Wage Loss Denied for Self-Employed Worker

Wage Loss Denied for Self-Employed Worker

Posted: February, 1999

State, ex rel. Ooten v. Siegel Interior Specialists Co. (12/30/98), 84 Ohio St.3d 255.

Issue: Can an injured worker receive wage loss after returning to self-employed work?

Background: Ooten was released to perform “light/regular work.” The release did not distinguish between light and regular work. However, other medical evidence restricted Ooten from lifting over twenty-five pounds and limited prolonged sitting, standing, crouching and balancing.

Ooten returned to work as a carpenter May 19, 1992, but was terminated because he could not do heavy work. He found and started another job with a different carpentry company on May 21, 1992, but continued to be in pain.

His doctor recommended he change his occupation to avoid any further injury. Ooten decided to start his own business, Ooten Interior Systems.

On July 23, 1993, he moved for wage loss compensation. The Commission denied wage loss on the basis of insufficient evidence and because Ooten had not submitted credible evidence that he decided to become self-employed, instead of performing a good faith job search, due to medical restrictions resulting from his injury. Ooten filed for a mandamus and the Court of Appeals denied mandamus.

Decision: Supreme Court affirms denial.

The issue involved whether the Commission abused its discretion in finding insufficient evidence of actual wage loss and finding no causal relationship.

While not universally required, causal relationship is often satisfied by evidence of an unsuccessful job search. The reason is to ensure that the claimant’s job choice was motivated by the injury-induced unavailability of other work and was not a lifestyle choice. The Commission in this case reasoned that Ooten had not put himself into the labor market long enough to establish that his industrial injury prevented him from other employment at his pre-injury rate.

Editor’s Comment: The Commission did not cite a personal decision as the reason for its denial. If it is clear that he can’t do his previous work, why does he have to go through a job search? The wage loss statute was designed to encourage people to get back to work.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.