State ex rel. AutoZone Stores, Inc. v. Indus. Comm.

[Cite as State ex rel. AutoZone Stores, Inc. v. Indus. Comm., 2023-Ohio-633.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Autozone Stores, Inc., :

Relator, :

v. : No. 21AP-294

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

Respondents. :

D E C I S I O N

Rendered on March 2, 2023

On brief: Crabbe Brown & James, LLP, and John C. Albert,

for relator.

On brief: Dave Yost, Attorney General, and Denise A. Gary,

for respondent Industrial Commission of Ohio.

On brief: Casper, Casper & Casper, LLC, and Kolet

Buenavides, for respondent Jason W. Schomaker.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.

{¶ 1} Relator, Autozone Stores, Inc. ("employer") filed this action in mandamus

seeking a writ to compel respondent Industrial Commission of Ohio ("commission") to

vacate its order granting the request for temporary total disability ("TTD") compensation

filed by respondent Jason W. Schomaker ("claimant"). Having determined the magistrate

correctly concluded claimant's approved surgery rendered him unable to work as the direct

result of an impairment arising from a workplace injury under newly enacted R.C.

4123.56(F), we find claimant is entitled to TTD compensation for the period following the

No. 21AP-294 2

approved surgery. The employer's objections implicating claimant's prior termination and

the voluntary abandonment doctrine are overruled, and we deny the writ.

I. Facts and Procedural History

{¶ 2} Initially, we note the employer has not set forth a specific objection

challenging the magistrate's findings of fact. Having independently reviewed the record,

we adopt the magistrate's findings of fact as our own.

{¶ 3} As provided in more detail in the magistrate's decision, claimant was working

as an assistant store manager for the employer when he sustained a workplace injury on

June 15, 2020. A workers' compensation claim was allowed for multiple conditions

concerning his shoulder, and claimant was placed on light duty. Claimant was then

involved in an argument with another employee and, after an internal investigation into the

incident, the employer terminated claimant on September 16, 2020. The Ohio Department

of Job and Family Services granted claimant's request for unemployment benefits after

finding the termination occurred without just cause.

{¶ 4} Claimant filed C-84 TTD compensation request forms on October 12 and 20,

2020, which were denied by the employer on November 5, 2020. On November 16, 2020,

claimant underwent an approved shoulder surgery, and a physician issued MEDCO-14

forms indicating claimant cannot work until further evaluation.

{¶ 5} The district hearing officer ("DHO") denied claimant's request for TTD

compensation after delving into the details of claimant's termination and then finding

claimant failed to articulate evidence entitling him to TTD compensation for the period of

September 17, 2020 through the date of the hearing with the DHO, December 16, 2020.

Claimant appealed, and, after another hearing, the staff hearing officer ("SHO") granted

claimant's request for TTD compensation, but only for the period between his surgery and

the hearing with the SHO. In doing so, the SHO rejected the employer's argument that TTD

compensation should be denied since claimant had been terminated. Instead, the SHO

determined, based on the fact claimant was under restrictions due to the allowed conditions

at the time of the termination and was completely removed from the workforce after the

subsequent approved surgery (as evidenced by the MEDCO-14 forms), that under R.C.

4123.56(F) claimant was unable to work as a direct result of an impairment arising from

the allowed injury from the date of the allowed surgery through the date of the hearing.

No. 21AP-294 3

{¶ 6} The employer filed the instant writ of mandamus seeking to vacate this result.

Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, the matter

was referred to a magistrate who issued a decision, including findings of fact and

conclusions of law, which is appended hereto. The assigned magistrate reached similar

conclusions as the SHO. Specifically, the magistrate found, based on the plain language of

R.C. 4123.56(F), claimant's reason for not working prior to the date of his surgery is

irrelevant for purposes of determining his eligibility for TTD compensation. In the

magistrate's view, the physician's MEDCO-14 forms showed the approved surgery

completely removed claimant from the workforce and from that point forward claimant

was not working for a reason directly attributable to the approved surgery necessitated by

the workplace injury. As a result, the magistrate found claimant is entitled to TTD

compensation as of the date of his surgery and recommends this court deny the employer's

request for a writ of mandamus.

II. Standard of Review

{¶ 7} In order for this court to issue a writ of mandamus, a relator must show by

clear and convincing evidence a clear legal right to the requested relief, that the commission

has a clear legal duty to provide that relief, and there is no adequate remedy in the ordinary

course of the law. State ex rel. Zarbana Industries, Inc. v. Indus. Comm., 166 Ohio St.3d

216, 2021-Ohio-3669, ¶ 10. When an order of the commission "is adequately explained and

based on some evidence, there is no abuse of discretion and a reviewing court must not

disturb the order." State ex rel. Aaron's, Inc. v. Ohio Bur. of Workers' Comp., 148 Ohio

St.3d 34, 2016-Ohio-5011, ¶ 18. Questions of law are reviewed de novo on appeal. State ex

rel. Ewart v. State Teachers Retirement Sys. Bd. of Ohio, 10th Dist. No. 18AP-726, 2019-

Ohio-2459, ¶ 38.

