[Cite as State ex rel. Yuravak v. Indus. Comm., 2016-Ohio-8343.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State of Ohio ex rel. : 

Deborah Yuravak, 

 : 

 Relator, 

 : 

v. No. 16AP-45 

 : 

The Industrial Commission of Ohio (REGULAR CALENDAR) 

and Fairview Hospital Cleveland Clinic, : 

 Respondents. : 

 

D E C I S I O N 

Rendered on December 22, 2016 

 

On brief: Shapiro, Marnecheck & Palnik, Matthew A. 

Palnik, and Elizabeth M. Laporte, for relator. 

On brief: Michael DeWine, Attorney General, and 

Natalie J. Tackett, for respondent Industrial Commission of 

Ohio. 

On brief: Gottfried Sommers LLC, R. Mark Gottfried, and

Sandra B. Sommers, for respondent Fairview Hospital 

Cleveland Clinic. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

DORRIAN, P.J. 

{¶ 1} Relator, Deborah Yuravak, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate its orders1 which denied her application for temporary total 

 

1 On April 11, 2014, a district hearing officer ("DHO") held a hearing on temporary total disability ('TTD") 

compensation. The decision to deny the compensation was typed April 14 and mailed April 16, 2014. On 

June 2, 2014, a staff hearing officer ("SHO") held a hearing on the appeal of the April 16, 2014 order. The 

decision to vacate the April 16, 2014 DHO order, but still deny TTD compensation, was typed June 2 and 
No. 16AP-45 2 

disability ("TTD") compensation, denied continuing jurisdiction, and refused appeal. 

Relator requests this court order the commission to find that she is entitled to 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. The magistrate recommends 

this court deny relator's request for a writ of mandamus, finding that the commission did 

not abuse its discretion when it denied relator's application for TTD compensation. 

{¶ 3} Relator has filed the following three objections to the magistrate's decision: 

[I.] The Magistrate erred in holding that it is automatically 

workforce abandonment when one is not working at the 

exact time they first request temporary total disability when 

all evidence supports that the reason for not working is 

injury-related. 

[II.] The Magistrate erred by ignoring intent and holding 

that when there is not enough evidence to support granting 

temporary total disability it automatically equates to 

workforce abandonment when all evidence in the record 

supports the conclusion that Relator's resignation was injury 

related. 

[III.] The Magistrate failed to address issue pled in Relator's 

Complaint and briefed in her Merit Brief of the Industrial 

Commission's refusal to exercise continuing jurisdiction on 

the basis of mistake of fact, mistake of law and new and 

changed circumstances. 

{¶ 4} We begin by addressing the third objection. Relator contends the magistrate 

did not address the commission's refusal to exercise continuing jurisdiction. In her merit 

brief in support of mandamus, relator specifically argued that the commission abused its 

discretion on August 13, 2015 when the staff hearing officer ("SHO") refused to exercise 

continuing jurisdiction on the mistake of law, mistake of fact, and new and changed 

 mailed June 5, 2014. On June 20, 2014, another SHO reviewed an appeal of the June 5, 2014 SHO order. 

The decision to refuse appeal was typed June 20 and mailed June 25, 2014. On June 15, 2015, a DHO held a 

hearing on the request for TTD compensation and continuing jurisdiction. The decision to deny the 

compensation and continuing jurisdiction was typed June 16 and mailed June 18, 2015. On August 5, 2015, 

an SHO held a hearing on the appeal of the DHO's June 18, 2015 order. The decision to modify the DHO's 

order and still deny compensation and continuing jurisdiction was typed August 6 and mailed August 13, 

2015. On August 28, 2015, another SHO reviewed an appeal of the SHO's August 13, 2015 order. The 

decision to refuse appeal was typed August 28 and mailed September 1, 2015. We refer to these orders 

pursuant to the date that they were mailed. 
No. 16AP-45 3 

circumstances regarding the June 5, 2014 commission finding that relator had voluntarily 

abandoned the workforce so as to preclude the payment of TTD. Relator alleged the 

commission committed mistakes of law and fact when it misapplied both State ex rel. 

Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, and State ex rel. 

Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 2013-Ohio-4538, and by 

imposing a burden of proof on relator that this court has held impermissible. Relator 

further alleged that there existed new and changed circumstances in the form of: (1) the 

July 2, 2014 MRI, and (2) the subsequent third cervical surgery, both of which 

corroborate relator's persistent worsening cervical complaints. Finally, she argued that 

new and changed circumstances existed in the form of her August 19, 2013 resignation 

letter as this was newly discoverable evidence since it was not raised at either the district 

hearing officer ("DHO") or SHO hearings. Relator claimed she was not able to obtain the 

resignation letter, even though she wrote it. Relator also claimed that the January 6, 2015 

letter from Rick Di Domenico, former executive director of Life Care Center of Medina, is 

new evidence of relator's intent on her resignation. It appears the magistrate did not 

address the refusal to exercise continuing jurisdiction. Therefore, we will address the 

same now. 

{¶ 5} On June 18, 2015, the DHO considered relator's request for continuing 

jurisdiction regarding the June 5, 2014 SHO order and denied the same, finding that 

relator's resignation letter was not evidence of new and changed circumstances. The DHO 

also determined there was no evidence the Di Domenico letter could not have been 

obtained or was not discoverable for the SHO hearing on June 2, 2014. There is no 

indication in the DHO's order that the July 2, 2014 MRI and evidence of the third cervical 

surgery were presented to the DHO. Furthermore, there is no indication that relator 

raised any legal arguments that Eckerly or Hoffman were misapplied. A review of 

relator's April 28, 2015 C-86 motion to appeal confirms that neither the MRI, third 

cervical surgery, Eckerly, or Hoffman were raised by relator. 

{¶ 6} On August 13, 2015, the SHO modified the prior DHO's June 18, 2015 order 

but still denied the request for continuing jurisdiction. First, the SHO noted that no 

evidence was presented regarding a mistake of fact. The SHO addressed relator's mistake 

of law argument that the prior SHO did not have jurisdiction to sua sponte raise the issue 

of voluntary abandonment. The SHO disagreed and noted that the transcript from the 
No. 16AP-45 4 

April 11, 2014 DHO hearing reflects the circumstances surrounding relator's resignation 

were discussed and, furthermore, had it not been discussed, the prior SHO was permitted 

to conduct a de novo hearing. Furthermore, once again, there is no indication that relator 

raised any legal arguments that Eckerly or Hoffman were misapplied. 

{¶ 7} The SHO then addressed relator's new evidence argument and stated that 

the resignation letter could not be considered new evidence as it was in existence prior to 

the June 5, 2014 SHO order. The SHO also found that relator had "not established [the Di 

Domenico letter] could not have been obtained prior to the 2014 administrative 

adjudications regarding the payment of temporary total compensation." (Stip. of Evid. at 

268.) We note, once again, there is no indication in the August 13, 2015 SHO order that 

the July 2, 2014 MRI and evidence of the third cervical surgery were even presented to the 

SHO. Review of the July 7, 2015 online appeal reveals a notation that "[a]dditional 

evidence will NOT be submitted" and thus confirms that relator did not submit additional 

evidence in the form of the MRI or third cervical surgery. (Emphasis sic.) (Stip. of Evid. at 

265.) 

{¶ 8} Finally, on September 1, 2015, the commission refused relator's appeal of 

the SHO's August 13, 2015 order. Review of the August 26, 2015 online appeal contained 

in the record reveals a notation "additional evidence will NOT be submitted" and thus 

confirms that relator did not submit additional evidence in the form of the MRI or third 

cervical surgery. (Emphasis sic.) (Stip. of Evid. at 273.) Again, there is nothing in the 

record to indicate that relator raised the legal arguments regarding Eckerly or Hoffman. 

{¶ 9} Taking all this into consideration, we agree that relator's letter and the Di 

Domenico letter are not new evidence or previously not obtainable. We find the 

commission did not abuse its discretion in denying continuing jurisdiction. The third 

objection is overruled. 

