McGrath, Judge.
{¶ 1} In this original action, relator, Willie W. Smith Sr., requests a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order that denied relator’s request for temporary total disability (“TTD”) compensation on the basis that relator had been discharged from his employment and order the commission to find that he is entitled to that compensation.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate examined the evidence and issued a decision, including findings of fact and conclusions of law, recommending that this court grant the requested writ of mandamus. (Attached as an appendix.) Respondent Yellow Freight Systems, Inc. (“employer”) filed objections to the magistrate’s decision, raising the following as error:
[1] This Court improperly relied upon evidence that was not available at the time of the industrial commission hearings.
[2] This Court also improperly relied upon the Ohio Supreme Court’s decision in
Pretty Products v. Industrial Commission,
77 Ohio St.3d 5, 670 N.E.2d 466.
{¶ 3} Relator filed a partial objection to the magistrate’s decision, as follows:
Relator Willie W. Smith agrees with the findings of fact and conclusions of law set forth within the magistrate’s decision rendered January 31, 2006, except to the extent that the decision does not recommend an award of costs and attorney fees in favor of relator Smith.
{¶ 4} The magistrate made detailed findings of fact, and we adopt those findings as our own. Nonetheless, a brief recitation of the relevant facts is necessary for our analysis. While employed as a truck driver for respondent Yellow Freight, relator was injured on August 2, 2002, when he fell asleep while driving his truck and hit another vehicle. Five days after the accident, respondent Yellow Freight terminated relator’s employment. Thereafter, on November 21, 2002, relator moved for TTD compensation. The staff hearing officer (“SHO”) affirmed the denial by the district hearing officer (“DHO”) of TTD compensation and explained that because of a violation of a work rule that relator knew or should have known would lead to termination, relator was deemed to have voluntarily abandoned his position of employment and thus was not entitled to TTD compensation.
{¶ 5} In her conclusions of law, the magistrate correctly set out the standards that we must use to determine whether to issue a writ in this case, and we also adopt those conclusions as our own.
{¶ 6} In the first objection, respondent asserts that the magistrate improperly relied on evidence that was not available at the time of the commission’s hearings.
We find no merit to this objection. The magistrate included in her findings of fact that as a result of a hearing held on September 26, 2003, relator’s termination was reduced to a suspension. We agree with respondent Yellow Freight that this is not relevant to the instant matter because it occurred after the conclusion of the commission’s hearings. Nonetheless, there is no indication in the magistrate’s decision that there was any reliance on this change. Therefore, respondent Yellow Freight’s first objection is overruled.
{¶ 7} In the second objection, respondent contends that the magistrate improperly relied on the Supreme Court of Ohio’s decision in
Pretty Prods. v. Indus. Comm.
(1996), 77 Ohio St.3d 5, 670 N.E.2d 466, in recommending that this court grant the requested writ of mandamus. We agree.
{¶ 8} Here, the magistrate’s recommendation to grant the writ is based upon
Pretty Products
and this court’s application of
Pretty Products
in
State ex rel. Gross v. Ind. Comm. of Ohio,
Franklin App. No. 04AP-756, 2005-Ohio-3936, 2005 WL 1806457. We find, however, that
Gross
is not applicable to the instant matter, as it is factually distinguishable. Further, as will be explained, we find that to apply
Pretty Products
to the case before us would extend its doctrine to an illogical end.
{¶ 9} It is well established that a voluntary departure from employment generally bars TTD compensation, and an involuntary departure does not. It is equally well established that a discharge from employment may be “voluntary” in some circumstances.
State ex rel. Watts v. Schottenstein Stores Corp.
(1993), 68 Ohio St.3d 118, 623 N.E.2d 1202. In
State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.
(1995), 72 Ohio St.3d 401, 650 N.E.2d 469, the Supreme Court of Ohio stated that when a worker has been discharged for violating a rule, the commission may conclude that the discharge constituted a voluntary relinquishment of employment if (1) the employer’s rule or policy defined the prohibited conduct clearly in writing, (2) the rule or policy identified the violation as a dischargeable offense, and (3) the worker knew, or should have known, both the rule and the consequences of violating the rule or policy. Where a claimant has voluntarily relinquished his or her job, either by resigning or by abandoning it under
Louisiana-Pacific,
the claimant is deemed to have accepted the consequence of being without wages for a period of time and is not eligible to receive TTD compensation. See, e.g.,
State ex rel. McKnabb v. Indus. Comm.
(2001), 92 Ohio St.3d 559, 752 N.E.2d 254.
{¶ 10} The Supreme Court has cautioned, “a postinjury firing must be carefully scrutinized.” Id. at 562, 752 N.E.2d 254. Cf.
