State News

The Governor signed SB 206 affecting workers compensation. It is effective 1/1/25.

NOTICE. The notice deadline in section AS 23.30.100(a) has been shortened from 30 days to 15 for Employee to report the injury to Employer.

REEMPLOYMENT: While the Board has to notify people of their rights sooner, the time frames for Employer’s mandatory referral was extended from 90 days to 120 days. The tuition amount went up to $22,150 and can be adjusted every 5 years to account for inflation. The SCODDOTS are replaced with the OIN database published by the US Dept of Labor. This is more objective than having rehab specialists develop job descriptions in every claim. This is a good change—updated objective job descriptions including jobs that didn’t exist back in the day when SCODDOTs were created.

A major change is the adoption of a “stay at work” program as AS 23.30.043. It will be developed by the rehab specialist and provided to the employee, employee, program coordinator, and attending physician. The board has to adopt regulations to develop the standards and procedures a rehab specialist must use to develop the stay at work plan. It is apparent that the employer will need to be responsive and be involved in this process. Fortunately, there is an opt-out provision. An employer may elect not to participate or continue to participate in the stay at work plan at any time before completion of the plan. This section is vague, with the discretion left to the board to implement regulations and procedures.  This is a process that we should try to be involved in as employer representatives and provide perspective on how this will impact real life. 

In addition, a last minute addendum was tacked on that resulted in a major change is the presumption of compensability for PTSD for a number of professions mostly related to first responders. AS 23.30.118. The notice timeline, presumption standard and rebuttal standard are all altered by this bill.

 The PTSD has to be diagnosed by a psychologist or psychiatrist. The diagnosis must come within 3 years after the last day of employee’s employment. We are not sure where/why this timeline came from as it is different from 2-year latent injury, and it doesn’t seem to be tied to any particular event, just general employment as a reason in one of the identified positions is sufficient to trigger the presumption of compensability. It also eliminates the comparison with others in a similar role. A broad category that it may apply to is “employees who are certified under state law to perform emergency medical services.” It appears broad enough to potentially include home health care workers and medical providers.

 Relevant definitions are in AS 18.08.200:

(9) “emergency medical services system” means a system that provides for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery of health care services, including trauma care, under emergency conditions, occurring either as a result of the patient's condition or of natural disasters or similar situations, and that is administered by a statewide network that has the authority and resources to provide effective administration of the system;

(13) “provider of emergency medical services” means a person whose occupation or profession is, or has been, the delivery or administration of emergency medical services; a person who has a fiduciary position with, or has a fiduciary interest in, a health activity, facility or other health agency, or a legal or financial interest in the rendering of any component of emergency medical services.”

Once the presumption has attached, there is a secondary change in the legal standard for rebuttal. The phrase “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related” is problematic because it means that we cannot controvert based on “substantial evidence.” Preponderance of the evidence is a factual determination by a trier of fact. This means that once the presumption of compensability is triggered by a psychologist or psychiatrist as minimally as, “Jane Doe has been diagnosed with PTSD and is unable to work. She was a nurse within the last 3 years,” there is no ability to controvert and the claim must go to hearing to establish whether the preponderance of evidence demonstrates that the PTSD resulted from factors that are not work related. The presumption for compensability “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related.” This appears to create an entirely new standard when compared to AS 23.30.010(b) which is that the work stress must be the predominant cause of the work injury.

In a practical application it means that large groups of first responders could all be taken off work at once with no recourse for Employers until after a merits hearing (which can take 9 months or more). There are also likely butterfly effect ramifications and increased stress that will result from understaffing. Without the comparison and controversion abilities there is little opportunity for mitigation. This portion of the legislation really deserved public comment and more thought.

In a Petition filed January 23, 2023, claimant alleged that she developed Chronic Inflammatory Response Syndrome (“CIRS”) as a result of mold exposure at her workplace. Claimant suffered from a variety of treatment resistant symptoms and was diagnosed with CIRS by her functional medicine physician, Dr. Matta. His theory was that mold in claimant’s workplace was causing her chronic symptoms. Her employer, Athletico Physical Therapy, argued that CIRS is a broad diagnosis with many potential causes, and that it would be impossible to identify the origin of the symptoms and whether the diagnosis stemmed from the workplace or if its roots were elsewhere. 

In order to prove that her CIRS was an occupational illness, claimant needed to establish that the CIRS was a natural incident of her occupation at Athletico Physical Therapy, such that working there presented a risk that was distinct and greater than employment in general; however, evidence brought to light at hearing poked holes in the idea that her condition began at work.

Testimony by claimant’s treating physician and the employer’s medical expert, Dr. Gelman, revealed that her blood contained traces of twelve types of mold, only four of which were found at her job; the mold that was found at her job was common to indoor environments and only slightly above the normal range; her workplace and around her home displayed similar quantities of the same types of mold; and the mold that had the highest concentration in her blood was not present at her workplace. Additionally, claimant had a plethora of other medical conditions that could have contributed to a CIRS diagnosis, and her symptoms began while she was on vacation in Florida - not while she was at work. Lastly, Dr. Matta conceded under cross-examination that he could not identify which of the twelve types of molds found in claimant’s blood were the actual cause of symptoms, nor could he exclude any as the culprit.  Because of these reasons, the Board denied the Petition outright, stating that claimant had failed to show that the conditions in her workplace were a distinct hazard, worse than employment in general and capable of leading to a diagnosis of CIRS on their own.

