[Cite as State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, 131 Ohio St.3d 231, 2012-Ohio542.] 

THE STATE EX REL. AKRON PAINT & VARNISH, INC., APPELLEE, v. GULLOTTA 

ET AL., APPELLANTS. 

[Cite as State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, 

131 Ohio St.3d 231, 2012-Ohio-542.] 

Workers’ compensation—R.C. 4123.52—Continuing jurisdiction—Commission 

erred in exercising continuing jurisdiction to renew payment of temporary 

total disability benefits—Allowance of additional condition does not 

constitute new or changed circumstances sufficient to justify exercise of 

continuing jurisdiction when claimant’s loss of earnings was caused by 

refusal of suitable light-duty work rather than by industrial injury.

(No. 2010-0636—Submitted November 15, 2011—Decided February 15, 2012.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 09AP-492, 2010-Ohio-1321. 

__________________ 

 LUNDBERG STRATTON, J.

{¶ 1} Appellants, Guiseppe Gullotta and the Industrial Commission of 

Ohio (“commission”), have filed an appeal of right from a judgment of the 

Franklin County Court of Appeals ordering the commission to vacate its order of 

July 16, 2008, awarding Gullotta compensation for temporary total disability 

(“TTD”). The court of appeals determined that the commission had abused its 

discretion when it awarded TTD compensation based on new and changed 

circumstances from the commission’s previous order of November 29, 2007, that 

denied TTD benefits. 

{¶ 2} For the reasons set forth, we hold that Gullotta did not present 

evidence to justify the commission’s exercise of continuing jurisdiction under 

R.C. 4123.52 and that Gullotta was ineligible to receive TTD compensation for 
SUPREME COURT OF OHIO

2 

the period requested because his injury was not the reason that he could not return 

to his former position of employment. Consequently, the court of appeals 

correctly concluded that the commission had abused its discretion when it 

awarded TTD to Gullotta. 

Facts and Procedural History 

{¶ 3} In January 2007, Gullotta injured his back while working for 

appellee, Akron Paint & Varnish, Inc. (“APV”). His industrial claim was allowed 

for lumbar sprain, and he received TTD compensation for several weeks before 

returning to light-duty work consistent with his doctor’s medical restrictions. 

{¶ 4} On March 14, 2007, Gullotta’s then treating physician, Dr. Stephen 

A. Lohr, found that Gullotta’s physical capabilities had improved and reduced his 

work restrictions. Based on the new, lesser restrictions, APV began to increase 

Gullotta’s job duties. Gullotta saw Dr. Lohr again on April 11, 2007, but his 

work restrictions remained the same. 

{¶ 5} Gullotta complained to his employer about his job duties, and on 

April 16, 2007, he met with Michael Summers, a vice president at APV. 

Summers offered him another position within his physical limitations. Gullotta 

told Summers that he did not want that job either, and he immediately resigned 

and left the premises. 

{¶ 6} Four months later, Gullotta submitted another request to the 

commission for TTD compensation for April 24 through November 4, 2007. A 

district hearing officer denied the request, concluding that Gullotta had 

voluntarily abandoned his employment and thereby removed himself from the 

workforce. On November 29, 2007, the staff hearing officer vacated that order 

and entered a new order, still denying benefits, but for a different reason. The 

staff hearing officer determined that the period of disability for which Gullotta 

was requesting compensation was not causally related to his industrial injury, but 

rather was due to his refusal to return to his light-duty job or to accept the suitable 
January Term, 2012 

3

alternative employment that had been offered by APV. The staff hearing officer 

expressly noted that Gullotta was medically unable to return to his former position 

of employment at the time he quit, so his resignation could not be termed a 

voluntary abandonment. Gullotta did not appeal, and the November 29, 2007 

order became final. 

{¶ 7} In March 2008, Gullotta’s claim was additionally allowed for 

aggravation of preexisting hypertrophy. As a result, Gullotta filed a new motion 

for TTD benefits, along with a report from his treating physician, Dr. Brent A. 

