Posted: December, 2003
Part-time Work Reestablishes Temporary Total Eligibility
State, ex rel. Hassan v. Marsh Bldg. Products (11/26/03), 100 Ohio
St.3d 300, 2003-Ohio-6022.Issue: Does an injured worker who voluntarily abandons his employment regain temporary total eligibility when he engages in part-time work?
Background: Shortly after he was injured, Hassan left his employer of injury. About seven weeks later, he was placed by a temporary agency with another job. He worked at that job for three weeks. He worked for eight hours the first week, nineteen and a half hours the second week, and twenty-four hours the third week. After the third week, he could not continue working the new job due to the effects of his industrial injury.
Subsequently, Hassan had an additional condition allowed and surgery was recommended. Hassan filed for temporary total. His application was supported by two C-84s signed by his treating doctor.
The Commission denied temporary total on the basis that he had voluntarily abandoned his employment. Hassan filed a mandamus challenge to this decision in the Court of Appeals.
While Hassan's mandamus action was pending in the Court of Appeals, the Supreme Court decided State ex rel. McCoy v. Dedicated Transport, Inc. (2002), 97 Ohio St.3d 25, 2002-Ohio-5305. McCoy held that an injured worker remains eligible for temporary total after they voluntarily abandon their employment of injury if their allowed condition causes them to be temporary total after they had re-entered the work force.
That Court of Appeals granted a limited writ based on McCoy. The Commission and employer appealed.
Decision: Supreme Court affirms.
The Commission and employer raised three arguments on their appeal. First, they claimed that the C-84s do not support temporary total; second, they claimed that Hassan can not receive temporary total because his medical problems began before he took the job with the temporary agency; third, they claim that McCoy Dedicated Transport does not apply because Hassan worked less than full time in his attempt to return to work.
The Court rejects all three of these arguments.
First, the Court holds that the issue of whether the C-84s support temporary total is premature. It indicates that the Commission is responsible for evaluating evidence. In this case, because it ruled that temporary total was barred by the abandonment doctrine, the Commission never evaluated the evidence. The Court finds that the Commission should make the first evaluation of the evidence.
On the second issue, the Court rejects the claim made by the employer and Commission that there has to be a specific incident on the second job which has aggravated the original injury in order for an injured worker to regain temporary total eligibility. There is no such requirement in McCoy; nor is there such a requirement in State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376.
Finally, the Court rules that part-time work is sufficient to reestablish temporary total eligibility. The Court points out that an injured worker who engages in any work, including part-time work, would be denied temporary total; therefore it finds that an injured worker who engages in any work after abandoning their employment, including part-time work, regains eligibility for temporary total.
Editor’s Comment: The "voluntary abandonment" doctrine is based on the idea that the reason an injured worker who has "abandoned" the job market is suffering any loss of earnings is not due to the injury. Rather, the loss of earnings is attributed to a decision not to work.
Therefore, an injured worker who has returned to the work market in whatever capacity should regain eligibility for temporary total. This concept should apply whether the individual has returned to full-time work, part-time work, or even if an individual is looking for work but has not yet found any.
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