A few weeks ago, I wrote in this space about a decision by the Ohio Supreme Court which found that a man who lost his vision and hearing as a result of irreversible brain damage caused by complications of surgery on his work-related injury was not entitled to statutory awards for loss of sight and hearing because his eyes and ears were not injured. My remarks, I think, made it clear that I considered this to be as bad a decision as I have ever seen by any court, on any subject. Today, I am pleased to report that not all the news from the appellate courts is bad. The Ohio Supreme Court and the Tenth District Court of Appeals have each released decisions in the last month which are helpful to injured workers.
In State ex rel. Honda of America Mfg. v. Industrial Commission, 2014-Ohio-1894, the claimant was injured in the course of his employment with Honda. He participated in a company sponsored rehabilitation and retraining program, with the goal of returning to work, for two-and-a-half years following his injury. Unfortunately, at the end of that time he had not recovered sufficiently to return to his regular job, and Honda did not have any work available within his work restrictions. Faced with the fact that he could not continue working for his long-time employer because of his injuries, he retired. About a year later, he underwent surgery related to his industrial injury, and sought payment of temporary total disability compensation while recovering from the surgery. Honda did not dispute that he was unable to work during the post-operative recovery period, but argued that he was not entitled to compensation because he was retired and therefore did not lose any wages while recovering from surgery. The Supreme Court rejected Honda’s argument and found the injured worker was entitled to compensation. The Court said when a worker’s retirement is directly related to his or her industrial injury, the retirement does not affect eligibility for compensation payments. This decision reaffirms the Supreme Court’s holding over twenty-five years ago in State, ex rel. Rockwell International Corp. v. Industrial Commission, 40 Ohio St. 3d 44 (1988) – which had seemingly been called into question in some more recent cases – that while a decision to retire for reasons unrelated to injury will result in the loss of eligibility for future compensation payments, there is no loss of eligibility when the retirement is injury-related.
In State, ex rel. James v. Wal-Mart Stores, Inc., 2014-Ohio-2279, the injured worker (a GTB&S client) suffered a cervical spine injury at work in 2004. He underwent cervical disc surgery, following which he returned to work. When he returned to work after surgery, however, he was assigned to a position which was much more demanding physically than his pre-injury job. After a time, he decided that the increased physical demands of the job were more than he could handle without doing further damage to his injured neck. He therefore resigned from Wal-Mart and found other employment. After a period of time, however, he had increasing problems with his neck. He was eventually terminated by his new employer for missing too much work. He later underwent additional surgery on his neck, which was authorized and paid for under his 2004 workers’ compensation claim against Wal-Mart. Even though his work-related injury had clearly worsened, and no one disputed that he was unable to work while recovering from the repeat spinal fusion surgery, the Industrial Commission ruled that he was not entitled to compensation because he was not employed at the time of the surgery. The Court of Appeals ruled that he could not be denied temporary total disability simply because he was employed at the time he underwent claim-related surgery. The Court of Appeals held that if the absenteeism which led to the loss of his job was related to his work-related neck injury, he would still be entitled to compensation. The court set aside the Industrial Commission’s order denying compensation, and directed the Commission to conduct a new hearing to determine whether his loss of the most recent job was related to his work-place injury.
Although the facts of these two cases are different, the underlying principle is the same. You cannot be denied temporary total disability benefits simply because you were not working immediately before a claim-related surgery. If the unemployment is causally related to a workplace injury, the eligibility for disability compensation is not affected.