State News : Ohio

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


Ohio

CALFEE, HALTER & GRISWOLD LLP

  216-241-0816

2022-23 Biennium Budget Bill Brings Pro-Employer Changes to Ohio Workers’ Compensation Law.

 

On June 29, 2021, Governor Mike DeWine signed into law the 2022-23 budget which enacted some changes to Ohio workers’ compensation law, including:

·         Requiring claimants in receipt of salary continuation to wait 26 weeks after their last payment to file an application for permanent partial disability compensation (“PPD”);

·         Requiring claimants who have previously been denied permanent total disability (“PTD”) to show new and changed circumstances before re-applying for the benefit; and

·         Reducing the statute of limitations for an occupational disease claim from two years to one year from the date of disability due to the disease began.

 

The budget bill also resulted in the return to in-person hearings in Ohio that may have come earlier than some expected. The Ohio Industrial Commission returned to in-person hearings on July 6, 2021, but the parties now have the option to calling rather than attend physically (this was always an option for injured workers, but rarely utilized). Parties who opt not to attend in person must waive their right to an in-person hearing. The waiver is not necessary for parties represented by attorneys or non-attorney representative attending in person. Otherwise, a waiver is required, either orally (if the party is represented by an attorney appearing remotely) or in writing (if the party is represented by a non-attorney representative appearing remotely).

 

Ohio General Assembly Limits Workers’ Compensation Coverage for Remote Employees

 

The Covid-19 pandemic has led to a dramatic increase in the number of employees who work remotely. In response to the various issues arising in connection with remote workers’ compensation claims, Governor Mike DeWine signed into law House Bill 447 (“H.B. 477”) on June 24, 2022 which amended Ohio Revised Code §4123.01(C) to exclude from the definition of “injury” any “[i]njury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home that is separate and distinct from the location of the employer[.]”  H.B. 447 does permit, however, an injury or disability sustained at the home to be compensable under Ohio workers’ compensation law if all of the following three factors are met:

(1)   The employee’s injury or disability arises out of the employee’s employment;

(2)   The employee’s injury or disability was caused by a special hazard of the employee’s employment activity; and

(3)   The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

 

Ohio courts have defined “special hazard” as a “risk, either distinctive in nature of quantitatively greater than the risk common to the public.” H.B. 447 goes into effect on September 23, 2022.

 

Workers’ Compensation in Firefighter Cancer Claims

 

House Bill 17 (“H.B. 17”) is a proposed bill which would require the Ohio Bureau of Workers’ Compensation (“BWC”) to charge compensation and benefits paid from the State Insurance Fund for workers’ compensation claims involving firefighters disabled by cancer to the Surplus Fund Account. In a claim involving a firefight disabled by cancer where the employer is self-insured, the bill proposed that compensation and benefits payable to the firefighter be paid by the self-insured employer would be deducted from the paid compensation reported to the BWC.

 

BWC Updates on COVID Claims

 

Actual losses where Covid-19 was contracted by an employee during the period between the emergency declared under Executive Order 3030-01D, issued on March 9, 2020 and July 2, 2021, which is fourteen days after the Executive Order was repealed, shall be excluded from employer’s experience for the purpose of experience rating calculations.

 

In terms of how the Ohio BWC workers’ compensation system handled claims for Covid-19 allowances, hindsight has found that in very limited situations, some workers can file claims for workers’ compensation if they contracted Covid-19 at work. The Ohio BWC approved 836 claims for Covid-19 as of March 2021. As BWC guidance has set forth, it depends on how a person contracts it and the nature of the occupation. Generally, communicable diseases like Covid-19 are not workers’ compensation claims because people are exposed in a variety of ways, and few jobs have a hazard or risk of getting diseases in a greater degree or a different manner than the general public. However, if an individual works in a job that poses a special hazard or risk and contract Covid-19 from the work exposure, a claim could be allowed.

 

Voluntary Abandonment – State ex rel. Quest Diagnostics, Inc. v. Indus. Commission, 2022-Ohio-1093

 

The claimant’s husband was reassigned to work in California. The claimant notified her supervisor she would be moving to California at the end of October 2018 and submitted a request for a transfer to California, but in early October, she suffered her industrial injury. When she and the employer then learned, she would need to become licensed in California for a phlebotomist position, she submitted her resignation and then filed a motion for temporary total disability (“TTD”). The Ohio Industrial Commission found, based on her intent, the claimant did not voluntarily remove herself from her former position of employment and was entitled to TTD compensation.

 

The Tenth District Court of Appeals (Franklin County) disagreed and issued a writ of mandamus. The Court found that State ex rel. Klein v. Precision Excavating & Grading, Co., 155 Ohio St.3d 78, 2018-Ohio-3890, reasserted the fundamental tenant that a claimant is ineligible for TTD if the claimant’s workplace injury did not cause the loss of earnings. When the claimant removes herself from employment for reasons unrelated to the work-related injury she is no longer eligible for TTD. Here, an employee who quits her job for reasons unrelated to her workplace injury is ineligible for TTD because the circumstance of the injury did not cause the loss of earnings. Klein requires this result even if the claimant desired to retain her position and never intended to leave the workforce.

 

Scope of Employment

 

Owens v. Giant Eagle, Inc., 2022-Ohio-192 (8th District Cuyahoga)

 

Claimant transported pallets of deli products from the delivery truck to the deli department. As he rounded the deli counter, he felt a pop at the back of his foot. His claim was disallowed for left Achilles tendon rupture. In his R.C. §4123.512 appeal, the court granted his employer’s motion for summary judgment on the grounds that the claimant’s injury was not sustained in the course of, and arising out of, his employment. The court of appeals found the claimant was working at the store location at the time of his injury, the employer had control over the scene, and the employer received a benefit from claimant’s presence at the scene up to the point of injury. The court found a genuine issue of material fact exists and revised and remanded to the trial court.

 

Hinerman v. Savant Systems, Inc., Hocking C.P. No. 21CV0053 (Nov. 21, 2021)

 

Claimant shut her finger in the door of her personal vehicle after she arrived for work but prior to entering the employer’s facility and starting her shift. She was in the employer’s parking lot, which was employer owned and controlled. The Commission denied her claim, finding she was not in the course and scope of employment when she was injured. In her R.C.  4123.512 appeal, the trial court granted the claimant’s motion for summary judgment finding she was a fixed situs employee in the zone of employment (the employer’s parking lot), she was on the employer’s premises for the specific purpose of going to work and was in the process of existing her vehicle when the injury occurred, all actions which benefited her employer.

 

Permanent Partial Disability Awards for Partial Loss of Sight – State ex rel. Bowman v. Indus. Commission, 2022-Ohio-233

 

Bowman’s claim was allowed for significant conditions to her eyes as a result of an E. coli infection caused by lunch meat provided by the employer at a holiday party. Bowman filed an application seeking a scheduled loss of use, pursuant to R.C. §4123.57. The District Hearing Officer disallowed the award entirely because the claimant had worn contacts prior to the injury. On appeal, the Staff Hearing Officer granted Bowman a 67% loss of vision award of uncorrected vision in her right eye and denied the request for loss of vision in her left eye. The Commission relied on the report of Dr. McGowan for this award.

 

Bowman filed for an increase to her prior award later requesting loss of uncorrected vision bilaterally in the amount of 70% (3% increase in right and 70% increase in left eye). She based this request on the prior report of Dr. McGowan, as well as a report of Dr. Harnish who opined that the AMA Guidelines were not applicable. The BWC had Bowman evaluated by Dr. Wareham who found a loss of 65% vision in the right eye and a 45% loss of vision in the left eye. Dr. Wareham agreed with Dr. Harish that the AMA Guidelines were not applicable. Further complicating the facts, all physicians agreed that her total loss of vision bilaterally was at least 70%.

