State ex rel. Cleveland Metro. School Dist. v. Indus. Comm.

[Cite as State ex rel. Cleveland Metro. School Dist. v. Indus. Comm., 2022-Ohio-2150.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Cleveland Metropolitan :

School District,

:

Relator,

:

v. No. 20AP-139

:

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

:

Respondents.

:

D E C I S I O N

Rendered on June 23, 2022

On brief: Consolo Law Firm, Co., LPA, Frank Consolo, and

Horace F. Consolo, for relator.

On brief: Dave Yost, Attorney General, and Jacquelyn

McTigue, for respondent Industrial Commission of Ohio.

On brief: Garson Johnson, LLC, and Grace A. Szubski, for

respondent Marion A. Saddler.

IN MANDAMUS

ON OBJECTION TO THE MAGISTRATE'S DECISION

JAMISON, J.

{¶ 1} Relator, Cleveland Metropolitan School District ("employer"), filed this

original action requesting this court issue a writ of mandamus ordering respondent,

Industrial Commission of Ohio ("commission"), to vacate its August 8, 2019 order that

granted the request of respondent, Marion A. Saddler ("claimant"), for temporary total

disability ("TTD") compensation.

No. 20AP-139 2

I. PROCEDURAL HISTORY

{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53 and Loc.R.

13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision,

including findings of fact and conclusions of law, and recommended this court deny

employer's request for a writ of mandamus. The magistrate concluded that the commission

did not abuse its discretion when it decided to exercise continuing jurisdiction and award

claimant TTD compensation because medical reports issued by Chris Modrall, Ph.D., and

Patrick Yingling, Psy.D., upon which the commission expressly relied, provided some

evidence in support of the decision. Accordingly, the magistrate recommended we deny

employer's request for a writ of mandamus.

II. OBJECTION

{¶ 3} Employer filed the following objection to the magistrate's decision:

The Magistrate made an assumption – not a valid legal

conclusion supported by evidence – when he decided that the

commission acted in its discretion by apparently finding

Dr. Kaplan's May 28, 2019 report and opinion unpersuasive in

light of the review by Dr. Modrall and the reports of

Dr. Yingling.

(Emphasis sic.)

III. DISCUSSION

A. Objection

{¶ 4} The commission relied on the medical reports of Drs. Modrall and Yingling

in support of the conclusion that substantial aggravation of pre-existing major depressive

disorder was a newly diagnosed condition that prevented claimant from returning to her

former position as a cleaner. The magistrate noted that both the district hearing officer

("DHO") and staff hearing officer ("SHO") found the reports of Drs. Modrall and Yingling

persuasive. Dr. Modrall opined the allowance for substantial aggravation of a pre-existing

major depressive disorder was a new and changed circumstance, and both Drs. Modrall

and Yingling were of the opinion claimant's newly allowed condition prevented her return

to work.

{¶ 5} We note that employer's objection does not directly challenge the

magistrate's conclusion that the reports issued by Drs. Modrall and Yingling constitute

"some evidence" to support the commission's decision. (App'x at ¶ 62.) Rather, employer

No. 20AP-139 3

argues that that the commission abused its discretion when it disregarded the opposing

medical report and opinions submitted by Robert G. Kaplan, Ph.D., without stating its

reasons for doing so.

{¶ 6} Employer relies on State ex rel. Ritzie v. Reece-Campbell, Inc., 146 Ohio St.3d

259, 2015-Ohio-5224, in support of its contention. In Ritzie, claimant applied for TTD

compensation. The only medical evidence of the alleged disability was a report from

claimant's treating physician. The commission denied TTD compensation and this court

denied relief in mandamus. In affirming this court, the Supreme Court of Ohio ruled that

the commission has the discretion to reject uncontroverted medical evidence so long as the

commission explains its reason for doing so. Id. at ¶ 13.

{¶ 7} Both the commission and claimant argue that Ritzie is distinguishable

because, in Ritzie, the commission rejected the uncontroverted medical evidence of the

alleged disability, whereas the commission in this case issued a decision based on

conflicting medical evidence. This court has previously distinguished Ritzie for this very

reason.

{¶ 8} In State ex rel. Hettinger v. Ferrellgas, Inc., 10th Dist. No. 16AP-751, 2017-

Ohio-7899, the commission expressly relied on a medical report from Mark E. Reynolds,

M.D., in denying relator's permanent total disability ("PTD") application. In relator's

subsequent mandamus action, a magistrate of this court found that Dr. Reynolds' opinion

was some evidence that relator's allowed psychological condition would not prevent him

from sustained remunerative employment. The magistrate also found that the commission

was not required to explain why it did not rely on the report of Chad M. Sed, Ph.D., which

relator offered in support of his PTD application. Relator objected, arguing Ritzie required

the commission to discuss Dr. Sed's report and to explain why it was rejected. In concluding

Ritzie did not require an explanation under the circumstances, we stated:

[I]n Ritzie, the only medical evidence of the alleged disability

was from the treating physician. There was no contrary

medical evidence before the commission. Under those

circumstances, Ritzie required the commission to explain why

it rejected the only medical report in the file. In the case at bar,

however, there was conflicting medical evidence before the

commission. Under those circumstances, the commission was

only required to state the evidence on which it relied and to

No. 20AP-139 4

briefly explain why relator was not entitled to PTD

compensation.

