Worker’s Compensation: What’s Wrong with Permanent Partial Disability Compensation?
By Michael J. Reidy
For an employer in Ohio, the most confounding benefit payable to an injured worker is temporary total disability compensation, which always appears to be total, but seldom seems to be "temporary.”
Permanent partial disability compensation is a close second.
Section 4123.57 of the Ohio Revised Code tells us:
The district hearing officer, upon the application, shall determine the percentage of the employee's permanent disability, except as is subject to division (B) of this section, based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable... (Emphasis added).
The compensation payable under Section 4123.57 is designed to compensate the injured worker for a physical impairment which is permanent in nature and due to the work-related injury.
Let's consider the case of Joe Fleebetz.
Joe sustained an on-the-job rotator cuff tear and had surgery followed by an appropriate course of physical therapy. Unfortunately, Joe is no spring chicken, and at the conclusion of his treatment (and no sooner than 26 weeks after he returned to work — when he can file for permanent partial disability compensation), he still cannot raise his arm fully above his head. Despite his surgeon's best efforts, Joe has permanently lost some range of motion in his shoulder. He can only lift his arm above his head 50% as high as an individual with a perfectly healthy, uninjured shoulder. Joe has an impairment due to a permanent decrease in his range of motion and a permanent partial disability award is designed to compensate Joe for that impairment.
Where it gets interesting for the employer is how the Industrial Commission processes and decides the amount of the award. The Bureau of Workers' Compensation's physician examines Joe, the employer's occupational medicine specialist does the same, as does the injured worker's chiropractor. The BWC doctor says 7% impairment, the employer's doctor says 5%, and the injured worker's chiropractor says 18%. An Industrial Commission hearing officer is now charged with reviewing the medical, listening to the arguments of counsel, and making an appropriate decision on the amount of the award. Many times, the first question out of the mouth of the hearing officer is how much money was spent on medical expenses in Joe's claim, and the second question is how much lost time there was before Joe returned to work. If the hearing officer does not pose these questions, you can bet your house that the injured worker's attorney will begin his presentation by emphasizing how serious the injury was by focusing on the medical expenses and the amount of lost time. Why does the hearing officer pose those questions and/or why does the injured worker's attorney make that argument when the only basis for the award is current impairment? The degree of impairment, if any, cannot be determined by the answers to these questions. One injured worker’s shoulder surgery could be 100% successful, resulting in little or no impairment, but could have been costlier than another injured worker’s surgery. Likewise, one injured worker could have more lost time than another, but still end up with a better result and no impairment. Consider also the injured worker who "manipulates" his claim to deliberately stay off work as long as possible. Should he be rewarded for his conduct with a higher permanent partial award?
There is currently a "disconnect" between what the permanent partial disability statute actually states and the manner in which many Industrial Commission hearing officers consider the injured worker's application. Almost all claimants' attorneys and many Industrial Commission hearing officers wrongfully equate an injured worker’s past claim expenses with the seriousness of the injury, and then somehow extrapolate that into a higher award. The employer's argument that these things don't matter routinely falls upon deaf ears.
But let's give the hearing officers the benefit of the doubt. Returning to Joe's case, the hearing officer was provided a range of 13 percentage points. How can this be? Did everyone examine the same Joe Fleebetz? This writer has seen permanent partial disability "spreads" in excess of 35%! The hearing officer is charged with picking a number, and in Joe's case, can go anywhere from a low of 5% (employer's medical) to a high of 18% (Joe's chiropractor). The hearing officer comes up with 11%. But here's a thought — why not force the hearing officer to choose a number actually supported by a physician? No physician in Joe's claim opined there was 11% permanent partial disability impairment. This writer submits that if the hearing officer is required to select a number, rather than be given a range, what invariably will happen is the large variations will eventually disappear. Attorneys for injured workers will avoid using doctors or chiropractors who support outrageously high numbers because they would fear rejection of their report by the hearing officer. Likewise, employers will avoid using doctors who regularly opine 0% regardless of the real impairment demonstrated by the injury.
Further exasperating the employer is the fact that six months after Joe received his 11% permanent partial disability award for his shoulder based, in large part, upon his decreased range of motion, Joe remains the captain of the company's volleyball team and still carries a 198 bowling average. While there is a provision in the Ohio Revised Code for Joe to seek an increase in his permanent partial disability award should there be a change of circumstances, there is no comparable Code section allowing for an employer to come before the Commission and argue for a decrease in an award already made.
Article II, Section 35 of the Ohio Constitution established workers' compensation very early in the twentieth century for the purpose of recognizing legitimate on-the-job injuries and providing benefits and medical care to return an injured worker to work as quickly and as "whole" as possible. Because part of a claimant’s attorney’s compensation is routinely a percentage of a permanent partial disability award, the initial goals of the legislation are lost. The claimant's attorney sees his role as increasing as much as possible the amount of the award for his client, which, in turn, increases his fee. Accordingly, his goal is to make the injury look as bad as possible and use physicians and/or chiropractors who will help him reach this goal. As long as this fee structure remains in place, permanent partial disability hearings will not change. Again, this writer submits that one step toward a more realistic decision is to force the Industrial Commission hearing officer to pick an impairment number which is actually supported by a physician. It is respectfully submitted that, should that occur, the wild variations leading to inflated numbers would eventually disappear.
Please feel free to contact Mike Reidy or any of the experienced workers’ compensation attorneys at RBS with questions or concerns regarding permanent partial disability compensation or any other frustrating workers’ compensation issue that’s on your mind!