Supreme Court Tightens Hold on Temporary Total Disability for Workers' Who Voluntarily Retire from the Workforce, and for Seasonal Employees on Expected Unemployment
By: Jennifer Brill, Attorney at Law Freund, Freeze & Arnold
So far this year, the Ohio Supreme Court has issued two decisions restricting Temporary Total Disability benefits. Both cases should be of benefit to employers in the future.
In the first decision, the Ohio Supreme Court ("Court") held that, in calculating the "average weekly wage" (AWW) of a workers' compensation claimant during the year before his injury, the Ohio Industrial Commission ("Commission") must decide whether to include or exclude a period of unemployment based on the Commission's independent determination of whether the claimant made a reasonable attempt to find other work during that period. State ex rel. Warner v. Indus. Comm., Slip Opinion No. 2012-Ohio-1084.
In a 7-0 per curiam decision, the Court affirmed the Tenth District Court of Appeals' remand of the case to the Commission for further proceedings. However, the Court overruled the Tenth District's holding that the Commission should have counted state unemployment benefits the claimant received during the year before his injury in calculating his AWW for workers' compensation purposes.
The Commission generally calculates a claimant's AWW by dividing the total wages he earned during the preceding year by 52 weeks. However, the law provides exceptions to this general rule. One of those exceptions, set forth in R.C. 4123.61, states that in calculating a claimant's AWW, the commission should not count "any period of unemployment due to sickness, industrial depression, strike, lockout, or other cause beyond the employee's control.
Evidence presented to the Commission showed that during the 52 weeks preceding his injury, the claimant had earned wages from his employer for 30 weeks and had collected unemployment compensation for the other 22 weeks due to seasonal layoffs typical in the paving industry. The claimant proposed that the Commission establish his AWW by one of two formulas: (1) by dividing the wages he earned during his 30 weeks of employment by 30 and not counting the period of seasonal unemployment; or (2) by adding the 22 weeks of unemployment benefits he had collected to his wages from work, and dividing the resulting total by 52.
For the complete article, click here.