Hettinger at ¶ 5.

{¶ 9} Here, as in Hettinger, there was conflicting medical evidence before the

commission whether claimant suffered from substantial aggravation of a pre-existing

major depressive disorder, whether the condition was a new and changed circumstance,

and whether the condition prevented claimant from returning to her former position as a

cleaner. Because the commission decided these issues on conflicting medical evidence, the

commission was only required to state the evidence on which it relied and to briefly explain

why claimant was entitled to TTD compensation. State ex rel. Metz v. GTC, Inc., 142 Ohio

St.3d 359, 2015-Ohio-1348, ¶ 14. The commission expressly relied on the medical reports

issued by Drs. Modrall and Yingling, and briefly explained its reason for awarding TTD

compensation. The commission complied with Ritzie.

{¶ 10} Furthermore, to the extent employer argues the commission failed even to

consider Dr. Kaplan's report because it was not mentioned either by the DHO or SHO, we

note that both decisions specify "[a]ll the evidence was reviewed and considered." (DHO's

June 21, 2019 Decision at 1; SHO's Aug. 8, 2019 Decision at 2.)

{¶ 11} For the foregoing reasons, employer's objection is overruled.

IV. CONCLUSION

{¶ 12} On examination of the magistrate's decision, an independent review of the

record pursuant to Civ.R. 53, and consideration of employer's objection, we find the

magistrate has properly determined the facts and correctly applied the relevant law.

Accordingly, we adopt the magistrate's decision as our own, overrule employer's objection,

and deny the requested writ of mandamus.

Objection overruled;

writ of mandamus denied.

SADLER and NELSON, JJ., concur.

NELSON, J., retired, of the Tenth Appellate District, assigned

to active duty under the authority of the Ohio Constitution,

Article IV, Section 6(C).

_________________

No. 20AP-139 5

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Cleveland Metropolitan, :

School District,

:

Relator,

:

v. No. 20AP-139

:

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

:

Respondents.

:

MAGISTRATE'S DECISION

Rendered on December 1, 2021

Consolo Law Firm, Co., LPA, Frank Consolo, and Horace F.

Consolo, for relator.

Dave Yost, Attorney General, and Jacquelyn McTigue, for

respondent Industrial Commission of Ohio.

Garson Johnson, LLC, and Grace A. Szubski, for respondent

Marion A. Saddler.

IN MANDAMUS

{¶ 13} Relator, Cleveland Metropolitan School District ("employer"), has filed this

original action requesting this court issue a writ of mandamus ordering respondent,

Industrial Commission of Ohio ("commission"), to vacate its August 8, 2019, order that

granted the request of respondent, Marion A. Saddler ("claimant"), for temporary total

disability ("TTD") compensation.

No. 20AP-139 6

Findings of Fact:

{¶ 14} 1. On January 4, 2010, claimant sustained an injury in the course of and

arising out of her employment as a cleaner when she slipped on ice in a parking lot and fell

to the ground. Her workers' compensation claim was initially allowed for the following

conditions: sprain of neck; sprain lumbar region; herniated disc L4-L5; herniated disc C4-

7 with radiculopathy; lumbar bulging disc at L5-S1; herniated disc C4-C5, C5-C6, C6-C7;

and psychogenic pain. She subsequently was granted TTD compensation, beginning

January 5, 2010.

{¶ 15} 2. Beginning in November 2011, claimant briefly participated in vocational

rehabilitation, and her rehabilitation program closed in December 2011. TTD was

reinstated beginning December 19, 2011.

{¶ 16} 3. On November 15, 2011, claimant was laid off from her employment with

the employer. She was placed on a recall list that was effective for two years, and on

September 4, 2012, the employer sent claimant a notice of recall as a cleaner. Although the

notice indicated that claimant was required to respond by September 10, 2012, she did not

respond until September 11, 2012, and she failed to circle on the returned form whether she

would accept or reject the recall offer.

