Shawn Patillo suffered a low back injury on February 16, 2011 while working as a press operator for Goodyear Tire and Rubber Co. (“Goodyear”). He was evaluated at the on-site medical clinic and was restricted to “off-standard” work, which meant he could not fully perform all his job functions and required assistance with his job duties. Mr. Patillo remained on off-standard work until April 4, 2011. He then returned to on-standard work as a press operator on April 5, 2011. On May 13, 2011, Mr. Patillo was restricted to two weeks of sit-down work only. There was no sit-down work available and, as a result, he went out of work on May 13, 2011.

Mr. Patillo later filed a Form 33 request for hearing. A Form 60, 61, or 63 was never filed. The parties agreed in a consent order that Mr. Patillo suffered “some level of contusion to the lower back as a result of [the] accident.” The Deputy Commissioner issued an Opinion and Award finding the low back injury compensable and awarding temporary total disability benefits between March 6, 2012 and the time of the hearing, but denying Mr. Patillo’s request for prior temporary total disability benefits between May 13, 2011 and March 6, 2012.

Defendants appealed to the Full Commission. The Commission concluded that Mr. Patillo failed to prove that he was disabled after March 6, 2012 because he had not shown that he made a reasonable effort to return to work or that a job search would have been futile. Separately, the Commission concluded that that the parties’ consent order created a rebuttable presumption that Plaintiff’s current low back condition was related to his compensable accident and that Defendants failed to rebut the presumption. Even without the presumption, the Commission concluded that Mr. Patillo had proven that his at-work injury caused his continuing non-mechanical back pain and awarded him ongoing medical treatment. Both parties appealed to the Court of Appeals.

On December 20, 2016, in Patillo v. Goodyear Tire and Rubber Co., the Court of Appeals partially reversed and partially affirmed the Commission. Regarding disability, the Court determined that the Commission’s conclusion that Mr. Patillo had not conducted a reasonable job search was not supported by competent evidence. The Court acknowledged there is no set rule for determining the reasonableness of a job search and that the whether a job search is reasonable is in the Commission’s discretion; however, the Commission must make findings of fact to explain its determination of reasonableness. Notably, the Court rejected Mr. Patillo’s argument that he was not required to search for employment outside of Goodyear in order for his search to be reasonable. The Court remanded the case to the Commission to make findings of fact to explain its determination of reasonableness.

Concerning medical treatment, the Court affirmed the Commission’s application of the Parsons presumption and conclusion that Defendants had not rebutted the presumption that Mr. Patillo’s medical treatment was related to the at-work injury. The Court cited the Parsonsand Perez cases, noting that a presumption of compensability for medical treatment applies to future symptoms allegedly related to the original injury, not just for the original injury itself. The Court rejected Defendants’ argument that no presumption applied because they had only admitted the compensability of a low back contusion. The Court further concluded that Defendants had not rebutted the presumption of compensability because they were unable to show, through the medical testimony, that Plaintiff’s current low back pain was separate and distinct from his original work injury.

Risk Handling Hint: Patillo clarifies the Commission’s responsibility when determining whether an injured employee’s job search is reasonable. If this is an issue in dispute, employers and carriers should offer evidence that the employee’s job search is not reasonable, such as documentation of the employee’s job search and the opinion of a qualified vocational rehabilitation expert.

Also, Patillo highlights the shifting of the burden of proof to defendants in accepted claims to rebut the presumption that an injured employee’s medical treatment is related to the original compensable injury. Currently on appeal to the Supreme Court, Wilkes {click here for previous Risk Alert concerning Wilkes} extended the Parsons presumption for injuries not initially accepted as a part of the claim. In light of these cases, employers and carriers are encouraged to investigate new injuries/conditions promptly after they are discovered to determine whether there is evidence they are “separate and distinct” from the original accepted injury.