Permanent Total Disability


By Justice Paul Pfeifer - For The Register-Herald



On July 23, 2003, Raymond Smith was injured while working at his job for Tradesmen International, a company that provides skilled labor for construction jobs. His workers’ compensation claim was allowed for low back sprain, right shoulder sprain, cervical and left-wrist sprain, a disc protrusion in his back, and adjustment disorder with depressed mood.

In 2011, Smith applied for permanent-total-disability (“PTD”) compensation. He submitted a report from his treating physician – Dr. Oscar B. DePaz – that was dated April 26, 2011. The report stated: “It is my opinion that Mr. Smith has significant functional impairment, and at this time his activity level is restricted to sedentary activities with maximum lifting of 10 lbs. He should avoid repetitive bending, stooping, twisting, lifting, pushing, or pulling.”

Dr. DePaz’s report further stated, “Mr. Smith will need frequent periods of rest which at times will require him laying down to relieve his back pain. He will have significant difficulty maintaining a regular schedule, and at times, he will need periods of continuous rest to control exacerbations of his back pain. Therefore, he will not be able to maintain any type of regular working schedule.”

The Industrial Commission of Ohio – which handles such matters – submitted medical reports from Timothy J. McCormick, D.O., and Jacqueline Orlando, Ph.D., dated March 2012. Both reports opined that Smith was incapable of working based on the allowed conditions of his claim.

A staff hearing officer with the Commission concluded that Smith was unable to perform any sustained employment solely as a result of his conditions. The officer relied on the reports of the three doctors as support for the decision to award Smith PTD compensation.

After that decision, Tradesmen filed a complaint with the court of appeals alleging that the Commission had abused its discretion when it ordered compensation to begin on April 26, 2011 – the date of Dr. DePaz’s report. Tradesmen alleged that Dr. DePaz’s report did not find that Smith’s disability was solely the result of his medical impairment.

However, the court of appeals concluded that DePaz’s report was “some evidence” to support the start date for PTD compensation. The court reasoned that while Dr. DePaz stated that Smith could perform sedentary work, he also outlined restrictions so narrow as to effectively preclude all sustained employment. The court therefore denied Tradesmen’s claim.

Tradesmen then brought the case before us – the Ohio Supreme Court. In its appeal, Tradesmen conceded that the reports of McCormick and Orlando constituted evidence that supported the Commission’s award of PTD compensation. However, Tradesmen was hoping to eliminate the DePaz report as support for the start date for paying compensation and to require the Commission to examine Smith’s nonmedical disability factors.

Thus, the sole issue before us was whether DePaz’s report constituted “some evidence” to support the Commission’s decision to begin payment of the award as of the date of the report. In such cases, the party challenging the Commission’s order has the burden of demonstrating abuse of discretion, which in this context is defined as a showing that the Commission’s decision was rendered without “some evidence” to support it.

When a medical expert fails to consider the claimant’s allowed conditions, the expert’s opinion alone cannot constitute some evidence on which the Commission may rely to support its decision. Although DePaz’s report didn’t specifically list the allowed conditions in Smith’s claim, a doctor’s failure to state verbatim the Commission’s description of the allowed conditions is not always fatal to a report.

The Commission has some discretion to determine whether the doctor’s description of the claimant’s condition actually refers to the allowed condition – albeit in different words.

In this case, the Commission knew that Dr. DePaz was Smith’s treating physician. His report referred to Smiths’ back pain and various restrictions to relieve his back pain. There was no indication that DePaz had considered any nonallowed medical conditions.

Thus, it was within the Commission’s discretion as the exclusive evaluator of the weight and credibility of the evidence to accept DePaz’s identification of back pain as referring to the allowed conditions in the claim.

DePaz’s statement that Smith was restricted to sedentary activities didn’t render the report insufficient. A physician’s report that states that a claimant is capable of sedentary work but does not include additional specific physical restrictions is sufficient to constitute some evidence on which the Commission may rely.

However, if the physician has imposed specific restrictions in the report, the Commission cannot simply rely on the physician’s ultimate conclusion regarding the claimant’s capacity to work.

Rather, the Commission must determine whether the doctor’s ultimate conclusion is actually consistent with the physical restriction imposed by the doctor. If the physical restrictions are so limiting as to render the claimant incapable of working, and yet the doctor concludes that the claimant is able to work, the report cannot constitute evidence on which the Commission may rely.

The DePaz report stated that “Smith had significant functional impairment,” limited to “maximum lifting of 10 lbs.” It also included several other significant restrictions and stated that Smith would require frequent periods of rest.

The Commission couldn’t consider just the recommended sedentary exertion level; it was required to also consider the physical restrictions detailed by Dr. DePaz. In doing so, the Commission did not abuse its discretion by determining that, based on the entire report, the DePaz opinion was evidence of permanent total disability based on the medical factors alone. Therefore, there was no need for further consideration of the nonmedical disability factors.

Our role in actions challenging the Commission’s decision is limited to whether there is some evidence in the record to support the Commission’s stated basis for its decision. In this case, the Commission’s order identified three medical reports relied upon and explained that its decision to award PTD compensation was based solely on Smith’s medical conditions.

Therefore, by a seven-to-zero vote, we concluded that the Commission did not abuse its discretion by relying on the date of DePaz’s report as the date on which to begin paying the award.

By Justice Paul Pfeifer

For The Register-Herald

Reach the Ohio Supreme Court at 614-387-9000. EDITOR’S NOTE: The case referred to is State ex rel. Tradesmen Internatl. V. Indus. Comm., 143 Ohio St.3d 336, 2015-Ohio-2342. Case No. 2014-0678. Decided June 24, 2015. Opintion Per Curiam.

Reach the Ohio Supreme Court at 614-387-9000. EDITOR’S NOTE: The case referred to is State ex rel. Tradesmen Internatl. V. Indus. Comm., 143 Ohio St.3d 336, 2015-Ohio-2342. Case No. 2014-0678. Decided June 24, 2015. Opintion Per Curiam.

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