 Should you have any questions regarding this decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Elena Doherty v. Athletico Physical Therapy, IAB No. 1532122 (May 29, 2024)

In a recent decision, the Florida First District Court of Appeal reaffirmed that the payment of fees and costs to a claimant’s attorney is not a benefit within the meaning of the workers’ compensation statutes which serves to toll the statute of limitations. American Airlines Group v. Lopez, 2024 WL 2306999 (Fla. 1st DCA May 22, 2024). As an initial matter, Section 440.19(1), Florida Statutes provides that all petitions for benefits are barred unless they are filed within two years of the date on which the injured employee knew or should have known that their injury arose out of work performed in the course and scope of their employment. Section 440.19(2) provides that payment of any indemnity benefit or the furnishing of medical treatment tolls the statute of limitations for one year from the date such benefits were provided. In other words, the applicable statute of limitations period in Florida is the later of two years from the date of the accident or one year from the date of the last indemnity payment or authorized treatment.

In the Lopez case, the claimant suffered a compensable accident on August 8, 2019, and filed two petitions for benefits on July 24, 2020. The Employer/Carrier/Servicing Agent provided both medical and indemnity benefits. The last medical bill was paid September 22, 2020, and the last indemnity payment was made November 13, 2020. The issue of entitlement to attorney’s fees and costs remained pending from the claimant’s July 24, 2020 petitions, though this was resolved via stipulation on April 28, 2021, and the stipulation was approved by the Judge of Compensation Claims on May 3, 2021. On December 1, 2021, more than two years after the subject accident and more than one year after the last medical or indemnity payment, the claimant filed another petition followed by a third petition on June 6, 2022.[1] The E/C/SA asserted a statute of limitations defense, which was rejected by the JCC on the grounds that the payment of attorney’s fees is considered a monetary benefit to the claimant, which tolled the statute of limitations for one year.   

On appeal, the First DCA held that the JCC erred in holding that payment of attorney’s fees and costs is a “benefit” which has the effect of tolling the statute of limitations. The court applied the statutory interpretation principle of expression unius est exclusion alterius – the expression of one thing is the exclusion of another – in holding that the statute clearly sets forth the two events which serve to toll the statute of limitations: payment of indemnity benefits or furnishing authorized medical treatment. By expressly including these two events in the statute, the court reasoned that the Florida legislature necessarily excluded all others. Accordingly, as payment of an attorney’s fee is not payment of indemnity benefits or furnishing medical treatment, the statute of limitations had run, and the claimant’s petitions were untimely and barred.

A misunderstanding of a key fact can doom an expert opinion.  That was the situation in V.S. v. Spectrum360, No. A-0710-23 (App. Div. June 24, 2024). The petitioner, a special education teacher, was working on July 26, 2021, when a student kicked her in her left breast.  Petitioner felt pain, tenderness, extreme redness and blood clotting in her left breast.

A medical examination on the date of the incident was consistent with a contusion to the left breast.  V.S. had undergone breast augmentation surgery in 2011.  Since then, petitioner admitted that she had gained a “significant amount of weight,” which augmented her breast size.  Petitioner’s board certified plastic surgeon, Dr. Boris Volshteyn, suspected that V.S. “sustained a fracture of the silicone implant on the left side.”  He sent her for an MRI on September 30, 2021.  Dr. Volshteyn said that the MRI “demonstrated significantly increased folding of the implant on the affected left side compared to the right side.”  He attributed the changes in her left breast to the work incident and recommended breast reconstruction surgery and removal and replacement of both breast implants to repair what he thought was a slow leak rupture of the left breast implant.

Petitioner filed a motion for medical treatment seeking breast reconstruction surgery. Respondent sent petitioner for a second opinion with Dr. Beverly Friedlander, a board certified plastic surgeon.  In a key distinction between the two plastic surgeons, Dr. Friedlander noted that petitioner did not have silicone implants, contrary to what Dr. Volshteyn had assumed.  Rather she had saline implants. She pointed out that if Dr. Volshteyn had been correct that petitioner had suffered a rupture or puncture of the left breast when kicked by the student, a deflation in the breast would have occurred rapidly with a saline implant.  When a saline implant is compromised, she said its contents will leak and reabsorb into the body quickly.  But that had not happened in this case.  Even petitioner agreed that there was no material difference in size after the accident between the left and right breasts. 

The experts also disagreed on the interpretation of the MRI results.  The MRI of the left breast showed evidence of folds in the left breast.   Dr. Volshteyn attributed this to the work incident, arguing that the MRI demonstrated “significantly increased folding of the implant on the affected left side compared to the right side.”  Dr. Friedlander read the same MRI but she did not notice in her examination any rippling in the left breast.  She added that ripples in breast implants are actually quite common.  She said that all breast implants ripple, and that if an implant is underfilled, the ripples are even more observable.  In her opinion, one implant was inflated more than the other implant, leading to surface irregularities. She concluded that the folds that showed on the MRI had nothing to do with the work injury.

