Permanent disability awarded to worker whose doctors disagreedPosted On: Jul. 22, 2019 2:17 PM CST
An injured worker who suffered mental issues in conjunction with a back injury was awarded permanent total disability despite an earlier ruling that found one doctor’s assessment to be “ambiguous” on whether the man was capable of working again, a divided Supreme Court of Ohio ruled Thursday.
Joshua N. Pilarczyk suffered a back injury in 2002 while working as a maintenance worker for Ohio’s Geauga County. His workers compensation claims were allowed for various spinal and psychological conditions and he received temporary total disability compensation until 2015, which is when he applied for permanent total disability, according to documents in The State Ex Rel. Pilarczyk v. Geauga County et. al.; Industrial Commission of Ohio, filed in Columbus, Ohio.
That same year, Mr. Pilarczyk underwent a series of physical and psychological examinations, with his treating orthopedic physician opining that his physical conditions would continue indefinitely "without any present indication of recovery," and that his injuries prevented him from engaging in "any gainful employment," and that he was permanently and totally disabled as a direct result of his work-related injuries, according to documents.
Months later, the Bureau of Workers' Compensation ordered an independent psychological evaluation to ascertain “opinions regarding the extent of Pilarczyk's psychological disability, the medical necessity and appropriateness of Pilarczyk's treatment, and the potential for Pilarczyk to return to work,” documents state.
In his report, that physician responded to several questions, which became an issue in ruling whether Mr. Pilarczyk could ever work. Among the doctor’s assessment included that the maintenance worker’s “mental health issues likely do prevent him from returning to his former position of employment.”
The doctor also stated: “His problems with depression continue to manifest including problems with focus and motivation. It is believed that his problems with distractibility and motivation inhibit his ability to return to work at this time.” He also said that “given his current mental health issues, he is unlikely to thrive in a moderate to high stress job setting. He is more likely able to work a job in an office where there is less stress to trigger his depressive based condition.”
The Industrial Commission of Ohio at first granted permanent disability and then, in 2015, denied it based on the second doctor’s opinion and that of another. The commission stated that the independent examiner “opines Injured Worker is capable of work in a low stress job."
On appeal, the 10th District Court of Appeals reversed, holding that the Industrial Commission of Ohio abused its discretion by relying on a report by a licensed psychologist to deny permanent total disability because “the report is equivocal and therefore is not proper evidence to support the commission's determination.”
In affirming that district court judgment, with two of the seven judges dissenting, the state Supreme Court ruled that the commission erred in accepting one doctor’s opinion over another and that the independent examiner “did not state that Pilarczyk can work or even that he is likely able to work — only that he is more likely able to work in a low-stress job than in a moderate- or high-stress job, after having just stated that even working in a moderate-stress job was unlikely.”
Another assertion by that doctor was “ambiguous,” the ruling states. “While it is not clear that (the independent examiner) was even attempting to offer a firm opinion on whether he believed that Pilarczyk can work, it is possible that he believed that Pilarczyk is not psychologically capable of any work.”
The two dissenting judges wrote that the doctor’s assessment was not ambiguous and that the “report does constitute some evidence that Pilarczyk is capable of some remunerative employment.”
The injured worker’s attorney, Patrick Perotti of the Cleveland office of Dworken & Bernstein Co. LPA, said the “the importance isn’t the award” of permanent disability but that the state’s highest court “reiterated the standard when deciding these permanent disability awards.”
“Those awards are almost always based on expert medical reports… this makes it really clear that unless the report is completely unequivocal, or black and white, they cannot consider it at all” when the employer or commission is deciding whether to approve benefits for an injured worker.
The other parties and attorneys involved could not immediately be reached for comment.