N.C. Gen. Stat. 97-29 spells out the definition and rate of permanent total disability. There is a lot to the statute, but essentially, if you have lost the use of both hands, arms, legs, feet or eyes or if you have suffered a severe spinal or brain injury or burns, you would qualify for permanent total disability.
But even when a worker’s injuries are profound, you can expect the employer and/or insurer to fight vigorously to avoid a finding of permanent total disability benefits. Take for example the recent Ohio Supreme Court case of State ex re. Old Dominion Freight Line, Inc. v. Indus. Comm’n.
This was a case where the employer took action against the industrial commission for its finding of permanent total disability compensation to a former employee truck driver.
Court records show the worker was injured in January 2005, at which time he slipped and fell on a patch of ice while working as a trucker. His claim allowed him to collect damages for fractured hip, fractured femur, femoral neck fracture, depressive disorder, left short-leg syndrome, lumbar strain and post-traumatic stress disorder.
Plaintiff applied for permanent-total disability benefits from workers’ compensation two years later, but the commission denied his application. He tried again two years later. At this time, employer notified him it intended to submit medical evidence opposing his application. It did so via reports from an orthopedic surgeon, a psychiatrist and a psychologist – all conducted independent medical exams on worker on behalf of employer.
The reports produced by those professionals were not received by claimant’s expert witnesses. Employer asked to depose plaintiff witnesses, but the commission declined. Instead, it made sure the reports were properly sent and asked claimant’s witnesses whether any resulted in a change of opinion. Plaintiff’s expert witnesses say they remained unmoved by the reports.
Commission in turn granted employee permanent total disability.
Employer appealed, alleging the reports of plaintiff’s expert witnesses were flawed because they didn’t review the reports of employer’s expert witnesses before they examined the claimant. Therefore, an award of permanent total disability benefits, the employer argued, was an abuse of the commission’s discretion.
The appeals court disagreed. The error in sending the reports earlier had been in good faith, the appeals court ruled. The case was nonetheless remanded to a magistrate for further consideration of the medical evidence.
Magistrate found employer suffered no prejudice by the fact expert medical reports were sent to plaintiff’s expert witnesses after the examination. Further, the request to depose those doctors was not reasonable. The award was affirmed.
Employer objected, but appellate court affirmed, as did the Ohio Supreme Court. The law doesn’t prohibit submission of supplemental information to physicians, and it’s not uncommon for a doctor to issue – and the commission to accept – supplemental reports after a medical exam.
The error in not sending the reports right away was cured as soon as possible, and relevant information was sent with plaintiff doctors considering it in addendum. Employer’s assertions that those doctors would have decided the case differently, the court ruled, are mere speculation.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
State ex re. Old Dominion Freight Line, Inc. v. Indus. Comm’n., Feb. 2, 2016, Ohio Supreme Court
More Blog Entries:
Top Workers’ Compensation Issues in 2016, Feb. 7, 2016, Asheville Work Injury Lawyer Blog