State ex rel. Brown v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Brown v. Industrial Commission of Ohio.
[Cite as State ex rel. Brown v. Indus. Comm. (1993),
Ohio St.3d .]
Workers' compensation -- Industrial Commission improperly
orders permanent total disability compensation
suspended while claimant is incarcerated in a penal
institution.
(No. 93-943 -- Submitted September 14, 1993 --
Decided December 15, 1993.)
In Mandamus.
On or about October 25, 1972, relator, David C.
Brown, was injured in the course of and arising out of his
employment. On September 7, 1982, respondent, Industrial
Commission of Ohio, awarded relator permanent total
disability compensation.
On January 30, 1989, relator was incarcerated in a
penal institution in this state. As a result, the
commission ordered relator's permanent total disability
compensation suspended. In its order, the commission also
advised that following his release from prison, relator
could file for reinstatement of benefits. Relator then
brought this original action in mandamus,1 challenging the
suspension of his benefits.

David C. Brown, pro se.
Lee I. Fisher, Attorney General, and William J.
McDonald, Assistant Attorney General, for respondent
Industrial Commission of Ohio.

Douglas, J. The issue presented by this mandamus
action is whether the commission improperly ordered
relator's permanent total disability compensation
suspended while relator is incarcerated in a penal
institution of this state. For the reasons which follow,
we find that the commission suspended relator's
compensation contrary to law.

As a preliminary matter, we note that in its order
suspending relator's compensation, the commission relied
upon R.C. 4123.54. It is apparent that the commission was
relying upon the last paragraph of R.C. 4123.54(B), which
was added to the statute effective August 22, 1986. That
portion of the statute provides that "[c]ompensation or
benefits shall not be payable to a claimant during the
period of confinement of the claimant in a penal
institution * * *."
It is well settled that a claimant's entitlement to
workers' compensation payments is a substantive right
measured by the statutes in force at the time of injury
rather than by subsequently enacted statutes.
Republic-Franklin Ins. Co. v. Amherst (1990), 50 Ohio
St.3d 212, 213, 553 N.E.2d 614, 615. Applying this
principle, we observe that on the date of relator's
injury, R.C. 4123.54 was silent with respect to
restrictions on a claimant's benefits due to
incarceration. Therefore, we find that the last paragraph
of R.C. 4123.54(B), pertaining to compensation or benefits
payable to a claimant during incarceration, is not
applicable to the facts in this case.2
On August 24, 1993, the commission filed a response
to this court's order to show cause why relator's writ
should not be granted. In its response, the commission
premises termination of compensation on principles
enunciated in State ex rel. Ashcraft v. Indus. Comm.
(1987), 34 Ohio St.3d 42, 517 N.E.2d 533, and State ex
rel. Chrysler Corp. v. Indus. Comm. (1991), 62 Ohio St.3d
193, 580 N.E.2d 1082. The commission takes the position
that Ashcraft, read in conjunction with Chrysler, allows
for the suspension of workers' compensation payments,
without limitation, when a claimant becomes an inmate in a
penal institution. We disagree.
In Ashcraft, we upheld the denial of a claimant's
request for reinstatement of temporary total disability
compensation on the grounds that the claimant's
incarceration amounted to a voluntary abandonment of his
former position. 34 Ohio St.3d at 44-45, 517 N.E.2d at
535. Our decision in Ashcraft was rooted largely in
principles set forth in State ex rel. Jones & Laughlin
Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, 29
OBR 162, 504 N.E.2d 451, wherein the issue before the
court was whether a claimant's voluntary retirement from
the work force precluded temporary total disability
benefits. Ashcraft, supra, 34 Ohio St.3d at 43, 517
N.E.2d at 534.
In Chrysler, supra, relying on State ex rel. Rockwell
Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531
N.E.2d 678, we concluded that voluntary retirement not
only precluded receipt of temporary total disability
compensation but also precluded receipt of permanent total
disability compensation. 62 Ohio St.3d at 196, 580 N.E.2d
at 1084-1085. We reasoned that if abandonment of a former
position of employment barred temporary total disability
compensation, it must also preclude permanent total
disability compensation because "former position of

