State ex rel. Kidd v. Indus. Comm., 2023-Ohio-20975 (Aug. 29, 2023).
On August 29, 2023, the Ohio Supreme Court issued a significant decision regarding permanent total disability (PTD) compensation.
An injured worker qualifies for PTD when the allowed injury conditions permanently prevent a return to sustained remunerative employment. The Industrial Commission considers the allowed conditions in the claim, as well as the injured worker's "nonmedical disability factors," such as age, education, and previous work history. When the injured worker retains the ability to perform at least sedentary work, the Industrial Commission must evaluate the nonmedical disability factors to determine whether the injury conditions and the nonmedical factors prevent a return to sustained remunerative employment.
In Kidd, the medical evidence suggested the injured worker was able to perform sedentary work, but with additional restrictions. Also, when the Industrial Commission considered the injured workers' nonmedical factors, the Industrial Commission concluded that "modern innovations in office equipment, such as sit/stand desks and wireless telephone technology, as well as work-from-home options" offered the injured worker the ability to meet the additional sedentary work restrictions.
Aside from the fact the Industrial Commission determined that the additional work restrictions [which made "sedentary" work even more limiting than is specifically defined in Ohio Adm.Code 4121-3-34(B)(2)(a)], the Supreme Court found no problem with the Industrial Commission taking more liberty with what accommodations employers are likely to make for their employees. Specifically, the injured worker had some experience in the 1980s with data entry, she could type, and she could use a smartphone. But her work at the time of injury was in warehouse and production. She also worked briefly (about 8 months) after her injury and a spinal surgery in a part-time job as a school cafeteria server. The Supreme Court upheld the Industrial Commission's finding that "modern innovations" in office equipment and the possibility of an employer allowing to work from home in some jobs was sufficient to support a denial of PTD compensation.
This is an unfortunate decision for injured workers across the State of Ohio because not only can "sedentary" work restrictions be made more restrictive than is defined in the Ohio Administrative Code (and yet still be considered "sedentary"), but the prospect that an employer "could" offer accommodations (including via technology or by permitting work from home), makes it more difficult for injured workers to prove their nonmedical disability factors combine with the physical or psychological injuries to prevent returning to sustained remunerative employment.
As the dissenting Supreme Court Justice pointed out in the decision, in a post-pandemic job environment, how many employers are pushing back on the trend of allowing employees to work from home, even in highly skilled jobs? And what is the likelihood of being able to land a job where the employer is willing to accommodate work restrictions that permit a 1–2-minute rest break every 15-20 minutes?