Wage loss prevention


By Paul E. Pfeifer - Court of Appeals



On April 20, 2009, Kenneth D. Oldaker II was injured in the course of his employment as a Columbus firefighter. He had worked with the fire division since 1987 and was a lieutenant at the time of his injury.

After his injuries occurred, Oldaker filed a workers’ compensation claim that was allowed for a torn medial meniscus in his right knee, and substantial aggravation of preexisting right-knee degenerative joint disease. He received temporary-total-disability compensation for a period of time for his injuries.

In January 2012, the Ohio Police and Fire Pension Fund granted Oldaker’s application for a partial-disability retirement. Then, in April 2012, Oldaker accepted a position as a deer-herd manager with Crosswoods Whitetails, L.L.C. – a company owned by his wife that raises deer for breeding, hunting, and meat. Oldaker worked 35 hours a week at $9.50 an hour, earning about $332 a week.

A couple of months after taking that job, Oldaker applied to the Bureau of Workers’ Compensation for wage-loss compensation to partially compensate him for the difference between his avearage weekly wage as a firefighter and his lower earnings from Crosswoods.

A staff member with the Ohio Industrial Commission – which handles such matters – determined that Oldaker’s current position was medically suitable work, but that it was not comparably paying because his $322-a-week at Crosswoods was far below his average weekly wage of $1,677 as a firefighter.

The hearing officer noted that after a relatively brief job search, Oldaker did not continue a good-faith search for comparably paying work once he was hired by Crosswoods, despite his obligation under the Ohio Administrative Code to do so. The hearing officer thus denied Oldaker’s application.

Oldaker then filed an action in the court of appeals seeking a writ compelling the Commission to reverse its decision. But the court of appeals denied the writ, stating that Oldaker had only searched for comparably paying suitable work “for a little more than one month before taking a low paying job with his wife’s company, working out of their home.”

The court of appeals noted that he stopped all efforts to find a higher paying job after taking the Crosswoods job. “Given these undisputed facts, we find that the Commission did not abuse its discretion in denying working-wage-loss compensation.”

After being denied at the court of appeals, Oldaker brought his case before us – the Ohio Supreme Court.

The law that deals with wage-loss compensation provides for compensation for wage loss for persons unable to return to a former position of employment due to a workplace injury or occupational disease, but who are still able to do some work.

If eligible, the injured worker may be entitled to receive a percentage of the difference between the prior and current income for up to 200 weeks. To be entitled to wage-loss compensation, the worker must demonstrate an actual wage loss caused by the injuries that put him out of work in the first place.

At the time of Oldaker’s application, the law required him to provide evidence of having made a good-faith effort to search for comparably paying suitable work along with a physician’s opinion of all medical restrictions.

“Suitable employment” is work within the claimant’s physical capabilities. Employment is “comparably paying work” if the claimant’s weekly rate of pay is equal to or greater than the average weekly wage paid at the former job.

The law in effect at the time also stated that a “good faith effort necessitates the claimant’s consistent, sincere, and best attempts to obtain suitable employment that will eliminate the wage loss.”

When a claimant’s subsequent job is lower paying than the former one, it is subject to scrutiny to ensure that the actual wage loss is caused by the allowed injuries related to the workers’ compensation claim and not simply a lifestyle choice.

Under these circumstances, our court uses a broad-based analysis that looks beyond mere wage loss when deciding whether the worker’s failure to search for another job should be excused.

Oldaker contended that his Crosswoods job was comparably paying work despite the obvious disparity in wages. He relied on the vocational evaluation conducted for his disability retirement, which resulted in a report stating that his earning capacity had been significantly reduced after he left the fire department.

The Commission, as the exclusive evaluator of disability and employability, was not required to rely on this vocational evidence, even if it wasn’t contradicted. Furthermore, the vocational-evaluation report didn’t fully support Oldaker’s position, given that it included the statement that Oldaker had “expressed no interest in beginning a new career at this time and plans on working on a part time basis only if he has to.”

Oldaker also maintained that he wasn’t required to continue his job search because his new job was full-time with the potential for future growth. He based this argument on a workers’ compensation case from 1999 in which our court concluded that a claimants’ failure to continue his job search was excused after he obtained lucrative part-time work with a realistic possibility that it would become full-time.

But the Commission concluded that unlike the situation in that 1999 case, there was no evidence that Oldaker reasonably expected his new job to soon develop into comparably paying work and he therefore remained obligated to continue his job search.

The evidence demonstrated that Oldaker failed to make “consistent, sincere, and best attempts to obtain suitable employment that will eliminate the wage loss.” He accepted a low-paying, entry-level job in the family business after a relatively brief search for other work. In fact, Oldaker told the Industrial Commission’s hearing officer that he had not searched for work since starting his job at Crosswoods, stating, “Why would I? I have a job.”

We agreed with the court of appeals that the Industrial Commission of Ohio did not abuse its discretion in denying Oldaker’s request for wage-loss compensation. Consequently – by a seven-to-zero vote – we affirmed the judgment of the court of appeals.

By Paul E. Pfeifer

Court of Appeals

Paul E. Pfeifer is a judge in the Court of Appeals.

Paul E. Pfeifer is a judge in the Court of Appeals.

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