[Cite as State ex rel. DeCapua Ents., Inc. v. Wolfe, 2021-Ohio-3987.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. DeCapua Enterprises, Inc., : 

 

 Relator, : 

 No. 20AP-174 

v. : 

 (REGULAR CALENDAR) 

Micaela L. Wolfe et al., : 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on November 9, 2021 

 

On brief: Michael Soto, for relator. 

On brief: Larrimer and Larrimer, and Thomas L. Reitz, for 

respondent Micaela L. Wolfe. 

On brief: Dave Yost, Attorney General, and Anna Isupova, 

for respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BROWN, J. 

{¶ 1} Relator, DeCapua Enterprises, Inc., has filed this original action seeking a 

writ of mandamus to order respondent, Industrial Commission of Ohio ("commission"), to 

vacate an order of its staff hearing officer ("SHO") that awarded temporary total disability 

("TTD") compensation to respondent, Micaela L. Wolfe ("Wolfe" or "claimant"), and 

authorized payment for additional medical services in connection with Wolfe's allowed 

conditions. 
No. 20AP-174 2 

{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 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, recommending that this court 

deny the requested writ. 

{¶ 3} Relator has filed objections to the magistrate's decision, arguing the 

magistrate erred in: (1) wrongly applying pregnancy discrimination law and overstating the 

commission's discretion, (2) misapplying the facts and law regarding the injured worker's 

eligibility to receive TTD compensation, (3) ignoring the Supreme Court of Ohio's holding 

in State ex rel. Eberhardt v. Flxible Corp., 70 Ohio St.3d 649 (1994), and (4) accepting the 

SHO's approval of an electromyography ("EMG") of the lower extremity. 

{¶ 4} We initially address relator's (second) objection challenging the magistrate's 

conclusion that the record contains some evidence upon which the commission could rely 

to support an award of TTD compensation. Relator contends the medical evidence relied 

upon by the commission is contrary to various legal principles, including the failure to 

differentiate between allowed and non-allowed conditions and a reliance on internally 

inconsistent medical reports. 

{¶ 5} Here, the SHO determined the injured worker was experiencing left lower 

extremity issues that had worsened in spite of surgery and other treatment modalities. The 

SHO noted that, after Wolfe's "initial surgery in April, 2017, the Injured Worker developed 

Left Lower Extremity DVT, which is an allowed condition in this claim." (SHO Order at 2.) 

The SHO further found that, despite being initially released to return to work, Wolfe's lower 

left extremity issues "continued and worsened, causing her to seek treatment at the 

emergency room on 05/01/2017." (SHO Order at 2.) 

{¶ 6} In granting the claimant's request for TTD compensation, the order of the 

SHO cited the evidence relied on, including: (1) a C-9 dated 1/29/2019 from Dr. Jonathan 

Feibel (the physician who performed surgery on claimant in 2017), (2) a treatment note, 

dated 1/28/2019, from Lacie Baker, PA-C (noting in part "[l]eft ankle swelling" and "pain 

over the peroneal tendons on the left," as well as a physician's statement to Baker that MRI 

findings indicated "some of the signal in the tendons could be scarring from the previous 

surgery but some however could be new tearing at the tendon"), (3) the January 11, 2019 

MRI Interpretive Report (noting split-tear of the tendon), (4) the 2/20/2019 MEDCO-14 of 
No. 20AP-174 3 

Dr. Feibel, and (5) three MEDCO-14 forms completed by Dr. Jason A. Reed, dated 

respectively 6/25/2019, 10/16/2019 and 1/2/2020, indicating Wolfe's conditions of 

peroneal tendon tear and sprain of left ankle were conditions causing temporary disability. 

{¶ 7} The decision of the magistrate sets forth detailed findings of fact based on the 

stipulated record, including the finding that, in the interim between the claimant's appeal 

of the order of the district hearing officer and the hearing before the SHO, "Wolfe 

underwent further examination by Dr. Reed, who summarized his treatment with the 

conclusion that Wolfe's symptoms had worsened since her surgery." (Appended Mag. 

Decision at ¶ 47.) In addressing the "conflicting evidence" with respect to Wolfe's medical 

treatment and the conclusions of the examining physicians, the magistrate concluded the 

commission had full discretion to rely on the reports of Drs. Reed and Feibel (in favor of 

those offered by Dr. Michael Rozen and Dr. Paul Freedman), and to rely on Dr. Reed's 

"continued assessment that Wolfe could not return to work based upon the allowed 

conditions." (Appended Mag. Decision at ¶ 60.) 

{¶ 8} On review, we conclude, as did the magistrate, there was some medical 

evidence supporting the commission's conclusion that Wolfe was unable to return to work 

due to her allowed conditions. Accordingly, we find unpersuasive relator's contention the 

magistrate misapplied the facts and law in addressing the commission's decision to award 

the claimant TTD compensation, and we overrule relator's second objection. 

{¶ 9} Under its third objection, relator contends the magistrate ignored the 

Supreme Court's decision in Eberhardt. Specifically, relator cites language from that 

decision indicating the commission's discretion in determining the weight and credibility 

of the medical reports admitted into evidence "is not unbounded," and that "there must be 

some reasonable basis for the commission's rejection of a physician's finding." Eberhardt 

at 655. According to relator, the rejection of the reports of Drs. Rozen and Freedman are 

violative of Eberhardt because, unlike the evidence cited by the SHO, "the opinions of these 

physicians are supported by the facts and Stipulated Evidence." (Relator's Objs. at 14.) 

