State ex rel. David v. Indus. Comm.

[Cite as State ex rel. David v. Indus. Comm., 2024-Ohio-2790.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Stanley F. David, :

Relator, : No. 22AP-380

v.

: (REGULAR CALENDAR)

Industrial Commission of Ohio et al.,

:

Respondents.

:

D E C I S I O N

Rendered on July 23, 2024.

On brief: Plevin & Gallucci Co., L.P.A., Frank L. Gallucci, III,

and Jeffrey A. Karson; Flowers & Grube, Louis E. Grube,

Paul W. Flowers, and Melissa A. Ghrist, for relator.

On brief: Dave Yost, Attorney General, and Cindy Albrecht,

for respondent Industrial Commission of Ohio.

On brief: Roetzel & Andress, L.P.A., Douglas E. Spiker,

Timothy J. Webster, and Danielle C. Young, for respondent

Zenith Systems LLC.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

BEATTY BLUNT, J.

{¶ 1} Relator, Stanley F. David, seeks a writ of mandamus ordering respondent,

Industrial Commission of Ohio (“commission”), to vacate its orders denying temporary

total disability (“TTD”) compensation and to issue an order granting TTD compensation

from December 5, 2018 and continuing forward.

{¶ 2} This court referred this matter to a magistrate of this court pursuant to Civ.R.

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

action on its merits and issued a decision that includes findings of fact and conclusions of

law, which is appended hereto. The magistrate determined that the Staff Hearing Officer

No. 22AP-380 2

(“SHO”) erred in denying relator’s application for TTD compensation on the premise that

relator was ineligible because he was unable to demonstrate evidence of wages during the

requested period of disability or evidence of wages for replacement, and thus the

commission abused its discretion in denying relator’s request for TTD compensation. The

magistrate has recommended that this court grant relator’s request, in part, by ordering a

limited writ of mandamus so that the commission may properly inquire as to the reason for

a claimant’s inability to work during the requested period of disability and make a

determination regarding whether the inability to work is the direct result of an impairment

arising from an injury or occupational disease or the direct result of reasons unrelated to

the injury or occupational disease as required by R.C. 4123.56.

{¶ 3} The commission has filed the following three objections to the magistrate’s

decision:

[1.] The commission’s order was supported by evidence and

the magistrate failed to acknowledge the commission as

the exclusive evaluator of the weight and credibility of

the evidence.

[2.] Evidence supported the commission’s determination

that David was not working as the direct result of

reasons unrelated to the allowed injury.

[3.] Evidence supported the commission’s determination

that David was not entitled to TTD compensation

because David was not “otherwise qualified” to receive

TTD compensation.

{¶ 4} Respondent, Zenith Systems LLC (“Zenith”), has filed the following as its sole

objection to the magistrate’s decision:

The commission’s order denying David’s request for

TTD compensation pursuant to R.C. 4123.56(F) was

supported by some evidence and did not constitute any

abuse of discretion to warrant the magistrate’s order to

remand the issue of David’s entitlement to TTD

compensation back to the commission.

{¶ 5} Because both the commission and Zenith have filed objections, we must

independently review the record and the magistrate’s decision to ascertain whether “the

magistrate has properly determined the factual issues and appropriately applied the law.”

Civ.R. 53(D)(4)(d). Neither party has objected to the factual findings of the magistrate

No. 22AP-380 3

and upon our review we find no error pertaining to same. We thus turn to whether the

magistrate has appropriately applied the law in this matter.

{¶ 6} In order for this court to issue a writ of mandamus as a remedy from a

determination of the commission, a 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

when the relator shows that the commission abused its discretion by entering an order that

is not supported by any evidence in the record.” State ex rel. Metz v. GTC, Inc., 142 Ohio

St.3d 359, 362, 2015-Ohio-1348, ¶ 11, citing State ex rel. Elliott v. Indus. Comm., 26 Ohio

St.3d 76 (1986). The court will not disturb the commission’s decision if there is “some

evidence” to support it. State ex rel. Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202

(1988); State ex rel. Bennett v. Aldi, Inc., 10th Dist. No. 14AP-632, 2016-Ohio-83, ¶ 6.

“ ‘Where a commission order is adequately explained and based on some evidence, * * * the

order will not be disturbed as manifesting an abuse of discretion.’ ” State ex rel. Avalon

Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-2287, ¶ 9, quoting

State ex rel. Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584 (1997). Thus, as long as some

evidence supports the commission’s decision, this court must defer to the commission.

{¶ 7} In making its determination, the resolution of disputed facts is within the

final jurisdiction of the commission. State ex rel. Allerton v. Indus. Comm., 69 Ohio St.2d

396, 397 (1982). 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).

{¶ 8} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for

wages lost when 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) the claimant has returned to work; (2) the claimant’s treating physician provides

a written statement that the claimant is able to return to the former position of

employment; (3) work within the physical capabilities of the claimant is made available by

the employer or another employer; or (4) the claimant has reached maximum medical

improvement (“MMI”). R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio

St.2d 630 (1982).

No. 22AP-380 4

{¶ 9} R.C. 4123.56, which was amended by H.B. No. 81, effective September 15,

2020, modified the prior version of R.C. 4123.56 by adding the following entirely new

language pertaining to voluntary abandonment:

(F) 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).

{¶ 10} In State ex rel. Autozone Stores, Inc. v. Indus. Comm., 10th Dist. No. 21AP-

294, 2023-Ohio-633, in considering R.C. 4123.56(F) as modified, this court held that “not

working—alone—is not dispositive [of whether a claimant is eligible for TTD

compensation], 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.”

Autozone at ¶ 33. “So long as that causal link is established, and he or she is otherwise

qualified, the claimant is eligible for TTD compensation.” Id. “R.C. 4123.56(F) requires us

to review only whether the claimant * * * was unable to work as the direct result of an

impairment arising from an injury or occupational disease to support the grant of TTD for

the period specified.” Id. at ¶ 34. Thus, our decision in Autozone makes clear that the

simple fact that an injured worker was not working prior to the claimed period of TTD does

not automatically disqualify a claimant from receiving TTD compensation. Autozone at

¶ 30. Similarly, in Autozone, this court rejected the concept that an injured worker is not

entitled to TTD compensation unless he is employed at the time of the claimed period of

TTD and actually suffered lost wages. Id. at ¶ 32-33.

{¶ 11} Under R.C. 4123.56(F), there are two operative questions in determining

eligibility for TTD compensation: “(1) whether [the claimant] is unable to work as the direct

result of an impairment arising from an injury or occupational disease; and (2) whether

[the claimant] is otherwise qualified to receive TTD compensation.” Autozone at ¶ 35. In

Autozone, we held that the phrase “otherwise qualified” in the first sentence of R.C.

