The opinion
[Cite as State ex rel. Giant Eagle, Inc. v. Indus. Comm., 2024-Ohio-2079.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Giant Eagle, Inc.,
:
Relator,
: No. 23AP-119
v.
: (REGULAR CALENDAR)
Ohio Industrial Commission
and Darius L. Jefferson, :
Respondents. :
DECISION
Rendered on May 30, 2024
On brief: Matty, Henrikson & Greve, LLC, Kirk R.
Henrikson, Erin E. Hooper, and Josh A. Friedman, for relator.
On brief: Dave Yost, Attorney General, and Denise A. Corea,
for respondent Industrial Commission of Ohio.
On brief: Hoffman Legal Group, LLC, and Douglas S.
Hunter, for respondent Darius L. Jefferson.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
DORRIAN, J.
{¶ 1} Relator, Giant Eagle, Inc. (“Giant Eagle”), has filed this original action
requesting a writ of mandamus ordering respondent Industrial Commission of Ohio
(“commission”) to reverse its order granting respondent Darius L. Jefferson (“Jefferson”)
temporary total disability (“TTD”) compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this court referred the matter to a magistrate of this court. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
recommended this court deny Giant Eagle’s request for a writ of mandamus.
No. 23AP-119 2
{¶ 3} On January 15, 2024, Giant Eagle filed objections to the magistrate’s
decision.1 Thus, we must “undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and appropriately
applied the law.” Civ.R. 53(D)(4)(d).
{¶ 4} As provided in more detail in the magistrate’s decision, on July 12, 2022
Jefferson was injured while working as a diesel mechanic for Giant Eagle. His workers’
compensation claim was allowed for the physical conditions of: (1) laceration right index
finger, and (2) displaced fracture distal phalanx right index finger.
{¶ 5} On the date of the injury, Jefferson was transported to University Hospitals
Ahuja Medical Center emergency room. Audrey Demarco, PA-C, completed an “Attending
Physician Form” indicating Jefferson was capable of returning to work with the restriction
of sedentary work only. (Stip. at 15.) Demarco also signed another form addressed to the
“Treating Physician,” which included a provision entitled “Safety Review Program
Summary.” (Stip. at 16.) That summary stated “[a]ll team members who experience a work
related accident, receive medical attention, and are released to return to work their next
scheduled working day, must return to work and participate in the Safety Review Program
unless prohibited from doing so by the treating physician.” (Stip. at 16.) The form did not
include Jefferson’s name or the date of injury. Demarco checked a box on the form
indicating that “[t]eam member can return to work for the Safety Review Program.” (Stip.
at 17.)
{¶ 6} After Jefferson returned to the workplace on July 12, 2022, he was
terminated from his employment based on Giant Eagle’s investigation into allegations that
Jefferson had previously physically threatened a co-worker in violation of Giant Eagle’s
anti-harassment policy.
{¶ 7} On July 18, 2022, Alyson Pucci, PA-C, conducted a follow-up examination of
Jefferson. Pucci completed a Physician’s Report of Work Ability (“MEDCO-14”) which
stated that Jefferson was not able to return to the full duties of the job held on the date of
injury from July 18 to October 18, 2022. On July 29, 2022, Jefferson was examined by Eric
Wolk, D.C. In a MEDCO-14 signed on July 29, 2022, Dr. Wolk stated that Jefferson was
1 By journal entry issued December 29, 2023, this court granted Giant Eagle’s motion for an extension of time
until January 16, 2024 to file objections to the magistrate’s decision.
No. 23AP-119 3
not able to return to the full duties of the job held on the date of injury from July 12 to
October 10, 2022.
{¶ 8} In a letter dated July 29, 2022, Giant Eagle stated that Jefferson was not
eligible for TTD “based on the employment termination.” (Stip. at 51.) On August 9, 2022,
Jefferson filed a C-86 motion requesting he be awarded TTD compensation for the period
beginning July 13, 2022 and continuing. The motion was accompanied by Jefferson’s C-84
request for TTD compensation signed July 29, 2022.
{¶ 9} On September 16, 2022, a district hearing officer (“DHO”) conducted a
hearing on Jefferson’s request for TTD compensation. In a report issued September 20,
2022, the DHO noted Giant Eagle’s argument that Jefferson’s termination of employment
on July 12, 2022 barred him from receiving TTD compensation pursuant to R.C.
4123.56(F). The DHO disagreed, finding Jefferson’s termination did not act as a bar to TTD
compensation. The DHO further found the claim file did not contain evidence that
Jefferson had been reprimanded for threatening co-workers prior to his termination, did
not contain a termination letter or witness statements from co-workers alleged to have been
threatened by Jefferson, and that Jefferson’s termination occurred only after he was
injured. The DHO concluded that Jefferson’s inability to work was due to the impairment
arising from the allowed conditions in the claim. Jefferson was awarded TTD
compensation from July 13 through September 16, 2022 and to continue with submission
of supporting medical proof. The DHO based the order on Dr. Wolk’s July 29, 2022
MEDCO-14 and Jefferson’s C-84.
{¶ 10} On October 5, 2022, Dr. Wolk completed a MEDCO-14 extending the period
that Jefferson was not able to return to the full duties of the job held on the date of injury
from October 11 to December 12, 2022.
