance of 

another position, as well as voluntary retirement. 

Id. 

{¶ 65} It was not until State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 

(1987), that the foundation for the voluntary abandonment doctrine as we know it today 
24 

No. 15AP-170 

began to take shape. In that case, Nelson C. Ashcraft was injured while working in the 

scope of his employment as a welder and received TTD compensation for a period of 

time. After his TTD compensation ceased, Ashcraft was incarcerated in West Virginia on 

a felony charge, subsequently convicted and imprisoned for first degree murder. 

Thereafter, Ashcraft sought TTD compensation from the commission. 

{¶ 66} The commission ordered Ashcraft's motion suspended until he was 

released from incarceration. As such, Ashcraft was precluded from receiving any TTD 

compensation while incarcerated. 

{¶ 67} Ashcraft filed a mandamus action in this court seeking an order 

compelling the commission to hear the application for TTD compensation. This court 

granted the writ and the matter was appealed to the Supreme Court of Ohio. 

{¶ 68} After considering the purpose of TTD compensation and considering the 

holding from Jones & Laughlin, the Ashcraft court, at 44, reiterated that the crux of the 

decision in Jones & Laughlin was: 

The crux of this decision was the court's recognition of the 

two-part test to determine whether an injury qualified for 

temporary total disability compensation. The first part of this 

test focuses upon the disabling aspects of the injury, whereas 

the latter part determines if there are any factors, other than 

the injury, which would prevent the claimant from returning 

to his former position. The secondary consideration is a 

reflection of the underlying purpose of temporary total 

compensation: to compensate an injured employee for the 

loss of earnings which he incurs while the injury heals. * * * 

{¶ 69} The Ashcraft court concluded that when a claimant has voluntarily 

removed himself or herself from the workforce, he or she no longer suffers a loss of 

earnings because he or she is no longer in a position to return to work. The court 

concluded that this logic would apply whether the claimant's abandonment of his 

position was temporary or permanent. Ultimately, the court concluded that Ashcraft's 

incarceration constituted a factor which, independently of his previously recognized 

work-related injury, precluded his receipt of TTD compensation. In so finding, the 

Ashcraft court stated, at 44: 

While a prisoner's incarceration would not normally be 

considered a "voluntary" act, one may be presumed to tacitly 

accept the consequences of his voluntary acts. When a 
25 

No. 15AP-170 

person chooses to violate the law, he, by his own action, 

subjects himself to the punishment which the state has 

prescribed for that act. 

{¶ 70} In State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 

(1988), the court again considered whether or not retirement should preclude the 

payment of TTD compensation. In that case, Rollin Sharp sustained a low back injury in 

the course of his employment with Rockwell International. TTD compensation was paid 

until such time as Sharp was released to return to light-duty work. Ultimately, Sharp 

retired from his employment, but, thereafter, filed an application to reactivate his claim 

and requested TTD compensation. Rockwell International argued that TTD 

compensation should not be paid to Sharp because he had voluntarily retired from his 

employment. 

{¶ 71} Ultimately, the Supreme Court of Ohio found that TTD compensation was 

payable based upon the commission's finding that Sharp's retirement was causally 

related to his industrial injury, and thus was not voluntary. Specifically, the Rockwell 

court stated, at 46: 

Neither Ashcraft nor Jones & Laughlin states that any 

abandonment of employment precludes payment of 

temporary total disability compensation; they provide that 

only voluntary abandonment precludes it. While a 

distinction between voluntary and involuntary abandonment 

was contemplated, the terms until today have remained 

undefined. We find that a proper analysis must look beyond 

the mere volitional nature of a claimant's departure. The 

analysis must also consider the reason underlying the 

claimant's decision to retire. We hold that where a claimant's 

retirement is causally related to his injury, the retirement is 

not "voluntary" so as to preclude eligibility for temporary 

total disability compensation. 

{¶ 72} In 1995, the Supreme Court of Ohio decided the seminal case of 

Louisiana-Pacific. In that case, Patrick Longmore sustained an injury while in the 

course of his employment with Louisiana-Pacific Corporation, a self-insured employer 

under Ohio's workers' compensation laws, who began paying TTD compensation. 

Longmore was released to return to work on December 17, 1990; however, he did not 

report to work nor did he call in on December 17, 18, or 19, 1990. In a letter dated 
26 

No. 15AP-170 

December 20, 1990, Louisiana-Pacific notified Longmore that his failure to report to 

work for three consecutive days violated the company's policy and he was terminated. 

{¶ 73} The commission awarded Longmore TTD compensation and this court 

denied Louisiana-Pacific's request for a writ of mandamus. 

{¶ 74} On appeal, the Supreme Court of Ohio granted the writ of mandamus after 

finding that Longmore's termination did bar his receipt of TTD compensation. 

Specifically, the Louisiana-Pacific court stated, at 403: 

{¶ 75} Recognizing the parallels underlying incarceration and firing, we observed 

in State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 121 (1993): 

We agree that firing can constitute a voluntary abandonment 

of the former position of employment. Although not 

generally consented to, discharge, like incarceration, is often 

a consequence of behavior that the claimant willingly 

undertook, and may thus take on a voluntary character. * * * 

{¶ 76} Examining the present facts, we find it difficult to characterize as 

"involuntary" a termination generated by the claimant's violation of a written work rule 

or policy that (1) clearly defined the prohibited conduct, (2) had been previously 

identified by the employer as a dischargeable offense, and (3) was known or should have 

been known to the employee. Defining such an employment separation as voluntary 

comports with Ashcraft and Watts—i.e., that an employee must be presumed to intend 

the consequences of his or her voluntary acts. 

