[Cite as State ex rel. Hineman v. Indus. Comm., 2024-Ohio-1136.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Brian Hineman, : 

Relator, :

v. : No. 22AP-149

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

 

Respondents. :

D E C I S I O N

Rendered on March 26, 2024 

On brief: Nager, Romaine & Schneiberg Co., LPA, Jerald A. 

Schneiberg, and C. Bradley Howenstein, for relator.

On brief: Dave Yost, Attorney General, and Denise A. Corea, 

for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

LELAND, J.

{¶ 1} Relator, Brian Hineman, has filed an original action requesting this court to 

issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

(“commission”) to vacate its November 28, 2020 order denying his request for temporary 

total disability (“TTD”) compensation. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, 

this matter was referred to a magistrate who issued a decision, including findings of fact 

and conclusions of law, which is appended hereto. In that decision, the magistrate 

recommended this court deny relator’s request for a writ of mandamus.
No. 22AP-149 2

{¶ 3} Relator has filed objections to the magistrate’s decision. While not 

delineating specific objections, relator argues in general that his objections “are based on 

the Magistrate’s incorrect interpretation of the relevant case law that provides * * * a 

claimant [is] entitled to temporary total disability compensation if he/she is involuntarily 

laid off while working on restrictions.” (Relator’s Objs. at 5.) 

{¶ 4} In order to be entitled to a writ of mandamus, a relator must establish “a clear 

legal right to the requested relief, that the commission has a clear legal duty to provide it, 

and that there is no adequate remedy in the ordinary course of the law.” State ex rel. 

Zarbana Industries,Inc. v. Indus. Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, ¶ 10, citing 

State ex rel. Manor Care, Inc. v. Ohio Bur. of Workers’ Comp., 163 Ohio St.3d 87, 2020-

Ohio-5373, ¶ 14. Under Ohio law, “ ‘[w]hen an order [of the commission] is adequately 

explained and based on some evidence, there is no abuse of discretion and a reviewing court 

must not disturb the order.’ ” State ex rel. Cogan v. Indus. Comm., __ Ohio St.3d __, 2023-

Ohio-3567, ¶ 13, quoting State ex rel. Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 148 

Ohio St.3d 34, 2016-Ohio-5011,¶ 18.

{¶ 5} As outlined in the magistrate’s findings of fact, relator sustained an injury on 

November 26, 2018 arising out of his employment with respondent Paramount 

Manufacturing Co., Inc. (“Paramount”). A claim was allowed for “strain unspecified muscle 

fascia tendon left shoulder; slap tear left glenoid labrum; and adjustment disorder with 

mixed anxiety and depressed mood.” (Appended Mag. Decision at ¶ 18.) In March 2020, 

relator was released to return to light-duty work, and Paramount offered him light-duty 

work within his restrictions. Relator testified before the commission that “he felt 

uncomfortable accepting the job because it was an office job he was not used to performing, 

and he felt he would be subject to scrutiny.” (Appended Mag. Decision at ¶ 20.) 

{¶ 6} On March 12, 2020, relator began working for a different employer Genoa 

International Chemical Company (“Genoa”). On March 23, 2020, David Kotarsky, Ph.D., 

issued a “MEDCO-14,” in which Dr. Kotarsky “instituted work restrictions based upon the 

allowed psychological condition of adjustment disorder with mixed anxiety and depressed 

mood.” (Appended Mag. Decision at ¶ 22.) Relator worked for Genoa until he was “laid off 

on May 11, 2020, due to the COVID-19 pandemic.” (Appended Mag. Decision at ¶ 23.) On 

June 24, 2020, relator filed a C-86 motion requesting TTD compensation “from May 12, 
No. 22AP-149 3

[2020] through July 9, 2020, and continuing, based upon Dr. Kotarsky’s MEDCO-14.” 

(Appended Mag. Decision at ¶ 24.) 

