[Cite as State ex rel. Melott v. Indus. Comm., 2016-Ohio-8268.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Earl Melott,                      :

                 Relator,                               :

v.                                                      :            No. 15AP-1065

Industrial Commission of Ohio and                       :         (REGULAR CALENDAR)
Williams Industrial Services, Inc.,
                                                        :
                 Respondents.
                                                        :




                                          D E C I S I O N

                                   Rendered on December 20, 2016


                 On brief: Agee, Clymer, Mitchell & Portman, and
                 Gregory R. Mitchell, for relator.

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

                                             IN MANDAMUS

BROWN, J.
        {¶ 1} Relator, Earl Melott, has filed this original action requesting that this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its June 23, 2015 order wherein its staff hearing officer denied
relator's application for permanent total disability compensation based solely on a finding
that relator voluntarily abandoned the workforce in 1998, and to enter an order that
adjudicates the merits of the application absent the finding of a voluntary workforce
abandonment.
No. 15AP-1065                                                                         2

       {¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, and recommended
that this court deny relator's request for a writ of mandamus. No objections to that
decision have been filed.
       {¶ 3} Accordingly, after an examination of the magistrate's decision, an
independent review of the record, pursuant to Civ.R. 53, we adopt the magistrate's
findings of fact and conclusions of law. Relator's request for a writ of mandamus is
denied.
                                                             Writ of mandamus denied.

                            SADLER and BRUNNER, JJ, concur.

                               ___________________
[Cite as State ex rel. Melott v. Indus. Comm., 2016-Ohio-8268.]



                                             APPENDIX
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Earl Melott,                          :

                 Relator,                               :

v.                                                      :             No. 15AP-1065

Industrial Commission of Ohio and                       :          (REGULAR CALENDAR)
Williams Industrial Services, Inc.,
                                                        :
                 Respondents.
                                                        :


                               MAGISTRATE'S DECISION

                                     Rendered on August 10, 2016


                 Agee, Clymer, Mitchell & Portman, and Gregory R. Mitchell,
                 for relator.

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



                                             IN MANDAMUS

        {¶ 4} In this original action, relator, Earl Melott, requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the
June 23, 2015 order of its staff hearing officer ("SHO") that denies relator's application for
permanent total disability ("PTD") compensation based solely upon a finding that relator
voluntarily abandoned the workforce in 1998, and to enter an order that adjudicates the
merits of the application absent the finding of a voluntary workforce abandonment.
No. 15AP-1065                                                                             4


Findings of Fact:
       {¶ 5} 1. On November 3, 1993, relator injured his lower back while employed as a
painter for Williams Industrial Services, Inc., a state-fund employer. The injury occurred
when relator was carrying a ladder and he tripped over an air hose. The industrial claim
(No. 93-318887) was initially allowed for "sprain lumbar region; disc bulging and focal
spurring at L5-S1
       {¶ 6} 2. On January 6, 2011, relator underwent low back surgery performed by
Won G. Song, M.D. In his operative report, Dr. Song describes the surgical procedure as a
"[l]umbar laminectomy of L5-S1 on right with excision of disk with foraminotomy."
       {¶ 7} 3. On January 25, 2011, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order awarding temporary total disability ("TTD") compensation
beginning January 6, 2011 based upon a C-84 completed by Dr. Song. Apparently, the
bureau's order was not administratively appealed.
       {¶ 8} 4. On December 6, 2012, at the bureau's request, relator was examined by
James Sardo, M.D. In his six-page narrative report, Dr. Sardo opined that the allowed
physical conditions of the industrial claim have reached maximum medical improvement
("MMI").
       {¶ 9} 5. On January 10, 2013, citing Dr. Sardo's report, the bureau moved for
termination of TTD compensation on grounds that the industrial injury had reached
MMI.
       {¶ 10} 6. Following a February 8, 2013 hearing, a district hearing officer ("DHO")
issued an order terminating TTD compensation effective the date of the hearing. The
DHO's order states reliance upon Dr. Sardo's report.
       {¶ 11} 7. Relator administratively appealed the DHO's order of February 8, 2013.
       {¶ 12} 8. Following a March 19, 2013 hearing, an SHO issued an order affirming
the DHO's order of February 8, 2013.
       {¶ 13} 9. On April 17, 2014, relator moved for an additional claim allowance and
for the payment of TTD compensation based upon the additional claim allowance.
       {¶ 14} 10. On July 1, 2014, the bureau mailed an order additionally allowing the
claim for "major depressive disorder single episode, severe, without psychotic features."
The bureau also awarded TTD compensation beginning March 13, 2014.
No. 15AP-1065                                                                         5


