State ex rel. Barnes v. Indus. Comm.

[Cite as State ex rel. Barnes v. Indus. Comm., 2016-Ohio-824.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Thelma Barnes, :

Relator, :

v. : No. 15AP-170

The Industrial Commission of Ohio and : (REGULAR CALENDAR)
Stark County Community Action Agency,
:
Respondents.
:

D E C I S I O N

Rendered on March 3, 2016

On Brief: Bevan & Associates, LPA, and Christopher J.
Stefancik, for relator.

On Brief: Michael DeWine, Attorney General, and Lisa R.
Miller, for respondent Industrial Commission of Ohio.

On Brief: Day Ketterer Ltd., and R. Clint Zollinger, Jr., for
respondent Stark County Community Action Agency.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BRUNNER, J.
{¶ 1} Relator, Thelma D. Barnes ("Barnes"), has filed this original action and
petitioned for a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order that denied her temporary total disability ("TTD")
compensation beginning November 12, 2013, based on the commission's determination
that she had voluntarily abandoned her employment with respondent Stark County
 2
No. 15AP-170
Community Action Agency ("SCCAA"), and ordering the commission to find that she is
entitled to the requested compensation.
{¶ 2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) 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 Barnes' request for a writ of mandamus. Barnes filed objections to the
magistrate's decision.
{¶ 3} Barnes presents the following objections to the magistrate's decision:
Relator objects to Magistrate's determination that the Staff
Hearing Officer did not render a factual finding that Relator's
termination was the result of inadvertently violating a work
rule/policy. Said finding is not consistent with a reasonable
interpretation of the plain language in the Staff Hearing
Officer's Order. Relator further objects to the Magistrate's
Decision in that it attempts to supply this supposedly missing
factual determination on behalf of the Staff Hearing Officer.
The Magistrate's Decision contains blatant factual errors
regarding the evidence relied upon, and regardless, it is
improper for this Court to supply factual findings where the
Industrial Commission is the exclusive evaluator of
evidentiary weight. Finally, Relator objects to the Magistrate's
Decision in that it improperly focuses on the "physical
activity" of leaving the child in an empty classroom, [sic] to
establish that Relator's violation of the work rule/policy was
not inadvertent. The proper analysis must consider Relator's
reasonable but erroneous belief that the classroom was not
empty. For these reasons Relator request [sic] that the Court
reject the Magistrate's Decision and grant issuance of the
requested writ.
{¶ 4} The major thrust of Barnes' objections to the magistrate's decision is that
the commission's staff hearing officer ("SHO") found that her violation of the work
rule/policy was inadvertent and erroneous and that this finding was ignored by the
magistrate, who did not reach a finding that the commission erred in applying the
voluntary abandonment doctrine to her conduct. Barnes asserts that, for purposes of
workers' compensation laws, it is not permissible to hold a claimant accountable for her
erroneous or inadvertent conduct that results in the violation of an employer's written
policies.
 3
No. 15AP-170
{¶ 5} For the reasons set forth below, Barnes' objections are overruled, and the
magistrate's decision is adopted by the court.
{¶ 6} Barnes sustained a work-related injury on September 26, 2012, which
resulted in her workers' compensation claim being allowed for "sprain lumbar region" and
"herniated discs L4-5, L5-S1." (Agreed Stipulations, 2-4.)
{¶ 7} At the time of her injury, Barnes was employed by SCCAA as a
transportation aide for Head Start. On September 11, 2012, Barnes had signed a form
acknowledging that she had reviewed the company's Child Care Center licensing rules
with the program administrator; that she knew where a copy of the rules was located for
further review; and that she had received orientation training on a variety of subjects
specific to her position, including "child management techniques and expectations," "who
I will be responsible for," "active supervision of children," and "attendance requirements."
(Agreed Stipulations, 122.)
{¶ 8} SCCAA has a written policy entitled, "Safety of Children-Chain of Custody."
The policy provides specific procedures to be followed by a child care staff member in
charge of any child, including the following:
A child care staff member in charge of a child or group of
children shall be responsible for their safety.

All children shall be supervised as outlined in rule 5101:2-
17:27 of the administrative code, (sic) no child shall be left
alone or unsupervised.

***
When dropping the children off or picking the children up
from the classroom, the driver and aides must sign-in and
sign out each child from the classrooms.

The following rules shall apply,

***
The driver and aid [sic] will then lead the children to the
classroom. Each child is taken to the classrooms and then
transferred to the center staff. The center staff signature is
required on the passenger check list at the time each child is
taken to his/her classroom.
(Agreed Stipulations, 123.) The policy specifies that "[v]iolations of this procedure will
warrant immediate suspension and/or termination." (Agreed Stipulations, 123.)
 4
No. 15AP-170
{¶ 9} Additionally, SCCAA has a "Zero Tolerance Policy" that specifically provides
in pertinent part as follows:
Purpose:

Limits are necessary to maintain children safe and healthy at
all times while in the care of the Head Start program staff.

This policy is designed to reduce the risk of harm to children
while being transported to and from the centers, in the
learning environment of the classroom, outdoors, field trips
and other activities designed for preschoolers.

Policy:

If a complaint or incident occurs with a Head Start children)
(sic) where an employee is found to have violated regulations
established by The Ohio Department of Job and Family
Services (ODJFS) which governs the licensure and compliance
of preschool daycares, the employee will be terminated with
just cause.

