State ex rel. Presswood v. Indus. Comm.

[Cite as State ex rel. Presswood v. Indus. Comm., 2023-Ohio-4392.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Charles Presswood, :

Relator, :

No. 22AP-510

v. :

(REGULAR CALENDAR)

Industrial Commission of Ohio et al., :

Respondents. :

D E C I S I O N

Rendered on December 5, 2023

On brief: Casper, Casper and Casper LLC, and Douglas W.

Casper, for relator.

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

for respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTION TO THE MAGISTRATE’S DECISION

DORRIAN, J.

{¶ 1} Relator, Charles Presswood, filed this original action in mandamus seeking a

writ compelling respondent Industrial Commission of Ohio (“commission”) to vacate its

orders denying his application for temporary total disability (“TTD”) compensation.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,

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

and conclusions of law, which is appended hereto. The magistrate recommends this court

grant Presswood’s motion for summary judgment and grant his request for a writ of

mandamus. For the following reasons, we grant in part Presswood’s motion for summary

judgment and grant a limited writ of mandamus.

No. 22AP-510 2

{¶ 3} The commission has filed the following objection to the magistrate’s decision:

The magistrate erred in finding that Presswood is entitled to

judgment as a matter of law and recommending that the Court

grant a full writ of mandamus without an analysis by the

commission as to whether an MMI finding impacts a TTD

award pursuant to R.C. 4123.56(A) and (F).

{¶ 4} Presswood was employed as a laborer for respondent CRG Residential when

he suffered injuries due to a fall on May 23, 2016. As detailed in the magistrate’s decision,

a workers’ compensation claim was allowed for multiple physical and psychological

conditions. Presswood received TTD for his allowed physical conditions until he reached

maximum medical improvement (“MMI”) on March 20, 2019, and received TTD for his

allowed psychological conditions until he reached MMI on July 27, 2020. Presswood did

not return to employment after having been found to have reached MMI on his allowed

conditions.

{¶ 5} Presswood filed an application for permanent total disability (“PTD”)

compensation on September 28, 2020. In an order mailed May 20, 2021, a commission

staff hearing officer (“SHO”) denied Presswood’s PTD application, concluding Presswood

had reached MMI for all allowed conditions and could perform sedentary work.

{¶ 6} On June 2, 2021, the Ohio Bureau of Workers’ Compensation (“BWC”)

approved surgery for the removal of previously placed hardware from Presswood’s foot.

The surgery was performed on June 4, 2021. On October 22, 2021, Presswood filed an

application for TTD compensation beginning June 4, 2021, supported by a physician’s

report indicating Presswood was unable to engage in employment following the surgery. A

commission district hearing officer (“DHO”) denied Presswood’s application for TTD

compensation, finding Presswood was not working prior to the surgery and therefore had

no lost wages due to the surgery. An SHO affirmed the DHO’s order, similarly concluding

Presswood was not entitled to TTD compensation because he was not working at the time

of surgery and therefore had no lost wages due to the allowed conditions. Presswood

appealed the denial to the commission, which denied the appeal and a subsequent request

for reconsideration. Presswood then filed a complaint in mandamus in this court.

{¶ 7} A relator seeking a writ of mandamus as a remedy from a commission

decision must demonstrate that he or she has a clear legal right to the relief sought and that

No. 22AP-510 3

the commission has a clear legal duty to provide such relief. State ex rel. Rouch v. Eagle

Tool & Machine Co., 26 Ohio St.3d 197, 198 (1986). A clear legal right to a writ of

mandamus exists when the commission abuses its discretion by entering an order not

supported by some evidence. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76, 79

(1986).

{¶ 8} Presswood moved for summary judgment on his mandamus claim asserting

he was entitled to TTD compensation because he was unable to work following the surgery

as a direct result of reasons related to his allowed conditions. Citing this court’s decision in

State ex rel. Autozone Stores, Inc. v. Indus. Comm., 10th Dist. No. 21AP-294, 2023-Ohio-

633, Presswood argued his reasons for not working prior to surgery were irrelevant to the

determination of whether he was eligible for TTD after surgery, because the surgery was

related to his allowed conditions. The magistrate found Presswood’s argument persuasive,

concluding this case was substantially similar to Autozone and that regardless of the reason

Presswood was not working prior to surgery, his not working after that date was directly

attributable to the surgery, which was related to his allowed conditions. The magistrate

recommended we grant Presswood’s motion for summary judgment and his petition for a

writ of mandamus.