No. 22AP-380 5

4123.56(F) referred back to the disqualifications set forth in R.C. 4123.56(A), including the

claimant having reached MMI. Id. at ¶ 29. We further noted that even if a claimant was

unable to work as the direct result of an impairment arising from an injury, the claimant

was not otherwise qualified to receive TTD compensation if he had reached MMI. Id., citing

State ex rel. R.R. Donnelley & Sons Co. v. Indus. Comm., 10th Dist. No. 21AP-119, 2022-

Ohio-4774, ¶ 42.

{¶ 12} In Autozone, we also addressed the phrase ‘‘direct result,’’ as used in both the

first and second sentences in R.C. 4123.56(F), as follows:

Reading the ordinary meaning of ‘‘direct’’ within the context

of the statute as a whole, R.C. 4123.56(F) requires a claimant’s

inability to work to stem immediately from an impairment

arising from an injury or occupational disease. We decline to

extrapolate an additional requirement in R.C. 4123.56(F) that

a claimant prove he or she is unable to work only due to an

impairment arising from an injury or occupational disease.

Such a reading would in essence add words to the statute,

which courts are not permitted to do. [Gabbard v. Madison

Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-

Ohio-2067, ¶ 13]. Furthermore, the second sentence of

R.C. 4123.56(F) shows the legislature contemplated that

multiple ‘‘reasons’’ may contribute to a claimant being unable

to work, and only when those reasons are ‘‘unrelated’’ to the

workplace injury would TTD be inappropriate. R.C.

4123.56(F). To instead adopt the employer’s position would,

in essence, turn the court’s gaze back to those facts

surrounding why the claimant left the workforce preceding

the period of TTD compensation—effectively resurrecting the

voluntary abandonment analysis expressly superseded by the

legislature.

Autozone at ¶ 22. In other words, although there may very well be other reasons why an

employee is not working, as long as he or she is unable to work as the direct result of an

impairment arising from an injury or occupational disease, that is sufficient for TTD

compensation eligibility.

{¶ 13} With the foregoing law governing a claimant’s eligibility for TTD in mind,

we now turn to the objections of the commission. In its first objection, the commission

asserts its order was supported by evidence and the magistrate failed to acknowledge the

commission as the exclusive evaluator of the weight and credibility of the evidence. In this

No. 22AP-380 6

objection, the commission argues that although the denial of TTD may have been based on

an improper standard and considerations, there was other evidence that could have been

relied upon by the SHO to deny TTD. Specifically, the commission points to the SHO’s

finding that the treatment notes of John Wilbur, M.D. (“Dr. Wilbur”) from January 23,

2018 through July 23, 2021 are inconsistent with the subsequent MEDCO-14 dated July 29,

2021 because the treatment notes do not speak to David’s work status. The commission

asserts the alleged inconsistency between Dr. Wilbur’s notes and the later-filed MEDCO-14

is “some evidence” supporting the ultimate denial of David’s request for TTD benefits;

therefore, asserts the commission, its order should not be disturbed. We do not agree.

{¶ 14} First, the SHO’s clear legal error of its misapplication of the Autozone

decision and in ignoring R.C. 4123.56(F), which was enacted in 2020 specifically to

“supersede judicial decisions applying the voluntary abandonment doctrine” (Autozone

at ¶ 14), taints the SHO’s entire ruling. Such a clear legal error can only be rectified by

remanding the matter to the commission for the proper analysis.

{¶ 15} Furthermore, Dr. Wilbur’s mere silence on the factual issue of ability to

work/extent of disability as a result of the later-allowed condition of post-traumatic

arthritis in the left hip is not inconsistent with his subsequent opinion on that factual issue

as evinced in the MEDCO-14 submitted on July 29, 2021. Moreover, even if there were

any inconsistencies between Dr. Wilbur’s treatment notes between January 23, 2018 and

July 23, 2021 and the MEDCO-14 submitted on July 29, 2021, such inconsistencies would

not be a valid basis for the denial of TTD benefits premised on the additional allowance

of post-traumatic arthritis in the left hip. This is so because a finding of lack of work

ability prior to the additional allowance of a condition is not a requirement under the

statute governing the payment of TTD benefits. See R.C. 4123.56.

{¶ 16} Accordingly, we overrule the commission’s first objection.

{¶ 17} In its second objection, the commission contends evidence supported the

commission’s determination that David was not working as the direct result of reasons

unrelated to the allowed injury. In this objection, the commission insists that the SHO did

not base her decision denying TTD benefits solely upon David’s lack of wages, but that

other facts in the record cited to by the SHO support a finding that David was not working

for reasons unrelated to the injury. We reject this argument because it wholly

No. 22AP-380 7

misconstrues and misstates the requirements of R.C. 4123.56(F), as this court fully

discussed in Autozone.

{¶ 18} As the magistrate explained, in Autozone, this court explicitly “decline[d] to

extrapolate an additional requirement in R.C. 4123.56(F) that a claimant prove he or she

is unable to work only due to an impairment arising from an injury or occupational

disease.” (Emphasis sic.) Autozone at ¶ 22. In other words, regardless of other reasons

why David had not been working prior to the additional allowance of the physical

condition of post-traumatic arthritis in the left hip, he is entitled to TTD compensation if

this newly allowed condition also prevented him from working. See Autozone at ¶ 33.

{¶ 19} In short, as we found in Autozone, R.C. 4123.56(F) limits the inquiry to

whether David’s “inability to work” resulted “immediately from an impairment arising

from an injury or occupational disease.” Autozone at ¶ 22. He was not required to

“eliminate other reasons” he “had been out of work previously.” Id. at ¶ 19. (Emphasis

added.) Thus, the SHO’s order misapplied the law to the facts in the record in this case,

and a clear mistake of law was committed which must be rectified via mandamus.

{¶ 20} Accordingly, we overrule the commission’s second objection.

{¶ 21} Lastly, in its third objection, the commission asserts evidence supported the

commission’s determination that David was not entitled to TTD compensation because

David was not “otherwise qualified” to receive TTD compensation. In this objection, the

commission asserts that because David had previously been found to have reached MMI,

and thereafter David had not been certified as eligible for TTD compensation between

2014 and 2021, he was not “otherwise qualified” to receive TTD compensation. This

objection is readily dispensed with.

{¶ 22} In this case, the allowed conditions for which David had been found to be at

MMI were his sole psychological condition and the previously allowed physical conditions

of fracture of the left pelvis and left femur, for which the physical conditions had never

been the basis for the denial of termination of any benefits in any event. But David is now

seeking TTD compensation not based upon those previously allowed conditions, but

rather upon the newly allowed condition of post-traumatic arthritis in the left hip. TTD

compensation may be paid on account of a new disabling condition notwithstanding a

prior determination of MMI as to one or more other conditions. See State ex rel. Airborne

No. 22AP-380 8

Freight Corp. v. Indus. Comm., 117 Ohio St.3d 369, 2008-Ohio-1116, ¶ 9-16; State ex rel.

