Ohio Claimant May Not Receive PTD Benefits Where He Abandons the Workforce
The Supreme Court of Ohio affirmed a lower’s court’s decision that an injured worker was not entitled to permanent total disability (PTD) benefits because he had abandoned the workforce [State ex rel. Bonnlander v. Hamon, 2020-Ohio-4269, 2020 Ohio LEXIS 1989 (Sept. 2, 2020)]. While the claimant contended the commission had improperly concentrated on the claimant’s failure to seek vocational rehabilitation services at the time it entered its original order denying PTD benefits, the Supreme Court stressed that there was other evidence in the record that supported the commission’s findings. For example, the claimant had testified that he was receiving federal disability benefits from his former employment with the USPS and that he believed he could not receive those benefits if he was working. Moreover, the claimant had not worked since 2009 and a hearing officer found that the claimant failed to work or seek work after the commission found him capable of sustained remunerative employment in September 2014.
Background
Bonnlander sustained severe injuries in a work-related vehicle accident in 1992. His workers’ compensation claim was allowed for physical and psychological conditions. Bonnlander worked as a laborer and construction worker from 1994 through 2000. He worked for the United States Postal Service from 2000 through 2009, first as a mail carrier and then as a custodian. He has not worked since 2009.
In February 2014, Bonnlander applied for PTD compensation. The commission denied that request in September 2014, finding that he could perform sedentary work for up to four hours a day. In its order, the commission noted that Bonnlander’s failure to pursue vocational rehabilitation had reflected negatively on his application. Bonnlander appealed, but in the meantime, requested vocational-rehabilitation services.
The vocational-rehabilitation case manager (“VRCM”) gathered information, but some of what she sought was unavailable: Bonnlander’s treating psychologist did not respond to multiple requests about Bonnlander’s return-to-work outlook or his psychological restrictions, and the managed-care organization handling Bonnlander’s case denied the VRCM’s requests for additional neurological, psychological, and physical evaluations.
The VRCM did consider a May 2014 psychological report by an independent medical examiner who opined that Bonnlander could work part-time, up to four hours a day, with accommodations, and a January 2015 application for wage-loss compensation in which Bonnlander’s treating physician stated that he had the physical ability to perform sedentary work, up to eight hours a day, with standing and walking for up to one hour.
Relying on Bonnlander’s presentation, pain levels, and applicable physical and psychological restrictions, the VRCM indicated Bonnlander would not be able to actively participate in vocational rehab or be employable in a competitive labor market, and that without increased psychological, physical, and cognitive functional abilities, he was not feasible for vocational rehabilitation or return to work. Bonnlander’s rehabilitation file was closed in March 2015 “due to medical instability.”
Later that year the appellate court denied Bonnlander’s 2014 request for mandamus. He appealed, and the Ohio Supreme Court affirmed, holding that it was within the commission’s discretion to rely upon the IME’s report as evidence to support the conclusion that Bonnlander was capable of up to four hours of sedentary work per day [see State ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, 84 N.E.3d 1004, ¶ 20-21].
New PTD Application
On October 12, 2017, Bonnlander submitted a new application for PTD compensation. Ultimately, the staff hearing officer (“SHO”) denied Bonnlander’s request for PTD compensation, based on a finding that Bonnlander had voluntarily abandoned the workforce. Bonnlander appealed and the magistrate found that the commission’s determination that that Bonnlander made an insufficient effort at rehabilitation was an abuse of discretion and recommended that the court grant the writ.
Decision by Tenth District Court of Appeals
The Tenth District sustained the commission’s objections, however, and denied the writ. The court explained that the SHO’s finding on Bonnlander’s effort at VR was only one consideration among many used to support the SHO’s decision to deny PTD compensation. Other evidence in the record supported the decision that Bonnlander had voluntarily abandoned the workforce. Specifically, the court pointed to (1) Bonnlander’s testimony that he believed working could result in the loss of his federal disability benefits; and (2) his failure to work or to seek work after the commission found him capable of sustained remunerative employment in September 2014.
Supreme Court’s Decision
The Supreme Court of Ohio initially noted that PTD compensation was not available to an injured worker who had voluntarily abandoned the workforce for reasons unrelated to his or her allowed conditions. Moreover, whether a claimant had voluntarily retired or had abandoned the workforce was a question of fact for the commission to determine.
The Court analyzed Bonnlander’s essential contention: that the commission abused its discretion by considering his failure to participate in vocational rehabilitation. The Court noted that his argument was based on two premises. First, Bonnlander asserted that after the commission’s September 2014 determination that he could work four hours a day, his allowed medical conditions deteriorated to the point that he became permanently and totally disabled, as evidenced by the March 2015 determination that he was not a feasible candidate for vocational rehabilitation and by medical opinions from November 2015 and late 2017. Second, he asserted that the commission was not required to consider a claimant’s failure to participate in vocational rehabilitation when a finding of permanent and total disability is based solely on medical factors.
The Court stressed, however, that Bonnlander’s reliance on medical evidence from 2015 and 2017 overlooked the fact that the evidence the commission relied on in making its finding of voluntary abandonment dated from 2014 at the latest. And an injured worker who voluntarily abandoned the workforce for reasons unrelated to the allowed conditions prior to becoming permanently and totally disabled was not entitled to PTD compensation.
“Permit” versus “Require”
The Court continued that the cases Bonnlander relied upon were inapplicable. The Court stress that they permit the commission to award PTD compensation based solely on medical factors without considering the claimant’s failure to participate in vocational rehabilitation; they do not require the commission to ignore a failure to participate in vocational rehabilitation when making a finding of voluntary abandonment. Moreover, there was some evidence in the record to support the commission’s finding that Bonnlander had voluntarily abandoned the workforce.
Evidence of Abandonment of the Workforce
The Court noted that Bonnlander testified that he was receiving federal disability benefits arising from his former employment with the post office and that he believed he could not receive those benefits if he was working. In addition, the SHO found that Bonnlander failed to work or seek work after the commission found him capable of sustained remunerative employment in September 2014. In fact, said the Court, Bonnlander had not worked since 2009 and had not sought work since at least September 11, 2014. The commission could consider a claimant’s inaction after leaving a job as evidence that the claimant voluntarily decided to no longer be actively employed.
The Court concluded that the mere existence of conflicting evidence did not render the commission’s determination of a factual question an abuse of discretion. Because the commission’s decision that Bonnlander voluntarily abandoned the workforce was supported by some evidence in the record, the Tenth District correctly denied the writ.