[Cite as State ex rel. Hartlieb v. Cleveland, 2017-Ohio-372.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Carl W. Hartlieb, : 

 

 Relator, : 

 

v. : No. 16AP-257 

 

City of Cleveland and : (REGULAR CALENDAR) 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 

D E C I S I O N 

Rendered on January 31, 2017 

 

Robert C. Bianchi, for relator. 

City of Cleveland Department of Law, Barbara Langhenry 

and Lisa A. Mack, for respondent City of Cleveland. 

Michael DeWine, Attorney General, and LaTawnda N. 

Moore, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

BRUNNER, J. 

{¶ 1} Relator, Carl W. Hartlieb, has filed this original action requesting this Court 

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

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

disability ("TTD") compensation, and ordering the commission to find that he is entitled to 

that award. 

{¶ 2} We referred this matter to a magistrate of this Court 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. The magistrate 

found that Hartlieb has not demonstrated that the commission abused its discretion when 
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No. 16AP-257 

it denied his application for TTD compensation. The magistrate recommends that this 

Court deny Hartlieb's request for a writ of mandamus. 

{¶ 3} No objections have been filed to the magistrate's decision. 

{¶ 4} Having conducted an independent review of the record in this matter and 

finding no error of law or other defect on the face of the magistrate's decision, this Court 

adopts the magistrate's decision as our own, including the findings of fact and conclusions 

of law contained therein. In accordance with the magistrate's decision, we deny the 

requested writ of mandamus. 

Writ of mandamus denied. 

TYACK, P.J., and KLATT, J., concur. 

_____________ 

 
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No. 16AP-257 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Carl W. Hartlieb, : 

 

 Relator, : 

 

v. : No. 16AP-257 

 

City of Cleveland : (REGULAR CALENDAR) 

and 

Industrial Commission of Ohio, : 

 

 Respondents. : 

 

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

Rendered on September 20, 2016

 

Robert C. Bianchi, for relator. 

City of Cleveland Department of Law, Barbara Langhenry 

and Lisa A. Mack, for respondent City of Cleveland. 

Michael DeWine, Attorney General, and LaTawnda N. 

Moore, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 5} Relator, Carl W. Hartlieb, has filed this original action requesting this court 

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

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

disability ("TTD") compensation, and ordering the commission to find that he is entitled to 

that award. 
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No. 16AP-257 

Findings of Fact:

{¶ 6} 1. Relator sustained a work-related injury on November 10, 2014 while 

employed with the city of Cleveland ("employer"). Relator was injured when he slipped 

off the step of a snow plow truck while getting into the truck and his workers' 

compensation claim has been allowed for the following conditions: "sprain left hip; 

sprain left calf; sprain left knee; left medial meniscus tear." 

{¶ 7} 2. For the past 17 years, relator routinely worked approximately 5 months 

out of the year for the city of Cleveland and collected unemployment the remaining part of 

the year. 

{¶ 8} 3. In 2015, relator requested TTD compensation and, in an order mailed 

September 14, 2015, the administrator of the Ohio Bureau of Workers' Compensation 

("BWC") granted him TTD compensation for the period March 16 through July 24, 2015, 

minus any sick leave used or salary continuation paid, and to continue upon submission 

of supportive medical documentation. The BWC order was based on the September 9, 

2015 physician review report performed by Donato Borrillo, M.D., and the fact that 

relator's claim had only recently been allowed for the left knee medial meniscus tear. 

{¶ 9} 4. The employer filed an appeal and the matter was heard before a district 

hearing officer ("DHO") on October 23, 2015. The DHO affirmed the prior BWC order 

based upon the July 24, 2015 Medco-14 Physician's Report of Work Ability of Steven 

Bernie, M.D., and the testimony of relator that "were it not for his knee injury he would 

have worked the period in question performing road repair work." 

{¶ 10} 5. The employer appealed and the matter was heard before a staff hearing 

officer ("SHO") on January 6, 2016. The SHO vacated the prior DHO order and denied 

the request for TTD compensation for two reasons. First, the SHO determined that 

relator had been a seasonal employee for the employer for the past 17 years and failed to 

establish that he would have been in the workforce during this time period if it were not 

for this injury. Specifically, the SHO order provides: 

The Injured Worker has been a seasonal employee for the 

named Employer for the past 17 years as a snow plow 

operator. He began receiving Social Security benefits 

approximately 13 years ago. The Injured Worker has never 

worked for the named Employer beyond the snow season 

despite being offered such positions periodically based upon 
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No. 16AP-257 

seniority. The purpose of temporary total disability 

compensation is to compensate Injured Worker's from lost 

earnings as a result of a work-related injury. The Hearing 

Officer finds that the Injured Worker has failed to establish[] 

that he would have been in the work force during this time 

period if it would not have been for this injury. 

{¶ 11} The SHO also found that the medical evidence was insufficient to support 

the requested period of TTD compensation, stating: 

Further, the Hearing Officer finds insufficient medical 

evidence to support temporary total disability compensation 

during this time period as it relates to the newly allowed 

condition. The Injured Worker has undergone extensive 

therapy in the past for the knee and the back. He has 

received injections in the knee and he has been determined 

to not be a surgical candidate. Further treatment would be 

directed at pain control and would not produce additional 

functionality. For this reason, the Hearing Officer relies upon 

the 12/16/2015 report of Cynthia Taylor, D.O., in that the 

Injured Worker has reached maximum medical 

improvement for all the allowed conditions of this claim. 