{¶ 17} 4. On June 22, 2015, claimant was examined by Kenneth Gruenfeld, Psy.D.,

for the only allowed psychological condition in the claim at the time, psychogenic pain. In

his July 2, 2015, independent medical examination report, Dr. Gruenfeld made the

following findings: (1) claimant has not achieved maximum medical improvement

("MMI"), given her treatment gains noted in the April 1, 2015, physician's report of work

ability; (2) claimant's mental-health issues likely do not prevent her from returning to her

former position of employment; (3) claimant's mental-health symptoms fall in the mild to

moderate range, and she is capable of completing old job tasks as long as they don't trigger

her pain condition, which would trigger her depression; (4) given her mental-health issues,

she is unlikely to thrive in a moderate to high-stress job setting; she may thrive in a low-

stress job setting; (5) claimant's mental-health issues do not prevent her from performing

any type of remunerative employment; she can return to her former type of work as long as

she has proper timelines to complete job tasks; (6) there is no recommendation for

vocational rehabilitation because she can return to her former type of work; (7) she should

No. 20AP-139 7

be restricted from working in jobs that require physical labor as the pain from the physical

labor can retrigger her depression; and (8) claimant's problems with depression could

prevent her from returning to the workforce, although given the physical report of work

ability cited only mild to moderate impairment in functioning, she can return to the

workforce.

{¶ 18} 5. On July 16, 2015, the employer and the Bureau of Workers' Compensation

("BWC") filed motions to terminate TTD.

{¶ 19} 6. On September 3, 2015, the district hearing officer ("DHO") held a hearing

on the motions of the employer and the BWC to terminate TTD. In a September 10, 2015,

order, the DHO found the following: (1) claimant has reached MMI for the allowed physical

and psychological conditions in the claim; (2) the psychological conditions do not prohibit

claimant from returning to her former position of employment; (3) the order is based upon

the June 30, 2015, medical report of Cynthia Taylor, D.O., and the June 22, 2015, report of

Dr. Gruenfeld; and (4) TTD compensation shall terminate for both the allowed physical

conditions and psychological conditions.

{¶ 20} 7. Claimant appealed the DHO's order.

{¶ 21} 8. On October 15, 2015, the staff hearing officer ("SHO") held a hearing on

claimant's appeal. In an October 20, 2015, order, the SHO found the following: (1) the

allowed physical conditions have reach MMI, based upon the June 30, 2015, report of

Dr. Taylor; (2) the allowed psychological conditions do not prevent claimant from returning

to her former position of employment as a cleaner, based upon the June 22, 2015, report of

Dr. Gruenfeld; and (3) TTD is terminated.

{¶ 22} 9. Claimant appealed the SHO's order, but the commission refused the appeal

on November 10, 2015.

{¶ 23} 10. In a November 11, 2016, report, Raymond Richetta, Ph.D., found claimant

met the criteria for moderate major depressive disorder, and the condition was a direct and

proximate result of the allowed physical conditions of the 2010 work injury.

{¶ 24} 11. On November 15, 2016, claimant entered into a rehabilitation agreement

with the BWC, and she participated in vocational rehabilitation services. She continued to

do so until May 22, 2017, when her vocational rehabilitation file was closed. The November

20, 2016, vocational rehabilitation initial assessment report indicated claimant expressed

No. 20AP-139 8

a strong, sincere interest in attempting to return to work. The May 30, 2018, vocational

rehabilitation closure report indicated that, while claimant put in 100 percent effort during

all of her plan services, she is no longer physically able to continue with the program and is

no longer feasible and/or ready to return to work given her physical limitations and related

pain.

{¶ 25} 12. On February 6, 2018, claimant filed a C-86 motion, requesting allowance

of the condition of substantial aggravation of pre-existing major depressive disorder.

{¶ 26} 13. On December 12, 2018, Patrick Yingling, Psy.D., completed a MEDCO-14

physician's report of work ability form, which indicated the following: (1) claimant's

previously allowed conditions and newly allowed condition prevented her return to work

from March 16, 2018 through the present; (2) claimant's psychological symptoms that serve

as a barrier to her return include depressed mood, low energy level, and social withdrawal;

(3) claimant continues to be unable to return to work as those same symptoms remain

present; and (4) claimant is not suitable for vocational rehabilitation due to psychological

symptoms and physical limitations.

{¶ 27} 14. On January 11, 2019, the commission allowed the new condition of

substantial aggravation of pre-existing major depressive disorder.

{¶ 28} 15. On March 8, 2019, claimant requested TTD compensation based upon the

allowed condition of substantial aggravation of pre-existing major depressive disorder.

{¶ 29} 16. On March 15, 2019, Dr. Yingling completed a MEDCO-14 physician's

report of work ability form, which indicated the following: (1) claimant's allowed conditions

continue to prevent her return to work; (2) claimant's psychological symptoms that serve

as a barrier to her return include depressed mood, insomnia, persistent pain, and social

withdrawal; and (3) claimant is not suitable for vocational rehabilitation due to her

psychological symptoms and physical limitations.