{¶ 10} Regarding relator's first and second objections, relator essentially argues the 

magistrate confused the standard for denying TTD with the standard for finding 

workforce abandonment. Relator argues that the burden for proving workforce 

abandonment lies with the employer and that she, as the employee, was not required to: 

(1) be working at the time of her disability, and (2) present contemporaneous medical 

evidence of disability at the time of her resignation. Rather, relator argues the magistrate 

erred by not focusing on evidence of relator's intent at the time of her resignation, in 
No. 16AP-45 5 

particular: (1) the fact that her resignation letter indicates she is resigning for "medical 

reasons" rather than retiring, and (2) the subsequent MRI and third cervical surgery. 

{¶ 11} State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988), 

held that where a claimant's retirement is causally related to his injury, the retirement is 

not "voluntary" so as to preclude eligibility for TTD, however, "[w]here * * * the Industrial 

Commission determines that a claimant has not left a former position of employment due 

to a work-related injury, it may properly deny an award of temporary total disability." Id. 

at 46. The commission's determination regarding whether retirement was "voluntary" 

will be upheld if there is some evidence to support it. 

{¶ 12} In support of her argument, relator points to our decision in State ex rel. 

Montanez v. ABM Janitorial Servs., 10th Dist. No. 12AP-364, 2013-Ohio-4333. However, 

in Montanez, as well as State ex rel. Cline v. Abke Trucking, Inc., 10th Dist. No. 10AP888, 2012-Ohio-1914, and State ex rel. MedAmerica Health Sys. Corp. v. Brammer, 10th 

Dist. No. 11AP-904, 2012-Ohio-4416, on which Montanez relied, the relator's voluntary 

abandonment took place after an involuntary abandonment, and the court held " 'a 

voluntary abandonment of subsequent employment does not relate back and transform 

an involuntary departure from the original employer into a voluntary departure so as to 

render the employee ineligible for TTD compensation.' " Montanez at ¶ 10, quoting 

MedAmerica at ¶ 5-7 and Cline at ¶ 14-15. That is not the case here. 

{¶ 13} As pointed out by the magistrate, the voluntary nature of any claimant's 

departure from the workforce or abandonment is a factual question which centers around 

the claimant's intent at the time of retirement and all relevant circumstances must be 

considered in determining the same. In Hoffman, the Supreme Court of Ohio stated that 

relevant factors include "evidence of the claimant's medical condition at or near the time 

of departure from the workforce, if submitted, and any other evidence that would 

substantiate a connection between the injury and retirement." Id. at ¶ 15. In the June 5, 

2014 SHO decision, the commission considered the following relevant information in 

determining relator's resignation was voluntary: (1) the fact that relator had a sedentary 

position upon her return from a 2008 surgical procedure until her resignation 

November 8, 2013, (2) the fact that it was her own personal assessment that she could not 

continue to work, (3) the fact that despite testifying to excruciating levels of pain, relator 

did not seek any medical treatment until January 2, 2014, almost two months after her 
No. 16AP-45 6 

resignation, (4) the lack of any medical evidence indicating she was incapable of working 

to confirm her allegation that she was not physically capable of continuing in her 

sedentary job upon the date of her resignation, and (5) the fact that relator had not looked 

for any work since her resignation. 

{¶ 14} Accordingly, we cannot say that the commission abused its discretion in 

finding that relator voluntary abandoned the workforce. Therefore, the first and second 

objections are overruled. 

{¶ 15} Upon review of the magistrate's decision, an independent review of the 

record, and due consideration of relator's three objections, we find the magistrate has 

properly determined the pertinent facts and applied the appropriate law. We therefore 

overrule the three objections to the magistrate's decision and adopt the magistrate's 

decision as modified by this decision. Accordingly, the requested writ of mandamus is 

hereby denied. 

Objections overruled; 

writ of mandamus denied. 

TYACK and BROWN, JJ., concur. 

 

 
No. 16AP-45 7 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Deborah Yuravak, : 

 

 Relator, : 

 

v. : No. 16AP-45 

 

The Industrial Commission of Ohio : (REGULAR CALENDAR) 

and 

Fairview Hospital [dba] : 

The Cleveland Clinic, 

 : 

 Respondents. 

 : 

 

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

Rendered on July 29, 2016

 

Shapiro, Marnecheck & Palnick, Matthew A. Palnik, and 

Elizabeth M. Laporte, for relator. 