III. Discussion

{¶ 8} The employer filed the following five objections to the magistrate's decision:

[I.] The Magistrate Erred in Concluding that Respondent

Schomaker was Unable to Work as a "Direct" Result of His

Injury.

[II.] The Magistrate Erred in not Applying the Entirety of the

First Sentence of R.C. §4123.56(F).

No. 21AP-294 4

[III.] The Magistrate Erred in not Applying All of the Terms of

the Second Sentence of R.C. §4123.56(F).

[IV.] The Magistrate Erred Because Respondent had no Lost

Wages.

[V.] The Magistrate Erred in Finding Reasons for not Working

up to the Date of His Surgery were Irrelevant.

The objections collectively challenge the magistrate's understanding and application of R.C.

4123.56(F), a new section added in 2020 to the statute governing TTD compensation. The

parties both agree R.C. 4123.56(F) applies in this case.1 Because the five objections are

interrelated and turn on the meaning and application of R.C. 4123.56(F), we address them

together.

A. TTD Compensation, the "Voluntary Abandonment" Doctrine, and

Enactment of R.C. 4123.56(F)

{¶ 9} Article II, Section 35 of the Ohio Constitution permits the legislature to pass

laws, in pertinent part, "[f]or the purpose of providing compensation to workmen * * * for

* * * injuries or occupational disease, occasioned in the course of such workmen's

employment." The laws governing workers' compensation set forth in Chapter 4123 of the

Revised Code reflect this general purpose, "provid[ing] that an employee who is injured in

the course of employment is entitled to receive 'compensation for loss sustained on account

of the injury.' " State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916,

¶ 7, quoting R.C. 4123.54(A).

{¶ 10} R.C. 4123.56, which controls compensation in case of temporary disability,

does not define requirements for TTD compensation explicitly but does express

circumstances when TTD payments "shall not be made." R.C. 4123.56(A). Specifically,

TTD payments "shall not be made":

[F]or the period when any employee has returned to work,

when an employee's treating physician has made a written

statement that the employee is capable of returning to the

employee's former position of employment, when work within

1The 2020 amendment adding R.C. 4123.56(F) "appl[ies] to claims pending on or arising after the effective

date," which is September 15, 2020. Section 3 of 2020 Am.Sub.H.B. No. 81; State ex rel. Ohio State Univ. v.

Pratt, __ Ohio St.3d __, 2022-Ohio-4111, ¶ 10, fn. 2; State ex rel. Cleveland Metro. School Dist. v. Indus.

Comm., 10th Dist. No. 20AP-139, 2022-Ohio-2150, ¶ 47-48.

No. 21AP-294 5

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).

{¶ 11} R.C. 4123.56(B) accounts for situations where an employee suffers a "wage

loss" due to a workplace injury or occupational disease and provides a formula to

compensate the employee for the reduction of wages resulting from employment in a lower

paying position or from the employee's inability to find employment consistent with his or

her disability. R.C. 4123.56(B)(1) and (2). The statute also addresses situations specific to

employees of professional sports franchises, employees who are receiving both TTD

compensation and social security benefits, and employees who are eligible for TTD

compensation but lack a determination of their "full weekly wages." R.C. 4123.56(C), (D),

and (E).

{¶ 12} Over time, courts applying R.C. 4123.56 developed the "voluntary

abandonment" doctrine to address fact patterns that called into question whether an

employee seeking TTD compensation suffered a loss of earnings in line with the purpose of

the workers' compensation statutes. See, e.g., State ex rel. Baker v. Indus. Comm., 89 Ohio

St.3d 376 (2000) (applying voluntary abandonment doctrine to determine a claimant who

changed jobs and subsequently reaggravated the original injury was eligible for TTD

compensation); State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-

Ohio-5305 (applying voluntary abandonment doctrine to hold that a claimant who was

terminated from employment but reentered the workforce and reaggravated the work

injury was still eligible for TTD compensation). The purpose of the "voluntary

abandonment" doctrine was to ensure " 'a cause-and-effect relationship exists between the

industrial injury and an actual loss of earnings.' " State ex rel. Ohio State Univ. v. Pratt,

__ Ohio St.3d __, 2022-Ohio-4111, ¶ 17, quoting McCoy at ¶ 35.

{¶ 13} The Supreme Court of Ohio explained "when a claimant removes himself

from employment for reasons unrelated to the work-related injury, he is no longer eligible

for temporary-total-disability compensation [since] the voluntary abandonment—and not

the injury—causes the loss of wages." State ex rel. Klein v. Precision Excavating & Grading

Co., 155 Ohio St.3d 78, 2018-Ohio-3890, ¶ 19, citing McCoy at ¶ 38. The voluntary

abandonment of the workforce analysis required evaluating " 'all relevant circumstances

No. 21AP-294 6

existing at the time of the alleged abandonment' " to determine whether the injured

worker's wage loss is not the result of the work injury. Pratt at ¶ 23, quoting Klein at ¶ 43.

