[Cite as State ex rel. Manor Care, Inc. v. Indus. Comm., 2016-Ohio-5639.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State of Ohio ex rel. Manor Care, Inc., : 

 

 Relator, : 

 

v. : No. 15AP-698 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Tonisha S. Parler, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on September 1, 2016 

 

On brief: Kegler, Brown, Hill + Ritter Co., LPA, 

Randall W. Mikes, David M. McCarty, and Katja Garvey, 

for relator. 

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

Alatis, for respondent Industrial Commission of Ohio. 

On brief: Agee, Clymer, Mitchell & Portman, Douglas P. 

Koppel, C. Russell Canestraro, Robert M. Robinson, Eric B. 

Cameron and Katherine E. Ivan, for respondent Tonisha S. 

Parler. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Manor Care, Inc. ("Manor Care"), initiated this original action 

requesting that this court issue a writ of mandamus ordering respondent Industrial 

Commission of Ohio ("commission") to vacate its award of temporary total disability 

("TTD") compensation to respondent Tonisha S. Parler, and ordering the commission to 
No. 15AP-698 2 

find that Parler is not entitled to that compensation because she voluntarily abandoned 

her employment. 

I. Facts and Procedural Background 

{¶ 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 the appended decision, 

which includes findings of fact and conclusions of law. The magistrate concluded that the 

commission did not abuse its discretion in finding that Parler did not voluntarily abandon 

her employment with Manor Care and awarding her TTD compensation. Thus, the 

magistrate recommends this court deny Manor Care's request for a writ of mandamus. 

II. Objections 

{¶ 3} Manor Care has filed objections to the magistrate's decision. Manor Care 

asserts that the magistrate erred in distinguishing this case from State ex rel. Jacobs v. 

Indus. Comm., 139 Ohio St.3d 86, 2014-Ohio-1560, and in applying the holdings of State 

ex rel. Omnisource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951 and State 

ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499 to the facts 

of this case. Manor Care argues that Jacobs is legally indistinguishable from this case, 

and that Omnisource and Reitter are factually distinguishable which renders them 

inapplicable here. We find Manor Care's objections to be without merit. 

III. Discussion 

A. Jacobs is distinguishable 

{¶ 4} We agree with the magistrate's finding that Jacobs is distinguishable from 

this case. In Jacobs, claimant Wanda Jacobs was injured in September 2006 while 

working for Cenveo, Inc. ("Cenveo"), a self-insured employer. Jacobs at ¶ 4. Jacobs' 

treating physician indicated that she could return to light-duty work on October 2, 2006, 

and Cenveo accommodated those restrictions. Id. at ¶ 4. Jacobs reported to work on that 

date but left early, complaining of pain. Id. at ¶ 5. She told Cenveo she intended to 

follow-up with her treating physician. Id. at ¶ 5. Two weeks later, Cenveo sent a letter to 

Jacobs to inquire as to her status because she had not reported back for work or contacted 

Cenveo. Id. at ¶ 6. The letter stated that her employment would be terminated if she did 

not contact Cenveo by October 23, 2006. Id. at ¶ 6. Because Jacobs did not contact 

Cenveo as requested, Cenveo terminated her employment, effective October 23, 2006. Id.
No. 15AP-698 3 

at ¶ 7. In March 2007, Jacobs requested TTD compensation to begin December 30, 2006. 

Id. at ¶ 8. The commission concluded that Jacobs had voluntarily abandoned her 

employment and that the abandonment barred payment of TTD compensation. Id. 

Jacobs filed for a writ of mandamus. Id. at ¶ 9. This court and the Supreme Court of Ohio 

denied the writ on the basis that the commission's order, finding that Jacobs was barred 

from receiving TTD compensation because she voluntarily abandoned her employment, 

was supported by the evidence. Id. at ¶ 19. 

{¶ 5} Here, the magistrate distinguished Jacobs, stating: "Unlike Jacobs, who left 

work and did not see a doctor for months, claimant saw her doctor immediately. Unlike 

Jacobs, whose doctor certified that she was temporarily unable to return to her former 

position of employment two months after the day she left, claimant's treating physician 

certified that she was unable to return to any work with restrictions on the very day she 

left work." (Mag. Decision at ¶ 48.) The magistrate reasoned that these factual 

differences render Jacobs inapplicable here. 

{¶ 6} Manor Care challenges the magistrate's reasoning as to Jacobs. Manor Care 

asserts that the magistrate erred in finding that Parler's "treating physician" certified her 

as unable to return to any work. Manor Care argues that Daniel Wills, D.C., who certified 

that Parler was unable to return to work beginning March 31, 2014, was not her treating 

physician on that date. This argument is unpersuasive because Parler presented to 

Dr. Wills on that date for treatment, and she also signed a form on that date requesting 

the Ohio Bureau of Workers' Compensation change her physician of record to Dr. Wills. 

