Gradual Injury in Ohio Workers Compensation Claim

by Dean Pavick on October 16, 2012

We recently represented a young man who came to us after the Ohio Bureau of Workers Compensation disallowed his workers compensation claim. The BWC order stated that the injured worker did not sustain a compensable injury in the course of and arising out of his employment.The client had been working on a project for the employer out of state installing LED lighting strips in food refrigeration units leaning into the refrigerators at various angles over long periods of time using a power drill for installation.He was working ten hours a day, six days a week over a two week  period.Over an 8 day period he began experiencing pain and discomfort in his right shoulder, arm and wrist.When the client returned to Akron he went to the emergency room.The emergency room doctor thought that there might be a pinched nerve in the client’s neck.The hospital record made no mention of a work injury or any diagnosis consistent with an injury.The client’s family doctor felt that the client might have some type of inflammation in the shoulder and wrist.The client was referred to an orthopaedic surgeon who diagnosed a wrist sprain and shoulder tendonitis.The doctor did mention in his medical records that these conditions might be due to some type of overuse syndrome.

The history presented by our client as well as the history and diagnoses in the hospital/medical records did not reveal a typical type of work related injury such as immediate pain in the right shoulder and wrist caused by a sudden twisting or jerking motion, a slip and fall, or being struck by an object.In other words, there was no specific, identifiable work incident or “accident”.A sprain of the wrist could not be considered an occupational disease.It was doubtful that the evidence would support shoulder tendonitis as an occupational disease considering that shoulder symptoms developed after one day on the job and gradually worsened over 8 days.

We therefore needed to gather and file evidence before the Industrial Commission at an allowance hearing to establish an injury under the workers compensation law.Back in 1984, the Ohio Supreme Court held in Village v.Gen.Motors Corp.held that an injury which develops over time as the result of the performance of the injured worker’s job related duties is compensable under the law.However, in that case the injured worker, who normally worked in a management position, had to help out in the warehouse lifting heavy batteries to be transported.He began developing low back pain over a 3 day period.The Court recognized that an injury does not have to occur immediately, but can develop gradually.Furthermore, the claimant in Village was not use to performing this type of strenuous work activity as he normally did not work in the warehouse.In our client’s case, the injury developed over an 8 day period.Furthermore, he did not work in a management position.Additionally, we were aware of the Ohio statute which states that an injury or disability caused primarily by the natural deterioration of tissue,an organ or part of the body is not a compensable work related  injury.We therefore had to establish that our client had developed a “wear and tear” gradual injury.

We firstly took a lengthy affidavit from our client.He had no prior problems with his right shoulder and wrist.Although he was performing his normal duties with pain gradually developing, his work history up until the out-of state work project had only involved occasional LED lighting installation over short periods of time.The refrigeration unit was a cold environment.Our client had to lean into the refrigeration unit with his right arm cocked in a “C’ position for long time periods.In other words,like the injured worker in the Village case, our client was not use to performing these particular work activities over repetitive, prolonged periods.We also wrote to our client’s orthopedic surgeon, providing him with a copy of our client’s affidavit,educating him on Ohio’s recognition of a gradual injury and requesting a medical report. The doctor provided us with a favorable report opining that the diagnosed conditions of right wrist sprain and right shoulder tendonitis were gradual injuries proximately caused by our client’s work activities over an 8 day period.We filed the affidavit and medical report with the Industrial Commission.At the hearing, the employer contested the allowance of the claim as our client did not immediately report any injury or incident to his supervisor, that the BWC medical review stated that the evidence failed to establish a work injury, and that the ER report and family doctor’s records did not set forth any history or diagnoses consistent with a work injury.Our client presented credible testimony.On the basis of the testimony and the additionally filed evidence,the Industrial Commission allowed the claim as a gradual injury.All medical bills were subsequently paid as well as temporary total compensation for the long period our client missed from work.

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