State of Ohio ex rel. Ernest Williams, Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Clymer, Mitchell, & Portman, and Gregory R. Mitchell, for
Michael DeWine, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
Gregory R. Mitchell
1} Relator, Ernest Williams, has filed an original
action requesting this court to issue a writ of mandamus
ordering respondent, Industrial Commission of Ohio
("commission"), to vacate the April 15, 2016 order
of its staff hearing officer ("SHO") denying
relator's request for permanent total disability
("PTD") compensation on grounds that he voluntarily
abandoned the workforce, and to enter an order finding that
he reestablished eligibility for such compensation when he
worked for two weeks in 2015 driving a truck.
2} This court referred the matter to a magistrate
pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District
Court of Appeals. The magistrate issued the appended
decision, including findings of fact and conclusions of law,
recommending this court deny relator's request for a writ
3} Relator has filed two objections to the
magistrate's decision. Relator first asserts the
magistrate erred in concluding the commission did not abuse
its discretion in utilizing an improper standard to find
voluntary abandonment. Specifically, relator challenges
language in the SHO's order stating his testimony failed
to represent a "good faith" effort to return to
work; relator maintains no statute or administrative rule
provides for such analysis. Under his second objection,
relator contends the SHO erred in failing to consider medical
evidence indicating he could not work due to his industrial
4} Under Ohio law, "[a] claimant's
eligibility for permanent-total-disability compensation may
be affected if the claimant has voluntarily retired or
abandoned the job market for reasons not related to the
industrial injury." State ex rel Black v. Indus.
Comm., 137 Ohio St.3d 75, 2013-Ohio-4550, ¶ 14,
citing State ex rel. McAtee v. Indus. Comm., 76 Ohio
St.3d 648 (1996). The voluntary nature of a claimant's
abandonment of the workforce "is a factual question
within the commission's final jurisdiction."
State ex rel. Krogman v. B&B Enters. Napco Flooring,
LLC, 10th Dist. No. 14AP-477, 2015-Ohio-1512, ¶ 8,
citing State ex rel. Burley v. Coil Packing, Inc.,
31 Ohio St.3d 18, 31 (1987).
5} The stipulated record in this action indicates
that relator, who was injured on May 5, 1978, has filed
applications for PTD compensation in 1991, 1994, 1997, 2000,
and 2015. The commission denied all five applications,
including the 2015 application which is the subject of this
original action. Relator also moved for temporary total
disability ("TTD") compensation in 2013 and,
following a hearing, a district hearing officer
("DHO") issued an order denying TTD compensation.
Relator filed an administrative appeal, and an SHO issued an
order affirming the DHO; in that order, the SHO noted the
lack of documentation of any attempt by relator to find work
since at least the commission's order of 2001 in which it
denied relator's request for PTD compensation and made a
finding of abandonment of the workforce.
6} In denying relator's most recent application
for PTD compensation, the SHO determined that relator had
"long ago abandoned the workforce, " last working
"in August of 1986." The SHO noted several earlier
attempts by a rehabilitation provider to coordinate
evaluations, but relator failed to present himself for
appointments and failed to indicate an interest "to
proceed with rehabilitation evaluations or services."
The SHO further found "no persuasive evidence on record
that the Injured Worker since 1986 has ever made any attempt
to return to work, " and that his "testimony
regarding a return to work in 2015 is not found to represent
a legitimate attempt to return to work."
7} In addressing the issue of whether relator
re-established eligibility for PTD compensation by working
two weeks in 2015, the SHO noted testimony by relator
"that in 2015 he called a friend and that his friend
gave him a job driving a gravel truck." Relator
indicated, however, "he was unable to do this job after
two weeks." Noting that in the "last denial"
of PTD compensation, relator "was found to be limited to
sedentary work, " the SHO observed that "[d]riving
a gravel truck would not be classified as sedentary
work." The SHO further stated that relator's
"attempt to return to work after almost three decades of
inactivity is not found to represent a genuine attempt to
return to work."
8} Upon review, the record does not support
relator's contention the SHO utilized an improper
standard in analyzing the issue of voluntary abandonment. The
Supreme Court of Ohio has noted "[t]he question of
abandonment is 'primarily [one] of intent [that]
may be inferred from words spoken, acts done, and other
objective facts.' " (Emphasis added.) State ex
rel. Diversitech Gen. Plastic Film Div. v. Indus. Comm.,
45 Ohio St.3d 381, 383 (1989), quoting State v.
Freeman, 64 Ohio St.2d 291, 297 (1980). Similarly, it
has been "held that ' "[a]n abandonment is
proved by evidence of intention to abandon as well
as of acts by which the intention is put into
effect." ' " (Emphasis added.) Id.,
quoting West Park Shopping Center v. Masheter, 6
Ohio St.2d 291, 297 (1966), quoting Dalton v.
