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

T HE S TATE EX REL . A KRON P AINT & V ARNISH , I NC ., A PPELLEE , v. G ULLOTTA

ET AL ., A PPELLANTS . [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 jurisdic tion to renew payment of temporary total disability benefits—Allowan ce 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.)
A PPEAL from the Court of Appeals for Franklin County, No. 09AP-492, 2010-Ohio-1321.

__________________ L UNDBERG S TRATTON , J. {¶ 1} Appellants, Guiseppe Gullotta a nd the Industrial Commission of Ohio (“commission”), have filed an appeal of right from a judgment of the Franklin County Court of Appeals orderi ng the commission to vacate its order of July 16, 2008, awarding Gullotta compensa tion for temporary total disability (“TTD”). The court of appeals determined that the commission had abused its discretion when it awarded TTD comp ensation based on new and changed circumstances from the commission’s previ ous 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 exer cise of continuing jurisdiction under R.C. 4123.52 and that Gullotta was ineligib le to receive TTD compensation forS UPREME C OURT OF O HIO

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. (“AP V”). 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, le sser 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 employ er 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 causall y related to his industrial injury, but rather was due to his refusal to return to his light-duty job or to accept the suitableJanuary Term, 2012

3 alternative employment that had been offe red 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 no t 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 fro m 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 th at the commission’s previous order of November 29, 2007, had determined that Gu llotta’s resignation in April 2007 was not a voluntary abandonment of employme nt 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 medi cal 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 refu sal of the work made available by APV within his physical capabilities. The magistrate further concluded that even ifS UPREME C OURT OF O HIO

4 there were medical evidence that Gullo tta’s condition had worsened since his resignation, he “has lost no wages durin g 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 requ ested; 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 relato r 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 improve ment. 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 whenJanuary 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 appella te court’s decision that the commission improperly exercised continuing jurisdic tion 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 medi cal condition as evidence of new and changed circumstances justifying the exer cise 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 comp ensation. The magistrate further concluded that even if the medical evidence submitted showed new and changed circumstances for the purpose of con tinuing 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 continui ng 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).S UPREME C OURT OF O HIO

6 {¶ 17} We agree. Although the worsening of an existing medical condition or a newly allowe d medical condition often se rves 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 unjustif iably 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 be nefits is to compensate for loss of earnings). Thus, the commission abus ed its discretion when it exercised continuing jurisdiction a nd 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 pres ented new physical restrictions and
that APV did not offer alte rnative 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 ma de available another light-duty position similarly consistent with his medical restrictions as they then existed. Gullotta refused both positions. The additionally allowed medical condition, recognizedJanuary Term, 2012

7 since his resignation, does not change th e 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 circumstan ces 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 j ob 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 ex ercised continuing jurisdiction. Thus, we affirm the judgment of the court of appeals. Judgment affirmed.
O’C ONNOR , C.J., and P FEIFER , O’D ONNELL , L ANZINGER , C UPP , and
M C G EE B ROWN , 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 Guis eppe Gullotta. Michael DeWine, Attorney General, and Gerald H. Waterman and Elise Porter, Assistant Attorneys General, fo r appellant Industrial Commission of Ohio.

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