[Cite as State ex rel. Koch v. Indus. Comm., 2019-Ohio-4438.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Tina M. Koch, : 

 

 Relator, : 

v. : No. 18AP-396 

 

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

 Respondents. : 

 

D E C I S I O N 

Rendered on October 29, 2019 

 

Plevin & Gallucci Co., L.P.A., Franklin County Court of 

Common Pleas L. Gallucci, III, Bradley Elzeer, II, and Fred S. 

Papalardo, Jr.; Paul W. Flowers Co., L.P.A., Paul W. Flowers, 

and Louis E. Grube, for relator. 

Dave Yost, Attorney General, and Natalie J. Tackett, for 

respondent Industrial Commission of Ohio.

Morrow & Meyer, LLC, Mary E. Ulm, for respondent Fresh 

Mark, Inc. 

 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

NELSON, J. 

{¶ 1} The Industrial Commission of Ohio is entitled to conclude that a company 

employee —a payroll clerk, no less—who submits false time sheets and is released from 

employment pursuant to established policy has voluntarily abandoned her job and is not 

eligible for continued temporary total disability status. And because the claimant here has 

made no argument to us that an employer's attempt to resolve issues with such employee 

through potential (mis)use of another state system (by suggesting that a prospective 

application for unemployment compensation be characterized as arising from a 

"permanent lay-off" rather than the firing) necessarily estops the employer from making its 
No. 18AP-396 2 

voluntary abandonment case to the commission, we find that the magistrate was correct in 

recommending that we deny the writ of mandamus the claimant requests to require the 

commission to grant the claimed disability status. 

{¶ 2} This matter comes before us on the timely objections of relator Tina M. Koch 

to the magistrate's May 29, 2019 decision recommending that we deny her request for a 

writ of mandamus directing the commission to reverse the February 22, 2017 order of the 

staff hearing officer that denied her claim for temporary total disability. Applying to the 

facts of this case the holding of State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. of 

Ohio, 72 Ohio St.3d 401 (1995), the staff hearing officer concluded that Ms. Koch had 

"voluntarily abandon[ed] her former position" at respondent Fresh Mark, Inc., and denied 

her claim. Feb. 24, 2017 SHO Order, Stip.R. 90; see Louisiana-Pacific, 72 Ohio St.3d at 

403 (a termination is voluntary 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"). Our "independent review" of the matters to which Ms. Koch 

objects leads us to conclude that "the magistrate has properly determined the factual issues 

and appropriately applied the law." Civ.R. 53(D)(4)(d). Accordingly, we will adopt the 

magistrate's decision, with one clarification, and deny the writ. 

{¶ 3} Ms. Koch, a Fresh Mark payroll clerk, "slipped on [a] wet floor and fell" at 

work on April 19, 2016, injuring her left shoulder. July 27, 2016 First Report of Injury, 

Stip.R. 2. She had shoulder surgery on July 21, 2016 and received temporary total disability 

compensation from that date until she returned to work on September 19, 2016. 

Jan. 9, 2017 Tr. at 4-6, Stip.R. 61-63. During that period, accountants at Fresh Mark 

"discovered a discrepancy" on Ms. Koch's time sheets while conducting a "routine audit." 

Id. at 22, Stip.R. 79. The time sheets recorded 16 hours of work for June 19, June 26, and 

July 10, but the company's electronic system for recording employee badge swipes had no 

record of Ms. Koch being there on those dates. Compare Stip.R. 27 & 29 (ADP Time & 

Attendance records) with Stip.R. 34-36 ("All Events Over Time" report for June 1, 2016 to 

July 31, 2016). Fresh Mark's employee handbook warned employees that "[t]ampering 

with the time keeping system or falsifying time keeping records are grounds for 

termination." Handbook for Salaried Employees, Stip.R. 23. 
No. 18AP-396 3 

{¶ 4} When Ms. Koch returned to work on September 19, 2016, her supervisor, Dan 

Holt, and Fresh Mark's Human Resource Director, Tim Albrecht, confronted her about the 

discrepancies. Jan 9, 2017 Tr. at 7, Stip.R. 64. She "denied falsifying her time sheets but 

admitted that she may have completed them in advance in anticipation of the time she 

thought she was going to be working," and failed to correct them before submitting them 

to Fresh Mark. Feb. 24, 2017 SHO Order, Stip.R. 90. 