Michael DeWine, Attorney General, and Natalie J. Tackett, 

for respondent Industrial Commission of Ohio. 

Gottfried Sommers LLC, R. Mark Gottfried, and Sandra B. 

Sommers, for respondent Fairview Hospital dba The 

Cleveland Clinic. 

 

IN MANDAMUS 

{¶ 16} Relator, Deborah Yuravak, has filed this original action requesting that this 

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

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

disability ("TTD") compensation, and ordering the commission to find that she is entitled 
No. 16AP-45 8 

to that compensation. Relator also asks this court to issue a writ of mandamus ordering 

the commission to grant her motion for continuing jurisdiction, reconsider the issue of 

voluntary abandonment, and find in her favor. 

Findings of Fact:

{¶ 17} 1. Relator sustained a work-related injury on January 10, 1997 while 

working as a file clerk/forms coordinator for respondent, Fairview Hospital dba The 

Cleveland Clinic ("Fairview"), a self-insured employer. 

{¶ 18} 2. Fairview initially certified relator's claim for cervical strain and herniated 

disc C5-6. 

{¶ 19} 3. On November 30, 1998, relator underwent an interior C5 discectomy 

with posterior decompression and interbody fusion, underwent physical therapy, and was 

ultimately able to return to work approximately six months later. 

{¶ 20} 4. Relator voluntarily left Fairview in September 1999 and took a job at Life 

Care Center of Medina ("Life Care") as a receptionist, and ultimately became the office 

manager. Relator acknowledged that, while still employed at Fairview, another employee 

was assigned to perform any lifting tasks for her. According to her testimony, she left 

Fairview because she was in a lot of pain, the employee assigned to assist her harassed 

her, and the job at Life Care was within walking distance of her home. 

{¶ 21} 5. In 2004, relator's claim was additionally allowed for: "spondylogenic 

compression at C5-6 and C4-5; disc bulge without myelopathy." 

{¶ 22} 6. On March 7, 2008, relator had a second surgery to re-explore the 

"anterior cervical fusion * * * done at the C5-6 level and * * * a C4-5 anterior cervical 

decompression with fusion." 

{¶ 23} 7. Relator received TTD compensation following this second surgery until 

she returned to work at Life Care in June 2008. 

{¶ 24} 8. Relator indicated that she was essentially pain free until March 2009. 

{¶ 25} 9. In 2010, relator's claim was additionally allowed for disc herniation C3-4 

and C6-7 as flow-through conditions. 

{¶ 26} 10. Relator was treated by Cyril E. Marshall, M.D., on December 13, 2012, 

because she was experiencing a lot of neck pain and headaches, and she indicated that her 

neck pops and cracks. At that time, Dr. Marshall noted that relator's range of motion of 
No. 16AP-45 9 

her cervical spine was decreased by 50 percent. Dr. Marshall prescribed Vicodin and 

Flexeril and completed a C-9 form requesting massage therapy. 

{¶ 27} 11. In a letter dated August 19, 2013, relator notified her employer that she 

found it necessary to resign from her position. In that letter, relator explained: 

I am writing this letter with deepest sadness. At this time I 

feel it necessary to resign from my position as Business 

Office Manager with Life Care Center of Medina, due to 

medical reasons. I feel it is in the best interest for the 

company and myself. My last day of employment will be 

September 18, 2013. 

{¶ 28} 12. Relator did not resign on September 18, 2013 as she had indicated in 

her letter because her employer had not yet found a replacement. Relator's last day of 

work at Life Care was November 8, 2013. 

{¶ 29} 13. Relator did not seek medical attention until January 2, 2014 when she 

returned to Dr. Marshall. In his office note of the same date, Dr. Marshall noted that 

relator was having a lot of neck pain and that she felt like she was getting worse. Dr. 

Marshall noted that relator had a 50 percent decrease in range of motion of her cervical 

spine and tenderness in the paraspinals. 

{¶ 30} 14. That same day, Dr. Marshall completed a Medco-14 Physician's Report 

of Work Ability indicating that relator was temporarily not released to any work including 

her former position of employment from January 2 through April 1, 2014. He noted as his 

clinical findings that relator had a 50 percent decrease in cervical range of motion, 

worsening pain which he indicated was an 8 out of 10, and further noted that they were 

awaiting approval for a cervical spine MRI. 