Zero Tolerance policy overs the following behaviors:

***
A child left alone and not actively supervised by a SCCAA
employee during any activities, held in the inside or outside
premises of a SCCAA Head Start facility.
(Agreed Stipulations, 121.)
{¶ 10} On April 9, 2013, Barnes delivered a child to a classroom, but left the child
alone in the hallway outside the classroom. The child entered the classroom and, finding
no one there, stepped back into the hallway, where a teacher found her. Barnes, seeing the
child and teacher's encounter, asked the teacher if she had been in the classroom. The
teacher replied she had not been in the classroom. Barnes self-reported the incident in a
handwritten note dated April 9, 2013:
At about 9:25 or 9:27 Bus 32 came in. I Thelma Barnes signed
Yanitza into classroom 17. I didn't know that no one was in
the room. Mrs. Campbells sign in board is int the hallway.
There wasn't a note or anything outside the door letting me
know that no one was in the room. I proceeded to Rm 16 and I
turned around and I seen Mrs. Campbell with the child. I
asked Mrs. Campbell you wasn't in the room. her class was in
the orchestra. Yanitza & Mrs. Campbell where in the hallway
 5
No. 15AP-170
door standing. I proceeded to tell Bety myself what had
occurred. I'm very sorry and take responsibility for what
happened.
(Sic passim.) (Agreed Stipulations, 124.)
{¶ 11} An incident report signed by SCCAA supervisor Betty Thompson on
April 9, 2013, indicated that Barnes was written up for safety rules/practices and
carelessness. The report contained the following statement:
Thelma Barnes a Program Aid [sic] on 4/9/2013 @ 9:30 came
to Site Supervisor to report her leaving a child unsupervised in
a classroom. Ms. Barnes sent a child into a classroom without
proper supervision. Child was left alone. Procedure of custody
of child was followed after child was attended to.
(Agreed Stipulations, 126.) The incident report recommended Barnes' immediate
dismissal.
{¶ 12} In a letter dated April 22, 2013, SCCAA notified Barnes that her
employment had been terminated:
You have been terminated from employment effective
April 18, 2013, due to the violation of the Zero Tolerance
Policy that requires staff to maintain children safe at all times.
The incident of April 9th, 2013 was investigated which resulted
in confirmation that you did not obtain the teacher's signature
on the custody paper work required when you deliver a child
to the classroom, consequently the child was left alone in the
classroom until the Teacher saw her in the hallway, she then
joined the rest of the class.
(Agreed Stipulations, 128.)
{¶ 13} Barnes applied for unemployment benefits on April 19, 2013. On
May 8, 2013, the Ohio Department of Jobs and Family Services ("ODJFS") issued a notice
of a determination granting Barnes' application. The notice stated the basis of the
determination as follows:
[Barnes] was discharged by STARK COUNTY COMMUNITY
ACTION AGENCY (INC) on 04/18/2013. The employer
discharged [Barnes] for violating a company rule. The
employer failed to establish negligence or willful disregard of
the rule on the part of [Barnes]. Ohio's legal standard that
determines if a discharge is without just cause is whether
[Barnes'] acts, omissions, or course of conduct were such that
an ordinary person would find the discharge not justifiable.
After a review of the facts, this agency finds that [Barnes] was
 6
No. 15AP-170
discharged without just cause under Section 4141.29(D)(2)(a),
Ohio Revised Code.
(Agreed Stipulations, 48.) The record does not indicate what, if any, information SCCAA
submitted to ODJFS in connection with Barnes' application for unemployment benefits.
{¶ 14} Barnes, a union member, filed a grievance regarding her termination, and a
grievance meeting was held on May 22, 2013. In a letter dated May 28, 2013, SCCAA
affirmed its decision to terminate her:
In response to the Grievance meeting on May 22nd,* * * there
is no change to your employment termination effective April
18, 2013.

Your request for reconsideration based on self-reporting this
incident, and the change of the location for the sign-in sheet
which you feel caused the incident was reviewed with Ms.
Goss, HS Director. The reason for no change is due to the
seriousness of the incident in which [sic] violated "The Zero
Tolerance Policy" implemented in August 2011. This policy
has been cause for termination to those employees that have
left a child unattended without the supervision of a staff
member. In your specific incident, you did not take the child
into the classroom (left outside the classroom) to perform
your change of custody duties with the Teacher. Because you
did not perform this required job function as Program Aide,
you did not see the notice left for you to take the child to
another classroom where they were attending a concert. The
child remained alone in the classroom until she stepped out
into the hallway and was then redirected to join her
classroom.

The parents of the Head Start Program entrust their children's
safety to the staff at SCCAA, therefore management must
maintain a Zero Tolerance Policy for incidents that jeopardize
the safety of the children.
(Agreed Stipulations, 129.)
{¶ 15} Thereafter, on November 12, 2013, Barnes' physician, Mark R. Grubb, M.D.,
examined her for the allowed conditions arising from the prior-covered
September 26, 2012 injury and subsequently submitted a Physician's Request for Medical
Service, Form C9, requesting certain medical procedures. SCCAA approved the
application, and Barnes underwent surgery on December 9, 2013.
 7
No. 15AP-170
{¶ 16} On January 22, 2014, Barnes' treating physician of record, John Pinghero,
D.C., submitted a Physician's Report of Work Ability form, Form MEDCO-14, indicating
that Barnes was temporarily disabled from any work from the date of surgery,
December 9, 2013.
{¶ 17} On January 22, 2014, Barnes filed a request for temporary total disability
("TTD") compensation beginning November 12, 2013.
{¶ 18} On January 28, 2014, Dr. Grubb submitted a Physician's Report of Work
Ability form, MEDCO-14, indicating that Barnes was temporarily disabled from any work
from November 12, 2013.
{¶ 19} In an order mailed March 4, 2014, the Ohio Bureau of Workers'
Compensation referred for hearing Barnes' application for TTD compensation to the
commission, based on SCCAA's assertions that Barnes had been terminated effective
April 18, 2013 for violating a work rule/policy, and that she had not worked or sought
work since her termination date.
{¶ 20} A district hearing officer ("DHO") heard Barnes' request on March 26, 2014.
The DHO allowed the request, noting that the file contained only a copy of SCCAA's Zero
Tolerance Policy, with nothing to indicate that it had been given to Barnes, and an
unsigned copy of the termination letter. The DHO found no evidence of Barnes "ever
having received or acknowledged a written handbook containing this specific work rule,"
and concluded that there was insufficient evidence that established that Barnes was
terminated "for violation of a written work rule which she knew or should have known
would result in her termination which was consistent was the decision in [State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995)]." (Agreed
Stipulations, 51.)
{¶ 21} SCCAA appealed, and a staff hearing officer ("SHO") heard the appeal on
May 2, 2014. The SHO vacated the prior DHO order and denied Barnes' request for TTD
compensation, finding that Barnes' testimony at the hearing supported a determination
that she had voluntarily abandoned her employment, and that she had not re-entered the
workforce following her termination. The SHO concluded that Barnes had failed to show
that she was entitled to TTD compensation:
Temporary total compensation is denied from 11/12/2013
through 05/02/2014. [Barnes] has failed to substantiate she is
 8
No. 15AP-170
eligible for the receipt of temporary total compensation
during this period. The evidence in file reflects [Barnes] was
terminated on or about 04/18/2013 for violation of a written
work policy. This termination was tantamount to a voluntary
abandonment of employment.