 

At the first hearing on the request for the increased award, the DHO found a 45% loss of vision for the left eye only based on Dr. Wareham’s report. Since Dr. Wareham’s opinion on the right eye was 2% less than the prior award, the DHO did not give an increased award for the right. The SHO affirmed. The claimant appealed to the Ohio Supreme Court, arguing all the physicians agreed the use of the AMA Guidelines was insufficient to measure actual visual impairment, and thus, Dr. Wareham’s opinion was unreliable since it based on such. Further, Bowman reminded the Court that R.C. §4123.57(B) holds that an award of compensation shall not be made for less than twenty-five percent loss of uncorrected vision. The Court held that, while generally speaking, it would be acceptable for the Commission to select a percentage within the range of percentages stated by the physicians, it finds here, where all the physicians agree that Bowman’s actual visual impairment is 70% of greater, the Commission did abuse it discretion in finding that eh had a 65% impairment in the right eye and a 45% impairment in the left eye.

 

Refusal of Good Faith Job Offer/Entitlement to Temporary Total – State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 2021-Ohio-3539.

 

Claimant sustained a work injury while employed by Ryan Staffing in a second-shift position, working 4:00 pm to midnight. Her workers’ compensation claim was allowed for a knee sprain, and she requested TTD. The employer offered claimant work within her medical restrictions, but on the day shift. Claimant refused the offer because she had to care for her granddaughter during the day while her daughter worked. The employer denied her request for TTD compensation because she had turned down the suitable job offer.

 

Claimant argued that the employer’s offer of employment was not made in good faith because it knew she was unable to work the day shift. The Commission granted her request for TTD compensation, finding both the offer and refusal were made in good faith. The Ohio Supreme Court held that while claimant may have had a good faith basis for her denial of suitable employment, this could not be used as a factor in justifying compensation under §4123.56. R.C. §4123.56(A) provides that payment for TTD compensation shall not be made for periods when work within the physical capabilities of the employee is made available by the employer, and read in conjunction with O.A.C. §4121-3-32(A)(6), which provides, “job offer” means a proposal, made in good faith, of suitable employment within a reasonable proximity of the injured worker’s residence, and “suitable employment” means work which is within the workers’ physical capabilities.

 

© Copyright 2022 by Christopher M. Ward, Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

Ohio House Bill 81 to Significantly Change Ohio Workers’ Compensation Law

Ohio House Bill 81 (H.B. 81) went into effect on September 15, 2020, but many of its significant changes to current Ohio Workers’ Compensation Law have been discussed by claimant’s counsel and employer's counsel throughout the workers’ compensation community for many months.

The first major change encompassed by H.B. 81 involves the shortening of the time for the filing of claims asserting a Violation of a Specific Safety Requirement (VSSR). The current time limit for the filing of a VSSR claim under Section 4121.47 of the Ohio Revised Code is 24 months from the date of the injury. Under H.B. 81, for all such claims arisingon or after September 15, 2020, that time limit has been reduced to one year. This change to the statute of limitations for VSSR claims appears to be an attempt to bring this section of the workers' compensation world into alignment with a previous amendment passed by the General Assembly in 2017 that reduced the statute of limitations for injury and death claims to one year for all claims arising on or after October 1, 2017. With the enactment of H.B. 81, only claims of an occupational disease brought pursuant to Ohio Revised Code 4123.85 continue to allow for a two-year statute of limitations.

The second major change encompassed by H.B. 81 pertains to the continuing jurisdiction of the Ohio Industrial Commission to make modifications or changes for a period of five years with respect to former findings or orders involving matters of disability, compensation, dependency or benefits. Under current Ohio law, that time period begins running from the last payment of compensation or lastpayment for medical services. For claims arising on or after July 1, 2020, H.B. 81 now permits a five-year continuing jurisdiction period to commence from the last payment of compensation or the lastrendering (providing) of medical services. This should serve to hasten the beginning of that five-year time period since payment for medical services usually occurs after those services are rendered.

The third major change set forth by H.B. 81 effectively legislates a "proximate cause" standard to Section 4123.56 as it relates to the awarding of temporary total benefits or wage loss compensation, while expressly setting forth the "intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section." For claims pending or arising after September 15, 2020, "an employee who is unable to work or who suffers a wage loss as thedirect result of an impairment arising from an injury ... is entitled to receive compensation under this section ..." (emphasis added). If an employee is not working or has suffered a wage loss as a direct result of reasonsunrelated to the allowed injury or occupational disease the employee is not eligible to receive compensation.


There is a final major change included in H.B. 81 that may potentially affect a state-funded employer’s desire to settle claims under Section 4123.65. For claims arising on or after September 15, 2020, an employer will no longer be able to deny or withdraw consent to an application to settle a claim if both of the following apply to the claim: 1) the claim is no longer within the employer’s experience; and 2) the employee named in the claim is no longer employed by the employer. This change will serve to limit an employer's ability to object to the resolution of claims that do not have any impact on the employer.

Revisions to Ohio Law Provide Clarity and Consistency to Motor Carriers as to Test for Independent Contractors

 

Effective July 3, 2019, the Ohio General Assembly has enacted statutory changes to the definition of “employment” to provide clarity to motor carriers and those in the trucking industry as to how administrative agencies, including the Ohio Bureau of Workers’ Compensation (BWC), will view independent contractor drivers. H.B. 62, Ohio’s transportation budget bill which was signed into law by Governor DeWine on April 3, 2019 (the Bill), was supported by the Ohio Trucking Association in order to address the issue that different common law tests were used by the various Ohio agencies with a hand in regulating the trucking industry.

Prior to the enactment of H.B. 62, each agency used a slightly different test as developed under common law. For workers’ compensation, agencies and courts looked to whether the employer reserved the right to control the manner and means of performing the work. In unemployment compensation matters (as well as with construction industry-specific cases before the BWC), a 20-factor control test was utilized. Yet another test for purposes of minimum wage regulations required one to examine the economic realities in the nature of the relationship between the worker and the employer. The Bill now replaces all these tests and should provide clarity and consistent results for motor carriers operating in Ohio.

The Bill now exempts from coverage – under Ohio workers’ compensation law, unemployment compensation law, overtime law, and minimum wage law – individuals who meet all seven factors of the new statutory test to govern the definition of independent contractor across the agencies. Under the revised R.C. 4123.01 defining “employment” for the purposes of Ohio workers’ compensation (similarly with R.C. 4111.03, et seq. for minimum wage/overtime and R.C. 4141.01 for unemployment), an individual who operates a motor vehicle in the performance of services for or on behalf of a motor carrier will be designated as an independent contractor (and therefore exempt from coverage) if all these seven factors apply:

1.         The person owns the vehicle or vessel that is used in performing the services for or on behalf of the carrier, or the person leases the vehicle or vessel under a bona fide lease agreement that is not a temporary replacement lease agreement. For purposes of this division, a bona fide lease agreement does not include an agreement between the person and the motor carrier transporting property for which, or on whose behalf, the person provides services.

2.         The person is responsible for supplying the necessary personal services to operate the vehicle or vessel used to provide the service.

3.         The compensation paid to the person is based on factors related to work performed, including on a mileage-based rate or a percentage of any schedule of rates, and not solely on the basis of the hours or time expended.

4.         The person substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper.

5.         The person enters into a written contract with the carrier for whom the person is performing the services that describes the relationship between the person and the carrier to be that of an independent contractor and not that of an employee.

6.         The person is responsible for substantially all of the principal operating costs of the vehicle or vessel and equipment used to provide the services, including maintenance, fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except that the person may be paid by the carrier the carrier's fuel surcharge and incidental costs, including tolls, permits, and lumper fees.