{¶ 11} On October 25, 2022, a staff hearing officer (“SHO”) held a hearing on Giant
Eagle’s appeal from the DHO’s order. In a report issued October 29, 2022, the SHO vacated
the DHO’s order and granted Jefferson TTD compensation from July 13 through
October 25, 2022 and to continue upon submission of sufficient medical evidence
supporting further disability. The SHO found that sufficient medical evidence established
Jefferson was disabled for the awarded period as a result of the allowed conditions in the
claim and that the period of disability was a direct result of an impairment arising from the
allowed conditions in the claim. The SHO further found that Giant Eagle failed to establish
No. 23AP-119 4
the loss of wages was the direct result of reasons unrelated to the allowed injury. The SHO
based the order on Dr. Wolk’s October 5 and July 29, 2022 reports, Pucci’s July 18, 2022
report, the emergency room records dated July 12, 2022, and the office notes contained in
the claim file. The commission subsequently refused Giant Eagle’s appeal from the SHO’s
order and thereafter denied Giant Eagle’s request for reconsideration.
{¶ 12} On February 22, 2023, Giant Eagle filed a complaint requesting this court
issue a writ of mandamus ordering the commission to reverse its order granting Jefferson
TTD compensation.
{¶ 13} In a decision rendered December 22, 2023, the magistrate recommended this
court deny Giant Eagle’s request for a writ of mandamus. The magistrate first rejected
Giant Eagle’s argument that Jefferson was not eligible for TTD compensation, pursuant to
R.C. 4123.56(A), because on the day of his injury, the hospital treating physician released
him to sedentary work and Giant Eagle made sedentary work available to Jefferson. The
magistrate acknowledged that an employee is ineligible to receive TTD compensation,
pursuant to R.C. 4123.56(A), when he or she is working or when work within his or her
physical capabilities is made available by the employer. However, the magistrate observed
Jefferson did not seek TTD compensation for the period when he was working or that work
within his physical capabilities was allegedly made available by Giant Eagle.2 The
magistrate determined Jefferson was awarded TTD compensation for a period beginning
July 13, 2022, there was no dispute that Jefferson was terminated from employment on
July 12, 2022, the same day he was injured, and that Giant Eagle did not contend Jefferson
worked after July 12, 2022 or that it made available work within Jefferson’s physical
capabilities after July 12, 2022. The magistrate concluded because Jefferson was awarded
TTD compensation during a period when Jefferson was not working and Giant Eagle did
not make work within Jefferson’s physical capabilities available, Jefferson was not barred
from receiving TTD compensation for the awarded period pursuant to R.C. 4123.56(A).
{¶ 14} The magistrate similarly rejected Giant Eagle’s argument that Jefferson’s
inability to work stemmed from his termination of employment rather than his injury, thus
rendering him ineligible to receive TTD compensation pursuant to R.C. 4123.56(F). The
magistrate observed that in State ex rel. Autozone Stores, Inc. v. Indus. Comm., 10th Dist.
2 The magistrate found no record evidence to support Giant Eagle’s assertion that it offered Jefferson a
position with the safety review team after he returned from the hospital on July 12, 2022.
No. 23AP-119 5
No. 21AP-294, 2023-Ohio-633, this court determined that pursuant to the clear and
unambiguous language of R.C. 4123.56(F), only “two operative questions” must be
answered in determining whether a claimant who is unable to work is entitled to 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.
{¶ 15} The magistrate found the medical evidence cited by the SHO—Dr. Wolk’s
October 5 and July 29, 2022 reports, Pucci’s July 18, 2022 report, emergency room reports
from July 12, 2022, and office notes in the claim file—constituted some evidence to support
the SHO’s finding that Jefferson’s disability was a direct result of an impairment arising
from the allowed conditions in the claim. Citing Autozone, the magistrate noted the mere
fact that Jefferson was terminated from employment was not determinative of the first
question posed by R.C. 4123.56(F), i.e., whether Jefferson was unable to work as the direct
result of an impairment arising from his injury, and that Jefferson was not required to
establish his inability to work was only due to impairments arising from the allowed injury.
Accordingly, the magistrate concluded the SHO’s order finding Jefferson was unable to
work as the direct result of an impairment arising from the allowed conditions in the claim
was in accordance with the requirements of R.C. 4123.56(F) and Autozone and supported
by some evidence in the record.
{¶ 16} Finally, the magistrate rejected Giant Eagle’s argument that the SHO erred in
granting TTD compensation because the weight of the evidence established that Jefferson’s
wage loss was unrelated to the injury. Noting the substantial body of case law prohibiting
this court from re-weighing evidence before the commission in mandamus actions, the
magistrate reiterated that some evidence supported the SHO’s conclusion that Jefferson
was unable to work as the direct result of an impairment arising from the allowed
conditions in the claim.
{¶ 17} In response to the magistrate’s decision, Giant Eagle submitted the following
objections:
[I.] The Magistrate erred in the interpretation of R.C.
4123.56(A) and its application to the instant case as
Respondent, Darius Jefferson, was ineligible to request
temporary and total disability benefits on the date of injury.
No. 23AP-119 6
[II.] The Magistrate erred in finding that the SHO’s decision
awarding temporary and total disability compensation was
supported by some evidence.
{¶ 18} Initially, we note Giant Eagle 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.
