[Cite as State ex rel. Cummins v. Lee, 2014-Ohio-5296.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Cleveland Cummins, : 

 

 : 

 Relator, 

 : 

v. No. 14AP-10 

 : 

Charles Kyun Lee Budget Host (REGULAR CALENDAR) 

Town Center Motel and The : 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on November 26, 2014 

 

Rendigs, Fry, Kiely & Dennis, L.L.P., and Arthur E. Phelps, 

Jr., for relator. 

Michael DeWine, Attorney General, and Eric J. Tarbox, for 

respondent The Industrial Commission of Ohio. 

 

IN MANDAMUS 

TYACK, J. 

{¶ 1} Cleveland Cummins filed this action in mandamus, seeking a writ to compel 

the Industrial Commission of Ohio ("commission") to grant him temporary total disability 

("TTD") compensation. 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated 

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's 

decision, appended hereto, which contains detailed findings of fact and conclusions of 
No. 14AP-10 2 

law. The magistrate's decision includes a recommendation that we grant a writ 

compelling the commission to revisit the merits of Cummins' application for TTD 

compensation. 

{¶ 3} No party has filed objections to the magistrate's decision. The decision is 

now before the court for review. 

{¶ 4} No error of law or fact is present on the face of the magistrate's decision. 

We therefore adopt the findings of fact and conclusions of law contained in the 

magistrate's decision. As a result, we grant a writ of mandamus compelling the 

commission to vacate its order denying TTD compensation for Cleveland Cummins and 

compelling the commission to address the merits of Cummins' application for TTD 

compensation without relying on State ex rel. Eckerly v. Indus. Comm., 105 Ohio St.3d 

428, 2005-Ohio-2587. 

Writ granted. 

BROWN and LUPER SCHUSTER, JJ., concur. 

 

 
No. 14AP-10 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Cleveland Cummins, : 

 

 : 

 Relator, 

 : 

v. No. 14AP-10 

 : 

Charles Kyun Lee Budget Host (REGULAR CALENDAR) 

Town Center Motel and The : 

Industrial Commission of Ohio, 

 : 

 Respondents. 

 : 

 

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

Rendered on July 31, 2014

 

Rendigs, Fry, Kiely & Dennis, L.L.P., and Arthur E. Phelps, 

Jr., for relator. 

Michael DeWine, Attorney General, and Eric J. Tarbox, for 

respondent The Industrial Commission of Ohio. 

 

IN MANDAMUS 

{¶ 5} Relator, Cleveland Cummins, 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 his application for temporary total 

disability ("TTD") compensation, and ordering the commission to find that he is entitled 

to that award of compensation. 
No. 14AP-10 4 

Findings of Fact: 

{¶ 6} 1. Relator was employed at Budget Host Town Center Motel in Cincinnati, 

Ohio, when, on October 16, 2006, he was severely injured when he was shot in the back 

during a robbery attempt. As a result, relator's workers' compensation claim has been 

allowed for the following conditions: 

Open wound anterior abdomen; traumatic shock; colon 

injury-open; peritoneum injury-open; liver injury with 

wound cavity; right femoral neuropathy; prolonged post 

traumatic stress. 

{¶ 7} 2. Relator received TTD compensation based on his allowed physical 

conditions from October 17, 2006 through January 25, 2009, when his treating physician 

agreed that his allowed physical conditions had reached maximum medical improvement 

("MMI"). 

{¶ 8} 3. Relator was examined by Michael A. Murphy, Ph.D., who opined in his 

August 11, 2009 report that relator was suffering from post-traumatic stress disorder 

("PTSD") as a direct result of the work-related injury, that he would need psychotherapy 

not less than two visits per month for a period of nine to ten months, and should consider 

a referral to rehabilitation in four to five months. 

{¶ 9} 4. In a letter dated October 30, 2009, Jennifer J. Stoeckel, Ph.D., requested 

authorization for 12 visits on a bi-weekly basis over the course of 6 months. 

{¶ 10} 5. On December 1, 2009, Dr. Stoeckel completed a C-84 indicating that she 

last saw relator on November 30, 2009 and certifying that he was temporarily and totally 

disabled from October 2009 through February 2010. 