{¶ 10} In context, the passages cited by relator address the Supreme Court's 

recognition that "contradictory or equivocal statements by the same physician cannot, as a 

matter of law, support an award of compensation," Eberhardt at 656, and that "equivocal 

medical opinions are not evidence." Id. at 657. This court has recognized that Eberhardt 
No. 20AP-174 4 

itself "merely stands for the proposition that, 'where a physician renders an ambiguous 

opinion regarding a claimant's medical condition but thereafter clarifies the ambiguity, the 

Industrial Commission may not revive the ambiguity as a basis for rejecting the physician's 

opinion.' " State ex rel. Ward v. Dorman Prods., 10th Dist. No. 05AP-28, 2005-Ohio-5425, 

¶ 4, quoting Eberhardt at paragraph two of the syllabus. 

{¶ 11} While the magistrate in this action acknowledged the record was "replete 

with conflicting evidence," the magistrate further recognized the commission "remains the 

arbiter of weight and probative value of such evidence," and that it was not the magistrate's 

role in a mandamus action to "reweigh the evidence" and reject the reports of Drs. Reed 

and Feibel in favor of those of Drs. Freedman and Rozen. (Appended Mag. Decision at 

¶ 60.) We agree and find unpersuasive relator's contention that the reports relied on by the 

SHO, and discussed by the magistrate, run contrary to the holding in Eberhardt. Finding 

no merit with relator's argument, we overrule the third objection. 

{¶ 12} Under its first objection, relator contends the magistrate erred in considering 

state and federal pregnancy discrimination law when addressing the issue of voluntary 

abandonment. Relator notes the magistrate raised pregnancy discrimination related 

concerns in the context of analyzing the Supreme Court's decision in State ex rel. Klein v. 

Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, ¶ 29, in which 

the Supreme Court overruled two prior decisions (State ex rel. Reitter Stucco, Inc. v. Indus. 

Comm., 117 Ohio St.3d 71, 2008-Ohio-499, and State ex rel. OmniSource Corp. v. Indus. 

Comm., 113 Ohio St.3d 303, 2007-Ohio-1951), and held in part: "[W]hen a workers' 

compensation claimant voluntarily removes himself from his former position of 

employment for reasons unrelated to a workplace injury, he is no longer eligible for 

temporary-total-disability compensation, even if the claimant remains disabled at the time 

of his separation from employment." 

{¶ 13} Relator maintains none of the parties in the instant action "ever grounded its 

position" on the injured worker's pregnancy, and that "any discussion or application of 

pregnancy discrimination law is irrelevant to the issue before the Court." (Relator's Objs. 

at 5-6.) Relator further contends the SHO's conclusion that Wolfe had not abandoned the 

workforce is not supported by any evidence. 
No. 20AP-174 5 

{¶ 14} While we do not find the magistrate's analysis of pregnancy discrimination 

law dispositive, we disagree with relator's argument that there is no evidence to support the 

SHO's finding Wolfe had not abandoned the workforce. In this respect, the magistrate 

noted the commission "addressed the question of voluntary abandonment and assessed the 

evidence addressing the interplay between physical impact of the allowed conditions and a 

subsequent pregnancy in weighing whether one or the other had prevented Wolfe from 

returning to work." (Appended Mag. Decision at ¶ 74.) We agree, and find the record 

supports the commission's rejection of relator's assertion that claimant voluntarily 

abandoned her employment. 

{¶ 15} Here, while the SHO recognized the fact "the Injured Worker was pregnant 

and did have a baby," the SHO further concluded "her issues due to surgery, but occurring 

before her pregnancy[,] are documented in the claim file." (SHO Order at 2.) In support of 

the determination Wolfe had not voluntarily abandoned the workforce based on worsening 

medical issues due to surgery, the SHO cited the evidence relied on including the treatment 

note of Natalie Wyss, PA-C, the treatment report of Lacie Baker, PA-C, as well as the initial 

report of Dr. Reed. 

{¶ 16} While we find the magistrate's discussion of state and federal discrimination 

law unnecessary to the issues presented, we agree with the magistrate's ultimate conclusion 

there was some evidence to support the SHO's determination that Wolfe's absence from her 

former position of employment was related to her allowed conditions (and therefore the 

commission did not abuse its discretion in rejecting relator's voluntary abandonment 

argument). We therefore sustain relator's first objection to the limited extent we do not 

adopt the portion of the magistrate's conclusions of law addressing federal and state 

pregnancy discrimination law, but we otherwise overrule the objection. 

{¶ 17} In its final objection, relator contends the magistrate erred in accepting the 

SHO's approval of the EMG of the lower extremity. The SHO granted the request for an 

EMG, finding it "reasonable, necessary and appropriate for management of the allowed 

conditions," and further noting "the Injured Worker is experiencing left lower extremity 

issues which have worsened, in spite of surgery and other treatment modalities being 

performed." (SHO Order at 1.) Relator's objection on this point reiterates the same 

argument presented and rejected by the magistrate (i.e., relator's claim that the 
No. 20AP-174 6 

commission's approval of the EMG violated the three-prong test in State ex rel. Miller v. 

Indus. Comm., 71 Ohio St.3d 229 (1994)). The magistrate addressed and rejected that 

argument, deeming it an invitation to "reweigh the medical opinion evidence that the 

requested EMG was medically necessary and related to the allowed conditions." 

(Appended Mag. Decision at ¶ 61.) Finding no error with determination, we overrule 

relator's fourth objection. 

{¶ 18} Following an independent review of this matter, we find the magistrate has 

properly determined the facts and we adopt the magistrate's findings of fact. We also adopt 

the magistrate's conclusions of law except for the discussion as to federal and state 

pregnancy discrimination law. For the reasons set forth above, we sustain in part and 

overrule in part relator's first objection, and we overrule relator's second, third, and fourth 

objections. In accordance with the magistrate's recommendation, we deny relator's request 

for a writ of mandamus. 

Objections sustained in part and overruled in part; 

 writ of mandamus denied. 

DORRIAN, P.J., and MENTEL, J., concur. 

