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Published: Thursday, 7/20/2006

Ohio justices reverse workers' comp ruling

BY JIM PROVANCE
BLADE COLUMBUS BUREAU
Lemke Lemke
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COLUMBUS - In an extremely rare move, the Ohio Supreme Court yesterday reversed itself, undoing the impact of two prior rulings allowing employees who work for years while fighting debilitating injuries to receive greater benefits.

The 5-2 decision is believed to be just the second time the court's all-Republican majority, ushered in with the 2002 election and strengthened in 2004, has acted to undo a prior ruling it didn't like. Traditionally, justices consider prior case precedent to be settled law.

The court ruled yesterday in a new case that the fact someone who suffered a work-related illness or injury and returned to work for years doesn't mean they can claim "special circumstance" and seek higher benefits than they would have received at the time of their original injury.

The decision overturns the effect of the 1998 ruling that allowed former Brush Wellman employee Galin "Butch" Lemke, a leading activist for victims of beryllium disease, to collect benefits from the Ohio Bureau of Workers' Compensation based on the higher salary he was earning immediately before he became disabled. That was two decades after he left Brush.

The Elmore man died from the disease in 1999.

The other decision, issued by a vote of 4-3 in 2002, involved Patrick D. Price, who continued to work more than 20 years after suffering multiple fractures while working as an appliance repairman. Mr. Price successfully sought increased benefits by citing Lemke.

The Lemke decision in 1998 was a unanimous vote of the court. That included two current members, Chief Justice Thomas Moyer and Justice Evelyn Lundberg Stratton, who've now ruled the case was "wrongly decided" and "defies practical workability."

They were joined by Justices Maureen O'Connor, Terrence O'Donnell, and Judith Lanzinger, who were elected after the Lemke and Price decisions.

"Lemke was a well-intentioned response to a very real problem," reads the majority's decision.

"Its underlying reasoning, however, created more problems than it solved."

The court majority said the 1998 Lemke decision led to demands by other disabled workers that their benefits be recalculated to reflect their wages when they became disabled vs. the date their injuries occurred.

"We also repeat our entreaty to the General Assembly to address this shortcoming in the workers' compensation system and fashion a method to allow the average weekly wage to more accurately reflect, over time, the economic realities of the individual claimant or the economic landscape as a whole," reads the decision.

Justices Alice Robie Resnick and Paul Pfeifer, the only remaining members of the 4-3 majority from the Price decision, dissented.

Justice Resnick, the court's only Democrat, argued that courts have not had difficulty distinguishing between claims based on a natural increase in earnings from cases like Lemke "where the claimant has an extremely long and consistent post-injury employment history, and the application of the standard method yields a grossly unfair result."

BWC spokesman Jeremy Jackson said the bureau agrees that lawmakers may want to look at this issue in future legislation.

Phil Fulton, past president of the Ohio Academy of Trial Lawyers, raised concern over a decision that undoes precedent.

"Depending on who's on the court, you can just reverse what was decided previously as good law," he said. "It's one thing to say in a decision that we want the legislature to change this. It's another to say we're going to do it without the legislature."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.


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