{¶ 7} The matter came for hearing before a district hearing officer (“DHO”) who 

issued an order denying TTD compensation. Relator appealed that decision, and the matter 

was heard before a staff hearing officer (“SHO”) who issued an order affirming the order of 

the DHO. The SHO found “insufficient documentation” to establish, “by a preponderance 

of the evidence, that the allowed conditions in this claim directly caused [relator’s] loss of 

earnings * * * as required by * * * R.C. 4123.56(F).” (Jt. Stip. of Evid., Ex. C, SHO Order at 

1.) The SHO concluded that relator’s “inability to work beginning on [May 12, 2020] is not 

related to the allowed injury [in the] claim,” and that his “loss of earnings, after 05/11/2020, 

is related to economic factors flowing from the economic downturn” caused by “the COVID19 pandemic” and his “decision to leave his employment with this Employer of Record as 

of 03/09/2020.” (Jt. Stip. of Evid., Ex. C, SHO Order at 2.) 

{¶ 8} As indicated, the magistrate recommended denial of the requested writ of 

mandamus. More specifically, the magistrate found the commission properly construed 

and applied amended R.C. 4123.56(F) to relator’s claim.

{¶ 9} Effective September 15, 2020, the General Assembly amended R.C. 4123.56 

to add division (F), which states as follows:

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.

{¶ 10} In addressing the amendment, this court recently noted “the Ohio legislature 

enacted 2020 Ohio Am.Sub.H.B. No. 81 to, in part * * * supersede judicial decisions 

applying the voluntary abandonment doctrine” by the “addition of R.C. 4123.56(F)” as it 

applies to TTD compensation. State ex rel. Autozone Stores, Inc. v. Indus. Comm., 10th 

Dist. No. 21AP-294, 2023-Ohio-633, ¶ 14.
No. 22AP-149 4

{¶ 11} As indicated, relator contends the magistrate incorrectly interpreted relevant 

case law which provides a claimant is entitled to TTD compensation if he or she is 

involuntarily laid off while working with restrictions. In support, relator relies on several

cases which, we note, were not cited by relator in his merit brief before the magistrate, nor 

did the magistrate’s decision “interpret” any of those cases. 

{¶ 12} Further, as argued by the commission, the cases cited by relator in his 

objections were decided prior to the amendment of R.C. 4123.56(F), and apply the 

abrogated doctrine of voluntary abandonment. As outlined above, the last sentence of R.C. 

4123.56(F) states: “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.” See also Autozone at ¶ 34 (noting the relator’s “cited cases rely on the voluntary 

abandonment doctrine and therefore have been superseded as stated in R.C. 4123.56(F)” 

and, “[a]s a result, we do not find them to support [the relator’s] position”). 

{¶ 13} In response to relator’s objections, the commission argues the fact an 

employee has been laid off from employment prior to the requested period of TTD 

compensation “does not either automatically preclude or exclude TTD compensation 

pursuant to R.C. 4123.56(F) as argued by [relator].” (Memo. in Opp. to Objs. at 3.) Rather, 

the commission maintains, the criteria set forth in R.C. 4123.56(F) must be considered. We 

agree. 

{¶ 14} Here, the magistrate found the commission properly construed and applied 

amended R.C. 4123.56(F) to the claim. In reaching that determination, the magistrate 

analyzed the facts under both the first and second sentences of R.C. 4123.56(F). In applying 

the first sentence of that division to the facts, the magistrate noted the commission found 

that relator, although working with medical restrictions at the time of his departure from 

the employer of record (Paramount) and at the time of his subsequent layoff from Genoa, 

“was capable of working” as of May 12, 2020. (Appended Mag. Decision at ¶ 37.) Further, 

the magistrate noted, “[t]here was no medical record [evidence] demonstrating * * * any 

specific change in [relator’s] condition or circumstances as of May 11, 2020, that would 

entitle [him] to TTD compensation starting on May 12, 2020, except that [relator] was laid 

off that day due to the COVID-19 pandemic.” (Appended Mag. Decision at ¶ 37.) The record 

supports the magistrate’s determination that, in applying the first sentence of the statute, 
No. 22AP-149 5

the commission properly found relator was not entitled to receive TTD compensation 

because the reason he was unable to work and suffered a wage loss “was the result of his 

resignation from the original employer and Genoa’s subsequent laying him off due to the 

COVID-19 pandemic.” (Appended Mag. Decision at ¶ 37.) 