      {¶ 15} 11. Apparently, the July 1, 2014 bureau order was not administratively
appealed.
      {¶ 16} 12. Earlier, on May 22, 2013, relator filed an application for PTD
compensation.
      {¶ 17} 13. Following a September 4, 2013 hearing, an SHO issued an order
denying the application. The SHO's order of September 4, 2013 concludes:
             Based upon physical examination findings, Dr. Masone's
             opinion that the Injured Worker can perform sedentary
             work, the Injured Worker's young age, and the Injured
             Worker's lack of effort to seek vocational retraining, the
             Hearing Officer does not find the Injured Worker is rendered
             permanently and totally disabled.

      {¶ 18} 14. On January 15, 2015, at relator's request, he was examined by
psychologist Raymond D. Richetta, Ph.D. In his five-page narrative report, Dr. Richetta
concludes:
             Mr. Melott does not manage restful sleep due to pain and
             anxiety and, even with his medications, he sometimes does
             not sleep for days at a time. He is sleep-deprived and, due to
             that factor alone, his energy is reduced, his concentration is
             reduced, and his decision-making is reduced. His depression
             continues, and his depression further reduced his energy,
             concentration, and decision-making. He is socially avoidant
             outside of his household. He would be unable to cope with
             co-workers, supervisors, or the general public at a job. His
             concentration prevents his remembering and carrying out
             more then very simple job instructions. His insomnia would
             prevent him from arriving promptly at a job or from
             maintaining regular attendance. His energy is too low for any
             type of employment. Therefore, the evaluation finds Earl
             Melott permanently and totally disabled from engaging in
             any form of sustained remunerative employment due to the
             allowed psychological condition alone.

      {¶ 19} 15. On January 6, 2015, Dr. Song completed a one-page "Medical
Questionnaire" on which he opined that relator is permanently and totally disabled based
upon the allowed physical conditions of the claim.
      {¶ 20} 16. Earlier, on October 22, 2014, at the bureau's request, relator was
examined by clinical psychologist Nicole Leisgang, Psy.D. In her seven-page narrative
No. 15AP-1065                                                                          6


report, Dr. Leisgang opined: "[t]he injured worker's emotional difficulties preclude him
from employment."
      {¶ 21} 17. On February 6, 2015, relator filed his second PTD application.        In
support, relator submitted the January 15, 2015 report of Dr. Richetta, the
January 6, 2015 report of Dr. Song, and the October 22, 2014 report of Dr. Leisgang.
      {¶ 22} 18. Following a June 23, 2015 hearing, an SHO issued an order denying
relator's PTD application filed February 6, 2015. The SHO's order explains:
             The Injured Worker was born on 03/17/1968 and is
             currently 47 years old. He has a 10th grade education. The
             Injured Worker's two IC-2 Applications and the 09/04/2013
             Staff Hearing order provide his prior work history. The
             Injured Worker was only approximately 30 years old when
             he last worked in 1998.