The Hearing Officer finds that the Claimant has reached 

maximum medical improvement. Maximum medical 

improvement is defined as a treatment plateau, static or 

well-stabilized, at which no fundamental, functional or 

physiological change can be expected within reasonable 

medical probability in spite of continuing medical or 

rehabilitative procedures (Ohio Adm. Code 4121-3-32). 

{¶ 12} 6. The SHO relied on the medical report of Cynthia Taylor, D.O., dated 

December 27, 2015. In that report, Dr. Taylor listed the allowed conditions in relator's 

claim, provided her physical findings upon examination, and concluded that relator's 

allowed conditions had reached maximum medical improvement ("MMI"), stating: 

The injured worker has had conservative care and continues 

with chronic pain in the left hip and knee. He has reached a 

treatment plateau and MMI. He may have a hyaline injection 

into the left knee which could be helpful for pain 

management purposes, but this is not going to 

fundamentally change his functional status. 

* * * 
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No. 16AP-257 

It is my medical opinion that the injured worker has reached 

MMI based on the review of records, his symptoms, and on 

my examination today. 

* * * 

The injured worker had conservative care. He is going to 

have three injections into the left knee which could be 

helpful for pain management purposes. However, he has 

reached MMI as this will not change his functional status. 

{¶ 13} 7. There are several Medco-14s in the record signed by Phillip 

Stickney, M.D. Dr. Stickney opined that relator was unable to perform any work from 

March 16 through December 1, 2015. 

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

February 6, 2016. The stipulation of evidence includes the Form 1099-G for 2014 

indicating that relator was paid $6,102 of unemployment compensation that year. 

{¶ 15} 9. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law:

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

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

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

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

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

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

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

{¶ 18} 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 
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No. 16AP-257 

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). 

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

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

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

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

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

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

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

reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 

630 (1982). 

{¶ 20} In order to be entitled to the requested period of TTD compensation, relator 

had the burden of proving that, but for the work-related injury, he would have been 

employed. The evidence submitted indicates that, for the past 17 years, relator has 

worked driving a snow plow for the city of Cleveland, and has not worked beyond the 

snow season despite being offered such positions periodically based upon seniority. In 

initially awarding relator TTD compensation, the DHO relied on his testimony that he had 

planned on securing a job at the end of the snow season in 2015, but was precluded from 

doing so because of the allowed conditions in the claim. Although relator was also present 

for the hearing before the SHO and likely testified that 2015 was the year that he planned 

to work after the close of the snow season, the SHO clearly did not find his testimony to be 

credible. 

{¶ 21} Questions of fact and the credibility of evidence are within the discretion of 

the commission as fact finder and it is immaterial whether other evidence, even if greater 

in quality and/or quantity supports a decision contrary to the commission's. Teece; State 

ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (1996). Further, the commission is 

not required to accept self-serving statements as some evidence. State ex rel. Kidwell v. 

Indus. Comm., 10th Dist. No. 02AP-940, 2003-Ohio-4509. 

{¶ 22} In support of his argument, relator cites the Supreme Court of Ohio's 

decision in State ex rel. Crim v. Bur. of Workers' Comp., 92 Ohio St.3d 481 (2001). Susan 

Y. Crim was hired by the Tuscawarus County Board of Mental Retardation and 
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No. 16AP-257 

Developmental Disabilities to teach swimming during the 1996-1997 school year. Under 

the terms of her contract, she had the option of and elected to receive her pay on a 

prorated basis over a 12-month period. On May 29, 1997, Crim was injured while working 

in the course of her employment and, as a result, she was unable to take a summer job 

with an organization that had employed her the previous summer. 

{¶ 23} The commission denied her request for TTD compensation finding that she 

did not establish a loss of earnings since she received prorated earnings during the 

summer months. 

{¶ 24} Crim filed a mandamus action in this court, which was granted. Thereafter, 

both the commission and the employer appealed that decision. The Supreme Court of 

Ohio indicated that there were two issues presented. The first issue was whether a 

teacher who contracts to teach during a school year is considered to have voluntarily 

abandoned his or her employment at the end of an academic calendar year for the 

purposes of TTD compensation. The second issue was whether a teacher, employed for 

nine months of the year, who elects to receive prorated compensation over 12 months, is 

entitled to TTD compensation for summer employment that he or she was unable to 

perform because of the allowed conditions in the claim. 

{¶ 25} The court held that a teacher does not voluntarily abandon his or her 

position of employment at the end of the school year and that, although receiving 

prorated earnings, he or she is may be entitled to an award of TTD compensation. 

{¶ 26} Crim presented evidence that she had worked at the YMCA the previous 

summer and that she intended to resume summer employment with the YMCA for the 

summer of 1997. Based on Crim's intent to return to the summer position at the YMCA 

and her previous history of summer employment, the court concluded that Crim did 

suffer a loss of earnings. 

{¶ 27} By comparison, relator worked driving a snow plow for the city of Cleveland 

for 17 years. Over the course of those 17 years, relator never worked during the off season. 

Instead, he chose to receive unemployment compensation. Although relator did 

apparently testify that, after 17 years he intended to work in the off season, the 

commission was not required to rely on his testimony. As such, based on the facts, 
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No. 16AP-257 

relator's case is clearly distinguishable from the facts in Crim. As such, the magistrate 

finds that relator has not demonstrated that the commission has abused its discretion. 

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

demonstrated that the commission abused its discretion in denying his application for 

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

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

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

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

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically objects 

to that factual finding or legal conclusion as required by Civ.R. 

53(D)(3)(b).