{¶ 5} Mr. Holt and Mr. Albrecht testified that they informed Ms. Koch that her 

employment was terminated for falsifying time records. Jan. 9, 2017 Tr. at 10, Stip.R. 67; 

Feb. 16, 2017 Tr. at 14, Stip.R. 106. She remembers the conversation differently, claiming 

that she was given "a permanent layoff." Jan. 9, 2017 Tr. at 7, Stip.R. 64. 

{¶ 6} Fresh Mark then provided Ms. Koch with a proposed "Separation 

Agreement" that would have given her six weeks of severance pay in exchange for a release 

of all claims against Fresh Mark, along with the company's agreement not to "require the 

reimbursement of wages that [Ms. Koch] received and [was] not entitled to." Stip.R. 83. 

Fresh Mark proposed further language reading at paragraph 4 of the draft: "Fresh Mark 

hereby agrees not to oppose, object to, or otherwise contest any application for 

unemployment compensation benefits filed by Employee with the Ohio Department of Job 

and Family Services as long as the reason is permanent lay-off." Although Ms. Koch signed 

the proffered agreement, she added "additional language" and terms before returning it, 

causing Fresh Mark to reject it. Feb. 16, 2017 Tr. at 18-19, Stip.R. 110-11. 

{¶ 7} Ms. Koch later filed a claim for total temporary disability for the period of 

September 19, 2016 to November 28, 2016. Noting the "equivocal nature of the evidence" 

surrounding Ms. Koch's termination, a district hearing officer ("DHO") concluded that no 

voluntary abandonment under Louisiana-Pacific had occurred and awarded her TTD 

compensation. Jan. 12, 2017 DHO Order, Stip.R. 55. 

{¶ 8} Fresh Mark appealed and a staff hearing officer heard additional testimony, 

vacated the order, and denied Ms. Koch's claim. According to the staff hearing officer, Ms. 

Koch's "failure to rectify the known errors in her time records resulted in false information 

being provided to the Employer and the Injured Worker deriving a benefit from the same 

in the form of receiving pay for time that she did not work." Feb. 24, 2017 SHO Order, 

Stip.R. 90. This violated Fresh Mark's written work rule prohibiting the falsification of time 
No. 18AP-396 4 

records, the staff hearing officer concluded, thereby satisfying the requirements of a 

voluntary abandonment under Louisiana-Pacific.

{¶ 9} Ms. Koch has raised several objections to the magistrate's decision, which 

largely tracks the staff hearing officer's application of Louisiana-Pacific to the 

circumstances surrounding the end of Ms. Koch's tenure at Fresh Mark. She first objects 

to the magistrate's findings of fact "only to the extent that it was implicitly determined that 

Relator was fired from her employment for any reason at all, including for violation of a 

written work rule." Objections at 2. But the record contains evidence that the reason Fresh 

Mark terminated Ms. Koch's employment was for violating the written work rule that 

prohibited falsification of timesheets. "Where the record contains some evidence which 

supports the commission's factual findings, such findings will not be disturbed." State ex 

rel. Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202 (1988), syllabus. 

{¶ 10} The magistrate's task was to determine whether there was "some evidence" 

in the record to support the staff hearing officer's determination that Fresh Mark 

terminated Ms. Koch's employment for violating a written work rule. The magistrate 

correctly found that there was such evidence, stating: "The SHO relied on the testimony of 

Mr. Albrecht and Mr. Holt concerning the termination and further found, at the very heart, 

relator's failure to correct her time sheets resulting in her providing false information and 

the benefit of pay she did not earn." App'x at ¶ 35. Ms. Koch's objection, which amounts to 

a plea to ignore that evidence as not "credible" and as "implausible" and therefore deserving 

of rejection, see Objections of Relator at 3 and 4, is overruled, as are her corollary objections 

to the magistrate's conclusions of law. "The commission is exclusively responsible for 

evaluating the weight and credibility of the evidence." State ex rel. Black v. Indus. Comm., 

