State ex rel. Hassan v. Marsh Bldg. Products,
100 Ohio St.3d 300, 2003-Ohio-6022

SUBJECT
Temporary Total Disability Benefits (“TTD”)

RULE
Claimants are entitled to receive subsequent periods of TTD even if they performed interim temporary work.

CASE DISCUSSION
Claimant was injured in the course of and arising out of his employment with Marsh Bldg. Products (“Marsh”). Claimant admittedly and voluntarily abandoned his position of employment with Marsh ten days following his injury. Several weeks later, a temporary employment agency placed claimant in another position. Claimant worked for a limited period of time, only a few shifts, and was unable to continue in his temporary assignment as a result of his original injury.

Claimant’s condition worsened; the additional conditions of “tear of right anterior talofibular ligament, osteochondritis dessicans of right medial talar dome” were allowed; surgery was recommended and claimant moved for TTD based upon C84s from his chiropractor.

The Commission never examined the C84s and denied claimant’s TTD request because of claimant’s voluntary abandonment of his former position of employment with Marsh. Thereafter, the Ohio Supreme Court decided State ex rel. McCoy v. Dedicated Transport, Inc. 97 Ohio St.3d 25, 2002-Ohio-5305, which ruled voluntary abandonment of a job, whether by quitting or termination, did not bar TTD if the allowed conditions removed the employee from later employment.

McCoy was then applied to these facts and the appellate court issued a limited writ directing that the Commission should have examined claimant’s C84s before refusing to pay TTD. On appeal to the Ohio Supreme Court, Marsh argued that the few shifts of claimant’s temporary employment did not invoke McCoy. In other words, if claimant performed actual work, then claimant was not entitled to TTD under McCoy. The Court rejected Marsh’s argument and accepted claimant’s assertion that because any employment, no matter how insubstantial, bars TTD, then any employment should be sufficient to invoke McCoy, which does not bar TTD if the employee does not work due to the allowed conditions.