{¶ 19} To be entitled to relief in mandamus, Giant Eagle must establish that it has a
clear legal right to the relief sought and that the commission has a clear legal duty to provide
such relief. State ex rel. Brown v. Indus. Comm., 10th Dist. No. 21AP-650, 2024-Ohio-797,
¶ 8, citing 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. Id., citing State ex rel. Elliott v.
Indus. Comm., 26 Ohio St.3d 76, 79 (1986). See also State ex rel. Aaron’s Inc. v. Ohio Bur.
of Workers’ Comp., 148 Ohio St.3d 34, 2016-Ohio-5011, ¶ 18 (“When an order is adequately
explained and based on some evidence, there is no abuse of discretion and a reviewing court
must not disturb the order.”). Questions of credibility and the weight to be given the
evidence are within the discretion of the commission as the fact finder. State ex rel. Teece
v. Indus. Comm., 68 Ohio St.2d 165, 169 (1981).
{¶ 20} The laws governing workers’ compensation are set forth in R.C. Chapter 4123
for the general purpose of “ ‘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. Banks v. Indus. Comm., 10th Dist. No. 21AP-341, 2023-Ohio-4672,
¶ 18, quoting State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916, ¶ 7,
quoting R.C. 4123.54(A). R.C. 4123.56 governs TTD compensation and sets forth in R.C.
4123.56(F) the circumstances under which a claimant is entitled to receive TTD
compensation:
If an employee is unable to work or suffers a wage loss as the
direct result of an impairment arising from an injury * * * 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 * * *
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
No. 23AP-119 7
doctrine of voluntary abandonment to a claim brought under
this section.3
{¶ 21} R.C. 4123.56(A) sets forth circumstances under which an award of TTD
compensation is prohibited, providing in pertinent part:
[P]ayment shall not be made for the period when any
employee has returned to work, when an employee’s treating
physician has made a written statement that the employee is
capable of returning to the employee’s former position of
employment, when work within the physical capabilities of
the employee is made available by the employer or another
employer, or when the employee has reached the maximum
medical improvement.
{¶ 22} In its first objection, Giant Eagle contends the magistrate erred in
interpreting and applying R.C. 4123.56(A). Giant Eagle essentially reasserts the argument
that Jefferson was not eligible for TTD compensation pursuant to R.C. 4123.56(A) because
on the date of his injury, July 12, 2022, he was released by the treating physician to
sedentary work and a sedentary position was made available by Giant Eagle. As noted
above, the magistrate rejected this argument, finding that Jefferson did not seek TTD
compensation until July 13, 2022, the day after his employment was terminated;
accordingly, Jefferson did not request TTD compensation for a period while he was working
for Giant Eagle or when work within his physical capabilities was made available by Giant
Eagle. Thus, the magistrate appropriately interpreted and applied R.C. 4123.56(A) in
evaluating whether Jefferson was eligible for TTD compensation.
{¶ 23} Giant Eagle also contends TTD compensation was not payable to Jefferson
on July 12, 2022, the day of his injury, because “he clocked in and earned wages that day,
up until the time of his injury.” (Jan. 15, 2024 Objs. at 2.) “This court has held repeatedly
that an argument is waived when it is not asserted before a magistrate and is raised for the
first time in objections to the magistrate’s decision.” State ex rel. Freedom Ctr. v. Indus.
Comm., 10th Dist. No. 22AP-87, 2024-Ohio-1376, ¶ 16, citing State ex rel. McNew v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 20AP-404, 2022-Ohio-1859, ¶ 7. A review of Giant
3 In Autozone, this court observed that in 2020, the Ohio General Assembly enacted 2020 Ohio Am.Sub.H.B.
No. 81, which added R.C. 4123.56(F) to, in part, supersede judicial decisions applying the voluntary
abandonment doctrine. Id. at ¶ 14. We further observed that the 2020 amendment applies to claims pending
on or arising after the effective date of September 15, 2020. Id. at ¶ 8, fn. 1. There is no dispute that R.C.
4123.56(F) applies to this action.
No. 23AP-119 8
Eagle’s brief discloses that it failed to raise this argument before the magistrate; it is thus
waived. Moreover, whether Jefferson worked on July 12, 2022 is irrelevant, as Jefferson
did not request and was not awarded TTD compensation for that date.
{¶ 24} In its final argument under the first objection, Giant Eagle asserts for the first
time that under R.C. 4123.55,4 an injured worker is not entitled to TTD compensation until
the worker has been disabled for a continuous period of two weeks or more after an injury
has occurred. Thus, argues Giant Eagle, its inability to offer employment within Jefferson’s
physical capabilities after July 12, 2022 is immaterial because Jefferson was not eligible for
TTD compensation on the date of injury. Giant Eagle did not raise this argument before
the magistrate; accordingly, its assertions regarding R.C. 4123.55 have been waived.
Freedom; McNew. Moreover, as Jefferson and the commission point out in their respective
responses to Giant Eagle’s objections, it is unclear how R.C. 4123.55 applies to the facts of
this case, as Jefferson sought and was awarded TTD compensation for a continuous period
in excess of two weeks.
{¶ 25} For the foregoing reasons, Giant Eagle’s first objection is overruled.
{¶ 26} In its second objection, Giant Eagle argues the magistrate erred in finding
that the SHO’s decision awarding TTD compensation was supported by some evidence.
Giant Eagle challenges for the first time the SHO’s reliance on the medical records of Dr.