State ex rel. Daniels v. Indus. Comm.,
99 Ohio St.3d 282, 2003-Ohio-3626, 791 N.E.2d 440. The court also has emphasized the “great potential for abuse in allowing a simple allegation
of misconduct to preclude temporary total disability compensation. We therefore find it imperative to carefully examine the totality of the circumstances when such a situation exists.”
State ex rel. Smith v. Superior’s Brand Meats, Inc.
(1996), 76 Ohio St.3d 408, 411, 667 N.E.2d 1217.
{¶ 11} In
Pretty Products,
the issue was whether the claimant voluntarily abandoned her employment in failing to abide by the employer’s work rules that required submission of an excuse slip for absences. The Supreme Court of Ohio, being unable to determine the commission’s reasoning for granting TTD, ordered the commission to consider the matter further.
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McGrath, Judge.
{¶ 1} In this original action, relator, Willie W. Smith Sr., requests a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order that denied relator’s request for temporary total disability (“TTD”) compensation on the basis that relator had been discharged from his employment and order the commission to find that he is entitled to that compensation.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate examined the evidence and issued a decision, including findings of fact and conclusions of law, recommending that this court grant the requested writ of mandamus. (Attached as an appendix.) Respondent Yellow Freight Systems, Inc. (“employer”) filed objections to the magistrate’s decision, raising the following as error:
[1] This Court improperly relied upon evidence that was not available at the time of the industrial commission hearings.
[2] This Court also improperly relied upon the Ohio Supreme Court’s decision in
Pretty Products v. Industrial Commission,
77 Ohio St.3d 5, 670 N.E.2d 466.
{¶ 3} Relator filed a partial objection to the magistrate’s decision, as follows:
Relator Willie W. Smith agrees with the findings of fact and conclusions of law set forth within the magistrate’s decision rendered January 31, 2006, except to the extent that the decision does not recommend an award of costs and attorney fees in favor of relator Smith.
{¶ 4} The magistrate made detailed findings of fact, and we adopt those findings as our own. Nonetheless, a brief recitation of the relevant facts is necessary for our analysis. While employed as a truck driver for respondent Yellow Freight, relator was injured on August 2, 2002, when he fell asleep while driving his truck and hit another vehicle. Five days after the accident, respondent Yellow Freight terminated relator’s employment. Thereafter, on November 21, 2002, relator moved for TTD compensation. The staff hearing officer (“SHO”) affirmed the denial by the district hearing officer (“DHO”) of TTD compensation and explained that because of a violation of a work rule that relator knew or should have known would lead to termination, relator was deemed to have voluntarily abandoned his position of employment and thus was not entitled to TTD compensation.
{¶ 5} In her conclusions of law, the magistrate correctly set out the standards that we must use to determine whether to issue a writ in this case, and we also adopt those conclusions as our own.
{¶ 6} In the first objection, respondent asserts that the magistrate improperly relied on evidence that was not available at the time of the commission’s hearings.
We find no merit to this objection. The magistrate included in her findings of fact that as a result of a hearing held on September 26, 2003, relator’s termination was reduced to a suspension. We agree with respondent Yellow Freight that this is not relevant to the instant matter because it occurred after the conclusion of the commission’s hearings. Nonetheless, there is no indication in the magistrate’s decision that there was any reliance on this change. Therefore, respondent Yellow Freight’s first objection is overruled.
{¶ 7} In the second objection, respondent contends that the magistrate improperly relied on the Supreme Court of Ohio’s decision in
Pretty Prods. v. Indus. Comm.
(1996), 77 Ohio St.3d 5, 670 N.E.2d 466, in recommending that this court grant the requested writ of mandamus. We agree.
{¶ 8} Here, the magistrate’s recommendation to grant the writ is based upon
Pretty Products
and this court’s application of
Pretty Products
in
State ex rel. Gross v. Ind. Comm. of Ohio,
Franklin App. No. 04AP-756, 2005-Ohio-3936, 2005 WL 1806457. We find, however, that
Gross
is not applicable to the instant matter, as it is factually distinguishable. Further, as will be explained, we find that to apply
Pretty Products
to the case before us would extend its doctrine to an illogical end.
{¶ 9} It is well established that a voluntary departure from employment generally bars TTD compensation, and an involuntary departure does not. It is equally well established that a discharge from employment may be “voluntary” in some circumstances.
State ex rel. Watts v. Schottenstein Stores Corp.
(1993), 68 Ohio St.3d 118, 623 N.E.2d 1202. In
State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.