State ex rel. Findlay Industries v. Indus. Comm., 10th Dist. No. 04AP-256, 2004-Ohio6833, ¶ 17 ("[i]t is reasonable to expect that a 'physician of record' is also a 'treating 

physician' "). 

{¶ 7} Manor Care also argues that the magistrate erroneously determined that 

Dr. Wills certified that Parler "was unable to return to any work with restrictions on the 

very day she left work." However, on March 31, 2014, Dr. Wills certified that Parler would 

be unable to return to work until April 18, 2014. Then on May 13, 2014, Dr. Wills certified 

that Parler was temporarily unable to return to work from March 31 to August 31, 2014. 

Thus, contrary to Manor Care's argument, Dr. Wills certified that Parler was unable to 

return to any work beginning March 31, 2014. 
No. 15AP-698 4 

{¶ 8} Manor Care further argues that Parler's failure to provide any update 

regarding her status led to her voluntary separation from employment. Thus, Manor Care 

reasons that, like in Jacobs, Parler's conduct broke the causal relationship between the 

industrial injury and the loss of earnings, barring her from TTD compensation. As the 

magistrate correctly determined, however, Manor Care's application of the Jacobs case to 

this case does not account for the timing of the employment termination relative to the 

evidence of Parler's total disability. Parler submitted evidence to the commission 

demonstrating that, prior to her conduct leading Manor Care to terminate her 

employment, she was unable to return to any work. In Jacobs, there was no evidence that 

the claimant was unable to return to any work prior to her discharge. In fact, Jacobs 

requested TTD compensation to begin more than one month after her employment was 

terminated. Therefore, we reject Manor Care's argument that the magistrate erroneously 

distinguished Jacobs from this case. 

B. Omnisource and Reitter Stucco are applicable 

{¶ 9} We also reject Manor Care's assertion that Omnisource and Reitter Stucco

are inapplicable to the facts of this case. According to Manor Care, those two cases are 

distinguishable from this case because Parler was not already receiving TTD 

compensation at the time Manor Care terminated her employment. In support, Manor 

Care cites the following statement in State ex rel. Hildebrand v. Wingate Transp., Inc., 

141 Ohio St.3d 533, 2015-Ohio-167, ¶ 23: 

Furthermore, Pretty Products [v. Indus. Comm., 77 Ohio 

St.3d 5, 1996-Ohio-132] does not apply here. In Pretty Prods.

and similar cases that followed, each injured worker was 

already receiving temporary-total-disability compensation 

when terminated from employment and had therefore already 

demonstrated that he or she was disabled as a result of an 

industrial injury (which was the cause of a loss of earnings). 

Manor Care reasons that, because Parler was not receiving TTD compensation when she 

abandoned her employment, the principle that a claimant cannot abandon her 

employment while disabled does not apply. We disagree. 

{¶ 10} Manor Care's reasoning assumes that the analysis in this case turns on 

whether Parler was receiving TTD compensation when Manor Care terminated her 
No. 15AP-698 5 

employment. While the above-quoted statement from Hildebrand suggests that receipt of 

TTD compensation, and not just eligibility for TTD compensation, prior to termination is 

a critical fact, viewing that statement within the context of that case and other case law 

negates that suggestion. In Hildebrand, the claimant quit his job due to a disagreement 

with his employer on the same day that he reported to work with a note from his doctor 

restricting him to modified duty. Hildebrand at ¶ 1. Because his departure from work 

was not causally related to his injury, he was not entitled to TTD compensation. Id. at 

¶ 22. 

{¶ 11} Whether a claimant was receiving TTD compensation at the time of the 

separation is not the dispositive issue; rather, the issue is whether the claimant was totally 

disabled when the discharge occurred. In Omnisource, Reitter Stucco, and Pretty Prods., 

the Supreme Court set forth the principle that "a claimant remains eligible for TTD 

compensation if the claimant is still disabled at the time of the claimant's departure from 

his employer, regardless of whether the departure is voluntary or involuntary." State ex 

rel. Corman v. Allied Holdings, Inc., 10th Dist. No. 10AP-38, 2010-Ohio-5153, ¶ 9. Thus, 

even if an employment termination is considered voluntary, "eligibility for temporary 

total disability compensation remains if the claimant was still disabled at the time the 

discharge occurred." Reitter Stucco at ¶ 10; see Omnisource at ¶ 10 ("[a] claimant who is 

already disabled when terminated is not disqualified from temporary total disability 

compensation"). 