Wolk and Pucci on grounds that the records are “inconsequential,” having been issued after
the date of injury. Because Giant Eagle did not raise this argument before the magistrate,
it has been waived. Freedom; McNew. Furthermore, to the extent Giant Eagle challenges
the weight to be afforded the medical reports, we reiterate that questions of credibility and
the weight to be given the evidence are within the discretion of the commission as the fact
finder. Teece at 169.
{¶ 27} Giant Eagle also reasserts the argument presented to the magistrate that
Jefferson’s inability to work does not stem directly from his workplace injury, but rather
from his termination of employment following his injury on July 12, 2022, thus rendering
him ineligible to receive TTD compensation pursuant to R.C. 4123.56(F). As noted above,
the magistrate analyzed and applied R.C. 4123.56(F) and Autozone in concluding that the
SHO appropriately relied upon the emergency room records, the treatment records and
4 R.C. 4123.55 provides in part: “No compensation shall be allowed for the first week after an injury is received
* * * and no compensation shall be allowed for the first week of total disability, whenever it may occur, unless
and until the employee is totally disabled for a continuous period of two weeks or more.
No. 23AP-119 9
MEDCO-14 forms issued by Pucci and Dr. Wolk in determining that Jefferson’s inability to
work as of July 13, 2022 was the direct result of an impairment arising from his injury and
was not the direct result of reasons unrelated to the allowed injury, i.e., his termination
from employment.
{¶ 28} Here, the record demonstrates Jefferson was unable to work during the
period for which TTD compensation was sought. As such, it is necessary to answer the two
operative questions posed by R.C. 4123.56(F) as described in Autozone. In answering the
first part of the analysis under Autozone, i.e., whether the claimant is unable to work as the
direct result of an impairment arising from an injury, the record in this case, including the
MEDCO-14 forms signed by Pucci on July 18, 2022 and Dr. Wolk on July 29, and October 5,
2022, provide some evidence that Jefferson was unable to work due to his allowed
conditions. Pursuant to Autozone, this evidence is sufficient to satisfy the first sentence of
R.C. 4123.56(F), demonstrating that Jefferson was unable to work as a direct result of
impairment arising from his workplace injury for the period at issue. This evidence is also
sufficient to negate the second sentence of R.C. 4123.56(F), demonstrating the reasons
Jefferson was not working are not “unrelated to the allowed injury.” Regarding the second
part of the analysis under Autozone, i.e., whether the claimant is otherwise qualified to
receive TTD compensation, we have already determined that the restrictions in R.C.
4123.56(A) preventing the awarding of TTD compensation do not apply. As noted above,
Jefferson did not seek TTD compensation for the period while he was working for Giant
Eagle or when work within Jefferson’s physical capabilities was made available by Giant
Eagle.
{¶ 29} For the reasons set forth above, Giant Eagle’s second objection is overruled.
{¶ 30} Upon review of the magistrate’s decision, an independent review of the
record, and due consideration of Giant Eagle’s objections, we find the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule Giant Eagle’s two 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.
BOGGS and LELAND, JJ., concur.
No. 23AP-119 10
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Giant Eagle, Inc., :
Relator, :
v. : No. 23AP-119
[Industrial Commission of Ohio] et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on December 22, 2023
Matty, Henrikson & Greve, LLC, Kirk R. Henrikson, Erin E.
Hooper, and Josh A. Friedman, for relator. Argued: Erin
Hooper.
Dave Yost, Attorney General, and Alison N. Sackenheim, and
Denise Corea, for respondent Industrial Commission of Ohio.
Argued: Denise Corea.
Hoffman Legal Group, LLC, and Douglas S. Hunter, for
respondent Darius L. Jefferson. Argued: Douglas Hunter.
IN MANDAMUS
{¶ 31} Relator, Giant Eagle, Inc. (“Giant Eagle”), seeks a writ of mandamus ordering
respondent Industrial Commission of Ohio (“commission”) to reverse its order granting
respondent Darius L. Jefferson (“claimant”) temporary total disability (“TTD”)
compensation.
I. Findings of Fact
{¶ 32} 1. Claimant was injured in the course of and arising out of his employment as
a diesel mechanic with Giant Eagle on July 12, 2022 when he sustained an injury to his right
finger. Claimant was taken to the emergency room at University Hospitals Ahuja Medical
Center where it was determined that he had a complex laceration on his right index finger
No. 23AP-119 11
and a fracture through the middle phalanx. On the same date, a Bureau of Workers’
Compensation (“BWC”) first report of an injury, occupational disease or death (“FROI” or
“FROI-1”) form was filed. In the FROI form, it was indicated that claimant had suffered an
open finger fracture on the right index finger. The claim was ultimately allowed for the
conditions of (1) laceration right index finger, and (2) displaced fracture distal phalanx right
index finger.
{¶ 33} 2. On July 12, 2022, Audrey Demarco, PA-C, completed an attending
physician form in which it was indicated that claimant was able to return to work with
restriction of sedentary work only. It was also indicated that claimant “need[ed] to follow
up with ortho hand” and had been prescribed medication which would affect his ability to
perform restricted duty or regular duty. (Stip. at 11.) Another form addressed to the
“Treating Physician” was also signed by Demarco on July 12, 2022. (Stip. at 12.) The form
included the following statement: “All team members who experience a work related
accident, receive medical attention, and are released to return to work their next scheduled
working day, must return to work and participate in the Safety Review Program unless
prohibited from doing so by the treating physician.” (Emphasis removed.) (Stip. at 12.) The
form contained a description of the safety review program, including its physical demands.