______________ 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. DeCapua Enterprises, Inc., : 

 

 Relator, : 

v. : No. 20AP-174 

 

Micaela L. Wolfe et al., : (REGULAR CALENDAR) 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 
No. 20AP-174 7 

Rendered on March 16, 2021

 

Michael Soto, for relator. 

Larrimer and Larrimer, and Thomas L. Reitz, for respondent 

Micaela L. Wolfe. 

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

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 19} Relator, DeCapua Enterprises, Inc., brings this original action seeking a writ 

of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to 

vacate an order of the commission staff hearing officer ("SHO") that awarded temporary 

total disability ("TTD") compensation to respondent Micaela L. Wolfe and authorized 

payment for additional medical services in connection with Wolfe's allowed conditions. 

Findings of Fact: 

{¶ 20} 1. DeCapua is a temporary staffing service that participates in Ohio's 

workers' compensation system as a self-insured employer. 

{¶ 21} 2. DeCapua employed Wolfe and, for the period relative to the claim at issue, 

assigned Wolfe as an optical lab technician to a facility in Lockbourne, Ohio. (Stip. at 1.) 

{¶ 22} 3. Leaving a work-related meeting on September 27, 2016 at the facility 

where she was assigned, Wolfe slipped on a wet floor, and suffered leg injuries. (Stip. at 1, 

16, 75, 104, 112, 137.) 

{¶ 23} 4. DeCapua initially certified Wolfe's claim which was allowed for "Sprain 

Left Ankle [], Contusion Right Knee [], Left Ankle Peroneal Tendon Tear." (Stip. at 14.) 

{¶ 24} 5. DeCapua's complaint alleges that DeCapua commenced paying TTD 

benefits to Wolfe for the period from September 28, 2016 to February 1, 2018. (Complaint 

at 2.). 

{¶ 25} 6. Orthopedist Jonathan B. Feibel, M.D., examined Wolfe and produced a 

report dated December 20, 2016. (Stip. at 16.) Dr. Feibel reviewed an MRI and found it 
No. 20AP-174 8 

consistent with left peroneal tendinitis and peroneal tendon tearing. He proposed use of 

an immobilizing boot followed by review of surgical options after four weeks. (Stip. at 16.) 

{¶ 26} 7. On January 17, 2017, Laci Baker, a physician assistant in Dr. Feibel's office, 

signed a report with the following recommendation: 

Patient has failed conservative treatment and therefore I have 

recommended surgical intervention which would include 

peroneal tendon debridement with repair. I discussed with 

the patient the risks, benefits and complications of the 

surgery. She understands these risks and wishes to proceed 

therefore we will ask for approval through BWC and schedule 

it in the near future. She will followup [sic] postoperatively. 

She will call if any problems arise in the interim. 

(Stip. at 18.) 

{¶ 27} 8. Dr. Feibel performed surgery on April 5, 2017. (Stip. at 22.) Surgery 

included resolution of "a very complex tendon tear" and debridement. (Stip. at 22-23.) 

{¶ 28} 9. Dr. Feibel certified Wolfe temporarily and totally disabled after the 

surgery. (Stip. at 28-29.) 

{¶ 29} 10. Wolfe experienced post-surgery calf pain and underwent a veinous 

duplex exam on April 11, 2017 which revealed acute deep vein thrombosis of the left 

peroneal vein. (Stip. at 30-32, 36.) 

{¶ 30} 11. DeCapua additionally recognized Wolfe's claim for deep vein thrombosis, 

lower left extremity. (Stip. at 148.) 

{¶ 31} 12. On July 14, 2017, Dr. Feibel's physician assistant recommended that 

Wolfe commence physical therapy, and Dr. Feibel again certified Wolfe temporarily and 

totally disabled. (Stip. at 53-56.) 

{¶ 32} 13. On December 22, 2017, Dr. Feibel again examined Wolfe, who reported 

ongoing pain in her left ankle, associate bruising, and red blotchy skin. Dr. Feibel observed 

that Wolfe reported pursuing her physical therapy and that she reported being six months 

pregnant. (Stip. at 58.) Dr. Feibel's diagnosis continued to be sprain of unspecified 

ligaments in the left ankle and peroneal tendonitis of the left leg. Dr. Feibel recommended 

continuing physical therapy and expressed concern that Wolfe had developed reflex 

sympathetic dystrophy ("RSD") in her left ankle. 
No. 20AP-174 9 

{¶ 33} 14. Wolfe underwent a functional capacity evaluation ("FCE") on 

January 19, 2018. Kevin Jones, physical therapist, reported to Dr. Feibel as follows: 

The above-referenced client was referred to our facility for a 

functional capacity evaluation which was conducted on 

January 19, 2018. The results of the evaluation are contained 

in the attached report. The XRTS FCE testing system consists 

of multiple components which rely on distraction-based 

testing methods during repeated observations to assist in the 

classification of effort. 

Testing was performed per the request of the referral source 

to determine maximum abilities. 

A summary of the findings are as follows: 

Result: 

The overall classification of effort is Invalid due to the client, 

Micaela Queen, performing inconsistently during a 

repeated measures protocol. 

Maximum weight achieved to waist height = B 29.16 lbs.; 

Rt 29.16 lbs.; Lt 29.16 lbs. 

The client failed to give maximum voluntary effort during 

today's FCE. Therefore, it is undeterminable at this time safe, 

maximum lifting capabilities and/or other functional 

capabilities. 

Reasoning for Invalid Categorization

There is an absence of correlation between lifts of unmarked 

steel bars and the corresponding lifts on the XRTS Lever Arm. 

Overall Percent Change = 43.0% 

Additional Supportive Reasoning for Invalid 

Categorization

Breakaway/Cogwheeling was observed during the manual 

muscle testing. 