The Judge of Compensation denied the petitioner’s motion, finding that Dr. Friedlander was more credible than petitioner’s expert.  The Appellate Division affirmed the dismissal.  It said, “The judge found Dr. Volshteyn erroneously believed V.S. had silicone – not saline – implants and that mistake regarding the composition of the implants undermined his overall opinion.” The Court felt that there was sufficient credible evidence for the Judge of Compensation to find Dr. Friedlander more credible in that petitioner’s left breast implant was intact and had not ruptured contrary to the opinion of Dr. Volshteyn.

As for petitioner’s complaint of more pain in her left breast after the accident, the Court noted that Dr. Friedlander had an explanation for this.  Petitioner had chronic pain related to a 2007 motor vehicle accident as well as lupus/rheumatoid arthritis.  Dr. Friedlander also said that petitioner had a history of discomfort in both breasts related to her significant weight gain since the time of her 2011 augmentation.

The Minnesota Supreme Court issued its ruling in Johnson v. Concrete Treatments, Inc. on May 29, 2024. The Court overruled the WCCA’s prior ruling that where potential intervenors’ interests had been extinguished and the employee’s attorney did not unequivocally establish representation of parties which had not intervened in the matter, the attorney could not make direct claims for their interests. Writing for a unanimous Court (minus Justice Hennesy, who had not yet joined the Court while this matter was being considered), Justice Procaccini held that “even if a medical provider itself is barred from bringing a claim for medical expenses because it sought to intervene after the statutory deadline, the employee’s right to assert a direct claim for those medical expenses endures.”

This essentially does away with the holding of  Duehn v. Connell Car Care, Inc. (WCCA 2017), where the WCCA concluded that the employee could not assert a claim for medical expenses owed to that medical provider because the employee’s attorney did not establish dual representation of the employee and the untimely intervenor at the hearing.

 Here is the decision in full:

 https://mn.gov/workcomp-stat/sup/Johnson%20Daniel%20-%20sup%20-%2024.html

 (Summary prepared by Attorney Lucas Cragg of Heacox Hartman)

Brooks v. Benore Logistics System, Inc., 442 S.C. 462, 900 S.E.2d 436 (2024).

In Brooks v. Benore Logistics System, Inc., the South Carolina Supreme Court reversed a 2022 ruling of the Court of Appeals and re-affirmed an already long-standing test for repetitive trauma claims. 442 S.C. 462, 900 S.E.2d 436 (2024). In Brooks, Respondent Claimant alleged a work-related repetitive trauma injury to his back. Appellant Employer denied Claimant’s claim. The Single Commissioner found the Claimant suffered a compensable repetitive trauma claim, but the Appellate Panel reversed. In reversing, the Appellate Panel held that in order to prove a compensable repetitive trauma injury under Section 42-1-172, a claimant must satisfy a two-prong test: (1) That the claimant’s job was “repetitive” in nature as defined by Section 42-1-160(F); and (2) That medical evidence supports a causal link between the repetitive work and the alleged injury.  The Court of Appeals reversed the Appellant Panel’s decision, holding that the Workers’ Compensation Commission did not have the authority to determine whether a claimant’s job was repetitive in nature. Specifically, the Court of Appeals explained that the two-part test announced by the Appellate Panel was unfaithful to the plain language of Section 42-1-172 in that it set an “extra hurdle” for claimants.

In reversing the Court of Appeals decision, the Supreme Court held that the Court of Appeals “erred in rejecting the appellate panel’s conclusion that Section 42-1-172 requires a two-prong analysis, specifically, (1) whether a claimant’s job activities are repetitive, as that term is defined in Section 42-1-160(F); and (2) whether the claimant establishes by medical evidence that there is a causal link between the repetitive work and the alleged injury.”  The Supreme Court explained that “it is self-evident that, to receive compensation for a repetitive trauma injury, a claimant must first prove his or her job is in fact repetitive.”  The Supreme Court acknowledged that “repetitive” is not explicitly defined in Section 42-1-172 but found direction from Section 42-1-160(F) which provides that any injury that occurs as a result of “a series of evidence in employment, of a similar or like nature, occurring regularly, continuously, or a frequent intervals in the course of such employer, over extended periods of time” is not compensable except as provided for in Section 42-1-172.  Because the General Assembly removed those types of injuries from the general “injury by accident” statute (Section 42-1-160), the Supreme Court utilized this as a definition of “repetitive” in applying the two-party analysis. Accordingly, while affirming in result, the Supreme Court reversed the Court of Appeals and re-established that compensability of an alleged repetitive trauma injury must be proven pursuant to the two-part test as outlined above.

As an additional aside, the Supreme Court affirmed the Court of Appeals’ finding that ergonomics studies may but used in meeting the first prong of the aforementioned test, but are inadmissible, unless conducted by a medical professional, as evidence for or against the second prong (causation).

Samual Paulino v. Diversified Coatings, Inc., 2024 S.C. LEXIS 100 (2024).

