ROBERT & THE LONG ROAD TO PERMANENT TOTAL DISABILITY by Kurt Young

Sadly, one of the most common forms of workplace injury and death has come to be workplace violence.  You can barely turn on the news most days before you hear about a workplace shooting.  But it’s not just guns that injure and kill people on the job. Don’t get me wrong, people with guns do have the ability to injure and kill more of their co-workers than any other means. 

Sometimes, it can be something as simple as a piece of rebar, also known as reinforcing bar, a thick &  heavy steal bar.  Now rebar has a very necessary use in construction.  It helps reinforce concrete and masonry work to reinforce walls and allow them to maintain integrity during periods when the other materials become more or less pliable.  

But in May of 2013 it was used as a nearly deadly weapon.  One of our clients, Robert, was finishing up his shift as a truck mechanic.  His company has several facilities in our area.  Earlier in the day, he and a driver had a verbal argument at one of the yards.  Later in the day, the co-worker decided to get his revenge for the slights he felt he suffered earlier.  He picked up a piece of that rebar steel on the ground, walked up behind Robert and struck him repeatedly, pretty much from head to toe.  

The co-worker was arrested and sent to prison for a long time.  But Robert was left with serious injuries to his entire back, his arms, his skull, and his brain.  Along with the very serious effects of this traumatic brain injury, he began to suffer from very understandable issues with Depression and a Panic Disorder with Agoraphobia (a fear of leaving places where you feel safe).  Worse still his doctors did not understand Ohio law, as he lived in Michigan, and were running up medical bills that were going to be difficult at best to get paid, and left him without any money yet paid for his time off work.  

Two and half months after he was injured, he hired our office. Within sixty (60) days of hiring our office, we had his claim allowed, his time off work benefit aka Temporary Total (TT) flowing, and we were working on issues involving his medical bills and pay rate for benefits.  His doctors did all they could, and after fending the Ohio Bureau of Workers’ Compensation off for nearly eight and a half years, the inevitable happen.  Robert’s Temporary Total benefits were terminated.  But that was the beginning of our fight for Robert to be cared for the rest of his life.  

We were able to get him into an evaluation for a program known as Vocational Rehabilitation or Voc Rehab for short.  This is an intense effort to get our most seriously injured workers back to work.  Done right I have seen them return workers to the workplace I never thought would return to work.  A few to better paying jobs than they had before.  

Unfortunately, despite connecting him to one of the best vocational firms out there, we were not successful in getting Robert into vocational rehabilitation.  But we don’t go away easily, and we used that denial against the BWC.  We gathered the evidence and filed for the benefit of pretty much last resort in our system Permanent Total Disability (PTD).   Now, PTD is not easy to get.  They can only consider the allowed conditions in your claim and their affect on your ability to work.  They can also consider your age, your educational level and ANY past work.  The Social Security Administration believes that if you have not done a job in fifteen (15) years, you do not know how to do it anymore.  But BWC’s position is that if you have ever done that kind of work, you can still do it.  

In my first few years of practice I had a woman turned down for PTD based upon secretarial skills she supposedly acquired from a job she worked for about six months about 45 years ago.  I argued that case up to the Court of Appeals in Columbus and was able to get a new hearing, and eventually won the rehearing, but it wasn’t on the grounds that she had last worked in an office when the typewriters were manual, computers weren’t in many offices, copiers and fax machines didn’t exist, and "I will connect your call" literally involved connecting a wire to a specific opening to connect the outside to an inside extension.  My Grandmother, who worked her way up to office manager started in one of those switchboard jobs.  

In PTD application hearings, being capable of being a part time greeter at Walmart, a part time ticket taker at a parking lot or movie theater, or even a part time telemarketer would beat us if the doctors the system hired say you could do that kind of work.  Well, the ones they hired when we applied for Robert said just that.  He could work, he would need some restrictions and accommodations, but with those, he could return to the workforce.  

Well we don’t give up easily.  We are allowed to hire a vocational expert to look at all of the medical to help a hearing officer to decide if you can return to work or not.  We hired the BWC’s vocational expert who said he was not feasible for a return to work based upon what Robert’s doctors had said.  We then had her review the Industrial Commission’s physical and psychological doctors.  And she wrote an excellent report explaining that no real job met their requirements for an accommodation.  

Then we buckled up and got ready for the hearing.  Now PTD is one of our most critical decisions in this system.  The worker claiming it usually hasn’t worked in many years.  Worse, due to the way the laws on Temporary and Permanent Disability are written, most have not received any type of ongoing money benefits for years.  And the employer is facing potentially lifetime of the worker exposure that will run into the hundreds of thousands of dollars range.  So we skip this issue to the second level or most senior hearing officers the Industrial Commission has.  

We had our hearing a little over a week ago.  Normally these hearings take 30 minutes and no decision is made at them.  And this was no exception.  But the hearing officers are generally very fair and reasonable people who do the right thing in their mind.  I did have one where the hearing officer made up facts to deny one of these, but that’s a story for another day.  Now I will tell you, that given the work we did to get ready and put the proper evidence in the file, the other side had little choice but to admit this is one we should win.  But we are never sure until we get the order or record of proceedings.  

Well, this morning I walked in to our office to the news that not only did the hearing officer grant our application, but she granted the start of his benefits back to that last date he was paid Temporary Total.  So, Robert will get paid his nearly two years of back benefits, and will be entitled to ongoing money for the rest of his life.  If he lives to life expectancy, he will have received over One Million Dollars ($1,000,000.00) in money benefits. 

It took 23 hearings (so nearly 2 dozen of the orders below), 3,762 days (aka 537 weeks or 10 1/3 years) worth of work, 953 entries into our case management software that helps run the office, writing 167 letters, and reviewing over 1,650 legal and medical documents to get him there.  But to quote Robert, “Kurt you and your team busted you’re a$$es to get me here, but you got me here, thank you”.  Now, our pay day won’t be a bad one for all of that work, but likely we’ll have earned a fee less than or equal to about 5% of his Permanent Total Disability benefits or $9 per day since he hired us, when all is said and done. But let me tell you, Robert is the kind of person I went to law school to help. And today we’re celebrating a long, and difficult road, navigated to a good ending.