{¶ 9} In its objection to the magistrate’s decision, the commission argues this case

differs from Autozone because Presswood previously had been found to have reached MMI

on his allowed conditions. The commission notes that, under R.C. 4123.56(A), a finding of

MMI terminates TTD compensation. Therefore, the commission argues, it must be given

an opportunity to evaluate whether Presswood’s subsequent surgery impacts the prior MMI

finding and whether he is entitled to TTD compensation under R.C. 4123.56(A) and (F)

following surgery.

{¶ 10} In Autozone, which was decided after the commission denied Presswood’s

application for TTD compensation, we held that “not working—alone—is not dispositive [of

whether a claimant is eligible for TTD compensation], but rather requires an inquiry into

whether the claimant is unable to work as the direct result of an impairment arising from

an injury or occupational disease.” Autozone at ¶ 33. “So long as that causal link is

established, and he or she is otherwise qualified, the claimant is eligible for TTD

compensation.” Id. Moreover, “R.C. 4123.56(F) requires us to review only whether the

No. 22AP-510 4

claimant * * * was unable to work as the direct result of an impairment arising from an

injury or occupational disease to support the grant of TTD for the period specified.” Id. at

¶ 34. In this case, both the DHO and SHO concluded that Presswood was not eligible for

TTD compensation because he was not working and had not attempted to return to the

workforce or try vocational rehabilitation prior to the June 4, 2021 surgery, when he only

sought TTD compensation for the period from June 4, 2021 forward. We agree with the

magistrate’s conclusion that under Autozone the reason Presswood was not working prior

to the date of surgery is not relevant for determining his eligibility for TTD compensation

for the period on and after surgery. Presswood has demonstrated there is no genuine issue

of material fact, and he is entitled to judgment as a matter of law on his request for a writ

of mandamus ordering the commission to vacate its denial of his application for TTD

compensation. Therefore, we grant in part Presswood’s motion for summary judgment to

the extent he seeks a writ of mandamus ordering the commission to vacate the orders

denying his application for TTD compensation.

{¶ 11} We disagree, however, as to whether Presswood is entitled to a writ of

mandamus ordering the commission to grant his application for TTD compensation.

Under R.C. 4123.56(F) there are two operative questions in determining eligibility for TTD

compensation: “(1) whether [the claimant] is unable to work as the direct result of an

impairment arising from an injury or occupational disease; and (2) whether [the claimant]

is otherwise qualified to receive TTD compensation.” Autozone at ¶ 35. In Autozone, we

held that the phrase “otherwise qualified” in the first sentence of R.C. 4123.56(F) referred

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

reached MMI. Id. at ¶ 29. We further noted that even if a claimant was unable to work as

the direct result of an impairment arising from an injury, the claimant was not otherwise

qualified to receive TTD compensation if he had reached MMI. Id., citing State ex rel. R.R.

Donnelley & Sons Co. v. Indus. Comm., 10th Dist. No. 21AP-119, 2022-Ohio-4774, ¶ 42.

{¶ 12} Presswood had been found to have reached MMI on his physical conditions

in 2019 and on his psychological conditions in 2020. Although both the DHO and SHO

acknowledged the MMI findings in their orders, neither hearing officer addressed whether

the subsequent approved surgery affected the prior MMI findings or whether the prior MMI

findings affected Presswood’s eligibility for TTD compensation. Accordingly, under these

No. 22AP-510 5

circumstances, we find it appropriate to remand to the commission to resolve those

questions in the first instance and determine Presswood’s eligibility for TTD compensation

consistent with the principles set forth in Autozone and in this decision. See State ex rel.

Simon v. Indus. Comm., 71 Ohio St.3d 186, 189 (1994) (holding that “the appellate court

acted properly in letting the commission determine whether [a physician’s] report supports

or negates a finding of maximum medical improvement”). Therefore, we deny in part

Presswood’s motion for summary judgment to the extent he seeks a writ of mandamus

ordering the commission to grant his application for TTD compensation.

{¶ 13} Upon review of the magistrate’s decision, an independent review of the

record, and due consideration of the commission’s objection, we find the magistrate has

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

findings of fact contained in the magistrate’s decision, and modify the conclusions of law

therein, in accordance with our conclusions above. For the reasons explained above, we

sustain the commission’s objection to the magistrate’s decision, grant in part and deny in

part Presswood’s motion for summary judgment, and grant a limited writ of mandamus

ordering the commission to vacate its orders denying Presswood’s application for TTD

compensation and determine whether Presswood is eligible for TTD compensation.

