State ex rel. Ryan Alternative Staffing, Inc. v. Moss , 2020 Ohio 5197 ( 2020 )

[Cite as State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 2020-Ohio-5197.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ryan Alternative Staffing, Inc., :
Relator, :
v. : No. 19AP-245
Bridget M. Moss et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on November 5, 2020
On brief: Morrow & Meyer, LLC, and Mary E. Ulm, for
relator.
On brief: Boyd, Rummell, Carach, Curry, Kaufman & Bins-
Castronovo Co., LPA, and Matthew N. Bins-Castronovo, for
respondent Bridget M. Moss.
On brief: Dave Yost, Attorney General, and Douglas R.
Unver, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Ryan Alternative Staffing, Inc., commenced this original action in
mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate its order that awarded temporary total disability ("TTD")
compensation to claimant/respondent, Bridget M. Moss ("claimant"). Pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a
magistrate who issued a decision, including findings of fact and conclusions of law, which
No. 19AP-245 2
is appended hereto. The magistrate noted the commission's determination that relator
exercised good faith in offering the claimant suitable alternative employment, which the
claimant refused. Nevertheless, the magistrate found that the commission did not abuse
its discretion in awarding the claimant a closed period of TTD compensation based upon
its finding that the claimant's refusal of relator's offer of suitable alternative employment
was also made in good faith. Therefore, the magistrate has recommended that we deny
relator's request for a writ of mandamus.
{¶ 2} Relator has filed objections to the magistrate's decision. Principally relying
on State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-
4920, relator argues the magistrate erred in finding that the commission did not abuse its
discretion in awarding a closed period of TTD compensation when it considered both
relator's good-faith offer of suitable alternative employment and claimant's good-faith
rejection of that offer. We agree.
{¶ 3} All parties contend that Ellis is dispositive of this case. However, the parties
interpret Ellis differently.
{¶ 4} In Ellis, the Supreme Court of Ohio was confronted with a factual scenario
very similar to that presented in the case at bar. The claimant in Ellis was unable to return
to her former position of employment due to a work-related injury. Her employer offered
her a light-duty position consistent with her medical restrictions, but the claimant declined
the offer because the position required her to work evenings. Apparently, the claimant
could not work during the evenings because she had two teenage children that would be
home alone on the nights that her husband worked. The staff hearing officer for the
commission determined that the claimant had a valid reason for declining the offer of
suitable alternative employment and, hence, did not abandon her former position of
employment. Based upon this determination, the commission awarded claimant TTD
compensation. The employer brought an action in mandamus in this court seeking to
vacate the commission's award, but we denied the writ. The employer appealed this court's
decision to the Supreme Court.
{¶ 5} The Supreme Court began its analysis by emphasizing that this factual
scenario does not involve the concept of voluntary abandonment, a concept that focuses on
whether or not the claimant's inability to return to the former position of employment is
No. 19AP-245 3
due to the work-related injury or due to a nonmedical reason–most commonly,
employment termination or a voluntary refusal to return. Ellis, 115 Ohio St.3d 224, 2007-
Ohio-4920, at ¶ 8. The Ellis court then contrasted the concept of voluntary abandonment
with a claimant's refusal of suitable alternative employment, which does not require an
assessment of why the claimant refused to return to his or her former position of
employment. The court reasoned that this is so because there would be no need to propose
suitable alternative employment if the claimant's inability to return to the former position
of employment was caused by anything other than the work-related injury. Instead, the
court stated:
[T]he relevant inquiry in this situation is why the claimant has
rejected an offer to ameliorate the amount of wages lost. This,
in turn, can involve considerations of, for example,
employment suitability, the legitimacy of the job offer, or
whether the position was offered in good faith. The causal-
relation question in this situation is different [from voluntary
abandonment] because it derives from a different
compensatory intent, which is to facilitate the claimant's return
to the work force. As critical as compensating injured workers
and their dependents is, it is not the only goal addressed by the
workers' compensations system. Assisting a claimant's return
to gainful employment is also important, benefiting not only
the employer and employee, but society at large.
Ellis at ¶ 9.