             The Injured Worker testified that he last worked in 1998,
             although there is no medical evidence found on file from
             1998 removing him from his former job or providing any
             physical restrictions. There is little evidence of medical
             treatment on file for 1998 or from 1998 to approximately
             05/12/2003 and no medical evidence of any disability or
             physical restrictions until approximately 05/12/2003 (C-84
             Request for Temporary Total Compensation). There is then
             no evidence of any C-84 or MEDCO-14 Physician's Report of
             Work Ability requests for temporary total disability from
             approximately August of 2003 to 2011. The Injured Worker
             testified that he has made no attempts to find work since he
             last worked in 1998. There is no evidence on file of any
             attempts at vocational rehabilitation or any attempts to
             obtain his GED since he last worked in 1998. Based on the
             lack of medical evidence of any physical restrictions due to
             the allowed claim at the time the Injured Worker stopped
             working in 1998 and the lack of any documentary evidence of
             any attempts to return to any type of work since he stopped
             working in 1998, along with the lack of any attempts at
             vocational rehabilitation since he last worked, it is found the
             Injured Worker voluntarily abandoned the workforce for
             non-claim related reasons in 1998. Since is it is found the
             Injured Worker voluntarily abandoned the work force it is
             found he is not eligible to receive permanent total disability
             compensation pursuant to State ex rel. Baker Material
             Handling Corp. v. Indus. Comm. (1994), 69 Ohio St.3d 202
             and State ex rel. Black v. Indus. Comm., Slip Opinion No.
No. 15AP-1065                                                                             7


                2013-Ohio-4550, therefore, the application for permanent
                total disability, is denied.

          {¶ 23} 19. On August 4, 2015, the three-member commission mailed an order
denying relator's motion for reconsideration of the SHO's order of June 23, 2015.
          {¶ 24} 20. On November 20, 2015, relator, Earl Melott, filed this mandamus
action.
Conclusions of Law:
          {¶ 25} As earlier noted, on January 25, 2011, the bureau mailed an order awarding
TTD compensation beginning January 6, 2011 based upon a C-84 from Dr. Song. The
bureau's TTD award was not administratively appealed.              Later, the commission
terminated TTD payments upon finding that the industrial injury had reached MMI.
          {¶ 26} On July 1, 2014, the bureau mailed an order additionally allowing the claim
for a psychological disorder and awarding TTD compensation beginning March 13, 2014.
This bureau order was not administratively appealed.
          {¶ 27} In both instances, TTD compensation was awarded based upon the medical
evidence submitted. Whether relator had voluntarily abandoned the workforce was not
an issue raised or determined in either instance.
          {¶ 28} Because workforce abandonment was allegedly available to the bureau as a
defense to the requests for TTD compensation and it failed to raise the issue at those
times, relator argues that the doctrine of collateral estoppel bars the commission from
adjudicating the issue with respect to relator's second PTD application. The magistrate
disagrees.
          {¶ 29} In State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386,
2008-Ohio-6254, the Supreme Court of Ohio had occasion to set forth relevant law:
                In Ohio, "[t]he doctrine of res judicata encompasses the two
                related concepts of claim preclusion, also known as res
                judicata or estoppel by judgment, and issue preclusion, also
                known as collateral estoppel." O'Nesti v. DeBartolo Realty
                Corp., 113 Ohio St.3d 59, 2007 Ohio 1102, 862 N.E.2d 803, P
                6. "[I]ssue preclusion, [or] collateral estoppel, holds that a
                fact or a point that was actually and directly at issue in a
                previous action, and was passed upon and determined by a
                court of competent jurisdiction, may not be drawn into
                question in a subsequent action between the same parties or
                their privies, whether the cause of action in the two actions
No. 15AP-1065                                                                         8


                be identical or different." Ft. Frye Teachers Assn.,
                OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d
                392, 395, 1998 Ohio 435, 692 N.E.2d 140. "While the merger
                and bar aspects of res judicata have the effect of precluding
                the relitigation of the same cause of action, the collateral
                estoppel aspect precludes the relitigation, in a second action,
                of an issue that had been actually and necessarily litigated
                and determined in a prior action that was based on a
                different cause of action." Id. Collateral estoppel "applies
                equally to administrative proceedings." State ex rel. v. Allen
                Refractories Co., 114 Ohio St.3d 129, 2007 Ohio 3758, 870
                N.E.2d 701, P 8.