            In Samual Paulino v. Diversified Coatings, Inc., Samuel Paulino sustained an injury to his back while working as a custodian at Diversified Coatings, Inc. in February 2015. 2024 S.C. LEXIS 100 (2024). Despite undergoing surgery and extensive treatment, including physical therapy and pain management, Paulino continued to experience significant pain and limited mobility. His treating physicians assigned impairment ratings of 12% to his lumbar spine and 13% to his whole person, and his functional capacity evaluation indicated he could perform medium work duties with substantial limitations. At a hearing before the single commissioner, Paulino testified about his ongoing pain and inability to perform his job duties, which led the commissioner to find that he was permanently and totally disabled due to a greater than fifty percent loss of use to his spine.

The court of appeals reversed the workers' compensation commission's award, stating there was no medical evidence to support the finding of a fifty percent or greater loss of use. However, the Supreme Court of South Carolina reversed the court of appeals' decision, reinstating the commission's award. The Supreme Court found that the commission's decision was supported by substantial evidence, including medical records, functional capacity evaluation notes, and Paulino's testimony. The court emphasized that the commission's findings did not solely rely on medical impairment ratings but considered the entire record, demonstrating a comprehensive evaluation of Paulino's condition and its impact on his ability to work.

            Importantly, the Supreme Court disagreed with the employer’s argument that doctors’ medical impairment ratings are “virtually outcome determinative,” and that, in the alternative, even if ratings do not control, they are “clearly the paramount factor for the Commission’s consideration.”  In so holding, the Court reiterated its view that substantial evidence can support findings of permanent and total disability even when the claimant’s impairment rating alone would not. See, e.g., Linen, 286 S.C. at 68-70, 332 S.E.2d at 211-212 (affirming finding of fifty percent loss of use of the back based on other evidence in the record despite doctors assigning impairment ratings of 15% and 20%-30%); Lyles v. Quantum Chem. Co. (Emery), 315 S.C. 440, 445, 434 S.E.2d 292, 295 (Ct. App. 1993) (affirming finding of a fifty-eight percent disability to the back based on testimony from the claimant); Sanders v. MeadWestvaco Corp., 371 S.C. 284, 291-93, 638 S.E.2d 66, 70-71 (Ct. App. 2006) (affirming finding of forty percent disability to the back based on claimant's testimony despite a doctor assigning an impairment ratings of eighteen percent to the lumbar spine); c.f. Tiller v.  Nat'l Health Care Ctr. of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999) ("[M]edical testimony should not be held conclusive irrespective of other evidence."   (Quoting Ballenger v. S. Worsted Corp., 209 S.C. 463, 467, 40 S.E.2d 681, 682-83 (1946))).

Thomas Contreras v. St. John’s Fire District Commission, 442 S.C. 596, 900 S.E.2d 463 (Ct. App. 2024).

              In Thomas Contreras v. St. John’s Fire District Commission, Thomas Contreras, a firefighter, sought workers' compensation for injuries sustained to his right shoulder, arm, and clavicle. 442 S.C. 596, 900 S.E.2d 463 (Ct. App. 2024). The South Carolina Workers' Compensation Commission initially awarded permanent partial disability (PPD) compensation solely for his right shoulder, based on medical evidence and evaluations. Contreras contested this decision, arguing that his injuries extended to his arm and clavicle, which would entitle him to broader disability benefits under South Carolina law. The Appellate Panel, tasked by the court to provide specific findings on each affected body part, initially upheld the single commissioner’s decision but faced subsequent appeals challenging the weight given to medical forms and the extent of Contreras's injuries.

Contreras contended that his right arm and clavicle were also impaired, presenting medical evidence and expert opinions supporting additional disabilities beyond the scheduled injury to his shoulder. Despite his arguments, the Appellate Panel affirmed its original decision, emphasizing that the medical records and evaluations did not sufficiently establish impairments to the arm and clavicle beyond the shoulder. The court upheld the Appellate Panel’s decision, citing substantial evidence supporting the limitation of compensation to the scheduled injury of the right shoulder under South Carolina's workers' compensation laws. This case underscores the importance of detailed medical evidence and the Appellate Panel's authority in determining the extent of disabilities in workers' compensation cases.

Ana Galvan v. Griffin Stafford North Charleston, 2024 S.C. App. Unpub. LEXIS 15

Claimant presented a supplemental report from an unauthorized doctor after the statutory period allowed for the submission of APAs. The Hearing Commissioner allowed the report to be introduced after deciding to hold the record open. Defendants argued that such submission was contrary to the statutory requirements for APA submissions. The Court of Appeals held that Regulation 67-612(E) grants the Commission discretion to hold the record open, and that “it is an abuse of discretion for a commissioner to reject evidence when its admission does not cause prejudice.”  See Morgan v. JPS Automotives, 321 S.C. 201, 203-04, 467 S.E.2d 457, 459 (Ct. App. 1996). The Court of Appeals held no such prejudice existed as the Hearing Commissioner offered Defendants the opportunity to depose the doctor and Defendants declined.

Michael Crowley v. Darlington County, 2024 S.C. App. Unpub. LEXIS 223

            Deputy Michael Crowley sustained two admitted injuries to his right knee and back while employed with Darlington County in 2017 and 2018. In Jan. 2021, Defendants filed a Form 21, which included a report from Dr. James Bethae date December 17, 2020. Claimant’s Counsel objected to the submission of this report pursuant to S.C. Code Ann. Section 42-15-95(c) because Defendants had failed to notify Claimant’s Counsel of their October 27, 2020, pre-IME letter to Dr. Bethae and accompanying medical records. Defendants argued that Section 42-15-95 did not apply in this instance as no doctor-patient relationship had been established between Dr. Bethae and the claimant at the time of the October 27, 2020, IME letter given Dr. Bethae had not examined or treated the claimant. The Hearing Commissioner admitted the report and the claimant appealed.

