[Cite as State ex rel.l Williams v. Indus. Comm., 2018-Ohio-1161.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Ernest Williams, : 

 

 Relator, : 

 No. 17AP-157 

v. : 

 (REGULAR CALENDAR) 

Industrial Commission of Ohio et al., : 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on March 29, 2018 

 

On brief: Agee, Clymer, Mitchell, & Portman, and 

Gregory R. Mitchell, for relator. Argued: Gregory R. 

Mitchell. 

On brief: Michael DeWine, Attorney General, and Kevin J. 

Reis, for respondent Industrial Commission of Ohio. 

Argued: Kevin J. Reis. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BROWN, P.J. 

{¶ 1} Relator, Ernest Williams, has filed an original action requesting this court to 

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

("commission"), to vacate the April 15, 2016 order of its staff hearing officer ("SHO") 

denying relator's request for permanent total disability ("PTD") compensation on grounds 

that he voluntarily abandoned the workforce, and to enter an order finding that he reestablished eligibility for such compensation when he worked for two weeks in 2015 

driving a truck. 
No. 17AP-157 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 this court deny 

relator's request for a writ of mandamus. 

{¶ 3} Relator has filed two objections to the magistrate's decision. Relator first 

asserts the magistrate erred in concluding the commission did not abuse its discretion in 

utilizing an improper standard to find voluntary abandonment. Specifically, relator 

challenges language in the SHO's order stating his testimony failed to represent a "good 

faith" effort to return to work; relator maintains no statute or administrative rule provides 

for such analysis. Under his second objection, relator contends the SHO erred in failing to 

consider medical evidence indicating he could not work due to his industrial injury. 

{¶ 4} Under Ohio law, "[a] claimant's eligibility for permanent-total-disability 

compensation may be affected if the claimant has voluntarily retired or abandoned the job 

market for reasons not related to the industrial injury." State ex rel. Black v. Indus. 

Comm., 137 Ohio St.3d 75, 2013-Ohio-4550, ¶ 14, citing State ex rel. McAtee v. Indus. 

Comm., 76 Ohio St.3d 648 (1996). The voluntary nature of a claimant's abandonment of 

the workforce "is a factual question within the commission's final jurisdiction." State ex 

rel. Krogman v. B&B Enters. Napco Flooring, LLC, 10th Dist. No. 14AP-477, 2015-Ohio1512, ¶ 8, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 31 (1987). 

{¶ 5} The stipulated record in this action indicates that relator, who was injured 

on May 5, 1978, has filed applications for PTD compensation in 1991, 1994, 1997, 2000, 

and 2015. The commission denied all five applications, including the 2015 application 

which is the subject of this original action. Relator also moved for temporary total 

disability ("TTD") compensation in 2013 and, following a hearing, a district hearing 

officer ("DHO") issued an order denying TTD compensation. Relator filed an 

administrative appeal, and an SHO issued an order affirming the DHO; in that order, the 

SHO noted the lack of documentation of any attempt by relator to find work since at least 

the commission's order of 2001 in which it denied relator's request for PTD compensation 

and made a finding of abandonment of the workforce. 

{¶ 6} In denying relator's most recent application for PTD compensation, the 

SHO determined that relator had "long ago abandoned the workforce," last working "in 
No. 17AP-157 3 

August of 1986." The SHO noted several earlier attempts by a rehabilitation provider to 

coordinate evaluations, but relator failed to present himself for appointments and failed 

to indicate an interest "to proceed with rehabilitation evaluations or services." The SHO 

further found "no persuasive evidence on record that the Injured Worker since 1986 has 

ever made any attempt to return to work," and that his "testimony regarding a return to 

work in 2015 is not found to represent a legitimate attempt to return to work." 

{¶ 7} In addressing the issue of whether relator re-established eligibility for PTD 

compensation by working two weeks in 2015, the SHO noted testimony by relator "that in 

2015 he called a friend and that his friend gave him a job driving a gravel truck." Relator 

indicated, however, "he was unable to do this job after two weeks." Noting that in the 

"last denial" of PTD compensation, relator "was found to be limited to sedentary work," 

the SHO observed that "[d]riving a gravel truck would not be classified as sedentary 

work." The SHO further stated that relator's "attempt to return to work after almost three 

decades of inactivity is not found to represent a genuine attempt to return to work." 

