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Case Law Update (APRIL 2011)

Wednesday, March 28, 2012

Working Wage Loss Burden Placed Back on the Claimant
State ex rel. Marrero v. Indus. Comm., 126 Ohio St.3d 439, 2010-Ohio-3755

The Supreme Court has finally spoken on the claimant’s requirement to mitigate their losses in a working wage loss scenario. The Court found that where a claimant is released to a forty hour work week and is working at less than that with the employer of record, they are still required to do a good faith job search. Taking a good faith job search one step further, the Court indicated that the claimant is not limited to looking for part-time work but also full-time work, which ultimately would help the claimant secure employment which may eradicate ongoing wage loss compensation. If you have someone still receiving working wage loss compensation
and is not working 40 hours per week, please call us for a complimentary evaluation.


Surveillance Done Right
State ex rel. Rohr v. Indus. Comm., 126 Ohio St.3d 259, 2010-Ohio-3756

The Supreme Court of Ohio is notorious for not utilizing surveillance in making decisions regarding payment of compensation. However, in a recent case the Supreme Court of Ohio relied upon surveillance footage to find that the Industrial Commission did not abuse its discretion in invoking continuing jurisdiction to set a new examination on a permanent and total disability recipient. In this case, the
videotape evidenced abilities that the claimant clearly did not demonstrate throughout the processing of his application for permanent and total disability and thus, was the basis for new and changed circumstances for a medical evaluation to determine if he remained permanently and totally disabled.


Inconsistent Plaintiff’s Physician’s Report Disregarded
State ex rel. Kroger Co. v. Johnson, 128 Ohio St. 3d 243, 2011-Ohio-530.

In an interesting move, the Supreme Court has found that Plaintiff’s physician reports must be consistent. In the instant case, the claimant applied for a percentage award and his physician found a 27% impairment. He later applied for total loss of use of the hand. The Industrial Commission found that the claimant had sustained a total loss of use of the hand. The Court found that 27% impairment and the opinion that he had sustained total loss of use of the hand was inconsistent and therefore, could not be relied upon to support a total loss of use award.

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