Ohio Supreme Court Expands Right to Collect Workers' Comp

The Ohio Supreme Court unanimously expanded the right of families and estates of deceased workers to collect benefits due family members who die from work-related injuries during the workers' compensation approval process.

The ground-breaking case began in 1999 when Thomas H. Hubbard of Ashtabula County filed a claim with the Youngstown office of the Ohio Bureau of Workers' Compensation. He asked for benefits because he had contracted malignant mesothelioma, a fatal cancer of the lining of the lungs and chest wall, from years of exposure to asbestos-containing products in the workplace.

In the 1950s, Hubbard worked for the National Distiller Products Co. in Ashtabula. His job as a laborer required him to mix asbestos-containing products without respiratory protection.

Hubbard's exposure to asbestos in the 1950s - 45 years after leaving his laborer's job - was determined to be the cause of his mesothelioma.

In September 1999, despite prior submission of undisputed medical verification of his condition, the Ohio Bureau of Workers' Compensation ordered Hubbard to get another medical examination.

On Jan. 7, 2000, Hubbard was brought to a physician's office on a stretcher, barely able to breathe and unable to speak.

"The patient, essentially, was wasting away," wrote the state medical specialist who examined Hubbard. The specialist also agreed Hubbard's cancer was work-related.

One week later, Hubbard died, leaving his wife, Mary, and two minor children. He was 75.

As a result of Hubbard's death, the bureau procedurally referred the workers' compensation claim to the Industrial Commission of Ohio. In April 2000, the commission dismissed the claim.

"The bureau put Mr. Hubbard and his family through unnecessary delay when it should have come to the their aid," says Michael V. Kelley, managing partner of the Cleveland law firm of Kelley & Ferraro.

At the request of Hubbard's widow, Kelley & Ferraro petitioned the Ohio Supreme Court to order the Industrial Commission of Ohio to grant the lump-sum workers compensation payment due Hubbard for the nine months between filing his application and his death.

Mary Hubbard alleged that the delay was unreasonable and violated the state law that provides for "prompt and certain compensation to deserving claimants."

"We have come to recognize the inherent injustice of requiring a claimant, whether he or she be a dependent seeking death benefits or an injured employee seeking disability compensation, to outlive delays in the administrative process," the Ohio Supreme Court ruled.

The Court also found that the bureau had misinterpreted Industrial Commission of Ohio rules by requiring the examination by a state specialist, which unreasonably delayed the approval of the claim.

"It is an outrage that it was necessary for the Ohio Supreme Court to instruct the Bureau of Workers' Compensation to comply with a procedure to provide speedy benefits to an injured worker, particularly one with a catastrophic, workplace-induced disease," says Michael Kelley.

But the good news," he adds, "is that the court has delivered an interpretation of the workers' compensation laws that will give added protection to families whose savings have been drained by a job-related death of their principal wage earner."

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