The form did not provide claimants name, but Demarco indicated on the form that the
“[t]eam member can return to work for the Safety Review Program.” (Stip. at 13.)
{¶ 34} 3. Alyson Pucci, PA-C, conducted a follow-up examination of claimant on
July 18, 2022. Pucci found there to be a “large laceration extending from the distal pulp to
the base of the index finger over the volar surface as well over the dorsal aspect of the finger
from the base of the proximal phalanx to the DIP joint flexion crease.” (Stip. at 24.) Because
claimant had suffered “a bad soft tissue injury,” Pucci stated that claimant “will likely have
some stiffness and limitations of this finger after this injury.” (Stip. at 24.) Pucci stated that
claimant “likely will be off of work for several months given this injury.” (Stip. at 24.)
{¶ 35} 4. On July 18, 2022, Pucci completed a MEDCO-14 physician’s report of work
ability (“MEDCO-14”) form. Pucci indicated that claimant was not able to return to the full
duties of the job held on the date of injury from July 18 to October 18, 2022.
{¶ 36} 5. Claimant was next examined by Eric Wolk, D.C., on July 29, 2022.
Dr. Wolk found there to be “[s]ignificant swelling” and indicated “[r]ange of motion was
unable to be measured at the PIP or DIP joint of the right index.” (Stip. at 29.) Dr. Wolk
No. 23AP-119 12
found a loss of grip strength and stated that claimant was “unable to close, fully flex, his
right index finger.” (Stip. at 29.) There was also “significant scarring with stitches of a 5cm
laceration to dorsum of the right index finger with about a 2 cm laceration on the palmar
surface.” (Stip. at 29.)
{¶ 37} 6. In a MEDCO-14 signed on July 29, 2022, Dr. Wolk indicated claimant was
not able to return to the full duties of the job held on the date of injury from July 12 to
October 10, 2022.
{¶ 38} 7. Giant Eagle recognized the claim for “[l]aceration rt index finger, displaced
fx of distal phalanx rt index finger” on July 29, 2022. (Stip. at 2.) In a letter dated July 29,
2022, Giant Eagle stated that claimant was “not eligible for temporary total disability based
on the employment termination.” (Stip. at 47.)
{¶ 39} 8. On August 9, 2022, claimant filed a C-86 motion requesting TTD
compensation for the period July 13, 2022 and continuing. Claimant’s motion was
accompanied by a C-84 request for TTD compensation signed by claimant on July 29, 2022.
{¶ 40} 9. On September 16, 2022, a commission district hearing officer (“DHO”)
held a hearing on claimant’s request for TTD compensation. In an order issued
September 20, 2022, the DHO awarded TTD compensation from July 13 through
September 16, 2022 and to continue with submission of supporting medical proof. The
DHO based the order on Dr. Wolk’s July 29, 2022 MEDCO-14 and claimant’s C-84 request.
{¶ 41} The DHO noted Giant Eagle’s argument that TTD compensation “is barred
pursuant to R.C. 4123.56(F)” because claimant “is not working or has suffered a wage loss
as the direct result of reasons unrelated to the allowed injury because his employment was
terminated by [Giant Eagle] on the date of injury.” (Stip. at 50.) Summarizing the testimony
at the hearing, the DHO stated:
[Jefferson] testified at today’s hearing that he sought medical
treatment on the date of injury. When he returned from
seeking medical treatment he was immediately notified by the
Employer that his employment was terminated. Ms. Prather
testified that she performed an investigation while the Injured
Worker was at the emergency department. During her
investigation Ms. Prather learned that the Injured Worker had
allegedly made threats against coworkers during his
employment with the Employer. As a result, the Injured
Worker’s employment was terminated when he returned from
the emergency department.
No. 23AP-119 13
(Stip. at 50-51.) The DHO found claimant’s “termination by [Giant Eagle] does not act as
a bar to [TTD] compensation.” (Stip. at 51.) Furthermore, the DHO found “no evidence in
the claim file that [claimant] was reprimanded for threatening coworkers prior to his
termination” and noted that the “claim file contains neither a termination letter nor
witness statements from coworkers [claimant] allegedly threatened.” (Stip. at 51.)
Additionally, the DHO noted claimant’s “termination occurred only after he was injured.”
(Stip. at 51.) The DHO concluded that claimant’s “inability to work was due to the
impairment arising from the allowed condition.” (Stip. at 51.)
{¶ 42} 10. In a MEDCO-14 signed on October 5, 2022, Dr. Wolk extended the period
that claimant was not able to return to the full duties of the job held on the date of injury
from October 11 to December 12, 2022.
{¶ 43} 11. On October 25, 2022, a commission staff hearing officer (“SHO”) held a
hearing on Giant Eagle’s appeal from the September 20, 2022 DHO order. In an order
issued October 29, 2022, the SHO vacated the DHO’s order and granted claimant TTD
compensation from July 13 through October 25, 2022 and to continue on submission of
sufficient medical evidence supporting further disability. Based on medical evidence from
Dr. Wolk and Pucci, the SHO found there existed “sufficient medical evidence establishing
that [claimant] is disabled for this period as a result of the allowed conditions in the claim.”