{¶ 6} The Ellis court emphasized that the defense of "refusal of suitable alternative
employment arises from R.C. 4123.56(A), which prohibits the payment of TTD
compensation "when work within the physical capabilities of the employee is made
available by [an] employer." Ellis at ¶ 6, quoting R.C. 4123.56(A). However, the court
stated that R.C. 4123.56(A) must be read in pari materia with Ohio Adm.Code 4121-3-
32(A)(6) that defines "job offer" in this context as a proposal "made in good faith." The
court further stated that whether the claimant "exercised good faith in refusing the job offer
does not answer whether [the employer] exercised good faith extending it, which must be
addressed." Ellis at ¶ 13. Because the commission never addressed whether the employer's
offer of suitable alternative employment was made in good faith, the Ellis court reversed
and remanded the case to the commission for a determination of that issue. Id.No. 19AP-245 4
{¶ 7} We read Ellis as permitting the commission to consider the claimant's
reasons for refusing the offer of suitable alternative employment only in the context of
deciding whether the employer's offer was made in good faith. Unlike Ellis, here the
commission determined that relator's offer of suitable alternative employment was made
in good faith. Relator points out that if a claimant's good-faith refusal of an employer's
good-faith offer of suitable alternative employment were a defense to the application of R.C.
4123.56(A), there would have been no reason for the Ellis court to reverse and remand that
decision for a determination of whether the employer's job offer was made in good faith,
given that the claimant's good-faith refusal of the job offer was not disputed in Ellis. We
agree. Ellis does not allow the commission to consider the claimant's reason for refusing
the offer of suitable alternative employment after the commission has determined that the
employer's offer was made in good faith. Any other conclusion would be inconsistent with
R.C. 4123.56(A), Ohio Adm.Code 4121-3-32(A)(6), and the principle that there must be a
causal relationship between the work-related injury and the claimant's inability to return
to work to support an award of TTD compensation. That causal relationship would not
exist if a claimant could reject an employer's good-faith offer of suitable alternative work
for reasons unrelated to the claimant's workplace injury, even if the reasons for the
claimant's rejection were understandable and based in good faith. For these reasons, we
sustain relator's objections.
{¶ 8} Following an independent review of this matter, we find that magistrate has
properly determined the facts but erred in her application of the law. Therefore, we adopt
the magistrate's findings of fact but not her conclusions of law. For the reasons set forth
above, we sustain the relator's objections and grant relator's request for a writ of
mandamus.
Objections sustained; writ of mandamus granted.
BEATTY BLUNT and NELSON, JJ., concur.
No. 19AP-245 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ryan Alternative Staffing, Inc., :
Relator, :
v. : No. 19AP-245
Bridget M. Moss et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on April 2, 2020
Morrow & Meyer, LLC, and Mary E. Ulm, for relator.
Boyd, Rummell, Carach, Curry, Kaufman & Bins-
Castronovo, Co., L.P.A., and Matthew N. Bins-Castronovo,
for respondent Bridget M. Moss.
Dave Yost, Attorney General, and Douglas R. Unver, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 9} Relator, Ryan Alternative Staffing, Inc., has filed this original action
requesting this court issue a writ of mandamus ordering respondent Industrial Commission
of Ohio ("commission") to vacate its order which awarded temporary total disability
compensation ("TTD") to respondent Bridget M. Moss ("claimant" or "Moss"), despite the
fact that relator had offered Moss a job within her physical abilities.
No. 19AP-245 6
Findings of Fact:
{¶ 10} 1. Claimant sustained a work-related injury on July 18, 2018 and her workers'
compensation claim was allowed for "sprain of unspecified site of right knee."
{¶ 11} 2. On the date of her injury, claimant was working at Ram Plastics as a
machinist. Ram Plastics was a client of relator, a temporary staffing agency.
{¶ 12} 3. Approximately two weeks later, claimant was released to return to work
with restrictions.
{¶ 13} 4. That same day, relator made a verbal offer of employment to claimant for
a job at relator's Warren office. Claimant refused the job explaining she could not work
those hours because she needed to be able to care for her disabled granddaughter during
the hours offered.