The evidence presented at hearing indicated that [Barnes] was
employed by the named employer as a transportation aide for
Head Start. [Barnes] testified she dropped a child off to a
classroom on 04/09/2013, erroneously thinking a teacher was
present, and inadvertently left the child unattended in the
classroom.

[Barnes] also testified she was aware of the employer's Zero
Tolerance Policy which mandated staff maintain the safety of
children at all times. [Barnes] testified that when she
discovered her error, she reported herself to her supervisors
as she was aware the employer had a strict policy regarding
the safety of children. [Barnes] further testified that she was
aware that leaving a child alone or unattended was a
dischargeable offense.

The employer has submitted a copy of its Zero Tolerance
Policy wherein it expressly indicates a child who is left alone
and not actively supervised by an employee is a violation of
the policy and a dischargeable offense. [Barnes] does not
dispute knowledge of this policy or her failure to comply with
it.

The Staff Hearing Officer finds [Barnes'] termination from
employment under the above-noted circumstances is
tantamount through [sic] a voluntary abandonment of
employment under the holding of State ex rel. Louisiana-
Pacific Corp. v. Industrial Commission (1995), 72 Ohio St.3d
401. The employer had a written policy which apprised its
employees of a standard of conduct. The violation of this
conduct was expressly indicated to be a terminable offense.
[Barnes] acknowledged knowing of both the existence of this
policy and the consequences of her actions.

No evidence was presented at hearing that [Barnes] has
returned to work in any capacity since being terminated on or
about 04/18/2013. Therefore, based on her termination,
which amounts to a voluntary abandonment of employment,
and the absence of re-entry into the workforce, [Barnes] is not
 9
No. 15AP-170
eligible for the payment of temporary total compensation for
the time period 11/12/2013 through 05/02/2014.
(Agreed Stipulations, 60-61.)
{¶ 22} By order mailed June 6, 2014, the commission refused Barnes' appeal of the
SHO order.
{¶ 23} Barnes then filed a request for reconsideration, alleging that the SHO had
failed to apply the appropriate legal analysis to the facts in evidence and had incorrectly
found that Barnes had voluntarily abandoned her employment. Barnes argued that the
voluntary abandonment doctrine did not apply because she had not intended to violate
the written work rule, and that her conduct was neither voluntary nor willful, but
inadvertent.
{¶ 24} In an interlocutory order mailed July 21, 2014, the commission granted
Barnes' request for reconsideration, stating:
It is the finding of the Industrial Commission [that Barnes]
has presented evidence of sufficient probative value to
warrant adjudication the Request for Reconsideration
regarding the alleged presence of a clear mistake of fact in the
order from which reconsideration is sought, and a clear
mistake of law of such character that remedial action would
clearly follow.

Specifically, it is alleged that in denying [Barnes'] request for
temporary total disability compensation, the Staff Hearing
Officer misinterpreted the standard set forth in State ex rel.
Louisiana-Pacific Corp. v. Indus. Commn., 72 Ohio St.3d 401,
650 N.E.2d 469 (1995), regarding the circumstances under
which termination of employment may properly be deemed a
voluntary abandonment of employment such as to preclude
entitlement to temporary total disability compensation.

The order issued 06/06/2014 is vacated, set aside, and held
for naught.
(Agreed Stipulations, 110.)
{¶ 25} After a hearing on October 21, 2014, the commission determined that it did
not have authority to exercise continuing jurisdiction, effectively denying Barnes'
application for TTD benefits:
After further review and discussion, it is the finding of the
Industrial Commission it does not have authority to exercise
continuing jurisdiction pursuant to R.C. 4123.52 and State ex
 10
No. 15AP-170
rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 692 N.E.2d
188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio
St.3d 320, 707 N.E.2d 1122(1999), and State ex rel. Gobich v.
Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817
N.E.2d 398. [Barnes] has failed to meet her burden of proving
sufficient grounds exist to justify the exercise of continuing
jurisdiction. Therefore, [Barnes'] Request for
Reconsideration, filed 06/25/2014, is denied, the refusal
order, issued 06/06/2014, is reinstated, and the Staff Hearing
Officer order, issued 05/15/2014, remains in full force and
affect.
(Agreed Stipulations, 137.)
{¶ 26} Barnes filed this action in mandamus on the grounds that the SHO's
decision denying her TTD compensation was defective and contained a clear mistake of
law, and that the commission's refusal to exercise continuing jurisdiction to correct the
defect was improper and warranted the requested writ.
{¶ 27} The magistrate recommends in the attached decision that this court deny
Barnes' request for a writ of mandamus for the reason that Barnes has not shown that she
has a clear legal right to the relief sought from the commission or 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).
{¶ 28} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of the objection, we overrule
Barnes' objections and adopt the magistrate's findings of fact and conclusions of law. To
be entitled to relief in mandamus, Barnes must establish that she has a clear legal right to
relief 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), paragraph nine of the syllabus. To do
so, she must demonstrate that the commission abused its discretion and, "in this context,
abuse of discretion has been repeatedly defined as a showing that the commission's
decision was rendered without some evidence to support it." State ex rel. Burley v. Coil
Packing, Inc., 31 Ohio St.3d 18, 20 (1987).
{¶ 29} Barnes does not dispute that she had left a child alone and unsupervised
outside a classroom, conduct that she knew violated a written work policy and constituted
grounds for termination. Rather, Barnes disputes the nature of her action, arguing that
she did not intend to leave the child alone and unsupervised and thus had not intended to
 11
No. 15AP-170
violate the work rule/policy. She argues that she should not be held accountable for her
unintentional violation of the written work rule/policy.
{¶ 30} The magistrate's decision contains a comprehensive review of the case law
that evolved into the current voluntary abandonment doctrine as manifested in
Louisiana-Pacific and subsequent decisions that have expounded on that holding.
Louisiana-Pacific stands for the proposition that termination of employment can
constitute voluntary abandonment when it is "generated by the claimant's violation of a
written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been
previously identified by the employer as a dischargeable offense, and (3) was known or
should have been known to the employee." Id. at 403. Voluntariness can be imputed to a
claimant's misconduct only under such conditions. State ex rel. Brown v. Hoover
Universal, Inc., 132 Ohio St.3d 520, 2012-Ohio-3895, ¶ 1. The magistrate's decision,
however, also notes that, "because of the potential for abuse, a postinjury firing must be
carefully scrutinized. Written termination criteria aid this inquiry and are why Louisiana-
Pacific requires them." State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 562
(2001).
{¶ 31} The magistrate's decision contains a review of how courts have
distinguished between conduct that gives rise to "voluntary" and "involuntary" separation
and, with respect to the present case, the magistrate concluded:
Examining the present facts, we find it difficult to characterize
as "involuntary" a termination generated by [Barnes']
violation of a written work rule or policy that (1) clearly
defined the prohibited conduct, (2) had been previously
identified by the employer as a dischargeable offense, and (3)
was known or should have been known to the employee.
Defining such an employment separation as voluntary
comports with Ashcraft and Watts – i.e., that an employee
must be presumed to intend the consequences of his or her
voluntary acts.

