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Worker in his 90s with asbestosis denied total disability benefits

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A worker in his 90s with asbestosis in both lungs is not eligible for permanent total disability benefits, the Ohio Supreme Court has ruled.

Robert Boyd received workers compensation benefits for asbestosis two decades after he retired from Scotts Miracle-Gro Co. in 1983, court records show. He then filed a claim for permanent total disability benefits in 2013.

Physicians who examined Mr. Boyd on behalf of Scotts and the Industrial Commission of Ohio said he had a “mild restrictive impairment” from the asbestosis that would not prevent him from performing light work, according to records. Meanwhile, Ohio law defines permanent total disability as the “inability to perform sustained remunerative employment due to the allowed conditions in the claim,” records show.

During a May 2014 hearing in front of the industrial commission, Mr. Boyd testified that he worked other jobs after leaving Scotts. Records show he held a clerical position with some driving responsibilities at a car dealership until 2008, for example.

The hearing officer denied Mr. Boyd's claim, saying he “has the experience and skills, along with a driver's license, to return to his prior employment as a runner for a car dealership,” according to records.

Mr. Boyd appealed to Ohio's 10th District Court of Appeals in Columbus, arguing that the physician who examined him for the commission wasn't qualified to weigh in since he didn't take X-rays and wasn't certified to interpret X-rays, which is required for asbestosis claims, according to records.

Mr. Boyd also argued that the commission abused its discretion by not relying on the vocational evidence in the record, including a report from a consultant that supported a finding of permanent total disability, records show.

The 10th District in June 2015 denied Mr. Boyd's complaint for a writ of mandamus that would require the commission to award him permanent total disability benefits.

On Wednesday, the Ohio Supreme Court in a 6-1 ruling affirmed the appellate court's decision. While one of the state Supreme Court justices concurred in judgment only, another dissented from the majority but did not provide a written opinion.

According to the state Supreme Court, Mr. Boyd misinterpreted the requirement regarding which physicians are qualified to review asbestosis claims, as it applies only to the initial diagnosis of asbestosis and whether a claim is allowed. Mr. Boyd's claim for asbestosis was allowed in 2005, records show.

In addition, the ruling states that the commission didn't abuse its discretion when it denied Mr. Boyd's request, as the order was supported by evidence in the record.

“The commission, as the expert on vocational evidence, had the discretion to reject (the consultant's) report in favor of its own analysis of vocational factors,” according to the ruling. “In doing so, the commission acknowledged that Boyd's age was a negative factor but contrasted it with positive factors such as his high school education and lengthy work history, including a supervisory position, until 2008. A claimant's advanced age need not be an insurmountable barrier to re-employment.”