Is Temporary Total Barred When Injured Worker Left Job?
State, ex rel. Baker v. Industrial Commission
Note: The Supreme Court issued a decision which holds that an injured worker remains eligible for temporary total after leaving the job they did when injured to work at a different job.
On May 9, 2000, the Ohio Supreme Court heard oral arguments on reconsideration in State ex. rel. Baker v. Indus. Comm.
This case involves an injured worker who had quit his job of injury for reasons unrelated to the injury. He worked for another employer and then needed surgery due to his industrial injury.
The Commission denied temporary total because Baker no longer worked for the employer of injury. The case deals with the issue of whether injured workers who are not working for the same employer remain eligible for temporary total when the injury again causes disability.
Baker argued that he should remain eligible to receive temporary total. It is unfair to penalize someone who goes to work for a different employer. A person temporarily disabled from employment should get temporary total even if no longer working for the same employer.
The Industrial Commission argued that case law supports the concept that one who no longer works for the same employer has abandoned their job and loses temporary total eligibility. The Industrial Commission argued that non-working wage loss is the appropriate remedy.
On reply, Baker argued that he is not eligible for non-working wage loss because non-working wage loss requires a good faith job search. An injured worker cannot conduct a good faith job search when he is disabled from working.
Keep reading below to see some paraphrased questions from the oral argument.
Questions asked of Baker:
- Is the distinction that this is a case where Baker continued working although for a different employer made in the original briefs?
- Did he assume a similar job with the second employer?
- In the event a worker was discharged based on his workers’ compensation claim, would there be a cause of action?
- What is purpose of temporary total disability?
- Does temporary total disability have limited use?
- Did Baker seek temporary total from the second employer?
- Should the second employer have to pay temporary total?
- So the outcome would be a non-covered injury?
Questions asked of the Industrial Commission and Employer:
- Is there any factual dispute as to whether the second time off is traceable to the injury?
- Is the amount for non-working wage loss the same as the amount for temporary total?
- What is the difference between wage loss and temporary total?
- Does the original employer pay the wage loss?
- So if person gets hurt and is off on temporary total and then changes job and the injury flares up, can he get temporary total?
- Would he get the same amount under wage loss as under temporary total?
- Would the first employer be responsible for paying?
- Did Baker ever request wage loss?
- Was the Cobb case a voluntary abandonment or did the employer fire him?
- This is an old law and now people are moving around more. If the statute doesn’t prevent us from doing this, how do we violate the purpose of temporary total by adopting Baker’s position?
- Isn’t the question of whether an injured worker can return to a former position a medical question?
- So when a person is temporary total for a second time, the worker should apply for wage loss against first employer?
Questions asked of Baker on rebuttal:
- Does wage loss statute require looking for jobs?
- So if Baker applied for wage loss, he would be denied?
- In fact, we’ve decided cases saying need a good faith job search for wage loss, right?
- Weren’t we just following the second prong of Jones and Laughlin?
- What if the person quits his job and starts his own business?