{¶ 8} Upon review, the record does not support relator's contention the SHO 

utilized an improper standard in analyzing the issue of voluntary abandonment. The 

Supreme Court of Ohio has noted "[t]he question of abandonment is 'primarily [one] of 

intent [that] may be inferred from words spoken, acts done, and other objective facts.' " 

(Emphasis added.) State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 

Ohio St.3d 381, 383 (1989), quoting State v. Freeman, 64 Ohio St.2d 291, 297 (1980). 

Similarly, it has been "held that ' "[a]n abandonment is proved by evidence of intention to 

abandon as well as of acts by which the intention is put into effect." ' " (Emphasis added.) 

Id., quoting West Park Shopping Center v. Masheter, 6 Ohio St.2d 291, 297 (1966), 

quoting Dalton v. Johnson, 320 S.W.2d 569, 574 (1959). Further, "[t]he presence of such 

intent, being a factual question, is a determination for the commission." (Emphasis 

added.) Id. The Supreme Court has also held that "absent extenuating circumstances, it is 

not unreasonable to expect a claimant to participate in efforts to return to work to the best 

of his or her abilities." State ex rel. Gulley v. Indus. Comm., ___ Ohio St.3d ___, 2017-

Ohio-9131, ¶ 15. 

{¶ 9} In the instant action, notwithstanding the SHO's reference to "good faith," 

the order indicates the commission properly applied Ohio law, including a consideration 
No. 17AP-157 4 

of intent, in determining the issue of voluntary abandonment. The evidence before the 

commission and cited by the SHO indicates relator was capable of engaging in sustained 

remunerative employment but that he never attempted rehabilitation following his injury 

in 1978, nor did he seek any type of work over an approximately 30-year span. As noted, 

relator argued he re-entered the workforce in 2015. As to the issue of whether relator reestablished eligibility for PTD compensation by working as a truck driver, the evidence 

before the SHO was that relator had contacted a friend who "gave him a job driving a 

gravel truck," a job which relator testified he was "unable to do * * * after two weeks." The 

SHO, in addressing the facts and circumstances presented, observed that the job relator 

obtained from his friend was not classified as one within his sedentary restrictions.1 

{¶ 10} In addressing the issue of abandonment, the commission has discretion to 

consider all the evidence before it in determining a claimant's intent, "including the 

weight and credibility of that evidence." State ex rel. Rockey v. Sauder Woodworking 

Co., 10th Dist. No. 09AP-888, 2011-Ohio-1590, ¶ 17. Here, in finding an intent to 

voluntarily abandon the workforce, the SHO considered the conduct and choices by 

relator, including his ability to engage in sustained remunerative employment, his lack of 

interest in pursuing rehabilitation opportunities, the absence of any evidence that he had 

worked or made an attempt to return to work for approximately 30 years, and the fact 

that his only attempt at employment since 1978 involved a position not within his work 

restrictions. It was within the province of the commission to assess the credibility of the 

evidence, including the testimony of relator, in making that determination. Upon review, 

there was some evidence to support the commission's finding that relator voluntarily 

abandoned the workforce. 

{¶ 11} Relator also contends the commission failed to consider medical evidence 

indicating he was unable to work due to his injury. The magistrate, however, considered 

relator's arguments regarding the report of Dr. Sai Gutti, noting the commission was not 

required to accept the July 2015 report as some evidence supporting PTD compensation. 

Further, the threshold issue before the commission was whether relator, having 

 

1 In the commission's 2001 order denying relator's request for PTD compensation, the SHO cited the report 

of a physician indicating "the claimant has the residual capacity to perform work at the sedentary level." The 

order of the SHO in the instant case notes that in the last denial of PTD compensation, relator "was found to 

be limited to sedentary work." 
No. 17AP-157 5 

voluntarily abandoned the workforce years before, had re-entered the workforce by 

working two weeks in 2015. As set forth above, there was some evidence to support the 

commission's determination on that issue, including findings of the SHO that relator was, 

according to medical evidence, limited to sedentary work but that he sought employment 

not within those restrictions. 

{¶ 12} Upon consideration of the objections, and having independently reviewed 

the magistrate's decision, we overrule relator's objections to the magistrate's decision and 

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

of law contained therein. In accordance with the recommendation of the magistrate, the 

requested writ of mandamus is denied. 

