On March 29, 2012, the Supreme Court of Ohio ruled that a disabled police officer who engaged in the illegal sale of prescription medication while he was receiving workers’ compensation benefits engaged in “sustained remunerative employment” and must return benefits he collected. State ex rel. McNea v. Indus. Comm., Slip Opinion No. 2012-Ohio-1296.
Donald McNea was granted permanent total disability (PTD) benefits beginning in August of 2004 based on injuries he claimed to have sustained in the course and scope of his employment. Between October 1 and December 23, 2005, Mr. McNea was recorded selling Oxycontin to undercover police informants on four separate occasions, netting a total of $6,200 in the transactions. On September 7, 2007, Mr. McNea entered guilty pleas to four felony charges and was sentenced to three years in prison.
In November of 2007, the Bureau of Workers’ Compensation (BWC) filed a motion asking the Industrial Commission to terminate all further PTD benefits and order him to repay all of the benefits he had received since his original award. The Staff Hearing Officer deciding the motion terminated benefits as of Mr. McNea’s incarceration, but refused to order repayment because there was “no proof that the injured worker was involved in sustained remunerative employment at the time of the [PTD] hearing.” However, the Staff Hearing Officer’s order was vacated upon appeal to the full Industrial Commission.
Mr. McNea filed a complaint in mandamus in the Tenth District Court of Appeals and a subsequent appeal to the Ohio Supreme Court. The Court determined that illicit sale of drugs could constitute “sustained remunerative employment” sufficient to terminate PTD benefits. The court stressed that the correct focus is not on whether Mr. McNea was working at the time of the PTD hearing; but whether he was engaging is sustained remunerative employment at any time during the receipt of PTD benefits.
The McNea case, in addition to providing an interesting fact pattern, also illustrates that employers can request a finding of overpayment of PTD benefits all the way back to the date of original award if a claimant is found to be engaging in sustained remunerative employment at any time during the receipt of PTD benefits.