Temporary Total Eligibility Maintained where Injured Worker Returns to Work at a Different Job

Temporary Total Eligibility Maintained where Injured Worker Returns to Work at a Different Job

Posted: September, 2000

State, ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376.

Note: The Ohio Supreme Court initially ruled that Baker lost eligibility for temporary total because he had abandoned his position of employment with his employer by accepting new employment. Baker had quit his job with the employer of injury and worked for a different employer when his condition worsened and he became unable to work.

The Court granted a motion for rehearing; heard oral argument and, on reconsideration issued a different ruling, permitting payment of temporary total.

Issue: Has an injured worker abandoned his employment and forfeited temporary total eligibility when he leaves the job he was performing when injured for a different job?

Background: Baker’s claim was allowed for a lateral tear meniscus, left knee. He worked as a general laborer. He had arthroscopic surgery on January 9, 1990 and May 4, 1990 and received paid temporary total from January 9, 1990 to July 15, 1990, when he was released to return to full time work, restricted to light duty.

On July 16, 1990, he signed a termination notice stating that he had accepted other employment. He went to work as a truck mechanic for a different employer. On September 24, 1990, he stopped working at his new employer due to his original injury.

Baker requested temporary total starting September 24, 1990. The Commission denied temporary total because he had voluntarily abandoned his position of employment with Stahl-Wooster. Baker filed a mandamus suit in the Court of Appeals and that court denied mandamus.

Decision: On reconsideration, the Ohio Supreme Court decided that Baker can receive temporary total.

Baker’s decision to work for a new employer did not remove his eligibility for temporary total benefits. The Court notes that R.C. 4123.56 ties eligibility for temporary total to the worker’s capacity to return to his former position of employment. The “former position of employment” standard provides a “threshold physical measurement of whether an injured worker” can do the job they did when injured. However,

[a] worker’s physical capabilities are unrelated to whether the worker is actually working at his former position of employment and whether the former position is even available for the injured worker to return to after he is medically released.

Eligibility for temporary total is determined by the worker’s ability to do the work required by the former position of employment.

The Court contrasts this case with Jones & Laughlin, 29 Ohio App.3d 145 (employee voluntarily retires and then files for temporary total) because the injured worker in Jones & Laughlin had voluntarily abandoned the work force. The purpose of temporary total is to compensate for loss of income; therefore, by voluntarily retiring the worker would no longer have a loss of income.

Editor’s Comment: The Jones & Laughlin case started this whole voluntary abandonment approach to denying temporary total. Baker II makes the first inroad into this method of precluding temporary total.

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