Objection sustained;

motion for summary judgment granted in part and denied in part;

limited writ of mandamus granted.

LUPER SCHUSTER and LELAND, JJ., concur.

[Cite as State ex rel. Presswood v. Indus. Comm., 2023-Ohio-4392.]

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Charles Presswood, :

Relator, :

v. : No. 22AP-510

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

Respondents. :

M A G I S T R A T E’ S D E C I S I O N

Rendered on June 15, 2023

Casper, Casper and Casper, LLC, and Douglas W. Casper, for

relator.

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

respondent Industrial Commission of Ohio.

IN MANDAMUS

ON RELATOR’S MOTION FOR

SUMMARY JUDGMENT

{¶ 14} Relator, Charles Presswood (‘‘claimant’’), has filed this original action

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

of Ohio (‘‘commission’’) to vacate its order that denied his request for temporary total

disability (‘‘TTD’’) compensation. Claimant has filed a March 21, 2023, motion for

summary judgment.

No. 22AP-510 7

Findings of Fact:

{¶ 15} 1. On May 23, 2016, claimant sustained an injury in the course of and arising

out of his employment with respondent CRG Residential (‘‘employer’’) when he tripped

over a box and fell. His workers’ compensation claim was allowed for the following

conditions: closed oblique fracture distal fibula, left; radial head fracture with closed

dislocation, left; lateral dislocation of left ulnohumeral joint; displaced bilmalleolar fracture

of left lower leg; dislocation of tarsometatarsal joint of left foot; displaced fracture of second

metatarsal bone, left foot; sprain of tibiofibular ligament of left ankle; displaced fracture of

third metatarsal bone, left foot; displaced fracture of fourth metatarsal bone, left foot;

displaced fracture of cuboid bone of left foot closed; post-traumatic midfoot arthritis, left

foot; painful hardware, left foot; neuralgia left foot; major depressive disorder, generalized

anxiety disorder; and a pain disorder associated with psychological factors. He had several

surgeries addressing the allowed conditions.

{¶ 16} 2. Claimant was granted TTD compensation based upon the allowed physical

conditions until he reached maximum medical improvement (‘‘MMI’’) on March 20, 2019,

based on the February 20, 2019, medical report of Dr. Alan Kohlhaas, M.D., who opined

that claimant was capable of performing sedentary work with restrictions.

{¶ 17} 3. Claimant continued to receive TTD for his psychological conditions until

he reached MMI on July 27, 2020, based upon the June 23, 2020, medical report of Donald

Tosi, Ph.D., who opined that claimant could work with restrictions.

{¶ 18} 4. Claimant did not attempt to return to employment.

{¶ 19} 5. On September 28, 2020, claimant filed an application for permanent and

total disability (‘‘PTD’’) compensation.

{¶ 20} 6. E. Gregory Fisher, M.D., examined claimant with regard to PTD for his

allowed physical conditions, and in a December 17, 2020, report, he opined that claimant

was capable of sedentary work.

{¶ 21} 7. Kenneth Manges, Ph.D., examined claimant with regard to PTD for his

allowed psychological conditions, and in a January 10, 2021, report, he opined that

claimant was capable of work with limitations.

{¶ 22} 8. During the pendency of the PTD application, claimant continued medical

treatment for foot and ankle issues.

No. 22AP-510 8

{¶ 23} 9. On May 20, 2021, a staff hearing officer (‘‘SHO’’) denied the PTD

application, finding claimant could perform sedentary work.

{¶ 24} 10. On June 2, 2021, the Ohio Bureau of Workers’ Compensation (‘‘BWC’’)

approved surgery for the removal of plates in claimant’s foot in order to reduce pain.

{¶ 25} 11. On June 4, 2021, claimant had surgery on his foot.

{¶ 26} 12. On October 22, 2021, claimant filed a request for TTD compensation as of

the date of his surgery, June 4, 2021. Claimant supported his application for TTD

compensation with a MEDCO-14 from Jeffrey Wu, M.D., indicating that claimant was

unable to engage in employment following the surgery.