7.         The person is responsible for any economic loss or economic gain from the arrangement with the carrier.

See R.C. 4123.01(A)(1)(d). This industry-specific test is now a comprehensive way for motor carriers to properly interpret the nature of the relationship with independent contractors, as well as for Ohio administrative agencies to determine and adjudicate coverage disputes should they arise.

While some of the required factors which must apply to be deemed an independent contractor are common to tests in other jurisdictions – mileage-based compensation, supplying personal services, responsibility for operating costs – this new test expressly requires a bona fide, written agreement to be in place that specifies that the relationship is one of independent contractor. Such agreement must not be directly between the contractor and the motor carrier transporting company for whom the contractor provides the services.

Pursuant to the revised statute, administrative rules will be developed in the near future for implementation of the test for each agency. In the meantime, those in the trucking industry should review both their current written independent contractor agreements and the in-practice relationship with contractors to remain or come into compliance with Ohio’s clarified standard.

Ohio COVID-19 Immunity Bill

On September 15, Ohio Governor Mike DeWine signed into law House Bill 606, the COVID-19 Immunity Bill, which grants temporary qualified immunity to healthcare workers as well as general temporary qualified immunity to individuals, businesses, schools, governmental entities and religious entities from civil lawsuits arising from the COVID-19 pandemic. The much-anticipated law will go into effect on December 13, 2020, and provides the above-referenced immunity from potential causes of action that may arise from March 9, 2020 (the date of the Governor’s Executive Order declaring an emergency) through September 30, 2021.

In general, the new temporary law provides businesses, individuals, schools, governmental entities and religious entities with immunity from civil liability for injury, death or loss to a person or property when that loss is based in whole or in part upon exposure to, or the transmission or contraction of certain viruses, including the virus that causes COVID-19. This immunity does not apply if it can be established that the exposure or transmission was as a result of reckless conduct, intentional misconduct, or willful or wanton misconduct by the defendant. The law also is quite clear that governmental orders, recommendations or guidelines do not create a legal duty that could be used to establish liability in a civil lawsuit. The new statute also includes a presumption that any such government order, guideline or recommendation is not admissible as evidence in order to establish a legal duty or new cause of action.  

For healthcare workers, the new law grants temporary immunity from tort liability and professional discipline for services provided that result in injury, death or loss as a result of and in response to the Governor’s declared emergency. This immunity covers actions or omissions and decisions related to the provision of healthcare services as well as actions resulting from compliance with an executive order or director’s order. This immunity, however, does not cover conduct that constitutes a reckless disregard of the consequence or intentional or willful or wanton misconduct on the part of the healthcare workers. Moreover, for disciplinary actions, conduct that is considered to constitute gross negligence is not provided immunity.

 

September 2019



Court Decisions of Note

Attorney Solicitation Ban/First Amendment

Ohio Workers’ Compensation Law has become a subject for Federal Court litigation withBevan & Associates, LPA, Inc. v. Yost, 6th Circuit Case No. 18-3262 (July 8, 2019). In 2006, Ohio had amended its Workers’ Compensation Law (R.C. 4123.88) to block the public release of the names and addresses of workers’ compensation claimants. Ohio law firm, Bevan & Associates, had historically used the public records process to craft and send written solicitations targeted at workers’ compensation claimants regardless of whether they were already represented.

After the statute was amended, the Bevan firm utilized an exception in the ban which allowed journalists to gain access, hiring a former client with journalism credentials to obtain the information which it used from 2007 to 2016 in marketing campaigns. After a grand jury subpoena in 2016 investigating possible violations of the ban, the Bevan firm filed suit in the U.S. District Court for the Southern District of Ohio seeking a declaratory judgment that the solicitation ban was unconstitutional. The District Court avoided the First Amendment question and interpreted the statute narrowly to only ban solicitation using unlawfully obtained information.

The 6th Circuit, however, took on the constitutional issue and reversed after a determination that the statutory text at issue was unambiguous. The statute, the Court stressed, barred both in-person and written solicitation, with or without the use of improperly obtained claimant information. Therefore, applying the doctrine set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), the Court analyzed the Ohio statute under the First Amendment and weighed protecting the privacy of the claimant being solicited against the blanket prohibition on the Bevan firm’s right to engage in commercial speech.  The 6th Circuit found that the statute completely barred solicitation, failed the doctrine set forth inCentral Hudson, and that the law firm’s right to engage in free speech outweighed the potential recipient’s privacy interest.

 

 

 

OSHA Impossibility Defense in Workers’ Compensation Safety Violation      

State ex rel. Jackson Tube Service, Inc. v. Industrial Commission, 154 Ohio St.3d 180 (2018), was a case of first impression in Ohio.  An injured worker receiving workers’ compensation may obtain additional compensation by showing the injury resulted from the employer’s violation of a specific safety requirement (VSSR).  In Jackson Tube a heavy flywheel fell on an employee working under it. The Industrial Commission found that the employer violated Ohio Admin. Code § 4123:1-5-15(D) which prohibits workers from working under suspended loads. The Commission based its decision on the employee’s testimony that it was his “understanding” that there was a device that would have allowed removal of the flywheel without placing him in danger. A court later held that the Commission had to consider evidence that no such device existed and it would have been impossible for the employer to comply with the requirement.

Federal decisions under OSHA have allowed an employer to avoid liability for violating a safety regulation if the employer could demonstrate that it was impossible to comply with the regulation and still have the work performed.  This novel defense had not been accepted in Ohio courts or before the Industrial Commission.  A four-to-three Ohio Supreme Court held that the “impossibility defense” to violation of an OSHA standard could be imported into Ohio Workers’ Compensation Law as an affirmative defense to an alleged VSSR where an employer shows: (1) it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work; and (2) that no alternate means of employee protection existed or were available.

The Chief Justice and two other justices dissented, arguing that the Industrial Commission’s reliance on the employee’s “understanding” alone was sufficient to support the VSSR.  The employer had been given an improper procedural “second bite at the apple” by being allowed to present evidence for the impossibility defense in a Request for Rehearing.

Voluntary Abandonment of Employment

The Ohio Supreme Court overruled precedent in order to strengthen its “voluntary abandonment doctrine.”  InState ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St. 3d 78 (2018), the Ohio Supreme Court held:“…(W)hen a workers’ compensation claimant voluntarily removes himself from his former position of employmentfor reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment.”  (Emphasis added.)

           

Klein had fractured his ribs on November 5, 2014.  His doctor completed papers stating he would not be able to return to work until January 5, 2015.  Prior to the injury, Klein had informed Precision management and coworkers that he was going to move to Florida on or about November 20, 2014.  The Industrial Commission awarded Temporary Total Disability Compensation (TT) for the closed period of November 6 through November 19, 2014, determining that Klein’s employment ended for reasons unrelated to his industrial injury. 

Klein asked the Franklin County Court of Appeals to issue a writ of mandamus finding that the Industrial Commission had abused its discretion by terminating his TT prior to the date when he was medically able to return to work.  The Court of Appeals issued a limited writ, returning the case to the Industrial Commission to determine if Klein remained medically unable to return to his former position of employment as of November 20, 2014.  If he was, then Klein was entitled to further TT.  The Industrial Commission appealed to the Ohio Supreme Court.

To reach its conclusion the Ohio Supreme Court overruled two recent precedents as “wrongly decided,”State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71 (2008), andState ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303 (2007).  Both cases stood for the proposition that a claimant still medically eligible for TT could not voluntarily abandon employment even if the criteria which normally would constitute voluntary abandonment had been met.  In Reitter, the claimant had been recovering from a compensable back surgery.  He was fired for making disparaging remarks about the company’s president.  OmniSource involved a commercial truck driver who lost his driver’s license due to being convicted of driving while intoxicated.  Obviously unable to drive legally, he was discharged while still on TT.  According to the majority, Reitter and OmniSource had inadvertently created an illogical and unworkable distinction between claimants terminated for misconduct and those who voluntarily retired. 

