On December 30, 2016, the Supreme Court of Ohio granted reconsideration of the decision it had previously made on December 8, 2016 in the case of State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., 2016-Ohio-8024. In that case, the Supreme Court denied an injured worker the opportunity to receive a permanent partial disability (PPD) award because she had previously been found to be permanently and totally disabled (PTD) in the same workers' compensation claim. In reaching this decision, the Court concluded there was no statutory authority for the injured worker to receive the concurrent payment of PPD and PTD. Specifically, the Ohio General Assembly did not expressly provide within R.C. 4123.57(A) and R.C. 4123.58 for these benefits to be paid at the same time in the same claim. The Court gave examples of other types of compensation which may be paid concurrently, such as PTD and scheduled loss awards under R.C. 4123.57(B). According to the Supreme Court, "[t]he conspicuous absence of any reference to concurrent payment of benefits in the statute 'evinces a legislative intent to prohibit simultaneous receipt of these benefits.' ***"
The Supreme Court further explained that prior case law likewise does not authorize the concurrent payment of PTD and PPD awards. The Court did acknowledge, however, that an injured worker was not prohibited from receiving PTD and the payment of PPD in a different workers' compensation claim.
Justices Pfeifer and O'Neill dissented from this opinion. The essence of the dissent was that there is nothing within the applicable statutes which prohibits the concurrent payment of PPD and PTD; indeed, the mandate of R.C. 4123.95 that statutes be liberally construed in favor of injured workers supports the payment of concurrent PTD and PPD.'
Because the Ohio Supreme Court has granted reconsideration, it is possible the Court will change its decision and allow these benefits to be paid in the same claim. A decision is expected within the next few months. For more information, call us at 614-221-1300.