State Ex Rel. McNea v. Industrial Commission, 2012 Ohio 1296

McNea, a Parma police officer, was awarded permanent total disability (PTD) in 2004 for work-related injuries.
Unknown to all parties at PTD grant, McNea was secretly investigated for alleged illegal sale of Schedule II and III narcotics.
Between October 1, 2005 and December 23, 2005, McNea made four recorded drug sales to informants totaling $6,200.
McNea was arrested December 23, 2005, indicted on 20 counts, pled guilty to four felonies, and was sentenced September 4, 2007 to three years in prison.
On November 5, 2007, the Bureau moved to terminate PTD and declare overpayments, with a staff officer terminating benefits as of September 5, 2007, but not asserting earlier overpayments.
Reconsideration granted, the commission concluded that McNea’s drug sales constituted sustained remunerative employment and that benefits paid after October 1, 2005 were overpaid.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the reconsideration was proper.	McNea (McNea) argues reconsideration was improper due to errors in law/fact.	Industrial Commission argues reconsideration corrects a prior legal mistake and extends to timing and characterization of activity.	Reconsideration proper; clear mistake of law identified.
Whether there was sustained remunerative employment between Oct 1, 2005 and Sept 5, 2007.	McNea contends there was no sustained remunerative work during PTD period.	Commission found ongoing activity (phone calls, sales) constituted sustained remunerative employment.	Yes; ongoing illicit activity constituted sustained remunerative employment.
Whether the commission could terminate PTD based on after-acquired conduct while incarcerated.	Due process concerns about terminating during imprisonment and absence from hearing.	Presence at hearing not required; focus is legal issues of jurisdiction and characterization.	Termination upheld; no due process violation found.
Whether the amount of overpayment should be determined from late-2005 activity.	Overpayment determination relied on Lynch; timing and measurement disputed.	Lynch supports treating illicit activity as sustained remunerative employment for overpayment purposes.	Overpayment valid from Oct 1, 2005 forward.

State ex rel. Lynch v. Indus. Comm., 116 Ohio St.3d 342 (2007-Ohio-6668) (illicit drug sales can constitute sustained remunerative employment)
State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39 (2004-Ohio-6086) (actual performance demonstrates capacity for sustained remunerative work)
State ex rel. Kirby v. Indus. Comm., 97 Ohio St.3d 427 (2002-Ohio-6668) (sustained activity can be established without regular daily occurrence)
State ex rel. Schultz v. Indus. Comm., 96 Ohio St.3d 27 (2002-Ohio-3316) (pattern of ongoing activity may be sustained remunerative employment)
State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585 (2004-Ohio-5990) (clear mistake of law or fact as basis for reopening jurisdiction)
State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167 (1987-Ohio-) (remunerative activity can preclude PTD when ongoing)