(Stip. at 52.) The SHO found the “period of disability is a direct result of an impairment
arising from the allowed conditions in the claim” and further found it was not established
that “this loss of wages is the direct result of reasons unrelated to the allowed injury or
occupational disease.” (Stip. at 52.) The SHO stated the order was based on the reports of
Dr. Wolk dated October 5 and July 29, 2022, Pucci’s report dated July 18, 2022, the
emergency room records dated July 12, 2022, and office notes in the claim file.
{¶ 44} 12. On November 17, 2022, the commission issued an order refusing an
appeal filed by Giant Eagle from the October 29, 2022 SHO order.
{¶ 45} 13. On December 15, 2022, the commission denied a request for
reconsideration filed by Giant Eagle.
{¶ 46} 14. Giant Eagle commenced this mandamus action by filing its complaint on
February 22, 2023.
No. 23AP-119 14
II. Discussion and Conclusions of Law
{¶ 47} Giant Eagle seeks a writ of mandamus directing the commission to reverse
its order granting claimant TTD compensation.
A. Requirements for Mandamus
{¶ 48} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire
Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). Where the commission’s factual
determination is supported by some evidence, it has not abused its discretion and this court
must uphold the decision. State ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266,
2019-Ohio-3341, ¶ 44, citing State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373,
376 (1996).
{¶ 49} The commission is “exclusively responsible for assessing the weight and
credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-
Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987).
Where the commission’s decision is supported by some evidence, the presence of contrary
evidence in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d
354, 356 (1996), citing Burley.
B. Temporary Total Disability Compensation
{¶ 50} “ ‘The purpose of TTD compensation is to “compensate an injured employee
for the loss of earnings that he [or she] incurs while the injury heals.” ’ ”
Ewell v. Montgomery Cty. Court of Common Pleas, 10th Dist. No. 13AP-1078, 2014-Ohio-
3047, ¶ 13, quoting Cordial v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-473,
2006-Ohio-2533, ¶ 8, quoting State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376, 380
(2000). When a claimant is unable to work at their prior position of employment, TTD
compensation is paid. Id. In order to be awarded TTD compensation, “ ‘the claimant must
show not only that he or she lacks the medical capability of returning to the former position
of employment but that a cause-and-effect relationship exists between the industrial injury
and an actual loss of earnings.’ ” State ex rel. Ohio State Univ. v. Pratt, 169 Ohio St.3d 527,
2022-Ohio-4111, ¶ 17, quoting State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio
No. 23AP-119 15
St.3d 25, 2002-Ohio-5305, ¶ 35. “ ‘In other words, it must appear that, but for the industrial
injury, the claimant would be gainfully employed.’ ” Id., quoting McCoy at ¶ 35. “TTD
benefits are paid during the healing and treatment period until: (1) the employee returns to
work; (2) the employee’s treating physician states that the employee is capable of returning
to the former position of employment; or (3) the temporary disability becomes permanent.”
Ewell at ¶ 13.
{¶ 51} R.C. 4123.56, which governs TTD compensation, sets forth the circumstances
under which a claimant is entitled to receive TTD compensation:
If an employee is unable to work or suffers a wage loss as the
direct result of an impairment arising from an injury or
occupational disease, the employee is entitled to receive
compensation under this section, provided the employee is
otherwise qualified. If an employee is not working or has
suffered a wage loss as the direct result of reasons unrelated
to the allowed injury or occupational disease, the employee is
not eligible to receive compensation under this section. It is
the intent of the general assembly to supersede any previous
judicial decision that applied the doctrine of voluntary
abandonment to a claim brought under this section.
R.C. 4123.56(F). See State ex rel. Autozone Stores, Inc. v. Indus. Comm. of Ohio, 10th
Dist. No. 21AP-294, 2023-Ohio-633.5 The statute also contains other restrictions on
qualifying for or continuing to receive an award of TTD compensation:
[P]ayment [for TTD] shall not be made for the period when
any employee has returned to work, when an employee’s
treating physician has made a written statement that the
employee is capable of returning to the employee’s former
position of employment, when work within the physical
capabilities of the employee is made available by the employer
or another employer, or when the employee has reached the
maximum medical improvement.
R.C. 4123.56(A).
5 Until the enactment of 2020 Am.Sub.H.B. No. 81 (“H.B. 81”), voluntary abandonment of employment was
an affirmative defense to a claim for TTD compensation. See State ex rel. Quest Diagnostics, Inc. v. Indus.
Comm. of Ohio, __ Ohio St.3d , 2023-Ohio-2213, ¶ 16. Effective September 15, 2020, H.B. 81 amended
R.C. 4123.56 by adding division (F). Claims pending on or arising after the effective date are subject to the
provisions of R.C. 4123.56(F). Autozone at ¶ 8, fn. 1; Pratt, 2022-Ohio-4111, ¶ 10, fn. 2; H.B. 81, Section 3.
Because claimant’s application for TTD compensation was filed on August 9, 2022, after the effective date of
H.B. 81, the provisions of R.C. 4123.56(F) apply.