{¶ 15} In applying the second sentence of R.C. 4123.56(F) to the facts, the magistrate 

noted the commission found relator “was not working and had suffered a wage loss as a 

direct result of reasons unrelated to the allowed injury.” (Appended Mag. Decision at ¶ 38.) 

The magistrate found no error with that determination, noting relator “was not working at 

the time of his requested period of TTD compensation because he had resigned from his 

original employer,” and “Genoa subsequently laid him off due to the COVID-19 pandemic.” 

(Appended Mag. Decision at ¶ 38.) Upon review, we agree with the magistrate’s conclusion 

there was some evidence to support the commission’s determination that relator was not 

working at the time of the requested TTD compensation as a direct result of reasons 

unrelated to the allowed injury. Because some evidence supports the commission’s 

decision to deny TTD compensation, “we cannot disturb the order.” Autozone Stores at 

¶ 36, citing Aaron’s at ¶ 18. 

{¶ 16} Upon review of the magistrate’s decision, an independent review of the 

record, pursuant to Civ.R. 53, and due consideration of relator’s objections, we find the 

magistrate has properly determined the pertinent facts and correctly applied the relevant 

law. We therefore 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. Accordingly, the requested writ of mandamus is hereby denied. 

Objections overruled;

writ of mandamus denied.

MENTEL, P.J., and BEATTY BLUNT, J., concur.
No. 22AP-149 6

APPENDIX 

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Brian Hineman, : 

Relator, :

v. : No. 22AP-149

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 October 16, 2023

Nager, Romaine & Schneiberg Co., LPA, Jerald A. 

Schneiberg, and C. Bradley Howenstein, for relator. 

Dave Yost, Attorney General, and Denise A. Gary, for 

respondent Industrial Commission of Ohio.

IN MANDAMUS 

{¶ 17} Relator, Brian Hineman (“claimant”), has filed this original action requesting 

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

(“commission”), to vacate its November 28, 2020, order that denied his request for 

temporary total disability (“TTD”) compensation.

Findings of Fact:

{¶ 18} 1. On November 26, 2018, claimant sustained an injury in the course of and 

arising out of his employment as a warehouse manager for Paramount Manufacturing Co., 
No. 22AP-149 7

Inc. (“employer”), respondent. His workers’ compensation claim was allowed for the 

following conditions: strain unspecified muscle fascia tendon left shoulder; slap tear left 

glenoid labrum; and adjustment disorder with mixed anxiety and depressed mood. 

{¶ 19} 2. In early March 2020, claimant was released to return to work in a lightduty capacity, and the employer offered claimant light-duty work within his restrictions.

{¶ 20} 3. In a March 5, 2020, letter, claimant resigned his employment with the 

employer as of March 9, 2020. Before the commission, claimant testified that he felt 

uncomfortable accepting the job because it was an office job he was not used to performing, 

and he felt he would be subject to scrutiny.

{¶ 21} 4. On March 12, 2020, claimant began working for another employer, Genoa 

International Chemical Company (“Genoa”). 

{¶ 22} 5. On March 23, 2020, David Kotarsky, Ph.D., issued a MEDCO-14, in which 

he instituted work restrictions based upon the allowed psychological condition of 

adjustment disorder with mixed anxiety and depressed mood. 

{¶ 23} 6. Claimant worked for Genoa until he was laid off on May 11, 2020, due to 

the COVID-19 pandemic.

{¶ 24} 7. On June 24, 2020, relator filed a C-86 motion requesting TTD 

compensation from May 12, through July 9, 2o2o, and continuing, based upon 

Dr. Kotarsky’s MEDCO-14. 