                "Collateral estoppel applies when the fact or issue (1) was
                actually and directly litigated in the prior action, (2) was
                passed upon and determined by a court of competent
                jurisdiction, and (3) when the party against whom collateral
                estoppel is asserted was a party in privity with a party to the
                prior action." Thompson v. Wing (1994), 70 Ohio St.3d 176,
                183, 1994 Ohio 358, 637 N.E.2d 917; see also Goodson v.
                McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193,
                201, 2 OBR 732, 443 N.E.2d 978 ("an absolute due process
                prerequisite to the application of collateral estoppel is that
                the party asserting the preclusion must prove that the
                identical issue was actually litigated, directly determined,
                and essential to the judgment in the prior action").

Id. at 27-28.

       {¶ 30} Pertinent here is paragraph two of the syllabus of State ex rel. Baker
Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202 (1994):
                An employee who retires prior to becoming permanently and
                totally disabled is precluded from eligibility for permanent
                total disability compensation only if the retirement is
                voluntary and constitutes an abandonment of the entire job
                market.

       {¶ 31} Ohio Adm.Code 4121-3-34 sets forth the commission's rules regarding the
adjudication of PTD applications. Ohio Adm.Code 4121-3-34(D) sets forth the
commission's guidelines for the adjudication of PTD applications. Paragraph two of the
Baker syllabus is incorporated into the guidelines at Ohio Adm.Code 4121-3-34(D)(1)(d):
                If, after hearing, the adjudicator finds that the injured
                worker voluntarily removed himself or herself from the work
                force, the injured worker shall be found not to be
No. 15AP-1065                                                                            9


              permanently and totally disabled. If evidence of voluntary
              removal or retirement is brought into issue, the adjudicator
              shall consider evidence that is submitted of the injured
              worker's medical condition at or near the time of
              removal/retirement.

        {¶ 32} Also pertinent here is State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d
40, 2008-Ohio-5245, a seminal case that judicially expands the scenario for denial of TTD
compensation. The Pierron court states:
              Temporary total disability compensation is intended to
              compensate an injured worker for the loss of earnings
              incurred while the industrial injury heals. State ex rel.
              Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517
              N.E.2d 533. There can be no lost earnings, however, or even
              a potential for lost earnings, if the claimant is no longer part
              of the active work force. As Ashcraft observed, a claimant
              who leaves the labor market "no longer incurs a loss of
              earnings because he is no longer in a position to return to
              work." When the reason for this absence from the work force
              is unrelated to the industrial injury, temporary total
              disability compensation is foreclosed. State ex rel. Rockwell
              Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531
              N.E.2d 678. As we stated in State ex rel. Baker v. Indus.
              Comm. (2000), 89 Ohio St.3d 376, 380-381, 2000 Ohio 168,
              732 N.E.2d 355, when a claimant "chooses for reasons
              unrelated to his industrial injury not to return to any work
              when able to do so, that employee has abandoned both his
              employment and his eligibility for [temporary total
              disability]."

Id. at ¶ 9.

        {¶ 33} Following Pierron, it became clear that voluntary workforce abandonment
precludes both TTD and PTD compensation.
        {¶ 34} Here, in effect, relator seizes upon the Pierron doctrine to assert that the
bureau's failure to raise voluntary workforce abandonment in the two instances where the
bureau awarded TTD compensation is cause for the application of collateral estoppel.
Relator is incorrect.
        {¶ 35} The law regarding collateral estoppel as set forth in Davis indicates that
relator's argument misses the mark.
No. 15AP-1065                                                                         10


       {¶ 36} It is clear with respect to both instances of a bureau TTD award, workforce
abandonment was not actually and necessarily litigated and determined by the bureau nor
was a finding that relator had not voluntarily abandoned the workforce "essential to the
judgment" of the bureau.
       {¶ 37} In fact, the bureau's orders mailed January 25, 2011 and July 1, 2014, are
not adjudications because the bureau has no authority to adjudicate TTD compensation.
The bureau issued its orders awarding TTD compensation rather than referring the
matters to the commission for adjudication because TTD compensation was not disputed
by the employer or the bureau in this state-fund case. See State ex rel. Crabtree v. Ohio
Bur. of Workers' Comp., 71 Ohio St.3d 504 (1994). Given that analysis, it is clear that
collateral estoppel cannot apply.
       {¶ 38} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE


                              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).