{¶ 14} 5. In a letter dated August 2, 2018, relator offered claimant the same-light
duty position which met the restrictions of her treating physician. That letter provides:
This letter is to confirm your refusal of the offer of light duty
to begin on Friday, August 3, 2018 at our Warren office at 8:30
am. You refused this light duty offer on Thursday, August 2,
2018 due to not being able to work a day shift. You stated that
you are only able to work 2nd shift due to watching your
grandbaby during the day while your daughter is working.
The light duty offer was to work in our Warren office located
at * * *.
Your work schedule would have been for 8:30am-5pm with a
1/2 hour unpaid lunch. You could have left for your follow up
appointments as they became scheduled.
The dress code would have been business casual and the pay
rate would have been $8.30/HR. Your job duties would have
included sit down inside clerical work. A list of job duties is
attached that meets your current restrictions.
Relator also included a list of specific duties which claimant would be required to perform
in this position.
{¶ 15} 6. Claimant refused to accept the position offered by relator on grounds that
she was not available to work those hours because she provided childcare for her
granddaughter.
No. 19AP-245 7
{¶ 16} 7. Claimant filed a motion seeking TTD compensation beginning August 2,
2018.
{¶ 17} 8. Claimant's motion was heard before a district hearing officer ("DHO") on
October 5, 2018. The DHO denied claimant's motion finding that relator had made a good
faith offer of suitable employment which claimant had rejected thereby making her
ineligible for the requested award of TTD compensation. The DHO summarized the basic
facts:
Subsequent to the industrial injury, which is the basis of this
claim, the Injured Worker attempted to return to work, but
was unable to work at her former position of employment as
a machinist for a client of the temporary staffing agency,
which employed her at that time. Upon following up with
John Baumeier, DO, on 08/02/2018, the physician opined
that the Injured Worker could return to restricted duty. In
accordance with the Self-insuring employer's policy, Ms.
Plasky contacted "RAM Plastics," the client company for
which the Injured Worker was working when injured, to
determine whether a position was available consistent with
the restrictions imposed by Dr. Baumeier. When the client
informed her that no such position was available, she
contacted the Injured Worker by telephone to offer her a
position with the temporary staffing agency itself. The Injured
Worker refused this position, because the hours of work
conflicted with her ability to care for her daughter's disabled
child. As a consequence of the Injured Worker's refusal of this
verbal offer, the Self-insuring Employer drafted a letter
reducing the modified-duty job offer to writing and noting the
Injured Worker's failure to accept same. This refusal to accept
the modified-duty offer was the basis of Self-insuring
Employer's denial of the request for payment of temporary
total disability compensation benefits from 08/02/2018
through 09/08/2018. The Injured Worker testified that she
returned to work with another employer on 09/09/2018.
{¶ 18} Thereafter, the DHO explained the parties' positions as follows:
The Injured Worker maintains that the Self-insuring
Employer was aware of her scheduling requirements, when
she first signed up for work with the temporary staffing
agency. Thus, she maintains that the modified-duty job offer
for employment, at a shift which the temporary staffing
agency knew she could not work, does not constitute a "good-
No. 19AP-245 8
faith" offer under the provisions of Ohio Adm. Code 4123-3-
32(A)(6).
In response, Ms. Plasky noted that the temporary staffing
agency is only open during business hours. She further
testified that other injured workers in the same situation have
been provided with work at the temporary staffing agency's
offices, when the client company at which they were injured
could not accommodate the modified-duty work required by
their injuries. Thus, she disputed any intent to fashion a
position which the Injured Worker was incapable of filling.
{¶ 19} Thereafter, the DHO denied the requested period of compensation reasoning
as follows:
The facts presented in this case are nearly identical to those in
State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio
St.3d 224, 2007-Ohio-9240, 874 N.E.2d 780. In Ellis, the
parties agreed that the light-duty position offered by the
employer was consistent with the restrictions imposed by the
injured worker's physician. Id. at ¶ 1. The only dispute was
whether the injured worker was justified in refusing the offer,
based upon the fact that it would require her to work a
different shift Id. in sending the matter back to the Industrial
Commission for further consideration, the Court held that the
operative question was whether the employer "consciously
crafted a job offer with work shifts that it knew Hudgel could
not cover * * *. " Id. at ¶ 13.
