Injury on the Second Job

Wednesday, March 2, 2011 | 0

By Paul E. Pfeifer
Ohio Supreme Court Justice

It’s not unusual for someone to work more than one job. But what happens when a person with multiple jobs gets injured at one of them? How does the workers’ compensation situation get sorted out? That was the issue in a case that we reviewed here – at the Supreme Court of Ohio.

The case involved a man named Christopher J. Roper, who began working part-time for FedEx Ground Package System Inc., in 2004. He made between $190 to $250 a week at that job. Then, in April 2006, Christopher took a second job with Integrated Pest Control that paid considerably more than the FedEx job.

On October 24, 2006, Christopher was injured while at FedEx. The company, which is a self-insured employer, set Christopher’s average weekly wage (“AWW”) at just over $160. FedEx set his full weekly wage (“FWW”) at $260. The amounts were based solely on his earnings at FedEx.

When those amounts were set, Christopher filed a motion with the Industrial Commission of Ohio – which handles workers’ compensation cases – to reset his average and full weekly wages based on his combined earnings from FedEx and Integrated Pest Control.

A district hearing officer with the Commission reviewed the case and granted Christopher’s motion to reset his AWW at $417, and his FWW at $457, based on income from both jobs.

In response, FedEx filed a complaint with the court of appeals alleging that the Commission abused its discretion in increasing Christopher’s full and average weekly wages. But the court of appeals disagreed. After that the case came before us for a final review.

The issue we had to consider was whether the Industrial Commission was correct to include Christopher’s wages from Integrated Pest Control when computing his full and average weekly wage.

Ohio law says that the AWW “is the basis upon which to compute benefits.” And, in a case from 1988, our court ruled that the AWW “should approximate the average amount that the claimant would have received had he continued working after the injury as he had before the injury.” Furthermore, in 1995 we ruled that the AWW must do the claimant “substantial justice” without providing a windfall.

The relevant law refers to the claimant’s “average weekly wage for the year preceding the injury,” so the AWW is typically based on the employee’s earnings for the year prior to injury divided by 52 weeks. This formula, however, can be abandoned if there are “special circumstances under which the average weekly wage cannot justly be determined” by using the standard calculations. When that occurs, the administrator of the Bureau of Workers’ Compensation “shall use such method as will enable the administrator to do substantial justice to the claimants.”

So, when the Commission’s district hearing officer – and later, a staff hearing officer – reviewed Christopher’s case, they concluded that Christopher’s additional employment with Integrated Pest Control was a “special circumstance” that warranted inclusion of those earnings in the aggregate wages for the year preceding his injury.

The Commission defended the amount set, but later stated that the hearing officers erred in using the special-circumstances provision because the standard calculation already demands inclusion of all wages earned in the year prior to injury.

FedEx countered that inclusion of wages from other jobs discourages claimants from continuing to work at the second job if they are medically able. FedEx claimed that the higher AWW that results from combining wages “creates a disincentive for employees to return to the workplace.”

FedEx also maintained that it was unfair to require an employer to pay weekly temporary total disability benefits that exceed the weekly amount that the claimant made while in its employ. The company urged us to exclude secondary wages, or at least limit their inclusion to situations where the two jobs are similar in character.

We rejected FedEx’s arguments for several reasons. First, there’s no basis in the law for excluding concurrent wages. The pertinent statute refers to wages earned in the year prior to injury without qualification or exclusion.

Second, contrary to FedEx’s representation, prior cases do not limit the inclusion of concurrent wages to jobs involving “similar” employment. The case that FedEx relied on to make its argument was from 1933. The law has changed since then, so that case is no longer relevant.

FedEx’s argument also failed from a practical standpoint. FedEx decried as inequitable the inclusion of wages from Christopher’s second job because those wages were significantly higher than his wages at FedEx, but similar jobs can also have very disparate earnings. Limiting wages to jobs that are similar in character doesn’t eliminate the potential wage differential to which FedEx objected.

Third, we weren’t persuaded by FedEx’s assertion that inclusion of concurrent wages discourages employment.  FedEx maintained that combining concurrent wages could produce an AWW that was high enough to discourage injured employees from continuing to work at the second job even if they were medically able.

But this proposition ignores the fact that the law expressly prohibits temporary total disability compensation payments “when work within the physical capabilities of the employee is made available by the employer or another employer.” Accordingly, a claimant who is still physically capable of working the second job – but chooses not to – cannot receive temporary total disability compensation.

Finally, inclusion of concurrent wages is not inherently unfair. FedEx argued that it was unfair to require it to pay temporary total disability compensation benefits that, based on combined wages, exceed Christopher’s wages at FedEx. This assertion failed for two reasons.

First, if a claimant is so severely hurt at one job as to disable him or her from both, it is not unfair to compensate the claimant for that cumulative loss. Second, the inclusion of two sets of wages was not considered unfair by the legislature when it passed the law.

We therefore concluded that the Industrial Commission did not abuse its discretion in setting Christopher Roper’s wages, and we affirmed – by a five-to-zero vote – the judgment of the court of appeals.

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Paul E. Pfeifer has served as an Ohio Supreme Court justice since 1993. This column was reprinted from his weekly newspaper columns website, which can be found here: http://www.sconet.state.oh.us/SCO/justices/pfeifer/column/2011/