Stouffer Corp. v. Indus. Comm., 10th Dist. No. 01AP-1425, 2002-Ohio-4297, citing State

ex rel. Basye v. Indus. Comm., 64 Ohio St.3d 68 (1992); State ex rel. Richardson v.

Quarto Mining Co., 73 Ohio St.3d 358, 652 (1995). Further, new or changed

circumstances are not relevant to the inquiry when TTD benefits are being sought for a

condition that has not reached MMI. Airborne Freight at ¶ 16.

{¶ 23} Accordingly, we overrule the commission’s third objection.

{¶ 24} We now turn to Zenith’s sole objection, in which it contends the commission’s

order denying David’s request for TTD compensation, pursuant to R.C. 4123.56(F), was

supported by some evidence and did not constitute any abuse of discretion to warrant the

magistrate’s order to remand the issue of David’s entitlement to TTD compensation back

to the commission. We reject this contention for the same reasons that we rejected the

commission’s first and second objections, which we discussed above and will not restate

here.

{¶ 25} Additionally, Zenith’s objection further lacks merit because its argument

that David “was ‘not otherwise qualified’ to receive” TTD benefits as a matter of law under

R.C. 4123.56(F) because he “was not working and had suffered a wage loss as the direct

result of reasons unrelated to the original injury” misconstrues and misstates the

standard for finding a claimant “not otherwise qualified” under the statute, as explained

by this court in Autozone. (Feb. 7, 2024 Objs. to Mag.’s Decision of Respondent Zenith

Systems LLC at 9.) More specifically, we found that, reading the code section “as a whole,

the phrase ‘otherwise qualified’ in the first sentence of R.C. 4123.56(F) as it relates to TTD

compensation plainly refers back to the disqualifications set forth in section (A), i.e.,

returning to work, a statement from the treating physician states the employee is capable

of return to work, the employer or another employer makes work available within the

physical capabilities of the employee, or the employee has reached [MMI].” Autozone at

¶ 29. In short, in Autozone, we explicitly rejected the argument Zenith makes in its

objection.

{¶ 26} Accordingly, we overrule Zenith’s sole objection to the magistrate’s decision.

{¶ 27} Based on the foregoing, we overrule all of the filed objections. Having

conducted an examination of the magistrate’s decision and an independent review of the

No. 22AP-380 9

evidence, pursuant to Civ.R. 53, we find the magistrate properly applied the relevant law to

the salient facts in reaching the conclusion that relator is entitled to a limited writ of

mandamus so the commission may properly apply R.C. 4123.56(F) and determine whether

relator is entitled to TTD compensation for the period requested. Therefore, we adopt the

magistrate’s decision as our own, including the findings of fact and conclusions of law

contained therein, and we grant relator’s request to the extent that we find a limited writ of

mandamus is warranted, as consistent with the within decision.

Objections overruled;

limited writ of mandamus granted;

matter remanded for further proceedings.

MENTEL, P.J., and LELAND, J., concur.

No. 22AP-380 10

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Stanley F. David, :

Relator, :

v. No. 22AP-380

:

Industrial Commission of Ohio et al., (REGULAR CALENDAR)

:

Respondents.

:

MAGISTRATE’S DECISION

Rendered on January 10, 2024

Plevin & Gallucci Co., L.P.A., Frank L. Gallucci, III, and

Jeffrey A. Karson; Flowers & Grube, Louis E. Grube, Paul W.

Flowers, and Melissa A. Ghrist, for relator.

Dave Yost, Attorney General, and Cindy Albrecht, for

respondent Industrial Commission of Ohio.

Roetzel & Andress, L.P.A., Douglas E. Spiker, Timothy J.

Webster, and Danielle C. Young, for respondent Zenith

Systems LLC.

IN MANDAMUS

{¶ 28} Relator Stanley F. David seeks a writ of mandamus ordering respondent

Industrial Commission of Ohio (“commission”) to vacate its orders denying temporary total

disability (“TTD”) compensation and to issue an order granting TTD compensation from

December 5, 2018 and onward.

I. Findings of Fact

{¶ 29} 1. Relator sustained an injury in the course of and arising out of his

employment with respondent Zenith Systems LLC (“Zenith”) on November 16, 2010 when

No. 22AP-380 11

he fell from a truck. On December 13, 2010, a Bureau of Workers’ Compensation (“BWC”)

first report of an injury, occupational disease or death (“FROI” or “FROI-1”) form was filed.

Relator’s injury or part of the body affected was described in the FROI as follows: “Left

hip/thigh/buttock.” (Stip. at 1.)

{¶ 30} 2. Relator’s claim was initially allowed for the conditions of fracture of pelvis

and fracture of femur. By a February 10, 2012 order of a commission district hearing officer

(“DHO”), relator’s claim was amended to allow the condition of substantial aggravation of

pre-existing major depressive disorder. A commission staff hearing officer (“SHO”)

affirmed the DHO’s order on March 20, 2012.

{¶ 31} 3. Relator’s treating physician, John H. Wilber, M.D., completed a series of

MEDCO-14 physician’s report of work ability (“MEDCO-14”) forms. In a MEDCO-14 dated

January 7, 2013, Dr. Wilber indicated relator was temporarily not released to any work,

including his former position of employment, from November 16, 2010 to February 16,

2013. In a MEDCO-14 dated February 11, 2013, Dr. Wilber indicated relator was not

released to the former position of employment but would be able to return to available and

appropriate work with restrictions from November 16, 2010 to May 16, 2013. In a MEDCO-

14 dated June 17, 2013, Dr. Wilber indicated relator was temporarily not released to work,

including the former position of employment, from November 16, 2010 to December 4,

2013. In a MEDCO-14 dated December 5, 2013, Dr. Wilber indicated relator was not

released to any work, including the former position of employment, from December 4, 2013

to June 3, 2014. Following the December 5, 2013 MEDCO-14, no MEDCO-14 forms appear

in the record until a MEDCO-14 dated July 29, 2021.

{¶ 32} 4. Relator was examined by Kiva Shtull, M.D., on March 3, 2014 with regard

to the physical conditions of his claim. Dr. Shtull found relator was not able to return to his

previous position of employment and job duties without restrictions. Dr. Shtull found

relator’s allowed physical conditions had reached maximum medical improvement

(“MMI”), stating that relator “fulfills the definition of a treatment plateau beyond which no

functional or physiologic improvement can reasonably be expected despite any further

therapeutic interventions.” (Stip. at 21.)