{¶ 12} Here, Parler submitted evidence that she was totally disabled beginning 

March 31, 2014, weeks before she was terminated for failing to communicate with Manor 

Care regarding her status. Thus, as the magistrate determined, evidence in the record 

supported the commission's determination that Parler's absence from the workforce was 

due to her work-related injury, not her failure to communicate with Manor Care regarding 

her absence. Accordingly, we find the magistrate properly applied Omnisource and 

Reitter Stucco to the facts of this case. 

IV. Disposition 

{¶ 13} Following our independent review of the record pursuant to Civ.R. 53, we 

find the magistrate correctly determined Manor Care is not entitled to the requested writ 

of mandamus. The magistrate properly applied the pertinent law to the salient facts. 
No. 15AP-698 6 

Accordingly, we adopt the magistrate's decision as our own, including the findings of fact 

and conclusions of law contained therein. We, therefore, overrule Manor Care's 

objections to the magistrate's decision and deny its request for a writ of mandamus. 

Objections overruled; 

writ of mandamus denied. 

DORRIAN, P.J., and BROWN, J., concur. 

 

 
No. 15AP-698 7 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State of Ohio ex rel. Manor Care, Inc., : 

 

 Relator, : 

 

v. : No. 15AP-698 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Tonisha S. Parler, 

 : 

 Respondents. 

 : 

 

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

Rendered on April 26, 2016

 

Kegler, Brown, Hill + Ritter Co., LPA, Randall W. Mikes, 

David M. McCarty, and Katja Garvey, for relator. 

Michael DeWine, Attorney General, and Andrew J. Alatis, for 

respondent Industrial Commission of Ohio. 

Agee, Clymer, Mitchell & Portman, Douglas P. Koppel, 

C. Russell Canestraro, Robert M. Robinson, Eric B. Cameron 

and Katherine E. Ivan, for respondent Tonisha S. Parler. 

 

IN MANDAMUS 

 

{¶ 14} Relator, Manor Care, Inc., has filed this original action requesting that this 

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

("commission") to vacate its award of temporary total disability ("TTD") compensation 

awarded to respondent Tonisha S. Parler ("claimant"), and ordering the commission to 
No. 15AP-698 8 

find that claimant is not entitled to that compensation because she voluntarily 

abandoned her employment. 

Findings of Fact: 

{¶ 15} 1. Claimant sustained a work-related injury on March 3, 2014, and her 

workers' compensation claim was originally allowed for "lumbosacral joint 

sprain/strain." 

{¶ 16} 2. Claimant was released to return to work with restrictions as of 

March 13, 2014. 

{¶ 17} 3. On March 27, 2014, claimant was seen at the emergency room 

complaining of persistent low back pain. Claimant was given a prescription for 

Percocet, instructed that she could use Robaxin as a muscle relaxant, and that she was 

off work "until cleared by occupational health or physical therapy." 

{¶ 18} 4. Claimant was seen at Work Health the next day, March 28, 2014. 

Claimant was released to return to restricted work, no lifting over five pounds, and no 

driving while on pain medication. It was further indicated that an MRI had been 

ordered. 

{¶ 19} 5. Apparently, claimant returned to work on March 31, 2014; however, she 

forgot to bring her work restrictions with her. As such, claimant was sent home after 

verbally agreeing that she would return to work the next day with her restrictions. 

{¶ 20} 6. That same day, March 31, 2014, claimant saw Daniel E. Wills, D.C., and 

he certified that she was unable to return to work before April 18, 2014. 

{¶ 21} 7. It is undisputed that claimant did not return to work. 

{¶ 22} 8. In a letter dated April 11, 2014, Ada Farley, the human resources 

director for relator, wrote to claimant asking her to complete certain paperwork 

necessary to apply for a leave of absence. Specifically, that letter provides: 

We have made repeated attempts to get a hold of you since 

4/1/2014, but have been unsuccessful in reaching you. When 

you arrived to work on 3/31/2014, you agree[d] to leave 

because we did not have updated restrictions from your 

physician. The last records we had were from your visit to 

Mt. Carmel East Emergency room on 3/27/2014. During 

your visit there, Dr. Kenyon recommended "no work until 

cleared by occ. Health or physical therapy." You had a follow 
No. 15AP-698 9 

up appointment on 3/28/2014 with Work Health the 

following day. Those were the restrictions I needed in your 

file in order for you to return to work. You stated to me in 

person on 3/31/2014 that you had forgot them at home, but 

you would bring them in on Tuesday, 4/1/2014, when you 

returned to work. We had an agreement that you would work 

Tuesday─Friday that week instead of Monday─Thursday. On 

4/1/2014 you did not show up to work, nor did you contact 

us to tell us you weren't coming in. Due to this we are 

offering you a personal LOA. Enclosed you will find the 

paperwork necessary to apply for a personal LOA. Your 

physician is required to fill out Section C, as your time off is 

related to a serious health condition that makes you unable 

to perform the essential functions of your job. Please return 

the completed forms to HR by 5/2/2014. If we do not receive 

your completed paperwork by May 2nd 2014 we will assume 

you have resigned your position and will move forward with 

the termination process at that time. 