137 Ohio St.3d 75, 2013-Ohio-4550, ¶ 19, citing State ex rel. Burley v. Coil Packing, Inc., 

31 Ohio St.3d 18, 20-21 (1987). Thus, "a court must not substitute its judgment for that of 

the commission or second-guess the commission's evaluation of the evidence." Id. at ¶ 22, 

citing State ex rel. Guthrie v. Indus. Comm., 133 Ohio St.3d 244, 2012-Ohio-4637, ¶ 11. 

Because a reviewing court lacks the authority to reassess the credibility of the witnesses 

upon whose testimony the commission relied, the magistrate did not err in accepting the 

commission's evaluation of the credibility of the Fresh Mark representatives. 

{¶ 11} Ms. Koch also asserts: "Just as the SHO did, the Magistrate misread the 

[proposed] Separation Agreement" by "concluding that there was 'no reference in this 
No. 18AP-396 5 

document to the Injured Worker being laid off,' " despite paragraph four of the draft. 

Objections at 4, quoting Feb. 24, 2017 SHO Order. That is incorrect, and would not appear 

dispositive in any event. We understand that all parties find the proposed Separation 

Agreement potentially probative of Fresh Mark's intent and appear to agree that the 

commission was justified in looking to this document, despite their differing 

interpretations of it. Compare Objections at 4-6 with Jun. 25, 2019 Memorandum of 

Respondent Fresh Mark, Inc. in Opposition to Relator's Objections to Magistrate's Decision 

at 11 (the SHO "specifically noted this language and found, as a matter of fact, that the 

Separation Agreement specifically states that Relator's employment was being 

terminated") and July 1, 2019 Respondent's, Industrial Commission of Ohio, 

Memorandum Contra to Objections of Relator, Tina Koch at 7-8 (provisions of proposed 

Separation Agreement "support the commission's decision that Koch violated a known 

written work rule sufficient to warrant termination"). But no one, including Ms. Koch, has 

argued that the commission was limited to considering only the proposed agreement and 

barred from considering any other evidence. 

{¶ 12} First, Ms. Koch misreads the magistrate's decision, which specifically 

acknowledges that "the SHO did incorrectly state that there was no reference [in the 

proposed Settlement Agreement] to relator being laid off." App'x at ¶ 38. Second, Ms. Koch 

cites no reason why Fresh Mark would have been required to make its grounds for the firing 

explicit in that writing. Third, the language of the proposed agreement as a whole, 

including language that "Fresh Mark ha[d] decided to terminate Employee's employment" 

and that payroll clerk Koch had received wages "you * * * were not entitled to" arguably 

might weigh in favor of the commission's finding that she was fired; but in any event, and 

if the references to "termination" did not signal for-cause dismissal, see Objections of 

Relator at 5, the reason why Ms. Koch was terminated still could remain a fact question for 

the commission to review on the evidence overall. Finally, and again, Ms. Koch presents 

no argument that the company's suggested language about it not opposing an 

unemployment compensation claim if based on an assertion of "permanent lay-off" wholly 

nullified and prevented the commission from considering testimonial evidence that Ms. 

Koch was fired. 

{¶ 13} Regardless of what the proposed but not adopted Separation Agreement said, 

the staff hearing officer had evidence on which to conclude that Ms. Koch was indeed fired 
No. 18AP-396 6 

for the fireable offense of submitting false time records. The staff hearing officer cited the 

rule in Fresh Mark's employee handbook providing termination for "falsifying time keeping 

records," cited Ms. Koch's admission that she filled time sheets out in advance and failed to 

correct them after submitting them, and cited the testimony of Mr. Albrecht and Mr. Holt 

that she was fired on that basis. Feb. 24, 2017 SHO Order. Ms. Koch concedes that "the 

Employer's representatives insisted that she was really fired for having 'stoled' company 

money * * *." Objections of Relator at 3-4. That concession establishes that there is some 

evidence for the commission's conclusion that Ms. Koch voluntarily abandoned her 

employment. Ms. Koch therefore is incorrect to assert that "[n]one of the evidence even 

suggests that she was actually fired for any specific reason," or to assert that no evidence 

supported the commission's conclusion that she "violated a written work rule which she 

knew or should have known would have resulted in her termination." Objection at 6, 

quoting App'x at ¶ 35. 