{¶ 33} 5. Relator was next examined on March 7, 2014 by Paul A. Deardorff, Ph.D.,

with regard to his allowed psychological condition of substantial aggravation of pre-existing

No. 22AP-380 12

major depressive disorder. Dr. Deardorff found that relator was not prevented from

returning to his former position of employment without restrictions based on the allowed

psychological condition. Dr. Deardorff further found relator had reached MMI with regard

to the allowed psychological condition.

{¶ 34} 6. In a letter dated April 9, 2014, Michael Faust, Ph.D., found relator had

reached MMI with regard to the allowed psychological condition.

{¶ 35} 7. In an April 24, 2014 order, a commission DHO ordered relator’s TTD

compensation to be terminated effective April 9, 2014 based on the report of Dr. Faust. The

April 24, 2014 DHO order was affirmed by a commission SHO in a May 31, 2014 order.

{¶ 36} 8. As documented in a series of notes, relator was seen for follow-up

appointments with Dr. Wilber’s office on the following dates: June 3, 2014, January 13,

2015, April 14, 2015, January 29, 2016, July 29, 2016, July 25, 2017, January 23, 2018, July

24, 2018, January 22, 2019, July 23, 2019, January 28, 2020, July 28, 2020, August 11,

2020, October 13, 2020, April 13, 2021, July 23, 2021, December 7, 2021, and February 22,

2022.

{¶ 37} 9. In a C-9 request for medical service reimbursement or recommendation

for additional conditions for industrial injury or occupational disease (“C-9”) form signed

by Dr. Wilber on December 5, 2018, Dr. Wilber recommended the additional condition of

traumatic arthritis left hip.

{¶ 38} 10. On December 11, 2018, relator filed a C-86 motion requesting the

condition of “Post Traumatic Arthritis Left Hip” be allowed based on the diagnosis of

Dr. Wilber.

{¶ 39} 11. Following a hearing on March 21, 2019, a commission DHO denied

relator’s motion for allowance of the condition of post traumatic left hip arthritis in a

January 16, 2019 order. Following a hearing on April 30, 2019, a commission SHO affirmed

the DHO order in an order dated May 7, 2019. The commission refused relator’s appeal

from the SHO order on May 29, 2019.

{¶ 40} 12. Relator filed a notice of appeal from the May 29, 2019 commission order

with the Cuyahoga County Court of Common Pleas on June 12, 2019. Pursuant to a jury

verdict, it was determined that relator was entitled to participate in the Workers’

No. 22AP-380 13

Compensation Fund for the requested condition of “post-traumatic arthritis left hip” as a

result of relator’s November 16, 2010 injury. (Stip. at 104.)

{¶ 41} 13. On September 7, 2021, relator filed a C-86 motion requesting TTD

compensation beginning December 5, 2018 and continuing. The motion was accompanied

by a C-84 request for temporary total compensation signed by relator on July 25, 2021. In

the C-84 request, relator indicated he was not working in any capacity, had not worked

during the requested period of disability, and did not have a job to which he could return.

The last date relator had worked anywhere was November 16, 2010, the date of the work-

related injury. Describing what he felt was preventing him from returning to work at the

time, relator stated, “Pain, Limited mobility, age.” (Stip. at 110.) In response to the question

of whether he would consider participating in vocational rehabilitation if appropriate,

relator indicated, “No,” and provided the following explanation: “I’m 70 yrs. [sic] old now.”

(Stip. at 110.) Relator indicated he was receiving social security retirement benefits. The C-

86 motion and C-84 request were accompanied by a MEDCO-14, which was signed by Dr.

Wilber on July 29, 2021. Dr. Wilber indicated in the MEDCO-14 that relator was unable to

do the job held on the date of injury from December 5, 2018 to October 25, 2021.1

{¶ 42} 14. Following a hearing, a commission DHO issued an order granting

relator’s request for TTD compensation on November 23, 2021. The DHO noted the

condition of post-traumatic arthritis left hip was allowed by the July 7, 2021 jury verdict in

the common pleas court case. Zenith filed an appeal from the November 23, 2021 DHO

order.

{¶ 43} 15. In a MEDCO-14 dated December 13, 2021, Dr. Wilber indicated that

relator could not return to the full duties of his job held on the date of the injury for a period

beginning December 5, 2018 until March 1, 2022.

{¶ 44} 16. On appeal from the November 23, 2021 DHO order, a commission SHO

conducted a hearing on January 3, 2022. In a January 6, 2022 order, the SHO vacated the

DHO’s order and denied relator’s request for TTD compensation. First, the SHO found the

requested TTD compensation from December 5, 2018 through September 6, 2019 was

1 The parties’ stipulation of evidence reflects that the MEDCO-14 was not filed until September 7, 2021, the

date of relator’s C-86 motion for TTD compensation and C-84 request for TTD compensation.

No. 22AP-380 14

time-barred as filed beyond the two-year statute of limitations provided by R.C. 4123.52.

With regard to the requirements of R.C. 4123.52, the SHO further stated:

The Staff Hearing Officer finds that an application for

compensation is governed by the provisions of 4123.52. The

Staff Hearing Officer further finds that [relator’s] counsel’s

citation of Memo I2 of the Adjudications Before the Industrial

Commission pertaining to the two year notice requirement

under R.C. 4123.84 not applying to residual or flow-through

conditions is not synonymous with or does not extend the time

limitations to applications for compensation.

(Stip. at 117.)

{¶ 45} The SHO additionally denied TTD compensation for the period of December

5, 2018 through the present “as [relator] has no wages for replacement and is therefore, not

eligible for the requested compensation pursuant to R.C. 4123.56(F).” (Stip. at 117.) With

regard to this finding, the SHO stated:

The Staff Hearing Office finds that [relator] previously retired

after 30 years of employment with the Illuminating Company

prior to the date of injury in this claim and subsequently

worked for a two month period prior sustaining the injury

herein. The [relator] was certified for temporary total

disability for the allowed physical conditions initially in this

claim from 11/16/2010 through 12/04/2013. The Staff

Hearing Officer finds no further MEDCO-14 Physician’s

Reports of Work Ability or C-84 Requests for Compensation

related to the allowed physical conditions filed in this claim

until the C-84 at issue filed 09/07/2021 and 07/29/2021

MEDCO-14.

The Staff Hearing Officer further finds that [relator] received

temporary total disability compensation for the allowed

psychological condition until 04/09/2014 when [relator] was

found to have reached maximum medical improvement for

the allowed psychological condition. The medical evidence

relied upon in the determination of [relator] having reached

maximum medical improvement for the allowed

psychological condition was the 04/09/2014 questionnaire

completed by the treating provider, Michael Faust, Ph.D., and

a report by Paul Deardorf, Ph.D., dated 03/07/2014. The

report of Dr. Deardorf further opined that [relator] could

return to his former position of employment and that the

allowed substantial aggravation of pre-existing major

depressive disorder was not work prohibitive.

