In November of 2020, we discussed a workers’ compensation case regarding temporary total disability (TTD) payments. The issue in the case was whether an injured worker is entitled to TTD payments if the worker rejects a good faith offer of suitable alternative employment from his or her employer. In the case at issue, the night shift worker declined an alternative position with the employer because it was a day shift position and they had to watch their grandkids during the day.
The Court of Appeals held that an employee who declines a suitable offer of employment made in good faith is not entitled to TTD benefits, even if the employee has a good faith reason for rejecting the offer, such as familial obligations.
The case was appealed to the Ohio Supreme Court, which has now vacated the decision of the Court of Appeals and remanded the case back to the Industrial Commission for further proceedings.
What was missed by the Court of Appeals?
According to the Supreme Court, the Industrial Commission hearing officers at both the District and Staff level appeared to be confused about the proper standard to apply in deciding whether to award TTD benefits. Specifically, the Supreme Court found that the Industrial Commission needed to determine whether the offer of employment was made in good faith.
The hearing officers addressed this very question in their decisions but the majority on the Supreme Court believed that the hearing officers applied only a limited view of what could constitute bad faith. That view was that the offer could be considered bad faith if it was consciously constructed in a way that the employer knew the employee would have to reject.
The Supreme Court noted that this is but one way in which the Industrial Commission could find bad faith, not the only way, as the hearing officers seemed to indicate. Even though the hearing officers considered the employee’s argument that the job offer was made in bad faith they each found that the offer was not made in bad faith because it was essentially the only position available.
The Supreme Court noted that the Appeals Court is not the finder of fact and therefore the case must go back to the Industrial Commission to make a factual determination as to whether the employer made an offer of alternative employment in good faith, considering all relevant factors, and not only whether the offer was consciously crafted to be rejected.
What does this mean for your district?
We will see what the Industrial Commission decides but it is a safe bet to assume that, if they grant the benefits to the employee, it will be appealed again. It is still good law that an employee is not entitled to benefits of a good faith offer if suitable alternative employment is rejected. However, employers need to be careful in considering what work to offer to an employee. If an offer is made that the employer knows cannot be accepted by the employee, it may be considered to be in bad faith and will not result in a denial of benefits.