May 16, 2012
Temporary Total Disability Compensation

by Justice Paul E. Pfeifer

In January 2007, Guiseppe Gullotta injured his back while working for Akron Paint and Varnish, Inc. (“APV”).  His claim with the Industrial Commission of Ohio – which handles such matters – was allowed for lumbar sprain, and he received temporary total disability (“TTD”) compensation for several weeks before returning to light-duty work consistent with his doctor’s medical restrictions.

In March, Guiseppe’s doctor found that his physical capabilities had improved and reduced his work restrictions.  Based on the new, lesser restrictions, APV began to increase Guiseppe’s job duties.

Guiseppe complained to his employer about his job duties, and on April 16, he met with a vice president at APV, who offered him another position also within his physical limitations.  But Guiseppe said he didn’t want that job either; he then immediately resigned and left the building.

Four months later, Guiseppe submitted another request to the Commission for TTD compensation for the period from April 24 through November 4, 2007.  A district hearing officer denied the request, concluding that Guiseppe had voluntarily abandoned his employment and thereby removed himself from the workforce.

But a staff hearing officer – the next step along in the process – vacated that order and entered a new one, still denying benefits, but for a different reason.  The staff hearing officer determined that the period of disability for which Guiseppe was requesting compensation was not related to his injury, but rather was due to his refusal to return to his light-duty job or to accept the suitable alternative employment that had been offered.

The staff hearing officer noted that Guiseppe was medically unable to return to his former position at the time he quit, so his resignation could not be termed a voluntary abandonment.

In March 2008, Guiseppe’s claim was additionally allowed for aggravation of preexisting hypertrophy.  As a result, Guiseppe filed a new motion for TTD benefits.  Once again a district hearing officer denied the request on the basis that Guiseppe had refused a light-duty job offer and that he had failed to present evidence that his additionally allowed medical condition resulted in any different work restrictions.

And once again, a staff hearing officer reversed that ruling, concluding that Guiseppe’s newly allowed condition was evidence of new and changed circumstances.  The hearing officer determined that Guiseppe’s condition had worsened and that this change warranted payment of TTD compensation.

In response to this, APV filed a complaint in the court of appeals, alleging that the Commission had abused its discretion.  The matter was referred to a magistrate, who agreed that the Commission had abused its discretion, and concluded that Guiseppe had not submitted evidence that would justify renewed TTD in light of his previous refusal of the work made available by APV.

The magistrate further concluded that even if there was medical evidence that Guiseppe’s condition had worsened since his resignation, he “has lost no wages during the period of claimed disability for which he can be compensated.”

In adopting the magistrate’s findings, the court of appeals ordered the Commission to vacate its last order and to deny TTD compensation.  After that, the case came before us – the Ohio Supreme Court.

Ohio law says that TTD compensation terminates when the employee returns to work, is medically capable of returning to work, or has reached maximum medical improvement.  TTD compensation is also barred when “work within the physical capabilities of the employee is made available by the employer or another employer.”

If an employee’s TTD compensation is terminated, the employee may seek renewed compensation if the employee again becomes temporarily totally disabled.  In such a case, the Commission may exercise continuing jurisdiction and may modify or change its former orders when justified.  Put another way, the Commission may reopen the issue of TTD eligibility if there are new and changed circumstances.

The issue in this case was the Commission’s last order, in which a staff hearing officer granted Guiseppe TTD compensation for a period of time after he left APV.  The hearing officer relied on Guiseppe’s additionally allowed medical condition as evidence of new and changed circumstances justifying the exercise of continuing jurisdiction by the Commission.

But the court of appeals concluded that Guiseppe had not presented evidence of new and changed circumstances, and we agreed.  As Justice Evelyn Lundberg Stratton noted in writing our majority opinion, “Although the worsening of an existing medical condition or a newly allowed medical condition often serves as new and changed circumstances justifying the exercise of continuing jurisdiction to modify a previous order, in this case, the previous order denying TTD was not based on medical evidence but rather on the statutory bar of compensation when a claimant unjustifiably refuses light-duty work made available by the employer.”

Guiseppe presented no evidence that his employment situation had changed.  With no loss of wages, an award of TTD compensation was not warranted, since the purpose of TTD benefits is to compensate for loss of earnings.

Guiseppe admitted that his prior request for TTD benefits was barred by his refusal to accept a suitable job.  Nevertheless, he argued that the additionally allowed medical condition presented new physical restrictions and that APV did not offer alternative employment consistent with his new physical restrictions.

He contended that APV must make a new good-faith offer of employment taking into account his new work restrictions caused by the new condition – one that was recognized after he no longer worked at APV.

But the additionally allowed medical condition, recognized since his resignation, did not change the fact that Guiseppe unjustifiably refused light-duty work in April 2007.  We therefore agreed with the court of appeals that the Commission abused its discretion when it determined that there was evidence to support a finding of new and changed circumstances.

Guiseppe presented no evidence of circumstances, new or changed, that would demonstrate a loss of wages as a result of TTD.  The Commission abused its discretion when it exercised continuing jurisdiction.  Therefore, by a seven-to-zero vote, we affirmed the judgment of the court of appeals.

EDITOR'S NOTE: The case referred to is State ex rel. Akron Paint & Varnish, Inc., v. Gullotta, 131 Ohio St.3d 231, 2012-Ohio-542. Case No. 2010-0636. Decided February 15, 2012. Majority opinion written by Justice Evelyn Lundberg Stratton.