Is a "final" hearing on PTD really "final?" Guess again.

The latest in a bizarre string of decisions from the Ohio Supreme Court is found in State ex rel. Sheppard v. Indus. Comm.  Robert Sheppard had what he believed to be a permanently disabling injury.  He gathered up his evidence and filed for permanent total disability compensation.  The Industrial Commission scheduled a hearing and both sides presented their evidence.  The outcome: the hearing officer granted his request for PTD. End of story, right? Wrong.

Sheppard's employer then filed a "request for reconsideration." These requests can -- and should -- be granted only for highly specific reasons.  After all, there should be some degree of finality to decisions.  Otherwise, every motion or application would result in a never-ending string of appeals and reconsideration requests.

In this case Sheppard's employer requested reconsideration citing a "CLEAR mistake of law." The employer alleged that the hearing officer who granted Sheppard's application failed to address one of the (many) issues it raised during the hearing. The employer argued that the hearing officer failed to address the impact of what is called an "intervening injury." In other words, Sheppard re-injured himself after his workplace injury.

The Industrial Commission decided to grant the employer's request to reconsider.  After doing so, it determined that there was little evidence to support the employer's argument regarding the re-injury.  End of story, right? Wrong.

The Industrial Commission went further and re-evaluated Sheppard's entire application for PTD.  In an unsurprising decision, the Industrial Commissioners -- hand picked by Governor Kasich --overturned Sheppard's PTD award.

This decision is significant not only for Robert Sheppard, but for every litigant before the Industrial Commission of Ohio. The Supreme Court has created an incentive for every loser in a workers compensation claim -- both employer and employee -- to scour the record to find something -- anything -- no matter how trivial and state "my hearing officer didn't mention this in his/her order." Parties are now afforded multiple chances to obtain a desired result.

My instincts tell me that for the time being, however, only employers will benefit from this short sided and unwise decision of the Ohio Supreme Court.