No. 23AP-119 16
C. Application
{¶ 52} Giant Eagle asserts the commission erred by granting claimant’s request for
TTD compensation for multiple reasons. First, Giant Eagle asserts the commission’s order
awarding TTD compensation was not supported by some evidence because claimant’s
immediate inability to work did not stem from his industrial injury. Giant Eagle argues that
pursuant to R.C. 4123.56(A), claimant was not eligible for TTD compensation because, on
the day of his injury, he was released from the hospital by his treating physician to sedentary
work, which Giant Eagle made available.
{¶ 53} An employee is indeed ineligible to receive TTD compensation pursuant to
R.C. 4123.56(A) when they are working or when work within the physical capabilities of the
employee is made available by the employer. See generally Autozone, 2023-Ohio-633, at
¶ 31 (stating that “[p]ursuant to R.C. 4123.56(A), claimants who are working are not eligible
to receive TTD compensation”). However, here, claimant did not seek TTD compensation
for the period when he was working or work within his physical capabilities was allegedly
made available by Giant Eagle. Claimant sought and was awarded TTD compensation for a
period beginning July 13, 2022 based on the July 29, 2022 MEDCO-14, in which Dr. Wolk
found claimant was temporarily not released to work for the period beginning July 12
through October 10, 2022. It is undisputed that claimant was terminated on July 12, 2022,
the same day he was injured. Giant Eagle does not contend that claimant worked after that
date or that Giant Eagle made available work within claimant’s physical capabilities after
that date.6 Thus, because claimant was awarded TTD compensation during a period when
Giant Eagle did not make work within claimant’s physical capabilities available and no
other limitation in R.C. 4123.56(A) applies, claimant is not barred from receiving TTD
compensation for the awarded period pursuant to R.C. 4123.56(A). See State ex rel. Butler
Village v. Indus. Comm., 10th Dist. No. 22AP-274, 2023-Ohio-3774, ¶ 42. See also
Autozone at ¶ 19 (noting that “TTD compensation was awarded only for the period * * *
when the evidence shows [the claimant] could not work anywhere—not any prior date” and
6 Giant Eagle argues it “assigned [claimant] to the safety review team.” (Giant Eagle’s Brief at 9.) In its reply
brief, Giant Eagle states that “[u]pon return from the hospital, [claimant] was offered a position with the safety
review team.” (Giant Eagle’s Reply Brief at 2.) In support of this assertion, Giant Eagle points to the “Treating
Physician” form that was signed by Demarco on July 12, 2022. Claimant’s name does not appear on this
“Treating Physician” form, nor was it signed by claimant. As there exists no transcript from the hearing before
the DHO or SHO, there is no testimony in the record supporting Giant Eagle’s assertions.
No. 23AP-119 17
stating that “[t]o accept the employer’s position that claimants who are not working are
likewise disqualified would render the statute meaningless” (Emphasis sic.)).
{¶ 54} Next, Giant Eagle argues claimant was ineligible to receive TTD
compensation pursuant to R.C. 4123.56(F). Specifically, Giant Eagle argues that claimant’s
“inability to work stemmed not from his injury, but rather his disciplinary termination.”
(Giant Eagle’s Brief at 10.) Giant Eagle argues the direct link between the injury and wage
loss does not exist in this case as “[claimant] was terminated because he threatened his co-
workers, not because [of] any injury-related factors.” (Giant Eagle’s Brief at 10.)
{¶ 55} This court in Autozone expressly rejected arguments similar to those raised
by Giant Eagle in this case. In Autozone, the claimant was terminated after suffering a
workplace injury and being placed on light duty, but before he sought TTD compensation.
Following his application for TTD compensation, the claimant underwent an approved
shoulder surgery, and a physician issued MEDCO-14 forms indicating the claimant was
unable to work until further evaluation. A commission SHO granted the claimant TTD
compensation for the period between the claimant’s surgery and his hearing before the
SHO.
{¶ 56} In the mandamus action brought by the employer, this court considered the
meaning and application of R.C 4123.56(F) to requests for TTD compensation. The
employer argued that “as a matter of law an injured worker is not entitled to TTD
compensation unless he is employed and actually suffered lost wages.” (internal quotations
omitted). Autozone, 2023-Ohio-633, at ¶ 32. Examining the statutory text, the court found
R.C. 4123.56(F) to be unambiguous. The court emphasized that “not working—alone—is
not dispositive,” but instead, the statute “requires an inquiry into whether the claimant is
unable to work as the direct result of an impairment arising from an injury or occupational
disease.” Id. at ¶ 33. “So long as that causal link is established, and [the claimant] is
otherwise qualified, the claimant is eligible for TTD compensation.” Id.
{¶ 57} The employer also argued the court “should analyze the effect of the
[claimant’s] termination and whether evidence exist[ed] that claimant had abandoned the
workforce.” Id. at ¶ 34. This court rejected the employer’s arguments, stating that “this is
exactly the analysis the legislature expressly superseded by enacting R.C. 4123.56(F).” Id.
The court “decline[d] to extrapolate an additional requirement in R.C. 4123.56(F) that a
claimant prove he or she is unable to work only due to an impairment arising from an injury
No. 23AP-119 18
or occupational disease.” (Emphasis sic.) Id. at ¶ 22. Furthermore, the court stated that to
“adopt the employer’s position would, in essence, turn the court’s gaze back to those facts
surrounding why the claimant left the workforce preceding the period of TTD
compensation—effectively resurrecting the voluntary abandonment analysis expressly
superseded by the legislature.” Id. Thus, where a claimant is unable to work, the court found
the clear text of the statute set forth “two operative questions” in order for the claimant to
be eligible for TTD compensation: “(1) whether he or she is unable to work as the direct
result of an impairment arising from an injury or occupational disease; and (2) whether he
or she is otherwise qualified to receive TTD compensation.” Id. at ¶ 35.