[Barnes] contends that her termination should not be deemed
a voluntary abandonment because the termination was not
the result of voluntary misconduct that she willingly
undertook, but conduct which was inadvertent or accidental.
In support of her argument, [Barnes] directs this court's
attention to its decision in State ex rel. Feick v. Wesley
 12
No. 15AP-170
Community Servs., 10th Dist. No. 04AP-166, 2005-Ohio-
3986.
(Magistrate's Decision,¶ 75-76.)
{¶ 32} The magistrate found Barnes' reliance on State ex rel. Feick v. Wesley
Community Servs., 10th Dist. No. 04AP-166, 2005-Ohio-3986 misplaced, noting that the
Feick court had held that "while there are scenarios where a claimant should not be held
accountable for a negligent act, there are also scenarios where it is permissible to hold a
claimant accountable for his or her negligence and/or careless acts." Id. at ¶ 3.
{¶ 33} The magistrate determined that there was some evidence in the record from
which the commission could determine that Barnes' termination did constitute a
voluntary abandonment. Specifically, the magistrate noted the following:
While [Barnes] acknowledges the seriousness of her actions,
she asserts that this was the only time she dropped off a child
without following the specific protocol for ensuring that the
child had been delivered to the proper adult. [Barnes] asserts
that, not only was her action inadvertent, the action did not
demonstrate any type of careless pattern discussed in Feick.
Further, [Barnes] asserts that the commission made a specific
finding that her action was inadvertent based on her
erroneous assumption the teacher was present in the
classroom.

The magistrate finds that there is some evidence in the record
from which the commission could determine that [Barnes']
termination did constitute a voluntary abandonment. The
policy specifically required [Barnes] to leave the child in the
presence of an adult and that a signature was required. The
policy required certain action on [Barnes'] part: leaving the
child with a teacher and receiving a signature indicating that
the child was properly accounted for. [Barnes] specifically
failed to take those two steps. The "nature" of her inaction is
extremely serious: the safety of children. There is no evidence
in the record that her employer did not actually follow the
procedures. As such, the action which caused [Barnes']
violation of a policy was her failure to take specific action. She
left the child outside the classroom unattended. It certainly
can be said that she willfully or voluntarily walked away from
that child without ensuring the child was supervised. [Barnes]
failed to take the acts necessary to ensure that the child was
properly and safely supervised. It cannot be said that she
inadvertently forgot to perform this act.
(Magistrate's Decision, ¶ 78-79.)
 13
No. 15AP-170
{¶ 34} The magistrate was not persuaded by Barnes' argument that the
commission, through its SHO, had determined that her action in leaving the child alone
was "erroneous" and "inadvertent," and that the voluntary abandonment doctrine should
not apply to her violation of SCCAA's written work rule because her conduct was neither
voluntary nor willful.
In the present case, the magistrate finds that [Barnes]
dropped the child at the school without transferring her to a
center staff member as required by the rule. The commission
never made a finding that her action was inadvertent. Instead,
the commission used that language solely to describe
[Barnes'] testimony. Stark County's zero tolerance policy
clearly emphasizes the importance of maintaining the safety
of the children at all times and employees who violate the
policy regarding child safety will be terminated with just
cause. [Barnes'] failure to take specific steps was a voluntary
act and the magistrate finds that the commission's
determination is supported by some evidence.
(Magistrate's Decision, ¶ 81.)
{¶ 35} The magistrate has noted in the attached decision that this court has held
that Barnes' conduct, although not willful, could rise to such a level of indifference or
disregard for workplace rules and policies as to support a finding for voluntary
abandonment. State ex rel. Parraz v. Diamond Crystal Brands, Inc., 141 Ohio St.3d 31,
2014-Ohio-4260, ¶ 13. The Supreme Court of Ohio in Parraz also, however, makes the
following observation:
An employee's violation of a work rule or policy need not be
willful or deliberate, but merely a voluntary act that the
employee knew may lead to termination of employment. State
ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St.3d 520,
2012-Ohio-3895, 974 N.E.2d 1198, ¶ 11; Watts at 121;
Louisiana-Pacific at 403. With respect to negligent or careless
actions that result in termination of employment, "there may
be situations in which the nature or degree of the conduct,
though not characterized as willful (e.g., repeated acts of
neglect or carelessness by an employee), may rise to such a
level of indifference or disregard for the employer's workplace
rules/policies to support a finding of voluntary
abandonment." State ex rel. Feick v. Wesley Community
Servs., 10th Dist. Franklin No. 04AP-166, 2005-Ohio-3986,
¶ 6. These cases are fact driven and must be determined on a
case-by-case basis. Id. at ¶ 4.
 14
No. 15AP-170
Parraz at ¶ 16. The injured worker employee in Parraz committed repeated workplace
violations relating to attendance and did not offer evidence whether her attendance
problems related to her injury. Here, Barnes was apparently a conscientious employee
who self-reported her single act of inadvertence. However, the nature of the infraction
was admittedly more serious—so serious, according to SCCAA policy, that it warranted
termination the first time it was committed.
{¶ 36} In reviewing Barnes' case in the manner prescribed by Parraz, on a "case-
by-case basis," we find it difficult to factually find an exception from the Supreme Court's
holding in Parraz. The record contains evidence of Barnes' testimony that she was aware
of the written policy; that she knew that leaving a child alone and unsupervised was cause
for discharge under the SCCAA's Zero Tolerance Policy; and that, when she realized she
had violated the policy, she promptly reported the violation to her supervisor. We hold
this evidence satisfies the criteria of the Louisiana-Pacific. Consequently, the
commission's denial of TTD compensation was not an abuse of discretion and can stand.
{¶ 37} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection, we find the magistrate has properly
stated the pertinent facts and applied the appropriate law. Therefore, we overrule relator's
objection to the magistrate's decision and adopt the decision as our own, including the
findings of facts and conclusions of law therein, in accordance with the magistrate's
decision, we grant respondent's motion to dismiss relator's petition for writ of mandamus.
Objections overruled;
writ of mandamus denied.

