Benefits Due When Due

In an unusual case, the Ohio 10th District Court of Appeals ruled on Monday that the family of a long-time plastics factory worker was entitled to an award for the loss of use of his arms and legs in the days leading up to his death, even though the medical evidence indicated that he was comatose and not aware of his paralysis, and his family didn't submit a claim for loss of use until after he died.

In State ex. Rel PolyOne Corp. v. Industrial Commission, Glenn Evans was employed for many years as a laborer for the PolyOne Corp. and its predecessor company. PolyOne makes specialized polymer products.

Before he retired in 1994, Evans was exposed to vinyl chloride – a colorless flammable gas used to make plastic and vinyl products. The U.S. Environmental Protection Agency recognizes it as a highly toxic and carcinogenic compound.

In 2010, doctors diagnosed Evans with hepatic angiosarcoma. This is a very rare malignancy with a poor prognosis, according to the Oxford Journals Annals of Oncology. Vinyl chloride exposure is widely acknowledged as a cause of the disease.

Evans filed a workers' compensation claim in October 2010 based on his cancer diagnosis. PolyOne, a self-insured employer, certified his claim.

After his diagnosis, Evans' health quickly deteriorated. On July 4, 2011, orthopedic surgeon Matthew E. Levy examined Evans at his home. Levy noted that Evans had no functional or volitional use of either of his arms or legs. He also did not respond to verbal or visual stimuli.

Evans died four days later, at the age of 74.

He was survived by his wife of 56 years, son, daughter and five grandchildren.

Evans' wife submitted a claim for death benefits and scheduled loss compensation for her husband's loss of use of his arms, legs, hearing and sight prior to his death.

A district hearing officer determined that Evans' family was entitled to death benefits, but denied the family's claim for a loss-of-use award.

A staff hearing officer vacated the DHO's ruling, finding that Evans had indeed suffered the total loss of use of his arms and legs prior to his death, ruling they were the direct result of Evans' angiosarcoma and that Evans' comatose condition was not a bar to scheduled losses.

The SHO also ruled that there was no persuasive medical evidence to suggest that these losses were temporary or transient in nature, the family was entitled to 850 weeks of compensation at the scheduled rate of $775 per week (a grand total of $658,750).

PolyOne took the case to another SHO, lost, and after the Industrial Commission of Ohio unanimously denied PolyOne's request for reconsideration, appealed to the 10th District Court of Appeals. The magistrate to the 10th District recommended PolyOne's request for a writ be denied and the court adopted that position.

Death benefits are intended to compensate a worker's dependents for the loss of support resulting from the employee's death, while loss-of-use awards are comparable to an award of damages in a tort case and have nothing to do with impairment of earning capacity, said the court.

It also reasoned that because Evans would have been entitled to apply for a scheduled-loss award at the time of his death, his dependents were entitled to apply for the benefits to which he was entitled.

As long as the worker would have been entitled to an award for the loss of use of his extremities before his death, his dependents can make the claim on his behalf after his death and receive the award that would have been due to him, the court said.