As a side note, administrative litigation before the Ohio Industrial Commission is notoriously informal.  Klein’s Employer had been meticulous in documenting his intent to move to Florida.  This ultimately resulted in the Employer’s victory.

Fight in Company Parking Lot Not Compensable

Garner, who performed machinery maintenance for Fuyao, pulled into the driveway of the company parking lot ten (10) minutes before the start of his 6:00 a.m. shift.  Jackson, coming from the opposite direction, pulled into the driveway just before Garner.  Jackson’s wife worked for Fuyao but he did not.  The way the respective drivers were operating their vehicles produced a “road rage” incident resulting in the following testimony by Garner: “…He was like, what if I just hit you? I’m like, I definitely would not recommend that.  That’s when he slugged me and knocked me down…I said you are going to jail…”

In Garner v. Ohio Bureau of Workers’ Compensation, et al., 2018 Ohio 3398, Larson’s presumption that an employer’s parking lot is part of the premises was overcome where the motive for the assault had nothing to do with the workplace.  Although arguably Garner was in the course of employment having already arrived at work just before his shift, his injuries did not arise out of employment.  “Arising out of” contemplates a causal connection between the injury and the employment. Fisher v. Mayfield, 49 Ohio St. 3d 275 (1987). “A casual connection is determined by looking at the totality of the facts and circumstances surrounding the accident, including the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident, and the benefit the employer received from the inured employee’s presence at the scene of the accident.”

Garner discussed Foster v. Cleveland Clinic Foundation, 8th Dist. Cuyahoga Nos. 84156, 84169 2004-Ohio-6863, which analyzed fights and assaults in the workplace as historically focusing on two main questions; (1) was the origin of the assault work-related? and (2) was the claimant not the instigator?  The injury is compensable only if the answer to both questions is “yes”. Foster was fatally shot by her ex-husband on her employment premises.  Her current husband’s claim was denied.

No compensation was awarded in Garner.  He was not performing his work duties when he suffered the injury.  The assault did not involve another employee and the dispute was not related to the Claimant’s work duties. The dispute was over an entirely personal matter.  The sole fact that the injuries occurred in the Employer’s parking lot did not mean that the injury was compensable.

Ohio Legislative Update

Clarity in Independent Contractor Test for Motor Carrier Industry

Effective July 3, 2019, the Ohio General Assembly has enacted statutory changes to the definition of “employment” to provide clarity to motor carriers and those in the trucking industry as to how administrative agencies, including the Ohio Bureau of Workers’ Compensation (BWC), will view independent contractor drivers. H.B. 62, Ohio’s transportation budget bill which was signed into law by Governor DeWine on April 3, 2019 (the Bill), was supported by the Ohio Trucking Association in order to address the issue that different common law tests were used by the various Ohio agencies with a hand in regulating the trucking industry.

 

Prior to the enactment of H.B. 62, each agency used a slightly different test as developed under common law. For workers’ compensation, agencies and courts looked to whether the employer reserved the right to control the manner and means of performing the work. In unemployment compensation matters (as well as with construction industry-specific cases before the BWC), a 20-factor control test was utilized. Yet another test for purposes of minimum wage regulations required one to examine the economic realities in the nature of the relationship between the worker and the employer. The Bill now replaces all these tests and should provide clarity and consistent results for motor carriers operating in Ohio.

The Bill now exempts from coverage – under Ohio workers’ compensation law, unemployment compensation law, overtime law, and minimum wage law – individuals who meet all seven factors of the new statutory test to govern the definition of independent contractor across the agencies. Under the revised R.C. 4123.01 defining “employment” for the purposes of Ohio workers’ compensation (similarly with R.C. 4111.03, et seq. for minimum wage/overtime and R.C. 4141.01 for unemployment), an individual who operates a motor vehicle in the performance of services for or on behalf of a motor carrier will be designated as an independent contractor (and therefore exempt from coverage) if all these seven factors apply:

1.     The person owns the vehicle or vessel that is used in performing the services for or on behalf of the carrier, or the person leases the vehicle or vessel under a bona fide lease agreement that is not a temporary replacement lease agreement. For purposes of this division, a bona fide lease agreement does not include an agreement between the person and the motor carrier transporting property for which, or on whose behalf, the person provides services.

2.     The person is responsible for supplying the necessary personal services to operate the vehicle or vessel used to provide the service.

3.     The compensation paid to the person is based on factors related to work performed, including on a mileage-based rate or a percentage of any schedule of rates, and not solely on the basis of the hours or time expended.

4.     The person substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper.

5.     The person enters into a written contract with the carrier for whom the person is performing the services that describes the relationship between the person and the carrier to be that of an independent contractor and not that of an employee.

6.     The person is responsible for substantially all of the principal operating costs of the vehicle or vessel and equipment used to provide the services, including maintenance, fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except that the person may be paid by the carrier the carrier's fuel surcharge and incidental costs, including tolls, permits, and lumper fees.

7.     The person is responsible for any economic loss or economic gain from the arrangement with the carrier.

See R.C. 4123.01(A)(1)(d). This industry-specific test is now a comprehensive way for motor carriers to properly interpret the nature of the relationship with independent contractors, as well as for Ohio administrative agencies to determine and adjudicate coverage disputes should they arise.

While some of the required factors which must apply to be deemed an independent contractor are common to tests in other jurisdictions – mileage-based compensation, supplying personal services, responsibility for operating costs – this new test expressly requires a bona fide, written agreement to be in place that specifies that the relationship is one of independent contractor. Such agreement must not be directly between the contractor and the motor carrier transporting company for whom the contractor provides the services.

Pursuant to the revised statute, administrative rules will be developed in the near future for implementation of the test for each agency. In the meantime, those in the trucking industry should review both their current written independent contractor agreements and the in-practice relationship with contractors to remain or come into compliance with Ohio’s clarified standard.

PTSD Coverage for First Responders is Getting Closer

In September 2019 the Ohio Bureau of Workers’ Compensation (BWC) Board of Directors lowered its projected cost estimates of instituting such a policy to $44 million.  Although provisions in the pending bills differ, prior cost estimates had ranged from $98.4 million to $183 million.  The lowered cost estimate resulted from borrowing the actuarial analysis performed by the Washington Department of Labor and Industries.  Prior BWC analysis had assumed that 100% of First Responders would file a PTSD Claim.  The Washington actuarial analysis assumed the correct number would be 38%, a figure the BWC actuaries found “persuasive.” 

There are approximately 80,000 First Responders in Ohio.  BWC assumed expenses of $40,000.00 per claim.  BWC also made assumptions regarding the number of PTSD Claims filed in any given year.  The $44 million resulted from simple multiplication.  It surely is a more palatable figure in persuading the legislature to pass a First Responder PTSD Bill.  On July 22, 2019 Ohio Governor Mike DeWine had signed into law the BWC budget.  Missing from it had been a provision recognizing PTSD for public safety/first responders (police, fire, emergency medical technicians) without a physical injury.  Ohio historically has been a “physical-mental” jurisdiction.  The only recent exception was “psychiatric conditions (which) have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate.”

 

Ohio is a one-party state with Republicans controlling the Governor’s Office, House, and Senate.  Yet a budget could not be agreed upon by a June 30, 2019 deadline.  This necessitated a one-month extension with various bills ending up in conference committees.  The House members of the conference committee were strongly supportive of the first responder PTSD coverage, but the Senate conferees were hesitant.  The Senate President promised a separate bill in the next legislative session. 

