Ohio Supreme Court Says Federal Employment Standards May Not Be Used to Determine if Claimant Was Part of Workforce

An Ohio appellate court erred when, in trying to determine if a claimant was part of the active workforce, it turned to an article describing how the United States Department of Labor’s Bureau of Labor Statistics counts farm workers in its Current Population Survey, held the Supreme Court of Ohio in a split decision [State ex rel. Vonderheide v. Multi-Color Corp., 2019-Ohio-1270, 2019 Ohio LEXIS 701 (Apr. 9, 2019)]. No authority supported the use of such federal guidelines to determine eligibility for Ohio workers’ compensation benefits. Moreover, the majority of the Court held those federal standards would count claimants as employed for purposes of TTD-compensation eligibility in violation of the principles espoused in Ohio case law.

Background

The claimant sustained injuries while working for an employer in 1992. Her claim was approved for a variety of back, leg, and knee conditions. In 2001, she had a right total knee replacement. In 2002, the claimant began receiving Social Security retirement benefits. That same year, the commission determined that the claimant had reached MMI. In 2003, she entered a vocational rehabilitation program but withdrew from it after several months.

In a hearing on her claim for additional TTD benefits, claimant testified that after 2002, she worked primarily at her family farm in Brown County, Ohio, helping her husband raise cows and grow tobacco. At the end of each year, her husband gave her a portion of the farm’s net profits as payment for her activities.

When her husband died in 2009, the claimant sold all the cattle and leased the farmland to others. The claimant testified that after that, her activity at the farm involved tasks such as mowing the grass and picking up trash in the yard. The majority noted that the record contained transcripts of the claimant’s tax returns for tax years 2004 through 2007 and 2009 through 2012, showing that her income varied significantly from year to year.

Additional Surgery & Claim for Additional TTD Benefits

In July 2012, the claimant had surgery on her right knee. She had a follow-up surgery in November 2012. In March 2014, the claimant requested TTD compensation commencing July 31, 2012. The commission denied the request, finding that the claimant had not met her burden to establish that she was in the workforce and had wages to replace as of that date. The commission concluded that the farm was a passive investment at which the claimant sometimes performed chores and that this did not constitute evidence that the claimant was in the workforce as of the date on which she was requesting that her TTD compensation begin.

Tenth District Appeals Court Vacates Commission’s Decision

The Tenth District granted the claimant’s mandamus petition and ordered the commission to vacate its decision, finding the commission’s decision was not based on “some evidence” and, therefore, constituted an abuse of discretion.

Supreme Court Decision

The majority of the Supreme Court noted that the Tenth District began its analysis by asserting that “the traditional understanding of what constitutes being a part of the active workforce for the purpose of awarding TTD benefits has not taken into account inherent differences in farm employment from other types of employment as applied to the facts contained in the record” [2018-Ohio-1714, 111 N.E.3d 773, at ¶ 29]. To remedy this, the Tenth District turned to the article described above, concluding that under the Current Population Survey, the claimant would have been counted as employed.

There were problems with this approach, said the majority. For example, the CPS survey had a definition of employment that was too broad. It included workers performing as little as one hour of work during the week. It also included unpaid family workers in family-owned businesses.

The commission’s decision was supported by evidence in the record. The claimant had chosen to receive Social Security retirement benefits in 2002. The majority noted that the high court had earlier considered such a decision as evidence that a claimant no longer was in the workforce [State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260, 2014-Ohio-3614, 17 N.E.3d 547, ¶ 24]. It added that the claimant‘s testimony included virtually no testimony that she had sought employment leading up to 2012, in spite of the fact that, after her husband’s death in 2009, she had sold the farm’s cattle and leased its land out to be farmed by others. The majority added that tax records showed that the claimant’s earnings fluctuated greatly from year to year both before and after her husband’s death and that she earned more in some of the years that she physically did little work at the farm than she did in some of the years in which she performed more work at the farm.

“Some Evidence” Standard

The majority concluded that although the record contained evidence that supported the claimant’s claim, the commission’s order should be upheld if it was supported by “some evidence.” It was immaterial whether other evidence, even if greater in quality and/or quantity, supported a decision contrary to the commission’s. Justice Donnelly dissented, without a reported opinion.