Injured Worker Entitled to Working Wage Loss
State, ex rel. Timken Co. v. Kovach (3/16/03), 99 Ohio St.3d 21, 2003-Ohio-2450.
Issue: Does a self-insured employer waive wage loss requirements if it previously paid wage loss in a claim without those requirements being met? Must an injured worker conduct a job search while receiving working wage loss?
Background: Kovach was injured and received temporary total until July 15, 1996, when he returned to work for the employer at a lower-paying job as a janitor, which was within his medical limitations. The self-insured employer paid wage loss compensation.
He left that position on November 1, 1998, because of restrictions in the Collective Bargaining Agreement. The self-insured employer restarted temporary total.
On August 12, 1999, the self-insured employer orally offered Kovach a higher paying job. However, the job required physical abilities which exceeded his medical limitations. Kovach refused the job and was again assigned to lower-paying work as a janitor. The self-insured employer refused to restart wage loss compensation.
The Commission awarded wage loss compensation. The self-insurer filed a writ of mandamus in the Court of Appeals, challenging the award of wage loss compensation. The Court of Appeals denied the writ and the self-insurer appealed.
Decision: Supreme Court affirms (6-1).
The self-insurer made a number of arguments in support of its claim that Kovach was not entitled to wage loss.
First, the self-insurer claimed that Kovach was not entitled to wage loss because he had not made a good faith job search.
The Supreme Court rejects this argument. It notes that wage loss is only for two hundred weeks and that an injured worker is not always required to seek the highest paying job if other legitimate reasons for accepting a job exist.
The Court recognizes that Kovach had previously worked for the self-insurer. As a result, he had time towards a pension, as well as possible entitlement to additional vacation or personal days. Because these benefits outweigh a higher-paying job with another company, the Court finds that he was not required to perform a job search.
Next, the Court considers the self-insurer’s argument that Kovach is not entitled to wage loss because he did not file wage statements, register with OBES, or seek other employment. The Court indicates that the self-insurer had previously paid wage loss when Kovach failed to do any of those things. As a result, the Court finds that the self-insurer waived those requirements.
Finally, the Court considers the self-insurer’s claim that Kovach was not entitled to wage loss based on his rejection of the higher paying job which it offered. The Supreme Court finds that the alleged job offer does not bar wage loss because the employer did not make it in writing, as required by the Ohio Administrative Code and because the job was not within the physical capabilities of the injured worker.