[Cite as State ex rel. Melott v. Indus. Comm., 2016-Ohio-8268.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Earl Melott, : 

 Relator, : 

 

v. : No. 15AP-1065 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Williams Industrial Services, Inc., 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

 

Rendered on December 20, 2016 

 

On brief: Agee, Clymer, Mitchell & Portman, and 

Gregory R. Mitchell, for relator. 

On brief: Michael DeWine, Attorney General, and

LaTawnda N. Moore, for respondent Industrial Commission 

of Ohio.

 

IN MANDAMUS 

BROWN, J. 

{¶ 1} Relator, Earl Melott, has filed this original action requesting that this court 

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

("commission"), to vacate its June 23, 2015 order wherein its staff hearing officer denied 

relator's application for permanent total disability compensation based solely on a finding 

that relator voluntarily abandoned the workforce in 1998, and to enter an order that 

adjudicates the merits of the application absent the finding of a voluntary workforce 

abandonment. 
No. 15AP-1065 2

{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 

53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law, and recommended 

that this court deny relator's request for a writ of mandamus. No objections to that 

decision have been filed. 

{¶ 3} Accordingly, after an examination of the magistrate's decision, an 

independent review of the record, pursuant to Civ.R. 53, we adopt the magistrate's 

findings of fact and conclusions of law. Relator's request for a writ of mandamus is 

denied. 

Writ of mandamus denied. 

SADLER and BRUNNER, JJ, concur. 

___________________ 
[Cite as State ex rel. Melott v. Indus. Comm., 2016-Ohio-8268.]

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Earl Melott, : 

 Relator, : 

 

v. : No. 15AP-1065 

 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Williams Industrial Services, Inc., 

 : 

 Respondents. 

 : 

 

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

Rendered on August 10, 2016

 

Agee, Clymer, Mitchell & Portman, and Gregory R. Mitchell, 

for relator. 

Michael DeWine, Attorney General, and LaTawnda N. 

Moore, for respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 4} In this original action, relator, Earl Melott, requests a writ of mandamus 

ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the 

June 23, 2015 order of its staff hearing officer ("SHO") that denies relator's application for 

permanent total disability ("PTD") compensation based solely upon a finding that relator 

voluntarily abandoned the workforce in 1998, and to enter an order that adjudicates the 

merits of the application absent the finding of a voluntary workforce abandonment. 
No. 15AP-1065 4 

Findings of Fact:

{¶ 5} 1. On November 3, 1993, relator injured his lower back while employed as a 

painter for Williams Industrial Services, Inc., a state-fund employer. The injury occurred 

when relator was carrying a ladder and he tripped over an air hose. The industrial claim 

(No. 93-318887) was initially allowed for "sprain lumbar region; disc bulging and focal 

spurring at L5-S1 

{¶ 6} 2. On January 6, 2011, relator underwent low back surgery performed by 

Won G. Song, M.D. In his operative report, Dr. Song describes the surgical procedure as a 

"[l]umbar laminectomy of L5-S1 on right with excision of disk with foraminotomy." 

{¶ 7} 3. On January 25, 2011, the Ohio Bureau of Workers' Compensation 

("bureau") mailed an order awarding temporary total disability ("TTD") compensation 

beginning January 6, 2011 based upon a C-84 completed by Dr. Song. Apparently, the 

bureau's order was not administratively appealed. 

{¶ 8} 4. On December 6, 2012, at the bureau's request, relator was examined by 

James Sardo, M.D. In his six-page narrative report, Dr. Sardo opined that the allowed 

physical conditions of the industrial claim have reached maximum medical improvement 

("MMI"). 

{¶ 9} 5. On January 10, 2013, citing Dr. Sardo's report, the bureau moved for 

termination of TTD compensation on grounds that the industrial injury had reached 

MMI. 

{¶ 10} 6. Following a February 8, 2013 hearing, a district hearing officer ("DHO") 

issued an order terminating TTD compensation effective the date of the hearing. The 

DHO's order states reliance upon Dr. Sardo's report. 

{¶ 11} 7. Relator administratively appealed the DHO's order of February 8, 2013. 

