[Cite as State ex rel. Goodwin v. Indus. Comm., 124 Ohio St.3d 334, 2010-Ohio-166.]




   THE STATE EX REL. GOODWIN, APPELLEE, v. INDUSTRIAL COMMISSION OF
                               OHIO, APPELLANT, ET AL.
                  [Cite as State ex rel. Goodwin v. Indus. Comm.,
                        124 Ohio St.3d 334, 2010-Ohio-166.]
Workers’ compensation — Temporary total disability compensation —
        Temporary total disability compensation cannot be paid for period
        claimant received wages — Temporary total disability compensation can
        be paid when claimant is not working and medical evidence corroborates
        claimant’s physical inability to return to former job.
 (No. 2008-2497 — Submitted November 3, 2009 — Decided January 28, 2010.)
      APPEAL from the Court of Appeals for Franklin County, No. 08AP-90,
                                    2008-Ohio-5971.
                                 __________________
        Per Curiam.
        {¶ 1} Appellee, Raymond A. Goodwin, received temporary total
disability compensation from late 2004 through November 9, 2006. Appellant,
Industrial Commission of Ohio, later learned that Goodwin worked for
approximately one week in mid-June 2005. The commission vacated all 18
months of compensation that followed that employment and declared both fraud
and overpayment. That decision is now before this court.
        {¶ 2} Goodwin strained his lower back in 2001 while working for Manco
Real Estate Management, Inc. In April 2005, his workers’ compensation claim
was additionally allowed for lumbar stenosis.             He requested temporary total
disability compensation from November 1, 2004, through June 5, 2005, and
submitted a C84 disability form from David Heuser, D.C. Based on the C84 and
an independent medical review, Goodwin’s request was granted.
                            SUPREME COURT OF OHIO




       {¶ 3} Throughout the summer, Goodwin participated in physical and
vocational rehabilitation. It was not enough to permit a return to his former
position of employment, although there is a notation in a June 21, 2005 physical
therapy report that Goodwin “worked 1 x at YMCA 6/6 – 6/11/05,” which the
parties agree refers to a brief period of employment that is at the heart of this
litigation. Goodwin was still physically unable to return to his former job in
autumn, and a more comprehensive, year-long rehabilitation plan was proposed
that would focus on work-hardening and alternative job-skills development.
During this time, Dr. Heuser continued to certify Goodwin as temporarily and
totally disabled, and based on these C84s, temporary total disability compensation
was eventually paid through November 9, 2006.
       {¶ 4} In 2006, the Bureau of Workers’ Compensation learned that
Goodwin had been employed for one week at the YMCA in June 2005.
Investigation revealed that Goodwin was paid $249.38 for 33 hours of work.
According to his YMCA job description, Goodwin had been hired part-time as a
weekend building supervisor. This was a light-duty job that primarily entailed
opening and closing the building on weekends along with “some light
housekeeping or cleaning.” Goodwin claims that he left the job because his injury
prevented him from doing all of the required tasks, and the commission does not
dispute this assertion.
       {¶ 5} The bureau’s investigation unit recommended that temporary total
disability compensation be declared overpaid from March 28, 2005, through July
5, 2005, and also asked for a finding of fraud. The March date corresponds with
the date Goodwin completed the YMCA employment application. The latter date
presumably comes from the June 13, 2005 C84 that certified temporary total




                                        2
                                     January Term, 2010




disability from June 5, 2005, through July 5, 2005, the interval in which the
period of employment fell.1
        {¶ 6} A commission district hearing officer (“DHO”) declared overpaid
all temporary total disability compensation awarded after Goodwin’s first day of
YMCA employment – June 6, 2005, through November 9, 2006. In vacating the
entire postemployment award, the hearing officer noted that each C84 submitted
in support of temporary total disability compensation listed Goodwin’s last date
worked (“LDW”) as August 4, 2004, rather than June 2005. The district hearing
officer was not persuaded that this was an inadvertent error but instead believed
that it reflected a deliberate attempt to conceal the June 2005 employment. A
staff hearing officer affirmed and reconsideration was denied.
        {¶ 7} Goodwin filed a complaint in mandamus in the Court of Appeals
for Franklin County.         The court ruled in Goodwin’s favor and ordered the
commission to reinstate the entire award minus the amount Goodwin had received
from the YMCA.           The court noted that Goodwin did not receive his initial
temporary total disability compensation check until after he had stopped working.
It also rejected the commission’s reliance on State ex rel. Ellis v. Indus. Comm.
(2001), 92 Ohio St.3d 508, 751 N.E.2d 1015, as authority for vacating the entire
award, and found instead that State ex rel. Griffith v. Indus. Comm., 109 Ohio
St.3d 479, 2006-Ohio-2992, 849 N.E.2d 28, controlled.
        {¶ 8} The commission now appeals to this court as of right.
        {¶ 9} Temporary total disability compensation cannot be paid over any
period when a claimant has (1) been working, i.e., exchanging labor for pay, State
ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433
N.E.2d 586, or (2) engaged in activities medically inconsistent with his or her


1. The bureau’s formal motion for overpayment asks that temporary total disability compensation
be vacated through July 5, 2006. The latter appears to be a typographical error, as we can find no
significance to the July 2006 date.