Police and fire unions were obviously disappointed.  Absent from the debate were the legal and constitutional issues that workers’ compensation practitioners would recognize.  What about non-public safety workers?  An over-the-road truck driver and/or Good Samaritan can just as easily come upon a horrible scene causing PTSD.  Although it is an issue for some future time, Ohio courts may get the opportunity to reconsider restrictive holdings that a physical injurycause (rather than merely accompany) a psychiatric/psychological condition.

“Calfee Corner” - - Calfee Cases before the Ohio Industrial Commission

Claim 18-163810 (“Fight in parking lot”).

On 6/29/18, Injured Worker (IW) was hurt in the parking lot of the facility where he was placed by his staffing company employer. The injury was a blow to the head caused by a punch from a co-worker. Upon investigation and several witness interviews, the following factual circumstances were uncovered:

Earlier that day, IW had been driving a forklift and ran that forklift into a pole, damaging it. IW was cited by the employer for failing to survey his surroundings before backing up the forklift. The employer took him off forklift duty for the remainder of the day and going forward. Subsequently, a female co-worker asked IW why he was upset and he responded to her angrily. The female co-worker reported this behavior to her boyfriend, also an employee at the facility, and the remainder of the shift was filled with angry stares and tension between IW and the two co-workers. At the end of the shift when the workforce gathered at the time clock, another female co-worker asked IW what was wrong, and he responded to the group “Let’s go outside.” Once in the parking lot, the other co-workers entered their vehicles, but IW made a “come on” motion to the male co-workers in their vehicles while still in the parking lot. One of the male co-workers (the aforementioned boyfriend) got out of his vehicle and struck IW with a punch to the face.

The aftermath of the fight was caught on cell phone video, and the operations manager began his investigation of the incident. All workers involved in the incident, including IW, were terminated. Witness statements were gathered.  IW went to the emergency room for treatment for his punch injury and an Ohio workers’ compensation claim was filed with the diagnosis of a “contusion to head.”

The staffing company employer appealed Ohio BWC’s allowance of the claim. At hearing, counsel and the employer’s operations manager presented the evidence and argued that the claim should be disallowed as it did not arise in the course of IW’s employment. Ohio workers’ compensation law authorizes the allowance of a claim for an injury resulting from a workplace fight as long as: (1) the origin of the assault/fight was work-related; and (2) the IW/claimant was not the instigator of the assault/fight. While the origin of the fight may well have been work-related (IW’s anger over forklift incident), and despite IW being the only one actually punched, it was argued that he was the instigator and therefore his claim should be disallowed. The Industrial Commission agreed and disallowed his claim. Thorough investigation with witness statements was crucial to the hearing presentation in establishing that IW was the instigator, and getting his claim denied.

Claim 15-859933 (“Paraplegia diagnosis not medically justified”). 

On 12/3/15 IW, a then 52-year-old experienced nurse’s aide in a facility providing care for the elderly, slipped and fell in the dining room. A week later she had surgery to her right elbow. While hospitalized she developed an infection to the surgically repaired elbow. Still in the hospital, the IW developed a lumbar epidural abscess which also necessitated surgery. The IW had a complicated hospital course and was not released to rehabilitation until some six (6) months after the initial elbow surgery.  Her claim was allowed for “Displaced Fracture Lateral Condyle Right Humerus; Lumbar Epidural Abscess.”

The IW remained physically unable to return to her former position of employment as a nurse’s aide and was restricted to sedentary/office work. She eventually came under the care of Dr. N, a Physical Medicine and Rehabilitation Specialist. Dr. N provided a causal relationship for the additional allowance of her claim for “L3 AIS D Paraplegia.”  The Employer obtained an independent medical examination which concluded the additional condition should not be allowed because: “Paraplegia is defined as paralysis characterized by motor or sensory loss in the lower limbs and trunk…The medical records support that she has good strength…”

 

In successfully arguing the case before the Industrial Commission, Calfee emphasized the “International Standards for Neurological Classification of Spinal Cord Injury.”  The “L3” was simply the nerve root level that was the source of the alleged Paraplegia. “D” stood for “Motor Incomplete.”  Motor Incomplete status is defined…“with at least half (half or more) of key muscle functions below the single Nerve Root Level having a muscle grade greater than or equal to 3.”  Dr. N’s extensive office notes all showed physical examination muscle function scores of “4” and “5” throughout the IW’s lumbar spine.  The additional allowance was denied.

Claim 14-864539 (“She fooled all the doctors, but not the camera”). 

IW suffered a left foot fracture at work on 12/7/14.  The claim later was additionally allowed for complex regional pain syndrome (CRPS – formerly known as RSD).  IW was paid TT from the DOI without interruption.  Two separate employer IMEs supported on-going TT status as this doctor and that doctor tried this treatment and that treatment (PT, blocks, etc.), all to no apparent avail as the years went by.

The Employer then had IW surveilled.  Surveillance revealed an active IW with no apparent left foot problems at all and an IW ambulating in complete contradiction to her professed clinical picture.  A somewhat indignant IME doctor (who previously found the CRPS condition to be on-going and requiring treatment) issued a supplemental report finding MMI and no need for additional treatment.  All of this led to a Commission order terminating TT, as well as all on-going and future treatment in the claim.

Industrial Commission Update

New Commissioner

Governor Mike DeWine appointed James (“Jim”) Hughes to be the new chairman of the Ohio Industrial Commission effective July 1, 2019. Hughes, of Upper Arlington, Ohio, was a Republican member of the Ohio Senate from 2008 to 2016, as well as a member of the Ohio House from 2000 to 2008.

Minor Rule Changes

Minor changes were made to Ohio Administrative Code Chapter 4121 to the sections dealing with notices, meetings, standards of practice before the Commission, claims procedures, procedures for confidential information, code of ethics and payments to health care providers.

 

 

Ohio BWC Update

Substance Abuse Recovery Workplace Safety Program (SUR-WSP)

Launched in October 2018 in three Ohio counties, this program supports employers who hire workers struggling to overcome addiction to opioids and other substances in partnership with the Alcohol, Drug Addiction and Mental Health (ADAMH) boards.

Presumption of Cancer for Fire Fighters

As of July, 2019, the BWC had made decisions in 139 state fund claims. The presumption was met in 98 of those 139 claims, 66 of which were then appealed. Excluding claims that were dismissed, suspended or remain in the appeal process or allowed as a traditional occupational disease claim, 77 claims have been allowed by final administrative order, amounting in more than $2.5 million in medical paid and $679,000 in compensation.

Medical Marijuana

Medical Marijuana has come to Ohio. Effective 9/8/16, HB 523 permits a patient, on the recommendation of a physician, to use medical marijuana to treat a qualifying medical condition. By statute, this should have been effective 9/8/18 but has been delayed due to the multi-jurisdictional authority in the governance of the program through the Department of Commerce, Board of Pharmacy and State Medical Board.  Marijuana is not an approved drug in Ohio for workers’ compensation purposes, however it may impact issues related to the rebuttable presumption of an employee under the influence, the drug free safety program for employers and the procedures of the BWC Drug Formulary.

 

Additional Ohio BWC Updates

Since our last update, the Ohio Bureau of Workers’ Compensation (BWC) has implemented additional changes affecting Ohio employers.  A summary of some of the more intriguing updates follows:

Motor Vehicle Accidents Not Chargeable – Updated Application In Process

As previously reported, the passage of House Bill 207 states that if a State Fund employer can establish that an employee’s claim is the result of a motor vehicle accident involving a third party in which the employee was not at fault, the cost of that claim will be excluded from the employer’s future premium rating calculations.  This law/policy is effective for accidents occurring on or after July 1, 2017.

