Permanent total disability compensation is compensation of last resort and can be awarded only upon a showing by the claimant that he/she is incapable of sustained remunerative employment. Although neither the workers’ compensation statute nor the administrative rules define sustained remunerative employment, the Ohio Supreme Court has held that part-time work may constitute sustained remunerative employment. The 10th District Court of Appeals has established that the capability to work 4 or more hours/day of part-time work is sufficient to constitute sustained remunerative employment and negate a claimant’s application for PTD benefits.
In State ex. rel. Honda of Am., Mfg., Inc. v. Indus. Comm, 2017-Ohio-8972, the 10th District Court of Appeals revisited the effect of part-time work in a PTD claim. Administratively, the Commission granted a claimant PTD compensation based on his physician’s report that the claimant was unable to performed sustained remunerative employment. However, the same physician also authored a physical capacity questionnaire finding the claimant could work part-time, 4 to 5 hours per day. Because of the apparent inconsistencies between the two reports, the company challenged the Commission’s order in a mandamus action, seeking a writ of mandamus vacating the order.
The court of appeals granted a limited writ requiring the Commission to vacate its decision, hold a new hearing, and issue a new order. Noting its prior rulings regarding part-time work, the court found that the two reports from the claimant’s physician were irreconcilable. It is well settled that internally inconsistent reports do not constitute “some evidence” supporting a Commission order. Interestingly, by the time the matter was before the court of appeals, the Commission had conceded that the order awarding PTD compensation was not supported by the evidence.