{¶ 14} We overrule all objections and adopt the magistrate's decision as our own, 

while clarifying that we read the last full sentence of paragraph 38 of the appended decision 

to mean that the draft agreement's "sole reference that the employer would not oppose an 

application for unemployment compensation provided the relator notes the reason as 

permanent layoff does not change the nature of" the termination (as opposed to "the 

settlement agreement"). We therefore deny Ms. Koch's request that we issue a writ of 

mandamus. 

{¶ 15} We are constrained to observe, however, that Ms. Koch is correct in noting 

that generally "Ohio law prohibits workers who have been terminated for cause from 

collecting unemployment benefits." Objections of Relator at 4, citing R.C. 4141.29(D)(2)(a). 

The attorney general's office has represented the industrial commission in this matter, is 

apprised of the facts of record including the terms of Fresh Mark's settlement proposal, and 

is in a position to make any notifications or undertake further action if appropriate. 

Objections overruled; writ denied. 

KLATT, P.J., and BROWN, J., concur. 

_________________ 

 
No. 18AP-396 7 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Tina M. Koch, : 

 

 Relator, : 

v. : No. 18AP-396 

 

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

 Respondents. : 

 

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

Rendered on May 29, 2019

 

Plevin & Gallucci Co., L.P.A., Franklin County Court of 

Common Pleas L. Gallucci, III, Bradley Elzeer, II, and Fred S. 

Papalardo, Jr.; Paul W. Flowers Co., L.P.A., Paul W. Flowers, 

and Louis E. Grube, for relator. 

Dave Yost, Attorney General, and Natalie J. Tackett, for 

respondent Industrial Commission of Ohio.

Morrow & Meyer, LLC, Mary E. Ulm, for respondent Fresh 

Mark, Inc. 

 

IN MANDAMUS 

{¶ 16} Relator, Tina M. Koch, has filed this original action requesting this court issue 

a writ of mandamus against respondent, Industrial Commission of Ohio ("commission"), 

which denied her request for temporary total disability ("TTD") after finding that her postinjury violation of a written work rule constituted a voluntary abandonment of 

employment, and ordering respondent to grant her that compensation. 

Findings of Fact: 
No. 18AP-396 8 

{¶ 17} 1. Relator worked as a payroll clerk for respondent Fresh Mark, Inc. 

("employer"). According to her testimony at the hearings, she also occasionally worked 

cleaning at three of relator's facilities. 

{¶ 18} 2. Relator was injured on April 19, 2016 when she slipped and fell on a wet 

floor. Relator's claim is allowed for the following conditions: "neck sprain; left shoulder 

sprain; left partial supraspinatus tear; left biceps tear." 

{¶ 19} 3. On July 21, 2016, Mark Shepard, M.D., performed the following surgical 

procedure on relator's right shoulder: 

Right shoulder arthroscopy with extensive debridement of 

torn labrum, torn rotator cuff, torn biceps tendon, 

arthroscopic subacromial decompression, and arthroscopic 

distal clavicle excision, and arthroscopic rotator cuff repair. 

{¶ 20} 4. Dr. Shepard completed a Medco-14 Physician's Report of Work Ability 

certifying that relator was temporarily not released to any work, including the former 

position of employment, from July 21 to July 29, 2016. 