Ungar. A district hearing officer denied the request because Gullotta had refused 

a light-duty job and that he had failed to present evidence that his additionally 

allowed medical condition resulted in any different work restrictions. 

{¶ 8} On July 16, 2008, a staff hearing officer reversed. The staff 

hearing officer determined that Gullotta’s newly allowed medical condition was 

evidence of new and changed circumstances. The hearing officer determined that 

Gullotta’s medical condition had worsened and that this change warranted 

payment of TTD compensation for November 5, 2007, through May 16, 2008. 

The staff hearing officer emphasized that the commission’s previous order of 

November 29, 2007, had determined that Gullotta’s resignation in April 2007 was 

not a voluntary abandonment of employment that would preclude future TTD 

benefits, since he was unable to return to his former position then. 

{¶ 9} APV filed a complaint in mandamus in the court of appeals, 

alleging that the commission had abused its discretion. The matter was referred to 

a magistrate, who agreed that the commission had abused its discretion when it 

relied on the additionally allowed medical condition as a new and changed 

circumstance since the previous order of November 29, 2007. Instead, the 

magistrate concluded that Gullotta had not submitted evidence that would justify 

renewed TTD in light of his previous refusal of the work made available by APV 

within his physical capabilities. The magistrate further concluded that even if 
SUPREME COURT OF OHIO

4 

there were medical evidence that Gullotta’s condition had worsened since his 

resignation, he “has lost no wages during the period of claimed disability for 

which he can be compensated.” 

{¶ 10} The court of appeals adopted the magistrate’s findings. The 

appellate court issued a writ of mandamus ordering the commission to vacate the 

July 16, 2008 order and to enter an order denying TTD compensation. 

Standard of Review 

{¶ 11} “For mandamus to issue, it must be demonstrated that: (1) the 

relator has a clear legal right to the relief requested; (2) respondents are under a 

clear legal duty to perform the acts requested; and (3) relator has no plain and 

adequate remedy at law.” State ex rel. Stafford v. Indus. Comm., 47 Ohio St.3d 

76, 77-78, 547 N.E.2d 1171 (1989). The relator has the burden to show that the 

commission abused its discretion by entering an order that is not supported by any 

evidence in the record. State ex rel. Bradley v. Indus. Comm., 77 Ohio St.3d 239, 

242, 673 N.E.2d 1275 (1997); State ex rel. Hutton v. Indus. Comm., 29 Ohio St.2d 

9, 278 N.E.2d 34 (1972). 

Legal Analysis 

{¶ 12} “A temporary total disability is one that prevents a return to the 

former position of employment.” State ex rel. Johnson v. Rawac Plating Co., 61 

Ohio St.3d 599, 600, 575 N.E.2d 837 (1991). Compensation for TTD terminates 

when the employee returns to work, is medically capable of returning to work, or 

has reached maximum medical improvement. R.C. 4123.56(A). Compensation 

for TTD is also barred when “work within the physical capabilities of the 

employee is made available by the employer or another employer.” Id.

{¶ 13} If an employee’s TTD compensation is terminated, the employee 

may seek renewed compensation if the employee again becomes temporarily 

totally disabled. Id. In such a case, the commission may exercise continuing 

jurisdiction and may modify or change its former findings or orders when 
January Term, 2012 

5

justified. R.C. 4123.52(A). That is, the commission may reopen the issue of 

eligibility for TTD compensation if there are new and changed circumstances.1 

{¶ 14} At issue here is the commission’s July 16, 2008 order, in which a 

staff hearing officer granted Gullotta TTD compensation for a period of time after 

he left APV. We review the appellate court’s decision that the commission 

improperly exercised continuing jurisdiction in light of the commission’s prior 

order on November 29, 2007. 

{¶ 15} In the July 16, 2008 order, the staff hearing officer expressly relied 

on Gullotta’s additionally allowed medical condition as evidence of new and 

changed circumstances justifying the exercise of continuing jurisdiction. The 

hearing officer stated that this change was a worsening of Gullotta’s medical 

condition that warranted the payment of TTD compensation. Regarding the 

commission’s prior order of November 29, 2007, the staff hearing officer stated 

that Gullotta had quit a light-duty job that had been within his medical 

restrictions, but that this resignation did not amount to a voluntary abandonment, 

because he had been unable to return to his former position at the time he 

resigned. 

