State ex rel. Nestlé USA-Prepared Foods Div., Inc. v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State ex rel. Nestlé USA-Prepared Foods Div., Inc. v. Indus. Comm., 101 Ohio St.3d
386, 2004-Ohio-1667.]

THE STATE EX REL. NESTLÉ USA-PREPARED FOODS DIVISION, INC.,
APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
[Cite as State ex rel. Nestlé USA-Prepared Foods Div., Inc. v. Indus. Comm.,
101 Ohio St.3d 386, 2004-Ohio-1667.]
Workers' compensation -- Potential wage-loss eligibility does not automatically
preclude temporary total disability compensation.
(No. 2003-0393 -- Submitted November 18, 2003 -- Decided April 14, 2004.)
APPEAL from the Court of Appeals for Franklin County, No. 01AP-1214, 2003-
Ohio-413.
_____________

Per Curiam.
{¶1} The workers' compensation claim of appellee-claimant Karen S.
Chesnick's was originally allowed for "contusion left elbow/forearm and reflex
sympathetic dystrophy of the left arm." Claimant received temporary total
disability compensation ("TTC") intermittently thereafter.
{¶2} On December 2, 1999, claimant's attending physician, Dr. Tarvez
Tucker, certified that claimant could not return to her former position of
employment but released her to "limited work duties -- 40 hours a week --
cannot use l[eft] hand regularly -- she needs to vary her position (standing or
sitting)." Her self-insured employer, appellant, Nestlé USA-Prepared Foods
Division, Inc., informed claimant in January 2000 that it had no work within her
restrictions and terminated her employment. It also told her that it would not pay
any TTC because she could do other work, and advised her to seek wage-loss
compensation instead.
{¶3} Claimant responded with a complaint to appellee Self-Insuring
Employers Evaluation Board, claiming an unlawful termination of TTC. The

SUPREME COURT OF OHIO
board agreed and ordered Nestlé to pay all outstanding TTC within 30 days or
face a $5,000 fine. Nestlé paid claimant the TTC owed.
{¶4} Nestlé turned to appellee Industrial Commission of Ohio, asking it
to declare claimant ineligible for further TTC and for a declaration that some of
the compensation paid was improperly ordered. The commission declined. It
stressed that for purposes relevant here, a self-insured employer could terminate
TTC without commission hearing only if the attending physician certified that
claimant could return to the former position of employment. Since Dr. Tucker had
stated that claimant could not return to her former job, TTC was appropriate and
could not be terminated unilaterally.
{¶5} Nestlé moved to the Court of Appeals for Franklin County. In its
mandamus complaint, it asserted its right to have unilaterally refused TTC
payment and sought to prevent further compensation. The court of appeals agreed
that Nestlé's unilateral termination was improper and upheld that portion of the
commission's order. The issue of further compensation was returned to the
commission for additional consideration in light of claimant's as-yet-
unadjudicated request to have a psychiatric condition added to her claim.
{¶6} This cause is now before this court upon an appeal as of right.
{¶7} The key facts are not disputed. Claimant was medically prevented
from returning to her former position of employment. She could, however, do
light work. Nestlé declared that no such work was available. Claimant's
entitlement to TTC is challenged, nonetheless, based on Nestlé's proposal that
eligibility for wage-loss compensation forecloses TTC.
{¶8} Nestlé portrays as unique -- and even unconscionable -- what is
actually a common workers' compensation occurrence -- overlapping benefit
eligibility. The system is replete with examples. The inability to perform
sustained remunerative employment that defines permanent total disability
("PTD"), for instance, obviously subsumes the inability to return to the former
2

January Term, 2004
position of employment required by TTC. Similarly, because benefits for
permanent total disability compensate for a complete loss of earning capacity (see
State ex rel. Gen. Motors Corp. v. Indus. Comm. [1975], 42 Ohio St.2d 278, 282,
71 O.O.2d 255, 328 N.E.2d 387), a claimant who qualifies for the former also
qualified for an award for impaired earning capacity under former R.C.
4123.57(A). 135 Ohio Laws, Part I, 1690, 1700. Conversely, because permanent
partial disability and temporary total disability compensate for two different
things,1 it is not inconsistent for a claimant who is eligible for one also to satisfy
the requirements of the other.
{¶9} None of this suggests that a claimant can receive two types of
compensation simultaneously. It does, however, show that concurrent eligibility
is inherent in the system, as all workers' compensation benefits involve some
variation on the ability to work. Therefore, eligibility overlap is unavoidable.
{¶10} These concepts are important because the wage-loss compensation
currently at issue interacts with other forms of compensation in the same manner.
A claimant, for example, who has sustained a total loss of earnings could
theoretically elect to receive wage-loss compensation under R.C. 4123.56(B)
instead of PTD. More pertinently, because wage loss and TTC derive from the
same statute and from a common root -- the inability to return to the former
position of employment -- the overlap is great, so great that (excluding the job
search usually required for wage loss) a claimant who qualifies for TTC often
qualifies for wage-loss compensation and vice versa.
{¶11} This inevitable overlap rebuts Nestlé's argument that a claimant
who is eligible to apply for wage-loss benefits is -- or should be -- automatically
barred from TTC. Nestlé's position, moreover, is not supported by statute or case