Section 42-15-95 provides the following:

(B) A health care provider who provides examination or treatment for any injury, disease, or condition for which compensation is sought . . . may discuss or communicate an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the insurance carrier, employer, their respective attorneys or certified rehabilitation professionals, or the commission without the employee's consent. The employee must be:

(1) notified by the employer, carrier, or its representative requesting the discussion or communication with the health care provider in a timely fashion, in writing or orally, of the discussion or communication and may attend and participate. This notification must occur prior to the actual discussion or communication if the health care provider knows the discussion or communication will occur in the near future;

(2) advised by the employer, carrier, or its representative requesting the discussion or communication with the health care provider of the nature of the discussion or communication prior to the discussion or communication; and

(3) provided with a copy of the written questions at the same time the questions are                                                                                                   submitted to the health care provider. The employee also must be provided with a copy of the response by the health care provider.

Section 42-15-95(C) provides that “[a]ny discussions, communications, medical reports, or opinions obtained in violation of this section must be excluded from any proceedings under the provisions of this title.”

            The Court ultimately found that Defendants had violated Section 42-15-95 because “the purpose of the statute is for providers to exchange information with employers rather than an employer to provide a claimant’s medical records to a provider not known to the claimant, as occurred here.”  However, the Court also determined that the admission of Dr. Bethae’s report was harmless error.

The issue here is the interpretation of the words “not known to the claimant.”  If the Court is simply referring to situations, as was the case here, where a letter and medical records are sent to an IME provider pending an evaluation and without a claimant’s knowledge, that is a simple fix: include the claimant on all IME provider letters. If, however, the Court is referring to the IME providers as a whole as being unknown to the claimant because they have provided no treatment for the claimant, then that is a much more complex issue. Under this interpretation, Claimant Attorney’s may seek to argue that since all IME providers (in general) have not previously provided medical treatment and are therefore unknown to the claimant, the provision of any letters and/or medical records to these providers prior to an evaluation violates Section 42-15-95. This interpretation would greatly limit Defendants’ ability to outline the scope of an evaluation and to provide valuable background information with regard to causation, pre-existing conditions, and the like.

New York State is to resume In-person hearings at the Workers' Compensation Board on or after 10/7/24! Although the WCB has decided to reopen its hearing points for In-person hearings, it will continue to allow virtual attendance. In-person attendance is strictly voluntary. It remains to be seen how the reopening will be laid out across the state. It is also an unknown regarding whether claimants and attorneys will choose to attend hearings in-person. 

New York State workers' compensation hearings have been held exclusively via the Board's virtual hearing system since the onset of the COVID-19 pandemic in March 2020. 

Ohio Judicial Decisions

Supreme Court of Ohio

Temporary Total Compensation – State ex re. Dillon v. Indus. Comm., 2024-Ohio-744 (March 5, 2024).

On March 5, 2024, The Ohio Supreme Court issued a significant decision in State ex rel. Dillon v, Industrial Commission (Slip opinion No. 2024-Ohio-744) by ruling that any Temporary Total Disability Benefits (TTD) received by a Claimant subsequent to achieving Maximum Medical Improvement (MMI) can be recouped by Employers. While on its face this may not seem like a major change in the current law, this landmark decision overrules prior case law and sets the stage for potential widescale determination of overpayments in many of Ohio Workers’ Compensation claims.   

For almost twenty-six years, the termination of TTD by way of a finding of MMI was governed by the Supreme Court’s decision in State ex rel. Russell v. Indu. Comm., 82 Ohio Std.3d 516, (1998). In Russell the Court determined that a Claimant’s TTD benefits may not be terminated prior to a hearing before an Industrial Commission hearing officer so long as the Claimant’s attending physician continues to certify TTD, and that a hearing officer may not terminate a Claimant’s TTD benefits retroactive to a date prior to the date of hearing.  Moreover, the Russell Court further stated that a Claimant is entitled to all compensation paid up to the date of the hearing.  The Russell Court then summarily concluded that “…the appropriate date on which to terminate disputed TTD compensation on the basis of maximum medical improvement is the date of the termination hearing and the commission may not declare an overpayment for the payments received by the claimant before that date.” Id at 519. This is no longer the case.  

In Dillon, the Bureau of Workers’ Compensation (BWC) allowed Dillon’s claim for “lumbar strain.” On appeal, a District Hearing Officer once again allowed Dillon’s claim for only the “lumbar strain” but granted TTD compensation for that condition. Dillon subsequently appealed the denial of her additional requested conditions to the Staff Hearing Officer (SHO) level, and her employer obtained an Independent Medical Examination (IME). The employer’s IME concluded that Dillon had reached MMI as of August 8, 2019.  The SHO hearing was held on October 28, 2019, at which time the SHO affirmed the disallowance of Dillon’s addition requests and also found Dillon to be MMI as of August 8, 2019, the date of the Employer’s IME. However, between August 8, 2019, and the time of the October 28, 2019, SHO hearing, Dillon had received TTD payments totaling $5,549.40.  The BWC issued an Order attempting to recoup these funds. The Ohio Industrial Commission found that recoupment was appropriate which gave rise to Dillon seeking a writ of mandamus from the Tenth District Court of Appeals.  The court of appeals denied the writ which gave rise to this matter before the Ohio Supreme Court.

