October 2, 2007
Noel Shepard

Ohio’s Tenth District Court of Appeals found that an injured worker is not entitled to collect permanent total disability compensation (PTD) because his drug dealing activities are considered to be sustained remunerative employment. 

In State ex rel. Lynch v. Indus. Comm., 171 Ohio App.3d 453, 2007-Ohio-292., the court held that Henry Lynch, who had been deemed permanently and totally disabled by the Industrial Commission for a 1967 work-related injury, was no longer entitled to collect this life-long payment because of a conviction for conspiracy to possess and distribute cocaine.  The criminal complaint alleged that Mr. Lynch had been involved in the illegal activity from 1994, possibly earning at least $300 to $400 per week from the drug deals. 

When the Industrial Commission terminated his PTD payments because he was engaged in “sustained remunerative employment,” Lynch filed a mandamus action, arguing in-part that engaging in continuing criminal enterprise for profit is not considered sustained remunerative employment.  The court rejected this argument, comparing the sales skills of drug dealers to those of department store workers.  “Both perform sustained labor.  Both are paid for their labor.  Hence, each is engaged in sustained remunerative employment.”  

PTD payments are inappropriate if an injured worker is actually working, has the ability to work, or is engaged in activities medically inconsistent with the disability evidence upon which the PTD award was originally made.  In the Lynch case, the court found that the injured worker’s drug dealing activities were consistent with actual work, regardless of legality. 

A copy of the decision can be accessed at:  http://www.sconet.state.oh.us/rod/newpdf/10/2007/2007-ohio-292.pdf