1. Permanent partial disability benefits are akin to a damages award. State ex rel. Gen. Motors
Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 282, 71 O.O.2d 255, 328 N.E.2d 387.
Temporary total disability compensates for a loss of earnings or earning capacity. State ex rel.
Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517 N.E.2d 533.
3

SUPREME COURT OF OHIO
law. R.C. 4123.56(A) permits TTC termination only when (1) claimant actually
returns to any sustained remunerative employment, (2) claimant's attending
physician certifies that claimant can return to the former position of employment,
(3) work within the claimant's physical capabilities is made available by an
employer, or (4) claimant has reached maximum medical improvement.
Eligibility for wage-loss compensation is not included in the termination criteria.
{¶12} Nestlé seizes on the third criterion and stresses that claimant can
do other work. That ability, however, is irrelevant to TTC eligibility unless
employment consistent with those abilities is made available by claimant's
employer or another employer. This, in turn, assumes that an actual offer of
employment has been made to the claimant. Since no offer of employment was
made to claimant, Nestlé's reliance is misplaced.
{¶13} R.C. 4123.56(A) also states that "[w]here the employee is capable
of work activity, but the employee's employer is unable to offer the employee any
employment, the employee shall register with the director of job and family
services, who shall assist the employee in finding suitable employment." The
present claimant did not do this, but contrary to Nestlé's representation, her
inaction does not require termination of TTC.
{¶14} Clearly, this registration provision seeks to facilitate the return to
any gainful employment that wage-loss compensation promotes. It does not,
however, specify loss of TTC as a penalty for noncompliance, much less permit a
self-insured employer to cease TTC without a commission hearing, as Nestlé did.
{¶15} Having found that R.C. 4123.56 does not support Nestlé's position,
we find that case law likewise fails to advance it. There are no cases that even
imply that potential wage-loss eligibility automatically precludes TTC. The four
court of appeals decisions that Nestlé cites discuss the history or goals of wage-
loss compensation with little or no reference to TTC. See State ex rel. Metal Seal
& Products, Inc. v. Indus. Comm. (Jan. 30, 1996), Franklin App. No. 95APD02-
4

January Term, 2004
238, 1996 WL 39652 (Deshler, J., dissenting); State ex rel. Smith v. Provincial
Am. Transp. (Mar. 15, 1994), Franklin App. No. 93AP-220, 1994 WL 85640;
State ex rel. Stevenson v. Orient State Inst. (Sept. 30, 1992), Franklin App. No.
91AP-1152, 1992 WL 250417; State ex rel. Sajar Plastics, Inc. v. Indus. Comm.
(July 31, 1990), Franklin App. No. 90AP-369. They do not support the premise
claimed by Nestlé.
{¶16} Finally, the commission contends that Nestlé's proposal frustrates
the goals of wage-loss compensation by encouraging employers to deny the
availability of suitable alternative employment. Nestlé's position indeed defeats
the wage-loss goal of returning the injured worker to the labor force as soon as
possible. It also forces the claimant to leave his or her place of employment to
seek work elsewhere, often to the disadvantage of the claimant. State ex rel.
Timken Co. v. Kovach, 99 Ohio St.3d 21, 2003-Ohio-2450, 788 N.E.2d 1037, ¶
27-28, for example, recently discussed the importance of workplace longevity and
the benefits that accrue therefrom, stressing the advantages of alternative
employment within the same company. This advantage is lost if the claimant's
employer has an incentive to deny the availability of other work within a
claimant's restrictions.
{¶17} For all of these reasons, the court of appeals' judgment is affirmed.
Judgment affirmed.

MOYER, C.J., F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON, O'CONNOR
and O'DONNELL, JJ., concur.

RESNICK, J., not participating.
______________

Licata & Associates Co., L.P.A., Louis J. Licata and Jody Perkins Ryan,
for appellant.

Wincek & DeRosa Co., L.P.A., Joseph C. DeRosa and John C. Bucalo, for
appellee Karen Chesnick.
5

SUPREME COURT OF OHIO

Jim Petro, Attorney General, and Erica L. Bass, Assistant Attorney
General, for appellees Industrial Commission of Ohio, Bureau of Workers'
Compensation, and Self-Insuring Employers Evaluation Board.
__________________
6