[Cite as State ex rel. Butler v. Indus. Comm., 2023-Ohio-3774.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Butler Village, :
Relator, : No. 22AP-274
v. : (REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on October 17, 2023
On brief: Tarkowsky & Piper Co., L.P.A., John Tarkowsky,
and Gregory J. Tarkowsky, for relator.
On brief: Dave Yost, Attorney General, and Cindy Albrecht,
for respondent Industrial Commission of Ohio.
On brief: Nager, Romaine & Schneiberg Co. L.P.A.,
Heaven N. Jaafar, Catherine Lietzke, Jerald A. Schneiberg,
and Bradley Howenstein, for respondent Stephanie Crow.
IN MANDAMUS
LUPER SCHUSTER, J.
{¶ 1} Relator, Butler Village, initiated this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
(“commission”), to vacate its order granting the request of respondent, Stephanie Crow,
for temporary total disability (“TTD”) benefits and to return the claim to the commission
for a rehearing.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
No. 22AP-274 2
determined there was some evidence to support the commission’s order finding that Crow
was unable to work as a direct result of an impairment arising from her workplace injury.
Thus, the magistrate found the commission did not abuse its discretion in granting Crow’s
request for TTD compensation, and the magistrate recommends we deny Butler Village’s
request for a writ of mandamus.
{¶ 3} No party has filed objections to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision unless it determines that
there is an error of law or other defect evidence on the face of the decision.” Civ.R.
53(D)(4)(c). The case is now before this court for review.
{¶ 4} Finding no error of law or other defect on the face of the magistrate’s
decision, we adopt the decision as our own, including the findings of fact and conclusions
of law contained therein. Accordingly, we deny Butler Village’s request for a writ of
mandamus.
Writ of mandamus denied.
DORRIAN and LELAND, JJ., concur.
No. 22AP-274 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Butler Village, :
Relator, :
v. : No. 22AP-274
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
__________________________________________
MAGISTRATE’S DECISION
Rendered on July 28, 2023
Tarkowsky & Piper Co., L.P.A., John Tarkowsky, and
Gregory J. Tarkowsky, for relator.
Dave Yost, Attorney General, and Cindy Albrecht, for
respondent Industrial Commission of Ohio.
Nager, Romaine & Schneiberg Co., L.P.A., Catherine
Lietzke, and Jerald A. Schneiberg, for respondent Stephanie
Crow.
____
IN MANDAMUS
{¶ 5} Relator, Butler Village (“Butler”), seeks a writ of mandamus ordering
respondent Industrial Commission of Ohio (“commission”) to vacate its order granting
temporary total disability (“TTD”) compensation to respondent Stephanie Crow.
No. 22AP-274 4
I. Findings of Fact
{¶ 6} 1. On March 26, 2021, Crow sustained an injury due to a fall in the course of
and arising out of her employment with Butler. At the time of her injury, Crow was
employed by Butler with several duties including mayor’s court clerk, income tax
commissioner, and council clerk. A first report of an injury, occupational disease or death
form (“FROI-1”) dated April 12, 2021 was filed with the Bureau of Workers’ Compensation
(“BWC”).
{¶ 7} 2. Crow’s workers’ compensation claim was initially allowed for the
following conditions: “comminuted 3-part fracture of surgical neck [with] intraarticular
involvement; abrasion of left hand.” (R. at 39.)
{¶ 8} 3. Michael Viau, M.D., had an orthopedic consultation with Crow on
March 27, 2021. Dr. Viau stated in a report that Crow’s left hand was dominant and
confirmed Crow’s diagnosis of a left proximal humeral fracture with comminution and
intra-articular extension. Dr. Viau compared surgical options with conservative treatment
noting that due to the degree of comminution and intra-articular extension Crow may
require surgery including a hemiarthroplasty. Crow and Dr. Viau decided to defer surgery
and stated that Crow could be discharged in a sling.
