September 25, 2013
Permanent Total Disability

by Justice Paul E. Pfeifer

In January 1994, Mike Coleman was employed as a boilermaker mechanic. One day, while working on a ladder, he fell backward and struck the back of his neck on a propane tank on the ground. As a result of the accident, Mike eventually filed an industrial claim, which was allowed for fractured vertebrae, herniated discs, and various shoulder injuries.

More than a decade later, in June 2008, Mike filed a motion requesting compensation for a “total loss of the functional use of the right arm.” In support of his motion, he submitted medical reports from two doctors – Dr. Robert Frank Jr. and Dr. W. Jerry McCloud.

According to Dr. Frank, Mike was able to do housekeeping, some cooking, light yard work, drive a car, and write with his right hand, though it was difficult at times because his arm was prone to spasms. Additionally, Dr. Frank stated that Mike “can use his right arm at his side” but cannot do heavy pulling or lifting or move his arm above his head.  Dr. McCloud reported that Mike had considerable loss of motion of his shoulder but had limited function of his right arm.

Mike was also examined by Dr. Ralph Rohner on behalf of the Bureau of Workers’ Compensation. Dr. Rohner opined that Mike’s shoulder was useless for practical purposes. His report stated: “This man is a heavy laborer and requires full motion and strength of the right shoulder as well as the ability to move the position of his neck frequently to do these duties. At the present time, he has significant limitation of motion involving both his neck and his right shoulder.”

In August 2008, the Bureau concluded that Mike had a “100% loss of use of the right shoulder ankylosis” (“ankylosis” is stiffness of a joint due to an abnormal adhesion and rigidity of the joint). Mike was awarded 225 weeks of compensation.

A year later, Mike filed a motion for compensation for permanent total disability. He alleged that based upon the award for loss of use of his shoulder, he was also entitled to compensation for permanent total disability for the loss of use of his right hand and arm.

A staff hearing officer for the Industrial Commission of Ohio – which handles such claims – denied his application.  Following a review of the medical evidence and Mike’s testimony, the hearing officer concluded that Mike had a substantial loss of use of his right arm but that his loss did not rise to the level of a permanent and total loss.

In response, Mike filed a complaint in the court of appeals seeking an order requiring the Commission to award him compensation for permanent total disability. The court of appeals determined that the Commission’s prior order of August 2008, awarding Mike 225 weeks of benefits for the loss of use due to right shoulder ankylosis, implicitly established that Mike had lost the use of two body parts – his hand and his arm.

After that, the Commission filed an appeal with us – the Supreme Court of Ohio. The Commission maintained that to establish permanent and total disability, Mike had to present evidence that he has completely lost the use of each of two body parts, even if there was a prior award, because what was considered a total loss of use under one law might not be under the other.

The Commission was referring to the two different workers’ compensation laws that were at play here. The first – we’ll call it the “225-Weeks Law” – provides for compensation that is paid to an injured worker for the loss of a body part. For the loss of an arm – or the loss of use of an arm – the injured worker is entitled to 225 weeks of compensation.

Under the second – we’ll call it the “PTD Law” – permanent total disability arises when a claimant is deemed permanently and totally disabled due to the loss of two enumerated body parts; for example, a hand and an arm.

Although both laws involve the loss of – or the loss of use of – one or more body parts, the purposes of the awards differ. Thus, the Commission must examine the particular provisions of each law when determining whether a claimant may be entitled to compensation.

Nevertheless, the court of appeals determined that Mike’s award under the 225-Week Law for the “loss of use of the right shoulder ankylosis” conclusively established the loss of the arm and hand for purposes of permanent total disability under the PTD Law.

In reaching its conclusion, the court of appeals relied on three prior cases similar to Mike’s. In each of those cases, our court awarded additional compensation in accordance with the PTD Law after the claimant had already been awarded compensation under the 225-Week Law.

But in all three of those cases, the Commission’s analysis included – as it must – an evaluation of the facts and medical evidence presented. In each case, the medical evidence clearly demonstrated the loss of the two body parts, which meant that the PTD Law applied to those cases. In each of those cases, the determination that the PTD Law applied was independent of any previous award that had been paid under the 225-Week Law.

In Mike’s case, the Commission independently evaluated the facts. Following a review of Mike’s testimony and the reports submitted by Drs. Frank, McCloud, and Rohner, the Commission determined that Mike had some use of his right arm and hand.

Consequently, the evidence did not demonstrate a permanent and total loss of use of both body parts for purposes of the PTD Law.

Therefore, by a seven-to-zero vote, we reversed the court of appeals. We further concluded that the Commission must conduct an independent evaluation of the facts when considering an application for permanent total disability under the PTD Law, even in the presence of prior compensation that was awarded under the 225-Week Law for the same body parts.

EDITOR'S NOTE: The case referred to is State ex rel. Coleman v. Indus. Comm., 136 Ohio St.3d 77, 2013-Ohio-2406. Case No. 2011-0972. Decided June 11, 2013. Opinion Per Curiam.