{¶ 16} The court of appeals agreed with the magistrate’s conclusion that 

Gullotta had not presented evidence of new and changed circumstances from the 

November 29, 2007 order denying TTD compensation. The magistrate further 

concluded that even if the medical evidence submitted showed new and changed 

circumstances for the purpose of continuing jurisdiction, it “cannot alter the 

previously determined fact that claimant has no job to return to” as a result of 

Gullotta’s unjustified refusal to accept the other light-duty work offered. 

 

1. The other prerequisites for exercising continuing jurisdiction are fraud, clear mistake of fact, 

clear mistake of law, and error by an inferior tribunal. State ex rel. Nicholls v. Indus. Comm., 81 

Ohio St.3d 454, 459, 692 N.E.2d 188 (1998). 
SUPREME COURT OF OHIO

6 

{¶ 17} We agree. Although the worsening of an existing medical 

condition or a newly allowed medical condition often serves as new and changed 

circumstances justifying the exercise of continuing jurisdiction to modify a 

previous order, see State ex rel. Bing v. Indus. Comm., 61 Ohio St.3d 424, 427, 

575 N.E.2d 177 (1991); State ex rel. Josephson v. Indus. Comm., 101 Ohio St.3d 

195, 2004-Ohio-737, 803 N.E.2d 799, in this case, the previous order denying 

TTD was not based on medical evidence but rather on the statutory bar of 

compensation when a claimant unjustifiably refuses light-duty work made 

available by the employer. 

{¶ 18} Here, Gullotta presented no evidence that his employment situation 

had changed. With no loss of wages, an award of TTD compensation is not 

warranted. State ex rel. Glenn v. Indus. Comm., 122 Ohio St.3d 483, 2009-Ohio3627, 912 N.E.2d 592, ¶ 7 (the purpose of TTD benefits is to compensate for loss 

of earnings). Thus, the commission abused its discretion when it exercised 

continuing jurisdiction and ordered TTD compensation. 

{¶ 19} Gullotta admits that his prior request for TTD benefits was barred 

by his refusal to accept a suitable job. Nevertheless, he argues that the 

additionally allowed medical condition presented new physical restrictions and 

that APV did not offer alternative employment consistent with his new physical 

restrictions. He contends that APV must make a new good-faith offer of 

employment taking into account his new work restrictions caused by the new 

condition—one that was recognized after he no longer worked at APV. 

{¶ 20} When Gullotta resigned from APV, his employer had placed him 

in a light-duty position consistent with his medical restrictions. When he 

complained about those duties, APV made available another light-duty position 

similarly consistent with his medical restrictions as they then existed. Gullotta 

refused both positions. The additionally allowed medical condition, recognized 
January Term, 2012 

7

since his resignation, does not change the fact that Gullotta unjustifiably refused 

light-duty work in April 2007. 

{¶ 21} Thus, we agree with the court of appeals that the commission 

abused its discretion when it determined that there was evidence to support a 

finding of new and changed circumstances since the November 2007 order. 

Nothing had changed that would affect the finding in that order that Gullotta had 

unjustifiably refused to do his light-duty job and also refused his employer’s offer 

of an alternative light-duty position. He presented no evidence of circumstances, 

new or changed, that would demonstrate a loss of wages as a result of TTD. The 

commission abused its discretion when it exercised continuing jurisdiction. Thus, 

we affirm the judgment of the court of appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

__________________ 

Richard L. Williger Co., L.P.A., and Richard L. Williger, for appellee. 

Philip J. Fulton Law Office, Ross R. Fulton, and Philip J. Fulton, for 

appellant Guiseppe Gullotta. 

Michael DeWine, Attorney General, and Gerald H. Waterman and Elise 

Porter, Assistant Attorneys General, for appellant Industrial Commission of Ohio. 

______________________