These latent illnesses are especially challenging from a workers’ compensation perspective because they do not reveal themselves until many years after the fact. Workers who suffered exposure decades prior often don’t receive a diagnosis until years after they have left the job or even retired.
Diseases like lung cancer, asbestosis and mesothelioma all stem from exposure to asbestos fibers. In the case of asbestosis and mesothelioma, asbestos exposure via breathing the toxic fibers in through the lungs is the only known cause.
In the recent case of State ex rel. Boyd v. Scotts Miracle-Grow Co., the Ohio Supreme Court was asked to consider whether a lower court erred in denying permanent total disability benefits to a worker who suffered asbestosis in both lungs. The worker had been receiving workers’ compensation benefits since 2005, but sought a declaration of complete and total disability as a result of the disease.
But his case was problematic due to medical reports submitted by three different doctors. Plaintiff submitted a report from a doctor who conducted an independent medical exam, but was not his treating physician. Another doctor reviewed the claim file on behalf of the defendant company and a third, a board-certified pulmonologist, examined plaintiff on behalf of the industrial commission. The pulmonologist concluded plaintiff had only a mild restrictive impairment due to the asbestosis and it did not prevent plaintiff from performing light-duty work.
Plaintiff sought workers’ compensation for permanent total disability, which is recognized by the Ohio court as the inability to perform sustained remunerative employment due to the conditions set forth in the claim.
The commission determined the plaintiff was not eligible for permanent total disability, relying heavily on the report of the pulmonologist.
Plaintiff appealed, arguing the pulmonologist wasn’t qualified to give an opinion because he didn’t take x-rays of plaintiff and he wasn’t certified to interpret the x-rays, which is a requirement for asbestos claims in Ohio. He asserted the commission abused its discretion in relying on the report of that doctor. Alternatively, he argued even if the doctor’s report was considered competent evidence, the commission abused discretion in not relying on the vocational evidence that was in the record, including a consultant report that supported his claim of permanent total disability. Plaintiff also argued that the hearing officer should have considered other vocational factors, including the fact that he is 90-years-old.
The Ohio Supreme Court ruled plaintiff’s arguments failed because the x-ray certification requirement wasn’t applicable here, the pulmonologist’s report supported the commission’s decision and the commission conducted its own analysis of vocational factors and wasn’t required to accept the findings of plaintiff’s consultant. The pulmonologist was board-certified and had conducted an independent medical exam.
The court allowed that plaintiff’s advanced age was a negative factor, but it was contrasted with the fact he had a high school education, long work history and had been employed as a supervisor until just a few years ago. There were concerns about his vision, but he’d passed his most recent driver’s license test. Thus, the hearing officer concluded plaintiff’s experience, skills and driver’s license all meant he could return to his previous job as a runner for a car dealership.
In conclusion, the court determined the commission had not erred in considering some evidence and not others, as that is within their discretion.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
State ex rel. Boyd v. Scotts Miracle-Grow Co., April 13, 2016, Ohio Supreme Court
More Blog Entries:
Report: Work Injury Risk Increased With Sleep Breathing Trouble, April 7, 2016, South Carolina Asbestosis Injury Blog