Court of Appeals Finds Internally Inconsistent Reports Cannot Support PTD

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.


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