January 23, 2013
Temporary Total Disability Compensation

by Justice Paul E. Pfeifer

In 2004, Patricia Rouan hurt her leg while she was at work. Her subsequent workers’ compensation claims eventually brought her case here – to the Supreme Court of Ohio. After her initial injury, Patricia began receiving temporary total disability compensation (“TTC”). Several months later, she filed a disability-retirement application with the Ohio Public Employees Retirement System – the agency that administers public employee pension funds.

The application attributed Patricia’s inability to work exclusively to a “major depressive disorder.” But that was a condition that the Industrial Commission of Ohio – which handles such matters – had specifically disallowed as part of her claim.

During the processing of her retirement application, Patricia continued to receive TTC for her knee and leg conditions, which had been allowed by the Commission. Then, in May 2005, Patricia’s doctor indicated that these conditions had reached maximum medical improvement. In accordance with the law, her TTC was stopped.

Around that same time, Patricia’s retirement application was approved with a retroactive retirement date of February 1, 2005. Patricia left the work force and has not worked since then.

In 2007, Patricia filed an application for permanent total disability compensation (“PTD”). The Commission denied the application after determining that Patricia’s knee and leg conditions – which the Commission had allowed – did not preclude her from sustained employment.

Patricia later filed a motion for the additional allowance of two arthritic knee conditions. That motion was successful.  A renewed request for TTC soon followed, but the Commission denied TTC after it concluded that Patricia had voluntarily abandoned the work force when she took disability retirement for a condition that was unrelated to her workplace injury.

When the court of appeals reviewed the case, it agreed with the Commission and denied Patricia’s claim. After that, her case came before us for a final review.

In previous cases, we have determined that a workers’ compensation claimant who permanently abandons the work force for reasons unrelated to the workplace injury cannot collect TTC. As we explained in one case, TTC “compensates claimants ‘for the loss of earnings which he incurs while the injury heals.’” There can be no lost earnings, however, “or even a potential for lost earnings, if the claimant is no longer part of the active work force.”

In another case, we stated that claimants who retire for reasons unrelated to their injuries cannot receive TTC, since it is the claimants’ own action, not the industrial injury, that prevents a return to the former position of employment.

There is no question that Patricia permanently left the work force after she retired. The evidence also indicates that her retirement was not related to her workplace injury, but was instead based on a “major depressive disorder” that had been specifically disallowed in her claim. Thus, under the guidelines set by the previously mentioned cases, the Commission did not abuse its discretion in refusing to reinstate TTC.

Nevertheless, Patricia maintained that she could not be deemed to have voluntarily abandoned the work force when she took disability retirement in 2005. She argued that a claimant who is temporarily and totally disabled at the time of retirement cannot be deemed to have voluntarily abandoned the work force. She based her argument on a case from 1993 we’ll refer to as Brown v. Indus. Comm.

In Brown, the claimant was incarcerated after the Commission had awarded him PTD. As a result of the incarceration, the Commission suspended Brown’s PTD under the theory that his incarceration amounted to a voluntary abandonment of his former job.

But our court found that the Commission’s suspension of PTD was contrary to law. Because Brown was permanently and totally disabled before his incarceration, his injury – not his imprisonment – had permanently removed him from the work force.

We reasoned that “once a worker has been declared permanently and totally disabled he or she is incapable of returning to work.” Accordingly, we held that a claimant like Brown who has a permanent and total disability is incapable of abandoning the work force because he has already been permanently removed from the work force by reason of his injury. We also stated that a claimant can abandon a former position or remove himself from the work force only if he “has the physical capacity for employment at the time of abandonment or removal.”

The Brown case did not advance Patricia’s cause for two reasons. First, unlike Brown, Patricia suffered a temporary but not a permanent disability. Patricia’s leg injury foreclosed a return to her former job, but it didn’t medically disqualify her from other employment.

Two years after her disability retirement was approved, Patricia filed an application for PTD. The Commission denied her application, finding that Patricia’s allowed conditions did not preclude sustained employment. Thus, unlike Brown,whose abandonment of the work force could only be deemed involuntary because of his permanent and total disability, Patricia voluntarily removed herself from the work force by taking disability retirement, because she still had the physical ability to work.

The second reason the Brown case did not advance Patricia’s cause was that Brown’s decision to engage in criminal activity could not be considered a voluntary abandonment of his former job because his industrial injury – as demonstrated by his receipt of PTD – had removed him from the work force before his incarceration did. Hence, Brown’s incarceration did not negate the “causal relationship between the work-related injury suffered by Brown and his…absence from the work force.”

In contrast, there is only one reason why Patricia did not return to the work force: she suffers from a “major depressive disorder,” a condition that was unrelated to her workplace injury. Her disability retirement negated the causal relationship between her work-related injury and her absence from the work force.

Thus, she cannot take advantage of the reasoning upon which Brown is based, rendering her reliance on that decision misplaced. We therefore affirmed – by a seven-to-zero vote – the judgment of the court of appeals in denying her application for PTD.

EDITOR'S NOTE: The case referred to is State ex rel. Rouan v. Indus. Comm., 133 Ohio St.3d 249, 2012-Ohio-4639. Case No. 2011-0775. Decided October 11, 2012. Opinion Per Curiam.