High pain reports during and/or following FCE are 

inconsistent with minimal or no demonstrated pain 

behaviors. 

(Emphasis sic.) (Stip. at 60.) 
No. 20AP-174 10 

{¶ 34} 15. Based in part on the FCE report, Dr. Feibel's office, over the signature of 

Natalie Wyss, physician assistant, produced a report of work ability dated February 2, 2018, 

releasing Wolfe to full duty without restrictions effective immediately. (Stip. at 72-73.) 

{¶ 35} 16. On February 12, 2018, Michael Rozen, M.D., examined Wolfe on behalf 

of DeCapua. Dr. Rozen reported that Wolfe informed him that she was 35 weeks pregnant, 

was not undergoing active treatment for her workplace injury, and had not scheduled 

follow-up appointments until conclusion of her pregnancy. Dr. Rozen opined that Wolfe 

had reached maximum medical improvement ("MMI") on her allowed conditions. (Stip. at 

81.) 

{¶ 36} 17. Wolfe then underwent a further examination at Dr. Feibel's office on 

April 23, 2018. Physician Assistant Wyss opined that the office would seek an additional 

MRI examine to evaluate Wolfe's injuries prior to determining if the office agreed with Dr. 

Rozen's MMI determination. (Stip. at 84.) Dr. Feibel did not issue a new opinion at this 

time to contravene his February 2, 2018 release to work. 

{¶ 37} 18. The commission eventually granted authorization for the requested MRI 

examination. (Stip. at 102-03.) 

{¶ 38} 19. Wolfe applied for a permanent partial disability ("PPD") award on 

August 16, 2018 and the commission eventually granted ten percent PPD. (Stip. at 94, 158-

59.) 

{¶ 39} 20. Wolfe underwent an MRI on January 11, 2019. The radiologist's report 

stated as follows: 

[One] There are MRI findings most compatible with a 

longitudinal split-tear of the retromalleolar and 

inframelleolar portion of the peroneus brevis tendon 

spanning approximately 3 cm in length. This is not associated 

with any significant tenosynovitis and is of uncertain clinical 

significance. There is probable postoperative scarring 

involving the superior peroneal retinaculum. The peroneus 

longus tendon appears grossly within normal limits allowing 

for susceptibility artifact from postsurgical changes in the 

retromalleolar and inframalleolar region. 

[Two] No ligament injury or osteochondral defect is seen. 

(Stip. at 111.) 
No. 20AP-174 11 

{¶ 40} 21. Dr. Feibel examined Wolfe again on January 28, 2019 and recommended 

further treatment including an updated EMG study to evaluate for RSD. (Stip. at 115.) 

Based on this examination and the prior MRI, Wolfe filed on March 6, 2019 (signature date 

February 28, 2019) a motion for further treatment and referral, and for TTD compensation 

for the period January 28 to April 1, 2019. (Stip. at 120-21.) DeCapua opposed the motion. 

(Stip. at 128.) Dr. Feibel produced a February 20, 2019 work ability report at this time 

which is illegible in the record but the parties treat in argument as supporting the TTD 

application. (Stip. at 118-19.) 

{¶ 41} 22. Paul Freedman, M.D., examined Wolfe on March 29, 2019 and reviewed 

her records, issuing a report dated July 30, 2019. Dr. Freedman concluded that the 

requested services were directed at non-allowed conditions, including chronic regional pain 

syndrome ("CRPS," the alternative term for RSD previously discussed in the file), that the 

allowed conditions had resolved, and that light-duty restrictions proposed by Dr. Feibel 

were inconsistent with his findings. (Stip. at 138-39.) 

{¶ 42} 23. Wolfe submitted a BWC notice of change of treating physician of record 

on June 24, 2019. The form does not specify a previous treating physician and identifies 

the new physician as Jason A. Reed, D.O. (Stip. at 134.) 

{¶ 43} 24. Wolfe was examined by Dr. Reed on June 24, 2019. (Stip. at 131-33.) Dr. 

Reed produced a work ability report dated June 25, 2019, stating: "Patient will continue 

off work until EMG and follow up is completed." (Stip. at 135-36.) 

{¶ 44} 25. Dr. Reed produced another work ability report dated October 16, 2016 

with the same conclusion, pursuant to an exam conducted on October 14, 2019. (Stip. at 

154-57.) Dr. Reed reported his impression from this exam as "[s]train of muscle(s) and 

tendon(s) of peroneal muscle group at lower leg level; left leg * * * [s]prain of unspecified 

ligament of left ankle. * * * Patient states 2 weeks ago fell due to knee giving out and ankle 

went numb. At this time patient is to continue off work. Patient has EMG hearing next week. 

We will see patient back after hearing." (Stip. at 155.) 

{¶ 45} 26. Dr. Freedman updated his report with an addendum dated November 1, 

2019 addressing Dr. Reed's office notes, and opposing Dr. Reed's recommendation for 

further testing because Dr. Freedman deemed these tests directed at non-allowed 
No. 20AP-174 12 

conditions. Dr. Freedman continued to opine that the allowed conditions had resolved. 

(Stip. at 160-63.) 

