5.02.2011

Workers’ Compensation and Wage Loss Compensation: Good Faith Job Search Required at All Times

While engaging in a good faith job search while claiming workers’ compensation and wage loss compensation may appear to be obvious, there can be a tendency to be lax when a claimant is still employed with the employer of record in a claim and the employer is not able to provide the same number of hours working under light duty as the hours worked at the time of the industrial injury. The Ohio Supreme Court in State, ex rel. Marrero v. Indus. Comm., 126 Ohio St. 3d 439, makes a good faith job search an absolute pre-requisite to the payment of wage loss compensation in this scenario.
In this case, the claimant was a 40-hour per week employee at the time of her injury. After her injury, she started working a 40-hour week under a light duty assignment. Eventually, the employer was not able to provide a 40-hour shift under the light duty restrictions. After working these reduced hours for several months, the claimant applied for wage loss compensation. The Ohio BWC awarded wage loss compensation without any proof from the claimant that she engaged in a good faith job search in an effort to increase her income. The employer appealed this decision, and it was ultimately decided by the Industrial Commission that the claimant was not entitled to this requested wage loss compensation due to the complete absence of the required job search.
In affirming this denial of wage loss compensation by the Industrial Commission, the Supreme Court cites both ORC 4123.56(B)(1) and the associated Administrative Code Section 4125-1-01(D)(1)(c). Wage loss compensation is intended for claimants who are medically unable to return to their former position of employment but who can do other work. Secondly, claimants who are seeking working wage loss compensation must show proof of a good faith job search within his or her medical and vocational capabilities that pays wages comparable to that of the claimant’s job at the time of injury. As the claimant made no effort at any time to engage in a good faith job search, the Supreme Court felt that the claimant was not entitled to this requested wage loss compensation.



Contact: Brian Tarian
614.723.2028
btarian@ralaw.com

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