{¶ 31} 15. Dr. Marshall authored a letter to relator's counsel explaining her 

situation further: 

She has been suffering with progressive pain in her neck. She 

has been unable to work since 11-8-13 due to the severity of 

neck pain with marked restriction in cervical range of 

motion. I have ordered updated cervical MRI. Based on 

exam today, she is disabled as a direct result of the cervical 

spine conditions. She is in horrible pain with only 50% 

retained cervical range of motion. 

{¶ 32} 16. Relator filed her application for TTD compensation on January 6, 2014. 
No. 16AP-45 10 

{¶ 33} 17. An independent medical evaluation was performed by Barry J. 

Greenberg, M.D. In his February 26, 2014 report, Dr. Greenberg listed the allowed 

conditions in relator's claim, identified the medical records which he reviewed, discussed 

the history of relator's conditions, and provided his physical findings upon examination. 

Dr. Greenberg opined that relator was voluntarily limiting her neck motion, concluded 

that her allowed conditions had reached maximum medical improvement ("MMI"), and 

concluded that she was not temporarily and totally disabled, instead noting that she had 

decided to stop working because of continuing neck pain and restricted motion which, as 

he noted, were not new issues. 

{¶ 34} 18. Relator's application was heard before a district hearing officer ("DHO") 

on April 11, 2014. The DHO relied on the report of Dr. Greenberg to conclude that relator 

was not entitled to an award of TTD compensation. 

{¶ 35} 19. Relator appealed and the matter was heard before a staff hearing officer 

("SHO") on June 2, 2014. The SHO vacated the prior DHO order and denied relator's 

request for TTD compensation finding that she had voluntarily abandoned her 

employment when she left work on November 8, 2013. The SHO explained that relator 

had failed to provide any contemporaneous evidence relative to the date she quit work 

which would indicate that she was medically incapable of working. The SHO noted 

further that relator did not look for any work after leaving her employment in 

November 2013. Specifically, the SHO order provides: 

Ms. Yuravak left the Employer of Record in 1999 in order to 

take a job as an office manager for another employer. The 

Injured Worker has testified that the new job as an office 

manager entailed working on the computer all day and 

answering phones. The Injured Worker confirmed that this 

was a sedentary position. The Injured Worker indicated that 

she underwent a second surgical procedure in 2008 and was 

able to return to the sedentary position and continued to 

work until 11/08/2013. 

The Injured Worker testified that on 11/08/2013 she quit her 

sedentary job with the now Employer. The Injured Worker 

testified that it was her own personal assessment that she 

could not continue to work. The Injured Worker testified 

that she had gotten to the point where she wanted to commit 

suicide because the pain was so bad, so she went off work 

on 11/08/2013. However, despite describing excruciating 

level of pain, the Staff Hearing Officer notes that the Injured 
No. 16AP-45 11 

Worker did not seek any medical treatment until 01/02/104 

[sic]. 

The Staff Hearing Officer finds that the Injured Worker had 

not provided any medical evidence contemporaneous with 

the date she quit work, 11/08/2013, indicating that she was 

medically incapable of working to confirm her allegation that 

she was not physically capable of continuing in her sedentary 

job. Further, the Injured Worker has testified that it was her 

own assessment and that she did not have medical 

corroboration that she was unable to work as she did not 

seek treatment. Additionally, the Injured Worker has 

indicated that she has not looked for any work since leaving 

her employment on 11/08/2013. 

As such, the Staff Hearing Officer finds that there is no 

medical evidence contemporaneous with Ms. Yuravak 

leaving work 11/08/2013 which indicates that she was 

unable to work due to the allowed conditions of this claim. 

Accordingly, the Staff Hearing Officer finds that Ms. Yuravak 

has abandoned the workforce when she quit her job 

on 11/08/2013. According to State ex rel. Hoffman v Rexam 

Beverage Can Co. (2013) 137 Ohio St.3d 129, if an Injured 

Worker leaves the workforce for reasons unrelated to the 

industrial injury, there is no loss of earnings due to the injury 

and the Injured Worker is no longer eligible for temporary 

total compensation. 