"In other words, do the circumstances indicate that the injured worker would be working—

somewhere—but for the injury?" Id. at ¶ 24.

{¶ 14} In 2020, the Ohio legislature enacted 2020 Ohio Am.Sub.H.B. No. 81 to, in

part pertinent to this case, supersede judicial decisions applying the voluntary

abandonment doctrine. See Am.Sub.H.B. No. 81, Section 1, addition of R.C. 4123.56(F)

(addressing TTD compensation) and revision to R.C. 4123.58(D)(3) (addressing

permanent total disability compensation).2 Specific to TTD compensation, H.B. No. 81

added an entirely new section, R.C. 4123.56(F). It states:

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.

B. Statutory Interpretation

{¶ 15} "Our paramount concern in examining a statute is the legislature's intent in

enacting the statute." Gabbard v. Madison Local School Dist. Bd. of Edn., 165 Ohio St.3d

390, 2021-Ohio-2067, ¶ 13, citing State ex rel. Steele v. Morrissey, Aud., 103 Ohio St.3d

355, 2004-Ohio-4960, ¶ 21. "To discern that intent, we first consider the statutory

language, reading all words and phrases in context and in accordance with the rules of

grammar and common usage." Gabbard at ¶ 13. State ex rel. Natl. Lime & Stone Co. v.

Marion Cty. Bd. of Commrs., 152 Ohio St.3d 393, 2017-Ohio-8348, ¶ 14 ("Our role is to

evaluate the statute as a whole and to interpret it in a manner that will give effect to every

word and clause, avoiding a construction that will render a provision meaningless or

inoperative."). "We give effect to the words the General Assembly has chosen, and we may

2 In R.C. 4123.58(D)(3), the legislature replaced "voluntary abandoned the workforce for reasons unrelated

to the allowed injury" with "is not working for reasons unrelated to the allowed injury" as a bar to permanent

total disability compensation. (Emphasis sic.)

No. 21AP-294 7

neither add to nor delete from the statutory language." Gabbard at ¶ 13, citing Columbia

Gas Transm. Corp. v. Levin, Tax Commr., 117 Ohio St.3d 122, 2008-Ohio-511, ¶ 19. "When

the statutory language is unambiguous, we apply it as written without resorting to rules of

statutory interpretation or considerations of public policy." Gabbard at ¶ 13, citing

Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603,

¶ 23-24, 26.

{¶ 16} "Statutory interpretation presents a question of law subject to a de novo

standard of review." State ex rel. McDonald v. Indus. Comm., 10th Dist. No. 20AP-386,

2021-Ohio-4494, ¶ 12, citing Natl. Lime & Stone at ¶ 14. Under Ohio law, "it is never

mandatory for a court to defer to the judgment of an administrative agency" and a court

should never do so to "alter the meaning of clear text." TWISM Ents., L.L.C. v. State Bd. of

Registration for Professional Engineers & Surveyors, __ Ohio St.3d __, 2022-Ohio-4677,

¶ 42. However, if a statute is genuinely ambiguous, a court "may consider an agency

interpretation based on its persuasive power" along with other tools of interpretation. Id.

at ¶ 43.

{¶ 17} In this case, the employer first contends, under the plain language of the first

sentence of R.C. 4123.56(F), claimant was not "unable to work as a 'direct' result of his

injury." (Objs. at 3.) Citing Merriam-Webster Dictionary and State ex rel. Quest

Diagnostics, Inc. v. Indus. Comm., 10th Dist. No. 20AP-246, 2022-Ohio-1093, the

employer asserts the word "direct" means, "[p]roceeding from one point to another in time

or space without deviation or interruption," "[p]roceeding by the shortest way," and

"[s]temming immediately from a source." (Objs. at 4-5.) Applied here, the employer argues

claimant was unable to work as a direct result of his termination, not his impairment.

{¶ 18} The commission points out that Quest Diagnostics no longer applies as it is

based on the voluntary abandonment doctrine now superseded by R.C. 4123.56(F).

According to the commission, the magistrate correctly determined R.C. 4123.56(F) plainly

calls for a consideration of the period when TTD was granted without resorting to an

analysis akin to the voluntary abandonment of the workforce doctrine that backtracks to

the period before TTD is granted. Therefore, the commission contends that, in this case,

because it is undisputed that claimant's physician removed claimant from work completely

following his approved surgery arising from allowed conditions in the claim, in the

No. 21AP-294 8

commission's view claimant was unable to work as a direct result of impairment from the

allowed conditions in the claim as of the date of surgery.