The law, as originally written, required that to obtain the claim cost exemption, the third party at-fault driver must have active insurance coverage, or the employer must have active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident.

Initial experiences with this new procedure revealed that the citation requirement was in many cases an unforeseen stumbling block in gaining BWC approval of the exemption, as issuance of a citation tends to be discretionary, and therefore is not always available.

This unintended consequence was brought to the attention of the Ohio legislature, and an amended law has been passed & signed by the Governor.  This revision removes the requirement for an actual citation, but fault on the part of the third party must still be shown.  The change is intended to be retroactive to the original July 1, 2017 effective date of the law, which will require the BWC to re-adjudicate previously denied applications for recovery.

BWC is currently finalizing their procedures to comply with the revised law.  We urge employers to re-visit any claims involving motor vehicle accidents occurring July 1, 2017 or after, to ensure that if applicable, this potential 100% recovery is obtained.

Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their historical rights to subrogate against a responsible third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.

Rating Experience Changes / Premium Credits for July 2019 Policy Year

BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs.  As a result, BWC has implemented a number of changes to the factors which govern BWC’s experience rating calculations, and the resulting premiums charged to many Ohio employers.

The most significant of these changes involves introducing a Premium Size Factor to reduce the premiums of non-group experience rated employers who pay in excess of $5,000 in annual premium.

 The reductions, which will be applied automatically to the employer’s premiums, are:

·                15% discount on premiums between $5,000 and $100,000

·                20% discount on premiums between $100,000 and $500,000

·                25% discount on premiums above $500,000

The impact of these changes suggest that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.

For instance, for a larger employer, if traditional group experience rating results in savings of less than ~25%, consideration may be given to the group retrospective rating option, which could provide downstream rebates dwarfing the traditional up-front group rating discounts.

Employers’ third party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes.

Other changes for the July 2019 policy year include:

·         An experience modifier adjustment factor for individually rated employers

o    Experience modifier adjustment credit of 5% for EMRs 0.90 and lower

o    No adjustment factor for EMRs 0.91 to 1.99

o    Experience modifier adjustment penalty of 5% for EMRs 2.00 and higher

·         Revised group retrospective rating program basic premium factors to compensate for the premium size factor adjustments

·         Reduce the maximum chargeable claims losses for the smallest Ohio employers

 

July 2018 Policy Year Rates Reduced

The BWC reduced private employer premium rates by an average of 12% for the July 1, 2018 policy year.  BWC estimates this will save private employers $163.5 million during the policy year ending June 30, 2019.

Ohio Workers’ Compensation rates are at their lowest point in over 40 years, with no overall rate increases since 2007.

Employers should consult their third-party administrators or other resources to confirm the impact of these rate changes, as individual manuals’ base rate changes can range from +14% to -36%. 

Additionally, premium rate reductions often are accompanied by similar reductions to expected loss rates, which can result in higher experience modifiers that would at least partially offset base rate reductions.

BWC Wellness Initiative

Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).

At present, this program is limited to the following high-risk industries:  agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.

Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and by agreeing to participate, injured workers can qualify for free services such as:

·                Health and wellness awareness, education and training

·                Health assessments & biometric screenings to better understand their health and well-being

·                A website allowing them to develop health plans & track progress to achieve their health goals

·                A state-of-the art mobile app for creating weekly action plans and getting health tips

·                Digital coaching to help them on their journey to better health.

This program, still in its infancy, strives to extend the BWC’s existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including biometric measurements and coaching to address at risk health behaviors.

A number of Ohio-certified Wellness program developers, including Paramount Preferred Solutions, are available to assist employers to implement Wellness programs which qualify for the BWC Wellness Grant reimbursements.

About the Author

The Ohio BWC Update is authored by Michael Brown, ARM, an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions.  Michael has over 38 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio.

In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers.  Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer, and is well versed in Integrated Disability Management programs and philosophies.  This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide reaching solutions to the most complex Workers’ Compensation challenges.

With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury.

Please feel free to reach out to Michael at mike.brown@promedica.org, www.linkedin.com/in/michaelbrown5 or (844) 777-5867 ext. 301770.

 

[1] Please see also May 2018 Ohio Update athttp://www.nwcdn.com/news?whatstate=US-OH.

This update is intended as a supplement to our earlier 2018 update.

 

CALFEE, HALTER & GRISWOLD LLP

STATE LAW (OHIO) UPDATE

SEPTEMBER 2018[1]

 

“Calfee Corner” - - Recent Calfee Cases before the Ohio Industrial Commission

Claim 18-163810 (“Fight in parking lot”). On 6/29/18, Injured Worker (IW) was hurt in the parking lot of the facility where he was placed by his staffing company employer. The injury was a blow to the head caused by a punch from a co-worker. Upon investigation and several witness interviews, the following factual circumstances were uncovered:

Earlier that day, IW had been driving a forklift and ran that forklift into a pole, damaging it. IW was cited by the employer for failing to survey his surroundings before backing up the forklift. The employer took him off forklift duty for the remainder of the day and going forward. Subsequently, a female co-worker asked IW why he was upset and he responded to her angrily. The female co-worker reported this behavior to her boyfriend, also an employee at the facility, and the remainder of the shift was filled with angry stares and tension between IW and the two co-workers. At the end of the shift when the workforce gathered at the time clock, another female co-worker asked IW what was wrong, and he responded to the group “Let’s go outside.” Once in the parking lot, the other co-workers entered their vehicles, but IW made a “come on” motion to the male co-workers in their vehicles while still in the parking lot. One of the male co-workers (the aforementioned boyfriend) got out of his vehicle and struck IW with a punch to the face.

The aftermath of the fight was caught on cell phone video, and the operations manager began his investigation of the incident. All workers involved in the incident, including IW, were terminated. Witness statements were gathered.  IW went to the emergency room for treatment for his punch injury and an Ohio workers’ compensation claim was filed with the diagnosis of a “contusion to head.”

The staffing company employer appealed Ohio BWC’s allowance of the claim. At hearing, counsel and the employer’s operations manager presented the evidence and argued that the claim should be disallowed as it did not arise in the course of IW’s employment. Ohio workers’ compensation law authorizes the allowance of a claim for an injury resulting from a workplace fight as long as: (1) the origin of the assault/fight was work-related; and (2) the IW/claimant was not the instigator of the assault/fight. While the origin of the fight may well have been work-related (IW’s anger over forklift incident), and despite IW being the only one actually punched, it was argued that he was the instigator and therefore his claim should be disallowed. The Industrial Commission agreed and disallowed his claim. Thorough investigation with witness statements was crucial to the hearing presentation in establishing that IW was the instigator, and getting his claim denied.

Claim 15-859933 (“Paraplegia diagnosis not medically justified”).  On 12/3/15 IW, a then 52 year old experienced nurse’s aide in a facility providing care for the elderly, slipped and fell in the dining room. A week later she had surgery to her right elbow. While hospitalized she developed an infection to the surgically repaired elbow. Still in the hospital, the IW developed a lumbar epidural abscess which also necessitated surgery. The IW had a complicated hospital course and was not released to rehabilitation until some six (6) months after the initial elbow surgery.  Her claim was allowed for “Displaced Fracture Lateral Condyle Right Humerus; Lumbar Epidural Abscess.”