{¶ 11} 6. Relator received TTD compensation for his allowed psychological 

condition for the period October 29, 2009 through February 27, 2010. His allowed 

psychological condition was not found to have reached MMI. TTD compensation ceased 

when relator stopped filing C-84s. 

{¶ 12} 7. A significant gap in treatment followed. During this period, there is no 

evidence relator received any treatment, looked for work or worked, or that he was 

capable of working. 
No. 14AP-10 5 

{¶ 13} 8. On January 7, 2011, Dr. Stoeckel and Clinton B. Symons, a treating 

therapist, provided the Ohio Bureau of Workers' Compensation ("BWC") with a progress 

summary and treatment plan indicating that one of the goals was to "re-establish a 

therapeutic relationship between patient and therapist." 

{¶ 14} 9. Dr. Stoeckel completed a C-9 dated January 10, 2011 requesting biweekly therapy sessions for the next six months. That request was approved by the 

employer's managed care organization ("MCO") on January 12, 2011. 

{¶ 15} 10. On February 28, 2011, Dr. Stoeckel completed a C-84 indicating that 

she last saw relator on January 7, 2011 and certifying that he was temporarily and totally 

disabled from February 28, 2010 through an estimated return-to-work date of March 28, 

2011. 

{¶ 16} 11. The record contains a C-9 from Dr. Stoeckel requesting a psychological 

consult and testing. The employer's MCO neither approved nor rejected this claim and 

requested further information. 

{¶ 17} 12. The record also includes the November 20, 2012 letter from Dr. 

Stoeckel asking why the employer's MCO was pending the requested C-9. In that letter, 

Dr. Stoeckel noted that relator was last seen in her office on January 7, 2011, that he had 

discontinued treatment prematurely, reportedly due to transportation problems, and that 

relator was requesting to reinitiate services through her office for ongoing related 

symptomatology. Dr. Stoeckel further noted that: 

We do not have any treatment notes beyond the 11-7-11 [sic]

date to provide you since he has been absent from 

intervention since that time. 

{¶ 18} 13. On April 11, 2013, Dr. Stoeckel completed a C-9 requesting bi-weekly 

counseling for four months. In an April 12, 2013 letter, Dr. Stoeckel provided additional 

information, stating: 

As you are aware, he has a claim allowance for Posttraumatic 

Stress Disorder (309.81) associated with a traumatic work 

injury sustained 10-16-06. He previously treated at this 

office, but had not been seen since 2-3-10 due to 

transportation issues. Mr. Cummins presented to the office 

3-26-13 with ongoing complaints of impaired sleep, avoidant 

behavior, current nightmares of the traumatic injury, 
No. 14AP-10 6 

anxiety, anhedonia, hyperarousal, flashbacks, a sense of 

impending doom, and general fearfulness. On the BAI 

administered at that time, Mr. Cummins achieved a score of 

35, which places him at the severe range for an Anxiety 

Disorder. Since his last psychotherapy visit in 2010, he has 

had no mental health intervention. He has deteriorated and 

requires immediate care. He reports resolution of his 

transportation issues, appears to be invested in treatment, 

and denial of services would be detrimental to his 

psychological well being and status. 

{¶ 19} 14. The employer's MCO neither approved nor rejected this claim and 

instead forwarded the matter to the BWC for determination. 

{¶ 20} 15. Dr. Stoeckel completed a Medco-14 dated April 16, 2013 certifying that 

relator was temporarily and totally disabled from March 26 through June 26, 2013. 

{¶ 21} 16. The record contains another C-9 from Dr. Stoeckel dated May 21, 2013 

asking for a psychological consult. 

{¶ 22} 17. On May 23, 2013, the employer's MCO dismissed Dr. Stoeckel's C-9 for 

the following reasons: 

There is no supporting medical evidence for inactive claims 

or the medical evidence is dated more than 60 sixty days 

prior to date of reactivation request. 

{¶ 23} 18. On June 17, 2013, Dr. Stoeckel completed another Medco-14 certifying 

that relator was unable to return to any work from June 26 through September 26, 2013. 

{¶ 24} 19. On May 21, 2013, Dr. Stoeckel again, requested a consult. 

{¶ 25} 20. Relator was evaluated by Roberto Madigral, Ph.D. In his July 10, 2013 

report, Dr. Madigral opined that relator's PTSD had never resolved, that he needed the 

requested psychotherapy to address his PTSD symptoms, that the services requested were 

reasonably necessary and appropriate for the treatment of his allowed conditions, and 

that the cost of such treatment was medically reasonable. 