{¶ 30} 17. On March 18, 2019, Chris Modrall, Ph.D., completed a MEDCO-21

physician review, in which she found the following: (1) the allowance for a substantial

aggravation of a pre-existing major depressive disorder, single episode, moderate, was a

new and changed circumstance; (2) the records from claimant's psychologists and treating

professionals document significant depressive symptoms that would be work prohibitive;

(3) even though her psychogenic pain disorder has reached MMI, claimant continues to

No. 20AP-139 9

have issues with pain that contribute to her depression; (4) based solely on her substantial

aggravation of a pre-existing major depressive disorder, single episode, moderate, claimant

would not be able to return to her former position of employment; (5) she has not reached

MMI on her depressive disorder; (6) the findings would support TTD starting on November

11, 2016, rather than September 4, 2015; (7) substantial aggravation of a pre-existing major

depressive disorder, single episode, moderate, was not diagnosed until the letter written by

Dr. Richetta on November 11, 2016; and (8) there may have been some symptoms of

depression mentioned in notes before that, but no specific disorder was diagnosed before

that date.

{¶ 31} 18. On April 2, 2019, the BWC granted claimant TTD compensation. The

employer appealed.

{¶ 32} 19. On May 7, 2019, claimant was examined by Robert G. Kaplan, Ph.D.,

regarding the conditions of psychogenic pain and substantial aggravation of pre-existing

major depressive disorder. In his May 28, 2019, report, Dr. Kaplan found the following:

(1) claimant met the criteria for diagnoses of pain disorder associated with both

psychological factors and a general medical condition (psychogenic pain NEC by

adjudication), and major depressive disorder, single episode, moderate severity

(substantial aggravation by adjudication); (2) claimant is exaggerating, fabricating, and

malingering psychological symptoms and reporting pain and physical limitations in a

manner highly similar to individuals who are instructed to magnify their symptoms for

secondary gain; (3) claimant is not a reliable reporter of her history, the causes of her

psychological symptoms, or the circumstances under which her symptoms occurred;

(4) apart from her allowed conditions, other stressors, such as financial difficulties,

relationship failures, family deaths, low-average intelligence, traumatic events, unallowed

physical conditions, family medical issues, and mocking from family members, have caused

an increase in claimant's pre-existing depression and psychological impairment;

(5) claimant had ongoing symptoms of major depressive disorder since 2005 and ongoing

treatment for major depressive disorder since 2009; (6) although there was a substantial

aggravation of major depressive disorder, single episode, moderate allowed in the claim,

there has been no new and changed circumstances with regard to the symptoms of the

major depressive disorder that would warrant another period of TTD; (7) there was never

No. 20AP-139 10

a time since 2005 when the major depressive disorder remitted, and she has not developed

any new symptoms of major depressive disorder that would require any treatment beyond

what she has already received; and (8) substantial aggravation of pre-existing major

depressive disorder, single episode, moderate severity is at MMI.

{¶ 33} 20. On June 12, 2019, claimant filed a request for TTD compensation.

{¶ 34} 21. On June 19, 2019, the matter was heard before the DHO on the employer's

appeal of the BWC's April 2, 2019, order.

{¶ 35} 22. In a June 21, 2019, order, the DHO vacated the BWC's order and granted

TTD, relying on Dr. Modrall's March 18, 2019, physician review and Dr. Yingling's

December 12, 2018, and March 15, 2019, reports. The employer appealed.

{¶ 36} 23. On July 30, 2019, the SHO held a hearing on the employer's appeal of the

DHO's order.

{¶ 37} 24. On August 8, 2019, the SHO issued an order, in which she found the

following: (1) the DHO's June 21, 2019, order is vacated; (2) claimant's request for TTD

compensation is granted based upon the psychological condition of substantial aggravation

of pre-existing major depressive disorder, in reliance upon the MEDCO-14's and C-84's of

Dr. Yingling and the March 18, 2019, review of Dr. Modrall; (3) Dr. Modrall found that the

additional allowance of the substantial aggravation of pre-existing major depressive

disorder establishes new and changed circumstances to justify the reinstatement of TTD

compensation, as he found claimant's depressive symptoms indicate that the newly allowed

psychological conditions were work prohibitive; (4) subsequent to the finding of MMI in

the October 15, 2015, SHO's order, claimant participated in vocational rehabilitation from

November 2016 through May 22, 2017, and the vocational rehabilitation file was closed

because claimant was no longer physically able to continue with the program;

(5) employer's argument that claimant is not entitled to TTD compensation because she

voluntarily abandoned the workforce is unpersuasive, because claimant's participation in

vocational rehabilitation shows she attempted to return to the workforce in some capacity,

and she could not return to her former position of employment based on the allowed

physical conditions and restrictions set forth in the June 30, 2015, report of Dr. Taylor.

{¶ 38} 25. On August 23, 2019, the employer appealed the August 8, 2019, SHO

order to the commission. The commission refused the appeal on August 26, 2019.

No. 20AP-139 11

{¶ 39} 26. On September 17, 2019, the employer filed a request for reconsideration,

which included the November 15, 2011, notice of layoff letter from the employer, and the

September 4, 2012, notice of recall letter from the employer. The commission denied the

request for reconsideration on September 26, 2019.