{¶ 77} Relator contends that her termination should not be deemed a voluntary 

abandonment because the termination was not the result of voluntary misconduct that 

she willingly undertook, but conduct which was inadvertent or accidental. In support of 

her argument, relator directs this court's attention to its decision in State ex rel. Feick v. 

Wesley Community Servs., 10th Dist. No. 04AP-166, 2005-Ohio-3986. 

{¶ 78} Emily Feick was terminated from her employment after negligently 

causing a traffic accident while operating an employer-owned vehicle. The magistrate 

concluded that negligent acts cannot constitute grounds to find that an injured worker 

has voluntarily abandoned a position of employment; however, this court found that 

conclusion was "improperly overbroad" and that "while there are scenarios where a 

claimant should not be held accountable for a negligent act, there are also scenarios 
27 

No. 15AP-170 

where it is permissible to hold a claimant accountable for his or her negligence and/or 

careless acts." Id. at ¶ 3. This court explained further: 

In the present case, respondent-employer had a company 

policy providing for discharge of an employee following a 

third violation of a "Class I" offense, which included offenses 

defined as "[c]arelessness, negligence or irresponsibility." As 

noted by the magistrate, on two prior occasions, claimant 

had negligently backed a van into another vehicle, and 

negligently placed the wrong key in the ignition of a van, 

causing damage to the van. Claimant's third incident, 

ultimately giving rise to her discharge, involved entering an 

intersection against a red traffic light. 

The magistrate found no evidence in the record that the 

claimant's act of running a red light was willful, and neither 

do we. We decline, however, to adopt a per se rule that no 

form of negligent conduct leading to an employee's discharge 

could ever constitute a voluntary abandonment of 

employment. Rather, as suggested by the commission, there 

may be situations in which the nature or degree of the 

conduct, though not characterized as willful (e.g., repeated 

acts of neglect or carelessness by an employee), may rise to 

such a level of indifference or disregard for the employer's 

workplace rules/policies to support a finding of voluntary 

abandonment. We do not find, however, that the facts of this 

case involve either willful or other conduct constituting 

voluntary abandonment. 

Id. at ¶ 5-6. 

{¶ 79} While relator acknowledges the seriousness of her actions, she asserts that 

this was the only time she dropped off a child without following the specific protocol for 

ensuring that the child had been delivered to the proper adult. Relator asserts that, not 

only was her action inadvertent, the action did not demonstrate any type of careless 

pattern discussed in Feick. Further, relator asserts that the commission made a specific 

finding that her action was inadvertent based on her erroneous assumption the teacher 

was present in the classroom. 

{¶ 80} The magistrate finds that there is some evidence in the record from which 

the commission could determine that relator's termination did constitute a voluntary 

abandonment. The policy specifically required relator to leave the child in the presence 

of an adult and that a signature was required. The policy required certain action on 
28 

No. 15AP-170 

relator's part: leaving the child with a teacher and receiving a signature indicating that 

the child was properly accounted for. Relator specifically failed to take those two steps. 

The "nature" of her inaction is extremely serious: the safety of children. There is no 

evidence in the record that her employer did not actually follow the procedures. As 

such, the action which caused relator's violation of a policy was her failure to take 

specific action. She left the child outside the classroom unattended. It certainly can be 

said that she willfully or voluntarily walked away from that child without ensuring the 

child was supervised. Relator failed to take the acts necessary to ensure that the child 

was properly and safely supervised. It cannot be said that she inadvertently forgot to 

perform this act. 

{¶ 81} Recently, this court decided State ex rel. Parraz v. Indus. Comm., 10th 

Dist. No. 11AP-806, 2013-Ohio-764. In that case, Elana Parraz violated her employer's 

attendance policy which stated that employees would be terminated if a total of 14 

points were accumulated due to excessive absences. Following her termination, Parraz 

filed a request for TTD compensation based upon a newly allowed condition and the 

commission denied her request based upon her voluntary abandonment. Parraz had 

argued that her absences were neither willful nor intentional. This court agreed with its 

magistrate's determination that, although not willful, Parraz's conduct did rise to such a 

level as indifference or disregard for workplace rules and policies as to support a finding 

for voluntary abandonment. 

{¶ 82} In the present case, the magistrate finds that relator dropped off the child 

at the school without transferring her to a center staff member as required by the rule. 

The commission never made a finding that her action was inadvertent. Instead, the 

commission used that language solely to describe relator's testimony. Stark County's 

zero tolerance policy clearly emphasizes the importance of maintaining the safety of the 

children at all times and employees who violate the policy regarding child safety will be 

terminated with just cause. Relator's failure to take specific steps was a voluntary act 

and the magistrate finds that the commission's determination is supported by some 

evidence. 
29 

No. 15AP-170 

{¶ 83} Based on the foregoing, it is this magistrate's decision that relator has not 

demonstrated that the commission abused its discretion when it denied relator's request 

for TTD compensation, and this court should deny her 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).