Objections overruled; writ denied. 

KLATT and BRUNNER, JJ., concur. 

________________ 
No. 17AP-157 6 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Ernest Williams, : 

 

 Relator, : 

 

v. : No. 17AP-157 

 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Werner Maintenance & Construction Co., : 

 

 Respondents. : 

 

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

Rendered on October 6, 2017

 

Agee, Clymer, Mitchell, & Portman, and Gregory R. Mitchell, 

for relator. 

Michael DeWine, Attorney General, and Kevin J. Reis, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 13} In this original action, relator, Ernest Williams, requests a writ of 

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

the April 15, 2016 order of its staff hearing officer ("SHO") that denies his November 16, 

2015 application for permanent total disability ("PTD") compensation on grounds that he 

voluntarily abandoned the workforce and is, thus, ineligible for the compensation, and to 

enter an order finding that relator re-established eligibility for the compensation when he 

worked for two weeks in 2015 driving a truck. Relator requests that the writ order the 
No. 17AP-157 7 

commission to adjudicate the application on the merits in the absence of a finding that 

relator voluntarily abandoned the workforce. 

Findings of Fact: 

{¶ 14} 1. On May 5, 1978, relator injured his lower back and right hand while 

employed as a construction laborer for respondent Werner Maintenance & Construction 

Co., a state-fund employer. The injury occurred when he fell down some steps. He was 25 

years of age on the date of injury. (Date of birth is January 4, 1953.) 

{¶ 15} 2. The industrial claim (No. 78-19479) is allowed for "contusion 

lumbosacral area; contusion right hand; degenerative disc L4-5; disc bulge L4-5." 

{¶ 16} 3. Relator has filed five applications for PTD compensation. His first 

application was filed on November 18, 1991. 

{¶ 17} 4. Earlier, by letter dated September 11, 1987, relator was informed by the 

commission's rehabilitation division: 

Please accept this letter as a closure to your Rehabilitation 

File with this agency. This action is based on our inability to 

coordinate evaluations for you with the J. Leonard Camera 

Center of Columbus, Ohio. It is my understanding that two 

previous appointments have been made for you with the J. 

Leonard Camera staff in order to properly assess your 

physical, psychological, and vocational status. Both times 

you have not shown nor did you call to cancel. 

{¶ 18} 5. Following a March 15, 1994 hearing, two SHO's issued an order denying 

the first PTD application. The order explains: 

This order is based particularly upon the reports of 

Commission Physical Medicine examiner William Nucklos, 

M.D. 

* * * 

Commission Physical Medicine examiner William Nucklos 

M.D. reported that this claimant is capable of all but heavy 

labor and can work full time within 25 pound lifting 

restrictions. 

This claimant is 41 years of age, his date of birth being 

1/4/53; he reports having completed the 11th grade but being 

able to read, write, and figure. He also reports experience as 
No. 17AP-157 8 

a foreman in the construction industry. His history of three 

unrelated hernia procedures is noted for the record. 

Commission Physical Medicine Specialist William Nucklos, 

M.D. reports that this claimant is capable of any work short 

of heavy labor and that he can perform unlimited lifting 

within 25 pound restrictions. It is held that his youth at the 

age of 41, his completed 11th grade education and basic 

literacy, and the experience he accumulated as a working 

foreman all qualify him for re-employment within those 

restrictions. 

The undersigned are particularly stressing this claimant's 

youth both now and at the time of his injury in reaching this 

decision. 

{¶ 19} 6. On May 12, 1994, relator filed his second PTD application. Following a 

May 21, 1996 hearing, an SHO issued an order denying the PTD application. The SHO 

determined residual functional capacity based on a report from William Nucklos, M.D. 

The SHO determined: 

[T]hat the claimant could perform employment consistent 

with sedentary and light levels of physical demands. The 

Hearing Officer therefore notes that the claimant's residual 

functional physical capacity has been at a consistent level 

and he therefore has been able, from a physical perspective 

level [to] obtain employment. 

{¶ 20} The SHO also considered the non-medical factors in determining that 

relator is not permanently and totally disabled. 