                                                3
                             SUPREME COURT OF OHIO




purported inability to return to the former job, even if done for free, State ex rel.
Parma Community Gen. Hosp. v. Jankowski. 95 Ohio St.3d 340, 2002-Ohio-
2336, 767 N.E.2d 1143. Goodwin does not contest his ineligibility for temporary
total disability compensation during the week that he worked at the YMCA but
disputes the commission’s decision to vacate all temporary total disability
compensation paid afterwards.      Goodwin argues that he was entitled to that
compensation because he was not working and unrefuted medical evidence
corroborated his physical inability to return to his former job. The commission
asserts that the wrong LDW appeared on every C84 submitted, which left each
one irreparably tainted and Goodwin’s temporary total disability compensation
request medically unsupported.
       {¶ 10} Two cases dominate discussion. The first is Ellis, 92 Ohio St.3d
508, 751 N.E.2d 1015. In July 1997, Ellis requested temporary total disability
compensation from January 31, 1997, through December 1, 1997. Id. at 508-509.
His C84 contained his doctor’s statement that not only was Ellis unable to return
to his former position of employment, he was incapable of all work. Id. at 509.
The C84 also contained Ellis’s averment that he had not worked during the
claimed period of disability. Id. at 508. Based on that form and others like it, Ellis
eventually received temporary total disability compensation through April 30,
1998. Id. at 509.
       {¶ 11} In August 1997, the bureau was tipped that Ellis was working, and
an investigation confirmed full-time janitorial employment since January 31,
1997. Id. at 509-510. Ellis resigned on December 1, 1997, after being confronted
with the bureau’s evidence against him. Id. at 512.
       {¶ 12} The commission found fraud and vacated the entire award. Id. at
510. Ellis objected, claiming that he should retain compensation from December
1, 1997, through April 30, 1998, because he did not work during that time. Id. at
512.




                                          4
                               January Term, 2010




        {¶ 13} We rejected that argument. Id. We reasoned that regardless of
whether Ellis actually worked from December 1, 1997, through April 30, 1998,
the C84 that generated temporary total disability compensation was prepared
while Ellis was still working. Id. As a result, two key elements of the C84 were
invalid: (1) Ellis’s attestation that he was not, and had not been, working, and (2)
his doctor’s certification that Ellis could do no work. Id. Because the commission
was entitled to reject the C84 in its entirety, compensation over the
postemployment period was medically unsubstantiated.
        {¶ 14} The other case germane to this controversy is Griffith, 109 Ohio
St.3d 479, 2006-Ohio-2992, 849 N.E.2d 28. Griffith helped renovate a friend’s
auto body shop in November or early December 2001. Id. at ¶ 3. Shortly after
that job was done, Griffith was hurt at his regular full-time job. Id. at ¶ 1.
Griffith was medically released to light-duty work, but because his employer had
no such work available, he applied for temporary total disability compensation.
Id.   His motion was granted, with temporary total disability compensation
commencing as of December 17, 2001, to continue upon submission of medical
proof. Id.
        {¶ 15} Griffith’s friend paid him $288 for the earlier renovation work. Id.
at ¶ 2.      The friend later paid approximately the same amount for some
miscellaneous light-duty errands that Griffith did for him over two weeks in
January 2002. Id. When the bureau learned of these two payments, it asked the
commission to declare an overpayment and fraud. Id. at ¶ 5.
        {¶ 16} The commission found that Griffith worked for a portion of this
period and retained the ability to continue with such work activity, but rather than
vacating only the temporary total disability compensation that corresponded to the
brief errand period, the commission vacated all of the temporary total disability
compensation that was paid thereafter, even though Griffith had done no work
over that time. Id. The commission based this decision on Griffith’s purported



