The Ohio Supreme Court’s gift to injured workers is a lump of coal.

Judicial Activism is when a court makes, rather than interprets, the law. Conservatives ALWAYS claim to be against judicial activism. Yet, a recent decision issued by the Ohio Supreme Court is an indisputable example of it. Worse yet, the winners (big business) and losers (injured workers) are clear cut.

In State ex rel. Presbyterian Retirement Services, Inc. v. I.C. the injured worker was deemed permanently and totally disabled. She later applied for permanent-partial disability benefits based upon a medical condition that had been added to her claim after her award of PTD. Because no written law or rule prohibited this type of application, the Industrial Commission granted her request and awarded a modest sum of permanent partial disability.

The Industrial Commission and Tenth District Court of Appeals denied the employer’s appeal of this award. Yet, the Ohio Supreme Court was able to do what neither the Commission nor Court of Appeals could: manufacture a reason to grant the employer’s appeal and deny the award.

This was a 5-2 decision. Retiring Justice Pfeiffer’s dissenting opinion was far more intellectually honest. He noted R.C. § 4123.95 requiring the Court to interpret uncertainties in favor or coverage – an often ignored provision. He added:

“…If the public policy of this state, as evidenced by the enactments of the General Assembly, does not countenance the award of concurrent benefits, the General Assembly could easily amend the statutory scheme. But even though concurrent benefits have been awarded in the past, as noted in the majority opinion, the General Assembly has not evinced its desire to prohibit concurrent benefits. Therefore, I would allow concurrent benefits in this case…”

It is hard to see this as anything other than a huge act of generosity to big business. An award of permanent partial disability is rarely more than a few thousand dollars, and even the maximum benefit under PTD (which workers rarely receive) is hardly a windfall. No one ever got rich on workers’ compensation disability – but many, many got poorer. Sadly, this trend is likely to continue until the makeup of the Ohio Supreme Court changes drastically.