{¶ 21} 7. On October 2, 1997, relator filed his third PTD application. Following a 

December 15, 1998 hearing, an SHO issued an order denying the application. The SHO 

determined that relator has the residual functional capacity "to perform at least sedentary 

to light work." The SHO also considered the non-medical factors and determined "the 

claimant is not permanently precluded from returning to any type of sustained 

remunerative employment." 

{¶ 22} 8. On June 22, 2000, relator filed his fourth PTD application. Following a 

January 9, 2001 hearing, an SHO issued an order denying the application. The SHO 

determined that relator "has the residual capacity to perform work at the sedentary level." 

The SHO also considered the non-medical factors. The SHO also determined that relator 
No. 17AP-157 9 

failed to participate in a retraining program notwithstanding an ability and opportunity to 

do so. The SHO concluded: 

Therefore, claimant's disability factors when viewed as of 

1985, or even presently, would not preclude the claimant 

from performing work at the sedentary level based on his 

physical capacities and vocational aptitude if he was so 

motivated to pursue such employment. 

{¶ 23} 9. On March 22, 2013, relator moved for temporary total disability ("TTD") 

compensation beginning October 28, 2012. 

{¶ 24} 10. Following a June 18, 2013 hearing, a district hearing officer ("DHO") 

issued an order denying TTD compensation. Relator administratively appealed the order. 

{¶ 25} 11. Following a July 30, 2013 hearing, an SHO issued an order that affirms 

the DHO's order and denies the request for TTD compensation. The SHO's order 

explains: 

In [State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 

2008-Ohio-5245] the Ohio Supreme Court held that the 

purpose of temporary total compensation is to replace wages 

lost due to the allowed injury and there is no wages lost due 

to the injury if the Injured Worker abandons the work force. 

The court held the determination of whether the Injured 

Worker has abandoned the work force is one of intent that 

may be inferred from words, acts, and other objective 

evidence. 

In this case, the Injured Worker applied for permanent total 

disability on four occasions and was denied on 03/15/1994, 

05/21/1996, 12/15/1998, and 01/09/2001 after being found 

capable of some level of sustained gainful employment. 

There is no documentation on file of any attempt to find 

work within the physical capacity found by the 2001 order 

denying permanent total disability. The lack of 

documentation of any attempt to find work since at least 

2001 is found to show an abandonment of the work force 

under Pierron and based on this temporary total 

compensation is denied. 

{¶ 26} 12. On July 7, 2015, pain specialist Sai P. Gutti, M.D. wrote: 

Mr. Ernest Williams has suffered work-related injury to his 

back and subsequently having increased pain in the lower 

back with shooting pain down the legs. Patient has 
No. 17AP-157 10 

attempted to go back to work and he could not [do] it. He 

need[s] to continue pain management and interventional 

treatment from time-to-time as needed. MRI of the lumbar 

spine showed compression fracture of [illegible] and 

circumferential bulge at L1-L2 level and right paracentral 

posterior disc bulging at L3-L4 level and left paracentral disc 

bulging at L4-L5 level and mild degree of central and 

posterior disc herniation with annular tear at L5-S1 level. 

Electrodiagnostic studies revealed left L5 radiculopathy. 

Patient is having continuous pain with objective evidence of 

muscle spasm and decreased range of motion and 

dermatomal sensory loss. Because of the ongoing pain, I do 

not believe he will be able to participate in gainful 

employment at this time and I believe he is permanently 

total disabled. 

{¶ 27} 13. On November 4, 2015, Dr. Gutti completed a pre-printed form 

captioned "Medical Questionnaire." The form was apparently drafted by relator's counsel. 

The form presents three queries as follows: 

[One] Please state your last evaluation date of Ernest 

Williams. 

[Two] In your opinion "within reasonable medical 

probability" do the recognized conditions of Degenerative 

Disc at L4-5 and Disc Bulge at L4-5 render Mr. Williams 

permanently and totally disabled from sustained 

remunerative employment? 

[Three] If yes, do you believe that Mr. Williams has been 

permanently and totally disabled since his failed work 

attempt ended on 5/9/15? 

 In response to the first query, Dr. Gutti wrote "10-13-15." 

 In response to the second query, Dr. Gutti marked the "yes" box. 

 In response to the third query, Dr. Gutti marked the "yes" box. 

