Posted on Monday, October 29th, 2018 at 2:55 pm
The following post is part of our Law Student Blog Writing Project, and is authored by Joe Trammell, a 2020 Juris Doctorate Candidate at The Ohio State University Michael E. Moritz College of Law.
Case Study: How Back Injuries and Depression Lead to Permanent Total Disability (PTD) or Permanent Partial Disability (PPD), But Not Both
When the Ohio Workers’ Compensation laws were written, one would have to think people like Sherry L. Redwine were who lawmakers had in mind. What is, or rather was, unknown was how far the benefits to someone in her situation would extend.
Ms. Redwine was injured while working for Ohio Presbyterian Retirement Services, Inc. in 2003. The life-changing damage she was left with included, according to State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm. (Ohio Presbyterian), “lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing degenerative disc disease, depression, and ruptured disc at L4-5 with free disc fragment.” Her psychological injuries were enough to qualify her for what is known as “permanent-total disability” under § (section) 4123.58 of the Ohio Revised Code.
To qualify for this permanent-total disability, Ms. Redwine’s injuries had to be serious enough to prevent her from doing any sustained work, and that she will never make a full recovery. This does not legally prevent someone from doing any work, but the work can only be every once in a while, and not for a long period of time. No sustained wages can be earned. If an individual is able to do sustained work, the State believes she does not need permanent-total disability.
There is another option known as “permanent-partial disability,” located in Ohio Revised Code § 4123.57(A). In this case, a disability has to restrict one’s ability to work but not totally prevent it.
In Ms. Redwine’s case, she actually fit both categories. She had a psychological condition in the aftermath of her injuries that earned her permanent-total disability, and she began receiving disability payments in 2010. Three years later, she applied for permanent-partial disability for her physical injuries and was awarded it as well.
This was the dispute in Ohio Presbyterian. Ohio Presbyterian Retirement Services went to court arguing that Ms. Redwine could not receive both permanent-total and permanent-partial disability. They had good reason to do so, because employers are the ones responsible for workers’ compensation payments. They believed the language in the Ohio Revised Code does not allow for concurrent workers’ compensation. Ms. Redwine argued that since the two disability awards were for different things, she was eligible for both. This, of course, would affect how much she was paid.
In deciding the case, the Ohio Supreme Court had to take into account an Ohio Revised Code statute that says the workers’ compensation statute is to be interpreted as favoring the worker. This put Ohio Presbyterian Retirement Services at an immediate disadvantage. However, the Ohio Supreme Court mentioned a previous case that says courts cannot entirely “rewrite the statute,” or in other words stretch its meaning past what makes sense just to favor the worker.
What seems to be the crucial factor in the Ohio Supreme Court’s decision was a case they decided 90 years ago. Industrial Commission v. Kamrath, as the court explained in Ohio Presbyterian, says that “an injured employee has a right to recover workers’ compensation benefits only as specifically allowed by statute.” The court looked to the fact that there are other types of workers’ compensation that can be earned concurrently, and since they are mentioned specifically, the fact that permanent-total and permanent-partial are not mentioned specifically as being able to be earned concurrently means that they cannot be given out concurrently. This is a common way of interpreting laws known as expressio unius est exclusio alterius.
The significance of this ruling by the Ohio Supreme Court is that people who have multiple permanent injuries cannot receive multiple payments. The permanent-total disability payment is two-thirds of the injured worker’s average weekly earnings before the injury. Permanent-partial disability also awards two-thirds, but only up to 200 weeks. The percentage of the disability is the percentage of those weeks that are given. So someone with a 50 percent disability will get two-thirds of her average weekly earnings for 100 weeks. Ms. Redwine only gets the first calculation.
No doubt for Ms. Redwine and others like her it is a difficult and unfortunate situation; it would frustrate if not downright anger a person left in that position. However, this ruling is for the best. The argument might be made that concurrent payments would make up for the payment only being two-thirds of the worker’s average weekly earnings. There are several problems with this.
First, this is not the way to fix that sort of problem. If there is an issue with the payments, they should be fixed in the law, not through the commission handing out multiple awards and the courts consenting to it. That is the responsibility of the legislature.
Second, this would be too narrow in its solution. Not everyone qualifies for concurrent payments as they were given in the case of Ms. Redwine. Someone who does not have multiple types of injuries could not get both payments. Again, it should be the legislature that changes the law.
Third, there is not necessarily a problem with the system as is. The two-thirds payment does not include the other benefits, which include medical payments, rehabilitation, and funeral expenses. It also does not include other forms of government payments.
However, all those costs would never have happened had it not been for the injury. It might be a better system to award the full amount or even more if the employer was at fault. The system is not a perfect one. But the Ohio Supreme Court had it right in deferring to the legislature. The discussion to change these laws may be a needed one, but the courtroom was not the venue for it.