{¶ 9} 4. Crow again saw Dr. Viau on April 5, 2021. Dr. Viau completed a
commission MEDCO-14 physician’s report of work ability (“MEDCO-14”) form on April 7,
2021, certifying TTD compensation from March 26 until April 14, 2021 and restricting
Crow to “[l]ight duty one arm work 2 days a week as tolerated.” (R. at 27.)
{¶ 10} 5. Crow returned to work at Butler on April 14, 2021.
{¶ 11} 6. In a letter dated April 15, 2021, Lynette McCune, Butler assistant fiscal
officer, provided the job descriptions for Crow. In the job description form, McCune
indicated that Crow’s job entailed lifting and carrying up to 5 pounds frequently and
between 6 and 25 pounds occasionally. The job entailed using both hands for simple
grasping and pushing/pulling, left hand for fine manipulation, and the use of both feet for
leg controls.
{¶ 12} 7. Butler passed three ordinances dated April 20, 2021 related to Crow’s job
duties. In ordinance 21-7, Butler terminated its mayor’s court effective immediately. In
ordinance 21-8, Butler authorized and directed its mayor to execute a contract with the
No. 22AP-274 5
Regional Council of Governments for the administration and collection of Butler’s income
tax effective May 17, 2021. In ordinance 21-9, Butler terminated the position of mayor’s
court clerk effective immediately and the position of income tax clerk effective May 17,
2021.
{¶ 13} 8. Butler filed a C-55 salary continuation agreement dated April 21, 2021 in
which Butler agreed to pay Crow her salary in lieu of TTD compensation from March 27
through April 13, 2021.
{¶ 14} 9. On April 21, 2021,McCune completed a BWC job description form for
Crow’s job duties, which McCune stated included requiring Crow to lift and carry up to 25
pounds occasionally; reach frequently; use both hands for simple grasping, pushing, and
pulling; and using the left hand for fine manipulation.
{¶ 15} 10. At an office visit on May 3, 2021, Dr. Viau recommended Crow begin
physical therapy. Following Dr. Viau’s recommendation, Crow began participating in
physical therapy three times a week for six weeks. Dr. Viau had a follow-up appointment
with Crow on May 25, 2021.
{¶ 16} 11. In a letter to Butler dated May 18, 2021, Crow resigned her employment,
making the following statement:
This village has been my home most all my life and I have
enjoyed working this past 24 plus years for the residents. In
the passing of the recent legislation terminating 2 positions
Income Tax Commissioner, Mayor’s Court Clerk and
reorganizing the Council Clerk’s position, (two days a month
at $65.00 per meeting and records requests); I do not feel I
can accomplish this newly reorganized position effectively.
Therefore, please accept my resignation effective
immediately.
As God closes one door, He opens another. Thank you for
understanding.
(R. at 46.)
{¶ 17} 12. Crow was next examined by Darren Holsten, D.C., on June 28, 2021.
Dr. Holsten recommended an MRI and orthopedic consultation. Crow submitted a C-23
notice dated June 28, 2021 designating Holsten as her physician of record. Crow
underwent an MRI on July 28, 2021.
No. 22AP-274 6
{¶ 18} 13. In a MEDCO-14 form dated August 16, 2021, Dr. Holsten indicated that
Crow could not do the job held on the date of the injury as of June 28, 2021 and stated that
Crow’s possible return to work date was October 15, 2021. Dr. Holsten filed subsequent
MEDCO-14 forms on October 12, 2021 and January 17, 2022 continuing to find Crow was
unable to return to work and extending her return-to-work date.
{¶ 19} 14. In a C-86 motion dated September 17, 2021, Crow requested TTD
compensation from June 28, 2021 to an estimated return to work date of October 15, 2021
and to continue.
{¶ 20} 15. Crow was examined by Thomas J. Kovack, D.O., on September 21, 2021.
Dr. Kovack recommended surgery, stating that Crow “should have had surgery initially
with her fracture,” noting that in her initial x-rays, Crow “had a 3 or 4 part proximal
humerus fracture with intraarticular extension and displacement,” stating that Crow
“more than likely should have had an arthroplasty then” but it was “treated
nonoperatively.” (R. at 235.) Dr. Kovack noted that Crow “has a lot of pain and limited
motion.” (R. at 235.)