In this case, Ms. Plasky's testimony regarding the regular
course of business of the temporary staffing agency in such
situations is found to be probative. Thus, the offer of
employment at the temporary staffing agency's offices, albeit
at a different time than the Injured Worker was accustomed
to work, is not deemed to have been "consciously crafted" to
present the Injured Worker with a position which she could
not accept. Accordingly, this offer is deemed to have been
made in "good faith," in accordance with the provisions of
Ohio Adm.Code 4121-3-32(A)(6).
Based upon the foregoing analysis, the Self-insuring
Employer did indeed offer employment within the Injured
Worker's physical capabilities, as required by the provisions
of R.C. 4123.56(A). Thus, the Injured Worker is not legally
entitled to receive payments of Temporary Total Disability
No. 19AP-245 9
Compensation benefits and such compensation for the period
from 08/02/2018 through 09/08/2018 is denied.
This decision is based upon the testimony presented at the
hearing by Ms. Plasky and the letter, dated 08/02/2018, from
the Self-insuring Employer presenting a written offer of
employment to the Injured Worker and noting her verbal
refusal of same. The Hearing Officer reviewed and considered
all evidence on file in issuing this decision.
{¶ 20} 9. Claimant appealed and the matter was heard before a staff hearing officer
("SHO") on November 19, 2018. The SHO vacated the prior DHO order and found that
claimant was entitled to the requested closed period of compensation. The SHO specifically
found that relator did make a good faith offer of employment; however, the SHO also found
that claimant refused the light-duty job offered to her in good faith. Specifically, the SHO
order provides:
The Staff Hearing Officer finds that the Employer asserted
that temporary total disability compensation is not payable
for this period because the Injured Worker's refusal of a light
duty job offer constituted a voluntary abandonment of
employment. However, the Staff Hearing Officer finds that
this assertion is not well taken. The Staff Hearing Officer finds
that the Employer offered the Injured Worker a light duty job
within her physical restrictions on 08/02/2018 to begin work
on 08/03/2018, for the Employer, the temporary agency, at
the Employer's Warren office, in a sedentary, clerical position
from 8:30 a.m. to 5:00 p.m. The Staff Hearing Officer
specifically finds that the job offer was made in good faith by
the Employer as this was the only position that the Employer
had available to accommodate the Injured Worker's physical
restrictions.
***
The Staff Hearing Officer finds the case of State ex rel. Ellis
Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224 (2007)
to be instructive on this issue and specifically references the
language in paragraph 13 of the opinion. The Staff Hearing
Officer finds that the determinative issue with regard to the
Injured Worker's entitlement to temporary total disability
compensation in this claim is fact specific. The Staff Hearing
Officer finds that whether the job offer was made in good faith
and whether the Injured Worker exercised good faith in
No. 19AP-245 10
refusing the job offer are factual determinations for the
Industrial Commission. Herein, the Staff Hearing Officer
finds that both the Employer and the Injured Worker acted in
good faith. The Staff Hearing Officer finds that while the
Injured Worker was physically capable of performing the light
duty work, the reason that she was unable to accept the
position was because she had family obligations and the
timing for the shift of the light duty job was not feasible.
Notwithstanding, the Staff Hearing Officer finds that the
Injured Worker was unable to accept the light duty job offer,
and she was also unable to return to her former position of
employment due to the allowed condition of the claim.
Accordingly, the Staff Hearing Officer finds that the
temporary total compensation is payable in this claim.
This portion of the decision is based on the Injured Worker's
testimony at hearing, the Employer's 08/04/2018 letter, and
the Ellis Super Valu case.
The Self-Insuring Employer is hereby ordered to comply with
the above findings.
{¶ 21} 10. Relator's appeal was refused by order of the commission mailed
December 13, 2018.
{¶ 22} 11. Relator's request for reconsideration was denied by order of the
commission mailed January 30, 2019.
{¶ 23} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 24} For the reasons that follow, it is this magistrate's decision that relator has not
demonstrated the commission abused its discretion in awarding claimant a closed period
of TTD compensation, and this court should deny relator's request for a writ of mandamus.
