Weeklong concurrent employment does not void entire TTD award
State ex rel. Goodwin v. Industrial Commission of Ohio, et al., No. 2008-2497 (Ohio 01/28/10).
Ruling: The Ohio Supreme Court affirmed the finding that an employee was entitled to an award of temporary total disability benefits during his postemployment period, minus a week that he worked.
What it means: In Ohio, TTD benefits cannot be paid for any period the employee is working. However, he may be entitled to retain previously paid TTD benefits for periods after the conflicting employment has ended as long as he has not materially misrepresented his work status or committed fraud.
Summary: A real estate employee injured his back and received TTD benefits. The Ohio Industrial Commission learned that he had worked for one week at the YMCA while he was receiving benefits. It vacated all 18 months of compensation that followed that employment, and declared fraud and overpayment. The employee argued he was entitled to TTD benefits when he was not working and that the unrefuted medical evidence corroborated his physical inability to return to his former job. The Ohio Supreme Court affirmed the Court of Appeals' ruling that the TTD award should be reinstated minus the amount the employee received from the YMCA.
The employee did not contest his ineligibility for TTD during the week that he worked, court noted. The commission asserted that his benefits should be vacated because the wrong "last date worked" appeared on the employee's medical records, and this was evidence he materially misrepresented his work status. The court noted that the misstatement may have been material for a period of time, but the further removed the claimed disability period was from the week of YMCA employment, the less effect it had on TTD eligibility.
The court explained that the misstatement lost significance after he ceased working at the YMCA because a doctor's certification of TTD was based on the most recent medical examination. "Whether [he] last worked in 2004 or 2005 should have no bearing, for example, on the findings elicited from a 2006 medical evaluation," the court said.
The court also noted that although it did not condone the contemporaneous receipt of wages and TTD benefits, the employee worked a total of 33 hours for minimal pay and then stopped working because his condition prevented him from performing his tasks. He also immediately reported his attempt at employment to his rehabilitation counselor, the court noted.
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March 8, 2010
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