{¶ 25} 8. An October 2, 2020, hearing was held before a district hearing officer 

(“DHO”) on the issue of TTD compensation, and in an October 6, 2020, decision, the DHO 

found the following: (1) TTD compensation is denied; (2) claimant was released to return 

to work in light-duty capacity in early March 2020; (3) claimant testified he was offered 

light-duty work by the employer; (4) claimant testified he was uncomfortable accepting this 

light-duty position because he did not know how to perform office work and felt he would 

be working under scrutiny in an office position, so he left as a result; (5) instead, claimant 

accepted a sales position with a different employer; (6) claimant resigned from the 

employer on March 5, 2020, and began his new job on March 9, 2020; (7) claimant worked 

for two months with the new employer until he was laid off as a result of COVID-19 on 

May 11, 2020; (8) thereafter, claimant applied for and received unemployment 

compensation; (9) claimant is not eligible for TTD compensation beginning May 12, 2020, 
No. 22AP-149 8

as his inability to work on that date is unrelated to the allowed injury in his claim; rather 

claimant’s loss of earning after that date is related to economic factors resulting from the 

pandemic; and (10) claimant has not substantiated his loss of earnings is directly related to 

the allowed injury in the claim. Claimant appealed.

{¶ 26} 9. A November 25, 2020, hearing was held before a staff hearing officer 

(“SHO”) on the issue of TTD compensation, and in a November 28, 2020, decision, the 

SHO found the following: (1) the order of the DHO is affirmed; (2) there is insufficient 

documentation to establish by a preponderance of the evidence that the allowed conditions 

in the claim directly caused claimant’s loss of earnings; (3) claimant was provided medical 

restrictions that would physically permit him to return to light-duty work in March 2020; 

(4) the March 5, 2020, letter from the claimant sets forth that he chose not to pursue a 

return to employment with the employer in a light-duty capacity; (5) the March 5, 2020, 

letter explains that claimant desired to resign from his employment effective March 9, 

2020; (6) in fact, claimant secured new employment on March 12, 2020, with a different 

employer, Genoa; (7) claimant continued to work for Genoa until he was laid off on May 11, 

2020, due to the economic downturn caused by the COVID-19 pandemic; (8) claimant has 

received unemployment compensation beginning July 5, 2020; (9) claimant is not eligible 

to receive TTD compensation, as his inability to work on May 12, 2020, is not related to the 

allowed injury; and (10) the loss of earnings after May 11, 2020, is related to economic 

factors flowing from the economic downturn caused by the COVID-19 pandemic, and 

claimant’s decision to leave his employment with the employer as of March 9, 2020. 

Claimant appealed.

{¶ 27} 10. On December 15, 2020, the commission refused claimant’s appeal. 

{¶ 28} 11. On March 4, 2022, claimant filed a petition for writ of mandamus.

Conclusions of Law and Discussion:

{¶ 29} The magistrate recommends that this court deny the employer’s writ of 

mandamus. 

{¶ 30} In order for this court to issue a writ of mandamus, a relator must ordinarily 

show a clear legal right to the relief sought, a clear legal duty on the part of the respondent 

to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). 
No. 22AP-149 9

{¶ 31} A clear legal right to a writ of mandamus exists where the relator shows that 

the commission abused its discretion by entering an order that 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).

{¶ 32} 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. 

Upon that predicate, TTD compensation shall be paid to a claimant until one of four things 

occurs: (1) the claimant has returned to work; (2) the claimant’s treating physician provides 

a written statement that the claimant is able to return to the former position of 

employment; (3) work within the physical capabilities of the claimant is made available by 

the employer or another employer; or (4) the claimant has reached maximum medical 

improvement. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 

(1982).

{¶ 33} R.C. 4123.56, which was amended by H.B. No. 81, effective September 15, 

2020, modified the prior version of R.C. 4123.56 by adding the following entirely new 

language pertaining to voluntary abandonment:

(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.

R.C. 4123.56(F).

{¶ 34} Initially, the magistrate notes that amended R.C. 4123.56(F) applies to claims 

pending on or arising after the effective date, which is September 15, 2020. State ex rel. 
No. 22AP-149 10

Autozone Stores, Inc. v. Indus. Comm. of Ohio, 10th Dist. No. 21AP-294, 2023-Ohio-633, 

fn. 1, citing State ex rel. Ohio State Univ. v. Pratt, 169 Ohio St.3d 527, 2022-Ohio-4111, ¶ 10, 

fn. 2, and State ex rel. Cleveland Metro. School Dist. v. Indus. Comm., 10th Dist. No. 20AP139, 2022-Ohio-2150, ¶ 47-48. Thus, because the DHO issued a decision on October 6, 

2020, and the SHO issued a decision on November 28, 2020, the case was pending after 

the September effective date of R.C. 4123.56(F), and amended R.C. 4123.56(F) applies to 

the present case.