{¶ 25} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 26} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley
No. 19AP-245 11
v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists
where the relator shows that the commission abused its discretion by entering an order
which 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).
{¶ 27} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where 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) claimant has returned to work; (2) claimant's
treating physician has made a written statement that claimant is able to return to the former
position of employment; (3) when work within the physical capabilities of claimant is made
available by the employer or another employer; or (4) claimant has reached MMI. See R.C.
4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
{¶ 28} Ohio Adm.Code 4121-3-32(A)(3) defines "suitable employment" as "work
that is within the employee's physical capabilities." "Job offer" is defined as a "proposal,
made in good faith, of suitable employment within a reasonable proximity of the injured
worker's residence." Ohio Adm.Code 4121-3-32(A)(6) If an injured worker refuses an oral
job offer, the employer must put the offer in writing and describe the duties of the job if the
employer wants to use the worker's refusal as grounds upon which to deny payment of TTD
compensation.
{¶ 29} Both parties agree the Supreme Court of Ohio's decision in State ex rel. Ellis
Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-4920, is instructive.
Susan B. Hudgel was unable to return to her former position of employment with her
employer, Ellis Super Valu, Inc. as a result of the allowed conditions in her claim. The
employer offered her a light-duty position consistent with her medical restrictions;
however, Hudgel declined that position because it required her to work evenings. The
employer argued that Hudgel was not eligible for TTD compensation because her refusal of
No. 19AP-245 12
the light-duty job constituted a voluntary abandonment of employment. A DHO denied
TTD compensation finding Hudgel's refusal of the good faith job offer constituted a
voluntary abandonment of her job and rendered her ineligible to receive TTD
compensation. The SHO determined that Hudgel did not voluntarily abandon her job
finding Hudgel had a valid reason for the refusal. Further appeal was denied.
{¶ 30} The employer filed a mandamus action in this court in State ex rel. Ellis Super
Valu, Inc. v. Indus. Comm., 10th Dist. No. 05AP-531, 2006-Ohio-3014. This court's
magistrate concluded there was no abuse of discretion on the part of the commission─
because the commission found Hudgel had a good faith reason to reject the employer's offer
of employment, she was eligible for TTD compensation. Specifically, this magistrate
summarized the parties' positions before reaching her conclusion:
In the present case, relator argues that the job offer it made to
claimant was made in good-faith, since it was within
claimant's restrictions, and was within a reasonable proximity
of claimant's residence. As such, relator contends that
claimant's refusal to accept its job offer, for any reason,
constituted a voluntary abandonment of her employment and
negated her right to receive TTD compensation. Relator
argues that where a job offer is within the injured worker's
restrictions and is within reasonable proximity to their
residence, an injured worker is required to accept the job offer
or forfeit TTD compensation.
Conversely, claimant argues that, while the job offer was
within her physical restrictions and was within a reasonable
proximity to her residence, the job offer was not made in
good-faith because the employer knew that those hours would
pose a significant hardship on claimant. Furthermore,
claimant made a "counter offer," so to speak, indicating that
she was willing to work some nights provided that she be
allowed to work nights when her husband could be home to
be with the children. Relator did not respond. While deciding
to have children is a lifestyle decision which some people
make, in the present case, the magistrate finds that relator's
need and desire to be home in the evenings with her children
does not constitute the type of "lifestyle choice" that the courts
have identified as one which cuts against an injured worker's
entitlement to compensation.
In the present case, the magistrate finds that the commission
did not abuse its discretion. The record reflects that claimant
No. 19AP-245 13
made a good-faith effort to work with relator in light of
relator's willingness to put claimant back on the payroll.
However, the magistrate finds that relator's argument, that
the only valid reason claimant could have refused the job offer
was if the job offer was either outside her medical restrictions
or was too far from her home, ignores the fact that there could
be other reasons why a determination could be made that the
employer's offer was not made in good-faith or that the
employee had a valid reason, other than a "lifestyle choice," to
refuse the job offer without compromising her ability to
receive TTD compensation. These matters should be decided
by the commission on a case-by-case basis. At oral argument,
counsel for relator asserted that there was no specific finding
by the SHO that its job offer was not made in good faith and,
at least, a limited writ should be granted. The magistrate
disagrees and finds that, even without expressly stating that it
found the job offer was not made in good-faith, by finding
claimant had a valid reason to refuse it, the commission found
a lack of "good-faith" and there is no reason to send this back
to the commission. The magistrate finds no abuse of
discretion in this situation.