 

{¶ 28} 14. On November 6, 2015, relator filed his fifth and most recent PTD 

application. In support, relator submitted the July 7, 2015 report of Dr. Gutti and the 

November 4, 2015 "Medical Questionnaire" completed by Dr. Gutti. 

{¶ 29} 15. With his PTD application, relator also submitted payroll information 

from Sartin Contracting, Inc. regarding employee Ernest Williams. Sartin Contracting 

indicates relator was employed 40 hours per week for a two-week period ending on May 
No. 17AP-157 11 

9, 2015. Relator was paid at the hourly rate of $15. His gross pay was $600 for each week 

worked. Sartin Contracting also indicated that relator's employment terminated because 

the employee "could not perform work." 

{¶ 30} 16. Following an April 15, 2016 hearing, an SHO issued an order denying 

the PTD application. The SHO's order explains: 

The Injured Worker long ago abandoned the workforce. 

Voluntary abandonment of workforce precludes 

compensation for permanent total disability. State ex rel. 

Kelsey Hayes Co. v. Grashel, 138 Ohio St.3d 297, 2013-Ohio4959 * * *. 

The Injured Worker last worked in August of 1986. The 

Injured Worker did testify to working two weeks in 2015, 

but, for reasons that will be explained later in this decision, 

this brief return to work is not found to represent a good 

faith effort to return to work. 

The Injured Worker testified to being on social security 

disability since 1986. 

At hearing on 03/15/1994, the Injured Worker was denied 

permanent total disability by the Industrial Commission for 

the first time. The order from this hearing notes that the 

Injured Worker is only 41 years of age. The order states the 

Injured Worker is capable of any work short of heavy labor 

and the Injured Worker can perform unlimited lifting within 

a 25 pound weight restriction. 

At hearing on 05/21/1996, the Injured Worker was again 

denied permanent total disability. 

At hearing on 12/15/1998, the Injured Worker was denied 

permanent total disability. This order states the Injured 

Worker has not attempted rehabilitation since 1987. 

A complete review of the record was done in this case. There 

is a closure report dated 09/11/1987 from Patricia A. 

Williams, Rehabilitation consultant. This report states in 

part: 

"Several attempts have been made by the private 

rehabilitation provider to coordinate evaluations, 

psychological, physical and vocational, with the J. Leonard 
No. 17AP-157 12 

Camera Center. Mr. Williams has not presented himself for 

either appointment, nor has he indicated an interest to 

proceed with rehabilitation evaluations or services." 

The Industrial Commission once again after a hearing on 

01/09/2001 denied the Injured Worker's permanent total 

disability application. 

At hearing on 07/30/2013, a Staff Hearing Officer denied the 

Injured Worker's request for temporary total disability 

compensation. This order found that the Injured Worker had 

voluntarily abandoned the work force. This order found that 

since the denial of permanent total disability in 2001 that 

there is no documentation or any evidence that the Injured 

Worker has made any attempt to find work within his 

physical restrictions as assessed in the 2001 order. 

The order from the hearing of 01/09/2001 states that the 

Injured Worker last worked in 1982, when he was only 29 

years of age. The Injured Worker at hearing testified that he 

last worked in 1986. Assuming the later date of 1986, the 

Injured Worker would have only been 34 years of age when 

he last worked. 

There is no persuasive evidence on record that the Injured 

Worker since 1986 has ever made any attempt to return to 

work. The Injured Worker's testimony regarding a return to 

work in 2015 is not found to represent a legitimate attempt 

to return to work. 

The Injured Worker testified at hearing that since the first 

denial of permanent total disability at hearing on 

03/15/1994, excluding the two week job in 2015, that he has 

never tried to return to work. The Injured Worker was only 

41 years of age in 1994. 

The award of permanent total disability is an award of last 

resort. Where an Injured Worker is deemed capable of 

working, he is required to make a good faith effort to return 

to work. The Injured Worker has never done so in this case. 

The Injured Worker at hearing did testify to working two 

weeks in 2015. The Injured Worker testified that in 2015 he 

called a friend and that his friend gave him a job driving a 

gravel truck. The Injured Worker testified that he was unable 

to do this job after two weeks. 
No. 17AP-157 13 

The Injured Worker's testimony as regards to a return to 

work in 2015 is not found to represent a good faith effort to 

return to work. The Injured Worker in the last denial of 

permanent total disability was found to be limited to 

sedentary work. Driving a gravel truck would not be 

classified as sedentary work. 