TYACK and KLATT, JJ., concur
_________________
 15
No. 15AP-170
APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Thelma Barnes, :

Relator, :

v. : No. 15AP-170

The Industrial Commission of Ohio and : (REGULAR CALENDAR)
Stark County Community Action Agency,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on October 28, 2015

Bevan & Associates, LPA, and Christopher J. Stefancik, for
relator.

Michael DeWine, Attorney General, and Drew Alatis, for
respondent Industrial Commission of Ohio.

Day Ketterer Ltd., and R. Clint Zollinger, Jr., for respondent
Stark County Community Action Agency.

IN MANDAMUS

{¶ 38} Relator, Thelma Barnes, 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 her application for temporary total
disability ("TTD") compensation based on a finding that she had voluntarily abandoned
her employment with respondent, Stark County Community Action Agency ("employer"
 16
No. 15AP-170
or "Stark County"), and ordering the commission to find that she is entitled to that
compensation.
Findings of Fact:
{¶ 39} 1. Relator sustained a work-related injury on September 26, 2012 and her
workers' compensation claim has been allowed for the following conditions: "sprain
lumbar region; herniated discs L4-5, L5-S1."
{¶ 40} 2. At the time of injury, relator was employed by Stark County as a
transportation aide for Head Start children.
{¶ 41} 3. On September 11, 2012, relator signed a form acknowledging that she
had received copies of the company's home/parent and employee information, home,
medical, dental, and general emergency plan, that she had received orientation training
involving various safety measures specific to her position, which included the following
topics: "[c]hild management techniques and expectations, [w]ho I will be responsible
for, including names and age, [a]ctive supervision of children, [and] [a]ttendance
requirements."
{¶ 42} The written policy specifically provides that, when a child gets off the bus:
The driver and aid[e] will then lead the children to the
classroom. Each child is taken to the classrooms and then
transferred to the center staff. The center staff signature is
required on the passenger check list at the time each child is
taken to his/her classroom.

{¶ 43} Further, the policy provides that "[v]iolations of this procedure will
warrant immediate suspension and/or termination."
{¶ 44} Further, the employer has a zero tolerance policy which specifically
provides, in pertinent part:
Purpose:

Limits are necessary to maintain children safe and healthy at
all times while in the care of the Head Start program staff.

This policy is designed to reduce the risk of harm to children
while being transported to and from the centers, in the
learning environment of the classroom, outdoors, field trips
and other activities designed for preschoolers.
 17
No. 15AP-170
Policy:

If a complaint or incident occurs with a Head Start (children)
where an employee is found to have violated regulations
established by the Ohio Department of Jobs Ohio and Family
Services (ODJFS) which governs the licensure and
compliance of pre-school daycares, the employee will be
terminated with just cause.

{¶ 45} 4. On April 9, 2013, relator dropped off a child outside of a classroom,
unattended, and without a supervisor or other staff member present. Apparently, the
child then entered the classroom and was alone in the classroom until she stepped out
into the hallway and a teacher saw her. In a note written April 9, 2013, relator
explained, in her own words, what happened:
At about 9:25 or 9:27 bus 32 came in. I Thelma Barnes
signed Yanitza into classroom 17. I didn't know that no one
was in the room. Mrs. Campbell's sign in board is in the
hallway[.] There wasn't a note or anything outside the door
letting me know that no one was in the room. I proceeded to
[room] 16 and I turned around and I seen Mrs. Campbell
with the child. I asked Mrs. Campbell you wasn't in the
room. [H]er class was in the orchestra. Yanitza [and] Mrs.
Campbell [were] in the hallway door standing. I proceeded to
tell Betty myself what had occurred. I'm very sorry and take
responsibility for what happened.

{¶ 46} 5. In a letter dated April 22, 2013, relator was notified that she was
terminated as follows:
You have been terminated from employment effective
April 18, 2013, due to the violation of the Zero Tolerance
Policy that requires staff to maintain children safe at all
times. The incident of April 9th, 2013 was investigated which
resulted in confirmation that you did not obtain the teacher's
signature on the custody [paperwork] required when you
deliver a child to the classroom, consequently the child was
left alone in the classroom until the Teacher [sic] saw her in
the hallway, she then joined the rest of the class.

{¶ 47} 6. Relator, as a union member, filed a grievance and the employer notified
relator that its decision to terminate her did not change. In a May 28, 2013 letter,
relator was informed:
 18
No. 15AP-170
In response to the Grievance meeting on May 22nd, at 4:30
p.m. at William Hunter where you were represented by Chris
Dandrow, Union President, there is no change to your
employment termination effective April 18, 2013.

Your request for reconsideration based on self-reporting the
incident, and the change of location for the sign-in sheet
which you feel caused the incident was reviewed with Ms.
Goss, HS Director. The reason for no change is due to the
seriousness of the incident in which violated "The Zero
Tolerance Policy" implemented in August 2011. This policy
has been cause for termination to those employees that have
left a child unattended without the supervision of a staff
member. In your specific incident, you did not take the child
into the classroom (left outside the classroom) to perform
your change of custody duties with the Teacher [sic]. Because
you did not perform this required job function as Program
Aide, you did not see the notice left for you to take the child
to another classroom where they were attending a concert.
The child remained alone in the classroom until she stepped
out into the hallway and was then redirected to join her
classroom.