{¶ 21} 5. While relator was off work, the employer's accounting department 

conducted a routine audit. Discrepancies were found in relator's time sheets. In a July 27, 

2016 e-mail from Karen Dunn to Tom Fee, a discrepancy of 16 hours was noted between 

June 19 and July 10, 2016. The discrepancies were noted because relator has an electronic 

system (Lenel) which requires that each employee swipe his/her badge when entering the 

facilities. According to Lenel, there was no record that relator worked at any of the facilities 

on June 19, June 26, or July 10, 2016. Sign-in sheets and cameras were also reviewed and 

there was no record that relator was in any of the buildings on those dates. Further, relator 

did not log into her work computer on those days. 

{¶ 22} 6. The employer did not immediately contact relator because she was off 

work recovering from surgery. 

{¶ 23} 7. The employer provided a copy of its handbook for salaried employees. The 

handbook provides, in relevant part: 

Federal and state regulations require that accurate time 

records be maintained for all non-exempt employees. Upon 

employment, you will be informed of the time keeping system 

in place at your facility. It is your responsibility to follow the 

system in place at your facility. The time keeping system is a 

legal record of time worked. An employee's attendance is 
No. 18AP-396 9 

determined by the system in place. Tampering with the time 

keeping system or falsifying time keeping records are grounds 

for termination. 

{¶ 24} 8. When relator returned to work on September 19, 2016, Tim Albrecht, the 

employer's human resource manager, had a discussion with relator concerning the 

discrepancies. After being presented with the evidence indicating that she had not entered 

any of the employer's facilities on the dates in question, relator admitted that she 

occasionally fills out a time sheet ahead of schedule and marks down the hours which she 

believes she will work. Relator indicated that she must have forgotten to go back and 

correct the time sheets. 

{¶ 25} 9. Relator prepared a separation agreement and release of claims for relator 

to sign. That agreement provides, in pertinent part: 

WHEREAS, Fresh Mark has decided to terminate Employee's 

employment with Fresh Mark effective as of the close of 

business on September 19, 2016; and 

WHEREAS, the Parties have deemed it prudent and advisable 

and wish to resolve all matters and issues between them 

arising from or relating to Employee's employment with Fresh 

Mark and the termination of Employee's employment with 

Fresh Mark. 

NOW, THEREFORE, in consideration of the mutual promises 

and covenants contained herein, Employee and Fresh Mark 

hereby agree as follows: 

[One] Severance Pay. Upon the Effective Date of this 

Agreement, and retroactive to Employee's Date of Separation, 

Fresh Mark will continue Employee's regular base pay, less 

applicable payroll taxes and withholdings, for a period of 6 

weeks (the "Severance Pay Period"). Such payments to 

Employee will be made in accordance with the Company's 

regular payroll practices. 

[Two] Waiver of Overpayment. Fresh Mark will not require 

the reimbursement of wages that you received and were not 

entitled to. 

* * * 

[Four] Unemployment Benefits. Fresh Mark hereby agrees 

not to oppose, object to, or otherwise contest any application 

for unemployment compensation benefits filed by Employee 
No. 18AP-396 10 

with the Ohio Department of Job and Family Services as long

as the reason is permanent lay-off. 

[Five] Neutral Reference. If inquiries are made of Fresh Mark 

by potential employers of Employee, Fresh Mark will provide 

a neutral reference confirming that Employee was employed, 

date of employment, and position held. No further 

information will be provided. 

* * * 

[Fourteen] Re-Employment. Employee acknowledges that, 

because of payments and benefits offered to her by Fresh 

Mark in this Agreement, she has no right to future 

employment with Fresh Mark, and she agrees that she shall 

not apply in the future for employment with Fresh Mark. 

Employee acknowledges that Fresh Mark is not obligated to 

consider any application from her in the future. 

* * * 

[Sixteen] Entire Agreement. Employee and Fresh Mark agree 

that this Agreement contains the entire agreement between 

the Parties hereto and replaces any prior agreements, 

contracts and/or promises, whether written or oral, with 

respect to the subject matters included herein. This 

Agreement may not be changed orally, but only in writing, 

signed by each of the Parties hereto. 

(Emphasis sic and added.) 

{¶ 26} 10. On October 21, 2016, relator filed a motion seeking the payment of TTD 

compensation from September 19 through November 28, 2016, when she returned to work 

with a different employer. 