No. 22AP-380 15

(Stip. at 117-18.)

{¶ 46} The SHO found relator had not worked since November 16, 2010 and that

“there is insufficient evidence of disability related to the allowed conditions in this claim”

from April 9, 2014 until relator’s filing of the C-84 request for TTD compensation on

September 7, 2021. (Stip. at 118.) Furthermore, the SHO found relator had been receiving

social security retirement since October 2011 and “testified at the present hearing that he

has not made any attempt to return to work since his temporary total disability was

terminated in 2014.” (Stip. at 118.) The SHO “acknowledge[d] the additional allowance in

this claim for post-traumatic arthritis of the left hip by trial court judgment” on July 7, 2021,

but nevertheless found “the additional allowance alone, absent evidence of wages during

the requested period of disability, does not qualify [relator] for the requested temporary

total disability.” (Stip. at 118.) Additionally, the SHO found review of Dr. Wilber’s treatment

notes from January 23, 2018 through July 23, 2021 “are inconsistent with the MEDCO-14

dated 07/29/2021, as the treatment records beginning 01/23/2018 do not mention and/or

remain silent as [to relator’s] work status.” (Stip. at 118.) In accordance with these findings,

the SHO denied TTD compensation for the requested period. (Stip. at 118.)

{¶ 47} 17. Relator appealed the January 6, 2022 SHO order. On January 27, 2022,

the commission issued an order refusing relator’s appeal.

{¶ 48} 18. Relator filed a motion for reconsideration of the January 27, 2022 order

of the commission. On May 12, 2022, the commission issued an order denying relator’s

request for reconsideration.

{¶ 49} 19. Relator filed his complaint in this mandamus action on July 1, 2022.

II. Discussion and Conclusions of Law

{¶ 50} Relator seeks a writ of mandamus ordering the commission to grant relator

TTD compensation.

A. Requirements for Mandamus

{¶ 51} 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.

No. 22AP-380 16

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).

{¶ 52} 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

354, 356 (1996), citing Burley.

B. Temporary Total Disability Compensation

{¶ 53} R.C. 4123.56, which governs TTD compensation, sets forth the circumstances

under which a claimant is entitled to receive TTD compensation:

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). See State ex rel. Autozone Stores, Inc. v. Indus. Comm. of Ohio, 10th Dist.

No. 21AP-294, 2023-Ohio-633.2 The statute also contains other restrictions on qualifying

for or continuing to receive an award of TTD compensation:

[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

2 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. Effective September 15, 2020, H.B. 81 amended

R.C. 4123.56 by adding division (F). Claims pending on or arising after the effective date are subject to the

provisions of R.C. 4123.56(F). Autozone at ¶ 8, fn. 1; Pratt, 2022-Ohio-4111, at ¶ 10, fn. 2; H.B. 81, Section 3.

Because relator’s application for TTD compensation was filed on September 7, 2021, after the effective date of

H.B. 81, the provisions of R.C. 4123.56(F) apply.

No. 22AP-380 17

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).

C. Application

{¶ 54} Relator asserts the commission erred by denying his request for TTD

compensation for two reasons.3

1. Whether Statute of Limitations in R.C. 4123.52(A) Applied

{¶ 55} First, relator argues the SHO incorrectly applied a statute of limitations to

deny relator’s request. The SHO found relator’s request for TTD compensation from

December 5, 2018 through September 6, 2019 was time-barred because the application was

filed beyond the two-year statute of limitations provided by R.C. 4123.52.

{¶ 56} The continuing jurisdiction of the commission is governed by R.C. 4123.52.

Pursuant to this statute, the commission has continuing jurisdiction over each case and,

subject to certain temporal limitations, it “may make such modification or change with

respect to former findings or orders with respect thereto, as, in its opinion is justified.” R.C.

4123.52(A). In one such temporal limitation, the statute provides that “[t]he commission

shall not make any modification, change, finding, or award which shall award

compensation for a back period in excess of two years prior to the date of filing application

therefor.” R.C. 4123.52(A). See State ex rel. Spotleson v. Medlab Ohio Inc., 10th Dist. No.

21AP-362, 2023-Ohio-2464, ¶ 7. Furthermore, R.C. 4123.52(D) provides that “[t]his

section does not affect the right of a claimant to compensation accruing subsequent to the

filing of any such application, provided the application is filed within the time limit

3 Relator also argues in his brief that he exhausted all administrative remedies despite the commission’s

defense in its answer that he failed to do so. Neither the commission nor Zenith contend in their briefs that

relator failed to exhaust the available administrative remedies. Here, the SHO’s order denied relator’s request

for TTD compensation. Relator’s appeal of that order was refused. Moreover, relator sought and was denied

reconsideration of the order refusing his appeal. Relator did not fail to exhaust the available administrative

remedies. State ex rel. Novak v. Indus. Comm., 10th Dist. No. 92AP-1326, 1993 Ohio App. LEXIS 5411 (Nov.

12, 1993); State ex rel. Dillon v. Indus. Comm., 10th Dist. No. 20AP-600, 2022-Ohio-4773, ¶ 10; State ex rel.

Lapp Roofing & Sheet Metal Co. v. Indus. Comm., 10th Dist. No. 05AP-950, 2007-Ohio-933, ¶ 11-12 (stating

that the relator “did not have to seek reconsideration of the adverse decision before seeking relief in

mandamus * * * [n]or was relator required to seek relief under R.C. 4123.52 (commission’s continuing

jurisdiction) before seeking relief in mandamus”).

No. 22AP-380 18

provided in this section.” The term “application” in R.C. 4123.52(A) is not statutorily

defined. State ex rel. Cobble v. Indus. Comm. of Ohio, 92 Ohio St.3d 22, 25 (2001).

{¶ 57} “ ‘The purposes of * * * [the] statutory limitation on the prosecution of

compensation claims are that such claims be prosecuted promptly * * * while the facts are

available; and that the ultimate liability under such claims be established promptly so that

it may be enforced by the * * * [Industrial Commission] for the benefit of the fund.’ ”

(Brackets sic.) State ex rel. Gen. Refractories Co. v. Indus. Comm. of Ohio, 44 Ohio St.3d

82, 83 (1989), quoting State ex rel. Hammond v. Indus. Comm., 144 Ohio St. 477, 481

(1945). The Supreme Court of Ohio has acknowledged that R.C. 4123.52 “is, at times, a very

confusing statute,” and has produced “varying interpretations” due to the statutory text’s

“intermix[ing] [of] a general grant of continuing jurisdiction with several statutes of

limitations.” State ex rel. Drone v. Indus. Comm., 93 Ohio St.3d 151, 153 (2001) (stating

that R.C. 4123.52’s “prohibition against retroactively ‘awarding’ compensation in excess of

two years is also a potential source of trouble”). Given the recognized confusion regarding

the nature of the limitation on back awards of compensation in R.C. 4123.52(A) and

considering that the limitation has been construed by the Supreme Court and this court,

some discussion of those decisions is warranted.