{¶ 27} 13. On March 15, 2022, a district hearing officer (‘‘DHO’’) denied claimant’s

request for TTD compensation, finding the following: (1) claimant was not working in any

capacity prior to June 4, 2021, and has not suffered a wage loss due to the allowed

conditions; (2) prior to June 4, 2021, the last time claimant worked was May 23, 2016,

which is the date of the injury in this claim; (3) Drs. Kohlhaas and Tosi’s MMI reports found

that the allowed conditions did not prevent claimant from working, and he was capable of

performing sedentary-level work activities; (4) after termination of claimant’s TTD

compensation as of July 27, 2020, the file contains insufficient evidence that claimant

attempted to return to the workforce or attempted vocational rehabilitation prior to June 4,

2021; (5) claimant did file an application for PTD compensation on September 28, 2020,

but that was denied; (6) claimant was capable of working a sedentary position when

considering the restrictions arising from the allowed conditions; (7) after the order was

published, claimant went to his surgeon to request that the hardware in his left foot be

removed, which the surgeon did on June 4, 2021; and (8) because claimant was not working

prior to June 4, 2020, and had not attempted to return to the workforce or try vocational

rehabilitation during the period from July 8, 2020, through June 4, 2021, claimant had no

wages to lose starting June 4, 2021, and he is not eligible for TTD compensation starting

June 4, 2021. Claimant appealed the DHO’s order.

{¶ 28} 14. After a hearing, the SHO affirmed the DHO’s order in an April 26, 2022,

order, finding the following: (1) based upon R.C. 4123.56(F), claimant is not eligible for the

payment of TTD compensation beginning June 4, 2021, because he was not working at that

time and, consequently, did not suffer a wage loss as a result of the allowed conditions in

No. 22AP-510 9

the claim; (2) claimant did not have any wages to replace when he had the surgery to remove

hardware on June 4, 2021; (3) the last day claimant worked was on the date of the injury in

2016; and (4) there is no evidence that claimant attempted to return to work or search for

work after he was found by the commission to be capable of performing work activity

following the termination of TTD compensation and the denial of the application for PTD

compensation. Claimant appealed the order to the commission.

{¶ 29} 15. On May 17, 2022, the commission denied claimant’s appeal. Claimant

filed a request for reconsideration.

{¶ 30} 16. On July 12, 2022, the commission denied the request for reconsideration.

{¶ 31} 17. On August 18, 2022, claimant filed his petition for writ of mandamus.

{¶ 32} 18. On March 21, 2023, claimant filed a motion for summary judgment.

Conclusions of Law and Discussion:

{¶ 33} The magistrate recommends that this court grant claimant’s motion for

summary judgment and grant his petition for writ of mandamus.

{¶ 34} 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).

{¶ 35} 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).

{¶ 36} 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

No. 22AP-510 10

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).

{¶ 37} Under Civ.R. 56(C), summary judgment may be granted when the moving

party demonstrates that (1) there is no genuine issue of material fact; (2) the moving party

is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d

181, 183 (1997).

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

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

language pertaining to voluntary abandonment:

(F) If an employee is unable to work or suffers a wage loss as

the direct result of an impairment arising from an injury or

occupational disease, the employee is entitled to receive

compensation under this section, provided the employee is

otherwise qualified. If an employee is not working or has

suffered a wage loss as the direct result of reasons unrelated

to the allowed injury or occupational disease, the employee is

not eligible to receive compensation under this section. It is

the intent of the general assembly to supersede any previous

judicial decision that applied the doctrine of voluntary

abandonment to a claim brought under this section.

R.C. 4123.56(F).

{¶ 39} In his motion for summary judgment, claimant argues the following:

(1) under the first section of R.C. 4123.56(F), claimant was entitled to receive TTD benefits

because he was unable to work or suffered a wage loss after the June 4, 2021, surgery, which

was a direct result of an impairment arising from his industrial injury; (2) under the second

section of R.C. 4123.56(F), even though claimant was not working prior to his surgery,

immediately after surgery, he was not working as a direct result of reasons related to his

allowed injuries; thus, claimant was entitled to receive TTD benefits because he was not

working or suffered a wage loss that was not unrelated to the industrial injury, citing this

court’s recent decision in State ex rel. AutoZone Stores, Inc. v. Indus. Comm., 10th Dist.

No. 22AP-510 11

No. 21AP-294, 2023-Ohio-633; (3) that claimant was not working prior to the surgery is

irrelevant to determining whether he is entitled to TTD benefits after the surgery, consistent

with the holding in AutoZone; and (4) there is no evidence that claimant was able to work

following his surgery in any capacity.