{¶ 26} 21. In an order mailed July 25, 2013, the BWC informed relator that his 

claim was being reactivated, stating: 

The following decision was made by the Bureau of Workers' 

Compensation (BWC). 
No. 14AP-10 7 

BWC is reactivating this claim. We have determined a causal 

relationship exists between the original injury and current 

incident, which has prompted the medical treatment request. 

The request for treatment filed on 07-03-13 is allowed for 

Psycho Mod Consult (1 visit). 

BWC will pay medical benefits in accordance with our rules 

and guidelines. 

This decision is based on: 

The examination done by Dr. Madrigal 07-03-13 [sic].

{¶ 27} 22. Thereafter, Dr. Stoeckel renewed her request for a psychological 

consultation which was approved by the BWC. 

{¶ 28} 23. In an August 19, 2013 progress summary and treatment plan note, Dr. 

Stoeckel indicated that relator had made moderate progress in his recent psychotherapy 

sessions, but continued to have great difficulty. Dr. Stoeckel requested additional therapy 

which was approved. 

{¶ 29} 24. Relator's motion seeking an award of TTD compensation beginning 

March 26, 2013 was heard before a district hearing officer ("DHO") on August 27, 2013. 

The DHO denied the request, stating: 

[T]he injured worker did not return to the workforce after 

02/27/2010 and based upon his testimony at the hearing he 

has no intent to re-enter the workforce. Therefore, the 

District Hearing Officer finds that the injured worker 

voluntarily abandoned the workforce. 

{¶ 30} 25. Relator's appeal was heard before a staff hearing officer ("SHO") on 

October 7, 2013. The SHO vacated the prior DHO order, but still denied the request for 

TTD compensation, stating: 

The Staff Hearing Officer notes that the Injured Worker's 

last day worked was 10/16/2006, the date of the injury. The 

Staff Hearing Officer finds that the Injured Worker did 

receive temporary total disability compensation for the 

physical allowed conditions from 10/17/2006 through 

01/25/2009 and for a psychological condition for the period 

of 10/29/2009 through 02/27/2010. The Staff Hearing 

Officer finds that the Injured Worker did not return to the 

workforce after 02/27/2010. The Staff Hearing Officer finds 
No. 14AP-10 8 

that the Injured Worker testified at the hearing that he was 

not capable from a physical standpoint and a mental 

standpoint to be employed at this time. The Staff Hearing 

Officer notes that the Injured Worker testified at the hearing 

that he wants to go back to work but currently feels he is not 

capable. 

The Staff Hearing Officer finds that a key component 

regarding temporary total disability compensation is the 

Injured Worker's work-related injuries must remove the 

Injured Worker from employment. The Staff Hearing Officer 

finds that this requirement for temporary total disability 

compensation can't be satisfied if an Injured Worker is not 

employed at the time beginning of the alleged period of 

disability. State ex rel. Eckerly v. Indus. Comm. 2005, 

105 Ohio St.3d 428. The Staff Hearing Officer finds that the 

Injured Worker has not provided any evidence that he has 

been employed since the date of injury of 10/16/2006 or 

tried to be employed. The Staff Hearing Officer finds that the 

Injured Worker's lack of action in trying to find employment 

shows that he has voluntarily abandoned the workforce, 

therefore precluding him from receiving temporary total 

disability compensation in this claim at this time. 

Therefore the Staff Hearing Officer finds the Injured Worker 

is not entitled to receive temporary total disability 

compensation for the period of 03/26/2013 through 

08/27/2013. This order is based upon the reasoning as 

stated above, the case of Eckerly v. Indus. Comm.

(2005) and the Injured Worker's testimony. 

(Emphasis sic.) 

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

October 30, 2013. 

{¶ 32} 27. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 33} For the reasons that follow, it is this magistrate's decision that this court 

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

{¶ 34} 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. 14AP-10 9 

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). 

{¶ 35} 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).

{¶ 36} 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). 

{¶ 37} In the present case, the commission cited State ex rel. Eckerly v. Indus. 

Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, as the sole rationale for determining that 

relator was not entitled to an award of TTD compensation. Relator asserts that the 

Eckerly decision does not support the commission's determination here and, for the 

reasons that follow, the magistrate agrees. 