The IW remained physically unable to return to her former position of employment as a nurse’s aide and was restricted to sedentary/office work. She eventually came under the care of Dr. N, a Physical Medicine and Rehabilitation Specialist. Dr. N provided a causal relationship for the additional allowance of her claim for “L3 AIS D Paraplegia.”  The Employer obtained an independent medical examination which concluded the additional condition shouldnot be allowed because: “Paraplegia is defined as paralysis characterized by motor or sensory loss in the lower limbs and trunk…The medical records support that she has good strength…”

In successfully arguing the case before the Industrial Commission, Calfee emphasized the “International Standards for Neurological Classification of Spinal Cord Injury.”  The “L3” was simply the nerve root level that was the source of the alleged Paraplegia. “D” stood for “Motor Incomplete.”  Motor Incomplete status is defined…“with at least half (half or more) of key muscle functions below the single Nerve Root Level having a muscle grade greater than or equal to 3.”  Dr. N’s extensive office notes all showed physical examination muscle function scores of “4” and “5” throughout the IW’s lumbar spine.  The additional allowance was denied.

Claim 14-864539 (“She fooled all the doctors, but not the camera”).  IW suffered a left foot fracture at work on 12/7/14.  The claim later was additionally allowed for complex regional pain syndrome (CRPS – formerly known as RSD).  IW was paid TT from the DOI without interruption.  Two separate employer IMEs supported on-going TT status as this doctor and that doctor tried this treatment and that treatment (PT, blocks, etc.), all to no apparent avail as the years went by.

The Employer then had IW surveilled.  Surveillance revealed an active IW with no apparent left foot problems at all and an IW ambulating in complete contradiction to her professed clinical picture.  A somewhat indignant IME doctor (who previously found the CRPS condition to be on-going and requiring treatment) issued a supplemental report finding MMI and no need for additional treatment.  All of this lead to a Commission order terminating TT, as well as all on-going and future treatment in the claim.

Court Decisions of Note:

Employer Intentional Tort 

HP Manufacturing Co. v. Westfield Insurance (Eighth District Case No. 106541 7/19/18).

The reports of the demise of employer intentional torts in Ohio have been greatly exaggerated.  A case in point isH. P. Manufacturing Co. out of Cuyahoga County (Cleveland) wherein the appellate court upheld a $400K jury verdict against the employer for the deliberate removal of a safety guard leading to injury to IW.  See also Lunsford v H. P. Manufacturing Co. (Cuyahoga C.P. Case No. 14-828457).  In addition, the court held that the loss was uninsurable as it involved intentional conduct. 

As well as demonstrating that employer intentional torts live on in Ohio, the H. P. Manufacturing Co. case is also instructive in that an employer should not simply turn over an intentional tort case defense to its insurer and assume that it will be all taken care of as though it was just another premises liability claim. 

Travelling Employee/Personal Errands

Aysha Osten v. Ohio BWC (Second District Case No. 27583 12/29/17). 

Reports that Ohio is a “24/7” coverage state for travelling employees also are greatly exaggerated. Osten is a case in point.  Flight attendant Osten was on a lay-over at LaGuardia staying at a Hampton Inn between assigned flights.  That evening, after having dinner with other flight attendants and crew personnel, she slipped and fell on a public sidewalk while returning to her hotel.

The Ohio Industrial Commission, the trial court, and then the Court of Appeals, all found that this slip and fall by a travelling employee was one occurring on a “personal errand” (i.e., dinner), and therefore wasnot compensable under the Ohio Workers’ Compensation Act. The take-away here is that an employer should assume nothing when it comes to the compensability of injuries to travelling employees (or any other employee for that matter).

Travelling Employee/Coming & Going Rule

Green v. Mark Glassman, Inc. (Eleventh District Case No. 17-P-0041). 

IW’s job was installing cash registers at retail stores.  IW suffered injuries in an MVA upon returning home from his last store.  IW argued that travelling on various roads to various locations made him a “travelling employee,” and one that also faced a “special hazard.”  The court disagreed and found in essence that he was a “rotating fixed site” employee who did not commence his employment duties until he arrived at a specific and identifiable workplace as designed by the employer.  Thus, IW’s claim was barred by the “coming-and-going” rule.

 Job Abandonment

State ex rel. Demellweek v. Indus. Comm. (10th Dist. Franklin No. 16AP-874).

The court granted the IW’s request for a writ of mandamus ordering the Commission to vacate an order denying TT compensation.  The Commission had found IW’s safety rule violation subjected him to immediate dismissal, making him ineligible for TTD compensation.  The court found no evidence that the employee handbook provided IW with notice that his actions would constitute conduct that would warrant immediate firing.  The takeaway here is that the employer did not have sufficient evidentiary support to show voluntary abandonment so as to bar TT.

State ex rel. Williams v. Indus. Comm. (10th Dist. No. 17AP-157).

In Williams, the court held that the Commission properly denied IW’s request for PTD compensation on the ground that he had voluntarily abandoned the workforce.  The evidence indicated IW did not attempt rehabilitation following his injury, and that his only attempt at employment in the 30-year period involved a position not within his work restrictions.

Medical Evidence

State ex rel. Farrell v. Ohio Indus. Comm. (10th Dist. No. 17AP-126).

The court denied IW’s request for a writ of mandamus to order the Commission to vacate its order denying PTD compensation, finding that the Commission properly relied on the medical report of a doctor who opined that IW was capable of working in a “supportive environment.”  IW argued the doctrine of stare decisis operated to compel the Commission to grant PTD compensation, asserting that the Commission, in a separate and wholly unrelated decision, granted a different IW’s PTD application based on the same doctor’s opinion that used nearly identical language as the opinion in his claim.

The court held the doctrine of stare decisis applies to principles of law, not findings of fact.  To conclude that the Commission had to use the doctor’s report to determine that this IW was entitled to PTD compensation ignores the myriad factual intricacies at play in both IW’s case and the case of the unrelated IW.  Both decisions involved heavily fact-dependent determinations by the Commission, and it was the Commission’s role, in each case it evaluated, to determine the appropriate weight given to the evidence before it.

Independent Contractor  

Green v. Admr., Ohio Bur. Of Workers’ Comp. (4th Dist. No. 17CA17).

In Green, the appellate court held that competent and credible evidence supported the trial court’s ruling that IW’s alleged employer did not exert the requisite control over his logging work necessary to establish an employer/employee relationship.  IW was hired as an experienced logger, he de-limbed trees independently without control exerted by the alleged employer, and he was free to leave regardless of hours worked or time of day.

The take away here is that Ohio continues to be fairly conservative on the “employee versus independent contractor” disputes and with proper presentation of evidence under the standard “right to control” test, a lack of employment relationship frequently can be found. 

Industrial Commission Update

Memo D8 (“Temporary Total Disability Certification for Physical and Psychological Conditions”):

During the first six weeks after the date of injury, temporary total disability can be certified by a physician, certified nurse practitioner, clinical nurse specialist, psychologist, or physician assistant who has examined the injured worker.

Both during and after six weeks from the date of injury, certification of temporary total disability for physical conditions may be submitted by a Medical Doctor, Doctor of Osteopathy, Doctor of Podiatric Medicine, or Chiropractor.

Both during and after six weeks from the date of injury, certification of temporary total disability for psychological conditions may only be submitted by a Psychologist, Medical Doctor, or Doctor of Osteopathy.

Memo F4 (“Loss of Use of Vision and/or Hearing Secondary to a Traumatic Brain Injury”):

R.C. 4123.57(B) does not permit an award for loss of vision or hearing resulting from the loss of brain stem functioning.  To be entitled to an award for loss of vision or hearing, evidence must demonstrate an actual loss of function of the eyes or ears.

Memo F6 (“Orders Awarding Scheduled Losses”):

When awarding compensation for a scheduled loss, hearing officers shall provide a start date for the award.  In the case of amputation or actual loss, the start date is the date of amputation or loss.  In the case of a loss of use, the start date is the date of the earliest medical evidence being relied upon to make the award. 

However, pursuant to R. C. 4123.52, in no case shall the start date be earlier than two years prior to the filing of the application seeking the award.