{¶ 12} 8. Following a March 19, 2013 hearing, an SHO issued an order affirming 

the DHO's order of February 8, 2013. 

{¶ 13} 9. On April 17, 2014, relator moved for an additional claim allowance and 

for the payment of TTD compensation based upon the additional claim allowance. 

{¶ 14} 10. On July 1, 2014, the bureau mailed an order additionally allowing the 

claim for "major depressive disorder single episode, severe, without psychotic features." 

The bureau also awarded TTD compensation beginning March 13, 2014. 
No. 15AP-1065 5

{¶ 15} 11. Apparently, the July 1, 2014 bureau order was not administratively 

appealed. 

{¶ 16} 12. Earlier, on May 22, 2013, relator filed an application for PTD 

compensation. 

{¶ 17} 13. Following a September 4, 2013 hearing, an SHO issued an order 

denying the application. The SHO's order of September 4, 2013 concludes: 

Based upon physical examination findings, Dr. Masone's 

opinion that the Injured Worker can perform sedentary 

work, the Injured Worker's young age, and the Injured 

Worker's lack of effort to seek vocational retraining, the 

Hearing Officer does not find the Injured Worker is rendered 

permanently and totally disabled. 

{¶ 18} 14. On January 15, 2015, at relator's request, he was examined by 

psychologist Raymond D. Richetta, Ph.D. In his five-page narrative report, Dr. Richetta 

concludes: 

Mr. Melott does not manage restful sleep due to pain and 

anxiety and, even with his medications, he sometimes does 

not sleep for days at a time. He is sleep-deprived and, due to 

that factor alone, his energy is reduced, his concentration is 

reduced, and his decision-making is reduced. His depression 

continues, and his depression further reduced his energy, 

concentration, and decision-making. He is socially avoidant

outside of his household. He would be unable to cope with 

co-workers, supervisors, or the general public at a job. His 

concentration prevents his remembering and carrying out 

more then very simple job instructions. His insomnia would 

prevent him from arriving promptly at a job or from 

maintaining regular attendance. His energy is too low for any 

type of employment. Therefore, the evaluation finds Earl 

Melott permanently and totally disabled from engaging in 

any form of sustained remunerative employment due to the 

allowed psychological condition alone. 

{¶ 19} 15. On January 6, 2015, Dr. Song completed a one-page "Medical 

Questionnaire" on which he opined that relator is permanently and totally disabled based 

upon the allowed physical conditions of the claim. 

{¶ 20} 16. Earlier, on October 22, 2014, at the bureau's request, relator was 

examined by clinical psychologist Nicole Leisgang, Psy.D. In her seven-page narrative 
No. 15AP-1065 6

report, Dr. Leisgang opined: "[t]he injured worker's emotional difficulties preclude him 

from employment." 

{¶ 21} 17. On February 6, 2015, relator filed his second PTD application. In 

support, relator submitted the January 15, 2015 report of Dr. Richetta, the 

January 6, 2015 report of Dr. Song, and the October 22, 2014 report of Dr. Leisgang. 

{¶ 22} 18. Following a June 23, 2015 hearing, an SHO issued an order denying 

relator's PTD application filed February 6, 2015. The SHO's order explains: 

The Injured Worker was born on 03/17/1968 and is 

currently 47 years old. He has a 10th grade education. The 

Injured Worker's two IC-2 Applications and the 09/04/2013 

Staff Hearing order provide his prior work history. The 

Injured Worker was only approximately 30 years old when 

he last worked in 1998. 

