Under R.C. §4123.56, an injured worker in Ohio is eligible to receive temporary total disability (“TTD”) compensation for any periods of time they are completely disabled and unable to work due to a work-related injury or illness. However, in many cases employees will receive other forms of pay, including sick time, vacation time, compensatory time, or paid personal leave, during the same period. What forms of compensation can an injured worker continue to receive while remaining eligible to receive TTD compensation?
Memo D1 of Adjudications Before the Ohio Industrial Commission specifically notes several types of compensation that can be paid concurrently with temporary total compensation. The memo notes that vacation pay is an earned, contractual benefit that is vested, and therefore can be paid concurrent with temporary total compensation. Therefore, the fact that a claimant used vacation pay during a period of total disability does not preclude payment of TTD during that period. The policy and rationale allowing the concurrent payment of vacation pay and TTD compensation also applies to holiday pay. Under Ohio Administrative Code §4123-5-20 and State ex rel. Rubin v. Industrial Commission of Ohio, 134 Ohio St. 12, 11 Ohio Op. 382, 15 N.E.2d 541 (1938), the payment of accrued vacation and holiday pay does not preclude the payment of TTD over the same period. However, sick pay and short term disability pay do preclude the payment of concurrent TTD, ostensibly because they compensate the claimant for the same reason: an inability to work due to the injury. Although not addressed specifically, items such as compensatory pay or paid time off (“PTO”) would typically allow for the payment of concurrent TTD, as these forms of payment are earned, accrued contractual benefits of the employee. Finally payments such as bonuses, commissions, and other forms of passive income also do not bar the payment of TTD over the same period as they are not considered “regular salary.”
If the payment is an earned, contractual benefit that is vested, then TTD can generally be paid concurrently with the form of payment. However, other forms of “regular salary” pay that do not meet this standard would prevent an injured worker from receiving TTD for the same period of time.
If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.