On June 19, 2012, the Supreme Court of Ohio affirmed an appeals court decision that a claimant's unpaid activities precluded temporary total disability (TTD) since they constituted work by directly generating income that was consistent and ongoing. The Court affirmed the finding since the claimant did not realize his unpaid activities were work, and there was no fraud pursuant to R.C. 4123.56(A).

The case, State ex rel. McBee v. Indus. Comm., 2012-Ohio-2678, arose when claimant Garry K. McBee received TTD from October 30, 2004 through March 9, 2006. During that time, he also helped his wife with her business, but was not paid for his services. The Industrial Commission of Ohio (IC) determined those activities constituted “work” and concluded that TTD should not have been paid. Consistent with those findings, the TTD award was vacated and an overpayment was declared. In addition, the IC found McBee committed fraud by submitting disability paperwork to the IC and Bureau of Workers’ Compensation between October 30, 2004 and March 9, 2006, in which he certified that he was not working.

McBee then filed a complaint in mandamus in the Tenth District Court of Appeals. The appeals court upheld the finding that his activities for his wife’s company directly generated income, were consistent and ongoing, and that he worked while receiving TTD. However, the appeals court overturned the finding of fraud after concluding the evidence cited in the IC order did not prove that McBee knew his unpaid activities for his wife’s company constituted “work” for purposes of TTD eligibility. The IC appealed the fraud determination to the Supreme Court.

The Supreme Court held that to qualify as a knowing misrepresentation, pursuant to Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987), “it must be shown that McBee was aware that his unpaid activities could be considered “work.” We must determine whether the evidence cited in the commission’s order demonstrates such an awareness.” The Court’s examination revealed there was no evidence that McBee knew his unpaid activities for his wife’s business constituted work that would preclude payment of TTD, and no evidence that he knowingly misled the IC or the Bureau of Workers’ Compensation. Absent such knowledge, the Court held that a fraud declaration cannot stand.