State ex rel. Ford Motor Co. v. Industrial CommissionState ex rel. Ford Motor Co. v. Industrial Commission
{¶ 1} In 1998, аppellee-claimant, Christopher D. Posey, held two jobs concurrently: one was with appellant, Ford Motor Company, and the other was his own lawn care business — Nature’s Creations Landscaping. From 1994 through 1996, claimant was the sole employee of his business. In 1997, he hired another employee.
{¶ 2} In 1998, claimant injured his neck while working for Ford. Claimant’s injury forced him to stop his physical participation in his lawn care business, so he hired three more employеes. The injury also temporarily forced claimant from his job at Ford, and he received temporary total disability compensation (“TTC”) from June 24,1998, through Sеptember 8,1998.
{¶ 3} Ford later sought to recoup that TTC, alleging that claimant’s participation in his business constituted work and therefore prohibited TTC. Evidencе presented regarding claimant’s participation in his business, however, established only that claimant signed his four workers’ paychecks and fueled and drove riding lawnmowers onto a truck. Surveillance of claimant by Ford supported claimant’s contention that he did no landscaping work in connectiоn with this business while receiving TTC.
{¶ 4} Appellee Industrial Commission of Ohio refused Ford’s request to declare TTC to have been overpaid:
{¶ 5} “The claimant admits to оwning a landscaping business during the period in question but denied working at the business while collecting temporary total compensation. The claimant cоntends that he hired help to do the work after he became disabled and that he withdrew from nearly all business activities.
{¶ 6} “The claimant states that he engаged in the following business activities: approximately once a week he put gas in lawn mowers, signed checks and issued cash for the employees!’] wages; on one occassion [sic] he pushed his self propelled mower into the garage and he continued to store the landscaping equipment at his residence just as he had done before he became disabled.
{¶ 7} “Prior to becoming temporarily and totally disabled, the claimant рerformed nearly all of the general labor for his business. He cut grass and
{¶ 8} “With the exception of signing payroll checks, all of the clerical duties were performed by his girlfriend.
{¶ 9} “* * *
{¶ 10} “Accоrding to the [hearing] transcript[,] the employer had the claimant surveilled for approximately thirty-six hours by Choice Point Services. At the District Hearing Officer’s hеaring, Ms. Miller, the claims Director of Choice Point Services, admitted that neither she nor anyone from her company observed the claimant pеrforming any landscaping work for his business. (See page 90 of the transcript.)
{¶11} “* * *
{¶ 12} “Both [State ex rel.] Nye [v. Indus. Comm. (1986),
{¶ 13} “Surely the claimant would havе been seen working if he had carried on his business pursuits, after his injury as he had done before, because the nature of his business required that the work be done outside.
{¶ 14} “Instead the evidence supports the claimant’s contention that he withdrew from nearly all business activities except those necessary tо preserve the business until he was physically able to return to it. The Staff Hearing Officer does not believe the Nye and Durant [decisions] prevent the meager aсtivities engaged in by the claimant nor do they require a self-employed individual to relinquish even that control which is absolutely necessary to preservе the existence of his pre-existing enterprise.
{¶ 15} “Based upon the foregoing facts, the Staff Hearing Officer finds that the claimant was not working [and] therefоre fraud is not an issue in this case. The Staff Hearing Officer also finds that the claimant did not engage in activities inconsistent with the receipt of temporary total compensation during the period in question. While the concept of activities inconsistent with the receipt of disability benefits has no prеcise definite [sic] case of temporary total disability in general, it encompasses situations where one engages in physical activities which exceeds [sic] the medical restrictions.
{¶ 17} The court of appeals declined Ford’s request to order the commission to vacate its order. Ford now appeals here as a matter of right.
{¶ 18} TTC is prohibited to one who has returned to work.
{¶ 19} Work is not defined for workers’ compensation purposes. We have held, however, that any remunerative activity outside the former position of employment precludes TTC. State ex rel. Nye v. Indus. Comm. (1986),
{¶ 20} Ford asserts that Blabac is controlling and bars TTC here. In Blabac, the claimant, John Blabac, was getting TTC when it was discovered that he was earning wages as a scuba diving instructor. While his pаrtner did the physical instruction, Blabac sat at poolside with a clipboard, grading the students. Id. at 113,
{¶ 21} The commission terminated TTC and declared an overpayment. Blabac argued that only “substantially gainful” work сould bar TTC, and that his work was neither substantial nor gainful. We disagreed with Blabac, holding that low paying and sporadic employment was still work. Because Blabаc was paid for his efforts, we determined that they constituted work, and barred TTC. We suggested that wage-loss compensation would have been more аppropriate for Blabac’s circumstances.
{¶ 22} Ford argues that under Blabac, any work precludes TTC and asserts that Blabac forbids TTC here. Ford, however, overlooks the distinction between this case and Blabac. Blabac never disputed that his actions constituted work. He argued instead that he had not worked enough to prevent TTC. Claimant
{¶ 23} Claimant’s assertion has merit. Unlike the claimants in Blabac, Nye, State ex rel. Johnson v. Rawac Plating Co. (1991),
{¶ 24} Obviously, application of this rationale must be applied on a case-by-case basis and only when a claimant’s activities are minimal. A claimant should not be able to erect a facade of third-party labor to hide the fact that he or she is working. In this case, however, claimant’s activities were truly minimal and only indirectly related to generating income. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.