{¶ 46} 27. Pursuant to DeCapua's opposition to Wolfe's various motions, a district 

hearing officer ("DHO") issued an order November 5, 2019 denying Wolfe's application for 

TTD for the closed period of January 28 to April 1, 2019, and June 24, 2019 through the 

date of hearing. (Stip. at 165-67.) The DHO also denied Wolfe's request for authorization 

of a further EMG of her left leg. The DHO further summarized Wolfe's testimony at the 

hearing as follows: 

[T]he Injured Worker testified that she did not return to work 

in February 2018, noting that she was eight months pregnant 

at the time and stating that no one would hire a woman who 

was eight months pregnant. The Injured Worker testified 

further that she gave birth in March 2018 and since that time 

has been a stay-at-home mother. The Injured Worker testified 

further that she has not returned to work or looked for work 

since March 2018, as she does not feel capable of returning to 

any employment due to her allowed left lower extremity 

conditions. Despite this testimony, the District Hearing 

Officer finds insufficient persuasive medical proof on file of 

any vocational restrictions caused by the allowed conditions 

between 02/03/2018 and 01/27/2019. Based upon these 

factors, the District Hearing Officer is persuaded by the 

Employer's argument, presented by counsel at hearing, and 

finds that the Injured Worker has abandoned the workforce 

and is thus ineligible for temporary total disability 

compensation. These findings are also based upon the 

Employer's C-256 Self-Insuring Employer Notice and Request 

for Information for C-92/C-92A Application filed 08/27/2018 

and Adjudications Before the Ohio Industrial Commission 

Memo D5. 

Authorization is denied for a left lower extremity EMG. The 

District Hearing Officer finds that the requested left lower 

extremity EMG is not related to, reasonable or necessary for 

treatment of the allowed conditions of the claim, or for 

diagnostic purposes under the claim. The District Hearing 

Officer finds that when the Injured Worker was evaluated by 

Lacie Baker, P.A., on 12/22/2017, she was concerned that the 

Injured Worker had developed reflex sympathetic dystrophy 

in the left ankle. The District Hearing Officer finds that by the 

time the Injured Worker was evaluated by Ms. Baker on 

01/26/2019, she found that most of the Injured Worker's pain 
No. 20AP-174 13 

was related to her reflex sympathetic dystrophy and 

recommended the updated EMG study to evaluate for that 

reflex sympathetic dystrophy. Therefore, the District Hearing 

Officer finds that the Injured Worker's present complaints 

and examination findings are causally unrelated to the 

allowed industrial incident of 09/27/2016. These findings are 

also based upon Dr. Freedman's reports dated 07/30/2019 

and 11/01/2019. 

(Stip. at 166.) 

{¶ 47} 28. Wolfe appealed the DHO's order and the appeal was scheduled for 

hearing before an SHO. In the interim, Wolfe underwent further examination by Dr. Reed, 

who summarized his treatment with the conclusion that Wolfe's symptoms had worsened 

since her surgery, and that Wolfe had not developed CRPS due to her pregnancy but rather 

due to a buildup of scar tissue due to injury and surgery in connection with the allowed 

conditions. (Stip. at 169-70.) 

{¶ 48} 29. Dr. Reed completed a Physician's Report of Work Ability dated 

January 2, 2020, and certified that Wolfe was temporarily and totally disabled for the 

period of December 23, 2019 through February 24, 2020 and should remain off work due 

to pain. (Stip. at 173-74.) 

{¶ 49} 30. The SHO issued an order mailed January 22, 2020 vacating the DHO's 

order and awarding TTD and approving an EMG of the left lower leg. (Stip. at 177.) The 

SHO found that Wolfe had not voluntarily abandoned her employment, and ultimately was 

not working because of the evolving and worsening allowed conditions: "While the Injured 

Worker was initially released to return to * * * work approximately 10 weeks after surgery, 

the Injured Worker's lower left extremity issues continued and worsened, causing her to 

seek treatment at the emergency room on 05/01/2017." (Stip. at 178.) The SHO further 

noted, as had the DHO, that Wolfe had not returned to work after February 2, 2018. (Stip. 

at 178.) 

{¶ 50} The SHO's report relied on Dr. Feibel's work ability report dated February 20, 

2019, the treatment notes of Physician Assistant Wyss dated April 23, 2018, the treatment 

notes of Physician Assistant Baker dated January 28, 2019, the results of the MRI reported 
No. 20AP-174 14 

on January 11, 2019, the June 24, 2019 initial examination report from Dr. Reed, and Dr. 

Reed's work ability reports. (Stip. at 177.) 

{¶ 51} The SHO addressed DeCapua's voluntary abandonment arguments as 

follows: 

The Hearing Officer further finds that the Injured Worker was 

last paid temporary total compensation through 02/02/2018 

and has not returned to work. The Hearing Officer notes that 

* * * on that date the Injured Worker was 8 months pregnant 

and that she gave birth in March, 2018. However, the Hearing 

Officer does not find persuasive the employer's counsel's 

assertion that the Injured Worker voluntarily abandoned her 

employment and is therefore not entitled to temporary total 

compensation. While it is well taken that the Injured Worker 

was pregnant and did have a baby, her issues due to surgery, 

but occurring before her pregnancy are documented in the 

claim file and noted above. 

(Stip. at 178.) 

{¶ 52} 31. DeCapua filed an appeal from the SHO's order, which the commission 

refused. (Stip. at 242.) 

{¶ 53} 32. DeCapua then moved for reconsideration of the commission's refusal, 

and by decision mailed March 17, 2020, the commission advised that it had failed to reach 

a majority decision with one commissioner abstaining, one commissioner opposed, and 

one supporting the request for reconsideration. Under the rules of the commission, the 

SHO's order stood undisturbed. (Stip. at 310-12.) 

{¶ 54} 33. DeCapua filed its complaint in mandamus with this court on March 23, 

2020. The matter was duly briefed and argued before the magistrate on December 4, 2020, 

at which time the magistrate requested additional briefing from the parties due to the 

intervening enactment of S.B. 81, which addresses the law in Ohio governing voluntary 

abandonment of employment. Counsel have furnished the requested additional briefing. 

Discussion and Conclusions of Law: 

{¶ 55} DeCapua seeks a writ addressing the commission's award of TTD 

compensation and approval of additional treatment in the form of an EMG of the lower left 

leg.
No. 20AP-174 15 

{¶ 56} 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). 