                                         5
                             SUPREME COURT OF OHIO




“ability to continue with such [previous] work activity.” Id. The commission,
however, never stated whether that “work activity” was inconsistent with the
medical restrictions that prevented Griffith’s return to his former position of
employment. Id.
         {¶ 17} We reversed that decision, stressing that there was no evidence that
Griffith had engaged in any activity that was inconsistent with the medical
restrictions that prevented him from returning to his former job. Id. at ¶ 11.
Consequently, those activities could not preclude temporary total disability
compensation unless he had been paid for them. We concluded that Griffith could
not retain temporary total disability compensation over the period that he had
been paid, but that he was entitled to the balance of the award. Id. at ¶ 10, 14.
         {¶ 18} In each case, there was a concurrent payment of wages and
temporary total disability compensation, and at issue in each was the claimant’s
ability to retain previously paid temporary total disability compensation for
periods after the conflicting employment ended. The commission contends that
the salient distinction between Griffith and Ellis is that Ellis involved C84s that
contained a material misrepresentation. The commission argues that the C84s in
this case also contain a material misrepresentation – the wrong LDW – so Ellis
should control. Goodwin asserts that his case does not involve the massive fraud
perpetrated in Ellis but involves instead an isolated period of minimally
remunerated employment similar to Griffith and that therefore Griffith should
apply.
         {¶ 19} Goodwin has the stronger argument for two reasons. First, we are
not persuaded that Goodwin’s misrepresentation was “material.” In Ellis, we
affirmed that a finding of fraud requires not just a misrepresentation, but a
material misrepresentation. “Material” facts are those “facts that might affect the
outcome of the suit under the governing law.” Turner v. Turner (1993), 67 Ohio
St.3d 337, 340, 617 N.E.2d 1123. In Ellis, the claimant’s misrepresentation that




                                          6
                                January Term, 2010




he was not working was material because the truth (1) would have precluded
temporary total disability compensation as a matter of law and (2) discredited
every C84 because every C84 indicated that Ellis was incapable of all work.
       {¶ 20} In    Ellis,   moreover,   every misrepresentation     was   a   new
misrepresentation, as Ellis asserted with each new C84, and over a changing time
frame, that he was not working. In this case, a new misrepresentation was not
made on each C84. Instead, the same misrepresentation – that the LDW was
August 2004, not June 2005 – was repeated on each one, and this is significant,
because it raises the question of materiality. This misstatement was material,
insofar as temporary total disability compensation was paid in June 2005 when
Goodwin worked briefly at the YMCA. After that period, however, the relevance
of the wrong LDW increasingly wanes, because a doctor’s certification of
temporary total disability derives from the findings elicited from the claimant’s
most recent medical examination. It therefore follows that the further removed
the claimed disability period was from the week of YMCA employment, the less
effect it had on temporary total disability compensation eligibility.      Whether
Goodwin last worked in 2004 or 2005 should have no bearing, for example, on
the findings elicited from a 2006 medical evaluation. This makes it much harder
to justify voiding all of the claimant’s C84s.
       {¶ 21} Second, this case does not involve the massive fraud seen in Ellis.
While we do not condone any contemporaneous receipt of wages and temporary
total disability compensation, Goodwin worked a total of 33 hours for minimal
remuneration and then stopped working because his allowed conditions prevented
him from doing the job. Goodwin also immediately reported his attempt at
employment to his rehabilitation counselor. Ellis, on the other hand, had worked
full-time for nearly a year and stopped only when he was caught. Ellis also lied
about his work activities to bureau investigators when confronted.




                                          7
                            SUPREME COURT OF OHIO




       {¶ 22} Griffith more closely resembles the case at bar. Unquestionably,
Griffith requires vacation of temporary total disability compensation during the
time that Goodwin received wages. After that period, there is no evidence that
indicates that Goodwin engaged in any activities incompatible with his medical
restrictions. The DHO order refers to an alleged statement from Dr. Heuser in
which the doctor claimed that had he known Goodwin worked in 2005, he would
not have certified temporary total disability. This document is not, however, in
the record. Accordingly, there is nothing to support the denial of temporary total
disability compensation after Goodwin’s week of YMCA employment ended.
       {¶ 23} There is one aspect of the court of appeals’ decision that must be
corrected. The court of appeals suggested that concurrent payment of wages and
temporary total disability compensation was ameliorated by the fact that when
Goodwin received his first temporary total disability compensation check, he was
no longer working at the YMCA. 2008-Ohio-5971, ¶ 9. This is incorrect. A
claimant cannot receive wages and temporary total disability compensation for the
same time period. The relevant issue is not whether a claimant was working
when the temporary total disability compensation check was received. The issue
is whether the claimant was working over a period in which temporary total
disability compensation was paid. The timing of the check’s arrival is irrelevant.
       {¶ 24} The judgment of the court of appeals is affirmed.
                                                                Judgment affirmed.
       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Joseph E. Gibson, for appellee.
       Richard Cordray, Attorney General, and Douglas R. Unver, Assistant
Attorney General, for appellant.
                           ______________________




                                            8
