Temporary Total Not Barred By Non-Paying Activity

Temporary Total Not Barred By Non-Paying Activity

Posted: June, 2002

State ex rel. Parma Community Gen. Hosp. v. Jankowski (05/29/02), 95 Ohio St.3d 340, 2002-Ohio-2336.

Issue: Does an injured worker remain eligible for temporary total when engaged in some activities in the workplace but (1) the worker does not receive payment for the activities, and (2) the activities are not inconsistent with the claim that the injured worker cannot perform their prior work?

Background: Jankowski injured her right arm while working as a nurse. Her industrial claim was allowed and she received temporary total compensation.

The employer and the BWC investigated to see if she worked while receiving temporary total.

Both investigations found that Jankowski had answered phones and advised clients for Child Support Advocates. She was not paid for this activity.

The hospital filed a motion to terminate temporary total on the basis that Jankowski worked. The Commission denied the motion, finding that Jankowski had not performed any “work”.

The hospital filed a mandamus complaint, which the Court of Appeals denied.

Decision: Supreme Court affirms (7-0).

Jankowski answered phones and assisted clients at Child Support Advocates while receiving temporary total. These activities were not inconsistent with her allegation that her condition medically prevented her from returning to her duties as a nurse and she did not receive any compensation for these activities.

Court finds that an injured worker’s activities in a workplace environment do not preclude temporary total when the injured worker is not being paid and the duties are not medically inconsistent with the claim that the injured worker could not perform the work done when injured.

Court explains that the purpose of temporary total is to compensate an injured worker for loss of earnings while the injury heals. State ex rel. Ramirez v. Indus. Comm. determined that temporary total terminates when an injured worker returns to work, but did not define “work”. State ex rel Nye v. Indus. Comm. and State ex rel. Johnson v. Rawac Plating Co. imply that “work” involves compensation.

All the decisions discussed by the Court focus on the purpose of temporary total — to compensate for lost earnings. Court says that where there have been no wages paid to the injured worker the purpose of temporary total has not been compromised and payment of temporary total is proper.

Editor’s Comment: The Court recognizes that a person may be temporarily and totally disabled (unable to return to the work they did when injured) but still able to engage in some activity.

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