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State ex rel Alesci v. Industrial Commission of Ohio11/13/2002
Submitted October 15, 2002
. Appellant-claimant, Elaine M. Alesci, began receiving permanent total disability compensation ("PTD") on May 5, 1989. On June 20, 2000, the Ohio Bureau of Workers' Compensation moved appellee, Industrial Commission of Ohio, to terminate PTD and to declare an overpayment, alleging that claimant had demonstrated the ability to engage in sustained remunerative employment while receiving both PTD and Disabled Workers' Relief Fund benefits.
. As evidence of the ability, the bureau showed that claimant had babysat for five families from 1992 through 1996. The evidence did not establish a regular schedule of employment, but rather showed repeated intermittent jobs, often consisting of overnight or multi-night stays. The rate charged was $7 per hour, $80 per weekday, and $100 per weekend day.
. The bureau also offered evidence of claimant's activities with the Heavy Hitters incentive program, a volunteer enterprise operated through the Cleveland Indians baseball team. Volunteers sold tickets and conducted stadium tours in exchange for points that could be redeemed for all-expense-paid trips to see the Indians on the road. In May 1996, for example, claimant volunteered 13 days for a total of 55 1/4 hours, with a typical day involving four or five one-hour-long walking tours. Claimant's hours dropped for the balance of the summer.
. Melissa Zapanta was the Indians' Coordinator of Community Relations and supervised tour volunteers. She stated that on one occasion, claimant attributed a period of unavailability to outside baby-sitting obligations and "helping either her brother, Angelo or [Rudolph] Kastelic with a business[.] Alesci stated she would be answering phones."
. Laura Napoli, Heavy Hitters coordinator, stated that "one day Alesci approached her regarding the filing of the [IRS form] 1099. Napoli stated Alesci inquired about the approximate cost of the trips from last year and expressed concern with completing the 1099, due to her disability status. Napoli stated Alesci told her about her back problems and was on disability so she could not get a 1099. Alesci then asked Napoli if she could fill out the 1099 using her sister, Joanne Presby's, Social Security number instead of her own. This was because Joanne Presby, her sister, would be going on some of the trips with her. Napoli consulted her supervisor, * * * is no longer with the Indian's organization * * *. stated that he did not have a problem with Alesci's request to use her sister's Social Security number. Napoli relayed the information to Alesci and the subject has not been discussed since then."
. Additionally, evidence was presented of claimant's activities with Chagrin Valley Construction/Various Insulation Products ("CVC/VIP"). On eight occasions between June 12 and October 17, 1996, claimant was observed entering the offices and was seated behind a desk when bureau investigators entered the premises on October 17, 1996. Their interview with claimant revealed:
. "Alesci in the initial portion of the interview stated she could not work because of the pain she had in her back, and stated she was only filling in for Patty Alesci, her brother's wife, answering phones for a few hours because their children were sick. Alesci stated the date of the interview was the last day she would be helping them out. Alesci then provided an employment history which stopped in 1988 because of her BWC claim. Alesci claimed that she strictly answered phones and did no filing or faxing when she filled in at her brother's business. Alesci also denied doing any volunteer work.
. "After being confronted with evidence against her, Ale
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