{¶ 23} 9. An MRI taken April 22, 2014 showed that claimant had a disc 

herniation at L4-5. This condition would later be allowed in her workers' compensation 

claim. 

{¶ 24} 10. A fax dated May 2, 2014 from Ms. Farley indicated claimant had been 

terminated that day because she had failed to provide leave of absence paperwork by the 

deadline imposed: May 2, 2014. 

{¶ 25} 11. On June 2, 2014, claimant filed a C-86 motion requesting TTD 

compensation beginning March 31, 2014. Claimant attached a Medco-14 signed by Dr. 

Wills and dated May 13, 2014 certifying that she was temporarily unable to return to 

work from March 31 to August 31, 2014. 

{¶ 26} 12. An independent medical evaluation was performed by David K. Halley, 

M.D. In his July 18, 2014 report, Dr. Halley identified the then allowed condition of 

lumbosacral joint sprain/strain, discussed the history and treatment related to the 

injury, and provided his physical findings on examination. Dr. Halley opined that no 

further treatment was necessary for the allowed condition and that claimant had 

reached maximum medical improvement ("MMI"). 
No. 15AP-698 10 

{¶ 27} 13. Claimant's request for TTD compensation was heard before a district 

hearing officer ("DHO") on September 10, 2014. The DHO denied the request based on 

a finding that claimant had voluntarily abandoned her employment with relator. 

{¶ 28} 14. Claimant appealed and the matter was heard before a staff hearing 

officer ("SHO") on October 21, 2014. The SHO vacated the prior DHO order and 

awarded claimant TTD compensation as follows: 

Temporary total disability compensation is granted from 

03/31/2014 through 07/17/2014. Disability is based on the 

03/31/2014 slip and the 05/13/2014 Medco-14 Physician's 

Report of Work Ability from Daniel Wills, D.C. and the 

04/01/2014, 05/22/2014, and 07/02/2014 treatment 

records from Chiropractic Care Inc. 

The allowed condition is found to have reached maximum 

medical improvement as of 07/18/2014 based on the 

07/18/2014 report from David Halley, M.D., and based on 

this temporary total disability compensation based on the 

currently allowed conditions is denied from 07/18/2014 

through 10/20/2014. 

{¶ 29} Thereafter, the SHO addressed relator's voluntary abandonment argument 

and rejected it, stating: 

The Employer's argument of a voluntary abandonment is not 

found persuasive. The 04/11/2014 letter from Ada Farley 

documents that the Injured Worker meet [sic] with the 

Employer on 03/31/2014 and indicates the issue that led to 

termination was her failure to bring in medical evidence of 

restrictions as of 04/01/2014 and later. The 05/02/2014 fax 

from Ada Farley shows that the termination did not occur 

until 05/02/2014. The 03/31/2014 slip and 05/13/2014 

Medco-14 form from Daniel Wills, D.C., both indicate that he 

removed the Injured Worker from all work as of 03/31/2014 

and certified such through 08/30/2014. Since the Injured 

Worker was removed from all work and was no longer on 

light duty restrictions as of 03/31/2014, 04/01/2014, and 

05/02/2014, the holdings in OmniSource Corp. v. Industrial 

Commission (2007), 113 O.S.3d 103 and Reitter Stucco, 

Inc. v. Industrial Commission, Slip Opinion No. 2008-Ohio499, that a person cannot voluntarily abandon a job if they 

are totally disabled, are found to apply and no voluntary 

abandonment is found. 
No. 15AP-698 11 

Because the case of Jacobs v. Industrial Commission (2101) 

[sic], 139 O.S.3d 86, involved a situation where the Injured 

Worker was not removed from all work but was released to 

work with restrictions, and in the present case the Injured 

Worker was removed from all work, Jacobs is not found to 

apply. 

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

November 15, 2014. 

{¶ 31} 16. Relator filed a request for reconsideration which was heard before the 

commission on February 3, 2015. Ultimately, the commission denied relator's request 

for reconsideration and stated that the SHO order remained in full force and effect. 

