Ability to Perform Occasional Activities Does Not Bar Permanent Total

Ability to Perform Occasional Activities Does Not Bar Permanent Total

Posted: January, 2005

State, ex rel. Lawson v. Mondie Forge (12/1/04), 104 Ohio St.3d 39, 2004-Ohio-6086

Issue: Does an injured worker’s occasional performance of activities beyond his restrictions provide evidence to terminate permanent total and find fraud?

Background: Lawson worked as a heavy laborer. He was awarded permanent total in 1994.

In 2001, the BWC started investigating Lawson for fraud. It compiled a listing of various activities he had performed for the village where he worked, most of which he performed for free. It also conducted videotaped surveillance over two days.

The BWC provided the surveillance evidence to Dr. D, who indicated that the activities were not consistent with the finding of permanent total.

The BWC moved to terminate permanent total and find fraud. The Commission did so, and Lawson filed a mandamus challenge to this decision in the Court of Appeals. The Court of Appeals denied the challenge and Lawson appealed.

Decision: Supreme Court reverses, and finds that the evidence supports continued permanent total and did not demonstrate that Lawson had committed fraud.

Permanent total means the inability to perform sustained remunerative employment. In this case, there is evidence of various activities, but not evidence that they were “sustained.”

The Court states:

One of the most enduring (though not often explicitly stated) misconceptions about PTD is that once it is granted, the recipient must thereafter remain virtually housebound. This is a fallacy. PTD exempts no one from life’s daily demands.

The Court also notes that individual actions should not be taken out of context. Although Lawson performed some activities beyond his restrictions, the vast majority of Lawson’s activities were not. Nor did the evidence indicate that Lawson performed the activities beyond his restrictions on a sustained basis. The evidence only demonstrates irregular activity over eight years, and therefore does not support the Commission’s finding.

Editor’s Comment: The Court recognized that permanent total disability is the inability to perform sustained remunerative employment. The Court’s holding is similar to its decision in State, ex rel. Gobich v. Indus. Comm. (11/24/04), 103 Ohio St.3d 585, 2004-Ohio-5990.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.