That’s a simple question, isn’t it? Well, not necessarily. On first blush, the answer seems obvious: zero, right? I mean, if you are really permanently incapable of any sustained remunerative employment, then it stands to reason that you cannot work for any part of the day. As a decision issued last week indicates however, the Ohio Supreme Court does not quite see things that way. To be clear, we’re discussing medical capability to work here. Actually engaging in any type of employment for pay would be an absolute bar to permanent total disability compensation notwithstanding the Supreme Court’s decision below.
On August 23, 2018, the Tenth Appellate District Court issued its decision in the case of State ex rel. Navistar, Inc. v. Indus. Comm. The Navistar case had been before the Supreme Court once before (on the issue of voluntarily abandonment), and was remanded by the Court to the magistrate to issue an order addressing the question of whether the injured worker, Mr. Bisdorf, was permanently and totally disabled as a result of the allowed conditions in his claim.
The magistrate determined that Mr. Bisdorf was permanently and totally disabled, and the Tenth Appellate District heard Navistar’s objection to that decision.
Amongst other issues, the Court considered whether the report of a physician who indicated that Mr. Bisdorf could only work 3 to 4 hours a day supported the finding that he was permanently and totally disabled. In reaching its decision, the Court discussed the case of State ex rel. Bonnlander v. Hamon, 150 Ohio St.3d 567, 2017-Ohio-4003, in which the Court held that there was “no statutory or administrative authority for [this court’s] interpretation that four or more hours of work a day is the standard for sustained remunerative employment.” The Bonnlander decision went on to say that, “there is no hourly standard for determining one’s capability to perform sustained remunerative employment on a part-time basis. The commission decides whether a claimant is capable of sustained remunerative employment on a case-by-case basis.” Accordingly, in Bonnlander, the Supreme Court reasoned that it was within the commission’s discretion to rely on a report which found that Mr. Bonnlander could work no more than 4 hours a day as evidence that he was medically capable of sustained remunerative employment.
In Navistar, the Tenth Appellate District Court applied the Bonnlander decision to reach the conclusion that the injured worker, Mr. Bisdorf, was incapable of performing sustained remunerative employment. As the Court put it:
“As the magistrate noted, these findings reasonably support a conclusion that Dr. Grunstein limits Bisdorf to three to four hours of work in an eight-hour day. In view of these limitations, the magistrate concluded that “[a]pplying the Bonnlander case, these work limitations can be viewed by the commission as preventing all sustained remunerative employment.” Navistar challenges this conclusion, arguing it is contrary to the Supreme Court’s holding in Bonnlander. This argument is unpersuasive. As set forth above, the central tenants of the Bonnlander Supreme Court decision is that the commission has discretion in evaluating a claimant’s ability to perform sustained remunerative employment, and that there is no bright-line hourly standard for determining that capability. That the commission, based on its review of the medical reports, reached a different disability conclusion in Bonnlander than in this case, does not negate the applicability of the reasoning of that case to this case.”
So, what’s the answer to the question: how many hours can you work and still be permanently and totally disabled? Like a lot of things in life, it depends.
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