State ex rel. Johnson v. Rawac Plating Co.

575 N.E.2d 837, 61 Ohio St. 3d 599, 1991 Ohio LEXIS 2114

• Court: Ohio Supreme Court
• Decided: August 28, 1991
• Docket: No. 90-646
• Status: Published

Opinions

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:

“ ‘ * * * [UJntil 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 former position and precluded further temporary total compensation. We disagreed, finding no abandonment.

Diversitech is readily distinguishable. First, no rehabilitation contract presently exists. More importantly, the claimant in Diversitech was not seeking temporary total compensation over the same period in which he received wages from his light duty job.

We thus find that appellee was not entitled to temporary total disability compensation during the period that he received wages from UVC but was unable to return to Rawac. Accordingly, the judgment of the court of appeals is reversed.

Judgment reversed.

Moyer, C.J., Sweeney, Holmes, Wright and H. Brown, JJ., concur. Douglas and Resnick, JJ., dissent.