{¶ 40} 27. On March 5, 2020, the employer filed a complaint for writ of mandamus,

requesting that this court vacate the commission's order that granted claimant TTD

compensation.

{¶ 41} 28. The magistrate informally delayed a decision in this case until the Tenth

District Court of Appeals released two decisions potentially impacting this case, State ex

rel. Walmart, Inc. v. Hixson, 10th Dist. No. 19AP-323, 2021-Ohio-3802, and State ex rel.

Ohio State Univ. v. Pratt, 10th Dist. No. 19AP-603, 2021-Ohio-3420.

Conclusions of Law and Discussion:

{¶ 42} The magistrate recommends that this court deny the employer's writ of

mandamus.

{¶ 43} In order for this court to issue a writ of mandamus, a relator must ordinarily

show a clear legal right to the relief sought, a clear legal duty on the part of the respondent

to provide such relief, and the lack of an adequate remedy in the ordinary course of the law.

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).

{¶ 44} A clear legal right to a writ of mandamus exists where 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. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On

the other hand, where the record contains some evidence to support the commission's

findings, there has been no abuse of discretion and mandamus is not appropriate. State ex

rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of

credibility and the weight to be given evidence are clearly within the discretion of the

commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).

{¶ 45} Pursuant to R.C. 4123.52, "[t]he jurisdiction of the industrial commission and

the authority of the administrator of workers' compensation over each case is continuing,

and the commission 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) contains a

No. 20AP-139 12

clear and broad grant of continuing jurisdiction to the commission. State ex rel. Neitzelt v.

Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453, ¶ 15. However, that jurisdiction is

conditioned on specific criteria: (1) new and changed circumstances, (2) fraud, (3) clear

mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. State ex rel.

Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998). "Even where temporary total

disability compensation payments have been previously terminated, R.C. 4123.52 grants

the Industrial Commission continuing jurisdiction to award temporary total disability

compensation where the claimant has again become temporarily totally disabled." State ex

rel. Bing v. Indus. Comm., 61 Ohio St.3d 424 (1991), syllabus. Thus, a new and changed

circumstance may justify the reopening of a TTD award that had previously been

terminated on MMI grounds. State ex rel. Chrysler Corp. v. Indus. Comm., 81 Ohio St.3d

158 (1998).

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

wages lost where a claimant's injury prevents a return to the former position of

employment. Upon that predicate, TTD compensation shall be paid to a claimant until one

of four things occurs: (1) 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. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio

St.2d 630 (1982).

{¶ 47} 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.

No. 20AP-139 13

R.C. 4123.56(F).

{¶ 48} In Hixson, in addressing whether a claimant receiving TTD voluntarily

abandoned the workforce when she gave formal notice of her intent to retire from her

current employer, this court first discussed the evolution of the voluntary-abandonment

analysis in TTD compensation cases. This court found that the amended provisions in R.C.

4123.56(F) did not apply retroactively to the case. This court held in Hixson that

R.C. 4123.56(F), as amended by H.B. No. 81, does not apply to TTD compensation awards

in which both the injury and a final adjudication by the commission occurred before the

effective date of the new law. This court went on to find the most recent Supreme Court of

Ohio case, State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78,

2018-Ohio-3890, decided September 27, 2018, applied to the present analysis to ascertain

whether the commission abused its discretion in granting TTD compensation. Following

Klein, this court found that an inquiry regarding the employee's physical capacity to work

or whether the employee was still disabled at the date of termination is no longer allowed

when the claimant has voluntarily abandoned the workforce.

{¶ 49} In Klein, the claimant suffered an industrial accident on November 5, 2014,

and a physician's report indicated he was unable to work from that date through January 5,

2015. The claimant requested TTD compensation. The claimant testified before the DHO

that he had been planning to move to Florida prior to the injury, he had told others that he

planned to move to Florida prior to the injury, and claimant informed the employer that he

was moving to Florida on October 31, 2014, nearly one week before the injury. The DHO

granted claimant's TTD compensation claim for the closed period of November 6 through

19, 2014, finding that claimant voluntarily terminated his employment on November 20,

2014, for reasons unrelated to the workplace injuries. The order was affirmed by the SHO,

and the commission refused additional appeals. Upon a writ of mandamus, this court

concluded that, because claimant was medically unable to return to work, he was unable to

voluntarily abandon his employment on that date.

