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Case Law Update (JULY 2011)

Wednesday, March 28, 2012

State Ex rel. Paneto v. Matos, Slip Opinion No. 2011-Ohio-2587
(June 16, 2011)

Claimant Paneto applied for a scheduled loss of use of his left leg and was denied. He was later awarded permanent and total compensation and argued that this new award was a new and changed circumstance which warranted a reconsideration for total loss of use. The Commission found that the issue was “res judicata,” meaning that this matter had already been adjudicated. The Commission went on to conclude that even if it were re-opened Paneto still had some use of his left leg. Following Panetos appeal to the Supreme Court of Ohio, it was determined that he had been working full time as a home remodeler since October 2008. The Industrial Commission thereafter terminated his permanent total disability award. In trying to get a secure 200 weeks of compensation at the maximum rate for loss of use of the leg, Panetos lost his entitlement to lifetime compensation.


Fishel Co. v. Republic W. Ins. Co. 163 Ohio Misc.2d 1, 2011-Ohio-2166.

The employer, Fishel brought action against an insurer that had an excess workers’ compensation insurance policy alleging that the insurer was required to pay employee’s claim for permanent total disability. The insurer refused to pay indicating that because the permanent total disability application was agreed to by the employer; this amounted to a voluntary settlement of claims without the insurer’s consent. The Court held that “voluntary settlement” must be considered in the context of Ohio’s workers’ compensation statutes and to do so must comply with ORC 4123.65. The Court found that although Fishel did passively acquiesce to the payment of permanent total disability this did not arise to the level of a voluntary settlement and did not require the written consent of the insurer. The Court found the policy did not preclude Fishel from admitting facts.


State ex rel. Fairfield City Schools v. Indus. Comm., Slip Opinion No. 2011-Ohio-2378

Under ORC 4123.343(D0(2), an employer may receive a handicap reimbursement when it hires a person with certain mental or physical conditions that could hinder employment. The program charges the state surplus fund all or part of the cost arising from an industrial injury sustained by an employee how has one of the statute’s enumerated “diseases or conditions” if the disease or condition either caused or aggravated the industrial injury leading to death or disability. Claimant had hypertension since at least 1995. In 2002, he injured his back while at work and ultimately was found permanently and totally disabled. The Employer filed a handicap reimbursement indicating that his “pre-existing hypertension” is a cardiac disease and delayed his recovery from back surgery.

The BWC found that the medical evidence submitted was insufficient evidence to find that hypertension was a cardiac disease. The Court declined to find that hypertension was a cardiac disease. Guarding the fund, the Court continued that the mere presence of hypertension would allow employers to receive reimbursement although the condition never manifested itself as a cardiac disease. Citing to the AMA, “one in three adults has hypertension, so no incentive is needed to hire these persons in the workforce – they are already there.” The Court conceded that it was not saying that hypertension can never be classified as a cardiac disease, only the employer was unsuccessful in demonstrating it in this case.

Clearly, this will be a hot button topic as the U.S. population grows exponentially with increasing cases of hypertension. In fact in 2007, the CDC recorded 46.3 million ambulatory care visits (office visits, hospital outpatient, emergency room visits) where the primary diagnosis was hypertension. This will not be the last time we hear about hypertension and its effect in delaying both treatment and healing in industrial injuries.

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