{¶ 19} Claimant adds that the employer is essentially asking the court to require him

to not only meet his burden under R.C. 4123.56(F) to show the workplace injury caused

him to be taken out of the workplace, but to add a requirement that claimant eliminate

other reasons the claimant had been out of work previously. Claimant emphasizes that TTD

compensation was awarded only for the period following surgery—when the evidence

shows he could not work anywhere—not any prior date.

{¶ 20} The first sentence at issue here in R.C. 4123.56(F) reads: "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."3 It is followed by this statement: "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." R.C. 4123.56(F).

{¶ 21} The word "direct" is not defined in the statute and, therefore, we consider its

plain and ordinary meaning within the context of the statute. Gabbard at ¶ 13; Natl. Lime

& Stone at ¶ 14; Thomas v. Logue, 10th Dist. No. 21AP-385, 2022-Ohio-1603, ¶ 15, quoting

Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, ¶ 17 ("Where 'a term is

not defined in the statute, it should be accorded its plain and ordinary meaning.' "). Used

as an adjective, relevant definitions of "direct" include: "proceeding from one point to

another in time or space without deviation or interruption"; "proceeding by the shortest

way"; "stemming immediately from a source"; "having no compromising or impairing

element"; "natural, straightforward"; and "characterized by close logical, causal, or

consequential relationship." Merriam-Webster Dictionary Online, https://www.merriam-

webster.com/dictionary/direct (last accessed March 2, 2023).

{¶ 22} 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

3 We note the parties do not dispute claimant is an "employee" for purposes of R.C. 4123.56.

No. 21AP-294 9

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 at ¶ 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.

{¶ 23} We note that this plain reading of R.C. 4123.56(F) comports with the

Supreme Court's analysis in State ex rel. BF Goodrich Co. v. Indus. Comm., 148 Ohio St.3d

212, 2016-Ohio-7988, ¶ 12-14 in assessing the meaning of "direct result" as that phrase

relates to R.C. 4123.56(B) wage loss compensation. BF Goodrich involved a claimant who,

after being injured in the course of her employment, was placed in the employer's light-

duty program. Pursuant to her collective-bargaining agreement, the light-duty program

rendered her ineligible for overtime pay, so she filed an application for wage loss

compensation based on a reduction in her earnings attributed to the lack of overtime in her

light-duty position. The employer contended the claimant's lack of overtime earnings was

not directly caused by medical restrictions that specifically limit overtime work, but rather

was the result of the 2012 collective bargaining agreement's prohibition on overtime.

{¶ 24} The Supreme Court disagreed. It found the definition of "working wage loss,"

which states "the diminishment [in wages] must be the direct result of physical and/or

psychiatric restriction(s) caused by the impairment that is causally related to an industrial

injury," means "the loss of wages must be causally related to the allowed conditions of the

claim." (Emphasis added.) Id. at ¶ 12, citing R.C. 4123.56(B), and ¶ 14, citing Ohio

Adm.Code 4125-1-01(A)(15). With this understanding, the Supreme Court held that,

because the record contained evidence that the claimant was placed in the light-duty

program because of her medical restrictions causally related to the allowed conditions of

her claim, the commission did not abuse its discretion when it concluded that the claimant's

wage loss was the "direct result" of her inability to return to her previous position due to

the physical restrictions resulting from her claim. Id. at ¶ 14, 19.

No. 21AP-294 10

{¶ 25} BF Goodrich preceded the enactment of R.C. 4123.56(F), and we presume the

legislature was aware of that analysis and holding when drafting R.C. 4123.56(F). Wayt v.

DHSC, L.L.C., 155 Ohio St.3d 401, 2018-Ohio-4822, ¶ 23, citing State ex rel. Huron Cty.

Bd. of Edn. v. Howard, 167 Ohio St. 93, 96 (1957) ("It is well established that the legislature

is presumed to have full knowledge of prior judicial decisions."). Considering all the above,

we conclude the magistrate did not err in determining claimant was unable to work as a

"direct" result of his workplace injury under R.C. 4123.56(F) in this case. The first objection

is overruled.

{¶ 26} The employer next argues that the magistrate ignored the requirement in the

first sentence of R.C. 4123.56(F) that claimant be "otherwise qualified." (Objs. at 7.) In the

employer's view, "otherwise qualified" refers to "the overall workers' compensation

statutory scheme," which dictates "[a] person is never qualified to receive compensation

unless they are employed to begin with." (Objs. at 7.) The employer cites to this court's

decision in State ex rel. Ohio State Univ. v. Pratt, 10th Dist. No. 19AP-603, 2021-Ohio-

3420, ¶ 5 and 9 in support of its position. Applied here, the employer believes that claimant

was not "otherwise qualified" pursuant to R.C. 4123.56(F) since he was not employed at the

time of his shoulder surgery due to his termination.