The Ohio Supreme Court in Dillon denied the requested writ but took a de novo review of the issue since the court of appeals decision involved an issue of statutory interpretation. The Dillon Court concluded that Claimants are not entitled to receive payments after attaining MMI pursuant to ORC 4123.56(A), and that if the Claimant is not entitled to those payments, ORC 4123.511(K) requires that those payments be recouped.  The Dillon Court concluded that the reasoning by the Russell Court ran counter to the plain language of those statutes and therefor overruled Russell. 

So, where do we go from here? The practical effect of Dillon is that Employers will now argue at hearings that a Claimant should be determined MMI as of the date of the Employer’s IME. 

Loss of Use – State ex rel. Walters v. Indus. Comm., 2024-Ohio-553 (Feb. 16, 2024)

Mr. Walters (Decedent) was employed as a mechanic by Paradise Lawn Care.  On May 16, 2018, the Decedent was pinned under the bucket while repairing a bucket loader, sustaining blunt trauma to his chest. The injury caused traumatic asphyxiation leading to cardiac arrest and ultimately severe anoxic brain injury. The Decedent died the next day. The Ohio BWC allowed the claim for dependent death benefits to his surviving spouse Mrs. Walters (Walters).

In addition to the award of dependent death benefits, Walters also requested a scheduled loss of use award claiming that that prior to her husband’s death that he suffered the loss of use of both arms and legs, loss of sight in both eyes and loss of hearing in both ears. Hospital records indicate that there were no injuries to the Decedent’s arms, legs, eyes or ears. In support of her claim, Walters submitted a letter from the Decedent’s trauma surgeon in which he opined that by the very nature of the anoxic brain injury the Decedent was left without the use of his arms and legs and likely without his vison or hearing from the time of the injury until his death the next day.  The Claimant also obtained a medical opinion from a neuro-ophthalmologist who opined that the Decedent had suffered a total loss of vision and hearing as a result of the traumatic injuries.  

The BWC obtained a file review in which he State doctor opined that the Decedent was unresponsive and had no neurologic function from the time of the blunt trauma until his death and that there was no evidence or trauma to the extremities or any compromise to the vascular or neurologic structures that support the extremities. The opinion was that had the Decedent survived he would have retained the use of his arm and legs.

The DHO granted the request for scheduled loss of use and the Employer and BWC obtained another report in which the physician opined that the Decedent was dead prior to the loss of use of his arms, legs, vision and hearing.  Walters also obtained two additional medical opinions one stating that while it was not possible to perform tests of brain function it was still their opinion that the Decedent spent the last day of his life without hearing or vision. Yet another opinion obtained by Walters found that the decedent was never “brain dead” because he never underwent testing to confirm brain death and that until his death the decedent had lost use of his vision, hearing, arms and legs.  

The SHO vacated the DHO Order found that the medical evidence did not substantiate the request for scheduled-loss compensation as set forth by the Supreme Court’s decision in State ex rel. Smith v. Indus. Comm., 138 Ohio St. 3d 312. Walters then filed a writ of mandamus to the Tenth District Court of appeals which denied the writ finding that where there is only a loss of brain function and no other injury to the body that Commission does not abuse its discretion in failing to award loss of use compensation.  Walters then appealed to the Ohio Supreme Court.

The Ohio Supreme Court upheld the Court of Appeals decision with an analysis that revolved around the basic premise of the Smith case. The crux of the holding in Smith is that in the absence of an injury to the eyes and ears, evidence of a brain injury that precludes definitive visual and auditory testing is insufficient to support an award for loss of sight and hearing.  In the Smith case no test could be performed to determine whether there was an actual loss of hearing or sight and the medical evidence there showed that Smith was unable to process sights and sounds because of damage to his brain not to because of an injury to his eyes or ears. The Court found that the instant matter involving Walters was like that in Smith.

However, although the Court also upheld the Tenth Districts ruling as it applies to the denial of the request for the loss of limbs, it did not go as far as to say that the same loss of use analysis the Court used in Smith for loss of sight and hearing is applicable for the loss of limbs request. The Court rather stated that apart from the Smith analysis there was some evidence to in the Walters case to support the SHO’s finding that an award for the loss of arms and legs was not substantiated.      

Violation of Specific Safety Requirement (“VSSR”) – State ex rel. Cassens Corp. v. Indus. Comm., 2024-Ohio-526 (February 14, 2024).