{¶ 38} It is undisputed that a voluntary departure from employment precludes 

receipt of TTD compensation. State ex rel. Jones & Laughlin Steel Corp. v. Indus. 

Comm., 29 Ohio App.3d 145 (10th Dist.1985); State ex rel. Ashcraft v. Indus. Comm., 34 
No. 14AP-10 10 

Ohio St.3d 42 (1987). An involuntary departure, such as one that is injury induced, 

cannot bar TTD compensation. State ex rel. Rockwell Internatl. v. Indus. Comm., 40 

Ohio St.3d 44 (1988). 

{¶ 39} Shawn E. Eckerly sustained a work-related injury when he broke one of his 

right metacarpals and a workers' compensation claim was allowed. Eckerly was able to 

return to his employment; however, three months later, he was fired for unexcused 

absenteeism. The commission determined that Eckerly's discharge constituted a 

voluntary abandonment of his former position of employment pursuant to State ex rel. 

Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), and denied him TTD 

compensation. 

{¶ 40} Two years later, Eckerly's claim was allowed for the more significant 

conditions of reflex sympathetic dystrophy and chronic regional pain syndrome, right 

upper extremity. Eckerly sought a period of TTD compensation beginning in February 

2003. 

{¶ 41} The commission denied Eckerly's request for TTD compensation finding 

that there was no evidence that he was gainfully employed for any specific length of time 

between his termination in May 2001 and his request for TTD compensation beginning 

February 2003. Citing State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 

25, 2002-Ohio-5305, the commission stated that Eckerly was required to provide 

evidence that he had not abandoned the entire workforce and had returned to 

employment following his prior termination. 

{¶ 42} Ultimately, the Ohio Supreme Court upheld the commission's decision 

finding Eckerly was not entitled to an award of TTD compensation because he was not 

able to show that the industrial injury removed him from his job. As the Supreme Court 

stated, this requirement could not be satisfied by Eckerly because he had no job at the 

time of the alleged disability. 

{¶ 43} Relator asserts that his situation is distinguishable from Eckerly because, 

while Eckerly was able to return to employment following his work-related injury, relator 

was never released to return to work. 

{¶ 44} Although not on point, the magistrate finds State ex rel. MedAmerica 

Health Sys. Corp. v. Brammer, 10th Dist. No. 11AP-904, 2012-Ohio-4416, to be 
No. 14AP-10 11 

instructive. Sherry Brammer sustained a work-related injury and ultimately returned to 

work without restrictions; however, her symptoms increased and her physician of record 

again placed restrictions on her ability to work. Brammer's request for surgery was 

denied by her employer and, ultimately, Brammer was terminated for excessive 

absenteeism. Brammer would later testify that the majority of her absences were due to 

increased pain from the allowed conditions and the commission would ultimately 

conclude that her departure from the workforce was involuntary. 

{¶ 45} Brammer obtained other employment which she could perform within her 

restrictions. However, due to a non-work related injury to her back, Brammer was forced 

to leave this employment. 

{¶ 46} Because additional more substantial conditions had been allowed in her 

claim, Brammer sought authorization for surgery which her employer granted. Although 

her employer initially paid TTD compensation, her employer filed a motion to terminate 

that compensation and asked the commission to declare an overpayment. Her employer 

argued that Brammer was actually disabled due to a non-work related medical condition 

and was not working prior to surgery. The commission found Brammer's departure from 

her former position of employment was involuntary and that her return to other 

employment demonstrated that she had not abandoned the entire workforce and denied 

the employer's request. 

{¶ 47} The employer filed a mandamus action and argued that, pursuant to 

Eckerly, Brammer was not entitled to TTD compensation because she was not working at 

the time of surgery and, as such, had no wages to apply. This court disagreed and 

discussed the applicability of Eckerly, stating: 

Relator points to the court's statement in Eckerly that the 

key aspect in all TTD cases is that the industrial injury must 

remove the claimant from his or her job, and this 

requirement cannot be satisfied if the claimant had no job at 

the time of the alleged disability. * * * 

However, Eckerly is distinguishable in several respects. In 

Eckerly, the worker was permitted to return to his former 

position of employment with no restrictions but then 

voluntarily abandoned his former position when he was fired 

for unexcused absenteeism. He subsequently voluntarily 
No. 14AP-10 12 

abandoned the entire workforce. In the present case, 

claimant did not voluntarily leave her former position of 

employment with relator; rather, she was terminated for 

reasons related to the allowed conditions in her claim. * * * 

Thus, her departure from her employment with relator was 

involuntary, unlike the employee's voluntary abandonment 

in Eckerly.