{¶ 32} 17. Following a hearing before a DHO on February 6, 2015, claimant's 

claim was additionally allowed for disc herniation at L4-5. 

{¶ 33} 18. Relator's appeal was heard before an SHO on March 23, 2015. The 

SHO affirmed the prior DHO order and claimant's claim has been allowed for disc 

herniation at L4-5. 

{¶ 34} 19. Claimant filed a request for TTD compensation. 

{¶ 35} 20. Ultimately, claimant's request for TTD compensation was granted 

based on the newly allowed condition of disc herniation at L4-5 beginning July 19, 2014 

and continuing. 

{¶ 36} 21. Relator's subsequent appeal was refused by order of the commission 

mailed May 7, 2015. 

{¶ 37} 22. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 38} Relator argues that the commission abused its discretion by awarding TTD 

compensation to claimant and the commission should have found that claimant 

voluntarily abandoned her employment with relator and was, as such, not eligible for 

TTD compensation. For the reasons that follow, the magistrate finds that the 

commission did not abuse its discretion here. 

{¶ 39} 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 
No. 15AP-698 12 

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

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

{¶ 40} 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). 

{¶ 41} 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). 

{¶ 42} Relator argues that the present case is controlled by the Supreme Court of 

Ohio's decision in State ex rel. Jacobs v. Indus. Comm., 139 Ohio St.3d 86, 2014-Ohio1560. Wanda Jacobs sustained a work-related injury on September 6, 2006 while 

working for Cenveo, a self-insured employer. Jacobs was treated at the emergency room 

on September 7, 2006, at which time she was released to return to light-duty work as of 

October 2, 2006. 

{¶ 43} Cenveo accommodated the light-duty work restrictions when Jacobs 

returned to work on October 2, 2006; however, Jacobs complained of pain and, after 
No. 15AP-698 13 

about one hour, indicated that she could not continue. Jacobs told Cenveo that she 

intended to follow-up with her doctor. 

{¶ 44} On October 17, 2006, Cenveo's human resources manager sent Jacobs a 

letter indicating that if they did not hear from her by October 23, 2006, her employment 

would be terminated. Jacobs did not contact Cenveo and was discharged effective 

October 23, 2006. 

{¶ 45} On March 19, 2007, Jacobs filed a motion for TTD compensation 

beginning December 30, 2006. The commission denied her request for TTD 

compensation on the basis that she had been terminated from her employment on 

October 23, 2006 for violating the company's absenteeism policy and failing to accept 

the light-duty work offered. The commission concluded that Jacobs had abandoned her 

employment and that abandonment barred the payment of TTD compensation. 

{¶ 46} Jacobs filed a mandamus complaint. This court and the Supreme Court 

both denied Jacobs' request for a writ of mandamus specifically noting that, when 

Jacobs left, she failed to present Cenveo with any medical evidence that the position was 

beyond her capability. Further, it was specifically noted that Jacobs left after one hour 

and indicated she was going to consult with her physician. There was no evidence that 

she did so. Instead, Jacobs simply did not return to work, and then requested TTD 

compensation beginning December 30, 2006, two months after she was terminated. 

{¶ 47} In the present case, claimant was released to return to work with 

restrictions on March 31, 2014. When she reported to work that day, she did not bring 

her new restrictions with her, but promised to bring them the next day. That same day, 

March 31, 2014, claimant saw her doctor and was taken off work until April 18, 2014. 

Thereafter, claimant had an MRI which showed that her condition had indeed 

worsened. 

{¶ 48} Unlike Jacobs, who left work and did not see a doctor for months, claimant 

saw her doctor immediately. Unlike Jacobs, whose doctor certified that she was 

temporarily unable to return to her former position of employment two months after the 

day she left, claimant's treating physician certified that she was unable to return to any 

work with restrictions on the very day she left work. The two cases are not similar 

factually and the reasoning from Jacobs does not apply here. Where as here, there is 
No. 15AP-698 14 

some evidence in the record upon which the commission relied indicating that claimant 

was unable to return to work at the time she allegedly abandoned her employment. The 

commission is permitted to find that her absence from the workplace was, in fact, due to 

the work-related injury. Consistent with the decisions in State ex rel. OmniSource 

Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, and State ex rel. Reitter 

Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499, a person cannot 

voluntarily abandon a job if they are totally disabled at the time of the alleged 

abandonment. 

{¶ 49} Finding that there is some evidence in the record on which the 

commission could rely to find that claimant's departure from the workforce was related 

to her work-related injury, it is the magistrate's decision that the commission did not 

abuse its discretion in finding that she did not voluntarily abandon her employment 

with relator and awarding her TTD compensation. As such, 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).