Despite the allegation of excruciating levels of pain, the 

Injured Worker did not seek treatment until 01/02/2014. 

She had already been off work for almost two months at that 

time for reasons unrelated to the claim. The Staff Hearing 

Officer also relies on State ex rel. Eckerly v. Industrial 

Commission (2005), 105 Ohio St.3d 428 which indicates the 

industrial injury must remove the Injured Worker from his 

or her job and this requirement cannot be satisfied if the 

Injured Worker did not have a job at the time they are 

alleging disability. The first evidence of disability related to 

the claim is not until 01/02/2014, well after the Injured 

Worker had already quit her job. Thus, there are no wages to 

replace and temporary total compensation is not payable. 

It is the further order of the Staff Hearing Officer that the C9 Request for Medical Service, dated 01/02/2014, is denied. 

 
No. 16AP-45 12 

{¶ 36} 20. Relator's further appeal was refused by order of the commission mailed 

June 25, 2014. 

{¶ 37} 21. On September 19, 2014, relator filed a C-86 motion requesting the 

approval of surgery and asking that TTD compensation be paid from the date of that 

surgery, September 19, 2014. 

{¶ 38} 22. Relator's C-86 motion was heard before a DHO on November 14, 2014 

and was denied based on the prior SHO order determining that relator had voluntarily 

abandoned her employment. 

{¶ 39} 23. Relator appealed; however, she later withdrew that appeal. 

{¶ 40} 24. On April 29, 2015, relator filed a motion asking that the commission 

exercise its continuing jurisdiction alleging a mistake of fact, a mistake of law, and that 

new evidence which was not available at the time of the June 2, 2014 SHO hearing was 

now available. 

{¶ 41} 25. On June 15, 2015, relator's request was heard before a DHO and was 

denied. In support of her motion, relator had submitted a copy of her August 2013 letter 

of resignation as support for new and changed circumstances. The DHO noted that letter 

was authored prior to the SHO hearing on June 2, 2014 and did not constitute evidence of 

new and changed circumstances. 

{¶ 42} Relator had also submitted a letter from the former executive director of 

Life Care dated January 6, 2015 wherein he explained that relator had complained of 

constant neck pain and that her resignation was due to her neck pain. The DHO 

determined that relator failed to establish that this letter could not have been obtained or 

was not discoverable to be submitted in time for the June 2014 SHO hearing. Finding 

that relator failed to present any evidence of a mistake of fact or law in the June 2, 2014 

SHO order, the DHO denied relator's request for relief pursuant to R.C. 4123.52. 

{¶ 43} 26. Relator appealed and the matter was heard before an SHO on August 5, 

2015. The SHO also denied relator's request for relief pursuant to R.C. 4123.52, but for 

different reasons. The SHO noted that, at the June 2, 2014 hearing, there was no 

contemporaneous medical evidence relative to the time when relator left the workforce 

and the prior finding that relator left the workforce for reasons unrelated to the industrial 

injury did not constitute a mistake of fact. 
No. 16AP-45 13 

{¶ 44} Relator had alleged that the original SHO did not have jurisdiction to raise 

the issue of voluntary abandonment arguing that her employer had failed to raise it. 

However, the SHO disagreed relying in part on the transcript from the DHO hearing held 

April 11, 2014. As the SHO noted, the circumstances surrounding relator's resignation 

were in fact discussed. Regardless, the prior SHO was not precluded from addressing any 

legal defense to an issue noticed for hearing as each administrative level of adjudication 

represents a de novo hearing on the merits. 

{¶ 45} The SHO also found that relator's letter of resignation and the letter from 

the executive director did not constitute evidence which could not have been presented at 

the 2014 hearing. As such, the SHO determined that relator failed to provide evidence to 

substantiate the invocation of the extraordinary remedy of continuing jurisdiction. 

{¶ 46} 27. Relator's further appeal was refused by order of the commission mailed 

November 1, 2015. 

{¶ 47} 28. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law:

{¶ 48} Relator argues that the commission abused its discretion in the following 

manner: (1) unilaterally raising the affirmative defense of voluntarily abandonment of the 

workforce when the self-insured employer did not; (2) misapplying State ex rel. Hoffman 

v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 2013-Ohio-4538 and State ex rel. 