{¶ 58} In Gen. Refractories, the Supreme Court of Ohio construed the temporal

limitation in R.C. 4123.52(A) on back awards of compensation. The claimant in that case

requested the allowance of an additional condition. In the March 23, 1982 medical report

supporting the additional condition, the physician stated that the additional condition “may

be due to the industrial injury of December 1, 1981, and would prevent appellee from

returning to work until approximately May 3, 1982.” Id. at 82. On June 23, 1983, the

claimant filed a motion with the commission seeking allowance of the additional condition.

Following the commission’s order granting the additional condition, the claimant filed

another motion on May 15, 1985 requesting to be awarded TTD compensation from March

16, 1982 through August 15, 1985. After a hearing, the commission granted the request for

compensation and construed the claimant’s June 23, 1983 motion seeking an additional

allowance as an application for compensation. The employer sought relief in mandamus,

arguing that because the claimant did not file his application for an award of TTD

No. 22AP-380 19

compensation until May 15, 1985, he was not entitled to compensation for the period March

16, 1982 to May 15, 1983 pursuant to R.C. 4123.52.

{¶ 59} On appeal from the denial of the request for mandamus, the Supreme Court

of Ohio considered the issue of whether the claimant’s motion for the allowance of an

additional condition should be construed as an application for compensation within the

meaning of R.C. 4123.52. The employer argued that since the claimant did not specifically

request compensation in the motion for allowance, such motion could not be construed as

an application for compensation. Noting that “R.C. 4123.52 does not state how an

application for compensation must be made,” the court found that “[t]he fact that the

application in question did not expressly request compensation is not conclusive of whether

it was for compensation.” Gen. Refractories at 83. Rather, whether something qualified as

an application for compensation under R.C. 4123.52 was to be “determined not only from

its contents, but also from the nature of the relief sought and how the parties treated the

application.” Id. The court based its position on the statutory text and the liberal

interpretation of the Workers’ Compensation Act in favor of the injured worker under R.C.

4123.95.

{¶ 60} Applying those principles to the facts of the case, the court noted the

employer indicated its “inability ‘to consider the payment of compensation benefits’ was

predicated on its presumption that [the requested additional condition] was a nonallowed

condition.” Id. at 84. Based on this, the court found that “it appears obvious, as the

commission and the court of appeals found, that the parties treated the application for

allowance of the additional condition as an application for an additional award of

compensation.” Id. Furthermore, the court found the facts present in that case were

“distinguishable from a situation where the application requesting the ‘back’ award is

predicated on the original allowed condition and there is no filing prior to the application

in question which could in any way be construed as an application for compensation within

the meaning of R.C. 4123.52.” Id. Therefore, the court found the commission did not err in

deciding that the motion for allowance of an additional condition could be construed as an

application for TTD compensation pursuant to R.C. 4123.52.

{¶ 61} The court revisited its Gen. Refractories decision in State ex rel. Ford Motor

Co. v. Indus. Comm. of Ohio, 65 Ohio St.3d 17 (1992). In Ford Motor, the claimant filed a

No. 22AP-380 20

motion for allowance of an additional condition on November 25, 1980. Accompanying the

motion was the report of claimant’s physician, who opined that the claimant’s “multiple

sclerosis had been aggravated by her industrial injury and stated that her ‘progress remains

guarded.’ ” Ford Motor at 18. The physician “did not indicate that [the claimant] (1) was

not working, (2) could not perform her former duties at [the employer], or (3) had any

residual disability.” Id. After “[p]rotracted litigation” that ultimately resulted in recognition

of the claimant’s condition, the claimant filed a motion on March 20, 1984 for TTD

compensation from August 20, 1979 and ongoing based on the newly allowed condition.

The commission denied TTD compensation from August 20, 1979 through March 19, 1982

“under the theory that R.C. 4123.52 prohibited compensation payment for periods more

than two years prior to appellant’s March 20, 1984 motion for temporary total disability

compensation.” Id.

{¶ 62} The court in Ford Motor distinguished its decision in Gen. Refractories,

stating that in Gen. Refractories, it “stressed that claimant’s application for allowance of an

additional condition was accompanied by medical proof of a work-prohibitive disability.”

Ford Motor at 20. Moreover, the court stated that “[m]ost significant in Gen. Refractories

was the employer’s May 4, 1982 letter denying temporary total disability compensation,”

which demonstrated that the employer “obviously perceived [the] claimant’s March 23,

1982 letter as a compensation request or it would not have responded as it did.” Id. The

court further noted that in Gen. Refractories, “the proximity of claimant’s last date worked

to the letter and evidence in question strongly suggested that the letter stemmed from a

desire for disability compensation.” Id. Based on this, the court stated it was “reasonable to

presume that the employer [in Gen. Refractories] knew that compensation was being

sought.” Id.

{¶ 63} Comparing the circumstances in Gen. Refractories with those present before

it, the court in Ford Motor noted that “there were fifteen months between [the claimant’s]

last date worked and her motion for allowance of an additional condition.” Ford Motor at

20-21. Based on the claimant’s delay, the court “decline[d] to impute knowledge of

temporary total disability to [the employer].” Id. at 21. The court acknowledged that “R.C.

4123.95 requires liberal construction in [claimant’s] favor of R.C. 4123.52’s ‘application’ for

‘compensation,’ ” but found that such “[l]iberal construction * * * is not limitless and merely

No. 22AP-380 21

because [the claimant] belatedly says that she intended her initial motion to be an

application for compensation does not, under these facts, make it one.” Id.

{¶ 64} Recently, this court analyzed and applied R.C. 4123.52 in State ex rel.

Spotleson v. Medlab Ohio Inc. 10th Dist. No. 21AP-362, 2023-Ohio-2464. In that case, the

claimant submitted C-84 forms dated February 25, 2017, March 25, 2017, April 25, 2017,

May 25, 2017, June 25, 2017, and July 25, 2017. No further C-84 forms were submitted

until February 27, 2020. On that date, the claimant submitted a C-84 form and C-86 motion

requesting TTD compensation from February 28, 2017 through February 27, 2020. Noting

“R.C. 4123.52 is explicit in its terms,” this court found that “even accepting that the

commission should liberally construe the type of documents that constitute an application,

there is no room for interpretation as to the date that relator filed her C-84 form and C-86

motion.” Spotleson at ¶ 10. The court held that “because the only application for

compensation was the February 27, 2020 C-86 motion, the two-year limitation period in

R.C. 4123.52 precluded the SHO from granting TTD compensation from February 28, 2017

through February 26, 2018.” Id.

