Contemporaneous Medical Evidence Not Required

Contemporaneous Medical Evidence Not Required

Posted: November, 2011

State ex rel. Cinergy Corp. / Duke Energy v. Heber (10/4/11), 130 Ohio St.3d 194, 2011-Ohio-5027.

Issue: Must an injured worker who applies for permanent total provide medical evidence prepared at the time he retired to establish that the retirement occurred due to the injury?

Background: Heber applied for permanent total in 2008, based on a 1970 injury. He retired 19 years after his injury and did not work after he retired.

The employer claimed Heber was not eligible for permanent total because of his retirement. Heber claimed that he retired due to his injury. The Industrial Commission granted permanent total, but did not rule on the retirement issue.

The employer filed a mandamus challenge in the Court of Appeals. The Court of Appeals found that the Industrial Commission should have considered the effect of retirement (and whether it was voluntary or caused by the injury) and granted a limited writ ordering the Industrial Commission to reconsider the permanent total application. Heber appealed.

Decision: Supreme Court affirms.

The Court of Appeals correctly found that the Industrial Commission’s order did not consider retirement. Therefore the Court of Appeals properly remanded the case so the Industrial Commission can consider this issue.

However, the Supreme Court clarifies the Court of Appeals’s decision. The Court of Appeals had implied, based on O.A.C. 4121-3-34(D)(1)(d), that Heber could only establish that he retired due to the injury by providing medical evidence which had been prepared when he retired. O.A.C. 4121-3-34(D)(1)(d) only states that if such medical evidence is presented the Industrial Commission must consider it. O.A.C. 4121-3-34(D)(1)(d) does not say that such evidence is the only way to establish that a retirement was caused by the injury. The Industrial Commission can evaluate the evidence and draw inferences from that evidence. As a result,

While the commission may characterize retirement as voluntary based on a lack of contemporaneous medical evidence of disability . . . it is not required to do so, because there may be other evidence that substantiates the connection between injury and retirement.

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