Ever heard of the phrase "sustained remunerative
employment?" In the world of workers' compensation, it means that if you are
earning money, or capable of earning money, you cannot be eligible for an award
of PTD (permanent total disability) for a workplace injury. Seems like common
sense, right? What, if, however, the evidence of sustained remunerative
employment is illegal activity? Last week, the Ohio Supreme Court weighed-in
with an answer.
Donald McNea was a police officer the city of Parma. In
2004, the state awarded him PTD compensation for alleged on-the-job injuries.
As it turns out, at the same time McNea was receiving PTD payments, he was
being investigated for the illegal sale of narcotics. Ultimately, he was
arrested, indicted, pleaded guilty, and sentenced to three years in prison. The
Industrial Commission terminated McNea's PTD benefits as of the date of his
incarceration. It also concluded that McNea's side business selling narcotics
was "sustained remunerative employment," and as a result declared that all
compensation paid after his first confirmed drug sale constituted an
overpayment.
McNea appealed the determination of the overpayment all
the way to the Ohio Supreme Court, where-in State ex rel. McNea v. Industrial Commission
(3/29/12) [pdf]-common sense prevailed:
In this case, the evidence established an ongoing pattern
of phone calls and other sales-related activity that culminated in the four
recorded sales that McNea made between October and December 2005. The
commission characterized this sales activity as sustained remunerative
employment, and we decline to disturb that finding.
It is unlikely that you will ever face the situation of
having to seek disqualification of an employee from collecting workers' comp
benefits because he's dealing drugs. Nevertheless, this case holds an important
lesson. Despite all of the laws technicalities and nuances, when you rip most
cases down to their cores, ligation is a morality play. If you can show that an
employee did something that offends our idea of what is right versus what is
wrong (dealing drugs, stealing, other dishonesty, etc.), you will place
yourself in a very good position to win your case.
Visit the Ohio Employer's Law Blog for more
practical employment
law information.
Presented by Kohrman Jackson & Krantz,
with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a
partner in our Labor
& Employment group, at (216) 736-7226 or jth@kjk.com.
For more information about LexisNexis
products and solutions connect with us through our corporate site.