[Cite as State ex rel. McBee v. Indus. Comm., 132 Ohio St.3d 209, 2012-Ohio-2678.] 

THE STATE EX REL. MCBEE, APPELLEE, v. INDUSTRIAL COMMISSION

 OF OHIO, APPELLANT, ET AL. 

[Cite as State ex rel. McBee v. Indus. Comm., 

132 Ohio St.3d 209, 2012-Ohio-2678.] 

Workers’ compensation—Temporary total disability compensation—Overpayment 

declared due to claimant’s fraud in working while receiving benefits—

“Work” defined—Unpaid activities may constitute work—Fraud declaration 

overturned—No evidence that claimant knew that unpaid activities could 

qualify as work.

(No. 2010-2288—Submitted April 24, 2012—Decided June 19, 2012.) 

APPEAL from the Court of Appeals for Franklin County, No. 09AP-239, 

2010-Ohio-5547. 

__________________

Per Curiam. 

{¶ 1} A claimant cannot receive temporary total disability compensation 

(“TTC”) for any period in which he or she worked. R.C. 4123.56(A). Appellee, 

Garry K. McBee, received TTC from October 30, 2004, through March 9, 2006. 

During that time, he also helped his wife with her business, but he was not paid 

for his services. Appellant Industrial Commission of Ohio learned of these 

activities, determined that they constituted work, and concluded that TTC should 

not have been paid. Consistent with those findings, the TTC award was vacated, 

and an overpayment was declared. In addition, the commission found that McBee 

had committed fraud by submitting disability paperwork to the commission and 

the Bureau of Workers’ Compensation between October 30, 2004, and March 9, 

2006, in which he certified that he was not working. 
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{¶ 2} McBee responded with a complaint in mandamus in the Court of 

Appeals for Franklin County. The court upheld the finding that McBee had 

worked while receiving TTC, but it overturned the finding of fraud after 

concluding that the evidence cited in the commission’s order did not prove that 

McBee knew that his unpaid activities for his wife’s company constituted work 

for purposes of TTC eligibility. 

{¶ 3} Seeking to reinstate its declaration of fraud, the commission now 

appeals to this court as a matter of right. 

{¶ 4} “Work” in this context is generally considered to be labor 

exchanged for pay. State ex rel. Griffith v. Indus. Comm., 109 Ohio St.3d 479, 

2006-Ohio-2992, 849 N.E.2d 28, ¶ 10. There is, however, an important 

exception: unpaid activities that directly generate income for a separate entity can, 

in some situations, be considered work for purposes of TTC eligibility. This 

principle can be extracted from our holding in State ex rel. Ford Motor Co. v. 

Indus. Comm., 98 Ohio St.3d 20, 2002-Ohio-7038, 780 N.E.2d 1016. 

{¶ 5} The employer in Ford sought to recoup TTC, arguing that the 

claimant was improperly receiving compensation while working in his own lawncare business. Evidence showed that after his industrial injury, the claimant hired 

workers to do the lawn care, while his participation was limited to signing 

paychecks, fueling lawnmowers weekly, and driving the mowers onto a truck. 

There was no showing that claimant did any of the landscaping work while 

receiving TTC. Id. at ¶ 3. All clerical work besides signing checks was performed 

by the claimant’s girlfriend. Id. at ¶ 8. 

{¶ 6} We held that the claimant’s activities did not amount to work so as 

to disqualify him from TTC. “[T]his claimant’s activities did not, in and of 

themselves, generate income; claimant’s activities produced money only 

secondarily, e.g., claimant signed the paychecks that kept his employees doing the 
January Term, 2012 

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tasks that generated income.” Id. at ¶ 23. His activities were “truly minimal and 

only indirectly related to generating income.” Id. at ¶ 24. 

{¶ 7} It follows, therefore, that activities that are not minimal and that 

directly generate income for a separate entity may be considered work and may 

disqualify a claimant from receiving TTC even when the claimant is not paid. 

The court of appeals adopted its magistrate’s conclusion that McBee’s activities 

for his wife’s company directly generated income and were consistent and 

ongoing. Thus, his activities, though unpaid, constituted work, precluding TTC. 

McBee has not appealed that determination to this court. 

{¶ 8} We now consider whether McBee engaged in fraud when he 

received TTC while working. The absence of remuneration factors into this issue 

as well. Fraud requires a knowing misrepresentation of a material fact. Gaines v. 

Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55, 514 N.E.2d 709 (1987). McBee 

received TTC because of his contemporaneous certification that he was not 

working. For this to qualify as a knowing misrepresentation, however, 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. We find that it does not. 

{¶ 9} The documents that McBee used to apply for ongoing TTC advised 

only that a claimant is “not permitted to work” while receiving TTC. The 

documents did not define “work,” nor did they indicate that unpaid activities 

could sometimes be classified as work. The commission insists, however, that 

such knowledge can be inferred from the hearing testimony of McBee and his 

wife. We disagree. 

{¶ 10} The commission has substantial leeway to draw inferences from 

the evidence before it, but its authority is not unlimited. State ex rel. Lawson v. 

Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, ¶ 34. The 

knowledge that the commission seeks to impute to McBee involves what can be a 
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complicated exception to Griffith’s general principle that “work” entails 

remuneration. The Ford exception is not intuitive, nor is it within the realm of the 

average claimant’s experience, dealing as it does with unpaid activities within the 

context of a secondary business enterprise. 

{¶ 11} Mindful of these considerations, our examination of the evidence 

reveals nothing from which we can infer that McBee recognized that the activities 

in question could be construed as work. If McBee was asked at the hearing 

whether he knew that work included some unpaid activities, the commission’s 

order does not reflect it. The relevant portions of the order focused exclusively on 

why McBee’s activities were work, not on whether he knew that they were work 

for purposes of TTC eligibility. As for Mrs. McBee, the order does not cite any 

testimony from her, so there is nothing to review. 

{¶ 12} Ultimately, there is no evidence that McBee knew that his unpaid 

activities constituted work that would preclude TTC. Thus, there is no evidence 

that he knowingly misled the commission or the bureau. Absent such knowledge, 

a fraud declaration cannot stand. 

{¶ 13} The judgment of the court of appeals is affirmed. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP, 

and MCGEE BROWN, JJ., concur. 

LANZINGER, J., not participating. 

__________________ 

John F. Potts, for appellee. 

Michael DeWine, Attorney General, and Sandra E. Pinkerton, Assistant 

Attorney General, for appellant. 

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