Id. at ¶ 36-38.
{¶ 31} In affirming the magistrate's decision, this court reaffirmed certain
principles: (1) whether a claimant has abandoned her job is a factual determination for the
commission; (2) where a commission order is adequately explained and based on some
evidence, even evidence that may be persuasively contradicted by other evidence of record,
the order will not be disturbed as manifesting an abuse of discretion. Finding some
evidence supported the SHO's determination that Hudgel did not voluntarily abandon her
employment, this court agreed with the magistrate that the commission did not abuse its
discretion. Ellis Super Valu, Inc. appealed this court's decision to the Supreme Court.
{¶ 32} At the outset, the Supreme Court noted this was not a case of voluntary
abandonment but that the facts raised the possibility of a different defense: the refusal of
suitable alternate employment. Finding the commission had not properly addressed all the
relevant issues, the court granted a writ of mandamus.
{¶ 33} The court discussed both the considerations of whether or not an employer
has made a good faith offer of suitable employment and whether or not an employee has
justifiably refused an offer of suitable employment. The court concluded by stating:
No. 19AP-245 14
In this case, all agree that the light-duty job offered was within
Hudgel's medical ability. This is all that R.C. 4123.56(A)
expressly requires, but the statute must be read in pari
materia with the Ohio Administrative Code provision that
supplements it. Ohio Adm.Code 4121-3-32(A)(6) defines "job
offer" in this context as a proposal "made in good faith." The
parties debate whether good faith existed, but contrary to
their suggestion, the commission has not addressed this issue.
Whether Hudgel exercised good faith in refusing the job offer
does not answer whether ESV exercised good faith in
extending it, which must be addressed. If ESV consciously
crafted a job offer with work shifts that it knew Hudgel could
not cover ─ as Hudgel alleges and ESV denies ─ then good
faith may not exist. That, however, is a factual determination
for the commission.
Id. at ¶ 13.
{¶ 34} Relator argues here that, inasmuch as the commission determined that its
offer of modified-duty work to Moss was made in good faith, Moss was required to accept
that position or find herself ineligible to receive TTD compensation. Ellis Super Valu, Inc.
had made the same argument to this court. However, in the present case, after making the
factual finding that the offer of modified-duty work was, in fact, made in good faith, the
commission also made the factual determination that Moss, in good faith, refused to accept
that position. The magistrate finds there is no reason, legal or otherwise, for this court to
find that the commission, as fact finder, cannot make both these findings in a particular
case such as the one currently before us. Such a determination accepts that, in this
situation, relator can only offer Moss a job during hours which Moss is unable to work while
at the same time conceding that, but for the fact that Moss could not work these hours, she
would not have had a good faith reason to reject this offer of employment.
{¶ 35} Counsel for relator argues that if the Supreme Court in Ellis actually intended
to create a defense for claimants who, in good faith, reject an offer of suitable employment,
the court would have awarded Hudgel TTD compensation after agreeing she had, in good
faith, refused the offer of employment.1 Instead, the court first clarified this was not a
voluntary abandonment situation because the lack of Hudgel's inability to return to her
former position of employment is not in question: she was medically unable to do so.
1 In fact, this magistrate had recommended the same in Ellis and this court agreed.
No. 19AP-245 15
Second, the relevant inquiry is why Hudgel rejected an offer to ameliorate her lost wages.
Third, the court stressed that factual determinations are the province of the commission
and that, before a determination could be made, the commission had to first determine
whether the offer of employment had indeed been made in good faith.
{¶ 36} In the present case, the commission considered the evidence before it, made
factual determinations, cited the evidence upon which it relied, applied the relevant case
law to those factual determinations, and provided an explanation for its conclusion. In so
doing, the magistrate finds the commission did not abuse its discretion when it found that
Moss was eligible to receive the closed period of TTD compensation and this court should
deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
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).