STATE ASPLUNDH TREE EXPERT COMPANY v. INDUSTRIAL COMMISSION OF OHIO (1999)

Per Curiam.  We are asked to determine whether claimant's receipt of Social Security Disability (“SSD”) benefits bars wage-loss compensation.   Upon review, we find that it does not.

Social Security disability demands an inability to work.   Section 404.1505, Title 20, C.F.R. Wage loss does not.   Instead, wage-loss compensation encourages alternative employment when a claimant cannot return to the former position of employment but retains a residual capacity for other work.   ATEC essentially maintains that a residual work capacity was implied by the job search claimant made as a prerequisite to his wage-loss compensation application.   ATEC argues that SSD benefits and wage-loss compensation are, therefore, inconsistent and warrant the latter's denial.

Federal and state legislators disagree.   First, SSD and work activity are not completely irreconcilable.   Section 422(c)(4), Title 42, U.S.Code allows SSD recipients to engage in a “period of trial work” without jeopardizing their SSD benefits.

Second, federal law permits an SSD/workers' compensation offset only if state law so provides.   Section 424a(a)(2)(A), Title 42, U.S.Code. Federal law does not, therefore, view receipt of SSD and workers' compensation benefits as inherently inconsistent.

Neither does the law of this state.   The General Assembly has addressed two situations involving concurrent payment of SSD or Social Security Retirement benefits and workers' compensation benefits.   See R.C. 4123.56(D) and 4123.58(B).   Wage-loss compensation is not one of them.

Claimant's receipt of SSD benefits did not, therefore, compel a denial of wage-loss compensation, and the commission did not abuse its discretion in so finding.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

PER CURIAM.

MOYER, C.J., DOUGLAS, RESNICK, FRANCIS E. SWEENEY, SR., PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.