{¶ 21} 16. In a C-9 request for medical service reimbursement or recommendation
for additional conditions for industrial injury or occupational disease, which was dated
October 27, 2021 and signed by Dr. Kovack, an additional allowance was requested for left
proximal humerus fracture malunion. The BWC granted the additional allowance of
“proximal humerus fracture w/malunion” on November 23, 2021. (R. at 247.)
{¶ 22} 17. In an affidavit dated November 30, 2021, Joseph Stallard, mayor of
Butler, stated that Crow voluntarily resigned from her position on May 18, 2021 and
disputed Crow’s request for TTD compensation, claiming that Crow sought such
compensation retroactive to May 15, 2021. Mayor Stallard stated that Crow “performed
duties similar to that of a secretary/clerk, to include keeping notes, typing on a computer,
record retention, and performing any and all duties associated with her position.” (R. at
254.) Mayor Stallard stated that had it not been for Crow’s voluntary resignation, she could
have continued to be employed by Butler. Mayor Stallard averred that “[s]ubsequent to
her voluntary resignation, [Crow] has been seen around her home performing yard work,
to include operating a push mower, gardening, and tending to her home without
ambulatory aid, shoulder support, or any observable assistance.” (R. at 254.)
No. 22AP-274 7
{¶ 23} 18. On November 30, 2021, a commission district hearing officer (“DHO”)
conducted a hearing on Crow’s request for TTD compensation. In an order mailed
December 3, 2021, the DHO denied Crow’s request for TTD compensation. The DHO,
citing R.C. 4123.56(F) found that Crow resigned from her position of employment and was
not working for reasons unrelated to the allowed conditions in the claim.
{¶ 24} 19. On December 10, 2021, Crow filed an appeal from the DHO order.
{¶ 25} 20. On February 3, 2022, a commission staff hearing officer (“SHO”)
conducted a hearing on Crow’s appeal from the DHO order. In an order mailed February 9,
2022, the SHO granted Crow’s request for TTD compensation. Based on Dr. Holsten’s
MEDCO-14s dated August 16, 2021, October 12, 2021, and January 17, 2022, the SHO
awarded TTD compensation from June 28, 2021, the date of Crow’s first visit to Dr.
Holsten, until February 3, 2022, the date of the hearing before the SHO.
{¶ 26} The SHO found that before Crow’s injury, she performed three separate
positions: “council clerk; income tax commissioner; and Mayor’s Court Clerk.” (R. at 262.)
However, due to three ordinances passed by Butler on April 20, 2021, Crow’s duties as
Mayor’s Court Clerk were terminated effective April 20, 2021 and her duties as income tax
commissioner would be eliminated effective May 17, 2021, leaving Crow with only her
duties as council clerk. The SHO noted that, according to Crow and consistent with the
duties outlined in one of the ordinances passed on April 20, 2021, the duties of the council
clerk included taking notes at council meetings twice a month, typing these meeting
minutes, and responding to public records requests.
{¶ 27} The SHO made the following findings regarding Crow’s testimony:
[Crow] testified she returned to work performing all three
positions to the best of her abilities despite initially having
her left arm in a sling. She stated given the sling and the fact
she is left hand dominant, she was unable to write to take the
meeting minutes and really could not type them efficiently.
Given this scenario and the fact her restrictions would
prohibit the carrying record boxes and other duties requiring
two hands, [Crow] was not able to perform all the duties of
her former position although she attempted to continue to
work with restrictions. [Crow] noted she was able to enter
number data with her right hand for the income tax position.
[Crow] testified that given her limitations, another co-worker
took on a good bit of her job duties. This fact weighed heavily
No. 22AP-274 8
on [Crow], who felt she was getting paid to perform a job she
wasn’t really doing. She further noted that she felt that she
could not go on performing below standards, so she resigned.