{¶ 27} We disagree. At the outset, we note the employer did not raise the meaning

of "otherwise qualified" as an issue to the magistrate until his reply brief. Typically, issues

raised for the first time in a reply brief will not be addressed by the court. State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 18 ("Appellate courts generally will

not consider a new issue presented for the first time in a reply brief."). We do not fault the

magistrate for declining to address that issue specifically when it was not timely raised and

overrule the employer's second objection contending err in this regard for that reason

alone.

{¶ 28} Nevertheless, even if this issue was properly raised, the employer has not

shown the phrase "otherwise qualified" in the first sentence of R.C. 4123.56(F) supports

vacating the writ. While the employer's objection is based on this court's Pratt decision,

2021-Ohio-3420, Pratt relied on the voluntary abandonment doctrine, did not involve R.C.

4123.56(F), and was reversed by the Supreme Court. See Pratt, 2022-Ohio-4111 (reversing,

in a case preceding application of R.C. 4123.56(F), the Tenth District judgment that held

No. 21AP-294 11

voluntary abandonment doctrine focused on departure of the injured worker's position

rather than the workforce). As a result, we find this court's Pratt decision does not hold

any value in assessing the "fundamental tenant" of TTD compensation and has no bearing

on the meaning of "otherwise qualified" in the first sentence of R.C. 4123.56(F). (Objs. at

7.)

{¶ 29} In addition to the lack of legal support for the objection, the plain text of R.C.

4123.56(F) does not support the employer's position. When R.C. 4123.56 is read 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 maximum medical

improvement ("MMI"). For example, even if a claimant is unable to work as the direct

result of an impairment arising from an injury or occupational disease, the claimant is not

"otherwise qualified" to receive TTD compensation if he or she has reached MMI. See, e.g.,

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

Ohio-4774, ¶ 42 (addressing whether claimant could continue to qualify for TTD

compensation if she had not achieved MMI). Therefore, for all of the above reasons, the

employer has not shown the magistrate erred by "not [a]pplying the [e]ntirety of the [f]irst

[s]entence of R.C. §4123.56(F)." (Objs. at 6.)

{¶ 30} In the third objection, the employer believes the magistrate erred in failing to

apply all of the terms of the second sentence of R.C. 4123.56(F), which reads: "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." Specifically, the employer contends the magistrate failed

to apply the first phrase, "[i]f an employee is not working." The employer argues that

because the legislature used "or" between the first two phrases, it intended two

circumstances bar TTD compensation: (1) the employee is not working; or (2) the employee

suffered a wage lost as a direct result of reasons unrelated to the allowed injury. (Objs. at

10.) In other words, the employer contends the phrase "not working" is unmodified by "as

[the] direct result of reasons unrelated to the allowed injury." (Objs. at 9-10.) Thus,

No. 21AP-294 12

because claimant was not working at the time he applied for TTD compensation, the

employer asserts he was ineligible to receive TTD compensation under the second sentence

of R.C. 4123.56(F). The commission and claimant both respond that R.C. 4123.56(F)

plainly does not automatically disqualify a claimant from receiving TTD compensation if

they are not working since the inability to work could be directly related to the workplace

injury.

{¶ 31} We agree with the commission and claimant. 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. See State ex rel. Clay v.

Cuyahoga Cty. Med. Examiners Office, 152 Ohio St.3d 163, 2017-Ohio-8714, ¶ 22 ("when

the General Assembly enacts a statute, it does not intend to produce an absurd result");

Natl. Lime & Stone at ¶ 14 (noting a court should not read a statute in a way to "render a

provision meaningless or inoperative"). Furthermore, to the extent the employer argues in

favor of applying the rule of the last antecedent, which states " ' "referential and qualifying

words and phrases, where no contrary intention appears, refer solely to the last

antecedent," ' " this position similarly fails due to the other clear indicia of meaning, namely

R.C. 4123.56(A). Wohl v. Swinney, 118 Ohio St.3d 277, 2008-Ohio-2334, ¶ 35, quoting

Indep. Ins. Agents of Ohio, Inc. v. Fabe, 63 Ohio St.3d 310, 314 (1992), quoting Carter v.

Youngstown Div. of Water, 146 Ohio St. 203, 209 (1946). See United States v. Hayes, 555

U.S. 415, 425 (2009) (emphasizing the rule of the last antecedent "is not an absolute and

can assuredly be overcome by other indicia of meaning"). The third objection is overruled.

{¶ 32} In the fourth objection, the employer argues the magistrate erred because

claimant "had no [l]ost [W]ages." (Objs. at 10.) Similar to the third objection, the employer

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

unless he is employed and actually suffered lost wages. The "concept that there can be no

lost earnings if a claimant is no longer part of the 'active workforce' is fundamental." (Objs.

at 12.) The employer reiterates its argument in the third objection that R.C. 4123.56(F) bars

a claimant from receiving TTD compensation if he is "not working." (Objs. at 12-13.) Thus,

No. 21AP-294 13

since claimant here was no longer employed at the time he underwent shoulder surgery, he

could not have suffered lost wages. The employer cites to State ex rel. Yuravak v. Indus.