Mr. Ybarra worked for Cassens Corp, an automobile transportation company. He was moving newly manufactured cars by driving them to a staging area in the outdoor lot of an automobile manufacturer for eventual delivery to auto dealerships. The outdoor lot was enclosed by a fence with a gate and not accessible to the public. While walking in the lot, Mr. Ybarra was hit from behind by a coworker who was driving a newly manufactured car to the staging area. The coworker did not see Mr. Ybarra because the car’s windshield was covered with snow. Following allowance of his workers’ compensation claim, Mr. Ybarra filed an application for a violation of a specific safety requirement (“VSSR”) award alleging Administrative Code Chapter 4123:1-5 applied to Cassens Corp because the enclosed outdoor lot qualified as a “workshop” and Cassens Corp violated Administrative Code Section 4123:1-5-13(C)(4) which required all motor vehicles to have cab glass with the vision “unimpaired by its condition.” The Industrial Commission granted Mr. Ybarra’s VSSR application finding that the outdoor yard constituted a “workshop” because the perimeter of the outdoor lot was fenced with gates for entry and exit, which were guarded and not open to unauthorized people and that Cassens Corp’s business operations were always conducted outside in the lot. The Commission further found that the newly manufactured vehicle constituted a “motor vehicle,” and that the accumulated snow violated Administrative Code Section 4123:1-5-13(C)(4). Cassens Corp appealed to the Tenth District Court of Appeals.

The Tenth District Court of Appeals overturned the Commission’s decision finding that the commission abused its discretion regarding whether the outdoor lot constituted a “workshop.” The Court determined that, although the outdoor lot was enclosed by a perimeter fence, the area did not meet the definition of a “workshop” as it was nothing more than a very large parking lot. The outdoor lot was not “a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.” There was no manufacturing or vehicle assembly in the lot and driving the vehicles to a staging area for delivery to dealerships was not part of the manufacturing process.

The Industrial Commission appealed to the Supreme Court of Ohio arguing that an enclosed, restricted, and fenced-in area, where motor vehicles are used as an integral and primary part of the Employer’s work process, constitutes a workshop or factory, and that the outdoor lot where Mr. Ybarra did his manual labor of moving motor vehicles was “a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.”

The Supreme Court noted that the term “workshop” is defined as “a small establishment where manufacturing or handicrafts are carried on. Or similarly, as “a small establishment where manufacturing or craftwork is carried on by a proprietor with or without helpers and often without power machinery.” The Supreme Court agreed with the Tenth District Court of Appeals that there was not some evidence to support the commission’s finding that the purpose of the outdoor yard was conducting the type of work that would classify the outdoor yard as a workshop and that the commission placed too much emphasis on the presence of a perimeter fence. The Supreme Court stated that the mere presence of a guarded and gated perimeter fence, in and of itself, is not sufficient to classify the enclosure as a “workshop.” There was no evidence that Cassens Corp’s business was one of craftwork, trade, or manufacturing, with or without power machinery. Cassens Corp did not manufacture the vehicles. It only drove them from the manufacturing plant to the outdoor lot. The Supreme Court concluded that, because Mr. Ybarra was not injured in a “workshop,” Administrative Code Chapter 4123:1-5 did not apply to Cassens Corp and, therefore, Cassens Corp was not liable for the alleged VSSR.

Tenth District Court of Appeals

Temporary Total Compensation – State ex rel. Michell Brown v. Indus. Comm., 2024-Ohio-797 (March 5, 2024).

In September 2017, Ms. Brown was injured when she slipped and fell on a wet floor. Her workers’ compensation claim was allowed, she underwent two surgeries, and she received temporary total compensation. On November 4, 2019, Ms. Brown returned to work on light duty with restrictions to wear a knee brace and take seated breaks. Ms. Brown continued to experience significant symptoms but was able to work through May 23, 2020, when the employer laid her off work due to the COVID-19 pandemic. On December 9, 2020, Ms. Brown requested temporary total compensation from May 23, 2020, through March 1, 2021, based on her treating physician’s opinion that Ms. Brown was unable to return to her former position of employment due to the allowed conditions in her claim. On December 9, 2020, Dr. David Dunkin reviewed the medical file at the request of the BWC and opined that there was no objective medical evidence supporting any substantial change in circumstances in Ms. Brown’s condition since she last worked on May 23, 2020, or that Ms. Brown is unable to work at her former position of employment.

The Industrial Commission denied Ms. Brown’s request for temporary total compensation under R.C. 4123.56(F) finding that Ms. Brown was not working as of May 23, 2020, for reasons unrelated to the allowed conditions in the claim, and that her request was unsupported by the medical evidence based on the opinion of Dr. Dunkin. Ms. Brown appealed to the Tenth District Court of Appeals.

Ms. Brown argued that R.C. 4123.56(F), which was effective as of September 15, 2020, did not apply to her request for compensation because her right to compensation accrued on May 23, 2020, even though she filed her request for compensation on December 9, 2020, after R.C. 4123.56(F) went into effect. Ms. Brown also argued that even if R.C. 4123.56(F) applied, she was eligible to receive temporary total compensation because she was working light duty when she was laid off on May 23, 2020, and her subsequent requests for compensation included additional limitations preventing her from working full duty.

The Court noted that R.C. 4123.56(F) applied to claims pending on or arising after the September 15, 2020 effective date of the legislation and because Ms. Brown’s claim “arose” on May 23, 2020, and was filed on December 9, 2020, Ms. Dillon’s request for compensation was pending on or after September 15, 2020.