{¶ 40} The commission makes the following arguments in response: (1) the SHO did

not deny TTD compensation merely because claimant was not working prior to June 4,

2021; (2) the commission agrees that R.C. 4123.56(F) does not require that a claimant must

be working at the time of the request in order to be entitled to receive TTD compensation;

(3) the commission performed an analysis, as required by R.C. 4123.56(F), to determine

why claimant was not working on the date of his surgery, and appropriately found that,

although he had been previously found to be capable of sedentary employment, he did not

seek employment within his restrictions; (4) the SHO determined that the reason claimant

was not working on June 4, 2021, was because he chose not to return to sedentary

employment; thus, claimant was not working on the date of the surgery due to reasons not

related to the allowed injury; (5) AutoZone is distinguishable because there is no indication

that the claimant in AutoZone chose to no longer work as claimant did here, and, in fact,

the claimant in AutoZone continued to work after the industrial injury until he was

terminated from employment; and (6) the court in AutoZone held that, when considering

the first sentence of R.C. 4123.56(F), the commission does not consider why a claimant was

not working prior to the period of requested TTD compensation; however, when

considering the second sentence of R.C. 4123.56(F), a complete analysis as to why the

employee is not working as of that date must be made, and, in AutoZone, the court found

that the claimant was unable to work as of the date of his surgery due to his surgery, but

claimant in the present case chose to no longer work.

{¶ 41} The magistrate’s reading of AutoZone supports claimant’s motion for

summary judgment. In AutoZone, the claimant was working as an assistant store manager

for the employer when he sustained an injury. A workers’ compensation claim was allowed,

and the claimant was placed on light duty. The claimant was then involved in an argument

with another employee and was terminated. The claimant filed a request for TTD

compensation, which was denied by the employer. The claimant then underwent an

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

No. 22AP-510 12

claimant could not work until further evaluation. The DHO denied the claimant’s request

for TTD compensation after examining the details of the claimant’s termination. After the

claimant appealed, the SHO granted the 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 the

claimant had been terminated. Instead, the SHO determined, based on the fact the 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), pursuant to R.C. 4123.56(F), the 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. In the employer’s writ of mandamus

action, the magistrate denied a writ, and this court denied the employer’s subsequent

objections.

{¶ 42} In AutoZone, with regard to the first section of R.C. 4123.56(F), the employer

argued the claimant was unable to work as a direct result of his prior job termination, not

his impairment arising from the subsequent allowed surgery. This court addressed ‘‘direct

result,’’ as used in both the first and second sentences in R.C. 4123.56(F), as follows:

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

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

inability to work to stem immediately from an impairment

arising from an injury or occupational disease. We decline to

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

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

impairment arising from an injury or occupational disease.

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

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

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

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

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

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

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

workplace injury would TTD be inappropriate.

R.C. 4123.56(F). To instead adopt the employer’s position

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

surrounding why the claimant left the workforce preceding

the period of TTD compensation—effectively resurrecting the

voluntary abandonment analysis expressly superseded by the

legislature.

No. 22AP-510 13

AutoZone at ¶ 22. Thus, this court in AutoZone concluded 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).

{¶ 43} AutoZone controls the present case. The facts in AutoZone are substantially

similar to those here. In both cases, the injured workers were not working before their

allowed surgery that rendered them temporarily and totally disabled. The injured workers

in both cases were unemployed immediately preceding allowed surgeries that were

necessitated by the industrial injury. Both workers then applied for TTD compensation

because they were unable to work in any capacity after the allowed surgeries, a fact

supported by the medical evidence in both cases. This court in AutoZone found the

claimant’s circumstances fit within the first sentence in R.C. 4123.56(F), because the

claimant was unable to work as a direct result of his workplace injury after he underwent

the allowed surgery. The commission here does not contest this reading of AutoZone in its

memorandum in opposition and, in fact, agrees that the determination as to whether an

employee is unable to work or suffers a wage loss as the direct result of an impairment

arising from an injury under the first sentence in R.C. 4123.56(F) is made as of the date the

period of TTD compensation is started. The magistrate agrees that the present

circumstances fall within the purview of the first sentence in R.C. 4123.56(F) because

claimant was unable to work as a direct result of the allowed surgery that was necessitated

by his workplace injury.

