[Cite as State ex rel. McNea v. Indus. Comm., 131 Ohio St.3d 408, 2012-Ohio-1296.]




     THE STATE EX REL. MCNEA, APPELLANT, v. INDUSTRIAL COMMISSION
                             OF OHIO ET AL., APPELLEES.

                   [Cite as State ex rel. McNea v. Indus. Comm.,
                       131 Ohio St.3d 408, 2012-Ohio-1296.]
Workers’ compensation—Meaning of “sustained remunerative employment”—
        Illegal activity can be sustained remunerative employment inconsistent
        with alleged disability—Judgment affirmed.
    (No. 2010-1770—Submitted February 7, 2012—Decided March 29, 2012.)
     APPEAL from the Court of Appeals for Franklin County, No. 09AP-605,
                                    2010-Ohio-4186.
                                 __________________
        Per Curiam.
        {¶ 1} Appellee Industrial Commission of Ohio terminated appellant
Donald F. McNea Jr.’s permanent total disability (“PTD”) compensation after
finding that he had engaged in sustained remunerative employment while
receiving those benefits.          McNea does not contest the termination of
compensation after September 5, 2007.              He does, however, object to the
commission’s finding that he was performing, or capable of performing, sustained
remunerative work from October 1, 2005, through September 5, 2007—a
determination that generated a declaration of overpayment for compensation paid
during that period.
        {¶ 2} McNea was a police officer for appellee city of Parma and was
awarded PTD compensation in 2004 for injuries that he claimed to have sustained
in that capacity. When PTD was granted, however, none of the parties knew that
McNea was being secretly investigated by his own department for the suspected
illegal sale of Schedule II and III narcotics.
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       {¶ 3} According to Parma police records, the department had received a
tip in 2003 that McNea was selling prescription medications. An investigation
began, and over the next two years, numerous conversations occurred between
McNea and confidential informants in which McNea indicated that he could
obtain OxyContin or similar drugs for them. Between October 1, 2005, and
December 23, 2005, McNea made four recorded sales to informants, netting
$6,200.
       {¶ 4} McNea was arrested on December 23, 2005, and was later indicted
on 20 counts of criminal activity. McNea pled guilty to four felony charges and
on September 4, 2007, was sentenced to three years in prison.
       {¶ 5} On November 5, 2007, the Bureau of Workers’ Compensation
moved the commission to both terminate further PTD compensation and declare
past PTD compensation overpaid as of August 25, 2004, when the payments
began. A commission staff hearing officer (“SHO”) terminated benefits pursuant
to R.C. 4123.54(J) as of September 5, 2007, the date of McNea’s incarceration.
The SHO declined, however, to declare any earlier benefits to be overpayments
because there was “no proof that the injured worker was involved in sustained
remunerative employment at the time of the permanent and total disability
hearing.” (Emphasis added.)
       {¶ 6} The bureau urged the commission to grant reconsideration,
claiming that the SHO had made clear mistakes of law and fact in finding no
evidence of sustained remunerative employment during the time McNea was
receiving PTD compensation. The bureau relied heavily on State ex rel. Lynch v.
Indus. Comm., 116 Ohio St.3d 342, 2007-Ohio-6668, 879 N.E.2d 193, ¶ 8, which
declared that the illicit sale of drugs could constitute sustained remunerative
employment sufficient to terminate PTD.




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                               January Term, 2012




       {¶ 7} The     commission     agreed   with    the   bureau   and       granted
reconsideration. It ultimately declared that all compensation paid after McNea’s
first confirmed drug sale on October 1, 2005, constituted an overpayment:


       [T]he Injured Worker’s activity of selling the prescription narcotic
       medication OxyContin over a period of months does constitute
       sustained remunerative employment, sufficient to require a
       termination of his permanent total disability benefits.         The
       Commission relies on the fact that the amount of money involved
       in the four sales to undercover agents over a two month period in
       late 2005 would equate to an annual figure of $24,000, which
       clearly would amount to sustained remunerative employment. The
       Commission also agrees with the [bureau] Administrator that, had
       the Injured Worker not been arrested as of 12/23/2005, he most
       likely would have continued the activity for quite a while. The
       Commission relies on the holding in Lynch, that such activity can
       amount to sustained remunerative employment, even though it is
       illegal. The Commission further finds that the appropriate date of
       termination of the Injured Worker’s permanent total disability
       benefits is 10/01/05, as this was the first documented date of such
       activity to which the Injured Worker pled guilty.


       {¶ 8} McNea filed a complaint in mandamus in the Court of Appeals for
Franklin County. The court found that no abuse of discretion had occurred and
denied the writ, prompting McNea’s appeal to this court as of right. State ex rel.
McNea v. Indus. Comm., 10th Dist. No. 09AP-605, 2010-Ohio-4186, 2010 WL
3480705.




