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State ex rel Monroe v. Industrial Commission of Ohio9/29/2005
judicata. * * * The District Hearing Officer finds that the Staff Hearing Officer, on 07/31/2003, found that the injured worker voluntarily abandoned his employment in July, 2002. As a result, temporary total disability compensation for the period 03/04/2004 through 06/03/2004 and continuing, is not payable-in other words, the decision has already been made. Due to the voluntary abandonment finding, this Hearing Officer cannot now award temporary total disability compensation.
{ } 18. Relator administratively appealed the DHO order of July 1, 2004.
{ } 19. Following an August 27, 2004 hearing, an SHO issued an order stating:
The order of the District Hearing Officer, from the hearing dated 07/01/20004, is modified to the following extent. Therefore, the C-84 filed 05/10/2004, is denied as being res judicata having been already been determined, by Staff Hearing Officer order of 07/31/2003, that a voluntary abandonment of employment has occurred herein. The balance of the District Hearing Officer order of 07/01/2004 is affirmed in its entirety and incorporated herein, as if fully rewritten.
(Emphasis sic.)
{ } 20. On September 22, 2004, another SHO mailed an order refusing relator's administrative appeal from the SHO order of August 27, 2004.
{ } 21. On November 4, 2004, relator, Clarence R. Monroe, filed this mandamus action.
Conclusions of Law
{ } It is the magistrate's decision that this court issue a writ of mandamus, as more fully explained below.
{ } It is well-settled that a voluntary abandonment of the former position of employment can bar TTD compensation. However, an injury-induced abandonment is never considered to be voluntary. State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44.
{ } It is also well-settled that the claimant does not have a burden of disproving a voluntary abandonment of the former position of employment in order to show entitlement to TTD compensation. State ex rel. Superior's Brand Meats, Inc. v. Indus. Comm. (1997), 78 Ohio St.3d 409. The burden of proof with respect to voluntary abandonment falls upon the employer or the administrator. Id.
{ } The claimant's burden is to persuade the commission that there is a proximate causal relationship between his work-related injuries and disability and to produce medical evidence to this effect. State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 83. It is the employer's burden to raise and produce evidence on its claim that other circumstances independent of the allowed conditions caused the claimant to abandon the job market. Id. at 84.
{ } Analysis begins with the observation that there is no evidence in the record showing that the employer or the administrator ever raised a claim that relator voluntarily abandoned his employment at Sears. Counsel for Sears was questioned by the magistrate on this point at oral argument. There is clearly no contention here that Sears ever claimed administratively that relator voluntarily abandoned his employment at Sears.
{ } Apparently, the voluntary abandonment issue was raised sua sponte by the SHO at the July 31, 2003 hearing. The DHO does not address a voluntary abandonment issue. While it is not necessarily improper for the hearing officer to inquire regarding the possibility of a voluntary abandonment and to render a finding in this regard, knowing that the employer did not raise a voluntary abandonment claim explains why no employment records were submitted by the employer, as the SHO noted in his order.
{ } The SHO heavily relied upon relator's hearing testimony which w
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