{¶ 57} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for 

wages lost when a claimant's injury prevents a return to the former position of employment. 

TTD compensation shall be paid to a claimant until one of four things occurs: (1) the 

claimant resumes work; (2) the claimant's treating physician provides a written statement 

that claimant is able to return to the former position of employment or comparable work; 

(3) work within the capabilities of the claimant is made available by the employer or another 

employer; or (4) the claimant reaches maximum medical improvement. R.C. 4123.56(A); 

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

Timken Co., 10th Dist. No. 18AP-261, 2019-Ohio-3013, ¶ 25. In some cases, however, a 

worker's own actions, rather than the allowed conditions, may result in the worker's not 

being able to return to the workforce. State ex rel. Rockwell Internatl. v. Indus. Comm., 

40 Ohio St.3d 44 (1988). "In such cases, the injured worker is said to have voluntarily 

abandoned his former position of employment, thereby precluding his eligibility for TTD." 

State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 379-80 (2000). Thus, a claimant's 

complete abandonment of the entire workforce precludes the payment of TTD 

compensation altogether. State ex rel. Honda of Am. Mfg. v. Indus. Comm., 10th Dist. No. 

11AP-528, 2012-Ohio-3335, ¶ 34, citing State ex rel. Jones & Laughlin Steel Corp. v. Indus. 

Comm., 29 Ohio App.3d 145 (10th Dist. 1985), and Baker.
No. 20AP-174 16 

{¶ 58} In arguing against the award of TTD in this case, DeCapua relies both on the 

concept of voluntary abandonment of employment and the premise that Wolfe did not meet 

her evidentiary burden of furnishing competent medical evidence of continuing TTD as 

required by Ohio Adm.Code 4123-5-18(D). The magistrate notes at this point that the 

commission has never held that Wolfe has reached MMI, despite the medical evidence to 

that effect provided by Dr. Rozen. 

{¶ 59} DeCapua argues the SHO erred in relying on Dr. Feibel's January 28, 2019 

report, Physician Assistant Baker's office notes from the January 28, 2019 examination, 

and the left ankle MRI of January 11, 2019 in approving a further EMG test for Wolfe. 

DeCapua posits that Dr. Feibel is no longer Wolfe's physician of record after June 24, 2019 

when she submitted her change of physician form and began seeing Dr. Reed. DeCapua 

then asserts that Dr. Reed has never specifically requested the left-leg EMG approved by 

the SHO, because Dr. Reed actually favored a bilateral lower extremity EMG. (Stip. at 131-

33.) DeCapua also points out that office notes of Physician Assistant Baker stated that 

Wolfe's pain was related to her possible RSD, which was a non-allowed condition, and that 

the requested EMG was therefore not related to an allowed condition. Finally, DeCapua 

points out that Dr. Freedman's report was far more detailed and specific in opposing 

approval of the EMG because the test was directed at non-allowed conditions. 

{¶ 60} DeCapua points out that Dr. Feibel had released Wolfe to full duty on 

February 2, 2018, ten months after surgery and nine months after the May 1, 2017 

emergency room visit that revealed the deep vein thrombosis. DeCapua points out that the 

record contains no medical discussion or evidence related to the deep vein thrombosis after 

Dr. Feibel's full-duty release on February 2, 2018. With respect to the state of the evidence 

regarding Wolfe's medical treatment and conclusions of examining physicians that Wolfe 

was incapable of returning to her former position, the record is certainly replete with 

conflicting evidence, but the magistrate notes that the commission remains the arbiter of 

weight and probative value of such evidence, and it is not the magistrate's role in a 

mandamus action to reweigh the evidence and reject Drs. Reed and Feibel's reports in favor 

of those of Drs. Freedman and Rozen. The commission had full discretion to rely on Dr. 

Reed's continued assessment that Wolfe could not return to work based upon the allowed 

conditions. 
No. 20AP-174 17 

{¶ 61} Turning to the commission's authorization of treatment in the form of an 

EMG of the lower left leg, there is a three-prong test for authorization of most medical 

services in connection with a claim: (1) are the medical services reasonably related to the 

allowed conditions; (2) are the medical services reasonably necessary for treatment of the 

allowed conditions; and (3) is the cost of the medical services reasonable in relation to the 

medical benefit thereof. State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229, 232 (1994). 

Only the latter two factors are argued here. Again, the magistrate is not permitted to 

reweigh the medical opinion evidence that the requested EMG was medically necessary and 

related to the allowed conditions. 

{¶ 62} DeCapua finally argues that, if medical evidence supports TTD, Wolfe has lost 

her claim to such compensation because she has voluntarily abandoned the workforce. 

Wolfe's testimony before the DHO that she had not worked anywhere after September 27, 

2016 is not rebutted or opposed in this case. The question when assessing the propriety of 

TTD is whether Wolfe had voluntarily abandoned the workforce due to her pregnancy. The 

SHO concluded otherwise, finding that Wolfe's condition worsened due to ongoing tendon 

issues after surgery and the additionally allowed condition of deep vein thrombosis. 

{¶ 63} Ohio's governing case law for voluntary abandonment in TTD cases has been 

unsettled in recent years. In response, the Ohio legislature then passed H.B. No. 81, which 

modified R.C. 4123.56 by adding the following entirely new language:

(F) If an employee is unable to work or suffers a wage loss as 

the direct result of an impairment arising from an injury or 

occupational disease, the employee is entitled to receive 

compensation under this section, provided the employee is 

otherwise qualified. If an employee is not working or has 

suffered a wage loss as the direct result of reasons unrelated to 

the allowed injury or occupational disease, the employee is not 

eligible to receive compensation under this section. It is the 

intent of the general assembly to supersede any previous 

judicial decision that applied the doctrine of voluntary 

abandonment to a claim brought under this section. 

