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Workers’ Compensation: Lawyers, Guns and Money (and Drugs): The Supreme Court of Ohio Revisits the Meaning of “Sustained Remunerative Employment” With Respect to Permanent Total Disability Compensation
Earlier this year, the Supreme Court of Ohio, in the McNea decision, addressed the meaning of “sustained remunerative employment” with respect to permanent total disability (PTD) compensation.By way of background, a police officer (McNea) sustained a significant work-related injury and was eventually awarded PTD compensation on August 25, 2004. When McNea was awarded PTD compensation, he was also being secretly investigated for the suspected illegal sale of narcotics. Between October 1 and December 23, 2005, McNea made four recorded sales to informants, netting $6,200. McNea was arrested on December 23, 2005 and later indicted on 20 counts of criminal activity. McNea pled guilty to four felony charges and was sentenced to three years in prison on September 4, 2007.
The Ohio Revised Code specifically prohibits the payment of compensation to an incarcerated injured worker. Accordingly, the Bureau of Workers’ Compensation (BWC) moved the Industrial Commission (IC) to terminate PTD compensation as of September 5, 2007, the date that McNea was incarcerated.
The BWC also moved the IC to declare PTD compensation overpaid as of August 25, 2004, the date that PTD compensation began. The BWC argued that the illicit sale of drugs constituted “sustained remunerative employment” sufficient to terminate PTD compensation. Simply put, PTD compensation is not properly payable if (at any time during the receipt of PTD compensation) an injured worker is engaged in sustained remunerative employment, is medically capable of sustained remunerative employment, or is engaged in activities medically inconsistent with the alleged disability.
The IC correctly terminated McNea’s PTD compensation as of September 5, 2007. Additionally, the IC ultimately declared that PTD compensation paid after McNea’s first confirmed drug sale on October 1, 2005 constituted an overpayment. The IC agreed that illegal activity can amount to sustained remunerative employment. The IC determined that McNea’s illicit sale of drugs over a period of months did constitute sustained remunerative employment, sufficient to require termination of PTD compensation. The IC also focused on McNea’s “earnings” of $6,200 from the illicit sale of drugs, which would equate to an annual figure of approximately $24,000 – an amount the IC felt would amount to sustained remunerative employment. The IC also determined that had McNea not been arrested, he would have “most likely” continued the illegal activity for “quite a while.”
This matter eventually made its way to the Supreme Court of Ohio. Although McNea did not contest the termination of PTD compensation as of his incarceration on September 5, 2007, he did object to the finding of an overpayment. McNea argued, in part, that there was no evidence that he had engaged in sustained remunerative employment between October 1, 2005 and September 5, 2007.
The Supreme Court of Ohio did not agree with McNea. The Court noted that although “sustained” has not been defined for workers’ compensation purposes, it has been held that remunerative activity does not have to occur on a regular or daily basis to be considered “sustained.” Any “ongoing pattern” of activity can be characterized as “sustained” activity. The Court held that the evidence established an ongoing pattern of phone calls and other sales-related activities that culminated in four recorded sales to informants. The Court held that this amounted to sustained remunerative employment. The Court also agreed that McNea continued to possess the medical ability to engage in the illicit sale of drugs even after his arrest, in that there is no evidence that McNea’s medical condition changed after his arrest so as to preclude that endeavor. Lastly, the Court opined that the IC did not abuse its discretion in finding that there was no evidence suggesting that McNea would have abandoned his “long-running enterprise” had he not been arrested.
Questions or concerns regarding permanent total disability compensation? Please feel free to contact Anthony Baucco or any of the experienced workers’ compensation attorneys at RBS to discuss the same.