The Ohio Supreme Court’s McNea v. Industrial Commission decision is noteworthy because of the tenacity that a former Parma police officer showed by sticking to his guns while in the line of the Bureau of Workers’ Compensation’s (BWC) fire. In this case, the police officer, Donald McNea Jr., tried to convince the highest court in the state that his repeated illegal drug sales should not preclude his receipt of permanent total disability compensation (PTD). The Court disagreed with McNea.
McNea was awarded PTD in 2004 as a result of work injuries. Beginning on October 1, 2005, McNea illegally sold prescription drugs, such as OxyContin, on at least four occasions in a three-month period, including four sales to informants cooperating with an undercover investigation by his own police department. In 2007, McNea pled guilty to four felonies and he was sentenced to three years in prison.
State law specifically prohibits the receipt of PTD by an incarcerated claimant. Thus, McNea was not entitled to PTD for his three years of incarceration. But state law also prohibits PTD when a claimant engages in, or is medically capable of, sustained remunerative employment. Sustained remunerative employment includes an ongoing pattern of activity, and the activity need not occur on a regular or daily basis.
McNea argued that he was entitled to PTD during the period that he was illegally selling drugs. The Ohio Supreme Court disagreed and found that his illegal drug sales satisfied the sustained remunerative employment requirement. The evidence against McNea included an ongoing pattern of phone calls and other sales-related activity in support of the four informant sales, and moreover, there was no reason to believe that McNea did not remain medically capable of continuing such activity had he not been caught.
So, don’t forget this important takeaway from this case . . . a claimant receiving workers’ compensation benefits should not try to supplement the benefits by illegally selling drugs. Perhaps we can all agree with the Ohio Supreme Court on this one.