{¶ 65} Thus, as outlined in Gen. Refractories and further explained in subsequent

cases, in addressing whether a documentary submission constitutes an application within

the meaning of the statutory limitation provided in R.C. 4123.52(A), it is necessary to

consider four factors: “(1) the document’s contents, (2) the nature of relief sought, (3) how

the parties treated the document, and (4) the liberal construction mandate of R.C. 4123.95.”

Drone, 93 Ohio St.3d at 153.

{¶ 66} Relator argues that the two-year limitation in R.C. 4123.52(A) does not apply

in this case because relator “complied with the provision of R.C. 4123.52 relating to

applications for compensation and invoked [the commission’s] jurisdiction by submitting

his Certified FROI on December 13, 2010—merely one month after his November 16, 2010

work injury.” (Relator’s Brief at 15.) As a result, relator argues “the rest of the claim fell

within the Commission’s continuing jurisdiction defined under the rest of

R.C. 4123.52(A).” (Emphasis sic.) (Relator’s Brief at 15.) Relator argues that “[i]n effect, the

SHO ruled that even if proper notice of an injury had been provided pursuant to R.C.

4123.84, any request for benefits arising out of a flow-through condition would still be

No. 22AP-380 22

limited by the two-year limitations period.” (Emphasis sic.) (Relator’s Brief at 12.) Relator’s

interpretation of R.C. 4123.52(A) is inaccurate.

{¶ 67} Initially, the magistrate finds relator’s arguments regarding R.C. 4123.84 to

be unclear. R.C. 4123.84 contains a “notice requirement * * * for initiating claims

generally.” Specht v. BP Am., Inc., 86 Ohio St.3d 29, 30 (1999). “The purpose of

R.C. 4123.84 is to provide prompt notice to the BWC and self-insured employers of claims

and potential claims from injured workers.” State ex rel. Holland v. Indus. Comm. of Ohio,

10th Dist. No. 10AP-238, 2011-Ohio-465, ¶ 6. See Mewhorter v. Ex-Cell-O Corp., 23 Ohio

St.3d 13, 14-15 (1986), quoting Nackley, The Initial Filing Period in Ohio Workers’

Compensation Law, 7 N.Ky.L.Rev. 33, 34 (1980) (“It has been recognized that the purpose

of the initial filing period of R.C. 4123.84 * * * ‘is to enable the employers to protect

themselves by prompt investigation of the injuries. It is primarily a notice requirement.

Thus, it may be distinguished in purpose from general statutes of limitations which serve

to protect against “stale claims” or “faded memories” and to gain the “repose” of society.’ ”).

Complying with the notice requirement of R.C. 4123.84 does not obviate the necessity of

complying with the limitation in R.C. 4123.52(A) to prevent an application for an award of

compensation from being time-barred.

{¶ 68} Regardless, relator’s argument regarding his December 13, 2010 FROI is

misplaced. Relator is correct that he invoked the commission’s jurisdiction by filing the

FROI. However, relator goes further to argue that “[b]ecause [his] request for TTD was

premised upon a residual injury in his hip arising out of the same work injury on November

16, 2010, there was no need to make another application within two years of any particular

date so long as the initial claim otherwise remained allowed.” (Relator’s Brief at 16.) Relator

argues that because he “has not sought payment of benefits that accrued prior to the date

of his application in 2010,” his “request for TTD beginning December 5, 2018, would thus

have been within the statute of limitations.” (Emphasis sic.) (Relator’s Brief at 16.)

{¶ 69} As this court has stated, “R.C. 4123.52 is explicit in its terms.” Spotleson,

2023-Ohio-2464, at ¶ 10. The temporal limitation in R.C. 4123.52(A) prevents the

commission from making an award of compensation for a back period in excess of two years

prior to filing of the application for compensation. Following the filing of the FROI, relator

sought and received TTD compensation. That compensation was terminated by the April

No. 22AP-380 23

24, 2014 DHO order and such termination was affirmed in the May 31, 2014 SHO order.

Relator’s FROI does not prevent the application of the statute of limitations in R.C.

4123.52(A) to his request for TTD compensation beginning December 5, 2018.4

{¶ 70} In his reply brief, relator argues that “the application for a new allowance

plainly satisfies the limitations period in R.C. 4123.52(A).” (Relator’s Reply Brief at 14.)

Applying the Gen. Refractories factors, the record does not support finding that relator’s

December 11, 2018 C-86 motion requesting the allowance of the condition of “Post

Traumatic Arthritis Left Hip” constitutes an application within the meaning of the two-year

statute of limitation in R.C. 4123.52(A). Rather, the facts of this matter are more akin to

those in Ford Motor.

{¶ 71} Unlike in Gen. Refactories, in which the application for allowance of an

additional condition was accompanied by medical proof of a work-prohibitive disability,

relator’s December 11, 2018 C-86 motion and the accompanying medical evidence

contained no mention of an inability to work or otherwise indicated relator would be

seeking additional compensation. Rather, the motion only pointed to the C-9 and office

notes of Dr. Wilber and other previously submitted medical records. Dr. Wilber did not

describe an inability to work in those records. In the C-9, Dr. Wilber indicated the

additional condition that was recommended to be allowed and stated that such condition

was “[d]irectly related to injury.” (Stip. at 71.) Dr. Wilber’s office notes indicated that relator

“remains active, trying to go to the gym, but still has chronic pain.” (Stip. at 73.)

{¶ 72} Nothing in the record demonstrates that Zenith treated the motion for the

allowance of the condition as an application for additional compensation. No transcripts

appear in the record from the hearings on the additional allowance before either the DHO

or SHO. As such, it is not possible to determine whether the parties’ interactions at those

hearings reflected consideration of the motion as an application for additional

compensation.

{¶ 73} Moreover, the timing of the motion for allowance of the additional condition

does not provide an indication that it was being used as an application for compensation.

4 In his reply brief, relator cites to Irwin v. State Valley Hosp. Assoc., 7th Dist. No. 97 JE 9, 1999 Ohio App.

LEXIS 4113 (Aug. 30, 1999), in support of his argument that the “two-year limit applies only to the original

claim for the workplace injury.” (Relator’s Reply Brief at 12.) This case is not controlling over the question

presented in this matter, and it does not support relator’s proposition.

