Drugs, a Rogue Police Officer, and … Permanent Total Disability Compensation

It almost sounds like the plot to a new, hip, cinematic thriller. Possibly Oliver Stone's comeback movie or Quentin Tarantino's long-awaited sequel to "Pulp Fiction." Okay, not quite. But those of us in the workers' compensation field can dream, can't we?

The muse for my blog comes from the hallowed halls of the Ohio Supreme Court. In perusing recent decisions, I came across the case of State ex rel. McNea v. Indus. Comm., Slip Opinion No. 2012-Ohio-1296 (Decided March 29, 2012). If you consider the "raw" facts, it has the true makings of a summer blockbuster. Donald F. McNea, Jr. was a police officer for the city of Parma and was awarded permanent total disability (PTD) compensation in 2004 for injuries that he claimed to have sustained in that capacity. Unbeknownst to the parties involved with this determination, Officer McNea had been under investigation by his own department for selling prescription medications. Of note, he was recorded as having made four sales to confidential informants in 2005, netting $6,200. He was later arrested, indicted, and sentenced to three years in prison after having pled guilty to four felony charges.

Here's the best part: In 2007, the Bureau of Workers' Compensation moved the Industrial Commission (IC) to both terminate further PTD compensation and to declare past PTD compensation overpaid as of August 25, 2004, when payments began(!). (Wow! Who saw that coming? Actually, we all did, but I digress.) The end result of the administrative process was that the IC terminated Mr. McNea's PTD compensation after finding that he had engaged in sustained remunerative employment while receiving those benefits. McNea then filed a complaint in mandamus in the Court of Appeals for Franklin County. From there the case ended up in front of the Ohio Supreme Court.

The question for the court was whether McNea had engaged in "sustained remunerative employment" as the result of his illegal activities, and the court ruled that he had. The court stated that the IC had properly relied on the court's prior decision in State ex rel. Lynch v. Indus. Comm., 116 Ohio St.3d 342, 2007-Ohio-6668, which declared that the illicit sale of drugs could constitute sustained remunerative employment sufficient to terminate PTD. Though the injured worker in Lynch was not a police officer, the basic facts are just as compelling. Mr. Lynch was described in the court's decision as having operated an "ongoing crack-cocaine enterprise" out of his home. With facts like these, it has "prequel" written all over it.


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