State ex rel. Spohn v. Indus. Commission (2007), 115 Ohio St.3d 329
In a recent decision by the Ohio State Supreme Court, State ex rel. Spohn v. Indus. Commission (2007), 115 Ohio St.3d 329, it was reaffirmed that an employer is able to reopen a permanent total disability claim when benefits are currently being paid to the injured worker. This can happen, if the employer can show “new and changed circumstances.” In order to show “new and changed circumstances,” the employer must present evidence to the Industrial Commission of Ohio showing that the injured worker’s condition has changed since the last order awarding permanent total disability. This change must be such that the injured worker’s condition has medically improved to a point where he or she is now able to engage in some form of sustained remunerative employment. This evidence of “new and changed circumstances” can be presented by way of additional medical reports, additional independent medical examinations, or evidence showing the injured worker engaging in activities inconsistent with his permanent total disability status. In State ex rel. Spohn, the injured worker was playing 95 rounds of golf per year, which was inconsistent with his permanent total disability status for his low back and psychiatric conditions.
Should the employer obtain evidence of activities inconsistent with the injured worker’s permanent total disability status, or receive medical documentation that the advancement of science has improved the claimant’s condition, the Industrial Commission may exercise its continuing jurisdiction and re-adjudicate the injured worker’s application for permanent total disability benefits.
Unless the evidence presented is overwhelmingly in favor of the employer, it is highly recommended that the employer obtain a new IME of the injured worker to re-evaluate his or her functional capacity. The evidence of inconsistent activities, for example 95 rounds of golf or video surveillance, can serve as the basis for the employer’s request for an additional IME.
Since the injured worker is already receiving permanent total disability, he or she may dispute the employer’s right to an examination on extent of disability. In such an instance, a motion may be required to seek Industrial Commission authorization for the examination in advance.
In Spohn, the court makes reference to the fact that a district hearing officer ordered Spohn’s attendance at an employer sponsored examination. But, the court is not clear on how this issue came before the hearing officer and whether the employer must first seek approval for an examination in all instances where termination of PTD benefits is being sought.
If the Industrial Commission grants the employer the right to an additional IME, the injured worker must present for the IME or risk suspension of his or her benefits. Once the independent medical examination has taken place for the employer, it is also highly recommended to obtain an additional vocational report of the injured worker should there be a significant time period between the allowance of the permanent total disability benefits and the request to reopen the permanent total disability application.
In State ex rel. Spohn, the dissenting judge was highly critical of the Industrial Commission’s decision in light of Mr. Spohn’s vocational abilities. Although, the claimant’s physical conditions had improved, his vocational aptitudes had not changed since the original finding. Therefore, the Industrial Commission still had to provide an analysis of the vocational factors and their impact on the claimant’s ability to engage in sustained remunerative employment, in spite of his improved physical condition.
Therefore, after this recent ruling, an employer is able to reopen an injured worker’s award of permanent total disability benefits when there is evidence indicating activities inconsistent with the award of those benefits, or advancements in medical science that have actually improved the allowed conditions. The employer must present sufficient evidence to show “new and changed circumstances,” and file a motion with the Industrial Commission of Ohio requesting the continuing jurisdiction over the prior finding of permanent total disability.
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.