Johnson, 320 S.W.2d 569, 574 (1959). Further,
"[t]he presence of such intent, being a factual
question, is a determination for the commission."
(Emphasis added.) Id. The Supreme Court has also
held that "absent extenuating circumstances, it is not
unreasonable to expect a claimant to participate in efforts
to return to work to the best of his or her abilities."
State ex rel. Gulley v. Indus. Comm., ___ Ohio St.3d
___, 2017-Ohio-9131, ¶ 15.
9} In the instant action, notwithstanding the
SHO's reference to "good faith, " the order
indicates the commission properly applied Ohio law, including
a consideration of intent, in determining the issue of
voluntary abandonment. The evidence before the commission and
cited by the SHO indicates relator was capable of engaging in
sustained remunerative employment but that he never attempted
rehabilitation following his injury in 1978, nor did he seek
any type of work over an approximately 30-year span. As
noted, relator argued he re-entered the workforce in 2015. As
to the issue of whether relator reestablished eligibility for
PTD compensation by working as a truck driver, the evidence
before the SHO was that relator had contacted a friend who
"gave him a job driving a gravel truck, " a job
which relator testified he was "unable to do * * * after
two weeks." The SHO, in addressing the facts and
circumstances presented, observed that the
job relator obtained from his friend was not classified as
one within his sedentary restrictions. 
10} In addressing the issue of abandonment, the
commission has discretion to consider all the evidence before
it in determining a claimant's intent, "including
the weight and credibility of that evidence." State
ex rel. Rockey v. Sauder Woodworking Co., 10th Dist. No.
09AP-888, 2011-Ohio-1590, ¶ 17. Here, in finding an
intent to voluntarily abandon the workforce, the SHO
considered the conduct and choices by relator, including his
ability to engage in sustained remunerative employment, his
lack of interest in pursuing rehabilitation opportunities,
the absence of any evidence that he had worked or made an
attempt to return to work for approximately 30 years, and the
fact that his only attempt at employment since 1978 involved
a position not within his work restrictions. It was within
the province of the commission to assess the credibility of
the evidence, including the testimony of relator, in making
that determination. Upon review, there was some evidence to
support the commission's finding that relator voluntarily
abandoned the workforce.
11} Relator also contends the commission failed to
consider medical evidence indicating he was unable to work
due to his injury. The magistrate, however, considered
relator's arguments regarding the report of Dr. Sai
Gutti, noting the commission was not required to accept the
July 2015 report as some evidence supporting PTD
compensation. Further, the threshold issue before the
commission was whether relator, having voluntarily abandoned
the workforce years before, had re-entered the workforce by
working two weeks in 2015. As set forth above, there was some
evidence to support the commission's determination on
that issue, including findings of the SHO that relator was,
according to medical evidence, limited to sedentary work but
that he sought employment not within those restrictions.
12} Upon consideration of the objections, and having
independently reviewed the magistrate's decision, we
overrule relator's 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. In accordance with the recommendation of
the magistrate, the requested writ of mandamus is denied.
overruled; writ denied.
and BRUNNER, JJ., concur.
on October 6, 2017
KENNETH W. MACKE, MAGISTRATE
13} In this original action, relator, Ernest
Williams, requests a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to
vacate the April 15, 2016 order of its staff hearing officer
("SHO") that denies his November 16, 2015
application for permanent total disability ("PTD")
compensation on grounds that he voluntarily abandoned the
workforce and is, thus, ineligible for the compensation, and
to enter an order finding that relator re-established
eligibility for the compensation when he worked for two weeks
in 2015 driving a truck. Relator requests that the writ order
the commission to adjudicate the application on the merits in
the absence of a finding that relator voluntarily abandoned
the workforce. Findings of Fact:
14} 1. On May 5, 1978, relator injured his lower
back and right hand while employed as a construction laborer
for respondent Werner Maintenance & Construction Co., a
state-fund employer. The injury occurred when he fell down
some steps. He was 25 years of age on the date of injury.
(Date of birth is January 4, 1953.)
15} 2. The industrial claim (No. 78-19479) is
allowed for "contusion lumbosacral area; contusion right
hand; degenerative disc L4-5; disc bulge L4-5."
16} 3. Relator has filed five applications for PTD
compensation. His first application was filed on November 18,
17} 4. Earlier, by letter dated September 11, 1987,
relator was informed by the commission's rehabilitation
Please accept this letter as a closure to your Rehabilitation
File with this agency. This action is based on our inability
to coordinate evaluations for you with the J. Leonard Camera
Center of Columbus, Ohio. It is my understanding that two
previous appointments have been made for you with the J.
Leonard Camera staff in order to properly assess your
physical, psychological, and vocational status. Both times
you have not shown nor did you call to cancel.
18} 5. Following a March 15, 1994 hearing, two
SHO's issued an order denying the first PTD application.
The order explains:
This order is based particularly upon the reports of
Commission Physical Medicine examiner ...