Comm., 10th Dist. No. 16AP-15, 2016-Ohio-8343, ¶ 64, and State ex rel. Goff v. Indus.

Comm., 10th Dist. No. 15AP-1016, 2016-Ohio-7270, ¶ 8.

{¶ 33} The commission and claimant counter that the employer again relies on cases

that have been superseded that rely on the voluntary abandonment doctrine and that R.C.

4123.56(F) permits TTD compensation if the claimant is not working due to the allowed

conditions in the claim. We again agree with the commission and claimant. As addressed

in response to the third objection, not working—alone—is not dispositive, but rather

requires an inquiry into whether the claimant is unable to work as the direct result of an

impairment arising from an injury or occupational disease. R.C. 4123.56(F). So long as

that causal link is established, and he or she is otherwise qualified, the claimant is eligible

for TTD compensation. See R.C. 4123.56(A), (F); BF Goodrich at ¶ 12-14. The fourth

objection is overruled.

{¶ 34} In the fifth objection, the employer challenges the magistrate's statement that

the claimant's reasons for not working up to the date of his surgery were irrelevant. The

employer cites the "long-standing tenet regarding eligibility for workers' compensation" set

forth in this court's Pratt, 2021-Ohio-3420, decision and Klein, as well as State ex rel.

Cleveland Metro. School Dist. v. Indus. Comm., 10th Dist. No. 20AP-139, 2022-Ohio-2150,

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

(Objs. at 14.) However, the cited cases rely on the voluntary abandonment doctrine and

therefore have been superseded as stated in R.C. 4123.56(F). As a result, we do not find

them to support the employer's position. Although the employer implies we should analyze

the effect of the termination and whether evidence exists that claimant had abandoned the

workforce prior to his approved surgery, this is exactly the analysis the legislature expressly

superseded by enacting R.C. 4123.56(F). Contrary to the employer's position, R.C.

4123.56(F) requires us to review only whether the claimant in this case 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. The fifth objection is overruled.

{¶ 35} Overall, we find the text of R.C. 4123.56(F) to be unambiguous. If a claimant

is unable to work, R.C. 4123.56(F) sets forth two operative questions to be eligible for TTD

No. 21AP-294 14

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. R.C. 4123.56(F) does not impose an additional

requirement on a claimant to prove he or she is unable to work solely due to an impairment

arising from an injury or occupational disease. Only when an otherwise qualified claimant

is not working as a direct result of reasons unrelated to the allowed injury or occupational

disease is the claimant ineligible to receive TTD compensation.

{¶ 36} Applied here, record evidence, namely the MEDCO-14 forms submitted by

claimant's physician, demonstrated claimant was completely unable to work following the

approved surgery necessitated by an impairment from a workplace injury. We find the

evidence sufficient to satisfy the first sentence of R.C. 4123.56(F), showing claimant was

unable to work as the direct result of an impairment arising from his workplace injury for

the period at issue, and concomitantly sufficient to negate the second sentence of R.C.

4123.56(F), showing the reasons claimant is not working are not "unrelated" to the allowed

injury. Therefore, because some evidence supports the commission's decision to grant TTD

compensation in this case, we cannot disturb the order. Aaron's, Inc., 2016-Ohio-5011, at

¶ 18.

IV. Conclusion

{¶ 37} Upon review of the magistrate's decision, an independent review of the

record, and due consideration of the employer's objections, we find the magistrate has

properly determined the pertinent facts and applied the appropriate law. We therefore

overrule the employer's five objections to the magistrate's decision and adopt the

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

contained therein. Accordingly, the requested writ of mandamus is hereby denied.

Objections overruled;

writ of mandamus denied.

MENTEL and JAMISON, JJ., concur.

No. 21AP-294 15

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Autozone Stores, Inc., :

Relator, :

v. : No. 21AP-294

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

Respondents. :

MAGISTRATE'S DECISION

Rendered on August 10, 2022

Crabbe Brown & James, LLP, and John C. Albert, for relator.

Dave Yost, Attorney General, and Denise A. Gary, for

respondent Industrial Commission of Ohio.

Casper, Casper & Casper, LLC, and Kolet Buenavides, for

respondent Jason W. Schomaker.

IN MANDAMUS

{¶ 38} Relator, Autozone Stores, Inc. ("employer"), has filed this original action

requesting this court issue a writ of mandamus ordering respondent Industrial Commission

of Ohio ("commission") to vacate its April 2, 2021, order that granted the request of

respondent Jason W. Schomaker ("claimant") for temporary total disability ("TTD")

compensation.

No. 21AP-294 16

Findings of Fact:

{¶ 39} 1. On June 15, 2020, claimant sustained an injury in the course of and arising

out of his employment when he was moving batteries. His workers' compensation claim

was allowed for the following conditions: strain of muscle, fascia tendon at shoulder and

upper arm level, right biceps tendonitis, and right shoulder bursitis.

