Benefits for psychological condition?

Paul Pfeifer
By Paul Pfeifer

When Delores M. Roxby was injured at work on September 21, 2004, her workers’ compensation claim was originally allowed for lumbar sprain and related injuries. But when she made additional claims for compensation, her case eventually ended up coming before us – the Supreme Court of Ohio.

After filing her initial claim, Delores collected temporary-total-disability compensation until July 10, 2006. At that point, the Industrial Commission of Ohio – which handles such matters – concluded that her physical injuries had reached maximum medical improvement.

A year later, Delores filed a motion to add a psychological condition to her claim. At the same time, she requested temporary-total-disability compensation as a result of the condition. On that application, Delores indicated that she hadn’t worked since her injury in 2004 and that she was currently receiving Social Security disability benefits. She also submitted the report of Raymond Richetta, Ph.D., of Weinstein & Associates, Inc., in support of her application.

In November 2007, an Industrial Commission hearing officer approved the additional condition of “dysthymic disorder, late onset.” Dysthymic disorder is a depressive mood disorder characterized by a chronic course and an insidious onset. Many people with dysthymic disorder describe lifelong depression.

However, the Industrial Commission hearing officer denied temporary-total-disability compensation for her claim. In doing so, he relied on the opinion of Walter Belay, Ph.D., who had conducted an independent medical examination of Delores.

Dr. Belay described Delores’s symptoms as mild depression. He agreed with the diagnosis of dysthymic disorder but stated that in his opinion, she was not temporarily and totally disabled as a result of that disorder.

After the Commission denied temporary-total-disability compensation for the psychological condition, Delores filed for permanent-total-disability compensation based on her allowed physical and psychological conditions. In April 2009, the Commission denied her request, finding that none of her allowed conditions rendered her totally unable to work – which is the necessary threshold for permanent total disability. The Commission concluded that Delores’s psychological disorder had not yet reached maximum medical improvement and that she maintained the physical ability to perform sedentary work.

In July 2009, Delores consulted with Jamie Lichstein, Psy.D., who was also affiliated with Weinstein & Associates.  Delores eventually filed a request for temporary-total-disability compensation supported by Dr. Lichstein’s opinion. With that recommendation, a staff hearing officer with the Industrial Commission awarded Delores temporary-total-disability compensation.

But it didn’t end there. Upon further review, the Commission concluded that there was insufficient evidence that Delores was disabled as a result of the allowed psychological condition.

The Commission rejected Dr. Lichstein’s opinion because the doctor had not reviewed all the relevant prior medical evidence before retrospectively certifying that Delores had been temporarily and totally disabled as a result of her psychological condition since November 2007.

The Commission determined that Delores had voluntarily abandoned the entire workforce and thus the claimed period of disability was not caused by the allowed conditions.

After that, Delores took her case to the court of appeals. The court concluded that the Commission had not abused its discretion when it failed to award temporary-total-disability compensation. Next, Delores’s case came before us for a final review.

In order to be entitled to temporary-total-disability compensation, a claimant must establish a causal relationship between the industrial injury and any loss of earnings. But a claimant who is no longer part of the workforce for reasons not related to the allowed conditions of the industrial claim is not eligible for temporary-total-disability compensation. So, this becomes a question of fact for the Commission to determine.

Delores maintained that she did not voluntarily abandon the workforce. Instead, she claimed that she had been physically unable to return to work since 2004 due to her injury, and thus she should be entitled to an award of temporary-total-disability compensation. But the evidence before the Commission demonstrated that Delores was physically capable of performing sedentary work and that her psychological condition was not disabling.

In a 2006 order, the Commission determined that Delores’s physical injuries had reached maximum medical improvement. Delores never pursued an appeal of that finding. And in 2009, the Commission denied compensation for permanent total disability, finding that Delores remained physically capable of sedentary work and that the allowed psychological condition was not disabling.

There was no evidence that Delores sought other work or attempted vocational rehabilitation. Consequently, we determined that the Commission did not abuse its discretion when it concluded that Delores was no longer a part of the labor market and that her lack of earnings was not the result of her psychological condition.

Delores also challenged the Commission’s rejection of Dr. Lichstein’s retroactive opinion of disability. But because she had not objected to that conclusion of law at the court of appeals, her argument was waived. Even if the waiver didn’t apply, though, her argument lacked merit.

Before a doctor issues a report that is not based on an examination performed contemporaneously with the claimed period of disability, the doctor must review all the relevant medical evidence generated prior to the examination. If the doctor fails to do so, the doctor’s opinion is not evidence upon which the Commission may rely.

In this instance, Dr. Lichstein examined Delores in July 2009 but retroactively certified her disability to 2007. Dr. Lichstein indicated in her report that she had reviewed Delores’s treatment by others within her practice group – Weinstein & Associates – but she failed to mention reviewing reports of other examining physicians.

Thus, it was within the Commission’s discretion to conclude that Dr. Lichstein’s opinion was not sufficient evidence to support Delores’s request for temporary-total-disability compensation.

We therefore concluded – by a seven-to-zero vote – that Delores failed to demonstrate that the Commission abused its discretion when it denied her request for temporary-total-disability compensation, and we affirmed the judgment of the court of appeals.

Paul Pfeifer is an Ohio Supreme Court Justice.

EDITOR’S NOTE: The case referred to is State ex rel. Roxbury v. Indus. Comm., 138 Ohio St.3d 91, 2014-Ohio-84. Case No. 2012-0815. Decided January 15, 2014. Opinion Per Curiam.