No. 22AP-380 24

Relator last worked on November 16, 2010. Prior to the motion for allowance of the

additional condition, the most recent MEDCO-14 in the record was signed by Dr. Wilber on

June 17, 2013 and provided that relator was temporarily not released to work from

November 16, 2010 to November 4, 2013. Relator’s TTD was terminated by the April 24,

2014 DHO order and May 31, 2014 SHO order. Relator did not seek the allowance of the

additional condition until December 11, 2018, over four years after the orders terminating

TTD compensation. Based on the significant delay between the last day that relator worked

or received TTD compensation and the filing of the motion for the allowance of the

additional condition, it is not reasonable to impute knowledge of any request for TTD

compensation to Zenith from relator’s December 11, 2018 motion. See Ford Motor at 21.

{¶ 74} Thus, even considering the liberal construction mandate of R.C. 4123.95, it is

not possible to find relator’s December 11, 2018 C-86 motion for the allowance of the

condition of post-traumatic arthritis left hip constituted an application for TTD

compensation within the meaning of R.C. 4123.52(A). The record reflects that TTD

compensation for the period in question was not requested until the September 7, 2021 C-

86 motion and C-84 request. Therefore, the commission did not err by applying the statute

of limitation in R.C. 4123.52(A) to find relator was precluded from receiving an award of

TTD compensation from December 5, 2018 through September 6, 2019.

2. Whether It Was Error to Deny TTD Compensation Pursuant to R.C. 4123.56(F)

{¶ 75} Next, relator argues the SHO committed clear mistakes of fact and law by

rejecting relator’s request for TTD compensation based on the newly allowed condition of

post-traumatic arthritis in the left hip.

{¶ 76} In the January 6, 2022 order, the SHO “denie[d] temporary total disability

for the requested period [December 5, 2018] through the present as [relator] has no wages

for replacement and is therefore, not eligible for the requested compensation pursuant to

R.C. 4123.56(F).” (Emphasis added.) (Stip. at 117.) Furthermore, the SHO acknowledged

the additional allowance of post-traumatic arthritis left hip recognized on July 7, 2021, but

found “the additional allowance alone, absent evidence of wages during the requested

period of disability, does not qualify [relator] for the requested temporary total disability.”

(Emphasis added.) (Stip. at 118.) Thus, the SHO found relator was “not eligible for the

requested [TTD] compensation pursuant to R.C. 4123.56(F).” (Stip. at 117.) Contrary to the

No. 22AP-380 25

SHO’s findings, R.C. 4123.56(F) does not require the claimant to have wages for

replacement at the time of the filing of an application for TTD compensation.

{¶ 77} In Autozone, this court considered the meaning and application of

R.C 4123.56(F) to applications for TTD compensation. In that case, the claimant was

terminated after suffering a workplace injury, but before he sought TTD compensation.

Following his application for TTD compensation, the claimant underwent an approved

shoulder surgery, and a physician issued MEDCO-14 forms indicating the claimant was

unable to work until further evaluation. A commission SHO granted the claimant TTD

compensation for the period between the claimant’s surgery and his hearing before the

SHO.

{¶ 78} In the mandamus action brought by the employer, this court considered the

meaning and application of R.C 4123.56(F) to requests for TTD compensation. The

employer argued the claimant was ineligible for TTD compensation because he “ ‘had no

[l]ost [W]ages.’ ” (Brackets sic.) Autozone, 2023-Ohio-633, at ¶ 32. The employer

contended that “as a matter of law an injured worker is not entitled to TTD compensation

unless he is employed and actually suffered lost wages.” Id. Examining the text of the statute

as a whole, the court stated:

Read within the context of the statute, it is clear the legislature

did not intend to disqualify any person not working without

regard for whether the reason he or she is not working is

attributable to the workplace injury. Pursuant to

R.C. 4123.56(A), claimants who are working are not eligible to

receive TTD compensation. To accept the employer's position

that claimants who are not working are likewise disqualified

would render the statute meaningless.

Id. at ¶ 31. The court emphasized that “not working—alone—is not dispositive,” but instead,

the statute “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. “So long

as that causal link is established, and [the claimant] is otherwise qualified, the claimant is

eligible for TTD compensation.” Id.

{¶ 79} The employer also argued the court “should analyze the effect of the

[claimant’s] termination and whether evidence exist[ed] that claimant had abandoned the

workforce.” Autozone at ¶ 34. This court rejected the employer’s arguments, stating that

“this is exactly the analysis the legislature expressly superseded by enacting R.C.

No. 22AP-380 26

4123.56(F).” Id. The court “decline[d] to extrapolate an additional requirement in R.C.

4123.56(F) that a claimant prove he or she is unable to work only due to an impairment

arising from an injury or occupational disease.” (Emphasis sic.) Id. at ¶ 22. Furthermore,

the court stated that to “adopt the employer’s position would, in essence, turn the court’s

gaze back to those facts surrounding why the claimant left the workforce preceding the

period of TTD compensation—effectively resurrecting the voluntary abandonment analysis

expressly superseded by the legislature.” Id.

{¶ 80} Thus, the court found the text of R.C. 4123.56(F) to be unambiguous. Where

a claimant is unable to work, the statute sets forth “two operative questions” in order for

the claimant 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.

{¶ 81} As detailed above, this court in Autozone expressly rejected arguments

mirroring the reasoning employed by the SHO in this matter. By requiring relator to

demonstrate “evidence of wages during the requested period of disability” or evidence of

“wages for replacement,” the SHO was, in effect, adding requirements not found in the

statutory text. (Stip. at 117-18.) Neither courts nor administrative agencies such as the

commission may add or delete language from the enactments of the General Assembly.

Gabbard v. Madison Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-Ohio-2067,

¶ 13; Autozone at ¶ 22. Through this erroneous interpretation of the statutory text and by

employing an analytical framework expressly rejected by the General Assembly by means

of its enactment of R.C. 4123.56(F), the SHO erred in denying relator’s application for TTD

compensation.

{¶ 82} In determining whether an otherwise qualified claimant is eligible to receive

TTD compensation under R.C. 4123.56(F), the commission must 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 arising from an injury or occupational disease

or the direct result of reasons unrelated to the injury or occupational disease. See Autozone

at ¶ 35; State ex rel. Butler Village v. Indus. Comm., 10th Dist. No. 22AP-274, 2023-Ohio-

3774, ¶ 46. The commission must additionally determine whether the claimant is otherwise

qualified under R.C. 4123.56 to receive TTD compensation. Because it is the role of the

No. 22AP-380 27

commission to determine in the first instance whether a claimant is eligible for TTD

compensation by considering the facts and circumstances under the proper analytical

framework as provided in R.C. 4123.56, it is necessary to return this matter to the

commission for such determination.

D. Conclusion

{¶ 83} Based on the foregoing, relator has demonstrated a clear legal right to the

requested relief and that the commission is under a clear legal duty to provide such relief.

Accordingly, it is the decision and recommendation of the magistrate that relator’s request

for a writ of mandamus should be granted such that this matter is remanded to the

commission for further proceedings consistent with law and this decision.

/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.