{¶ 50} The Supreme Court, overruling aspects of prior case law, reversed this court's

decision, reasserting the fundamental tenet of eligibility for TTD compensation that the

injury must cause the claimant's loss of earnings. The court in Klein explained that "when

No. 20AP-139 14

a claimant removes himself from employment for reasons unrelated to the work-related

injury, he is no longer eligible for temporary-total-disability compensation." Id. at ¶ 19,

citing State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305,

¶ 38. The court further explained that, "In those circumstances, the voluntary

abandonment—and not the injury—causes the loss of wages." Id. Thus, "an employee who

quit[s] his job for reasons unrelated to his workplace injury [i]s ineligible for temporary-

total-disability compensation." Id. at ¶ 20, citing State ex rel. McGraw v. Indus. Comm., 56

Ohio St.3d 137 (1990). "[I]t would not serve the purpose of temporary-total-disability

compensation to award compensation to a worker whose own actions, and not his

workplace injury, have prevented his return to his former position of employment." Id. at

¶ 22, citing State ex rel. Ashcraft v. Indus. Comm. of Ohio, 34 Ohio St.3d 42, 43-44 (1987).

The court in Klein emphasized that the pertinent issue is whether the claimant abandoned

his previous position with the employer of record in the claim, not whether the claimant

intended to abandon the workforce entirely. See Id. at ¶ 29 (finding that when a workers'

compensation claimant voluntarily removes himself from his former position of

employment for reasons unrelated to a workplace injury, he is no longer eligible for TTD

compensation, even if the claimant remains disabled at the time of his separation).

{¶ 51} This court recently analyzed Klein in Pratt. In Pratt, the claimant submitted

her resignation to the employer on June 20, 2017, effective July 5, 2017. After she submitted

her resignation but before the effective date of resignation, the claimant sustained a

workplace injury and never returned to work for the employer. The claimant was granted

TTD compensation from the date of injury, but the employer subsequently filed a motion

to terminate TTD. The DHO granted the motion to terminate, finding that all TTD amounts

paid for the period after the claimant's resignation letter submission date of June 20, 2017,

were improperly paid. The claimant submitted a copy of an employment agreement

between the claimant and a new employer, which was dated June 28, 2017. On the

claimant's appeal before the SHO, the SHO vacated the DHO's order and granted TTD,

finding that the employment offer from the new employer demonstrates that the claimant

did not intend to voluntarily abandon the workforce when she announced her resignation

from employment with the employer on June 20, 2017. The employer eventually filed a

mandamus action in this court, and the matter was heard before a magistrate. The

No. 20AP-139 15

magistrate issued a decision, in which he found the following, in pertinent part:

(1) pursuant to Klein, the claimant's physical capacity to work, whether the claimant is still

disabled at the date of termination, and the claimant's intent to resume work with another

employer are irrelevant to the voluntary abandonment determination; (2) Klein requires

the commission to consider only whether the claimant has voluntarily abandoned her

former position, and not whether she has removed herself from the workforce generally;

(3) Klein repeatedly and expressly refers to abandonment of the previous position held with

the employer that is subject to the claim, without reference to any intent to abandon the

workforce entirely; (4) the commission abused its discretion when it considered the

claimant's continuing physical limitations and employment prospects and awarded TTD to

the claimant for the period after the effective date of her voluntary resignation; and (5) it is

recommended that a writ of mandamus issue ordering the commission to vacate its order

awarding TTD compensation after July 5, 2017, and enter an order awarding such

compensation only up to that date.

{¶ 52} Upon objections, this court affirmed the magistrate's interpretation of Klein.

The court noted several factual similarities between Klein and the case before it and

concluded that, under Klein, the claimant in Pratt was foreclosed from receiving TTD

compensation after she had voluntarily abandoned her position on July 5, 2017. The court

rejected the commission's contention that the claimant did not voluntarily abandon her

position on July 5, 2017. The court also rejected the commission's contention that the

claimant did not voluntarily abandon the workforce based upon the employment offer, and

found that was not the test. Instead, under Klein, a court must look at whether the claimant

voluntarily removed herself from her former position of employment, even if the claimant

remains disabled at the time of her separation from employment. The court found that the

claimant voluntarily removed herself from her former position, despite her injury at the

time of separation from employment. The court explained that, in both Klein and the case

before it, the industrial injury was not the cause of the worker's loss of earnings but, instead,

a voluntary decision to leave their respective places of employment. The court found that

the magistrate's decision accurately reflected the analysis in Klein and applied the phrase

"former position of employment" as intended. The court concluded that, under Klein,

No. 20AP-139 16

employment benefits cannot be provided to a claimant that voluntarily removed herself

from her former position of employment for reasons unrelated to the workplace injury.

{¶ 53} In the present case, the employer first argues that claimant voluntarily

abandoned her job in 2012. The employer contends that claimant was required to respond

to the notice of recall by September 10, 2012, but, instead, she responded on September 11,

2012, and did not circle whether she would accept or reject the recall offer. Thus, the

employer asserts, because claimant failed to accept recall, she voluntarily abandoned her

position of employment with the employer for reasons unrelated to her workplace injury,

thereby preventing her from being eligible for TTD compensation.

