State ex rel. Honda of America Manufacturing Co. v. Industrial Commission

113 Ohio St. 3d 5
CourtOhio Supreme Court
DecidedMarch 21, 2007
DocketNo. 2005-2006
StatusPublished
Cited by8 cases

This text of 113 Ohio St. 3d 5 (State ex rel. Honda of America Manufacturing Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Honda of America Manufacturing Co. v. Industrial Commission, 113 Ohio St. 3d 5 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} While receiving temporary total disability compensation, appellee Edith K. Anderson opened a scrapbooking shop with proceeds from her husband’s life insurance. Over a three-month period, she was observed in the shop five times. Her employer, appellant Honda of America Manufacturing Company, alleged that her store-related activities constituted “work.” It therefore requested the termination of her temporary total disability compensation and a declaration of overpayment and fraud. We must determine whether the commission abused its discretion in denying those requests. Upon review, we find that it did not.

{¶ 2} Anderson was injured while working for the company and began receiving temporary total disability compensation in 1991. Her husband died in 2002, and she decided to invest the insurance money in a small business, My Crop Shop, which opened on February 13, 2003. My Crop Shop specializes in scrapbooking and in preserving media. It is largely a family undertaking, with Anderson’s son and two daughters working there, in addition to a manager and [6]*6other employees. Anderson visits the store “from time to time” to check its progress.

{¶ 3} These visits ultimately drew Honda’s attention, and in April 2003, a private firm hired by Honda began to investigate Anderson’s activities. Surveillance was conducted on five dates: April 24, April 25, May 6, May 8, and June 30, 2003. On each of these days, Anderson went to My Crop Shop. On April 24, she was observed speaking on the phone inside the store. The next day, she was seen once using the cash register. On both days, Anderson’s daughter was also working in the store.

{¶ 4} On May 6, an investigator, posing as a customer, entered the store. Anderson showed him several displays of Mother’s Day gifts and also spoke with another customer, describing classes offered by the store. On May 8, she showed an undercover investigator several sample scrapbooks and answered questions about them. On June 30, Anderson was observed in the store, with no particular activities noted.

{¶ 5} Honda gave the surveillance videos to Dr. Oscar F. Sterle for review. He opined that Anderson’s activities contradicted attending physician William W. Nucklos’s opinion of her physical capabilities. Dr. Sterle did not, however, conclude that the activities were inconsistent with her claim that she could not return to her former position of employment as an assembly-line worker.

{¶ 6} Dr. Nucklos responded strongly on September 23, 2003:

{¶ 7} “After treating this patient for more than 10 years, it is my medical opinion that there is absolutely nothing on the tape that is inconsistent with this patient’s physical capabilities as performed in my office. Regarding the issue of bending, I clearly stated in my restrictions dated 5-22-2003 that this patient could occasionally squat or bend. In fact, in the video, she is not actually reaching to the ground, but she is retrieving some keys that had fallen between the frame of the car and the seat. This is further supported by the fact that the patient does three or four mini-bends of a low degrees [sic] while flexed, which would not have been necessary were her keys on the ground. In fact, she actually had something in her left hand and retrieved the keys with her right hand.

{¶ 8} “ * * *

{¶ 9} “Based on what the patient has told me about her involvement in her store, I did not see anything that was inconsistent with the restrictions. First of all, I viewed the 43-minute tape in its entirety, and it appears that regarding the video surveillance of [the five taped days] the patient was only in the store for approximately 10 hours. Even if we take the view that she was in the store for eight hours per day on the five surveillance days, that would only be 40 hours [7]*7over a period of essentially nine weeks. However, the total hours worked would be 40 hours, which is absurd. The fact is that the patient was in the store for a total of 10 hours. Furthermore, the number of work hours permitted per restrictions would have been 90 to 180 hours over a nine week period. According to my restrictions, I indicated on 5-22-2003 that the patient could work two to four hours per day five days per week and increase as tolerated over a 90-day period.

{¶ 10} “ * * *

{¶ 11} “Regarding the issue of how much the patient can lift, I actually weighed her tote bag, which she has brought to this office on more than one occasion and in which she generally carries her remote controls for her spinal cord stimulators X two, and it weighs 1.25 pounds, and the purse viewed in the video, which she also carries on a regular basis, weighs 2.75 pounds, a total of 4 pounds.

{¶ 12} “ * * *

{¶ 13} “In closing, Ms. Anderson is in my top ten regarding honesty and integrity. This is supported by the fact that she told everyone, including her case manager, her attorney, and me, that she, in fact, owned a store. She also indicated to me that from time to time she would go in the store. Her biggest fear at all times was that she would not be able to perform any job duties that she loved on a consistently predictable basis.

{¶ 14} “Another observation centered around the fact that when she was summoned from the back of the store where she was resting, because a gentleman had portrayed himself as a baseball coach requested to see the owner, she did her very best to accommodate him, even though it was clear that as time wore on on 5 — 8—2003[,] she was visibly tired and was actually sitting on a table and resting on, of all things, gum ball machines, and appeared in pain based on her body language.”

{¶ 15} Honda asked appellee Industrial Commission of Ohio to terminate temporary total disability compensation and issue declarations of overpayment and fraud. Anderson countered with, among other things, a letter from the shop’s accountant. The letter indicated that Anderson had received no payroll checks from the store and that she had not “been paid to do any work for this establishment.”

{¶ 16} A staff hearing officer denied Honda’s motion in a lengthy order. He found no evidence that the claimant was medically capable of returning to her former job. He also concluded that Anderson had not been remunerated for activities at My Crop Shop. In addressing this issue, the hearing officer applied the two-pronged test from State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio [8]*8St.3d 20, 2002-Ohio-7038, 780 N.E.2d 1016, determining that the taped activities were minimal and did not generate business income directly. Accordingly, Anderson was not disqualified from temporary total disability compensation.

{¶ 17} The order was administratively affirmed, and Honda proceeded to file the instant mandamus claim in the Court of Appeals for FranMin County. Applying Ford, the court of appeals upheld the commission’s order and denied a writ of mandamus, prompting Honda’s appeal to this court as of right.

{¶ 18} Temporary total disability compensation cannot be paid to a claimant who is actually working — i.e., exchanging labor for pay — or to one who is medically capable of returning to the former position of employment. R.C. 4123.56(A); State ex rel. Griffith v. Indus. Comm, 109 Ohio St.3d 479, 2006-Ohio-2992, 849 N.E.2d 28, ¶ 10.

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Cite This Page — Counsel Stack

Bluebook (online)
113 Ohio St. 3d 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-honda-of-america-manufacturing-co-v-industrial-commission-ohio-2007.