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State ex rel Baker v. Industrial Commission of Ohio8/9/2000
on. Baker's request for reconsideration was joined by amici curiae Ohio AFL-CIO, Fraternal Order of Police of Ohio, Inc., Ohio Academy of Trial Lawyers, Ohio Conference of Teamsters, Ohio State Building and Construction Trades Council, Northwestern Ohio Building and Construction Trades Council, and the Ohio Education Association. Appellees, Industrial Commission and Stahl-Wooster, filed memoranda opposing Baker's motion for reconsideration, and appellees' opposition was joined by amici curiae Ohio Self-Insurers Association and Ohio Manufacturers Association.
On March 15, 2000, we granted Baker's motion for reconsideration and issued an order permitting the parties to submit supplemental briefs. We also ordered that the case be set for oral argument.
The cause is now before the court as an appeal of right and on rehearing.
The issue before us is whether a claimant who leaves his former position of employment for a new position forfeits TTD eligibility under the theory of voluntary abandonment of employment.
In Baker I, we held that Baker's voluntary departure from Stahl- Wooster precluded Baker's eligibility for TTD, as his departure from his former position of employment was predicated on his own actions, i.e., acceptance of a truck mechanic position with Truck Stops, and not on his industrial injury. Baker, 87 Ohio St.3d at 563, 722 N.E.2d at 68. As previously mentioned, the per curiam opinion in Baker I was largely based upon the principles set forth in McGraw and Jones & Laughlin, and, notably, the opinion did not explore the relationship and differences between a claimant's eligibility for TTD, voluntary abandonment of a former position of employment, and continued employment for a different employer. Baker's continued employment, albeit not at Stahl-Wooster, is an important and distinguishing fact that separates this case from the typical voluntary abandonment of employment. In order to appreciate this distinction, it is first necessary to discuss the eligibility requirements for TTD and to review the purpose of TTD, particularly as it relates to the judicially created voluntary-abandonment theory.
The pertinent portions of R.C. 4123.56, governing temporary disability compensation, provide:
"(A) * * * n the case of temporary disability, an employee shall receive sixty-six and two-thirds per cent of his average weekly wage so long as such disability is total * * *. Payments shall continue pending the determination of the matter[;] however payment shall not be made for the period when any employee has returned to work, when an employee's treating physician has made a written statement that the employee is capable of returning to his former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached the maximum medical improvement. * * * The termination of temporary total disability, whether by order or otherwise, does not preclude the commencement of temporary total disability at another point in time if the employee again becomes temporarily totally disabled." (Emphasis added.)
R.C. 4123.56 is instructive in that it ties an injured worker's eligibility for TTD to the worker's capability of returning to his former position of employment. This "former position of employment" standard was intended to be a threshold physical measurement of whether an injured worker was able to perform the duties of the job that he held at the time of injury. A worker's physical capabilities are unrelated to whether the worker is actually working at his former position of employment and whether the former position is even available
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