{¶ 44} However, the commission argues that in considering the second sentence in

R.C. 4123.56(F), the commission must undergo a complete analysis as to why the employee

is not working as of the date of the alleged period of TTD. The commission claims that this

is where the facts in AutoZone and the present case diverge, because the worker in

AutoZone was unable to work as of the date of his surgery but claimant here had chosen to

no longer work prior to his surgery. It was not the surgery that rendered claimant unable

to work in the present case, the commission argues, but, instead, the facts make clear that

claimant had already chosen not to work prior to the surgery. Applying the second sentence

in R.C. 4123.56(F) to the present case, the commission urges that claimant was not working

and had suffered a wage loss as the direct result of reasons unrelated to the allowed injury;

i.e., his choice to no longer work.

No. 22AP-510 14

{¶ 45} The commission’s argument sounds like the doctrine of voluntary

unemployment, which was explicitly superseded by the amendment of R.C. 4123.56(F). It

is also the same argument made by the employer in AutoZone and rejected by this court. It

is clear from AutoZone that the simple fact that an injured worker was not working prior to

the claimed period of TTD does not automatically disqualify a claimant from receiving TTD

compensation, as the commission acknowledged in AutoZone. AutoZone at ¶ 30. Similarly,

in AutoZone, this court rejected the concept that an injured worker is not entitled to TTD

compensation unless he is employed and actually suffered lost wages at the time of the

claimed period of TTD. Id. at ¶ 32-33. Also with regard to the second sentence in R.C.

4123.56(F), in AutoZone we addressed the employer’s argument that the magistrate erred

when he found that a claimant’s reasons for not working up to the date of his surgery were

irrelevant. This court noted that the cases relied upon by the employer to challenge the

magistrate’s statement relied on the doctrine of voluntary abandonment. Id. at ¶ 34. We

found that, ‘‘[a]lthough 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).’’ Id. We explained that, ‘‘[c]ontrary to the employer’s position,

R.C. 4213.56(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.’’ Id.

{¶ 46} This court in AutoZone then went on to summarize, as follows:

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

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.

No. 22AP-510 15

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.

Id. at ¶ 35-36. Nowhere in the first paragraph above did this court indicate that the

commission must look back to the time prior to the period of claimed TTD and determine

why a claimant was not working. The court also did not undergo such an analysis in the

second paragraph above to determine the claimant’s eligibility for TTD. Instead, as this

court explained, if a claimant is unable to work, R.C. 4123.56(F) sets forth only two

operative questions to be eligible for TTD compensation: (1) whether he or she is unable

to work as the direct result of an impairment arising from an injury or occupational

disease; and (2) whether he or she is otherwise qualified to receive TTD compensation.

There is no requirement that a claimant prove he or she is unable to work solely due to an

impairment arising from an injury or occupational disease. In other words, although there

may be other reasons why an employee is not working, as long as he or she is unable to

work as the direct result of an impairment arising from an injury or occupational disease,

that is sufficient for TTD-compensation eligibility.

{¶ 47} As applied here, similar to AutoZone, the MEDCO-14 form submitted by

claimant’s physician, Dr. Wu, demonstrated claimant was completely unable to work

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

Thus, there was uncontroverted 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. Concomitantly, there was also

evidence sufficient to negate the second sentence of R.C. 4123.56(F), showing the reasons

claimant was not working after the surgery are not ‘‘unrelated’’ to the allowed injury.

Consistent with this magistrate’s explanation in AutoZone at ¶ 63, the reason claimant was

No. 22AP-510 16

not working up until the date of surgery is 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 the surgery based on personal

choice or other reasons, once claimant underwent surgery due to his allowed workplace

injury, the reason he was not working at that point could no longer be directly attributable

to reasons unrelated to the workplace injury. Instead, claimant’s not working, at that point,

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

injury. Like the claimant in AutoZone, in the present case, there is evidence in the record

that 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. Wu’s MEDCO-14.

Although claimant might have been able to work in some capacity prior to the surgery, it is

undisputed that he was completely unable to work after the surgery.

{¶ 48} Therefore, pursuant to Civ.R. 56(C), the claimant has demonstrated that

there is no genuine issue of material fact, and he is entitled to judgment as a matter of law

pursuant to this court’s decision in AutoZone.

{¶ 49} Accordingly, it is the magistrate’s recommendation that this court should

grant claimant’s motion for summary judgment and grant his 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). A party may file written objections to the

magistrate's decision within fourteen days of the filing of the

decision.