Prior to September 28, 2021 when a claimant was denied permanent total disability compensation (hereinafter “PTD”) that claimant could file multiple subsequent PTD applications without any change to the allowed conditions in the claim. It was not unusual for claimants to file two or three or even more applications until PTD was finally granted. R.C. 4123.58(G), effective September 28, 2021, now requires after an application for PTD is denied, claimant may not file a subsequent application unless he or she can show new and changed circumstances exist to justify the application. In two recent decisions the Tenth District Court of Appeals held R.C. 4123.58(G) can be applied retroactively to claims with dates of injury before the September 28, 2021 effective date.
In State, ex rel. Parrish v. Walter Randolph & Carl Fritschi et al., 10th Dist. No. 22AP-134, 2024-Ohio-1135, claimant’s first application for PTD was denied in 2003 when the commission found him capable of sedentary work. Claimant’s second application was denied in 2006 when the commission found claimant capable of sedentary work again with no changes in his vocational factors since the first application. He filed a third application in 2021 arguing R.C. 4123.58(G) should not be applied retroactively, but if it did apply his new and changed circumstances were his attempt to return to work light duty for a few days in 2019 and 2020 caused a flare-up of pain complaints. There were no additional conditions, surgeries or substantial medical procedures and no new period of temporary total disability compensation. The commission denied PTD citing a lack of new and changed circumstances emphasizing claimant’s medical records did not support the flare up he described. Claimant filed a Mandamus action which was denied by the court. The court held R.C. 4123.58(G) could be applied retroactively and there was no abuse of discretion by the commission when it held claimant failed to present evidence of new and changed circumstances to support his PTD application.
State ex rel. Prinkey v. Emerine’s Towing, Inc., 10 Dist. No. 22AP-264, 2024 – Ohio – 1137, was decided by the Tenth District Court of Appeals shortly after Parrish. In Prinkey, the commission denied PTD in 2019 and again in 2021. The 2021 order simply said there were no new and changed circumstances present to justify consideration of the PTD application, without any further explanation. Claimant filed a Mandamus action in the Tenth District Court of Appeals arguing the commission improperly applied the statute retroactively and alternatively, the commission erred by failing to properly apply R.C. 4123.58(G). Claimant argued he was awarded an increase in permanent partial disability and this should have been sufficient new and changed circumstances to consider his second PTD application. The Court held R.C. 4123.58(G) could be applied retroactively and the commission failed to adequately explain in its order the evidence relied upon and briefly explain its reasoning for finding there were no new and changed circumstances. The Court then granted a limited Writ of Mandamus ordering the commission to specifically state the evidence the commission relied on in reaching its decision and explain the reasoning for the decision.