You Can Lose Your Georgia Workers Compensation Benefits If Your Get Another "Job" Says the Court in McNea v. Industrial Commission of Ohio

April 4, 2012
By Lawfirm of J. Franklin Burns, P.C. on April 4, 2012 1:02 PM |

If you have suffered a work related injury in Georgia, you may be confused about the future.

Having an experienced Georgia injury attorney explain your rights to you is crucial in obtaining the peace of mind you deserve.
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McNea v. Industrial Commission of Ohio is a recent Ohio workers' compensation (WC) case that has piqued interest. This is a case dealing with the question of whether someone who is receiving WC benefits can lose these benefits if they obtain another job. The issue here arises with the definition of "remunerative employment" in this Ohio case.

Specifically, does being a drug dealer count?

McNea (Plaintiff) was a city police officer who suffered from injuries sustained while he was acting in this capacity. In 2004, the plaintiff received WC compensation in the form of permanent total disability (PTD). Subsequently, plaintiff was arrested for illegally selling narcotics. He was charged with twenty counts of criminal activity and sentenced to three years in prison.

The problem in this case arose in 2007 when a commission staff hearing officer (SHO) terminated plaintiff's WC benefits as of the day of plaintiff's arrest. The SHO did not agree with the WC Bureau that benefits granted before the date of arrest should be considered overpaid. The reason this SHO cited was that there was no proof provided that would show that plaintiff "was involved in sustained remunerative employment at the time of the permanent and total disability hearing." The WC bureau argued this decision regarding overpayment, and sought reconsideration because there had been evidence that plaintiff had made narcotic sales to police informants amounting to $6,200.

WC laws dictate that no benefits will be awarded to claimants who are incarcerated. Plaintiff acknowledges this however he argues that there was no evidence that he engaged in sustained remunerative employment from 2005-2007 and that by terminating his PTD award while he was still in prison was a violation of his due process rights.

This court decided that upon the first date of sale of drugs plaintiff made to police informants, his future compensation would be terminated. The reasoning the court cites for this decision is that the plaintiff's drug selling activity over a several months constituted a "sustained remunerative employment" for purposes of WC. The only requirement for sustained activity is that there was proof of an ongoing pattern of activity. The court even went so far as to calculate the proposed income that plaintiff could have made over his time selling drugs. And it was assumed that the plaintiff would not have stopped his drug activity for a while, which would have provided him with a substantial income.

The court looks to prior case law that cites that even if the claimant is engaged in illegal activity that activity would be considered as sustained remunerative employment. If a beneficiary of WC benefits is found to be engaged in this type of employment, prior benefit awards can be taken away.

As to the due process argument, the court found that it was not essential for the plaintiff to have been at his hearing for the termination of his PTD because his lawyer was there. Because there was no evidence that plaintiff would have offered any evidence at his termination hearing, the court found that his attorney was there to represent his rights; therefore, this fact did not compromise his rights.

If you, someone you work with or someone you love has been injured in an accident on the job or needs to file a workers' compensation claim in Georgia, contact the Atlanta worker's compensation attorneys at the law offices of J. Franklin Burns, P.C. today for a free and confidential appointment to discuss your rights. Call 404-303-7770.

Additional Resources:
State ex rel. McNea v. Industrial Commission of Ohio et al., No. 2012-Ohio-1296 (Mar. 29, 2012).