The parents of the Head Start Program entrust their
children's safety to the staff at SCCAA, therefore
management must maintain a Zero Tolerance Policy for
incidents that jeopardize the safety of the children.

{¶ 48} 7. Eight months later, on December 9, 2013, relator underwent back
surgery and relator's treating physician's signed Physician's Report of Work Ability
forms indicating that relator was unable to work from the date of surgery and
continuing.
{¶ 49} 8. On January 23, 2014, relator filed a request for TTD compensation.
{¶ 50} 9. In an order mailed March 4, 2014, the Ohio Bureau of Workers'
Compensation ("BWC") referred the claim to the commission for consideration.
{¶ 51} 10. Relator's request for TTD compensation was heard before a district
hearing officer ("DHO") on March 26, 2014 and was allowed. Specifically, the DHO
order states:
Prior to a discussion on the merits, the representative for the
Injured Worker clarified the period of disability requested
for adjudication at today's hearing. The period requested is
 19
No. 15AP-170
from 11/12/2013 through the date of today's hearing and
continuing.

This file contains evidence that the Employer is relying on an
argument of voluntarily abandonment which they allege
impacts the Injured Worker's right to receive temporary total
disability compensation. The file contains one page of
apparently a handbook providing for a zero tolerance
paragraph. There is no evidence of the Injured Worker ever
having received or acknowledged a written handbook
containing this specific written work rule. Further, there is a
termination letter which is unsigned by her Employer. This
Hearing Officer finds there is insufficient evidence which
establishes that this Injured Worker was terminated for
violation of a written work rule which she knew or should
have known would result in her termination which is
consistent with the decision in [State ex rel. Louisiana-
Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995)].
Further, present on behalf of the Employer was a third party
administrator who was unable to present a legal argument
on this issue.

It is ordered temporary total disability compensation shall be
paid for the period 11/12/2013 through 03/26/2014 and
continuing upon submission of medical proof certifying
disability based on the recognized conditions in this claim.
This Injured Worker underwent surgery in this claim by Dr.
Grubb on 12/09/2013. Dr. Grubb provides a Medco-14 which
disables this Injured Worker for the period commencing
11/12/2013 through 03/11/2014. Further, this file contains a
Medco-14 from Dr. Pinghero dated 03/19/2014 which also
disables this Injured Worker.

{¶ 52} 11. Stark County appealed and, on May 2, 2014, a hearing was heard
before a staff hearing officer ("SHO"). At that time, the SHO vacated the prior DHO
order and denied relator's request for TTD compensation finding that her termination
from her job constituted a voluntarily abandonment of employment under Louisiana-
Pacific and, inasmuch as she had not returned to any employment after her termination,
the SHO concluded that she was not entitled to an award of TTD compensation.
Specifically, the SHO stated:
Temporary total compensation is denied from 11/12/2013
through 05/02/2014. The Injured Worker has failed to
substantiate she is eligible for the receipt of temporary total
compensation during this period. The evidence in file reflects
 20
No. 15AP-170
Injured Worker was terminated on or about 04/18/2013 for
violation of a written work policy. This termination was
tantamount to a voluntary abandonment of employment.

The evidence presented at hearing indicated the Injured
Worker was employed by the named employer as a
transportation aide for Head Start. The Injured Worker
testified she dropped a child off to a classroom on
04/09/2013, erroneously thinking a teacher was present,
and inadvertently left the child unattended in the classroom.

The Injured Worker also testified she was aware of the
employer's Zero Tolerance Policy which mandated staff
maintain the safety of children at all times. The Injured
Worker testified that when she discovered her error, she
reported herself to her supervisors as she was aware the
employer had a strict policy regarding the safety of children.
The Injured Worker further testified that she was aware that
leaving a child alone or unattended was a dischargeable
offense.

The employer has submitted a copy of its Zero Tolerance
Policy wherein it expressly indicates a child who is left alone
and not actively supervised by an employee is a violation of
the policy and a dischargeable offense. The Injured Worker
does not dispute knowledge of this policy or her failure to
comply with it.

The Staff Hearing Officer finds the Injured Worker's
termination from employment under the above-noted
circumstances is tantamount through a voluntary
abandonment of employment under the holding of State ex
rel. Louisiana-Pacific Corp. v. Industrial Commission (1995),
72 Ohio St.3d 401. The employer had a written policy which
apprised its employees of a standard of conduct. The
violation of this conduct was expressly indicated to be a
terminable offense. The Injured Worker acknowledged
knowing of both the existence of this policy and the
consequences of her actions.

No evidence was presented at hearing that the Injured
Worker has returned to work in any capacity since being
terminated on or about 04/18/2013. Therefore, based on her
termination, which amounts to a voluntary abandonment of
employment, and the absence of re-entry into the workforce,
the Injured Worker is not eligible for the payment of
 21
No. 15AP-170
temporary total compensation for the time period
11/12/2013 through 05/02/2014.

{¶ 53} 12. Relator's appeal was refused by order of the commission mailed
June 6, 2014.
{¶ 54} 13. Thereafter, relator filed a request for reconsideration arguing that she
had not intended to violate the written work rule and that her action was neither
voluntary nor willful, but inadvertent, and the voluntary abandonment doctrine should
not apply.
{¶ 55} 14. In an interlocutory order mailed July 12, 2014, the commission
determined that relator presented evidence of sufficient probative value to warrant
adjudication, stating:
It is the finding of the Industrial Commission the Injured
Worker has presented evidence of sufficient probative value
to warrant adjudication of the Request for Reconsideration
regarding the alleged presence of a clear mistake of fact in
the order from which reconsideration is sought, and a clear
mistake of law of such character that remedial action would
clearly follow.

Specifically, it is alleged that in denying the Injured Worker's
request for temporary total disability compensation, the Staff
Hearing Officer misinterpreted the standard set forth in
State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72
Ohio St.3d 401, 650 N.E.2d 469 (1995), regarding the
circumstances under which termination of employment may
properly be deemed a voluntary abandonment of
employment such as to preclude entitlement to temporary
total disability compensation.

The order issued 06/06/2014 is vacated, set aside, and held
for naught.

