
    [The State ex rel.] Jones, Appellee, v. Preferred, Inc., Appellant, et al.
    [Cite as State ex rel. Jones v. Preferred, Inc. (2000), 88 Ohio St.3d 420.]
    (No. 98-2074
    Submitted February 8, 2000
    Decided May 17, 2000.)
    
      
      Ross,' Brittain & Schonberg Co., L.P.A., and David P. Pavlik, for appellant.
   Per Curiam.

The court of appeals found that the commission had abused its discretion by denying TTD based solely on the February 27, 1996 DHO finding that Jones had voluntarily abandoned his job. That court considered the SHO’s finding on appeal — that Jones had not voluntarily left his job — a reversal of the DHO order. The court reasoned that since Jones withdrew his appeal on account of having received unemployment compensation, he had not meant to completely withdraw his appeal and had instead intended only to withdraw his appeal for the period of denied TTD.

We agree. As the court of appeals’ magistrate explained:

“[T]he March 25, 1997 [DHO’s] order denying TTD from August 16, 1996 forward was based solely on the prior February 27, 1996 [DHO’s] order finding that [Jones] had voluntarily abandoned his employment, thereby precluding any further receipt of TTD * * * beyond the October 6, 1995 abandonment. The February 27, 1996 [DHO’s] order, however, was modified by the May 2, 1996 [SHO’s order], the latter overturning that portion of the [DHO’s] finding that [Jones] violated the employer’s absenteeism/tardiness policy resulting in a ‘voluntary’ termination of employment by [Jones].

“Although [Jones] withdrew his appeal at the * * * [SHO] level, it is significant that the basis for his withdrawal, as stated in the [SHO’s] order, was that he had ‘received unemployment compensation for the same period.’ This choice of language by the [SHO] suggests that the appeal withdrawal related only to the period of time during which [Jones] received unemployment benefits.

“However, the issue as to his entitlement to future TTD * * * was not part of that withdrawal. Such entitlement was a separate issue which depended upon whether his termination from employment was ‘voluntary’ within the principles set forth in Louisiana-Pacific Corp., ie., whether he had violated a written work rule or policy of the employer. This separate issue was decided by the [SHO] in [Jones’s] favor based upon a finding that [he] made a report of his injury sufficient to apprise the employer of the incident. Upon modification of the [DHO] order by the [SHO], the previous finding of voluntary abandonment was reversed. Thus, the second [DHO] could not rely upon the reversed [DHO] order to deny future TTD * * * at the March 25, 1997 hearing.

“Given that the denial of [Jones’s] request for TTD * * * was erroneously based on an overturned [DHO] finding of voluntary abandonment, the commission’s denial of [Jones’s] requested TTD * * * constitutes an abuse of discretion.”

Accordingly, the court of appeals’ judgment granting a writ of mandamus is affirmed. The commission’s order denying Jones TTD is vacated, and this cause is returned for the commission to enter a new order granting or denying the requested benefits.

Judgment affirmed.

Douglas, Resnick, F.E. Sweeney; Pfeifer and Lundberg Stratton, JJ., concur.

Moyer, C.J., and Cook, J., dissent.

Cook, J.,

dissenting. I respectfully dissent. As Preferred argues, the court of appeals’ rationale regarding Jones’s intent for withdrawing his appeal was conjecture and, in effect, beside the point. Whatever Jones’s reason for withdrawing his appeal, the fact remains that his appeal was dismissed. The SHO’s finding that Jones had not voluntarily abandoned his job, therefore, is nothing more than an observation. It is dictum and without legal effect because the SHO no longer had jurisdiction to make that determination. In contrast, the February 27, 1996 DHO’s order is res judicata as to the issue of whether Jones’s 1995 back injury caused his inability to return to work. See State ex rel. Bingham v. Riley (1966), 6 Ohio St.2d 263, 35 O.O.2d 424, 217 N.E.2d 874 (An unappealed administrative order is res judicata.).

Concededly, the withdrawal of his appeal has had consequences that Jones presumably never intended. Even so, the dismissal of his appeal from the commission’s jurisdiction precluded that agency and its representatives from further action on it. Accordingly, I would reverse and hold that the commission did not abuse its discretion in denying Jones’s second TTD request for the same injury.

Moyer, C.J., concurs in the foregoing dissenting opinion.  