employment" is necessarily included within "sustained
remunerative employment," by which permanent total
disability compensation is determined. Id.
Even though, at first glance, our findings in
Ashcraft and Chrysler, when read together, appear to
support the commission's position, we find that both
decisions are distinguishable and not applicable here.
More important, we find that the commission's argument
lacks merit when the underlying purposes of compensation
for temporary total disability and for permanent total
disability are contrasted.
Temporary total disability compensation and permanent
total disability compensation are governed by separate
sections of R.C. Chapter 4123 and it is clear that "[t]he
different statutory goals require the two sections to be
read separately." State ex rel. Bunch v. Indus. Comm.
(1980), 62 Ohio St.2d 423, 427, 16 O.O.3d 449, 451, 406
N.E.2d 815, 818. R.C. 4123.56 deals with temporary total
disability compensation, while R.C. 4123.58 concerns
compensation for permanent total disability.
Temporary total disability is a disability which
prevents a worker from returning to his or her former
position of employment, State ex rel. Ramirez v. Indus.
Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d
586, syllabus, and involves exclusively work-prohibitive
disabilities, State ex rel. Kaska v. Indus. Comm. (1992),
63 Ohio St.3d 743, 746, 591 N.E.2d 235, 237. The ultimate
purpose of temporary total disability compensation is to
compensate an employee for his or her lost earnings.
Bunch, supra, 62 Ohio St.2d at 427, 16 O.O.3d at 451, 406
N.E.2d at 818. Further, an employee's compensation can be
terminated pursuant to R.C. 4123.56 under specific
circumstances. For instance, temporary total disability
compensation can be terminated if the employee has
returned to work, the employee's treating physician has
made a written statement authorizing the worker's return
to his former position, or the disability has become
permanent. Ramirez, supra, 69 Ohio St.2d at 632, 23
O.O.3d at 519, 433 N.E.2d at 588.
In contrast, permanent total disability is a
disability rendering a claimant unfit for sustained
remunerative employment, State ex rel. Jennings v. Indus.
Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420,
and the purpose of the compensation is to compensate a
worker for total impairment of his or her earning
capacity, Bunch, supra, 62 Ohio St.2d at 427, 16 O.O.3d at
451, 406 N.E.2d at 818, citing State ex rel. Gen. Motors
Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 71 O.O.2d
255, 328 N.E.2d 387. We have stated that earning capacity
"connotes not what claimant did earn, but what he or she
could have earned." (Emphasis sic.) State ex rel. Eaton
Corp. v. Indus. Comm. (1993), 66 Ohio St.3d 180, 183-184,
610 N.E.2d 992, 995. Moreover, R.C. 4123.58 does not
speak specifically to termination of compensation, but,
rather, provides that "the employee shall receive an award
to continue until his death * * *." R.C. 4123.58(A).
In Ashcraft, supra, we basically concluded that the

claimant's temporary total disability compensation could
be denied or terminated because the claimant's choice to
engage in criminal activity was comparable to the
claimant's voluntary abandonment of his former position of
employment. However, it is clear that such a situation
did not, nor could it possibly, exist here.
The commission goes astray in this case by focusing
on relator's incarceration rather than the relator's
disability. Clearly, once a worker has been declared
permanently and totally disabled he or she is incapable of
returning to work. As such, a claimant who has a
permanent and total disability is incapable of abandoning
a position because that position, in effect, does not
exist. Indeed, a claimant can abandon a former position
or remove himself or herself from the work force only if
he or she has the physical capacity for employment at the
time of the abandonment or removal.
Additionally, it is important to discern that R.C.
4123.58 (permanent total disability) involves earning
capacity. The fact that relator was imprisoned did not
change his capacity to work. Further, R.C. 4123.58,
unlike R.C. 4123.56 (temporary total disability), does not
discuss specific instances when workers' compensation may
be terminated. This is because R.C. 4123.58 mandates that
permanent total compensation continue until the employee's
death. Accordingly, we believe the commission's reliance
on Ashcraft is misplaced.
We further find that the commission's reliance on
Chrysler is clearly distinguishable and can be easily
reconciled with our situation here. In Chrysler, the
claimant was injured and he was awarded temporary total
disability compensation. The claimant eventually returned
to work and several years later he retired, indicating on
a form that he was taking an "Early Retirement at Employee
Option." A few years following his voluntary retirement,
the claimant applied for permanent total disability
compensation.
A critical distinction exists between Chrysler and
the case before this court. Chrysler concerned a
claimant's total disability which did not arise until
after he had retired from his former position of
employment. Here, we are confronted with a claimant who
has been declared permanently disabled prior to his
incarceration. Hence, it would be incorrect to maintain
that the claimant's request for permanent total disability
benefits in Chrysler, which were sought after the claimant
voluntarily retired, can be equated with the relator's
benefits, which were awarded prior to his imprisonment but
then later suspended. Thus, Chrysler, being factually
inapposite to this case, does not apply.
On September 7, 1982, the commission awarded relator
permanent total disability compensation. A finding by the
commission that a claimant is permanently and totally
disabled is a finding that the claimant is permanently
removed from the work force by reason of his or her
injury. In a situation where it has been determined that
a claimant is entitled to permanent total disability

