# State ex rel. Clark v. Industrial Commission

> Ohio Supreme Court · August 15, 2001 · 92 Ohio St. 3d 455

URL: https://www.frixlaw.com/law-library/cases/6782982

## Case

- **Full name:** The State ex rel. Clark v. Industrial Commission of Ohio Southern Ohio Correctional Facility, Ohio Department of Rehabilitation & Correction
- **Court:** Ohio Supreme Court
- **Decided:** August 15, 2001
- **Citations:** 92 Ohio St. 3d 455; 751 N.E.2d 967
- **Precedential status:** Published
- **Opinion:** Dissent by Cook
- **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Cook, J.,
dissenting. The majority holds that R.C. 4123.56(A) does not require a setoff of TTD benefits where hostage leave has been paid pursuant to the terms of a collective bargaining agreement (“CBA”). For the following reasons, however, I disagree.
As the majority notes, “[t]he purpose behind TTD compensation is to compensate an employee for a loss of earnings while recovering from an injury. State ex *462 rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44 , 517 N.E.2d 533, 535 .” (Emphasis added.) I agree with this statement of purpose, and that is precisely why I must respectfully dissent. Clark’s receipt of hostage leave under Article 34.05 of the CBA compensated him at the regular rate of pay, with leave that was not charged to him. He thus suffered no “loss of earnings” attributable to the period during which he recovered.
I agree with the appellate court magistrate’s conclusion that the term “nonoccupational,” construed in the context of R.C. 4123.56(A)’s setoff provisions, refers to wage-replacing compensation paid for temporary disability by sources collateral to the workers’ compensation system. The magistrate’s interpretation is buttressed by the administrative interpretation of the relevant statutory provisions — an interpretation to which we should accord appropriate deference. See Swallow v. Indus. Comm. (1988), 36 Ohio St.3d 55, 57 , 521 N.E.2d 778, 779 . Though notably absent from the majority’s discussion, Ohio Adm.Code 4123-5-20(C) provides:
“Where claimants are paid a regular salary during the period of disability on any * * * basis [other than vacation], for example, sick leave, [TTD] cannot be paid so long as such regular salary or wages are paid, unless * * * such salary was paid as an advancement.” 4 (Emphasis added.)
It is undisputed that Clark was paid his regular salary during his period of disability and that it was not paid as an advancement.
The majority relies heavily on the fact that the CBA article immediately preceding the article providing hostage leave expressly provides that such leave is “in lieu of Workers’ Compensation” — whereas the article providing hostage leave does not. But the preceding article to which the majority refers is entitled “Occupational Injury Leave.” (Emphasis added.) The fact that hostage leave does not appear in the CBA article entitled “Occupational Injury Leave” actually undercuts the majority’s thesis by demonstrating that the parties to the CBA, like the magistrate and the commission, deemed hostage leave nonoccupational— and thus subject to setoff under R.C. 4123.56(A).
An award of TTD benefits to Clark in this case does not correspond to the overall purpose of R.C. 4123.54 and 4123.56(A) to compensate employees for TTD only to the extent that they have not been compensated for their lost wages by their employers. The commission did not abuse its discretion when it determined that the TTD Clark received should be set off by the hostage leave compensation that he received. I would reverse the appellate court’s decision to the contrary.
Phillip J. Fulton & Associates and William A. Thorman III, for appellee.
Betty D. Montgomery, Attorney General, Karla L. Stultz, Assistant Attorney General, and Lee M. Smith, Special Counsel, for appellant.
. See, also, Memo Nos. Cl and C2 of the Industrial Commission of Ohio Policy Statements and Guidelines (Jan. 1, 1989), which implement this directive.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6782982. Public record. Not legal advice.