{¶ 58} Here, in the order granting TTD compensation, the SHO found there existed
“sufficient medical evidence establishing that [claimant] is disabled for this period as a
result of the allowed conditions in the claim.” (Stip. at 52.) The SHO specifically cited the
following as the basis for the order: the reports of Dr. Wolk dated October 5 and July 29,
2022, Pucci’s report dated July 18, 2022, the emergency room records dated July 12, 2022,
and office notes in the claim file. The SHO concluded the “period of disability is a direct
result of an impairment arising from the allowed conditions in the claim” and further found
it was not established that “this loss of wages is the direct result of reasons unrelated to the
allowed injury or occupational disease.” (Stip. at 52.)
{¶ 59} Review of the medical evidence cited by the SHO in the order granting TTD
compensation reveals that it constitutes some evidence in support of the finding that
claimant’s disability was a direct result of an impairment arising from the allowed
conditions in the claim. The mere fact that claimant was terminated is not determinative of
the first question posed by R.C. 4123.56(F), i.e., whether claimant was unable to work or
suffered a wage loss as the direct result of an impairment arising from an injury or
occupational disease. As with the claimant in Autozone, claimant is not required to
establish that his inability to work is only due to an impairment arising from an injury or
occupational disease. Thus, the SHO’s order finding claimant was unable to work as the
direct result of an impairment arising from the allowed conditions in the claim was in
accordance with the requirements of R.C. 4123.56(F) and supported by some evidence in
the record.
{¶ 60} Next, Giant Eagle asserts the commission improperly refused to exercise
continuing jurisdiction “in that the [SHO] awarded [TTD] despite [claimant’s] wage loss
No. 23AP-119 19
not being the result of allowed injury, violating R.C. 4123.56(F).” (Giant Eagle’s Brief at 11.)
Giant Eagle argues that “[claimant]was terminated from his employment due to his
constant and well-documented harassment and threats made upon his co-workers.” (Giant
Eagle’s Brief at 12.) Giant Eagle points to its anti-harassment policy and statements
purportedly made by claimant’s coworkers.7 Giant Eagle concludes that the SHO’s order
granting TTD compensation was “clearly an error” because of “the myriad of evidence
showing [claimant’s] wage loss was unrelated to the workplace injury.” (Giant Eagle’s Brief
at 13.)
{¶ 61} Giant Eagle’s arguments appear to present a challenge to the weight of the
evidence. However, such question is beyond the scope of review of this court in mandamus.
See State ex rel. Casey v. Indus. Comm. of Ohio, 10th Dist. No. 20AP-247, 2022-Ohio-532,
¶ 21, quoting State ex rel. Welsh Ents., Inc. v. Indus. Comm., 10th Dist. No. 19AP-127, 2020-
Ohio-2801, ¶ 26 (stating that “this court ‘cannot second guess the commission’s judgments
either as to witness credibility or on the proper weight to accord particular evidence’ ”);
State ex rel. Columbus Distrib. Co. v. Reeves, 10th Dist. No. 21AP-399, 2023-Ohio-898,
¶ 8, quoting State ex rel. Cincinnati, Inc. v. Indus. Comm., 10th Dist. No. 04AP-241, 2005-
Ohio-516, ¶ 6 (stating that “[e]ven if there is ‘conflicting evidence before the commission,
this court does not re-weigh the evidence in mandamus’ ”); State ex rel. Lawson v. Mondie
Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, ¶ 34 (stating that “the commission has
substantial leeway in both interpreting and drawing inferences from the evidence before
it”). As previously discussed, some evidence supported the SHO’s conclusion that claimant
was unable to work as the direct result of an impairment arising from the allowed
conditions in the claim. Thus, Giant Eagle has not demonstrated the SHO’s factual
determinations constituted an abuse of discretion or that the order was not in accord with
the applicable law.
7 Several letters dated October 21, 2022, over one month after the DHO hearing, appear in the record. In the
letters, individuals state they witnessed claimant stating he would stab someone. (Stip. at 20-22.) These
letters do not indicate the relationship of the writers to the parties in this matter. Additionally, an
acknowledgment of receipt of a “Giant Eagle Enterprise Handbook,” which was purportedly signed by
claimant on May 5, 2022, is included in the record. (Stip. at 14.) A “policies sign-off form,” which was
purportedly signed by claimant on May 5, 2022, also appears in the record. (Stip. at 15.) The “policies sign-off
form” lists a number of policies including a “Harassment and Workplace Violence Policy.” A copy of a
“Harassment and Workplace Violence Policy” appears in the record. (Stip. at 16.) No disciplinary
documentation or termination letter appears in the record. No transcript of the SHO hearing appears in the
record to provide any further context to these documents.
No. 23AP-119 20
D. Conclusion
{¶ 62} Based on the foregoing, Giant Eagle has not demonstrated a clear legal right
to the requested relief or that the commission is under a clear legal duty to provide such
relief. Accordingly, it is the decision and recommendation of the magistrate that Giant
Eagle’s request for a writ of mandamus should be denied.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.