Eckerly v. Indus. Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, which deal with 

voluntary abandonment compared with the commission's finding of workforce 

abandonment; and (3) finding a workforce abandonment where there are no facts to 

suggest that relator's inability to work is anything other than related to the allowed 

conditions in her claim. 

{¶ 49} The magistrate finds that the commission did not abuse its discretion: (1) 

relator's absence from the workforce was an issue and the commission did not abuse its 

discretion by discussing the issue; (2) the SHO did not apply rationale from Hoffman and 

Eckerly; and (3) the commission did not abuse its discretion by finding that relator failed 

to establish that she left the workforce due to the allowed conditions in her claim. 

{¶ 50} 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 
No. 16AP-45 14 

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). 

{¶ 51} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 52} 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). 

{¶ 53} Where an employee's own actions, for reasons unrelated to the injury, 

preclude him or her from returning to their former position of employment, he or she is 

not entitled to TTD benefits, since it is the employee's own actions, rather than the injury, 

that precludes return to the former position of employment. State ex rel. Jones & 

Laughlin Steel Corp. v. Indus. Comm., 29 Ohio App.3d 145 (1985). 

{¶ 54} When demonstrating whether an injury qualifies for TTD compensation, a 

two-part test is used. The first part of the test focuses on the disabling aspects of the 

injury. The second part of the test determines if there are any factors, other than the 

injury, which would prevent claimant from returning to his or her former position of 
No. 16AP-45 15 

employment. State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987). However, 

only a voluntary abandonment precludes the payment of TTD compensation. State ex rel. 

Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988). As such, voluntary 

abandonment of a former position of employment can, in some instances, bar eligibility 

for TTD compensation. 

{¶ 55} The voluntary nature of any claimant's departure from the workforce or 

abandonment is a factual question which centers around the claimant's intent at the time 

of retirement. In State ex rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm., 45 

Ohio St.3d 381 (1989), the Supreme Court stated that consideration must be given to all 

relevant circumstances existing at the time of the alleged abandonment. Further, the 

court stated that the determination of such intent is a factual question which must be 

determined by the commission. 

{¶ 56} If it is determined that a claimant's retirement from a job was voluntary, 

TTD compensation can be awarded only if the claimant has re-entered the workforce and, 

due to the allowed conditions from the industrial injury, becomes temporarily and totally 

disabled while working at the new job. State ex rel. McCoy v. Dedicated Transport, Inc., 

97 Ohio St.3d 25, 2002-Ohio-5305. However, a claimant's complete abandonment of the 

entire workforce precludes the payment of TTD compensation all together. Jones and 

State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376 (2000). 

{¶ 57} Relator first asserts that the commission abused its discretion by 

unilaterally raising the affirmative defense of voluntary abandonment when the employer 

had not done so. For the reasons that follow, the magistrate disagrees. 

{¶ 58} First, it must be remembered that the burden of proof is always on the 

claimant to establish entitlement to an award of compensation. All claimants, including 

relator herein, are required to present medical evidence sufficient to establish entitlement 

to an award. In order to be entitled to an award of TTD compensation, relator was 

required to demonstrate that she had sustained a loss of earnings as a result of the 

allowed conditions in her claim. Here, relator sought an award of TTD compensation 

beginning November 8, 2013, the date she last worked. Relator was required to present 

sufficient medical evidence that, at that time, her allowed conditions rendered her 

incapable of working. In her letter of resignation, dated August 19, 2013, relator indicated 

that she found it necessary to resign from her position "due to medical reasons." 
No. 16AP-45 16 

However, relator did not seek medical treatment for almost five months In early 2013, 

relator sought an increase in her award of permanent partial disability compensation. 

Jess G. Bond, M.D., examined her in January 2013 and Catherine Campbell, M.D., 

examined her in March 2013. Relator complained to both physicians that she still had 

considerable neck pain rated at a level 7 to 8 out of 10, and that injury to her neck severely 

affected her ability to do everything. However, relator never specifically indicated that her 

sedentary job was more difficult due to this pain. Based on these reports, the commission 

determined that relator had a 36 percent permanent partial disability, an increase of 1 

percent. While the medical reports upon which the commission relied indicated that 

relator had significant impairments, at no time did either report indicate that relator was 

unable to work, and relator did not inform them that she was having increased difficulties 

working. 