{¶ 27} 11. The matter was heard before a district hearing officer ("DHO") on January 

9, 2017. The DHO granted the requested period of TTD compensation finding that the 

employer had not met its burden of proving that relator was, in fact, terminated. Relator 

had asserted she had been laid off. 

{¶ 28} 12. The employer filed an appeal and the matter was heard before a staff 

hearing officer ("SHO") on February 16, 2017. The SHO vacated the prior DHO order and 

denied the requested period of TTD compensation finding that relator had been terminated 

for violation of a written work rule. The SHO explained: 
No. 18AP-396 11 

By way of history, the Staff Hearing Officer notes that prior to 

09/19/2016 the Employer of record had been paying the 

Injured Worker temporary total disability compensation as a 

result of surgery that was authorized in this claim. However, 

while the Injured Worker was off on temporary total disability 

compensation it came to the Employer's attention that some 

of the Injured Worker's time records prior to her going off on 

disability did not match the hours that she worked. As the 

Injured Worker was off on temporary total disability 

compensation no action was taken by the Employer. However, 

when the Injured Worker reported for work on 11/19/2016 to 

resume the duties of her former position of employment the 

Employer confronted her about these discrepancies and 

immediately terminated her employment. 

The Staff Hearing Officer finds that the Injured Worker's 

termination of employment on 09/19/2016 was a voluntary 

abandonment under the holding of State ex rel. LouisianaPacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 

thereby precluding the payment of temporary total disability 

compensation. The Court in Louisiana-Pacific found that a 

discharge from employment was voluntary when termination 

resulted from violation of a written work rule or policy that: 

(1) clearly define 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. The Employer's handbook for salaried employees 

clearly indicates that tampering with the time keeping system 

or falsifying time keeping records are grounds for 

termination. The Injured Worker was aware of this policy as 

she was required to use this handbook in performing her 

duties with the Employer. The Staff Hearing Officer notes that 

the Injured Worker denied falsifying her time sheets but 

admitted that she may have completed them in advance in 

anticipation of the time she thought she was going to be 

working and that she may not have corrected the same prior 

to submitted them to the Employer. However, giving the 

Injured Worker the benefit of the doubt, the Staff Hearing 

Officer finds that her failure to rectify the known errors in her 

time records resulted in false information being provided to 

the Employer and the Injured Worker deriving a benefit from 

the same in the form of receiving pay for time that she did not 

work. 

The Staff Hearing Officer notes that while the Injured Worker 

testified that she was told on 09/19/2016 that she was being 

laid off and there was no indication that she was being 
No. 18AP-396 12 

terminated, both Mr. Albrecht and Mr. Holt testified to the 

contrary. Moreover, the Separation Agreement and Release 

prepared by the Employer on 09/19/2016 clearly states that 

the Injured Worker's employment was being terminated. 

There is no reference in this document as to the Injured 

Worker being laid off. While the Injured Worker declined to 

sign the Agreement the language contained therein clearly 

states that the Injured Worker's employment with the 

Employer was being terminated. 

As such, it is clear that the Injured Worker's termination of 

employment on 09/19/2016 was tantamount to her having 

voluntarily abandon her former position of employment for 

reasons unrelated to the allowed conditions in this claim. 

Accordingly, the C-86 Motion filed by the Injured Worker on 

10/21/2016 is denied. 

{¶ 29} 13. Relator's appeal and request for reconsideration were both refused and 

denied. 

{¶ 30} 14. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

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

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

{¶ 32} 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). 

{¶ 33} 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). 
No. 18AP-396 13 

{¶ 34} Relator argued that she was permanently laid off and not terminated. In 

support of her argument, relator pointed to paragraph four of the separation agreement 

which pertained to unemployment benefits. That paragraph provides: 

Unemployment Benefits. Fresh Mark hereby agrees not to 

oppose, object to, or otherwise contest any application for 

unemployment compensation benefits filed by Employee with 

the Ohio Department of Job and Family Services as long as 

the reason is permanent lay-off. 

(Emphasis sic and added.) 

