Philip J. Fulton examines the case of State ex rel. Spohn v. Indus. Comm., 115 Ohio St. 3d 329, 2007 Ohio 5027, in which the Ohio Supreme Court upheld the Industrial Commission’s termination of a claimant’s permanent and total disability award because of medical improvement.  Fulton's commentary evaluates Spohn in the broader context of whether Spohn has changed workers’ compensation jurisprudence as well as provides a practical guide on how to avoid a Spohn termination of benefits.

Mr. Spohn suffered persistent back pain during the early 1990's resulting in additional surgery.  However, after receiving epidural steroid injections in 1996, he experienced significant pain reduction in his low back over the next 15 months.  In 1998, private investigators hired by his employer, Seaway, reported that he played 95 rounds of golf that year. 

On December 6, 1999, Seaway moved the Industrial Commission to have Mr. Spohn medically examined by a physician of its choice pursuant to Ohio Rev. Code Ann. § 4123.651. A district hearing officer granted the request on January 7, 2000, a decision which Spohn did not appeal.  Thereafter, based upon their two examining physicians’ reports (one each for both of the allowed physical and psychological conditions), Seaway requested the termination of Mr. Spohn’s permanent and total disability benefits.  A staff hearing officer granted the employer’s motion on October 3, 2000, after going through a two-step analysis.  The hearing officer first determined that there was continuing jurisdiction to reopen the issue of Spohn’s eligibility for permanent total disability, finding that his improvement experienced after the epidural injections constituted a new and changed circumstance.  Then after relying on the employers’ defense medical reports that Spohn was capable “of at least sedentary sustained remunerative employment,” the staff hearing officer terminated permanent total disability compensation.

In a 4-3 decision, the Ohio Supreme Court found that there was “some evidence” in the record to support the Commission’s finding that Claimant’s medical improvement qualified him for a sedentary job.  The “some evidence” rule is the standard of review in a mandamus proceeding wherein the Commission abuses its discretion only where there is no evidentiary basis for the Commission decision.  State ex rel. Humble v. Mark Concepts, Inc. (1979), 60 Ohio St. 2d 77. The Spohn dissent argued that the majority did not perform a complete permanent total disability analysis.

To read Fulton's additional comments and practice points on this topic, see his expert commentary article.