(1995), 72 Ohio St.3d 401, 650 N.E.2d 469, the Supreme Court of Ohio stated that when a worker has been discharged for violating a rule, the commission may conclude that the discharge constituted a voluntary relinquishment of employment if (1) the employer’s rule or policy defined the prohibited conduct clearly in writing, (2) the rule or policy identified the violation as a dischargeable offense, and (3) the worker knew, or should have known, both the rule and the consequences of violating the rule or policy. Where a claimant has voluntarily relinquished his or her job, either by resigning or by abandoning it under
Louisiana-Pacific,
the claimant is deemed to have accepted the consequence of being without wages for a period of time and is not eligible to receive TTD compensation. See, e.g.,
State ex rel. McKnabb v. Indus. Comm.
(2001), 92 Ohio St.3d 559, 752 N.E.2d 254.
{¶ 10} The Supreme Court has cautioned, “a postinjury firing must be carefully scrutinized.” Id. at 562, 752 N.E.2d 254. Cf.
State ex rel. Daniels v. Indus. Comm.,
99 Ohio St.3d 282, 2003-Ohio-3626, 791 N.E.2d 440. The court also has emphasized the “great potential for abuse in allowing a simple allegation
of misconduct to preclude temporary total disability compensation. We therefore find it imperative to carefully examine the totality of the circumstances when such a situation exists.”
State ex rel. Smith v. Superior’s Brand Meats, Inc.
(1996), 76 Ohio St.3d 408, 411, 667 N.E.2d 1217.
{¶ 11} In
Pretty Products,
the issue was whether the claimant voluntarily abandoned her employment in failing to abide by the employer’s work rules that required submission of an excuse slip for absences. The Supreme Court of Ohio, being unable to determine the commission’s reasoning for granting TTD, ordered the commission to consider the matter further. Essentially, it was not possible for the court to determine whether the claimant’s discharge was due to a violation of a work rule or was due to the claimant’s injury itself, which would render the termination an involuntary abandonment of her employment.
{¶ 12} The key distinction in
Pretty Products,
however, was that the claimant had been receiving TTD compensation prior to the forbidden conduct of having unexcused absences from work. The last of the medical slips certified that the claimant could return to work on March 1, 1991. The claimant neither returned to work on March 1, 1991, nor produced an excuse slip that extended her disability. Consequently, she was terminated from her employment. The court explained that unlike the factual scenario in
Louisiana-Pacific,
in which the court found that there was “no evidence that the claimant’s absences were due to industrial injury,” in
Pretty Products
there was. In other words, in
Pretty Products,
the forbidden conduct, i.e., the unexcused absences, were possibly related to the injury for which the claimant had been receiving TTD compensation. In the case sub judice, the forbidden conduct, i.e., falling asleep while driving, though related in the sense that it caused relator’s injury, was not due to an injury for which relator had been receiving TTD compensation.
{¶ 13} In
Gross,
this court applied
Pretty Products
and made an explicit finding that based on the evidence before it, the employer had fired the claimant “for his actions
because they caused injury.”
(Emphasis sic.)
Gross,
2005-Ohio-3936, 2005 WL 1806457, at ¶ 11. That is not the circumstance before us. Rather, relator’s termination letter states:
[I]n accordance with Article 46 Over-the-Road Supplement Agreement of the National Master Freight Agreement and the Ohio Rider, you are hereby discharged from Yellow Transportation, Inc.
This discharge is based on your accident of August 2, 2002.
{¶ 14} The application of
Pretty Products
and
Gross
to this matter would lead to anomalous results because if relator had not suffered injury but still had an accident caused by reckless conduct, his termination would be deemed a voluntary departure from his employment, but since he was injured, his termi
nation becomes an involuntary departure. There is no evidence that relator was terminated because of his injuries. The only relation between the injury and the violation is that the latter caused the injury. We find that to apply
Pretty Products
to such cases would emasculate its intended purpose and allow a determination of involuntary departure in circumstances beyond what the Supreme Court of Ohio contemplated. We refuse to further extend the doctrine of
Pretty Products
so as to lead to an illogical result. Accordingly, we sustain respondent’s second objection.
{¶ 15} Relator contends in his objection that the magistrate erred in failing to recommend an award of costs and attorney fees in his favor pursuant to R.C. 2335.39. However, given our disposition of respondent Yellow Freight’s second objection, there is clearly no basis for an award of costs and attorney fees, and relator’s objection is hereby overruled as moot.
{¶ 16} For the foregoing reasons, we overrule relator’s single objection and overrule respondent Yellow Freight’s first objection. We sustain respondent’s second objection to the magistrate’s decision and, accordingly, deny the requested writ of mandamus.
Writ denied.
Petree, J., concurs.
French, J., concurs in part and dissents in part.