(R. at 262.) The SHO found Crow’s testimony to be credible and persuasive. The SHO
noted the text of Crow’s resignation letter, particularly her statement that she was unable
to perform her council clerk duties “ ‘effectively.’ ” (R. at 262.) The SHO stated: “From
[Crow’s] testimony, it was clear she was feeling badly by needing the assistance of
another worker to fulfill all of her work duties and that she didn’t want to continue being
paid when she wasn’t fully working.” (R. at 262.) The SHO concluded that the reason
Crow “left her job via resignation was related to her industrial injury.” (R. at 262.)
{¶ 28} The SHO noted Crow began therapy on May 14, 2021, three days before the
effective date of her resignation. The SHO found that at that time her arm was not capable
of performing full work duties. Noting Crow’s continuing issues, the SHO documented the
May 25, 2021 office visit with Dr. Viau, in which Crow was regaining range of motion but
was to have another three weeks of therapy. From the final physical therapy report, the
SHO noted that Crow continued to have pain, strength, and mobility issues. Given Crow’s
ongoing issues, the SHO noted that Dr. Holsten, who began treating Crow as her physician
of record on June 28, 2021, ordered a new MRI and orthopedic consultation, which led to
the discovery of the malunion and need for surgery.
{¶ 29} Noting the text of R.C. 4123.56(F), the SHO made the following conclusions:
[Crow’s] inability to work is causally related to the allowed
conditions in this claim. The medical evidence supports on-
going inability to return to her former position of
employment. The evidence outlined above supports the
reason [Crow] is no longer working for [Butler] is related to
the industrial injury and her reduced abilities and enviable
work ethic.
(R. at 263.) The SHO explicitly found Crow’s testimony to be more credible than the
November 30, 2021 affidavit of Mayor Stallard, noting that Mayor Stallard “incorrectly
states [Crow] is requesting the payment of compensation retroactively to 05/14/2021,
her last day of work,” but that Crow’s “request, per the 09/17/2021 C-86 Motion is from
06/28/2021.” (R. at 263.)
No. 22AP-274 9
{¶ 30} 21. On February 14, 2022, Butler filed an appeal from the SHO order
granting TTD compensation. The commission refused the appeal in an order mailed
March 1, 2022. Butler sought reconsideration on March 7, 2022. The commission denied
Butler’s request in an order mailed March 15, 2022 on the basis that Butler’s request for
reconsideration failed to meet the criteria of Industrial Commission Resolution R18-1-06.
{¶ 31} 22. Butler filed a complaint in mandamus in the instant case on May 4,
2022.1
II. Discussion and Conclusions of Law
{¶ 32} Butler seeks a writ of mandamus ordering the commission to vacate its order
granting TTD compensation to Crow.
A. Requirements for Mandamus
{¶ 33} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire
Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141 (1967). Where the commission’s factual determination is
supported by some evidence, it has not abused its discretion and this court must uphold
the decision. State ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266, 2019-Ohio-
3341, ¶ 44, citing State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996).
{¶ 34} The commission is “exclusively responsible for assessing the weight and
credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-
Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
Where the commission’s decision is supported by some evidence, the presence of contrary
evidence in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d
1 In its complaint, Butler states that it seeks a writ of mandamus ordering the commission “to vacate its
Order denying [Crow’s] request for temporary total disability benefits, or return the claim to the
[commission] for a re-hearing.” (Compl. at 6.) In its merit brief, Butler asserts entitlement to a writ of
mandamus because the commission “erred in granting [Crow] [TTD] benefits following her voluntary
resignation of employment.” (Relator’s Brief at 12.) From this and Butler’s other statements in its
complaint and subsequent briefing, it is clear Butler seeks a writ of mandamus vacating the commission
order granting Crow TTD compensation.
No. 22AP-274 10
354, 356 (1996), citing Burley. However, the commission cannot rely on a medical opinion
that is equivocal or internally inconsistent. George at ¶ 11. See State ex rel. Lopez v. Indus.
Comm., 69 Ohio St.3d 445, 449 (1994).
