Posted: June, 2003
Commission Properly Awarded Temporary Total to Claimant Who
Was Receiving Rental Income
State, ex rel. Am. Std., Inc. v. Boehler (5/16/03), 99 Ohio St.3d 39,
2003-Ohio-2457.Issue: Is being present at rental properties engaging in work activity? Is a C-84 which says the injured worker is not MMI (maximum medical improvement) and separately says he is a potential candidate for vocational rehabilitation ambiguous or contradictory?
Background: Boehler was receiving temporary total as the result of his injuries. The employer filed a motion requesting that temporary total be terminated. The employer claimed that Boehler was MMI and also claimed that Boehler was working.
The employer filed a variety of surveillance reports which it claimed demonstrated that Boehler was working at rental properties which he owned. The rental properties provided Boehler with about $1,700 per month in rent.
Boehler was present at the rental properties when other workers were renovating the properties. However, he denied physically participating in the renovations.
Boehler provided a C-84 from his treating doctor which indicated that his condition was not MMI. The treating doctor checked a box on the C-84 form which indicated that Boehler's condition had not reached a treatment plateau. On a separate part of the C-84, the treating doctor indicated that Boehler was a potential candidate for vocational rehabilitation if he received pain treatment.
The Commission denied the employer's motion to terminate temporary total. The Commission found, after examining the evidence, that Boehler's condition had not reached MMI. It also found that he was not engaged in work activity and was not engaged in self-employment by his activities in monitoring his rental properties.
The employer challenged the Commission's decision by filing a complaint for a writ of mandamus in the Court of Appeals. The Court of Appeals denied the writ and the employer appealed.
Decision: Supreme Court affirms (7-0).
The Supreme Court rejects the employer's claim that Boehler was engaged in work activities. The Court indicates that there are two situations where "work activities" bar temporary total: (1) where the claimant is engaged in physical activities which contradict the claim that the claimant cannot return to the former job, or (2) where the claimant is paid for working.
Neither of those situations apply in the present case. The first situation does not apply because the employer's own doctor had stated that the activities Boehler had engaged in were not inconsistent with the claim that he could not return to his former job.
The second situation does not apply because Boehler was not paid for working. The money he earned from the properties was rental income, not wages. It was paid as a result of the rental contract, not Boehler's work. Boehler's presence at the rental properties was irrelevant because the money was due whether or not he went there.
After finding that Boehler was not engaged in work activity, the Court went on to reject the employer's claim that Boehler was MMI.The employer claimed that the C-84 from the treating doctor did not support the Commission's finding that Boehler was not MMI because it was ambiguous or contradictory.
The Court rejected this claim, stating that there was nothing inconsistent about the treating doctor's responses on the C-84. The fact that the treating doctor indicated that vocational rehabilitation was a possibility in answer to one question on the C-84 form did not contradict the clear indication by the doctor that Boehler's condition had not reached MMI.
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