Posted: November, 2001
Change of Occupation Award Applies to All Dust-Related
Occupational Disease Claims
State ex rel. Middlesworth v. Regal Ware Inc. (9/26/01), 93 Ohio St.3d
214.Issue: Is an injured worker who suffers from a dust-induced occupational disease eligible for a change of occupation award?
Background: Middlesworth's claim was allowed for interstitial pulmonary fibrosis with bilateral apical lung disease. She applied for permanent total compensation. The Industrial Commission doctor stated that he found no evidence to support the claim of interstitial pulmonary fibrosis with bilateral apical lung disease. He found no impairment. Permanent total compensation was denied.
Middlesworth then filed for change of occupation benefits under R.C. § 4123.57(D).
The District Hearing Officer denied the motion because Middlesworth did not suffer from asbestosis, silicosis or coal minor's pneumoconiosis. On appeal, the Staff Hearing Officer added that the Industrial Commission had found Middlesworth not to be permanent total on the basis of Industrial Commission doctor's opinion that Middlesworth could return to her former position of employment. There was no more recent medical evidence submitted by Middlesworth to support a medical change in her condition to support that she is unable to return to work at her former position of employment.
Middlesworth then filed another change of occupation motion attaching a high-resolution CAT scan.
The District Hearing Officer declared the motion res judicata and the Staff Hearing Officer affirmed. Middlesworth then filed a mandamus alleging that the Industrial Commission had abused its discretion in both denying her permanent total compensation and her change of occupation. Court of Appeals granted both writs.
Decision: Supreme Court affirms in part and reverses in part (5-2).
As to permanent total, Court of Appeals found that Industrial Commission doctor refused to accept the allowed conditions. Supreme Court disagrees. Industrial Commission doctor knew that the interstitial lung disease was at issue. However, he found that the condition no longer existed. Court says this is not a situation where the doctor acknowledges the condition's existence but refuses to accept the Industrial Commission's determination that its causally related. Industrial Commission did not abuse its discretion in finding that Industrial Commission doctor's report was some evidence to support denial of permanent total compensation.
As to the change of occupation benefits, the District Hearing Officer denied the award based on R.C. 4123.57(D)'s limitation to claimants with silicosis, asbestosis or coal miner's pneumoconiosis. Court finds that when the provision is read together with R.C. 4123.68, eligibility for change of occupation benefits extends to all dust-induced occupational diseases.
Court returns case to Industrial Commission on the issue of change of occupation benefits to decide if Middlesworth is eligible for the award.
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