B. Temporary Total Disability under Workers’ Compensation Law
{¶ 35} “ ‘The purpose of TTD compensation is to “compensate an injured employee
for the loss of earnings that he [or she] incurs while the injury heals.” ’ ”
Ewell v. Montgomery Cty. Court of Common Pleas, 10th Dist. No. 13AP-1078, 2014-Ohio-
3047, ¶ 13, quoting Cordial v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-473,
2006-Ohio-2533, ¶ 8, quoting State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 380
(2000). When a claimant is unable to work at their prior position of employment, TTD
compensation is paid. Id. In order to be awarded TTD compensation, “ ‘the claimant must
show not only that he or she lacks the medical capability of returning to the former position
of employment but that a cause-and-effect relationship exists between the industrial injury
and an actual loss of earnings.’ ” State ex rel. Ohio State Univ. v. Pratt, 169 Ohio St.3d 527,
2022-Ohio-4111, ¶ 17, quoting State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
St.3d 25, 2002-Ohio-5305, ¶ 35. “ ‘In other words, it must appear that, but for the
industrial injury, the claimant would be gainfully employed.’ ” Id., quoting McCoy at ¶ 35.
“TTD benefits are paid during the healing and treatment period until: (1) the employee
returns to work; (2) the employee’s treating physician states that the employee is capable
of returning to the former position of employment; or (3) the temporary disability becomes
permanent.” Ewell at ¶ 13.
{¶ 36} R.C. 4123.56, which governs TTD compensation, contains restrictions
preventing the awarding of TTD compensation, providing in pertinent part:
[P]ayment [for TTD] shall not be made for the period when
any employee has returned to work, when an employee’s
treating physician has made a written statement that the
employee is capable of returning to the employee’s former
position of employment, when work within the physical
capabilities of the employee is made available by the
employer or another employer, or when the employee has
reached the maximum medical improvement.
R.C. 4123.56(A). R.C. 4123.56(B) provides formulas to compensate employees in
situations where an employee “suffers a wage loss as a result of returning to employment
No. 22AP-274 11
other than the employee’s former position of employment due to an injury or
occupational disease” or where an employee “suffers a wage loss as a result of being
unable to find employment consistent with the employee’s disability resulting from the
employee’s injury or occupational disease.”
{¶ 37} Until the enactment of 2020 Am.Sub.H.B. No. 81 (“H.B. 81”), voluntary
abandonment of employment was an affirmative defense to a claim for TTD
compensation. See State ex rel. Quest Diagnostics, Inc. v. Indus. Comm. of Ohio, __ Ohio
St.3d , 2023-Ohio-2213, ¶ 16. Under the judicially-created doctrine of voluntary
abandonment, “when a workers’ compensation claimant voluntarily removes [themselves]
from [their] former position of employment for reasons unrelated to a workplace injury,
[the claimant] is no longer eligible for [TTD] compensation, even if the claimant remains
disabled at the time of [their] separation from employment.” State ex rel. Klein v.
Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, ¶ 29.
{¶ 38} Effective September 15, 2020, H.B. 81 amended R.C. 4123.56 by adding
division (F), which provides:
If an employee is unable to work or suffers a wage loss as the
direct result of an impairment arising from an injury or
occupational disease, the employee is entitled to receive
compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has
suffered a wage loss as the direct result of reasons unrelated
to the allowed injury or occupational disease, the employee is
not eligible to receive compensation under this section. It is
the intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary
abandonment to a claim brought under this section.
R.C. 4123.56(F). Claims pending on or arising after the effective date are subject to the
provisions of R.C. 4123.56(F). State ex rel. Autozone Stores, Inc. v. Indus. Comm. of
Ohio, 10th Dist. No. 21AP-294, 2023-Ohio-633, ¶ 8, fn. 1; Pratt, 2022-Ohio-4111, ¶ 10,
fn. 2; H.B. 81, Section 3.
