Posted By Charles J. Cochran, Jr. on May 20, 2011
It has been some time since my February 2009 post dealing with the permanency issue in the workers compensation context and the resulting award of money associated with that permanent loss. The following article provides a description of how this matter ended. As you recall, the Ohio Bureau of Workers Compensation (Bureau) claimed that this individuals condition had improved such that he could no longer claim a functional loss of use (like an amputation, which has its own paragraph in the related section in the Ohio Revised Code, in effect but without the actual loss of the body part in reality) and therefore he might need to return some of the award money to the Bureau. I provide only an abbreviated description of the matter below and ask that you go back and read the earlier post “Is a Workers Compensation Permanent Partial Award really permanent?” for a more complete description if the abbreviation does not provide an adequate description of what happened prior to the Hearing. If you are interested in reading more in regard to the permanency award then you may wish to read my article entitled: “Are you leaving money on the table in your Ohio workers compensation claim?”
You can imagine the concern that an injured worker would have where they have been awarded a sum of money and then months or even years later the Bureau demanded they repay the award or a portion of it (or take some reduction in their future benefits to offset the payment). Please keep in mind this is not a person who committed any type of fraud, misstatement or otherwise acted improperly and, in fact, the Bureau did not claim the worker did anything wrong. The injured worker had simply followed his own doctor’s orders in obtaining recommended treatment, and as a result the Bureau claimed some current improvement in his condition such that he no longer suffered from a functional loss of use.
Again, the question here involved an alleged improvement in the current percentage of disability from that which existed at the time of the original award. There is no question, and the Bureau makes no argument, that at the time that the award was made the Injured Worker was entitled to it. Please note that a Permanent Partial disability compensation award is made without concern for a persons ability to work. In the past the Injured Workers later recovery, after the Partial disability award was determined, was not an issue. The Bureau awarded this Injured Worker a sum of money for his “functional loss of use” of a portion of his body as determined by the Bureau, or Industrial Commission if appealed, at a particular place and time after medical examination for that purpose.
Certainly, if this matter involved a determination of a Permanent disability, which made the Injured Worker unable to work, there does exist a procedure to review recurring wage type benefits where the Worker improved to the extent that he/she could re-enter the workforce. In those type situations the treating physician is usually required to provide the Bureau with regular reports to establish an ongoing eligibility for these payments. The matter dealt with here is not that type of benefit nor did the Bureau make these type of continuing inquiries, at least prior to seeking the overturn of the award.
Cutting to the point in this matter, at the hearing to set aside the award based upon the Bureaus claim of improved condition, the Ohio Industrial Commission, the hearing arm of the Bureau, ordered a new examination by a doctor hired by the state for that purpose to determine the injured workers current state of permanency regarding this functional loss of use. The subsequent adoption by the Industrial Commission of the determination by this doctor that the injured worker continued with a functional loss of use effectively determined this case in favor of the injured worker. In so doing the question as to whether this matter was properly before the Industrial Commission was never taken up into the court system to determine the propriety of bringing this type of case before the Industrial Commission for determination in the first place. In essence: the ruling in this case might be used as some, even limited future precedent, for the Industrial Commission to exercise continuing jurisdiction in this type of case even though the final results, in this particular matter, were favorable to the injured worker.
Once the matter was resolved favorably for the Injured Worker there remains little more to do. I do not know the current posture of the Ohio Bureau of Workers Compensation in regard to their attitude toward other such cases but they seemed serious in their attempts to set aside the award and require at least partial repayment/offset of future benefits against this Injured Worker. While this matter might seem of limited precedential importance, considering the facts of this case, I see little to distinguish the application of the arguments which were made in this case to the more general applications for Permanent Partial disability awards dealing with broken bones, sprains and the like. On that basis we might see these arguments applied to those more general type claims by the Bureau in the future. Your comments are requested to further develop any discussion on this matter.