(Emphasis added.) R.C. 4123.56(F), effective Sept. 15, 2020. 

{¶ 64} The first question to resolve in a voluntary abandonment case is a 

determination of the governing law, since the legal standards for TTD eligibility may be 

drawn from recent Supreme Court of Ohio cases, or to the contrary H.B. 81's new language 
No. 20AP-174 18 

that expressly supersedes those cases. Although the outcome in the present matter might 

not vary, the choice of law is still a threshold issue. The parties, as requested by the 

magistrate, have provided well-reasoned additional briefing and agree that H.B. 81 does 

not apply here, and the magistrate also agrees as discussed below. 

{¶ 65} The retroactive validity of new R.C. 4123.56(F) has yet to be examined by the 

judges of this court. In reviewing such legislative enactments, this court therefore 

undertakes review as a matter of first impression. State v. Consilio, 114 Ohio St.3d 295, 

2007-Ohio-4163, ¶ 8. R.C. 1.48 provides: "A statute is presumed to be prospective in its 

operation unless expressly made retrospective." See Van Fossen v. Babcock & Wilcox Co., 

36 Ohio St.3d 100, 105 (1988). While Article II, Section 28 of the Ohio Constitution 

prohibits the retroactive impairment of vested substantive rights, the General Assembly 

may make retroactive any legislation that is merely remedial in nature. Consilio at ¶ 9, 

citing State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 13, and State ex rel. 

Slaughter v. Indus. Comm., 132 Ohio St. 537, 542 (1937). Thus, courts apply a two-part 

test to evaluate whether statutes may be applied retroactively. First, the court determines 

as a threshold matter whether the statute is expressly made retroactive. Consilio at ¶ 10, 

citing LaSalle at ¶ 14, citing Van Fossen, 36 Ohio St.3d 100, at paragraphs one and two of 

the syllabus. Then, if the statute is clearly intended to be retroactive, the court determines 

under the Ohio Constitution whether the statute is substantive or remedial, and if 

retroactive application impairs a vested contractual right. Consilio at ¶ 10, citing LaSalle

at ¶ 14; Hope Academy Broadway Campus v. State Dept. of Edn., 10th Dist. No. 07AP758, 2008-Ohio-4694, ¶ 11-12. 

{¶ 66} Applying principles of judicial restraint, the magistrate applies the above test 

only to the specific facts and posture of the present case: does the statute apply to TTD 

awards in which both the injury and a final adjudication by the commission occurred before 

the effective date of the new law? 

{¶ 67} The magistrate concludes that the first factor is not met in the present case 

because the legislature did not clearly express an intent for the new language of 

R.C. 4123.56(F) to apply retroactively. The statute does specify that it is intended to 

supersede past judicial decisions on the question, and those past decisions are therefore a 

nullity going forward. The statute does not expressly say that it must be applied to cases 
No. 20AP-174 19 

currently under consideration but on facts arising before enactment of the statute, or that 

past cases decided under former law are now wrongly decided. In the absence of such 

specific language, the strong presumption against retroactivity must be applied. "[T]he 

presumption against retroactive legislation is deeply rooted in our jurisprudence, and 

embodies a legal doctrine centuries older than our Republic." State v. Walls, 96 Ohio St.3d 

437, 2002-Ohio-5059, ¶ 9, quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). 

{¶ 68} Even if the statute were taken as retroactive, it would not conform to the 

constitutional limitation. A statute is impermissibly retroactive in effect if it takes away or 

impairs rights that vested or accrued before the statute came into force, or it attaches a new 

disability in respect to past transactions or considerations. State ex rel. Matz v. Brown, 37 

Ohio St.3d 279, 281 (1988). "A statutory provision that attaches a new disability to a past 

transaction or consideration is not invalid unless the past transaction or consideration is 

not invalid unless the past transaction or consideration created at least a 'reasonable 

expectation of finality.' " Hope Academy, at ¶ 12, quoting Matz at 281. While there is little 

precedent addressing the question, there is no reason to doubt that an award of TTD reflects 

a substantive right. The commission decided that right under the governing law as it 

perceived it, DeCapua initiated the present action with similar expectations, and the parties 

have argued the matter accordingly. To apply new statutory law midstream would work 

more than a remedial change to the law. 

{¶ 69} The present matter will therefore be decided under the most recent 

controlling case from the Supreme Court of Ohio. An older line of cases from the Supreme 

Court states that, when a claimant was disabled at the time of retirement, resignation, or 

other termination of employment, the inability to work due to allowed conditions was the 

essential factor, and overrode any facially voluntary aspect of the subsequent 

unemployment. State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-

Ohio-499; State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996). In other 

words, "a claimant can abandon a former position of employment only if the claimant was 

physically capable of doing that job at the time of the alleged abandonment." State ex rel. 

OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, citing Pretty 

Prods. Under this line of cases, even if the abandonment appeared voluntary, there would 
No. 20AP-174 20 

still be a consideration of the degree of disability at the date of termination. Reitter Stucco

at ¶ 11, citing Pretty Prods.

{¶ 70} However, in State ex rel. Klein v. Precision Excavating & Grading Co., 155 

Ohio St.3d 78, 2018-Ohio-3890, ¶ 17, decided September 27, 2018 (and therefore prior to 

the commission's final order in the present case), the Supreme Court expressly overruled 

its prior decisions in Reitter Stucco and OmniSource, and partially overruled Pretty Prods.,

finding those decisions were unworkable in application and led to disparate results. The 

Supreme Court also concluded that its prior decisions improperly contradicted the 

fundamental legislative tenet of eligibility for TTD compensation: the industrial injury 

must be the cause of the worker's loss of earnings. Klein at ¶ 18. The court in Klein installed 

a bright-line test that applies to bar TTD in cases of voluntary abandonment, without 

reference to the claimant's physical ability to work. This test would apply across all 

circumstances, whether the purportedly voluntary abandonment of the worker's position 

resulted from termination of employment for violation of work rules that clearly define a 

dischargeable offense, from incarceration, or from retirement. Id. at ¶ 19. 

