Ohio: Temporary Disability Compensation Can Include Concurrent Wages

The Supreme Court of Ohio has ruled that wages from a second job may be used to calculate an injured worker’s average and full weekly wages in determining temporary total disability compensation for an injury he sustained on the first job.

The appeal concerned a decision by the Industrial Commission of Ohio on an injury sustained by Christopher Roper while employed by FedEx Ground Package System Inc., where he had worked part-time since 2004. Roper took a second job in April 2006 with Integrated Pest Control that paid more.

On Oct. 24, 2006, Roper was injured at FedEx, and subsequently applied for workers’ compensation benefits. As a self-insured employer, FedEx set Roper’s average weekly wage at $160.45 and his full weekly wage at $250.80, based solely on his earnings at FedEx.

Roper asked the Industrial Commission to reset his average and fully weekly wages based on his combined earnings from FedEx and Integrated Pest Control. A district hearing officer, citing the “special circumstances” provision of R.C. 4123.61, granted Roper’s motion and reset his AWW at $417.05, and FWW at $457.36, based on income from both jobs. The order was affirmed but FedEx appealed.

The 10th District Court of Appeals declined to reverse of the Industrial Commission’s award and FedEx took the case to the Supreme Court.

In the 5-0 per curiam opinion, which affirmed the court of appeals judgment, the Supreme Court found FedEx’s arguments unpersuasive by noting that state law does not bar the inclusion of concurrent wages in the calculation of a worker’s disability benefits; relevant case law does not limit the inclusion of concurrent wages to jobs involving ‘similar’ employment; the inclusion of concurrent wages will not discourage employment; and the inclusion of concurrent wages is not inherently unfair.

The case is FedEx Ground Package Sys., Inc. v. Indus. Comm., Slip Opinion No. 2010-Ohio-2451.