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by Justice Paul E. Pfeifer
The industrial age has ushered in a whole host of beneficial advancements, but not all of them have been strictly positive. Such is the case with asbestos. Asbestos is a naturally occurring group of minerals with long, thin fibrous crystals, and the Greeks actually called it the “miracle mineral” because of its soft and flexible properties.
In the late 19th century, builders and manufacturers began using asbestos more and more because of its resistance to heat and chemical damage. While the use of the mineral proved beneficial, there were other problems lurking: it was eventually discovered that inhaling asbestos fibers can cause serious illnesses.
Here at the Supreme Court of Ohio, we recently reviewed a workers’ compensation case that centered on exposure to asbestos. The case involved a man named Ferrall L. Limle, who worked for E.I. DuPont DeNemours & Company for nearly 27 years. In 1992, Mr. Limle retired from DuPont and went to work for the Zane Trace School District. He eventually left that job also, although it’s unclear when he left or why.
In 2001, Mr. Limle received some bad news: he was diagnosed with pneumoconiosis, pleural disease, and asbestosis – a lung disease that’s caused by the inhalation of asbestos. During his years with DuPont, Mr. Limle had been exposed to asbestos as part of his job; the asbestosis and his other ailments stemmed from that exposure.
After being diagnosed, Mr. Limle filed a workers’ compensation claim for these conditions, which was allowed. Three years later, he applied for permanent total disability compensation. As the name implies, permanent total disability compensation allows that the claimant is totally disabled and that he should receive compensation for that disability permanently.
The Industrial Commission of Ohio is the arm of the Bureau of Workers’ Compensation that administers such claims. When the Commission considered Mr. Limle’s claim, among other evidence before it were the reports of Dr. Michael L. Corriveau from March 7 and 8, 2005.
In those reports, Dr. Corriveau discussed Mr. Limle’s allowed conditions and, in a separate action, also listed Mr. Limle’s other health problems, which included diabetes, hypertension, and coronary problems. These “nonallowed” conditions were not part of Dr. Corriveau’s discussion of disability.
Dr. Corriveau assessed Mr. Limle as having a 75 percent impairment from asbestosis and pleural disease. In an addendum dated the day after his report, Dr. Corriveau stated, “This injured worker is not capable of physical work activity.”
Based on this report from Dr. Corriveau, plus additional ones from two other doctors, the Commission granted Mr. Limle compensation for permanent total disability.
The Commission made two specific findings. The first was that Mr. Limle was medically incapable of sustained remunerative employment. And the second was that his retirement from DuPont was not a voluntary and total abandonment of employment that would bar permanent total disability compensation.
In response to these findings, DuPont filed a complaint with the court of appeals – which is the next step in the workers’ compensation process – alleging that the Commission had abused its discretion in awarding compensation to Mr. Limle.
But the court of appeals disagreed, finding that the Commission’s order was supported by the evidence. After that, Mr. Limle’s case came before us for a final review.
Based on the reports of Dr. Corriveau and the other doctors, the Industrial Commission had concluded that Mr. Limle was medically incapable of sustained remunerative work – or, put another way, that he couldn’t hold a regular job. That circumstance negated the Commission’s need to consider his nonmedical disability factors.
But DuPont claims that none of these medical reports attribute Mr. Limle’s inability to work exclusively to his allowed conditions. That claim is not true.
Dr. Corriveau’s discussion of disability in his March 7, 2005 report was limited to Mr. Limle’s allowed conditions. His March 8 follow-up specifically stated that Mr. Limle was incapable of any physical work. Dr. Corriveau’s listing of the other conditions that Mr. Limle suffered from did not mean that they were included in his assessment of disability.
By a seven-to-zero vote we concluded that Dr. Corriveau’s report does, therefore, support the Commission’s decision.
DuPont also maintained that because Mr. Limle retired from the company before becoming disabled, he is barred from obtaining compensation for permanent total disability. But this argument was wrong for two reasons.
First, predisability retirement does not preclude eligibility for permanent total disability compensation unless the claimant retired entirely from the labor market. Our court made that determination in a workers’ compensation case that was decided in 1994.
In this case, Mr. Limle went to work for a local school district after he left his job at DuPont. There was no information in the record indicating why Mr. Limle left his school position, and thus there was no evidence that Mr. Limle voluntarily abandoned the entire labor market.
There is another important factor as to why DuPont’s argument is wrong. DuPont claimed that because Mr. Limle retired from DuPont before becoming disabled he is barred from obtaining compensation for permanent total disability. But Mr. Limle’s disabilities stemmed from a long-latency occupational disease.
A long-latency occupational disease is one that develops over a long period of time, usually because of exposure to some chemical or material in the workplace. The long-term exposure has a cumulative effect, and the condition can linger for years – decades perhaps – before a person is even aware of any health problems.
In some instances, a person may have retired from the job that exposed him to the disease-causing agent, and only afterward become aware that a health problem even exists.
In a workers’ compensation case in 1995, our court upheld the eligibility for compensation for permanent total disability of claimants whose long-latency occupational diseases did not manifest themselves until after retirement.
In accordance with those prior court decisions we voted – by a seven-to-zero margin – to affirm the judgment of the court of appeals. Mr. Limle’s retirement from DuPont does not affect his eligibility for permanent total disability compensation.EDITOR'S NOTE: The case referred to is State ex rel. E.I. DuPont DeNemours & Co. v. Indus. Comm., 116 Ohio St.3d 25, 2007-Ohio-5509. Case No. 2006-1579. Decided Oct. 23, 2007. Majority opinion Per Curiam.