{¶ 35} Claimant presents two arguments. First, claimant argues that the 

commission abused its discretion when it found his period of disability was not related to 

the allowed conditions in his claim. Claimant claims that the employer’s argument is one of 

voluntary abandonment (i.e., that he resigned and, therefore, abandoned his employment 

and is forever ineligible for TTD compensation), but the voluntary abandonment concept 

has been legislatively abandoned and replaced by the new R.C. 4123.56(F). Claimant 

asserts he did not remove himself from the workforce. Claimant contends that although he 

resigned on March 9, 2020, and accepted a position with a different employer three days 

later, there is no policy justification or legal basis to require an employee to remain forever 

shackled to the employer of record after an injury just so he can remain eligible for TTD 

compensation. Claimant argues that his loss of wages are a direct result of his injury, given 

he was declared disabled due to the allowed psychological conditions in his claim as of 

May 12, 2020. 

{¶ 36} Second, claimant argues that, even assuming arguendo that the SHO was 

correct that claimant’s loss of wages was not the direct result of his allowed conditions but 

due to his resignation, he is still entitled to TTD compensation because R.C. 4123.56(F) is 

set forth in the alternative and both portions must be given their ordinary meaning, 

pointing to the language, “[i]f 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.” (Emphasis added.) 

Thus, claimant contends, according to the first sentence, a claimant is entitled to TTD 

compensation if unable to work or suffers a wage loss due to the injury, but is not entitled 

to TTD compensation if not working or suffers a wage loss due to reasons unrelated to the 

injury. Claimant asserts his refusal to accept a light-duty job offer and his resignation in 
No. 22AP-149 11

March 2020 are completely irrelevant to the determination under R.C. 4123.56(F) of 

whether he became disabled as a result of the allowed psychological condition in his claim 

in May 2020. 

{¶ 37} The magistrate finds the commission properly construed and applied 

amended R.C. 4123.56(F) to claimant’s case. Amended R.C. 4123.56(F) contains two 

distinct sections for determining whether an employee is entitled to TTD compensation 

based upon wage loss. Pursuant to the first section, an employee is entitled to receive 

compensation if the employee is unable to work or suffers a wage loss as the direct result of 

an impairment arising from an injury or occupational disease. As this first section applies 

here, claimant was not entitled to receive compensation because the reason he was unable 

to work and suffered a wage loss was the result of his resignation from the original employer 

and Genoa’s subsequent laying him off due to the COVID-19 pandemic. Although he may 

have been working with medical restrictions at the time of his departure from the employer 

of record and at the time of his subsequent layoff from Genoa, the commission found that 

he was capable of working as of May 12, 2020. There was no medical record demonstrating 

that there was any specific change in claimant’s condition or circumstances as of May 11, 

2020, that would entitle claimant to TTD compensation starting on May 12, 2020, except 

that claimant was laid off that day due to the COVID-19 pandemic. These facts place 

claimant’s case squarely within the plain language of this section.

{¶ 38} Pursuant to the second section of R.C. 4123.56(F), 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 wage-loss 

compensation. As this second section applies here, the commission found that claimant was 

not working and had suffered a wage loss as a direct result of reasons unrelated to the 

allowed injury. The magistrate finds no error with the commission’s conclusion. Claimant 

was not working at the time of his requested period of TTD compensation because he had 

resigned from his original employer and Genoa subsequently laid him off due to the 

COVID-19 pandemic. Claimant’s circumstances fall within the purview of the second 

sentence in R.C. 4123.56(F), and the evidence in the record supports the commission’s 

decision. For these reasons, the magistrate finds the commission properly construed and 

applied amended R.C. 4123.56(F).
No. 22AP-149 12

{¶ 39} Accordingly, it is the magistrate’s recommendation that this court should 

deny claimant’s petition for writ of mandamus. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III

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). A party may file written objections to the 

magistrate’s decision within fourteen days of the filing of the 

decision.