Intervening Injuries Must Be Considered Before Awarding PTD Compensation
On May 7, 2014, the Ohio Supreme Court ruled that a staff hearing officer’s failure to address an employer’s defense of an intervening injury in an order awarding permanent and total disability (PTD) compensation was a clear mistake of law.
In State ex rel. Sheppard v. Indus. Comm., Slip Opinion No. 2014-Ohio-1904, the claimant sustained a work related injury in 1997 that was allowed for lumbosacral sprain and a herniated disc. He suffered an intervening injury to his back in 2002 that was not work related. In 2010, he filed an application for PTD compensation, which a staff hearing officer (SHO) granted. However, the SHO did not address in the order the employer’s argument that the 2002 intervening injury negated a finding of PTD.
The employer filed a request for reconsideration with the Industrial Commission asking it to exercise its continuing jurisdiction on the basis that failure to address the intervening injury was a clear mistake of law. The commission agreed, finding the SHO’s failure to address the employer’s argument about an intervening injury was indeed a clear mistake of law. The claimant then filed a complaint for a writ of mandamus with the Tenth District Court of Appeals, alleging that the Industrial Commission abused its discretion by invoking its continuing jurisdiction on the intervening injury issue. The Court of Appeals denied the claimant’s request for mandamus relief, finding that failure to address an issue raised by an employer constitutes a mistake of law sufficient for the Industrial Commission to invoke its continuing jurisdiction. Interestingly, the appellate court refused to assume that the SHO had rejected the defense by not addressing the employer’s argument of an intervening injury in the order.
On appeal to the Supreme Court, the claimant argued the SHO was not required to address an intervening injury; hence, the Industrial Commission should not have invoked its continuing jurisdiction as there was no mistake of law. In defining an intervening injury the court noted that “[a]n intervening injury is one that is not related to the allowed claim and breaks the causal connection between the industrial injury and the disability…An intervening injury could eliminate the industrial injury as the proximate cause of the inability to work and thus destroy the claimant’s eligibility for permanent-total-disability compensation.” Sheppard, supra at ¶ 16.
The Supreme Court went onto hold that the SHO’s failure to address the intervening injury in the order warranted the Industrial Commission’s invocation of continuing jurisdiction. Just like OAC 4121-3-34(D)(1)(d) requires a hearing officer to address the issue of voluntary abandonment in determining a request for PTD compensation, OAC 4121-3-34(D)(1)(h) and (3)(e) likewise require a hearing officer to specifically address proximate cause, and failure to address an intervening injury in determining a PTD application violates the latter.
This case illustrates why it is important for employers and their representatives to conduct thorough investigations — not just at the beginning of a claim, but throughout the life of a claim. Pre-existing conditions and intervening injuries are the before and after characters that can change the outcome of a claim, whether negating that an injury happened in the first place or whether disability benefits should be granted down the road. It is up to employers and their representatives to pull those characters into the story.
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