{¶ 40} 2. Claimant began working at the employer on May 21, 2016, first as sales

representative, then as parts manager, then as store manager, and then as assistant store

manager, which is the position he held on the date of his injury on June 15, 2020. He was

placed on light duty and continued to work with restrictions.

{¶ 41} 3. On September 5, 2020, claimant was involved in an argument with another

employee. The employer conducted an investigation and, based upon those findings,

terminated claimant on September 16, 2020.

{¶ 42} 4. On September 16, 2020, claimant filed for unemployment benefits, which

the Ohio Department of Job and Family Services ("ODJFS") granted on January 11, 2021,

finding that claimant was terminated without just cause.

{¶ 43} 5. On October 12, 2020, claimant filed a C-84 request form seeking TTD

compensation. He submitted a second C-84 request form on October 20, 2020.

{¶ 44} 6. On November 3, 2020, Anthony J. Checroun, M.D., issued a MEDCO-14

form indicating claimant could not return to his former job held on the date of injury.

{¶ 45} 7. On November 5, 2020, the employer denied claimant's requests, and the

issue was scheduled for a hearing before the commission.

{¶ 46} 8. On November 16, 2020, claimant underwent an approved right shoulder

surgery for this claim.

{¶ 47} 9. On December 1, 2020, Dr. Checroun issued a MEDCO-14 form indicating

that claimant cannot work until evaluated at a follow-up appointment.

{¶ 48} 10. On December 16, 2020, a district hearing officer ("DHO") denied

claimant's request for TTD. Claimant appealed.

{¶ 49} 11. On January 12, 2021, Dr. Checroun issued a MEDCO-14 form indicating

claimant cannot work until evaluated at a follow-up appointment.

{¶ 50} 12. On February 23, 2021, Dr. Checroun issued a MEDCO-14 form finding

claimant can return to work with restrictions from February 23, to April 19, 2021.

No. 21AP-294 17

{¶ 51} 13. On March 25, 2021, a hearing was held before a staff hearing officer

("SHO"). In an April 2, 2021, order, the SHO granted claimant's request for TTD

compensation from November 16, 2020, to March 25, 2021, to continue upon submission

of medical records certifying that he was unable to return to and perform his former

position of employment due to the allowed conditions. The SHO found the following:

(1) claimant was unable to return to and perform the duties of his former position of

employment from November 16, 2020, through March 25, 2021, due to the allowed

conditions; (2) claimant underwent an authorized surgery to treat the allowed conditions

on November 16, 2020, and during the period afterwards has been recuperating and

recovering from the surgery; (3) the findings are based, in part, upon the MEDCO-14 forms

from Dr. Checroun dated November 3, and December 1, 2020, and January 12, and

February 23, 2021; (4) the SHO rejects the employer's argument that the requested

compensation should be denied because the injured worker was terminated by the

employer of record on September 16, 2020; (5) pursuant to R.C. 4123.56(F), claimant was

unable to work or return to his former position of employment as a direct result of

impairment arising from the allowed injury from November 16, 2020, through March 25,

2021; (6) in support of this finding, the SHO relies on the facts that, at the time of the

termination, claimant was under restrictions due to the allowed conditions that prevented

him from returning to and performing the full duties of his former position of employment,

and the MEDCO-14 reports from Dr. Checroun dated December 1, 2020, and January 12,

2021, which are the first two MEDCO-14 reports after the surgery occurred, completely

removed claimant from the workforce due to the allowed conditions; and (7) because the

SHO finds that claimant was unable to work as a direct result of an impairment arising from

an injury, clamant is entitled to receive the ordered compensation.

{¶ 52} 14. The employer appealed the SHO's order to the commission, which refused

further appeal on April 27, 2021.

{¶ 53} 15. On June 11, 2021, the employer filed a petition for writ of mandamus.

Conclusions of Law and Discussion:

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

mandamus.

No. 21AP-294 18

{¶ 55} 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).

{¶ 56} 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).

{¶ 57} 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. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630

(1982).

{¶ 58} 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. 21AP-294 19

R.C. 4123.56(F). Here, the commission, the employer, and claimant agree that the

amended version of R.C. 4123.56(F) applies to the present case.

