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State ex rel. DiPietrantonio v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

February 28, 2017

State of Ohio ex rel. Benedetto DiPietrantonio, Relator,
v.
Industrial Commission of Ohio and Hammond Construction, Inc., Respondents.

          On brief: Schiavoni, Schiavoni, Bush & Muldowney, Shawn R. Muldowney, and Joseph J. Bush, III, for relator.

          On brief: Michael DeWine, Attorney General, and LaTawnda N. Moore, for respondent Industrial Commission of Ohio.

          On brief: Krugliak, Wilkins, Griffiths & Dougherty Co., L.PA., Edward D. Murray, and James M. Williams, for respondent Hammond Construction, Inc.

         IN MANDAMUS

          DECISION

          DORRIAN, J.

         {¶ 1} In this original action, relator, Benedetto DiPietrantonio, requests this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying his request for temporary total disability ("TTD") compensation based on a finding that he voluntarily abandoned his employment, and ordering the commission to find that he is entitled to 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 that this court deny relator's request for a writ of mandamus.

         {¶ 3} No party has filed objections to the magistrate's decision. The case is now before this court for review.

         {¶ 4} We find no error of law or other defect evident on the face of the magistrate's decision. Therefore, we adopt the findings of fact and conclusions of law contained therein. Accordingly, relator's request for a writ of mandamus is denied.

         Writ of mandamus denied.

          SADLER and LUPER SCHUSTER, JJ., concur.

         APPENDIX

         Rendered on October 25, 2016

         IN MANDAMUS

         MAGISTRATE'S DECISION

          STEPHANIE BISCA MAGISTRATE

         {¶ 5} Relator, Bennedetto DiPietrantonio, has filed this original action requesting this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying his request for temporary total disability ("TTD") compensation based on a finding that he had voluntarily abandoned his employment, and ordering the commission to find that he is entitled to that compensation. Findings of Fact:

         {¶ 6} 1. Relator sustained a work-related injury on October 24, 2013 and his workers' compensation claim has been allowed for the following conditions:

Contusion right lower leg; abrasion right hip and leg; contusion right ankle; contusion right forearm; sprain right ankle; sprain right foot; high grade aft tear; calcaneus fracture; articular cartilage disorder right ankle; major depressive disorder single episode, mild.

         {¶ 7} 2. Although relator was unable to return to his former position of employment, his physician of record released him to return to work with restrictions.

         {¶ 8} 3. Relator's employer, Hammond Construction, Inc. ("Hammond"), did not have any positions available within relator's restrictions; however, relator was qualified to participate in a Modified Duty Off-Site ("MDOS") program.

         {¶ 9} 4. In a letter dated January 30, 2015, Hammond explained the purpose of relator's temporary placement, and informed him that the rules set forth in his employee handbook would apply while he was temporarily assigned to work at the American Red Cross facility. Specifically, that letter provides:

As you are aware, your physician of record has released you to return to work with restrictions. A copy of the restricted work release ...

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