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State ex rel Baker v. Industrial Commission of Ohio8/9/2000
sitions, McGraw quit his last job in mid-1986, and he did not work thereafter. In March 1987, McGraw filed for continued TTD from Kenworth, which the Industrial Commission denied, based on his voluntary abandonment of his position with Kenworth. For that reason, the court of appeals denied his request for a writ of mandamus, and this court affirmed the court of appeals' judgment.
The claimant in McGraw not only abandoned the work force, as he was unemployed for approximately eight or nine months before his request for continued TTD, but he requested continued TTD more than ten years after his original industrial injury. McGraw was not working at the time of his injury; thus, he did not incur any loss of earnings at the time that he reaggravated his original industrial injury. McGraw, unlike Baker, abandoned his employment and the work force.
Much is being made of the court of appeals' further statement in Jones & Laughlin that " uch action [abandonment] would include such situations as the acceptance of another position, as well as voluntary retirement." (Emphasis added.) 29 Ohio App.3d at 147, 29 OBR at 164, 504 N.E.2d at 454. We believe that the court's language with regard to "another position" is being misconstrued, intentionally or otherwise. What the court was saying in using that language, we believe, is that when a claimant starts work at another position, of course TTD benefits cease because the claimant is no longer temporarily and totally disabled. That does not mean that if the claimant again becomes temporarily and totally disabled from injuries related to the original industrial injury that gave rise to the former payments of TTD, the claimant is barred from reviving that original claim.
To clarify these issues, we developed a two-part test to determine a claimant's eligibility for TTD. In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533, 535, this court stated, "The first part of the test focuses on the disabling aspects of the injury, whereas the latter part determines if there are any factors, other than the injury, which would prevent the claimant from returning to his former position." Id. Futhermore, and significantly, we stated, "The secondary consideration is a reflection of the underlying purpose of temporary total compensation: to compensate an injured employee for the loss of earnings which he incurs while the injury heals." Id.
Applying the two-part test to the facts in Ashcraft, we held that the claimant's incarceration constituted a factor that precluded his receipt of TTD independently of his previously recognized work-related injury. Id. at 44-45, 517 N.E.2d at 535. This court found that claimant's incarceration was a factor other than the industrial injury that prevented the claimant from returning to his former position of employment. We held that claimant's incarceration was a voluntary act, since one may be presumed to tacitly accept the consequences of one's voluntary acts. Id. at 44, 517 N.E.2d at 535. Although not addressed in Ashcraft, this court's conclusion to deny TTD is consistent with the purpose of TTD. Since the incarcerated claimant would not be returning to work, he would not be experiencing a loss of earnings; hence, there was no purpose in awarding TTD. As in Ashcraft, there was also no purpose in awarding TTD to the claimant in Jones & Laughlin because the claimant had voluntarily left the work force through his retirement, and the claimant would not, therefore, experience a loss of earnings due to his industrial injury.
Accordingly, we apply the two-prong test of Ashcraft to the facts of the case now before us. In this case, there is no debate about the application
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