{¶ 59} The employer asserts the following arguments in support of mandamus:

(1) claimant did not suffer a wage loss because he was terminated for violating the

employer's policies and never returned to the workforce, pointing out that claimant never

missed a day of work at the employer after his injury and worked light duty until he was

terminated; (2) because claimant was terminated as a result of his own actions and became

unemployed for reasons entirely unrelated to his injury, he was not working due to his own

actions and not the result of his workplace injury; (3) in granting TTD compensation, the

SHO relied upon only the first sentence of R.C. 4123.56(F), and applied incorrect facts; the

first sentence of R.C. 4123.56(F) requires that the inability to work must be the direct result

of an impairment arising from an injury, and the SHO concluded that this section applied

here because, at the time of termination, claimant was under restrictions due to the allowed

conditions, which prevented him from returning to and performing the full duties of his

former position of employment; however, that fact is not correct because, at the time of

termination, claimant was working fulltime, light-duty work and had not missed any work

since his injury; (4) claimant's surgery could not have completely removed him from the

workforce, as the SHO found, because claimant was not working at the time of the surgery

and could not have suffered a wage loss due to the surgery or injury; and (5) the SHO failed

to consider the second sentence of R.C. 4123.56(F), which provides that if an employee is

not working or has suffered a wage loss as a direct result of reasons unrelated to the allowed

injury, the employee is not eligible to receive compensation; here, there is no dispute that

claimant was not employed since his termination and, thus, had no wage loss caused by his

surgery but, instead, any wage loss was due to his being unemployed based upon his own

actions.

{¶ 60} A court's duty is to give effect to the words used in a statute, not to delete or

insert words. State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, ¶ 10. "Where the

language of a statute is plain and unambiguous and conveys a clear and definite meaning

there is no occasion for resorting to rules of statutory interpretation. An unambiguous

statute is to be applied, not interpreted." Sears v. Weimer, 143 Ohio St. 312 (1944),

paragraph five of the syllabus. "Only when a definitive meaning proves elusive should rules

No. 21AP-294 20

for construing ambiguous language be employed. Otherwise, allegations of ambiguity

become self-fulfilling." State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 11.

Moreover, "administrative deference has no place in the face of an unambiguous text." State

ex rel. Fire Rock, Ltd. v. Ohio Dept. of Commerce, 163 Ohio St.3d 277, 2021-Ohio-673, ¶

18.

{¶ 61} In ascertaining the meaning of a statute, a court's paramount concern is

legislative intent. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, ¶ 34, citing State

ex rel. Asberry v. Payne, 82 Ohio St.3d 44, 47 (1998). To discern legislative intent, a court

first considers the statutory language, "reading words and phrases in context and

construing them in accordance with rules of grammar and common usage." State ex rel.

Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, ¶

40.

{¶ 62} In the present matter, the magistrate finds the commission properly

construed and applied amended R.C. 4123.56(F). Amended R.C. 4123.56(F) contains two

distinct sections for determining whether an employee is entitled to TTD compensation

based upon wage loss. Pursuant to the first section, an employee is entitled to receive

compensation if the employee is unable to work or suffers a wage loss as the direct result of

an impairment arising from an injury or occupational disease. As this first section applies

here, claimant was entitled to receive compensation because he underwent an authorized

surgery to treat the allowed conditions on November 16, 2020. Claimant was unable to

work as of the date of his surgery, as supported by the MEDCO-14 reports from Dr.

Checroun dated December 1, 2020, and January 12, 2021. Thus, as of the date of his

surgery, claimant was "unable to work * * * as the direct result of an impairment arising

from an injury." R.C. 4123.56(F). The current facts fit squarely within the plain language

of this section.

{¶ 63} Pursuant to the second section of R.C. 4123.56(F), 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 wage-loss

compensation. As this second section applies here, claimant underwent surgery due to the

allowed conditions, and commencing on the date of the November 16, 2020, surgery,

claimant was not able to work per Dr. Checroun's MEDCO-14 reports. Thus, immediately

No. 21AP-294 21

post-surgery, claimant was not working as a direct result of reasons related to the allowed

injuries. At that point, his failure to work was not "a direct result of reasons unrelated to

the allowed injury." R.C. 4123.56(F). Contrary to the employer's argument, as of November

16, 2020, claimant was unable to work regardless of the reason for or cause of his

termination on September 16, 2020. His reason for not working up until the date of surgery

was irrelevant for purposes of determining his eligibility for wage-loss compensation after

the surgery due to the allowed conditions. Even if it were assumed that claimant was not

working prior to November 16, 2020, due to his termination from his former position of

employment, once claimant underwent surgery due to his allowed workplace injury, the

reason he was not working could no longer be directly attributable to reasons unrelated to

the workplace injury, i.e., his termination. Instead, his not working, at that point, was

directly attributable to his surgery, which was necessitated by an allowed workplace injury.

As the SHO noted, claimant had been able to work, with restrictions, at the time of his

termination, but the surgery completely removed him from the workforce per Dr.

Checroun's MEDCO-14s. Although claimant could have been working for another employer

prior to the surgery, he was completely unable to work after the surgery. For these reasons,

the magistrate finds the commission properly construed and applied amended R.C.

4123.56(F), there was some evidence to support the commission's determination that

claimant was entitled to wage loss compensation from November 16, 2020, through

March 25, 2021, to continue upon the submission of medical evidence, and the commission

did not abuse its discretion.

{¶ 64} 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

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).