State ex rel. Brinkman v. Indus. Comm.

Decision Date17 November 1999
Docket NumberNo. 97-2142.,97-2142.
Citation87 Ohio St.3d 171,718 NE 2d 897
PartiesTHE STATE EX REL. BRINKMAN, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
CourtOhio Supreme Court

Dean G. Reinhard Co., L.P.A., and Charles Zamora, for appellant.

Betty D. Montgomery, Attorney General, and Dennis L. Hufstader, Assistant Attorney General, for appellee Industrial Commission.

Janet E. Jackson, City Attorney, and Stephanie Mitchell Hughes, Assistant City Attorney, for appellee city of Columbus.

Per Curiam.

Two periods of wage loss are at issue: October 15, 1994 through July 20, 1995, and July 21, 1995 through August 20, 1996. For the reasons to follow, the court finds that the commission abused its discretion in denying wage-loss compensation over both periods.

Despite the laudable goals of wage-loss compensation, there is a heightened potential for abuse whenever weekly compensation and wages are concurrently permitted. In response to this susceptibility, certain post-injury employment is more carefully scrutinized. Among these are part-time and self-employment. Described generically as voluntary limitations of income, these two categories are examined to ensure that wage-loss compensation is not subsidizing speculative business ventures or life-style choices. State ex rel. Ooten v. Siegel Interior Specialists Co. (1998), 84 Ohio St.3d 255, 703 N.E.2d 306; State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210, 648 N.E.2d 827.

For the period July 21, 1995 through August 20, 1996, the commission ruled that claimant voluntarily restricted his income. The commission initially appears to assume that the limitation of hours imposed by part-time work automatically equals a proscribed limitation of income. With a $20 per hour job as we have here, however, this assumption is inappropriate. Twenty hours part-time at Busch will most likely exceed forty hours of minimum-wage work elsewhere.

The commission also characterized claimant's perceived income limitation as voluntary because claimant did not continue to look for full-time work after getting the job at Busch. We have never specifically addressed the question of continuing a full-time job search after acquisition of part-time work. We find particularly appealing Florida's approach to this question due to its judiciary's balance between the normal part-time concerns and economic reality.

In Stahl v. Southeastern X-Ray (Fla.App.1984), 447 So.2d 399, the former employer alleged that claimant's failure to look for a better-paying job after accepting other minimum-wage employment constituted a voluntary income limitation. The court disagreed, writing:

"Whether the acceptance of a particular job with lower earnings amounts to voluntary limitation should be determined based on the enumerated factors [physical impairment, age, industrial history, training and education, motivation, work experience, work record, diligence and availability of jobs] and not based simply on a requirement for continued diligent search by claimant after completion of his normal daily work schedule." Id. at 401.

Rather than focusing simply on income, the Florida court viewed the claimant's employment situation broadly. Within the first three months of work, the claimant received a forty-cent-per-hour raise and was given increased responsibility. When asked why he had stopped looking for other work, claimant responded that "`[m]y boss has indicated that I have a future there, so I feel that I have a good job right now and it would be silly for me to leave a good thing.'" Id. at 402. The court agreed, concluding that "[t]he deputy's order would compel claimant to forfeit any present or future commitment to a full-time job which appears to be appropriate in all ways other than presently diminished earnings." Id.

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29 cases
  • State ex rel. Roberts v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • November 1, 2016
    ...circumstances. State ex rel. Timken Co. v. Kovach, 99 Ohio St.3d 21, 2003-Ohio-2450, ¶ 22. For example, in State ex rel. Brinkman v. Indus. Comm., 87 Ohio St.3d 171, 174 (1999), the Supreme Court of Ohio held that the commission abused its discretion in denying WWL compensation and not excu......
  • State ex rel. Warner v. Indus. Comm., 2010 Ohio 2476 (Ohio App. 6/3/2010)
    • United States
    • Ohio Court of Appeals
    • June 3, 2010
    ...See, e.g., State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210, 648 N.E.2d 827; State ex rel. Brinkman v. Indus. Comm. (1999), 87 Ohio St.3d 171, 718 N.E.2d 897; State ex rel. Ooten v. Siegel Interior Specialists Co. (1998), 84 Ohio St.3d 255, 703 N.E.2d While the phras......
  • State v. Indus. Comm'n of Ohio
    • United States
    • Ohio Court of Appeals
    • July 28, 2015
    ...writ of mandamus. {¶ 3} Relator sets forth one objection to the magistrate's decision:The Magistrate erred by failing to consider all of the Brinkman factors with regard to the instant matter. {¶ 4} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the objected matters "......
  • State ex rel. Borden, Inc. v. Martin, 2004 Ohio 4647 (OH 9/2/2004)
    • United States
    • Ohio Supreme Court
    • September 2, 2004
    ...potential for abuse and, as a result, carefully scrutinize, inter alia, post-injury part-time employment. State ex rel. Brinkman v. Indus. Comm. of Ohio (1999), 87 Ohio St.3d 171, 173. The concern is to "ensure that wage-loss compensation is not subsidizing * * * life-style choices." Id. (C......
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