Further an attempt to return to work after almost three 

decades of inactivity is not found to represent a genuine 

attempt to return to work. The Injured Worker's brief work 

in 2015 in light of the history of this claim represents a 

pretense and not a good faith effort to return to work. 

The Injured Worker was in his thirties when he last worked. 

He failed to attempt to work until he was over sixty years of 

age. It is within general knowledge that inactivity atrophies 

the mind and the body. It is impossible to evaluate where the 

Injured Worker would presently be if he had vigorously 

purs[u]ed rehabilitation and a return to work. The facts are 

that the Injured Worker never tried to return to work. The 

Injured Worker is now at the age of traditional retirement. 

The Injured Worker made a choice not to use his time over 

the last decades to return to work. An award of permanent 

total disability is not made simply because the Injured 

Worker has grown old over the passage of time. 

The Injured Worker has previously been found by 

Commission order to have voluntarily abandoned the work 

force and the evidence supports that conclusion. 

{¶ 31} 17. On February 28, 2017, relator, Ernest Williams, filed this mandamus 

action. 

Conclusions of Law: 

{¶ 32} The issue is whether the commission, through its SHO's order of April 15, 

2016, abused its discretion in determining that relator did not re-establish eligibility for 

PTD compensation by working for Sartin Contracting during a two-week period ending in 

May 2015. 

{¶ 33} Finding no abuse of discretion, it is the magistrate's decision that this court 

deny relator's request for a writ of mandamus, as more fully explained below. 
No. 17AP-157 14 

Basic Law-PTD-Workforce Abandonment

{¶ 34} Ohio Adm.Code 4121-3-34 provides the commission's rules for the 

adjudication of PTD applications. 

{¶ 35} Thereunder, Ohio Adm.Code 4121-3-34(D) provides guidelines for the 

adjudication of PTD applications. 

 Ohio Adm.Code 4121-3-34(D)(1)(d) currently provides: 

If, after hearing, the adjudicator finds that the injured 

worker voluntarily removed himself or herself from the work 

force, the injured worker shall be found not to be 

permanently and totally disabled. If evidence of voluntary 

removal or retirement is brought into issue, the adjudicator 

shall consider evidence that is submitted of the injured 

worker's medical condition at or near the time of 

removal/retirement. 

{¶ 36} Paragraphs two and three of the syllabus of State ex rel. Baker Material 

Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994) state: 

[Two] An employee who retires prior to becoming 

permanently and totally disabled is precluded from eligibility 

for permanent total disability compensation only if the 

retirement is voluntary and constitutes an abandonment of 

the entire job market. * * * 

[Three] An employee who retires subsequent to becoming 

permanently and totally disabled is not precluded from 

eligibility for permanent total disability compensation 

regardless of the nature or extent of the retirement. 

Basic Law-TTD-Voluntary Abandonment of the 

Former Position of Employment 

 

{¶ 37} The syllabus of State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio 

St.3d 25, 2002-Ohio-5305 states: 

A claimant who voluntarily abandoned his or her former 

position of employment or who was fired under 

circumstances that amount to a voluntary abandonment of 

the former position will be eligible to receive temporary total 

disability compensation pursuant to R.C. 4123.56 if he or she 

reenters the work force and, due to the original industrial 

injury, becomes temporarily and totally disabled while 

working at his or her new job. 
No. 17AP-157 15 

{¶ 38} In State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio2587, the Supreme Court of Ohio had occasion to further explain the McCoy holding: 

The present claimant seemingly misunderstands McCoy. He 

appears to believe that so long as he establishes that he 

obtained another job -- if even for a day -- at some point after 

his departure from Tech II, TTC eligibility is forever after 

reestablished. Unfortunately, this belief overlooks the tenet 

that is key to McCoy and all other TTC cases before and 

after: that the industrial injury must remove the claimant 

from his or her job. This requirement obviously cannot be 

satisfied if claimant had no job at the time of the alleged 

disability. 

In the case at bar, there is no evidence that claimant was 

employed in February 2003 when the requested period of 

TTC was alleged to have begun. To the contrary, it appears 

that claimant was almost entirely unemployed in the two 

years after his discharge from Tech II, earning only 

approximately $ 800 during that period. 

