State, ex rel. Johnson, v. Rawac Plating Co.

• Citation: 61 Ohio St.3d 599,575 N.E.2d 837
• Decision Date: 28 August 1991
• Docket Number: No. 90-646,90-646
• Parties: The STATE, ex rel. JOHNSON, Appellee, v. RAWAC PLATING COMPANY; Industrial Commission of Ohio, Appellant.
• Court: United States State Supreme Court of Ohio

Page 599

61 Ohio St.3d 599

575 N.E.2d 837

The STATE, ex rel. JOHNSON, Appellee, v. RAWAC PLATING COMPANY; Industrial Commission of Ohio, Appellant.

No. 90-646.

Supreme Court of Ohio.

Submitted May 6, 1991.

Decided Aug. 28, 1991.

Appellee-claimant, Anthony Johnson, worked two jobs simultaneously in 1985--full-time as a metal finisher for Rawac Plating Company and part-time as a janitor for Upper Valley Cinema ("UVC"). On September 4, 1985 he was injured while in the course of and arising from his employment at Rawac. Appellant, Industrial Commission of Ohio, allowed his workers' compensation claim, and paid him temporary total disability compensation from September 5, 1985 through February 26, 1987.

Appellant later learned that appellee had returned to work at UVC. After a hearing, a commission district hearing officer found:

" * * * that the claimant was entitled to temporary total disability compensation from 9-5-85 through 2-24-86. Claimant was not gainfully employed and was disabled from employment during this time period.

"However, this Hearing Officer finds the claimant was not entitled to temporary total disability compensation from 2-25-86 through 2-26-87. During this time period the claimant was employed by the Upper Valley Mall Cinema in Springfield ahd [sic, and] returned to substantially gainful employment. Therefore, the claimant is not entitled to temporary disability compensation from 2-25-86 forward. The Nye case is most persuasive in arriving at this decision. Thus, an overpayment does exist from 2-25-86 through 2-26-87." (Emphasis sic.)

This order was administratively affirmed.

Appellee filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that appellant abused its discretion in denying him entitlement to temporary total disability compensation from February 25, 1986 through February 26, 1987. The appellate court agreed and issued a writ vacating the commission's order.

This cause is before this court on appeal as of right. Michael J. Muldoon, Hilliard, for appellee.

Lee I. Fisher, Atty. Gen., Michael L. Squillace and Cheryl J. Nester, Columbus, for appellant.

PER CURIAM.

A temporary total disability is one that prevents a return to the former position of employment. State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630, 23 O.O.3d 518, 433 N.E.2d 586. Ramirez authorizes temporary total compensation:

" ' * * * [U]ntil one of the following three things occur: (1) he [claimant] has returned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the temporary disability has become permanent.' " Id. at 632, 23 O.O.3d at 519, 433 N.E.2d at 588.

We must determine whether appellee can receive temporary total disability compensation during the period that he was working at UVC but was unable to return to Rawac--the job at which he was injured. For the reasons to follow, we find that he cannot.

Initially, we disagree with appellant's claim that "former position of employment" encompasses all jobs held on the date of injury, and that by returning to one, appellee effectively returned to his former position. This argument ignores State, ex rel. McGraw, v. Indus. Comm. (1991), 56 Ohio St.3d 137, 564 N.E.2d 695, which held that "former position of employment" encompasses only one job--that at which the claimant was injured. See, also, State, ex rel. Horne, v. Great Lakes Constr. Co. (1987), 18 Ohio St.3d 79, 18 OBR 117, 480 N.E.2d 753. Here, appellee's "former position of employment" is at Rawac--the job at which he was injured and to which he cannot return.

Appellee, on the other hand, incorrectly assumes that termination of temporary total disability compensation is warranted only where the claimant resumes his former position. Such an argument ignores Ramirez's first prong--that temporary total compensation may be denied where the claimant has returned to work. In State, ex rel. Nye, v. Indus. Comm. (1986), 22 Ohio St.3d 75, 22 OBR 91, 488 N.E.2d 867, we held that "work" as used in Ramirez, referred to any "substantially gainful employment," not merely the former position of employment. To hold otherwise:

" * * * would permit the payment of temporary total disability benefits to a claimant who has chosen to return to full-time work at a job other than his former employment. In such a case, the claimant is no longer suffering the loss of earnings for which temporary total disability benefits are intended to compensate. * * * This interpretation is particularly compelling in view of the fact that permanent partial disability benefits under R.C. 4123.57 in the nature of damages are available to a claimant who has returned to work." Id. at 77, 22 OBR at 93, 488 N.E.2d at 870.

Appellee's reliance on State, ex rel. Diversitech Gen. Plastic Film Div., v. Indus. Comm. (1989), 45 Ohio St.3d 381, 544 N.E.2d 677, is misplaced. There, a claimant who was medically unable to return to his former job took a light duty job pursuant to a rehabilitation contract entered into by his employer and the commission. The claimant was subsequently laid off from the light duty job, and, remaining unable to return to the job at which he was injured, sought temporary total disability compensation.

His employer argued that the claimant's acceptance of the second job represented an abandonment of the...