The Court also noted that R.C. 4123.56(A) states that temporary total compensation will not be paid for the period when work within the physical capabilities of the employee is made available by the employer or another employer. The Court stated that when a claimant takes work with provided restrictions and then is terminated for reasons unrelated to the allowed conditions, the claimant is not eligible for temporary total compensation. The Court referred to Dr. Dunkin’s report wherein he opined that the medical evidence was insufficient to establish that Ms. Brown was not capable of performing the sedentary duties of her job with employer accommodations. The Court further noted that, although Ms. Brown was not required to prove that she was unable to work solely due to an impairment arising from the allowed conditions in her claim, she was required to establish that the allowed conditions in her claim were a reason she was not working. However, the Industrial Commission determined that Ms. Brown was capable of working on May 23, 2020, based on Dr. Dunkin’s opinion. Lastly, the Court determined that Dr. Dunkin’s report was not internally inconsistent, applied the correct standard, and was some evidence upon which the Industrial Commission could rely to deny Ms. Brown’s request for temporary total compensation.

Temporary Total Compensation – State ex rel. Ruffin v. Indus. Comm., 2024-Ohio-799 (March 5, 2024).

In September 2008, Ms. Ruffin was injured her lower back when she was pushing boxes through a machine. Ms. Ruffin was restricted from work and received temporary total compensation until she returned to work with light duty restrictions on September 4, 2012. Ms. Ruffin worked light duty with restrictions until July 17, 2013. On July 19, 2013, Ms. Ruffin presented to the emergency department with complaints of right-sided hip and back pain. She was diagnosed with non-allowed conditions of lumbar radiculopathy and osteoarthritis, provided steroids, and discharged home.

Ms. Ruffin retired on January 13, 2014. On February 12, 2014, Ms. Ruffin’s doctor submitted a letter to Ms. Ruffin’s attorney stating that Ms. Ruffin was 66 years old and suffering from chronic conditions as a result of her work injury. The work that she does aggravates her symptoms and she probably won’t feel better until she leaves that employment.

In September 2015, Ms. Ruffin’s was diagnosed with major depressive disorder, single episode, moderate and restricted from all work from September 17, 2015 through March 17, 2016. The BWC subsequently allowed the condition of major depressive disorder, single episode, moderate in Ms. Ruffin’s BWC claim. In January 2016, Ms. Ruffin filed a C-84 request for temporary total compensation indicating she was not presently working in any capacity and was receiving social security retirement benefits. She also filed a request for temporary total compensation from September 17, 2015, through March 17, 2016, and to continue.

In April 2016, the Industrial Commission denied her request for temporary total compensation finding that Ms. Ruffin had voluntarily abandoned her employment when she retired on January 31, 2014, for reasons unrelated to her industrial injury. The Commission found that although, Ms. Ruffin testified that she retired because her doctor told her that she would not get better until she stopped working, there were no retirement or resignation papers in the claim file certifying that Ms. Ruffin retired for reasons related to her industrial injury. Further, the last physical restrictions in the claim file certified restrictions through October 31, 2012, only. There were no documented restrictions in the claim file from October 31, 2012, through January 31, 2014.

Additionally, the letter from her doctor was issued approximately two weeks after Ms. Ruffin resigned and stated that Ms. Ruffin would not feel better until she leaves “that” employment – not all employment. Further, Ms. Ruffin testified that she had not looked for any other employment and had been receiving social security retirement since she retired on January 31, 2014. Accordingly, Ms. Ruffin failed to show that she was disabled from all employment at the time of her retirement and therefore she did not have any wages to replace. In November 2022, (over six years later) Ms. Ruffin appealed to the Tenth District Court of Appeals.

The court noted that R.C. 4123.56(F) did not apply to Ms. Ruffin’s case because the Industrial Commission had resolved Ms. Ruffin’s claim prior to the statute’s effective date of September 15, 2020. Therefore, the judicially created doctrine of voluntary abandonment was applicable. Voluntary abandonment exists “when a workers’ compensation claimant voluntarily removes [themselves] from [their] former position of employment for reasons unrelated to a workplace injury, [the claimant] is no longer eligible for [TTD] compensation, even if the claimant remains disabled at the time of [their] separation from employment.” The court noted that when determining whether an employee’s retirement bars a subsequent request for temporary total compensation, two considerations predominate: Was the retirement precipitated by the workplace injury, and did the claimant remain in the workforce after retiring?

The court found that Ms. Ruffin was not under any work restrictions related to the allowed conditions in the claim at the time of her retirement as she retired over a year after her work restrictions were no longer in effect. The court also found that Ms. Ruffin’s doctor did not issue his letter recommending Ms. Ruffin leave “that” employment until two weeks after she had retired. There was no evidence to indicate that Ms. Ruffin’s doctor had communicated his opinion to her prior to her retirement. Further, Ms. Ruffin’s doctor did not recommend Ms. Ruffin retire from all employment. He merely advised that Ms. Ruffin should retire from her current job. Lastly, it was undisputed that Ms. Ruffin had retired from all employment, received social security retirement benefits, and had not sought any work after January 31, 2014. Therefore, the court concluded that there was some evidence to support the Commission’s determination that Ms. Ruffin had voluntarily abandoned her employment and its denial of her request for temporary total compensation.

© Copyright 2024 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

As of July 1, 2024, the maximum workers’ compensation payable is increased to $1,130.00 per week and the minimum is increased to $311.00 per week. The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

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