(Emphasis sic.) Id. at ¶ 9-10. 

{¶ 39} In State ex rel. Hassan v. Marsh Bldg. Prods., 100 Ohio St.3d 300, 2003-

Ohio-6022, the claimant, Abdikarim Hassan, voluntarily abandoned his former position 

of employment ten days after his industrial injury. Approximately seven weeks later, a 

temporary employment agency placed Hassan with Airborne Express. For the next three 

weeks, he worked eight, nineteen and one-half, and 24 hours respectively. He allegedly 

could no longer continue after the third week due to his allowed conditions. 

{¶ 40} After the commission denied Hassan's request for TTD compensation, he 

filed a mandamus action in this court. This court issued a limited writ. Upon an appeal as 

of right, the Supreme Court of Ohio affirmed this court's judgment. The Hassan court 

explained: 

The final objection to TTC payment involves the extent of 

claimant's subsequent employment with Airborne Express. 

In this case, we are persuaded by claimant's assertion that 

because any employment--no matter how insubstantial--bars 

TTC, see State ex rel. Blabac v. Indus. Comm. (1999), 87 

Ohio St.3d 113, 1999 Ohio 249, 717 N.E.2d 336, then any 

employment should be sufficient to invoke McCoy. 

Id. at ¶ 8. 
No. 17AP-157 16 

Analysis 

{¶ 41} Here, citing McCoy and Hassan, relator argues that he re-established 

eligibility for PTD compensation by working as a truck driver for Sartin Contracting for a 

two-week period ending in May 2015. He suggests that the July 7, 2015 report of 

Dr. Gutti proves that he became disabled by the allowed conditions while employed as a 

truck driver and, thus, had to quit his job because of his industrial injury. Again on July 7, 

2015, Dr. Gutti wrote: 

Because of the ongoing pain, I do not believe he will be able 

to participate in gainful employment at this time and I 

believe he is permanently total disabled. 

 

{¶ 42} Assuming for the sake of argument that McCoy and Hassan, both TTD 

cases, provide guidance as to how a PTD applicant can re-establish his eligibility after a 

voluntary abandonment of the workforce, neither case removes the commission's 

authority in weighing the credibility of the evidence before it. That is, the commission 

was not required to accept the July 7, 2015 report of Dr. Gutti as some evidence 

supporting the reinstatement of PTD eligibility. The commission alone is responsible for 

the evaluation of the weight and credibility of the evidence before it. State ex rel. Burley 

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

{¶ 43} Under McCoy, TTD eligibility is re-established if the claimant re-enters the 

workforce and, due to the original industrial injury, becomes disabled while working at 

his or her new job. Thus, under McCoy, the claimant has the burden to show that he 

became disabled while working at his new job. Meeting that burden here requires 

submission of credible medical evidence proving that the alleged disability actually arose 

during the new job rather than before the new job. That is, relator must show by medical 

evidence that it was his industrial injury that compelled him to quit his new job. 

{¶ 44} As earlier noted, the SHO's order of April 15, 2016 finds: 

The Injured Worker's testimony as regards to a return to 

work in 2015 is not found to represent a good faith effort to 

return to work. The Injured Worker in the last denial of 

permanent total disability was found to be limited to 

sedentary work. Driving a gravel truck would not be 

classified as sedentary work. 
No. 17AP-157 17 

Further an attempt to return to work after almost three 

decades of inactivity is not found to represent a genuine 

attempt to return to work. The Injured Worker's brief work 

in 2015 in light of the history of this claim represents a 

pretense and not a good faith effort to return to work. 

{¶ 45} Relator argues that the commission abused its discretion in finding that his 

return to work at Sartin Contracting was not made in good faith. The magistrate 

disagrees. 

{¶ 46} It was appropriate for the commission to view the two-week return to work 

in 2015 in light of the history of this industrial claim which shows "almost three decades 

of inactivity." That neither R.C. 4123.58 nor any administrative rule specifically provides 

for a "good faith" analysis by the commission does not render the commission finding an 

abuse of discretion. 

{¶ 47} Accordingly, for all the above reasons, it is the magistrate's decision that this 

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

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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).