The Injured Worker testified that he last worked in 1998, 

although there is no medical evidence found on file from 

1998 removing him from his former job or providing any 

physical restrictions. There is little evidence of medical 

treatment on file for 1998 or from 1998 to approximately

05/12/2003 and no medical evidence of any disability or 

physical restrictions until approximately 05/12/2003 (C-84 

Request for Temporary Total Compensation). There is then 

no evidence of any C-84 or MEDCO-14 Physician's Report of 

Work Ability requests for temporary total disability from 

approximately August of 2003 to 2011. The Injured Worker 

testified that he has made no attempts to find work since he 

last worked in 1998. There is no evidence on file of any 

attempts at vocational rehabilitation or any attempts to 

obtain his GED since he last worked in 1998. Based on the 

lack of medical evidence of any physical restrictions due to 

the allowed claim at the time the Injured Worker stopped 

working in 1998 and the lack of any documentary evidence of 

any attempts to return to any type of work since he stopped 

working in 1998, along with the lack of any attempts at 

vocational rehabilitation since he last worked, it is found the 

Injured Worker voluntarily abandoned the workforce for 

non-claim related reasons in 1998. Since is it is found the 

Injured Worker voluntarily abandoned the work force it is 

found he is not eligible to receive permanent total disability 

compensation pursuant to State ex rel. Baker Material 

Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202 

and State ex rel. Black v. Indus. Comm., Slip Opinion No. 
No. 15AP-1065 7

2013-Ohio-4550, therefore, the application for permanent 

total disability, is denied. 

{¶ 23} 19. On August 4, 2015, the three-member commission mailed an order 

denying relator's motion for reconsideration of the SHO's order of June 23, 2015. 

{¶ 24} 20. On November 20, 2015, relator, Earl Melott, filed this mandamus 

action. 

Conclusions of Law:

{¶ 25} As earlier noted, on January 25, 2011, the bureau mailed an order awarding 

TTD compensation beginning January 6, 2011 based upon a C-84 from Dr. Song. The 

bureau's TTD award was not administratively appealed. Later, the commission 

terminated TTD payments upon finding that the industrial injury had reached MMI. 

{¶ 26} On July 1, 2014, the bureau mailed an order additionally allowing the claim 

for a psychological disorder and awarding TTD compensation beginning March 13, 2014. 

This bureau order was not administratively appealed. 

{¶ 27} In both instances, TTD compensation was awarded based upon the medical 

evidence submitted. Whether relator had voluntarily abandoned the workforce was not 

an issue raised or determined in either instance. 

{¶ 28} Because workforce abandonment was allegedly available to the bureau as a 

defense to the requests for TTD compensation and it failed to raise the issue at those 

times, relator argues that the doctrine of collateral estoppel bars the commission from 

adjudicating the issue with respect to relator's second PTD application. The magistrate 

disagrees. 

{¶ 29} In State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 

2008-Ohio-6254, the Supreme Court of Ohio had occasion to set forth relevant law: 

In Ohio, "[t]he doctrine of res judicata encompasses the two 

related concepts of claim preclusion, also known as res 

judicata or estoppel by judgment, and issue preclusion, also 

known as collateral estoppel." O'Nesti v. DeBartolo Realty 

Corp., 113 Ohio St.3d 59, 2007 Ohio 1102, 862 N.E.2d 803, P 

6. "[I]ssue preclusion, [or] collateral estoppel, holds that a 

fact or a point that was actually and directly at issue in a 

previous action, and was passed upon and determined by a 

court of competent jurisdiction, may not be drawn into 

question in a subsequent action between the same parties or 

their privies, whether the cause of action in the two actions 
No. 15AP-1065 8

be identical or different." Ft. Frye Teachers Assn., 

OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 

392, 395, 1998 Ohio 435, 692 N.E.2d 140. "While the merger 

and bar aspects of res judicata have the effect of precluding 

the relitigation of the same cause of action, the collateral 

estoppel aspect precludes the relitigation, in a second action, 

of an issue that had been actually and necessarily litigated 

and determined in a prior action that was based on a 

different cause of action." Id. Collateral estoppel "applies 

equally to administrative proceedings." State ex rel. v. Allen 

Refractories Co., 114 Ohio St.3d 129, 2007 Ohio 3758, 870 

N.E.2d 701, P 8. 

"Collateral estoppel applies when the fact or issue (1) was 

actually and directly litigated in the prior action, (2) was 

passed upon and determined by a court of competent 

jurisdiction, and (3) when the party against whom collateral 

estoppel is asserted was a party in privity with a party to the 

prior action." Thompson v. Wing (1994), 70 Ohio St.3d 176, 

183, 1994 Ohio 358, 637 N.E.2d 917; see also Goodson v. 

McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 

201, 2 OBR 732, 443 N.E.2d 978 ("an absolute due process 

prerequisite to the application of collateral estoppel is that 

the party asserting the preclusion must prove that the 

identical issue was actually litigated, directly determined, 

and essential to the judgment in the prior action"). 

Id. at 27-28. 

{¶ 30} Pertinent here is paragraph two of the syllabus of State ex rel. Baker 

Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994): 

An employee who retires prior to becoming permanently and 

totally disabled is precluded from eligibility for permanent 

total disability compensation only if the retirement is 

voluntary and constitutes an abandonment of the entire job 

market. 

{¶ 31} Ohio Adm.Code 4121-3-34 sets forth the commission's rules regarding the 

adjudication of PTD applications. Ohio Adm.Code 4121-3-34(D) sets forth the 

commission's guidelines for the adjudication of PTD applications. Paragraph two of the 

Baker syllabus is incorporated into the guidelines at Ohio Adm.Code 4121-3-34(D)(1)(d): 

If, after hearing, the adjudicator finds that the injured 

worker voluntarily removed himself or herself from the work 

force, the injured worker shall be found not to be 
No. 15AP-1065 9

permanently and totally disabled. If evidence of voluntary 

removal or retirement is brought into issue, the adjudicator 

shall consider evidence that is submitted of the injured 

worker's medical condition at or near the time of 

removal/retirement. 

{¶ 32} Also pertinent here is State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 

40, 2008-Ohio-5245, a seminal case that judicially expands the scenario for denial of TTD 

compensation. The Pierron court states: 

Temporary total disability compensation is intended to 

compensate an injured worker for the loss of earnings 

incurred while the industrial injury heals. State ex rel. 

Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 

N.E.2d 533. There can be no lost earnings, however, or even 

a potential for lost earnings, if the claimant is no longer part 

of the active work force. As Ashcraft observed, a claimant 

who leaves the labor market "no longer incurs a loss of 

earnings because he is no longer in a position to return to 

work." When the reason for this absence from the work force 

is unrelated to the industrial injury, temporary total 

disability compensation is foreclosed. State ex rel. Rockwell 

Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 

N.E.2d 678. As we stated in State ex rel. Baker v. Indus. 

Comm. (2000), 89 Ohio St.3d 376, 380-381, 2000 Ohio 168, 

732 N.E.2d 355, when a claimant "chooses for reasons 

unrelated to his industrial injury not to return to any work 

when able to do so, that employee has abandoned both his 

employment and his eligibility for [temporary total 

disability]." 

Id. at ¶ 9. 

{¶ 33} Following Pierron, it became clear that voluntary workforce abandonment 

precludes both TTD and PTD compensation. 

{¶ 34} Here, in effect, relator seizes upon the Pierron doctrine to assert that the 

bureau's failure to raise voluntary workforce abandonment in the two instances where the 

bureau awarded TTD compensation is cause for the application of collateral estoppel. 

Relator is incorrect. 

{¶ 35} The law regarding collateral estoppel as set forth in Davis indicates that 

relator's argument misses the mark. 
No. 15AP-1065 10 

{¶ 36} It is clear with respect to both instances of a bureau TTD award, workforce 

abandonment was not actually and necessarily litigated and determined by the bureau nor 

was a finding that relator had not voluntarily abandoned the workforce "essential to the 

judgment" of the bureau. 

{¶ 37} In fact, the bureau's orders mailed January 25, 2011 and July 1, 2014, are 

not adjudications because the bureau has no authority to adjudicate TTD compensation. 

The bureau issued its orders awarding TTD compensation rather than referring the 

matters to the commission for adjudication because TTD compensation was not disputed 

by the employer or the bureau in this state-fund case. See State ex rel. Crabtree v. Ohio 

Bur. of Workers' Comp., 71 Ohio St.3d 504 (1994). Given that analysis, it is clear that 

collateral estoppel cannot apply. 

{¶ 38} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus. 

 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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).