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       {¶ 9} R.C.      4123.54(J)    specifically    prohibits   the   payment     of
compensation to an incarcerated claimant, so McNea does not contest the
cessation of benefits during his period of confinement. He does, however, object
to the declaration of overpayment for compensation paid earlier, arguing that (1)
the commission erred in reconsidering the SHO’s order, (2) there is no evidence
that he engaged in sustained remunerative employment between October 5, 2005,
and September 5, 2007, and (3) the commission violated his due process rights by
terminating PTD while he was still in prison. For the reasons to follow, none of
these arguments have merit.
       {¶ 10} R.C. 4123.52 gives the commission continuing jurisdiction to
reopen a matter previously decided. This authority can be properly invoked when
the order contains a clear mistake of law or fact for which reconsideration is being
sought. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-
5990, 817 N.E.2d 398, ¶ 14. In the case at bar, the SHO based his decision on a
lack of evidence that McNea was working at the time of the PTD hearing. This
reasoning is too narrow and constitutes a clear mistake of law. The correct focus
is not on whether McNea was performing sustained remunerative employment on
the date of the PTD hearing. The question is whether at any time during the
receipt of PTD compensation, McNea was (1) doing sustained remunerative work,
(2) medically capable of sustained remunerative employment, or (3) engaged in
activities medically inconsistent with the alleged disability. State ex rel. Lawson v.
Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, ¶ 16.
       {¶ 11} The commission, in granting reconsideration, relied on Lynch’s
declaration that remunerative employment encompasses any remunerative
activity, legal or otherwise. Lynch, 116 Ohio St.3d 342, 2007-Ohio-6668, 879
N.E.2d 193, ¶ 8. The commission thus found that the SHO had committed a clear
mistake of law and fact in failing to take McNea’s illegal sales activity into
account. This finding is not an abuse of discretion and is accordingly upheld.




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        {¶ 12} McNea next challenges the commission’s determination that he
was performing, or capable of performing, sustained remunerative employment
over the period in question. A claimant who engages in, or is medically capable
of, sustained remunerative employment cannot receive PTD. State ex rel.
Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170, 509 N.E.2d 946 (1987).
Sustained remunerative employment can encompass both legal and illegal
activities. Lynch at ¶ 8. McNea’s activities were clearly remunerative. The
question before us is whether the commission abused its discretion in
characterizing McNea’s remunerative employment as sustained.
        {¶ 13} “Sustained” has not been defined for workers’ compensation
purposes. We have, however, stated that remunerative activity does not have to
occur on a regular or daily basis to be considered sustained. State ex rel. Kirby v.
Indus. Comm., 97 Ohio St.3d 427, 2002-Ohio-6668, 780 N.E.2d 275, ¶ 10. Any
“ongoing pattern” of activity can be categorized as sustained activity. State ex rel.
Schultz v. Indus. Comm., 96 Ohio St.3d. 27, 2002-Ohio-3316, 770 N.E.2d 576,
¶ 63.
        {¶ 14} In this case, the evidence established an ongoing pattern of phone
calls and other sales-related activity that culminated in the four recorded sales that
McNea made between October and December 2005.                      The commission
characterized this sales activity as sustained remunerative employment, and we
decline to disturb that finding.
        {¶ 15} The commission also extrapolated from its finding that McNea
continued to possess the medical ability to engage in such activity even after his
arrest. This conclusion is also sustained. Lawson stated that nothing demonstrates
a capacity for sustained remunerative work better than the actual performance of
it. Id., 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, at ¶ 17. McNea was
performing sustained remunerative work through late December 2005, and there
is no evidence that his medical condition changed afterwards so as to preclude



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that endeavor. The commission also found no evidence suggesting that McNea
would have abandoned his long-running enterprise had he not been arrested.
Given the commission’s “substantial leeway in both interpreting and drawing
inferences from the evidence before it,” the commission did not abuse its
discretion in concluding that McNea remained medically capable of sustained
remunerative work after his arrest and was not entitled to PTD compensation
thereafter. Id. at ¶ 34.
        {¶ 16} Finally, McNea had unsuccessfully petitioned the commission to
postpone the PTD termination hearing until after his release from prison. He now
claims, in a perfunctory fashion, that this denial offended his due process rights
because his presence at hearing was “of the utmost importance.” We reject this
argument.
        {¶ 17} McNea’s attendance at the hearing was not necessary to preserve
his rights. McNea was competently represented there by counsel, who could have
presented by video or affidavit any statement McNea wished to make. McNea
never explains what allegedly indispensable evidence he would have offered had
he been present, and he ignores that the focus of the hearing was not on factual
issues but on legal ones: continuing jurisdiction and the characterization of his
activities as sustained. McNea’s absence did not compromise this discussion or
his rights.
        {¶ 18} The judgment of the court of appeals is affirmed.
                                                              Judgment affirmed.
        O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
        LANZINGER, J., concurs in judgment only.
                              __________________
        Paul M. Friedman and Michael P. O’Malley, for appellant.




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       Michael DeWine, Attorney General, and Derrick L. Knapp, Assistant
Attorney General, for appellee Industrial Commission.
       Bashein & Bashein Co., L.P.A., and W. Craig Bashein; and Paul W.
Flowers Co., L.P.A., and Paul W. Flowers, for appellee city of Parma.
                           ______________________




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