In State ex rel. Nissin Brake Ohio, Inc. v. Industrial Commission of Ohio (2010) 127 Ohio St.3d 385, the Supreme Court of Ohio upheld the Industrial Commission of Ohio’s determination that an injured worker’s allowed physical conditions alone rendered her permanently and totally disabled. The court reiterated that in instances where the evidence establishes that the allowed medical conditions, standing alone, prevent all employment, consideration of the claimant’s age, education, work experience, psychological and other non-medical factors (“Stephenson factors”) is unnecessary. In deciding this case the court relied heavily on the Commission’s substantial prerogative to draw inferences from the evidence.
Carolyn Stevens was injured in 1998 and her claim included several significant low back conditions. In 2006, however, Stevens began to experience shortness of breath and bilateral lower extremity edema that were unrelated to her industrial injury. In filing her application for permanent total disability Ms. Stevens relied upon the report of her physician of record who found that the allowed conditions prohibited Ms. Stevens from bending, squatting, twisting and repetitive or heavy lifting. The physician of record went on to comment that occasional lifting would be permitted provided that it did not exceed 10 pounds and that Ms. Stevens would need to be permitted to sit and stand as needed. Ultimately, the physician of record concluded that Ms. Stevens was capable of only sedentary or less than sedentary duties. In reaching this conclusion the physician of record noted that the symptoms of the allowed condition had fluctuated recently and were certainly influenced by comorbid medical conditions.
After filing the application for permanent total disability a functional capacity evaluation was conducted and Ms. Stevens was deemed to be able to work at the sedentary physical demand level for activity above the waist and less than sedentary physical demand level for activity below the waist. Thereafter, Ms. Stevens was referred to BVR but her program was placed in an interrupted status after she reported ongoing medical problems that prevented her from obtaining employment. Ms. Stevens did not dispute that the decline in her overall health and additional medical problems referred to in the BVR interruption report were the non-allowed shortness of breath and bilateral lower extremity edema.
In awarding permanent total disability the Commission made a finding that the functional restrictions outlined by the physician of record, standing alone, rendered Ms. Stevens permanently and totally impaired and thus eliminated any need for consideration of the Stephenson factors. This was so despite the fact that the physician of record outlined functional restrictions that would have permitted Ms. Stevens to return to work, had commented that her non-allowed medical conditions were compromising her residual functional capacity, and the BVR report confirmed an inability to complete rehabilitation because of those non-allowed conditions.
The employer challenged the award of permanent total disability by citing to State ex rel. Waddle v. Industrial Commission (1993), 67 Ohio St.3d 452 and Stephenson. Specifically, the employer argued that Ms. Stevens’ non-allowed medical conditions contributed to her disability because they prevented her from completing a BVR program intended to enhance her employability. Under Waddle, the employer advanced that the inability to work was due to both allowed and non-allowed conditions acting in tandem and the award was thus inappropriate as the inability to work was caused in whole or in part by medical conditions that were unrelated to the industrial claim.
In citing to the Commission’s status as an expert on the issue of permanent total disability, and their exclusive role for evaluating the evidentiary weight and credibility of medical evidence, the court found that it was proper for the Commission to infer from the timing of the onset of the non-allowed conditions that the inability to work before the development of those non-allowed conditions supported the Commission’s conclusion that an award of permanent total disability was appropriate.
This case makes it clear that medical evidence addressing permanent total disability need be explicit and unequivocal on the injured worker’s residual functional capacity to work. Moreover, this case illustrates how it is important to develop the underlying medical history when non-occupational conditions are at work. Had the evidence been developed that Ms. Stevens’ allowed conditions permitted some form of work activity before the onset of her non-occupational problems then the Commission would not have needed to draw an inference from the evidence and the result of this case surely would have been different. When the evidence in this case is looked at objectively it seems fairly clear that if the non-occupational conditions were removed from the equation that this woman had the capacity to work and would have been able to complete the BVR program. Because there was no information or evidence to support such a position the Commission was left in the position to draw the inference that they did and the instant result followed.
Defending against permanent total disability is one of the largest exposures an employer will face. Knowing what evidence to produce and where to acquire it will be important for any organization’s success. Should you desire to learn more about this case or to find out how Reminger can help you, please feel free to contact any of our attorneys in the Workers’ Compensation Practice Group.