The opinion
[This opinion has been published in Ohio Official Reports at 79 Ohio St.3d 311.]
THE STATE EX REL. GRISSOM, APPELLEE, v. INDUSTRIAL COMMISSION OF
OHIO, APPELLANT.
[Cite as State ex rel. Grissom v. Indus. Comm., 1997-Ohio-369.]
Workers’ compensation—Industrial Commission improperly orders permanent
total disability compensation suspended while claimant is incarcerated in a
penal institution, when.
(No. 95-742—Submitted June 11, 1997—Decided July 30, 1997.)
APPEAL from the Court of Appeals for Franklin County, No. 94APD02-269.
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{¶ 1} Appellee-claimant, George Grissom, was injured in 1973 in the
course of and arising from his employment with Acme Wrecking Company. His
workers’ compensation claim was allowed by appellant, Industrial Commission of
Ohio, and, in 1984, claimant was awarded permanent total disability compensation.
{¶ 2} On January 20, 1988, claimant was incarcerated and the commission
suspended permanent total disability compensation as of that date. On December
15, 1993, this court held in State ex rel. Brown v. Indus. Comm. (1993), 68 Ohio
St.3d 45, 623 N.E.2d 55, that incarceration could not be used to terminate the
permanent total disability benefits of a claimant who had been adjudicated as
permanently and totally disabled prior to imprisonment. This, in turn, prompted
claimant to seek reinstatement of his compensation.
{¶ 3} After receiving no response from the commission, claimant filed a
complaint in mandamus in the Court of Appeals for Franklin County. The court
ultimately granted the writ, which vacated the commission’s order and directed it
to issue a new order in compliance with Brown.
{¶ 4} This cause is now before this court upon an appeal as of right.
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SUPREME COURT OF OHIO
Betty D. Montgomery, Attorney General, and Diane S. Meftah, Assistant
Attorney General, for appellant.
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Per Curiam.
{¶ 5} The commission does not dispute Brown’s applicability. It instead
asserts that the criminal activities that led to the claimant’s incarceration may be so
inconsistent with his allegation of an inability to perform sustained remunerative
employment as to warrant further commission investigation. We find that the
commission’s position lacks merit.
{¶ 6} We acknowledge at the outset that the payment of workers’
compensation benefits to an imprisoned claimant is offensive to many. Legislation
has since eliminated the ability of more recently injured claimants to receive
workers’ compensation while jailed. R.C. 4123.54. In this case, however, the
unpopularity of claimant’s receiving compensation is insufficient to sustain the
commission’s position.
{¶ 7} The record is very sparse. Claimant was originally charged with drug
trafficking, aggravated robbery, and attempted murder. The offenses for which he
was convicted are not known, nor are the details of the crime(s). However, even if
claimant were convicted of all the aforementioned charges, it does not necessarily
follow that claimant’s commission of drug trafficking, aggravated robbery, or
attempted murder establishes a physical ability to perform sustained remunerative
employment.
{¶ 8} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
RESNICK and LUNDBERG STRATTON, JJ., dissent.
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LUNDBERG STRATTON, J., dissenting.
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January Term, 1997
{¶ 9} The majority concedes that the record in this case is sparse and that
very little detail is known about the claimant’s criminal activities. Yet, given that
observation, the majority declines to find that the commission should be entitled to
conduct further investigation. Therefore, I must respectfully dissent.
{¶ 10} When the claimant brought the fact of his incarceration to the
commission’s attention seeking reinstatement of his permanent total disability
benefits, his criminal record suggested that he was physically able to participate in
physical activities, albeit criminal ones, inconsistent with permanent total
disability. The commission elected to exercise its continuing jurisdiction over the
claim for further investigation as to the extent of claimant’s permanent total
disability. The commission has continuing jurisdiction over each claim, and it may
change or modify its former findings if justified. R.C. 4123.52. Evidence of
Grissom’s criminal activities was certainly justification for the commission to
investigate the status of his disability.
{¶ 11} To justify a change or modification of its earlier order of permanent
total disability, the commission would be required to produce evidence other than
just Grissom’s criminal record. Evidence of Grissom’s conviction, his
incarceration, or his criminal activity, alone, does not warrant a change in his
disability status merely to avoid reinstatement of permanent total disability benefits
pursuant to State ex rel. Brown v. Indus. Comm., supra. As the majority states,
even if the claimant committed all the crimes with which he was charged, that alone
would not establish that he had the physical ability to work on a sustained basis.
{¶ 12} The commission would have to produce evidence that the physical
activities involved in his criminal enterprise were inconsistent with permanent total
disability. The record below contains insufficient evidence on which to make that
conclusion. But it is also mere speculation to assume that the claimant remains
permanently and totally disabled. Based on the claimant’s conviction, the
commission is entitled to investigate further and to seek additional evidence.
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SUPREME COURT OF OHIO
{¶ 13} The commission had begun the administrative process toward
further investigation when the process was stayed by the filing of Grissom’s
petition for writ of mandamus. The court of appeals should have denied the writ in
order to allow the commission to complete its administrative investigation. This
court should find that the commission is authorized to exercise its continuing
jurisdiction over this claim in order to investigate and seek additional evidence as
to the permanent total disability of Grissom. For these reasons, I dissent.
RESNICK, J., concurs in the foregoing dissenting opinion.
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