In re Caminiti

478 N.E.2d 1327, 17 Ohio Misc. 2d 9, 17 Ohio B. 309, 1984 Ohio Misc. LEXIS 195
CourtOhio Court of Claims
DecidedOctober 31, 1984
DocketNo. V81-59647
StatusPublished
Cited by3 cases

This text of 478 N.E.2d 1327 (In re Caminiti) is published on Counsel Stack Legal Research, covering Ohio Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Caminiti, 478 N.E.2d 1327, 17 Ohio Misc. 2d 9, 17 Ohio B. 309, 1984 Ohio Misc. LEXIS 195 (Ohio Super. Ct. 1984).

Opinion

Victor, J.

This is an appeal from an order of a three-commissioner panel which affirmed a single commissioner’s denial of the appellant’s claim for work loss, pursuant to R.C. 2743.51(G).

The appellant, Gerald Caminiti, has set forth three assignments of error. The appellant asserts the single commissioner and the three-commissioner panel erred in finding the appellant did not incur work loss. He also asserts the single commissioner and the three-commissioner panel erred in failing to consider the unrebutted testimony of an expert witness, and improperly used a temporary, part-time job as the basis for the computation of work loss.

The court finds the assignments of error are interrelated and will be discussed concurrently.

On October 23, 1980, Caminiti, age twenty, was shot in the stomach at point-blank range and suffered extensive internal injuries that left him a paraplegic and eighty-five percent occupationally disabled. Because he is confined to a wheelchair for the rest of his life, his job options are limited to clerical, or other types of sedentary employment. Although he may return to the work force on a regular basis at some point in the future, he is presently unemployed. He suffers from fatigue and severe emotional problems which prevent him from holding a job.

In determining work loss, the single commissioner took into account the appellant’s most recent employment history.

The appellant was employed by the Lemcon Development Company as a construction worker for $4 per hour on March 26, 1980. On April 4, 1980, he sustained a back injury while working at the job site and was unable to complete the construction job. He applied for [10]*10workers’ compensation and was granted temporary total disability benefits until January 4, 1981. Those benefits were paid in lieu of wages until the appellant could return to work. He also sought medical treatment from Dr. Patrick J. Brunner, a chiropractor. During the course of treatment with Dr. Brunner, appellant obtained, at the recommendation of Dr. Brunner, a job as a security guard for Allied Security. After only one week on the job, appellant was forced to quit because he was experiencing pain from his back injury.

The single commissioner found the appellant’s work loss should be based upon his employment with Allied Security. The commissioner’s determination was based on Dr. Brunner’s testimony that the appellant’s back injury would have prevented him from ever returning to heavy manual labor, and because he would have recovered from his industrial back injury sufficiently to return to “light work” by January 5, 1981. The commissioner stated, “although the applicant was unable to retain his job with Allied Security because of his industrial back injury, I find the applicant would have been able to perform that job, or similar employment, after January 5, 1981, his release date for return to light work.” The single commissioner computed the appellant’s work loss from January 5,1981, through April 30,1983, based on his employment with Allied Security. The appellant’s net weekly wage was $78.81 and his total net work loss was $9,536.01. Social Security benefits for that period totalled $8,585.50, for a net loss of $950.51. After the assault, the appellant obtained a job as a travel agent with the First Travel Agency and his earnings between January 5, 1981, and April 30, 1983, totalled $1,053.44. The single commissioner found that all of the appellant’s work loss had been recouped from a collateral source or recovered through substitute employment.

At the hearing before the three-commissioner panel, the appellant testified that he had been regularly employed since he was fifteen years old. Since his graduation from high school in 1979, he had been employed in a series of full-time jobs, including the following:

Brogan Foltz, Inc. Laborer 6 months $3.50 per hour

Crossett Co. Laborer V-k months 6.70 per hour

Hater Ind. Parts Inspector 3 months 4.05 per hour

Pillsbury Grain Unloader 2 weeks 6.00 per hour

Lemcon Dev. Inc. Laborer 1 week 4.00 per hour

Dr. George Parsons, an industrial psychologist who performed a battery of tests on the appellant, testified that the appellant showed an interest and an aptitude for employment as a manual laborer. In essence, Dr. Parson’s testimony established that despite the appellant’s back injury he would have been capable of performing other types of light work, aside from security work. He explained that “light work” in an industrial sense means work in which an individual was not required to lift more than ten to twenty pounds, and would not require excessive bending, stooping, crawling or climbing. He further stated:

“* * * That does not preclude him from working at construction trades. That precludes him from doing general labor work, which would have taken him into the medium to heavy labor work, which would have put him into the fifty (50) pound range to a one hundred (100) pound range * * *. For instance, he [11]*11could have certainly been a flagman, working on road construction. That’s a light job. Requires a person to stand most of the time, which he could have done * * *. This would have paid him' more money than he was making essentially when he stopped. So, he had the physical abilities to return back into the construction trades. He just did not have the chance or opportunity to return to those jobs which would have been of medium or heavy level.”

Dr. Parsons also testified that after the assault, the appellant’s job opportunities would be limited to clerical work; desk, inspection, or assembly work; or telephone sales. Furthermore, considering the appellant’s present need for rehabilitation and adaptation to a new environment, Dr. Parsons estimated that the appellant’s starting base salary would be $3.50 per hour.

In addition to Dr. Parsons’ testimony the appellant testified that his back injury only temporarily prevented him from working in the construction trades. He stated that the job with Allied Security was just temporary employment until he could find another job. The appellant also testified that he saw himself as an hourly-wage manual laborer.

Despite this testimony, the three-commissioner panel affirmed the single commissioner’s determination that the appellant’s employment as a part-time security guard should be the basis for calculating work loss.

This decision is rejected for the following reasons. First, the appellant was employed as a part-time security guard while he was still recuperating from his industrial accident. He quit that job because he was experiencing pain in his back. Thus, the panel based his work loss only on a temporary part-time job which he was incapable of performing for any appreciable length of time. Second, the panel failed to consider the appellant’s full employment history. Finally, the panel failed to consider the appellant’s testimony or the testimony of Dr. George Parsons concerning the likelihood that the appellant would have obtained more remunerative employment despite his previous back injury.

The court finds the appellant’s work loss should be based on his employment history from the time he graduated from high school to his employment with Lemcon Development, Inc.

R.C. 2743.51(G) provides, in part:

“ ‘Work loss’ means loss of income from work that the injured person would have performed if he had not been injured * *

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Cite This Page — Counsel Stack

Bluebook (online)
478 N.E.2d 1327, 17 Ohio Misc. 2d 9, 17 Ohio B. 309, 1984 Ohio Misc. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-caminiti-ohioctcl-1984.