{¶ 71} As discussed above, the magistrate concludes that the commission's finding 

of Wolfe's ongoing inability to work caused by the allowed conditions is supported by some 

evidence and may not be set aside by a writ. As a result, Wolfe may only be denied TTD if, 

by becoming pregnant, she voluntarily abandoned the workforce. Klein, however, has 

never been applied in a case in which pregnancy is advanced as the intervening event that 

demonstrated voluntary abandonment. The magistrate concludes that pregnancy is not 

properly assimilated to the other types of conduct that constitute voluntary abandonment 

in most Klein cases: incarceration, retirement, relocation, terminable safety violations, or 

intervening non-allowed medical conditions are qualitatively different. More conclusively, 

a bare Klein analysis is impermissible in pregnancy situations because it runs afoul of 

federal and Ohio law prohibiting discrimination on the basis of sex and pregnancy. 

{¶ 72} Among many other prohibitions, Title VII of the Civil Rights Act of 1964, 42 

U.S.C. 2000e et seq., prohibits employers from taking adverse employment action on the 

basis of sex. 42 U.S.C. 2000e(2)(a)(1). The federal Pregnancy Discrimination Act ("PDA") 

added in 1978 a provision to Title VII’s definitions section: "The terms 'because of sex' or 

'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, 
No. 20AP-174 21 

childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or 

related medical conditions shall be treated the same for all employment-related purposes * 

* * as other persons not so affected but similar in their ability or inability to work * * *." 42 

U.S.C. 2000e(k). "The most natural way to understand the same-treatment clause is that 

an employer may not distinguish between pregnant women and others of similar ability or 

inability because of pregnancy. Here, that means pregnant women are entitled to 

accommodations on the same terms as other workers with disabling conditions." 

(Emphasis sic.) Young v. UPS, 575 U.S. 206, 242 (2015) (Scalia, J., dissenting on other 

points.) 

{¶ 73} Similarly, Ohio's Fair Employment Practices Act ("FEPA"), codified at 

R.C. Chapter 4112, prohibits discrimination on the basis of pregnancy; after Congress 

enacted the PDA amendments to Title VII, Ohio followed suit by enacting an equivalent 

Ohio Pregnancy Discrimination Act in 1980. R.C. 4112.02(A) generally provides that it is 

an unlawful discriminatory practice for any employer "because of the * * * sex * * * of any 

person, to discharge without just cause, to refuse to hire, or otherwise to discriminate 

against that person with respect to hire, tenure, terms, conditions, or privileges of 

employment, or any matter directly or indirectly related to employment." After adoption 

of Ohio's PDA, R.C. 4112.01(B) states that for the purposes of "divisions (A) to (F) of section 

4112.02 of the Revised Code, the terms 'because of sex' and 'on the basis of sex' include, but 

are not limited to, because of or on the basis of pregnancy * * *." R.C. 4112.01(B) further 

provides that "women affected by pregnancy * * * shall be treated the same for all 

employment-related purposes * * * as other persons not so affected but similar in their 

ability or inability to work * * *." See generally, Allen v. Totes/Isotoner Corp., 123 Ohio 

St.3d 216, 2009-Ohio-4231, ¶ 24-27; Priest v. TFH-EB, Inc., 127 Ohio App.3d 159, 164-65 

(10th Dist.1998). "Federal case law interpreting Title VII of the Civil Rights Act of 1964, 

Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving 

alleged violations of R.C. Chapter 4112." Plumbers & Steamfitters Joint Apprenticeship 

Commt. v. Ohio Civil Rights Comm. 66 Ohio St.2d 192, 196 (1981). 

{¶ 74} In the present case, the commission addressed the question of voluntary 

abandonment and assessed the evidence addressing the interplay between physical impact 

of the allowed conditions and a subsequent pregnancy in weighing whether one or the other 
No. 20AP-174 22 

had prevented Wolfe from returning to work. This was one step more than was required. 

In administrative proceedings before the commission, voluntary abandonment is the 

equivalent of an affirmative defense against civil claims, and must be pleaded and argued 

by the employer. State ex rel. Navistar v. Indus. Comm., 160 Ohio St.3d 7, 2020-Ohio-712, 

¶ 16, citing State ex rel. Jenkins v. Indus. Comm., 10th Dist. No. 16AP-534, 2017-Ohio7896. Title VII and FEPA bar DeCapua, a self-insured employer, from asserting a defense 

to benefits sought by a pregnant claimant when those same benefits would be legally 

available to similarly situated workers who are not pregnant. 

{¶ 75} In summary, because the commission remains the primary arbiter of 

evidence in a workers' compensation matter, and the commission has considered the 

question and determined that the medical evidence in this case supports the conclusion 

that Wolfe's allowed conditions would have rendered her unable to return to her previous 

position, it was unnecessary for the commission to address the impact of Wolfe's pregnancy 

upon her TTD eligibility. A claimant in the same position as Wolfe, but not pregnant, would 

have been eligible for TTD as granted. Federal and state law prohibiting discrimination on 

the basis of pregnancy preclude treating Wolfe any differently, and preclude the employer 

raising pregnancy to support the affirmative defense of abandonment. The commission's 

approval of additional treatment for Wolfe's allowed conditions is supported by some 

evidence. It is therefore the magistrate's decision and recommendation that the requested 

writ of mandamus must be denied. 

 /S/ MAGISTRATE 

 MARTIN L. DAVIS 

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). 
No. 20AP-174 23