{¶ 54} Claimant counters that she did not voluntarily abandon her employment with

the employer in 2012. Claimant contends she was receiving TTD at the time the employer

issued the September 4, 2012, recall letter, and an injured worker cannot abandon a job

while receiving TTD, given she was temporarily, totally unable to engage in her former

position of employment as a cleaner with the employer from the date of her injury until she

was found to have reached MMI on September 3, 2015. In addition, claimant notes that the

employer did not submit the notice of layoff letter or recall letter for either the

administrative hearing or the third-level appeal to the commission; therefore, the criteria

set forth in Industrial Commission Resolution R18-1-06(D)(1) for a reconsideration hearing

were not met, and the commission's denial of the request for reconsideration was proper.

{¶ 55} The commission responds to the employer's voluntary-abandonment

argument by asserting that the SHO specifically stated in her order that she was not

persuaded by the employer's argument because the employer presented no evidence to

establish that claimant voluntarily removed herself from her former position of

employment for reasons unrelated to her workplace injury, noting that, although claimant

did not return to work after the finding of MMI, she did participate in a rehabilitation

program based on the limitations resulting from her allowed physical conditions, thereby

demonstrating she was attempting to return to the workforce in some capacity. The

commission also contends this case is distinguishable from Klein in that, in this case, the

November 20, 2016, vocational rehabilitation assessment report indicated that claimant

had expressed a strong, sincere interest in attempting to return to work, and the May 30,

2018, vocational rehabilitation closure report indicated that while she put in 100 percent

No. 20AP-139 17

effort during her services, she was no longer able to continue with the program or return to

work given her physical limitations and pain. The commission further raises that because

the employer's argument regarding the potential voluntary abandonment in 2012 was not

raised properly before the commission for consideration at either the DHO or SHO hearing,

it should not be considered in mandamus, and for the commission to consider the new

argument upon reconsideration would have violated Resolution R18-1-06(D)(1).

{¶ 56} The magistrate cannot reach the merits of the employer's argument on the

issue of voluntary abandonment in 2012 because the magistrate agrees with claimant and

the commission that the employer's failure to raise this argument and submit to the

commission the notice of layoff letter and the notice of recall letter until the request for

reconsideration is fatal in mandamus. Resolution R18-1-06(D)(1) provides, in pertinent

part:

D. If the requirements of Sections (A) and (B) are satisfied,

hearing officers designated by the Industrial Commission

shall review the request for reconsideration pursuant to the

following criteria:

1. A request for reconsideration shall be considered only in the

following cases:

a. New and changed circumstances occurring subsequent to

the date of the order from which reconsideration is sought.

For example, there exists newly discovered evidence which

by due diligence could not have been discovered and filed

by the appellant prior to the date of the order from which

reconsideration is sought. Newly discovered evidence shall

be relevant to the issue in controversy but shall not be

merely corroborative of evidence that was submitted prior

to the date of the order from which reconsideration is

sought.

{¶ 57} In the present case, the employer clearly was aware of and in possession of

the November 15, 2011, notice of layoff letter and the September 4, 2012, notice of recall

letter since the time they were created, and was also well aware of the circumstances

surrounding her receipt of both letters and the manner in which she completed the notice

of recall letter. As such, neither the letters nor the circumstances surrounding the letters

can constitute new and changed circumstances occurring since the DHO and SHO orders.

See State ex rel. Buzzo v. Indus. Comm., 10th Dist. No. 06AP-95, 2007-Ohio-941, ¶ 53

No. 20AP-139 18

(commission did not abuse discretion in refusing to grant reconsideration when relator

failed to raise an issue in a timely manner before the DHO and SHO). "Reconsideration is

not designed for the convenience of a party who simply fails to raise an issue at the

appropriate opportunity." Id. Therefore, the magistrate finds that the commission did not

abuse its discretion when it failed to grant the employer's request for reconsideration based

upon an argument that was not raised and documents that were not submitted before the

DHO and SHO.

{¶ 58} The employer next argues that claimant voluntarily abandoned the entire

workforce in 2015. The employer contends that Dr. Gruenfeld's June 22, 2015, report

conclusively states that claimant's mental health issues do not prevent her from performing

any remunerative employment, and from June 22, 2015, until November 11, 2016, when

Dr. Richetta diagnosed her with major depressive disorder, claimant failed to seek

employment. In fact, the employer argues, between the last time she worked in 2010 and

her latest TTD application in 2019, claimant made no effort to re-enter the workforce and,

therefore, voluntarily abandoned the entire workforce.

{¶ 59} However, as this court explained in Pratt, any argument as to whether the

claimant intended to voluntarily abandon the entire workforce was irrelevant to the

voluntary-abandonment determination under Klein. The court in Klein made clear that the

test for voluntary abandonment does not involve a question of whether the claimant had

any intent to abandon the workforce entirely but, rather, only whether the claimant

abandoned her previous position held with the employer that is subject to the claim for

reasons unrelated to her workplace injury. Therefore, the magistrate finds the employer's

argument with regard to claimant's voluntary abandonment of the entire workforce without

merit.

