Friday, September 20, 2013

OH Justices For Procedure

Just yesterday I ranted about procedure over substance taking over California workers' compensation.

California isn't alone.

The Ohio Supreme Court on Wednesday upheld the denial of scheduled-loss benefits to the estate of a quadriplegic worker for 14 of the 16 years he survived in a near-vegetative state after an industrial accident on the basis of a Catch-22 procedural issue.

Chief Justice Maureen O'Connor wrote a blistering dissent, in much more eloquent prose, essentially paraphrasing my sentiments of yesterday.

In Estate of Sziraki v. Bureau of Workers' Compensation, No. 2011-0799, Dean Sziranski, while driving from one job site to another to conduct company business, lost control of his car and crashed.

He was ejected through the windshield, suffering major brain injuries and severing his spinal cord. He would spend the rest of his life in a coma.

After his accident, Dean's mother – his only next of kin – filed a claim for permanent total disability benefits. 

The Bureau of Workers' Compensation told Marilyn Sziraki that her son was eligible for a PTD award, but it refused to pay an award to her unless she got a court order placing her in charge of her son's financial affairs. If she didn't do so, the agency said it would ask the Attorney General to appoint a guardian for Dean.

Marilyn tried to get an order from a probate court judge to serve as the administrator of Dean's assets, but the judge wouldn't issue the order unless Dean was going to have some money coming to him. So Marilyn was stuck, as the Bureau wouldn't pay her any money without the probate court order, and the probate court order wouldn't be forthcoming without a payment of money. 

Finally, in December 2006, "the probate court blinked" and issued the order, but Dean died just a few weeks later, in January 2007, at the age of 49.  

Marilyn then became the executrix of his estate and she hired an attorney, Kurt M. Young of Toledo.

With Young's assistance, Marilyn received a payment for her son's funeral expenses and the accrued PTD benefits that had been payable to him. 

Young contended however that Dean's estate should also have received an award for his permanent loss of use of his arms and legs pursuant to Ohio Revised Code Section 4123.57(B).

Section 4123.57(B) provides that a worker may apply for an award of benefits based upon the loss of use of certain body parts no sooner than 26 weeks after the date of injury. The statute states that a worker will be entitled to an award representing 66 and 1/3 percent of an injured worker's average weekly wage for 225 weeks if a worker has lost use of an arm, and for 200 weeks if a worker has lost use of a leg. 

A district hearing officer, however, determined that the estate could only receive 104 weeks of benefits because of Section 4123.52. The statute provides that the state Industrial Commission cannot make an award of compensation for a back period in excess of two years of the date on which an application for such compensation was filed. 

Since no application for loss of use benefits was filed during Dean's lifetime, the district hearing officer treated the date of Dean's death as if that were the date that an application was filed, and the district hearing officer awarded Dean's estate $44,512 as compensation for the loss of his arms and legs he experienced for the two years before he died. 

A staff hearing officer upheld this award, as did the 10th District Court of Appeals. 

A majority of the Supreme Court agreed and denied the claim for 4123.57(B) benefits, which Young contends was worth $363,000 (850 week cumulatively) because there was loss of use of both arms and legs.

Chief Justice O'Connor blasted the BWC for luring Marilyn into the rodent trap, stating that the Bureau unquestionably knew that Dean was medically eligible for the scheduled-loss award, and that he was unable to seek benefits for himself or to ask for help for that purpose, and that he had no guardian or other representative acting for him. 

"Given the bureau's authority to act in the absence of an application, its full knowledge that Dean was too disabled to seek benefits on his own, and its assertion that it would refer the case to the attorney general's office for a suggestion of incompetency if Marilyn did not act, I would hold that the bureau had a clear legal duty to act by either exercising its discretion to confer benefits in the absence of an application or to pursue the referral to the attorney general's office so that a proper guardian could be appointed to act on Dean's behalf."

Sometimes I'm a liberal, and sometimes I'm a conservative. A lot of us moderately disposed people have this sort of schizophrenic political/social personality.

In this case I'm decidedly liberal. In my mind this is clearly a case where procedure trumped substance. Yeah, I know, the procedure is in place to ensure that there is some order to the system and to defeat unmeritorious claims (which by the way never really seems to happen - if you're a thief, procedure has never been an obstacle and sometimes actually facilitates the criminal deed).

In the common law there is the doctrine of detrimental reliance - where someone relies upon the representations of another to their detriment.

This is basically what Justice O'Connor is saying - Marilyn relied upon BWC's representations regarding the attorney general's office, but that referral never happened.

And the state (remember that Ohio is one of the last remaining monopolistic states) interfered with an orderly process by denying for years her attempt to get an order from the probate court.

What this case really tells the public is that workers' compensation is so complex that you really do need an attorney to deal with it.

That's not right.

And neither is this case.

Young told our reporter that he is going to ask for a rehearing. I hope he does and I hope he convinces the majority of the court of the errors in its opinion.

Post script - Marilyn has since died, and the Sziranski business has debts to resolve before liquidation.

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