In addition, Eckerly clearly does not stand for the 

proposition that TTD is precluded when a worker 

involuntarily abandons her former position of employment 

but then voluntarily departs a subsequent position of 

employment with another employer, which is the case here. 

To the contrary, as we recently found in State ex rel. Cline v. 

Abke Trucking, Inc., 10th Dist. No. 10AP-888, 2012-Ohio1914, ¶ 14-15, 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. Id. at ¶ 15. 

Id. at ¶ 3-5. 

{¶ 48} As noted in the findings of fact, relator received TTD compensation for his 

allowed physical conditions from October 17, 2006 through January 25, 2009, at which 

time his allowed physical conditions were found to have reached MMI. Thereafter, relator 

received TTD compensation for his allowed psychological condition from October 29, 

2009 through February 27, 2010. At that time, relator was not released to return to any 

work, relator did not return to either his former position of employment or any other 

work, and, although his allowed psychological condition had not been found to have 

reached MMI, relator did not receive additional psychological treatment between 

November 30, 2009 and March 26, 2013. 

{¶ 49} According to Dr. Stoeckel's records, relator had stopped treating for his 

allowed psychological conditions because of transportation issues and that, as of January 

7, 2011, Dr. Stoeckel was attempting to re-establish a therapeutic relationship with him. 

Ultimately, the BWC reactivated relator's claim and he resumed treatment with 

Dr. Stoeckel who certified that he was temporarily and totally disabled from March 26, 

2013 through June 26, 2013. 
No. 14AP-10 13 

{¶ 50} The magistrate finds it significant that, at this time, relator is not seeking an 

award of TTD compensation during the time period in which he was not treating with Dr. 

Stoeckel. This requested period of TTD compensation also coincides with the order from 

the BWC dated July 25, 2013, wherein the BWC re-activated his workers' compensation 

claim. 

{¶ 51} Unlike Eckerly, relator never returned to work after his work-related injury. 

Further, although his allowed physical conditions had reached MMI, his allowed 

psychological condition had not. Similarly to Brammer, relator's allowed psychological 

condition prevented him from returning to work. In his July 10, 2013 report, Dr. 

Madigral specifically stated: 

Summary

Results from this evaluation indicate the presence of 

psychopathology. Mr. Cummins was treated briefly. Eight 

sessions are not enough to address a Post-Traumatic Stress 

Disorder. He went without treatment for two years and 

apparently remained pathological. I believe he is in need of 

at least, six months of treatment. 

These results represent valid medical evidence with a 

reasonable degree of psychological certainty. 

Opinion

[One] Claimant current symptoms are directly related 

causally to the prior active claim. He shows symptoms 

consistent with a Post-Traumatic Stress Disorder, which is 

his allowed condition. This condition was never resolved. 

[Two] Medical services requested are reasonably related to 

the allowed condition. They are requesting psychotherapy 

twice a month for four months which is a little less than what 

he needs. This psychotherapy is requested to address his 

PTSD symptoms. 

{¶ 52} There is no medical evidence that relator was ever able to return to his 

former position of employment or to any other employment. While it is true that he 

stopped treating with Dr. Stoeckel for a significant period of time, there is no evidence in 

the record that he was able to work during that time and, more specifically, relator is no 
No. 14AP-10 14 

longer seeking TTD compensation during the time that he was not treating with Dr. 

Stoeckel. Because he was not able to return to work, the magistrate specifically finds that 

the Eckerly decision does not apply here. 

{¶ 53} Because the commission's citation to Eckerly was the only rationale given 

for denying relator's TTD compensation and because the magistrate finds that the Eckerly

decision does not apply to relator's situation, it is this magistrate's decision that this court 

should issue a writ of mandamus ordering the commission to vacate its order which 

denied relator TTD compensation and re-determine whether or not relator is entitled to 

an award of TTD compensation in a manner consistent with this magistrate's decision. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA BROOKS 

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). 
No. 14AP-10 15