{¶ 56} 15. Following a hearing on October 21, 2014, the commission declined to
exercise its continuing jurisdiction and reinstated the prior SHO order effectively
denying relator's application for TTD compensation.
{¶ 57} 16. Thereafter, relator filed the instant mandamus action in this court.
 22
No. 15AP-170
Conclusions of Law:
{¶ 58} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 59} 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).
{¶ 60} 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 maximum medical improvement. See R.C. 4123.56(A); State ex
rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
{¶ 61} This case must be considered within the historical context in which the
voluntary abandonment doctrine has developed. In State ex rel. Jones & Laughlin Steel
Corp. v. Indus. Comm., 29 Ohio App.3d 145, 504 (1985), Ernesto Rosado sustained a
work-related injury. At some point in time, Rosado voluntarily retired from his job with
Jones & Laughlin. Based on Rosado's voluntary retirement, Jones & Laughlin argued in
this court that Rosado should not be entitled to an award of TTD compensation. Because
Jones & Laughlin had failed to raise the issue before the commission, this court denied
 23
No. 15AP-170
Jones & Laughlin's request for a writ of mandamus ordering the commission to vacate
its award of TTD compensation; however, this court did address the issue of whether or
not an employee's voluntary retirement from the workforce for reasons unrelated to an
industrial injury precludes the payment of TTD compensation.
{¶ 62} After citing the syllabus rule of Ramirez, this court stated that:
[T]he industrial injury must not only be such as to render the
claimant unable to perform the functions of his former
position of employment, but it also must prevent him from
returning to that position. * * *
Id. at 147.

{¶ 63} Thereafter, this court set forth the issue before it:
Accordingly, the issue before us is whether a person who has
voluntarily taken himself out of the work force and
abandoned any future employment by voluntarily retiring is
prevented from returning to his former position of
employment by an industrial injury which renders him
unable to perform the duties of such former position. This
raises an issue of causal relationship.
Id.

{¶ 64} Ultimately, this court concluded as follows:
[O]ne who has voluntarily retired and has no intention of
ever returning to his former position of employment is not
prevented from returning to that former position by an
industrial injury which renders him unable to perform the
duties of such former position of employment. A worker is
prevented by an industrial injury from returning to this
former position of employment where, but for the industrial
injury, he would return to such former position of
employment. However, where the employee has taken action
that would preclude his returning to his former position of
employment, even if he were able to do so, he is not entitled
to continued temporary total disability benefits since it is his
own action, rather than the industrial injury, which prevents
his returning to such former position of employment. Such
action would include such situations as the acceptance of
another position, as well as voluntary retirement.

Id.
{¶ 65} It was not until State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42
(1987), that the foundation for the voluntary abandonment doctrine as we know it today
 24
No. 15AP-170
began to take shape. In that case, Nelson C. Ashcraft was injured while working in the
scope of his employment as a welder and received TTD compensation for a period of
time. After his TTD compensation ceased, Ashcraft was incarcerated in West Virginia on
a felony charge, subsequently convicted and imprisoned for first degree murder.
Thereafter, Ashcraft sought TTD compensation from the commission.
{¶ 66} The commission ordered Ashcraft's motion suspended until he was
released from incarceration. As such, Ashcraft was precluded from receiving any TTD
compensation while incarcerated.
{¶ 67} Ashcraft filed a mandamus action in this court seeking an order
compelling the commission to hear the application for TTD compensation. This court
granted the writ and the matter was appealed to the Supreme Court of Ohio.
{¶ 68} After considering the purpose of TTD compensation and considering the
holding from Jones & Laughlin, the Ashcraft court, at 44, reiterated that the crux of the
decision in Jones & Laughlin was:
The crux of this decision was the court's recognition of the
two-part test to determine whether an injury qualified for
temporary total disability compensation. The first part of this
test focuses upon the disabling aspects of the injury, whereas
the latter part determines if there are any factors, other than
the injury, which would prevent the claimant from returning
to his former position. The secondary consideration is a
reflection of the underlying purpose of temporary total
compensation: to compensate an injured employee for the
loss of earnings which he incurs while the injury heals. * * *

{¶ 69} The Ashcraft court concluded that when a claimant has voluntarily
removed himself or herself from the workforce, he or she no longer suffers a loss of
earnings because he or she is no longer in a position to return to work. The court
concluded that this logic would apply whether the claimant's abandonment of his
position was temporary or permanent. Ultimately, the court concluded that Ashcraft's
incarceration constituted a factor which, independently of his previously recognized
work-related injury, precluded his receipt of TTD compensation. In so finding, the
Ashcraft court stated, at 44:
While a prisoner's incarceration would not normally be
considered a "voluntary" act, one may be presumed to tacitly
accept the consequences of his voluntary acts. When a
 25
No. 15AP-170
person chooses to violate the law, he, by his own action,
subjects himself to the punishment which the state has
prescribed for that act.

{¶ 70} In State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44
(1988), the court again considered whether or not retirement should preclude the
payment of TTD compensation. In that case, Rollin Sharp sustained a low back injury in
the course of his employment with Rockwell International. TTD compensation was paid
until such time as Sharp was released to return to light-duty work. Ultimately, Sharp
retired from his employment, but, thereafter, filed an application to reactivate his claim
and requested TTD compensation. Rockwell International argued that TTD
compensation should not be paid to Sharp because he had voluntarily retired from his
employment.
{¶ 71} Ultimately, the Supreme Court of Ohio found that TTD compensation was
payable based upon the commission's finding that Sharp's retirement was causally
related to his industrial injury, and thus was not voluntary. Specifically, the Rockwell
court stated, at 46:
Neither Ashcraft nor Jones & Laughlin states that any
abandonment of employment precludes payment of
temporary total disability compensation; they provide that
only voluntary abandonment precludes it. While a
distinction between voluntary and involuntary abandonment
was contemplated, the terms until today have remained
undefined. We find that a proper analysis must look beyond
the mere volitional nature of a claimant's departure. The
analysis must also consider the reason underlying the
claimant's decision to retire. We hold that where a claimant's
retirement is causally related to his injury, the retirement is
not "voluntary" so as to preclude eligibility for temporary
total disability compensation.