{¶ 35} The commission disagreed with relator's argument finding that relator had, 

in fact, violated a written work rule which she knew or should have known would have 

resulted in her termination. State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio 

St.3d 401 (1995). The SHO relied on the testimony of Mr. Albrecht and Mr. Holt concerning 

the termination and further found, at the very heart, relator's failure to correct her time 

sheets resulted in her providing false information and the benefit of pay she did not earn. 

The requirements of Louisiana-Pacific were met here. The SHO also noted that the 

separation agreement and release clearly indicated that relator was being terminated. 

{¶ 36} Relator points to the fact that the SHO said that there was no reference in the 

agreement to her being laid off as evidence of a clear mistake of fact on the part of the SHO 

and contends the commission abused its discretion when it refused to exercise its 

continuing jurisdiction to correct same. For the reasons that follow, the magistrate 

disagrees. 

{¶ 37} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission and 

the authority of the administrator of workers' compensation over each case is continuing, 

and the commission may make such modification or change with respect to former findings 

or orders with respect thereto, as, in its opinion is justified." In State ex rel. B & C Machine 

Co. v. Indus. Comm., 65 Ohio St.3d 538, 541-42 (1992), the court examined the judiciallycarved circumstances under which continuing jurisdiction may be exercised, and stated as 

follows: 

R.C. 4123.52 contains a broad grant of authority. However, we 

are aware that the commission's continuing jurisdiction is not 

unlimited. See, e.g., State ex rel. Gatlin v. Yellow Freight 

System, Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480 

N.E.2d 487 (commission has inherent power to reconsider its 
No. 18AP-396 14 

order for a reasonable period of time absent statutory or 

administrative restrictions); State ex rel. Cuyahoga Hts. Bd. 

of Edn. v. Johnston (1979), 58 Ohio St.2d 132, 12 O.O.3d 128, 

388 N.E.2d 1383 (just cause for modification of a prior order 

includes new and changed conditions); State ex rel. Weimer 

v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174, 

404 N.E.2d 149 (continuing jurisdiction exists when prior 

order is clearly a mistake of fact); State ex rel. Kilgore v. 

Indus. Comm. (1930), 123 Ohio St. 164, 9 Ohio Law Abs. 62, 

174 N.E. 345 (commission has continuing jurisdiction in cases 

involving fraud); State ex rel. Manns v. Indus. Comm. (1988), 

39 Ohio St.3d 188, 529 N.E.2d 1379 (an error by an inferior 

tribunal is a sufficient reason to invoke continuing 

jurisdiction); and State ex rel. Saunders v. Metal Container 

Corp. (1990), 52 Ohio St.3d 85, 86, 556 N.E.2d 168, 170 

(mistake must be "sufficient to invoke the continuing 

jurisdiction provisions of R.C. 4123.52"). Today, we expand 

the list set forth above and hold that the Industrial 

Commission has the authority pursuant to R.C. 4123.52 to 

modify a prior order that is clearly a mistake of law. 

Id. at 541. 

{¶ 38} Although the SHO did incorrectly state there was no reference to relator 

being laid off, the magistrate agrees with the SHO's finding that the separation agreement 

clearly provides that relator's employment was being terminated. At the outset, the 

agreement notes the employer has "decided to terminate [relator's] employment," the 

parties deem it "prudent and advisable * * * to resolve all matters and issues * * * relating 

to * * * the termination of [relator's] employment," the employer agreed to "provide a 

neutral reference" confirming relator's employment without providing any further 

information, relator acknowledged that she had "no right to future employment." The 

magistrate finds the sole reference that the employer would not oppose an application for 

unemployment compensation provided the relator notes the reason as permanent layoff 

does not change the nature of the separation agreement. 

{¶ 39} The magistrate finds the commission did not abuse its discretion when it 

determined the employer had presented sufficient evidence to satisfy the requirements of 

Louisiana-Pacific and denying relator's request for TTD compensation. As such, it is this 

magistrate's decision that this court should deny relator's request for a writ of mandamus. 
No. 18AP-396 15 

 /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).