 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State ex rel Menough v. Industrial Commission of Ohio6/25/2002
ce that claimant has actually engaged in certain physical activities, it is not necessary to have an expert opinion that the claimant is capable of performing those activities. State ex rel. Beal v. Indus. Comm. (Dec. 12, 1996), Franklin App. No. 95AP-1267, unreported (Memorandum Decision). Likewise, a medical opinion that claimant is incapable of certain activities is impeached by evidence showing that claimant actually performed those activities. Id.
In regard to TTD compensation, it is settled that a claimant cannot receive TTD compensation while performing gainful work, including part-time or occasional work, regardless of whether the number of hours is minimal or whether any profit was realized by a self-employed worker. E.g., State ex rel. Blabac v. Indus. Comm. (1999), 87 Ohio St.3d 113; State ex rel. Durant v. Superior's Brand Meats, Inc. (1994), 69 Ohio St.3d 284; State ex rel. Johnson v. Rawac Plating Co. (1991), 61 Ohio St.3d 599; State ex rel. Brown v. Indus. Comm. (Nov. 5, 1998), Franklin App. No. 97APD11-1452, unreported (Memorandum Decision); State ex rel. Dawson v. Indus. Comm. (Nov. 19, 1998), Franklin App. No. 97APD11-1544, unreported (Memorandum Decision).
In the present action, the magistrate concludes that the commission was within its discretion to conclude that claimant was not entitled to the PTD and DWRF benefits he received. The commission cited reliable, probative and substantial evidence in support of its decision to terminate these benefits, and it provided a reasonable explanation of its rationale.
Specifically, the commission relied on evidence that claimant performed work activities about six hours per day for about ten months each year beginning in 1990 when his former partner began Copen Machine. The commission's findings were supported by claimant's testimony regarding the nature and extent of his duties, the report of the investigators, and Mr. Copen's statements about claimant's activities. The activities were the sort of tasks for which a person can be paid, in that he provided valuable and necessary services for a business enterprise.
The fact that a claimant is not paid for work activities does not mean that the activities will not support a termination of PTD. For example, if a PTD recipient were donating clerical services to a charity five hours per day, five days per week, that activity could be found "inconsistent with" the receipt of PTD, or could be found to demonstrate the capability of performing sustained remunerative employment, regardless of the fact that no monetary gain was involved.
Moreover, in the present action, the commission did not accept that claimant was donating his services but found instead that the work was gainful, relying on documentary evidence of numerous payments from Copen Machine and rejecting claimant's testimony regarding the nature of those payments. Such determinations of evidentiary weight and credibility lie outside the scope of mandamus inquiry. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18.
In summary, the commission was within its discretion to conclude that claimant was working at Copen Machine, that the work was gainful, and that his activities were inconsistent with an award of PTD.
The magistrate further concludes that the commission's order is not defective because it did not use the specific words "inconsistent with the award of PTD" but expressed that meaning in other words. The commission's rationale was clear-that the extent of claimant's work activities was inconsistent with an award of PTD. Moreover, its rationale was in accord with the principles outlined in decision such as Smothers, Schultz and Holt; supra.
<
Page 1 2 3 4 5 6 7 8 9 10 11 12 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|