C. Application
{¶ 39} Butler argues the commission abused its discretion and erred as a matter of
law under R.C. 4123.56(F) by granting TTD compensation following Crow’s voluntary
resignation causing unemployment for reasons unrelated to the allowed injury. Butler’s
No. 22AP-274 12
arguments fail to account for the changes wrought by the addition of R.C. 4123.56(F), most
notably including the abrogation of the voluntary abandonment doctrine.
{¶ 40} In Autozone, this court considered the operation of R.C. 4123.56(F). Under
the facts of that case, following the claimant’s injury, a workers’ compensation claim was
allowed for multiple conditions. The claimant continued to work with light duty
restrictions until he became involved in an argument with another employee and was
subsequently terminated from employment. The claimant sought TTD compensation and
was denied by the employer. The claimant then underwent surgery, and a MEDCO-14 was
filed by a physician indicating that the claimant was unable to work. The SHO issued an
order granting TTD compensation based on the fact that the claimant was under
restrictions due to the allowed conditions at the time of termination and was completely
removed from the workforce after the surgery. The SHO therefore found that under
R.C. 4123.56, the claimant was unable to work as a direct result of an impairment arising
from the allowed injury from the date of the surgery.
{¶ 41} Responding to the employer’s argument that the claimant was not entitled
to TTD compensation because the claimant was not employed at the time of his
termination, this court found that prior decisions relying on the voluntary abandonment
doctrine had been “superseded as stated in R.C. 4123.56(F).” Id. at ¶ 34. Finding
R.C. 4123.56(F) to be unambiguous, the court concluded that where a claimant is unable
to work, “R.C. 4123.56(F) sets forth two operative questions to be eligible for TTD
compensation: (1) whether he or she is unable to work as the direct result of an impairment
arising from an injury or occupational disease; and (2) whether he or she is otherwise
qualified to receive TTD compensation.” Id. at ¶ 35. Importantly, R.C. 4123.56(F) does not
operate to “impose an additional requirement on a claimant to prove he or she is unable
to work solely due to an impairment arising from an injury or occupational disease.”
(Emphasis sic.) Id. Rather, “[o]nly when an otherwise qualified claimant is not working as
a direct result of reasons unrelated to the allowed injury or occupational disease is the
claimant ineligible to receive TTD compensation.” Id.
{¶ 42} In this matter, the record demonstrates that Crow was unable to work during
the period for which TTD compensation was sought. As such, it is necessary to answer the
two operative questions posed by R.C. 4123.56(F) as described in Autozone. In answering
No. 22AP-274 13
the first part of the analysis under Autozone, i.e., whether the claimant is unable to work
as the direct result of an impairment arising from an injury or occupational disease, the
record in this case, including the August 16, 2021 and subsequent MEDCO-14 forms signed
by Dr. Holsten, provides some evidence Crow was completely unable to work due to her
allowed conditions at the time of her first examination by Dr. Holsten. As in Autozone, the
magistrate finds this evidence to be sufficient to satisfy the first sentence of R.C.
4123.56(F), demonstrating that Crow was unable to work as a direct result of impairment
arising from her workplace injury for the period at issue. This evidence is concomitantly
sufficient to negate the second sentence of R.C. 4123.56(F), showing the reasons Crow was
not working are not “unrelated to the allowed injury.” Regarding the second part of the
analysis under Autozone, i.e., whether the claimant is otherwise qualified to receive TTD
compensation, the restrictions in R.C. 4123.56(A) preventing the awarding of TTD
compensation do not apply in this matter. Crow did not seek TTD compensation for the
period while she was working for Butler, during a period when a physician found Crow was
capable of returning to her former position of employment, when work within Crow’s
physical capabilities was made available by Butler or another employer, or when she had
reached maximum medical improvement.
{¶ 43} Butler argues that at the time Crow resigned, no physician had certified that
relator was unable to work in her position. Butler cites State ex rel. Eckerly v. Indus.
