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.