{¶ 60} The employer's final argument is that Dr. Kaplan's May 28, 2019, report

makes clear that claimant has been continuously depressed since 2005, five years before

the work injury, and has not developed any new symptoms of major depressive disorder

that would require additional treatment. Thus, Dr. Kaplan found there had not been any

new and changed circumstances warranting another period of TTD that directly and

proximately arose from the substantial aggravation of pre-existing major depressive

disorder or any other allowed conditions in this claim, and, in fact, found substantial

No. 20AP-139 19

aggravation of pre-existing major depressive disorder was at MMI. The employer notes that

Dr. Kaplan explained that, in 2005, claimant's fiancé died, and she has required psychiatric

medications and counseling since that time. She only stopped taking the psychiatric

medications because her health insurance would not cover them, not because her

depressive symptoms resolved. The employer also points to Dr. Kaplan's finding that there

was never a time since 2005 when the major depressive disorder remitted, and she has not

developed any new symptoms of major depressive disorder that would require any

treatment beyond what she has already received since 2005. Dr. Kaplan also diagnosed

claimant with substantial aggravation of pre-existing major depressive disorder directly

and proximately caused by stressors other than her employment, including financial

problems, relationship problems, family deaths, low average intelligence, psychological

trauma due to a miscarriage, hospitalization for hypertension, possible transient ischemic

attack, an attack by wasps, unreported health conditions that prevented her from taking

psychiatric medications, a granddaughter with osteogenesis, and mocking from her family

members.

{¶ 61} Claimant and the commission counter that the commission rejected

Dr. Kaplan's May 28, 2019, report in addressing the motion for TTD filed on March 8, 2019.

Instead, the commission relied on the March 18, 2019, report of Dr. Modrall and the

December 12, 2018, and March 15, 2019, reports of Dr. Yingling to grant the motion for

TTD. Claimant and the commission assert that the June 19, 2019, DHO order and the July

30, 2019, SHO order set forth the evidence the commission relied upon, and the SHO gave

a brief analysis, thereby satisfying the "some evidence" legal standard. Claimant also argues

that: (1) the depression symptoms since 2005, as set forth in Dr. Kaplan's May 28, 2019,

report, would not necessarily bar the commission from granting TTD for the condition of

substantial aggravation of pre-existing major depressive disorder, because the prior

depression symptoms could still be "substantially aggravated"; (2) the newly allowed

condition for substantial aggravation of pre-existing major depressive disorder was

sufficient for new and changed circumstances to support a new period of TTD beginning

May 22, 2017, and the characterization of the depressive disorder as "major" would further

establish new and changed circumstances to warrant TTD; and (3) claimant refuted or

further explained at both administrative hearings the life stressors listed by Dr. Kaplan,

No. 20AP-139 20

and the commission had the discretion to reject Dr. Kaplan's report based upon claimant's

testimony.

{¶ 62} The employer's contentions raise arguable points. Dr. Kaplan's May 28, 2019,

report clearly presents a contrary view of the evidence, a view that contradicts the

commission's finding a new period of TTD based upon new and changed circumstances.

Dr. Kaplan's May 28, 2019, report also presents the type of evidentiary challenges necessary

to support the employer's side of the dispute. However, in this mandamus action, the

question is whether there is "some evidence" to support the commission's determination,

not whether there exists contradictory evidence in the record or conceivable

counterarguments. The present case is not a situation in which there is no evidence to

support the commission's findings; thus, the commission has not abused its discretion.

There exists some evidence in the record to support the commission's conclusion. Both the

DHO and SHO relied upon the reports of Drs. Yingling and Modrall and found them

persuasive. Both found that her newly allowed condition prevented her return to work, and

Dr. Modrall found that the allowance for substantial aggravation of a pre-existing major

depressive disorder was a new and changed circumstance. Although neither Drs. Modrall

nor Yingling went into the level of detailed discussion Dr. Kaplan did in his report, their

reports still provided the commission with "some evidence" upon which to base its

determination, and, as such, there can be no abuse of discretion in this case. Furthermore,

as pointed out by claimant, the fact that she may have had prior depression since 2005 does

not prohibit the current allowed condition and reinstatement of TTD. The claim was

allowed for "substantial aggravation" of pre-existing depression; thus, there could be new

and changed circumstances, despite that prior depression symptoms were present since

2005, because those pre-existing depression symptoms had been substantially aggravated.

The commission was within its discretion to find Dr. Kaplan's report unpersuasive and

apparently did so based upon the competing views expressed by Drs. Modrall and Yingling.

{¶ 63} Accordingly, it is the magistrate's recommendation that this court should

deny the employer's petition for writ of mandamus.

/S/ MAGISTRATE

THOMAS W. SCHOLL III

No. 20AP-139 21

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).