Comm., 105 Ohio St.3d 428, 2005-Ohio-2587, for the proposition that an injury must
remove the injured worker from the job and that requirement cannot be satisfied if the
claimant had no job at the time of the alleged disability. In Eckerly, the court, noting prior
holdings in the evolution of the doctrine of voluntary abandonment, stated that a claimant
who voluntarily abandoned their position of employment or were fired under
circumstances that amount to a voluntary abandonment will be eligible to receive TTD
compensation if they reenter the workforce and, due to the original industrial injury,
become temporarily and totally disabled while working at the new job. The court stated
that the requirement from prior voluntary-abandonment cases that the industrial injury
must remove the claimant from their job “cannot be satisfied if claimant had no job at the
time of the alleged disability.” (Emphasis sic.) Eckerly at ¶ 9.
No. 22AP-274 14
{¶ 44} Eckerly did not involve R.C. 4123.56(F) and was entirely based on the
doctrine of voluntary abandonment and cases applying it. As a result, Eckerly is inapposite
to the present matter. Autozone at ¶ 34. Beyond its citation to Eckerly, Butler’s arguments
mirror those raised by the employer and rejected by this court in Autozone. As stated in
that case, the fact that a TTD claimant is “not working—alone—is not dispositive, but
rather requires an inquiry into whether the claimant is unable to work as the direct result
of an impairment arising from an injury or occupational disease.” Id. at ¶ 33, citing R.C.
4123.56(F). Thus, Crow is not barred from receiving TTD compensation merely because
she was not working at the time she applied.
{¶ 45} Butler also argues the SHO’s reasoning for granting TTD compensation
would permit any employee working in a light duty capacity to resign from his/her position
of employment in order to receive TTD compensation. In particular, Butler points to the
statements made in Crow’s resignation letter in arguing that “Crow filed the current
request for [TTD] benefits so that she could be paid her full wages while not working in
any capacity.” (Butler’s Brief at 10-11.) Butler further “questions the veracity of [Crow’s]
testimony, as her actions conflict with her alleged reasons for resigning from her light duty
position.” (Butler’s Brief at 11.) The commission responds that because its orders are based
on facts unique to the injured worker and the claim, what may be awarded to other injured
workers in other claims bears no relevance to the present matter.
{¶ 46} Butler’s concerns are not borne out by the text of R.C. 4123.56(F) which
requires TTD compensation be granted where the employee is unable to work as the direct
result of an impairment arising from an injury and is otherwise qualified, and that no
compensation be granted where the reason the employee is not working is the direct result
of reasons unrelated to the allowed injury. It is the role of the commission to inquire as to
the reason for a claimant’s inability to work and make a determination regarding whether
the inability to work is the direct result of an impairment or the direct result of reasons
unrelated to the allowed injury. Here, the commission completed that task by finding
Crow’s “inability to work is causally related to the allowed conditions in this claim” and
that “[t]he medical evidence supports on-going inability to return to her former position
of employment.” (R. at 263.) It is not the role of this court in an action in mandamus to
resolve questions of witness credibility. Rather, it is long-settled law that such credibility
No. 22AP-274 15
determinations are for the commission to make. George, 2011-Ohio-6036, at ¶ 11.
Furthermore, as this court noted in Autozone, Crow is not required to establish that she is
unable to work solely due to an impairment arising from an injury or occupational disease.
While she may have had other reasons or motivations, there is some evidence in the record
supporting the finding that she was unable to work as the direct result of an impairment
arising from her allowed injury.
{¶ 47} Because the commission’s order finding that Crow was not working as a
direct result of an impairment arising from her injury is adequately explained and
supported by some evidence, the commission has not committed an abuse of discretion in
its order granting TTD compensation and, therefore, mandamus will not lie. State ex rel.
Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 148 Ohio St.3d 34, 2016-Ohio-5011, ¶ 18,
citing State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584 (1997).
D. Conclusion
{¶ 48} Based on the foregoing, Butler has not demonstrated a clear legal right to the
requested relief or that the commission is under a clear legal duty to provide such relief.
Accordingly, it is the decision and recommendation of the magistrate that Butler’s request
for a writ of mandamus should be denied.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to
the magistrate’s decision within fourteen days of the filing of
the decision.