Last week, the Franklin County Court of Appeals
affirmed the denial of an administrative appeal from a SPBR decision which had
denied reinstatement from a disability leave to a court probation officer who
still received Temporary Total Disability (TTD) workers compensation four
months after applying for reinstatement. Ewell
v. Montgomery Cty. Court of Common Pleas,
2014-Ohio-3047. “[E]vidence of the receipt of TTD at the time
an employee applies for reinstatement from an IDS is reliable, probative, and
substantial evidence that an employee is unable to return to work since the
very statutory definition of TTD requires that the employee's treating
physician continue to determine the employee is medically unable to perform his
or her job duties.”
According to the Court’s well-written opinion, the employee
incurred a work related injury and began a disability leave in September 2008. The employer
then initiated a disability separation. Under the employer’s policy, he had three
years to seek reinstatement. The employee applied for reinstatement on
September 8, 2011 with a medical statement from his physician indicating that
he could return to work without any medical restrictions. Nonetheless, he continued to submit statements
to the BWC indicating that he could not
perform his job. Accordingly, at the
reinstatement hearing (held on January 18, 2012), his employer declined to
consider the medical evidence that he submitted and, instead, focused on the
information he continued to provide to the BWC about his inability to work. He had
received his most recent TTD payment just a week before the hearing. Refusing to reinstate an employee who claims
that he can return to work while the same employee provides information to the
BWC that he cannot work was not an
inappropriate decision. It probably did
not help the employee’s cause that he failed to seek reinstatement until the
very last day of his leave period.
In fact, here, appellant continued to submit requests for TTD
compensation to the BWC after he applied for reinstatement from his IDS.
Appellant's treating physician reported to appellee that appellant was able to
return to work as of September 7, 2011 for purposes of reinstatement from his
IDS, but appellant reported to the BWC that, based on reports of medical
evaluations conducted September 12, 13 and 14, 2011, appellant was unable to
return to work for purposes of receiving continued TTD payments. Logically,
these two positions are incompatible.
The Court found a similar case where the employee was still
receiving disability pay through DAS to be factually distinguishable because
the TTD standard differs from the DAS standard.
What was not discussed, or apparently argued, is how this
case would turn out if the pro se employee had argued that he was entitled to
reinstatement under the ADAA if his physician indicated that he could return to
work and the employee requested a modification of the employer’s three-year leave
cap. The EEOC has been filing suit against other employers with inflexible
leave cap policies. Of course, the federal courts have adopted similar arguments of judicial estoppel concerning the receipt of social security income while simultaneously arguing the ability to perform essential job duties.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