{¶ 72} In 1995, the Supreme Court of Ohio decided the seminal case of
Louisiana-Pacific. In that case, Patrick Longmore sustained an injury while in the
course of his employment with Louisiana-Pacific Corporation, a self-insured employer
under Ohio's workers' compensation laws, who began paying TTD compensation.
Longmore was released to return to work on December 17, 1990; however, he did not
report to work nor did he call in on December 17, 18, or 19, 1990. In a letter dated
 26
No. 15AP-170
December 20, 1990, Louisiana-Pacific notified Longmore that his failure to report to
work for three consecutive days violated the company's policy and he was terminated.
{¶ 73} The commission awarded Longmore TTD compensation and this court
denied Louisiana-Pacific's request for a writ of mandamus.
{¶ 74} On appeal, the Supreme Court of Ohio granted the writ of mandamus after
finding that Longmore's termination did bar his receipt of TTD compensation.
Specifically, the Louisiana-Pacific court stated, at 403:
{¶ 75} Recognizing the parallels underlying incarceration and firing, we observed
in State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 121 (1993):
We agree that firing can constitute a voluntary abandonment
of the former position of employment. Although not
generally consented to, discharge, like incarceration, is often
a consequence of behavior that the claimant willingly
undertook, and may thus take on a voluntary character. * * *

{¶ 76} Examining the present facts, we find it difficult to characterize as
"involuntary" a termination generated by the claimant's violation of a written work rule
or policy that (1) clearly defined the prohibited conduct, (2) had been previously
identified by the employer as a dischargeable offense, and (3) was known or should have
been known to the employee. Defining such an employment separation as voluntary
comports with Ashcraft and Watts—i.e., that an employee must be presumed to intend
the consequences of his or her voluntary acts.
{¶ 77} Relator contends that her termination should not be deemed a voluntary
abandonment because the termination was not the result of voluntary misconduct that
she willingly undertook, but conduct which was inadvertent or accidental. In support of
her argument, relator directs this court's attention to its decision in State ex rel. Feick v.
Wesley Community Servs., 10th Dist. No. 04AP-166, 2005-Ohio-3986.
{¶ 78} Emily Feick was terminated from her employment after negligently
causing a traffic accident while operating an employer-owned vehicle. The magistrate
concluded that negligent acts cannot constitute grounds to find that an injured worker
has voluntarily abandoned a position of employment; however, this court found that
conclusion was "improperly overbroad" and that "while there are scenarios where a
claimant should not be held accountable for a negligent act, there are also scenarios
 27
No. 15AP-170
where it is permissible to hold a claimant accountable for his or her negligence and/or
careless acts." Id. at ¶ 3. This court explained further:
In the present case, respondent-employer had a company
policy providing for discharge of an employee following a
third violation of a "Class I" offense, which included offenses
defined as "[c]arelessness, negligence or irresponsibility." As
noted by the magistrate, on two prior occasions, claimant
had negligently backed a van into another vehicle, and
negligently placed the wrong key in the ignition of a van,
causing damage to the van. Claimant's third incident,
ultimately giving rise to her discharge, involved entering an
intersection against a red traffic light.

The magistrate found no evidence in the record that the
claimant's act of running a red light was willful, and neither
do we. We decline, however, to adopt a per se rule that no
form of negligent conduct leading to an employee's discharge
could ever constitute a voluntary abandonment of
employment. Rather, as suggested by the commission, there
may be situations in which the nature or degree of the
conduct, though not characterized as willful (e.g., repeated
acts of neglect or carelessness by an employee), may rise to
such a level of indifference or disregard for the employer's
workplace rules/policies to support a finding of voluntary
abandonment. We do not find, however, that the facts of this
case involve either willful or other conduct constituting
voluntary abandonment.

Id. at ¶ 5-6.

{¶ 79} While relator acknowledges the seriousness of her actions, she asserts that
this was the only time she dropped off a child without following the specific protocol for
ensuring that the child had been delivered to the proper adult. Relator asserts that, not
only was her action inadvertent, the action did not demonstrate any type of careless
pattern discussed in Feick. Further, relator asserts that the commission made a specific
finding that her action was inadvertent based on her erroneous assumption the teacher
was present in the classroom.
{¶ 80} The magistrate finds that there is some evidence in the record from which
the commission could determine that relator's termination did constitute a voluntary
abandonment. The policy specifically required relator to leave the child in the presence
of an adult and that a signature was required. The policy required certain action on
 28
No. 15AP-170
relator's part: leaving the child with a teacher and receiving a signature indicating that
the child was properly accounted for. Relator specifically failed to take those two steps.
The "nature" of her inaction is extremely serious: the safety of children. There is no
evidence in the record that her employer did not actually follow the procedures. As
such, the action which caused relator's violation of a policy was her failure to take
specific action. She left the child outside the classroom unattended. It certainly can be
said that she willfully or voluntarily walked away from that child without ensuring the
child was supervised. Relator failed to take the acts necessary to ensure that the child
was properly and safely supervised. It cannot be said that she inadvertently forgot to
perform this act.
{¶ 81} Recently, this court decided State ex rel. Parraz v. Indus. Comm., 10th
Dist. No. 11AP-806, 2013-Ohio-764. In that case, Elana Parraz violated her employer's
attendance policy which stated that employees would be terminated if a total of 14
points were accumulated due to excessive absences. Following her termination, Parraz
filed a request for TTD compensation based upon a newly allowed condition and the
commission denied her request based upon her voluntary abandonment. Parraz had
argued that her absences were neither willful nor intentional. This court agreed with its
magistrate's determination that, although not willful, Parraz's conduct did rise to such a
level as indifference or disregard for workplace rules and policies as to support a finding
for voluntary abandonment.
{¶ 82} In the present case, the magistrate finds that relator dropped off the child
at the school without transferring her to a center staff member as required by the rule.
The commission never made a finding that her action was inadvertent. Instead, the
commission used that language solely to describe relator's testimony. Stark County's
zero tolerance policy clearly emphasizes the importance of maintaining the safety of the
children at all times and employees who violate the policy regarding child safety will be
terminated with just cause. Relator's failure to take specific steps was a voluntary act
and the magistrate finds that the commission's determination is supported by some
evidence.
 29
No. 15AP-170
{¶ 83} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it denied relator's request
for TTD compensation, and this court should deny her 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).