State ex rel. Rohr v. Industrial Commission (2010), 126 Ohio St.3d 259
The Ohio Supreme Court recently issued an opinion in the case of State ex rel. Rohr v. Industrial Commission addressing the Industrial Commission’s exercise of continuing jurisdiction in a case of permanent total disability. The Court reaffirmed the Industrial Commission’s power to invoke continuing jurisdiction under Ohio Revised Code section 4123.52 when one of the following scenarios exist: (1) there are new and changed circumstances; (2) fraud; (3) a clear mistake of fact; (4) a clear mistake of law; or (5) there is an error by an inferior tribunal.
The injured worker in Rohr was granted permanent total disability in 2004 based upon his allowed psychological conditions. Three years later, the employer hired an investigator to conduct surveillance. After the investigator recorded a conversation with the injured worker, the employer began to question whether the injured worker was still permanently and totally disabled. The employer requested that the Commission exercise its continuing jurisdiction based upon new and changed circumstances. In support of the motion the employer submitted the surveillance evidence.
The Supreme Court found that the Industrial Commission made the right decision to exercise its continuing jurisdiction based on new and changed circumstances. When comparing the surveillance tapes to the medical exams upon which permanent total disability was granted, a large enough discrepancy existed such that it became necessary to order the injured worker to attend a new medical examination to determine whether he was still permanently and totally disabled. The Court emphatically noted that the argument of whether the injured worker was still permanently and totally disabled was premature because the only issue was the Commission’s decision to exercise continuing jurisdiction to order the attendance at a new medical examination.
The first way to invoke continuing jurisdiction is new and changed circumstances. This means an emergence of a new circumstance, or something that has changed since the prior award that warrants a re-examination of that earlier decision. In order to show new and changed circumstances, the new evidence being presented must not have been previously discoverable at the last hearing through due diligence. The Commission will decline to exercise continuing jurisdiction when the party knew about the evidence before but did not go to the steps or lengths necessary to retrieve it. Another way to exercise continuing jurisdiction is through fraud. This scenario is usually encountered in those situations where an injured worker alleges they are incapable of working but actually are working. In order to invoke continuing jurisdiction under fraud, the requesting party must satisfy six elements of fraud established by Industrial Commission policy. The third way continuing jurisdiction may be exercised is by a showing of a clear mistake of fact. This scenario has generally been reserved for those situations where there is a clerical error. The situation of a clear mistake of fact was first encountered in the context of erroneously paid compensation benefits. If there is a clerical error that results in the erroneous payment of benefits, continuing jurisdiction can be requested to order that those benefits be recouped. The fourth way to exercise continuing jurisdiction is by way of a clear mistake of law. Under the fourth scenario, the Commission may modify a prior order that is clearly a mistake of law, which clearly would be overturned by the court of appeals. The fifth and final way to invoke continuing jurisdiction is through an error by an inferior tribunal. This means that the Commission can exercise its continuing jurisdiction to review decisions of lower hearing officers that are clearly erroneous.
The Rohr case is a useful tool for employers because it shows continuing jurisdiction is a valid means to monitor and manage ongoing risk obligations. Attacking the ongoing payment of compensation, and more particularly the ongoing payment of permanent total disability benefits, is a two step process. The first step is gathering the necessary information to invoke the continuing jurisdiction of the Industrial Commission. If continuing jurisdiction is granted, the second step is the hearing on the merits of the issue at hand, for example whether a person is still permanently and totally disabled.
If you would like a full copy of the opinion, or if you have any other questions related to matters of Workers’ Compensation, please feel free to contact one of our statewide Workers’ Compensation practice group members to discuss.