One of the most effective ways of reducing excesses in workers' compensation cases is to enforce the law. Sometimes this is done creatively.
In Ohio, the Supreme Court did double duty on issues that confound all states: prescription medication abuse and disability fraud.
Ruling that a police officer who netted $6,200 from OxyContin sales was engaged in "remunerative employment", they court said that the officer must return to the state the $91,535.64 he was paid in permanent total disability benefits.
In State ex rel. McNea v. Industrial Commission of Ohio et al., No. 2010-1770, Donald McNea Jr. successfully established three separate workers' compensation claims for various sprains and contusions, aggravation of pre-existing disc disease, and post-traumatic stress disorder from altercations with suspects in the line of duty.
A hearing officer determined in 2004 that McNea was "physically and psychologically (un)able to maintain even sedentary employment on a sustained basis" and awarded him disability benefits.
McNea was arrested in December 2005 after a police informant purchased 50 OxyContin tablets from him at a local bar. A 20-count indictment followed, which described illegal sales of Hydrocodone and Oxycodone that had occurred on four occasions between October and December 2005.
He later pleaded guilty to five counts of trafficking. In 2007, he was sentenced to three years in prison.
The state Bureau of Workers' Compensation (Ohio is one of the few monopolistic states), upon learning of McNea's arrest, sought to terminate McNea's benefits, retroactive to 2004. It alleged McNea had been trafficking in narcotics since 2003, and "built a pattern of fictitious injuries" in order to obtain "gross amounts" of prescription drugs to sell.
After the original hearing officer refused to make a finding of fraud, the case went up the chain of appeals, ending on the door step of the Ohio Supreme Court, which made some interesting observations and statements.
"The correct focus is not on whether McNea was performing sustained remunerative employment on the date of the PTD hearing," but rather, "whether at any time during the receipt of PTD compensation, McNea was (1) doing sustained remunerative work, (2) medically capable of sustained remunerative employment, or (3) engaged in activities medically inconsistent with the alleged disability," the justices said.
The court also explained that "sustained remunerative employment" can encompass both legal and illegal activities, noting that "McNea's activities were clearly remunerative," so the issue was whether it was "sustained."
"In this case, the evidence established an ongoing pattern of phone calls and other sales-related activity that culminated in the four recorded sales that McNea made between October and December 2005," the justices reasoned. "The commission characterized this sales activity as sustained remunerative employment, and we decline to disturb that finding."
The court said that McNea continued to possess the medical ability to engage in such work even after his arrest, since "nothing demonstrates a capacity for sustained remunerative work better than the actual performance of it."
It's hard to argue against this reasoning - regardless of whether the "work" is legal or illegal, the fact that one can engage in an income sustaining activity reflects a lack of disability. Since "disability" is a legal fiction for the purpose of determining a financial result, it is within the parameters of "the law" to define the boundaries of its application.
Clearly in Ohio, being "disabled" does not include ability to engage in illegal retail sales.
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