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Workers’ Compensation: Out To Pasture: Retirement And Its Effect On An Employee’s Application For Permanent Total Disability Compensation

5/28/2014 | Category: Workers Compensation-Permanent Total Disability
Ahh retirement…days filled with model airplane tinkering, 5:00 o’clock dinners, and petty arguments with your neighbors about who owns the rights to the orange tree in front of your Florida condo.  In Ohio, retirement may prevent a claimant’s right to participate in the Ohio Workers’ Compensation Fund.  In particular, what happens when a claimant applies for permanent total disability compensation after retirement?  For the unscrupulous claimant, collecting some extra money after voluntarily heading off to the land of spy novels and golf may be tempting.  

Permanent total disability (“PTD”) means the inability to perform sustained remunerative employment due to the allowed conditions in a claim. The claimant’s treating physician will usually identify the allowed conditions in a claim, opine that said conditions cause permanent disability, and ultimately conclude that the claimant is unable to perform sustained remunerative employment based upon the same.  If the claimant’s treating physician supports a finding of PTD, the claimant may be considered permanently and totally disabled pending any contrary medical evidence provided by the BWC or the employer.

On a side note, the Supreme Court of Ohio has not provided a precise definition of “sustained remunerative employment.”  In an extreme example, the Court held that selling crack from one’s home on a sustained basis could constitute remunerative employment despite the illegal nature of the activity.  Generally speaking, sustained remunerative employment means the claimant can earn a living comparable to his pre-injury earnings without disruption due to the allowed conditions in a claim.

Now let’s throw in a claimant’s decision to retire along with a subsequent request for PTD.  In Ohio, a claimant who retires prior to becoming permanently and totally disabled is precluded from eligibility for PTD compensation only if the retirement was voluntary and constitutes an abandonment of the entire job market.  The key word here is voluntary.  If a claimant leaves the workforce due to the allowed conditions in a claim, his retirement was involuntary.  Therefore, the fundamental questions are “when and why did the claimant retire?”  For example, if prior to the treating physician’s estimated beginning date of PTD, the claimant sends a letter to the employer stating, “I intend to retire and begin drawing my pension because my RV is packed and it’s time for me to fulfill my lifelong dream of travelling the country,” then the employer may successfully argue that the claimant retired for reasons unrelated to the allowed conditions in his claim.  

But, of course, it is rarely that simple.  In a recent Supreme Court of Ohio case, a Claimant applied for PTD compensation based upon the allowed conditions in his claim; specifically, hypersensitivity pneumonitis and hypersensitivity-induced reactive upper-airway disease, both suffered as a result of his workplace environment.  The Claimant worked as a machinist and after suffering the allowed lung conditions, his Employer relocated him within the workplace.  Even with his allowed lung conditions, the Claimant continued to smoke cigarettes, as he had for many years.  This complicated matters, as the Claimant eventually stopped working in 2004 due to an exacerbation of his symptoms.

In this case, the dispute focused on what caused the exacerbation of the Claimant’s symptoms in 2004 and his subsequent retirement.  The Employer argued that the Claimant’s allowed lung conditions were not responsible for his increased symptoms in 2004; rather, the Claimant’s smoking-related chronic obstructive pulmonary disease was the culprit.  The Employer argued that the Claimant was not disabled by the allowed lung conditions when he retired in 2004, and as such, the Claimant’s retirement was voluntary.  The Employer also argued that the Claimant clearly abandoned the entire job market in 2004.  

On the other hand, the Claimant argued that despite relocation, his work environment continued to aggravate his allowed lung conditions and involuntarily forced him into retirement.  The Claimant argued that he left the workplace early, solely due to his allowed lung conditions. 

Ultimately, the Supreme Court of Ohio agreed that the available medical and factual evidence clearly demonstrated that the Claimant was not disabled from his allowed lung conditions when he stopped working in 2004 and that he therefore voluntarily abandoned the workforce and eventually the entire job market. 

As this case demonstrates, there are many medical and factual issues that must be explored when one of your employees applies for PTD subsequent to a retirement.  Keep in mind, a PTD award can seriously impact state-funded employers’ premiums and leave self-insured employers with a serious expense.  To protect your bottom line, an aggressive defense is necessary.  

If one of your employees decides to retire and subsequently applies for PTD compensation, please do not hesitate to contact Nick Lanphear or any of the workers’ compensation attorneys at Ross, Brittain & Schonberg for guidance.

Ross, Brittain & Schonberg Co., L.P.A.

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