Will the Supreme Court Ever Hear a Substantial Aggravation Case?
In the January, 2014 Comp Connection, we reported that Harrison v. Panera, 2013-Ohio-5338 had been appealed to the Ohio Supreme Court as a discretionary appeal. Harrison was a case in which the employer appealed the trial court’s determination the claimant produced sufficient evidence to support a finding of substantial aggravation under R.C. 4123.01. On April 23, 2014, the Supreme Court declined to accept jurisdiction .
Since August 25, 2006, the effect date of the amendments to R.C. 4123.01 adding substantial aggravation to the definition of injury, twelve cases in which substantial aggravation was at issue have reached the courts of appeals. Of these twelve cases, five were appealed to the Supreme Court. In various ways, each appeal asked the Court to provide guidance on the statutory definition of substantial aggravation. Does the statute require pre-injury documentation of the condition? What is meant by “objective”
evidence of substantial aggravation? Is the statute clear or ambiguous? Regardless of how the appellants framed the issue, the Court declined every appeal.
In the past 60 days, two more substantial aggravation cases were decided by the courts of appeals: Strickler v. City of Columbus, 2014-Ohio-1380 (claimant appeal) Haynik v. Sherwin-Williams Co., 2014-Ohio-1620 (employer appeal). The litigants have not yet filed appeals in the Supreme Court.
In large part, every substantial aggravation case decided in the courts of appeals has dealt with whether there was medical evidence supporting the condition. None of the appellate courts has analyzed the statutory language, which may explain why the Supreme Court continues to decline jurisdiction. Whether the evidence is sufficient to establish a substantial aggravation is a question of fact left for the fact finder, not the Supreme Court.
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COURT LACKS JURISDICTION TO ENFORCE WORKERS’ COMPENSATION SETTLEMENT
In Said v. Admin, BWC, 2014-Ohio-841, a widower filed a claim for death benefits on account of the suicide of his wife. The widower appealed a fraud finding to the trial court. During the pendency of the case, the widower and the Bureau agreed to settle the fraud claim by which the Bureau was to collect a substantial overpayment. The trial court dismissed the case and the Bureau issued the widower a settlement check reduced by the overpayment. Upset because he did not receive all the settlement proceeds he expected, the widower filed a motion to nullify the settlement agreement, alleging he never agreed to the overpayment. The court of appeals found the trial court had no jurisdiction to address such a motion because the dismissal entry did not contain the terms of the settlement agreement.
COURT OF APPEALS FINDS STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN IN SILICOSIS CLAIM
In Weisenauer v. American Standard, Inc., 2014-Ohio-1569, a claimant filed a silicosis occupational disease claim three years after his employer closed its business. The company appealed the administrative allowance to court on the ground the claim was barred by the statute of limitations in R.C. 4123.85. Because the claimant failed to file his claim within two years of treatment or diagnosis. The Ohio Supreme Court has held an occupational disease claim must be filed within 2 years of the disability due to the occupational disease, which is the latest of three dates: date of diagnosis, date of treatment, or the date on which the claimant quits work because of the occupational disease. Because the plant closed, the trial court and court of appeals reasoned the third prong of the above test had never been met. As such, the statute of limitations never began to run and the claim was timely filed.
PTD APPLICATION MAY BE PROCESSED EVEN WHEN SOME ALLOWED CONDITIONS HAVE NOT REACHED MMI
In State ex rel. Martin v. Springfield Twp., 2014-Ohio-1186, a claimant filed for PTD benefits despite the fact that all the allowed conditions had not reached maximum medical improvement (MMI). The Commission denied the application under Ohio Admin.Code 4121-3-34(D)(1)(f), which provides a hearing officer shall deny a PTD application if “the condition remains temporary.” The claimant filed a petition for writ of mandamus, which the court of appeals granted, vacating the Commission’s order. In this instance, the claimant had an allowed psychological condition, which rendered him PTD, but also had allowed physical conditions which remained temporary. The court of appeals reasoned the PTD application should have been adjudicated because the psychological condition alone would support an award of PTD benefits.
What is New at the Commission?
The Industrial Commission announced it is in the process of reviewing Ohio Admin. Code 4121-3-34, which is the permanent and total disability rule. A review of the proposed changes reveals a relatively minor addition to the portion of the rule addressing objections to tentative orders which adjudicate the merits of a PTD application. Click here to read the Commission’s press release and to review the proposed rule change.