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State ex rel Monroe v. Industrial Commission of Ohio9/29/2005
or gave two reasons for retiring-his knee problems and that he felt that it was time to retire. According to respondents, the second of the two reasons, that he felt that it was time to retire, is the some evidence supporting a voluntary retirement. Respondents' argument is not persuasive.
{ } To begin, the SHO's paraphrasing of relator's testimony creates an ambiguity as to its meaning. Did relator feel it was time to retire because of his injury or simply because of his advanced age? The SHO's order leaves the answer to pure speculation. The SHO's paraphrasing of relator's hearing testimony does not provide the some evidence to support a voluntary retirement.
{ } Based upon the above analysis, this magistrate concludes that the commission abused its discretion by finding a voluntary abandonment of employment.
{ } Because the July 31, 2003 SHO order constitutes an abuse of discretion to the extent that a voluntary abandonment is found, the SHO order of August 27, 2004 that denied a further request for TTD compensation on res judicata grounds, also constitutes an abuse of discretion.
{ } Accordingly, for all the above reasons, it is the magistrate's decision that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its orders to the extent they find a voluntary abandonment of employment or render a finding of res judicata based upon a prior finding of voluntary abandonment of employment, and to enter amended orders that adjudicate relator's requests for TTD compensation based upon the merits of the medical evidence submitted.
KENNETH W. MACKE MAGISTRATE
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