Can an injured worker who can’t lift more than 10 pounds, sit or stand for more than 20 minutes at a time, and has many more restrictions collect permanent total disability compensation?
The Ohio Supreme Court ruled that she could not, finding that the worker was capable of performing sedentary work as defined under state law despite her many medical restrictions.
Back injury leads to spinal surgery, pain in back and legs
Donna Kidd injured her back while working as a warehouse and production employee for Tronair Inc. She collected workers’ compensation benefits for various lumbar-spine medical conditions.
She returned to work with restrictions until March 31, 2014. In February 2015, Kidd underwent spinal surgery, which failed to relieve her symptoms.
After completing 27 weeks of vocational rehabilitation, the Ohio Bureau of Workers’ Compensation determined that Kidd was able to continue her job search, independent of the bureau’s help.
Kidd eventually obtained a part-time job in 2017 as a school cafeteria server. However, she had to quit after eight months because of increasing pain in her lower back and legs and increasing difficulty with standing, bending and lifting.
In September 2018, Kidd applied for permanent total disability benefits, reporting that she:
- used a back brace
- could lift up to 10 pounds daily
- could sleep five hours each night
- could drive a vehicle for one hour at a time
- could walk a half mile at a time
- could stand for 30 minutes at a time, and
- could sit for 30 minutes at a time.
She also reported that she needed assistance to lift and carry heavy items when doing laundry or grocery shopping and could trim grass with a weed eater, but it required many breaks over time.
Kidd admitted that she had used a cash register, performed data entry and answered phone calls at other jobs before she worked for Tronair.
Independent examiner finds worker can do sedentary jobs
A report from her chiropractor was attached to her application. The report stated that Kidd “needs to have the ability to change her position from sitting, standing and lying on a frequent basis” and that she “is unable to return to gainful employment due to worsening of her lumbar disc condition and radicular leg complaints.”
The chiropractor said that Kidd “would be considered permanently and totally disabled due to her allowed conditions.”
An independent medical examiner determined a 23% whole-person impairment and reported the same restrictions as Kidd’s chiropractor. However, the independent medical examiner found that Kidd could work at a sedentary level with additional restrictions, including:
- no bending, twisting or squatting
- avoiding overhead activities
- avoiding activities that require increased balance, including the use of ladders, and
- allowing rest periods every 15 to 20 minutes for 1 to 2 minutes as needed during standing, sitting or walking activities.
A vocational consultant evaluated Kidd and disagreed with the independent medical examiner. The vocational consultant said, “(The) list of restrictive barriers is less than a sedentary level and no employer will accommodate a break every 15 minutes due to being non-productive and inefficient for most job tasks.”
The consultant pointed out that Kidd wanted to go back to work and attempted to do so in the past but she couldn’t find an employer willing to accommodate her restrictions.
Commission denies benefits, appeals court reverses
A staff hearing officer with the Ohio Industrial Commission denied Kidd’s application for permanent total disability benefits, finding that she could perform sedentary work based on the independent medical examiner’s report.
The commission agreed and denied further administrative review, so Kidd appealed with the 10th District Court of Appeals.
The appeals court concluded that the staff hearing officer’s reasoning was flawed. The court held that the decision was an abuse of discretion because the independent medical examiner’s report “contains restrictions that are seemingly inconsistent with the definition of sedentary work” under state law.
For that reason, the appeals court vacated the denial of benefits and ordered the commission to enter a new order either accepting or denying Kidd’s application based on the court’s findings.
The commission disagreed and filed its own appeal with the Ohio Supreme Court.
Supreme Court: Technological options make it viable
On review, the court sided with the commission, finding that “in determining whether the claimant is capable of returning to the job market, the commission is not precluded from considering whether jobs
exist that are reasonably likely to accommodate a claimant’s medical restrictions.”
The court said that the medical examiner’s report is evidence enough that “Kidd’s capacities to sit, stand, and walk may be combined, rendering her capable of sedentary work in some environments.” It noted that despite Kidd’s need for frequent but brief rest periods, there were technological options that could compensate for that, such as telework.
One of the justices dissented, arguing that telework isn’t as prevalent as it was during the COVID-19 pandemic with many employers pushing back on the trend.
With that in mind, “the possibility is vanishingly small that Kidd … has any likelihood of landing a job with an employer that is willing to accommodate her medical condition.”
