Temporary Total Not Barred By Non-Paying Activity

State ex rel. Parma Community Gen. Hosp. v. Jankowski (05/29/02), 95 Ohio St.3d 340, 2002-Ohio-2336:

Issue: Is an injured worker eligible for temporary total when she is engaged in some activities in the workplace but (1) she is not paid, and (2) the activities are not inconsistent with the claim that she is incapable of performing her prior work?

Background: Jankowski injured her right arm while working as a nurse. Her industrial claim was allowed and she was paid temporary total compensation.

The employer and the BWC investigated to see if she was working while receiving temporary total.

Both investigations found that Jankowski had answered phones and advised clients for Child Support Advocates. She was not paid for this activity.

The hospital filed a motion to terminate temporary total on the basis that Jankowski was working. The Commission denied the motion, finding that Jankowski had not performed any "work".

The hospital filed a mandamus complaint, which was denied by the Court of Appeals.

Decision: Supreme Court affirms (7-0).

Jankowski answered phones and assisted clients at Child Support Advocates while receiving temporary total. These activities were not inconsistent with her allegation that she was medically unable to return to her duties as a nurse and she did not receive any compensation for these activities.

Court finds that an injured worker's activities in a workplace environment do not preclude temporary total when the injured worker is not being paid and the duties are not medically inconsistent with the claim that the injured worker could not perform the work done when injured.

Court explains that the purpose of temporary total is to compensate an injured worker for loss of earnings while the injury heals. State ex rel. Ramirez v. Indus. Comm. determined that temporary total terminates when an injured worker returns to work, but did not define "work". State ex rel Nye v. Indus. Comm and State ex rel. Johnson v. Rawac Plating Co. imply that "work" involves compensation.

All the decisions discussed by the Court focus on the purpose of temporary total --which is to compensate for lost earnings. Court says that where there have been no wages paid to the injured worker the purpose of temporary total has not been compromised and payment of temporary total is proper.

Editor's Comment: At last, the Court recognizes that a person may be temporarily and totally disabled (unable to return to the work they were doing when injured) but still be able to engage in some activity.

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