{¶ 59} As indicated in the findings of fact, there was a 13-month gap between 

relator's treatment with Dr. Marshall on December 13, 2012 and subsequent treatment on 

January 2, 2014, after her resignation. Relator simply did not seek any medical treatment 

during this time period. In the transcript, relator provided two explanations for her 

failure to see Dr. Marshall sooner: (1) the employer objected to every doctor visit, and (2) 

she hoped that when she left work in November 2013, her symptoms would decrease. 

That is the explanation relator provided for not providing any contemporaneous medical 

evidence that her allowed conditions forced her to leave her sedentary position at Life 

Care. The commission could have relied on her explanation, but did not. 

{¶ 60} Based on this lack of medical evidence to support her assertion that she was 

not working due to the allowed conditions in her claim, the SHO concluded that relator 

failed to establish that the allowed conditions in her claim removed her from her job, and 

she had no wages to replace. The magistrate finds that this was not an abuse of 

discretion. 

{¶ 61} Relator also takes issue with the commission's finding that she "voluntarily 

abandoned the workforce." Relator asserts that the commission's reliance on Eckerly and 

Hoffman is misplaced because those cases dealt with voluntary abandonment and not 

workforce abandonment. Relator asserts that Eckerly is inapplicable because that case 

involved the claimant's voluntary abandonment from his former position of employment 

after being terminated for cause. Finding that the claimant had not re-entered the 
No. 16AP-45 17 

workforce, he was denied TTD compensation. Relator argues that neither this court nor 

the Supreme Court of Ohio ever stated that Mr. Eckerly had abandoned the workforce. 

{¶ 62} Relator's characterization of the holding from Eckerly is inaccurate. Mr. 

Eckerly was terminated from his job and made no attempts to re-enter the workforce. As 

such, the commission found that he was not entitled to an award of TTD compensation. 

When a claimant is not working for reasons unrelated to the allowed conditions in the 

claim, the departure is considered voluntary. Whenever a claimant declines to re-enter 

the workforce, it can be said that, for all intents and purposes, they have abandoned the 

workforce. 

{¶ 63} Relator also asserts that the commission abused its discretion by citing to 

the Hoffman decision. In that case, approximately three months after Mr. Hoffman's 

TTD compensation was terminated, he retired based on years of service. Sixteen months 

later, Mr. Hoffman required a second knee surgery and applied for TTD compensation. 

The commission denied that request finding that Mr. Hoffman had voluntarily abandoned 

the workforce and cited his employment records, which indicated that his retirement was 

based on years of service, medical reports that he had reached MMI, his receipt of Social 

Security Disability benefits, and his testimony that he had applied for only one job in the 

month since his retirement. Relator says that her situation is different because she had 

never been determined to have reached MMI and she has never applied for Social Security 

Disability benefits. 

{¶ 64} The magistrate disagrees. Relator is directing attention to certain specific 

facts which differentiate Eckerly from Hoffman; however, those differences do not change 

the law. As stated previously, when an injured worker is not working for reasons 

unrelated to the allowed conditions in the injured worker's claim, the injured worker's 

departure from not only their previous position of employment, but the entire workforce, 

is considered voluntary. In the present case, the commission found that relator failed to 

establish that her departure from the workforce in November 2013 was related to the 

allowed conditions in her claim. As such, the commission found that her departure from 

her job with Life Care was voluntary. Because relator never re-entered the workforce or 

even attempted to re-enter the workforce, the commission was entitled to find that she did 

not meet her burden of proof and instead the facts, at that point in time, led to the 

conclusion that she had voluntarily abandoned the workforce. 
No. 16AP-45 18 

{¶ 65} Finding that the commission did not abuse its discretion when it denied 

relator's application for TTD compensation, it is this magistrate's decision that this court 

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

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

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

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

legal conclusion, whether or not specifically designated as a 

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

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

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

53(D)(3)(b).