compensation, it is of no consequence that a subsequent
event may arise, such as the claimant's incarceration,
which may further impair his or her ability to work,
because the subsequent event does not negate the causal
relationship between the work-related injury suffered by
the claimant and his or her absence from the work force.
In other words, when a claimant has been determined to be
permanently and totally disabled, it is not the subsequent
incarceration which prevents the claimant's return to
sustained remunerative employment, it is the disability
itself.
For the foregoing reasons, we find that the
commission improperly suspended relator's workers'
compensation benefits. Therefore, the requested writ of
mandamus is granted.
As a final note, we realize that payment of workers'
compensation to a penal inmate may be offensive to many.
However, sentiment aside, we are required to follow the
law pronounced by the General Assembly. Numerous courts
outside this state that have confronted this issue have
declined to terminate or suspend benefits absent express
statutory authority. See, e.g., Bearden v. Indus. Comm.
of Arizona (1971), 14 Ariz. App. 336, 483 P.2d 568; Spera
v. Wyoming Worker's Comp. Div. (Wyo. 1986), 713 P.2d 1155;
Crawford v. Midwest Steel Co., Inc. (La. App. 1987), 517
So.2d 918; Forshee & Langley Logging v. Peckham (1990),
100 Ore. App. 717, 788 P.2d 487; and King v. Indus. Comm.
of Utah (Utah App. 1993), 850 P.2d 1281. See, also,
United Riggers Erectors v. Indus. Comm. of Arizona (Ariz.
App. 1981), 131 Ariz. 258, 640 P.2d 189; and Last v. MSI
Constr. Co., Inc. (1991), 305 S.C. 349, 409 S.E.2d 334.
The Supreme Court of Wyoming, in countering an argument
that a worker receives a double recovery if workers'
compensation benefits are not suspended during
incarceration, aptly stated that:
"Even if we agreed with the State that jail time
amounts to a governmental benefit rather than punishment,
we would still uphold his right to benefits. The worker's
disability payments cannot be characterized as mere
governmental largesse that can be eliminated when the
worker's needs are fulfilled from another governmental
source. Rather, the worker's statutory right to
disability payments is akin to a contract right. Nobody
would argue, in the private insurance context, that an
insurer could withhold payments due under an insurance
contract just because the insured had a second policy
which covered the same disability. The insurers would
ordinarily have to pay under both policies unless one of
the insurance contracts contained an excess insurance or
exclusionary clause which provided otherwise.
"We believe this same principle should apply to
industrial insurance created by statute. Because there is
no statutory exception which eliminates benefits when a
worker is jailed, the benefits are due the worker even if
his needs are fulfilled from another governmental source.
* * *" Spera, supra, 713 P.2d at 1157-1158.
The relator in the case before us suffered an injury

for which he had a lawful right to compensation. Pursuant
to R.C. Chapter 4123, relator's right to sue his employer
for injury was abrogated in exchange for his rights under
workers' compensation laws. Absent legislative action
(which now exists) effective at the time of injury,
relator should not be denied his right to such
compensation.
Writ granted.
Moyer, C.J., A.W. Sweeney, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
Wright, J., dissents.

FOOTNOTE:
1 On september 7, 1993, relator filed a motion to join
the Bureau of Workers' Compensation as a party-respondent.
2 We are aware, of course, that R.C. 4123.54(B) does
not differentiate between types of compensation or
benefits paid to an injured claimant. However, since R.C.
4123.54(B) was enacted after the claimant's injury, the
statute is not applicable in this case.

Wright, J., dissenting. Whether the compensation
received by an injured employee is labeled temporary total
disability or permanent total disability, the purpose
behind the compensation provided by the workers'
compensation laws remains the same: to replace lost
wages. Individuals confined to penal institutions have
removed themselves from the work force and consequently
have no wages, actual or potential, that can be replaced.
Our decision in State ex rel. Ashcraft v. Indus. Comm.
(1987), 34 Ohio St.3d 42, 517 N.E.2d 533, implicitly
recognized this idea.
The decision in Ashcraft was based on sound public
policy, a policy now codified at R.C. 4123.54(B). Unlike
the majority's opinion, the statute does not distinguish
between temporary total benefits and permanent benefits.
And its explicit mandate is that compensation is not
payable to individuals confined to penal institutions. I
see no reason to depart from this policy in the case
before us today.
Accordingly, I respectfully dissent.