Memo S-11 (“Request for Allowance of a Condition by Either Direct Causation, Aggravation/Substantial Aggravation, or Flow-Through, and Jurisdiction to Rule at Hearing”):

If there is evidence on file or presented at hearing to support the theories of direct causation, aggravation (date of injury or disability prior to August 25, 2006)/substantial aggravation (date of injury or disability on or after August 25, 2006), or flow-through, a request to allow a condition in a claim is to be broadly construed to cover those theories of causation.  The hearing officer shall address the origin of the condition under those alleged theories of causation without referring the claim back to the prior hearing level or the Bureau of Workers’ Compensation.  Where a new theory, not formerly requested, is raised at hearing or where new evidence regarding an alternative theory of causation is submitted by any party, hearing officers and/or hearing administrators shall ensure that all parties are given adequate opportunity to obtain evidence in support of their position by continuing the hearing for a period of at least 30 days, unless the parties agree that less time is sufficient for obtaining the necessary evidence.  The hearing officers and/or hearing administrators shall state in their order or compliance letter the period of time allotted to obtain the necessary evidence.

New BWC Rules

OAC § 4123-6-32 (“Payment for Lumbar Fusion Surgery” 1/1/18).

This new rule requires at least sixty days of conservative care before considering a surgical fusion option.  Exceptions: spinal fractures, tumors, progressive functional neurological deficits.

OAC § 4123-6-33 (“Payment for Health & Behavioral Assessment and Services” 7/1/18).

This rule allows for a modicum of psychological-type assessment and counseling in order to help a physician “address cognitive, emotional, social and behavioral issues interfering with expected healing,” without adding a psychological condition to the claim.

New BWC Form – C-512 (“Notice of Intent to Settle”)

This form puts the BWC (and presumably any others receiving it) on notice that, after a final order of the Industrial Commission, the parties are entering into settlement negotiations.  This allows the Statute of Limitations governing the filing of an appeal into court of an adverse order of the Commission on allowance and additional allowance issues to be extended from sixty days to one hundred and fifty days, “unless the opposing party files an objection of the Notice of Intent to Settlement within fourteen days after date of receipt of the Notice of Intent to Settle.”

Medical Marijuana

Medical marijuana has come to Ohio, although the rules governing the dispensing, etc. of medical marijuana are not yet set.  However, BWC has gone on record with an August 2018 bulletin that essentially states that BWC’s position is that medical marijuana does not exist in Ohio for workers’ compensation purposes.  This is based on the fact that medical marijuana is not an approved FDA drug, will not be dispensed by a registered pharmacist, and is not listed on the BWC pharmaceutical formulary.  Thus, marijuana is not an approved drug in Ohio for workers’ compensation purposes.

Additional Ohio BWC Updates

Since our last update, the Ohio Bureau of Workers’ Compensation (BWC) has implemented additional changes affecting Ohio employers.  A summary of some of the more intriguing updates follows:

Motor Vehicle Accidents Not Chargeable – Updated Application In Process

As previously reported, the passage of House Bill 207 states that if a State Fund employer can establish that an employee’s claim is the result of a motor vehicle accident involving a third party in which the employee was not at fault, the cost of that claim will be excluded from the employer’s future premium rating calculations.  This law/policy is effective for accidents occurring on or after July 1, 2017.

The law, as originally written, required that to obtain the claim cost exemption, the third party at-fault driver must have active insurance coverage, or the employer must have active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident.

Initial experiences with this new procedure revealed that the citation requirement was in many cases an unforeseen stumbling block in gaining BWC approval of the exemption, as issuance of a citation tends to be discretionary, and therefore is not always available. 

This unintended consequence was brought to the attention of the Ohio legislature, and an amended law has been passed & signed by the Governor.  This revision removes the requirement for an actual citation, but fault on the part of the third party must still be shown.  The change is intended to be retroactive to the original July 1, 2017 effective date of the law, which will require the BWC to re-adjudicate previously denied applications for recovery.

BWC is currently finalizing their procedures to comply with the revised law.  We urge employers to re-visit any claims involving motor vehicle accidents occurring July 1, 2017 or after, to ensure that if applicable, this potential 100% recovery is obtained.

Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their historical rights to subrogate against a responsible third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.

Rating Experience Changes / Premium Credits for July 2019 Policy Year

BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs.  As a result, BWC has implemented a number of changes to the factors which govern BWC’s experience rating calculations, and the resulting premiums charged to many Ohio employers.

The most significant of these changes involves introducing a Premium Size Factor to reduce the premiums of non-group experience rated employers who pay in excess of $5,000 in annual premium.

 The reductions, which will be applied automatically to the employer’s premiums, are:

    ·         15% discount on premiums between $5,000 and $100,000

    ·         20% discount on premiums between $100,000 and $500,000

    ·         25% discount on premiums above $500,000

The impact of these changes suggest that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.

For instance, for a larger employer, if traditional group experience rating results in savings of less than ~25%, consideration may be given to the group retrospective rating option, which could provide downstream rebates dwarfing the traditional up-front group rating discounts.

Employers’ third party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes. 

Other changes for the July 2019 policy year include:

    ·         An experience modifier adjustment factor for individually rated employers 

        o   Experience modifier adjustment credit of 5% for EMRs 0.90 and lower

        o   No adjustment factor for EMRs 0.91 to 1.99

        o   Experience modifier adjustment penalty of 5% for EMRs 2.00 and higher

    ·         Revised group retrospective rating program basic premium factors to compensate for the premium size factor               adjustments

    ·         Reduce the maximum chargeable claims losses for the smallest Ohio employers

July 2018 Policy Year Rates Reduced

The BWC reduced private employer premium rates by an average of 12% for the July 1, 2018 policy year.  BWC estimates this will save private employers $163.5 million during the policy year ending June 30, 2019. 

Ohio Workers’ Compensation rates are at their lowest point in over 40 years, with no overall rate increases since 2007.

Employers should consult their third party administrators or other resources to confirm the impact of these rate changes, as individual manuals’ base rate changes can range from +14% to -36%.  

Additionally, premium rate reductions often are accompanied by similar reductions to expected loss rates, which can result in higher experience modifiers that would at least partially offset base rate reductions.

BWC Wellness Initiative

Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).

At present, this program is limited to the following high-risk industries:  agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.

Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and by agreeing to participate, injured workers can qualify for free services such as:

    ·         Health and wellness awareness, education and training

    ·         Health assessments & biometric screenings to better understand their health and well-being

    ·         A website allowing them to develop health plans & track progress to achieve their health goals

    ·         A state-of-the art mobile app for creating weekly action plans and getting health tips

    ·         Digital coaching to help them on their journey to better health.

This program, still in its infancy, strives to extend the BWC’s existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including biometric measurements and coaching to address at risk health behaviors.

A number of Ohio-certified Wellness program developers, including Paramount Preferred Solutions, are available to assist employers to implement Wellness programs which qualify for the BWC Wellness Grant reimbursements.

About the Author

Michael Brown, ARM is an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions.  Michael has over 38 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio. 

In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers.  Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer, and is well versed in Integrated Disability Management programs and philosophies.  This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide reaching solutions to the most complex Workers’ Compensation challenges. 

With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury. 

Please feel free to reach out to Michael at mike.brown@promedica.org, www.linkedin.com/in/michaelbrown5 or (844) 777-5867 ext. 301770.

 

[1] Please see also May 2018 Ohio Update athttp://www.nwcdn.com/news?whatstate=US-OH.

This update is intended as a supplement to our earlier 2018 update.

Court Decisions of Note

Subrogation

BWC v. Verlinger, 2018-Ohio-1481 (April 19, 2018).

In a very recent ruling by the Ohio Supreme Court, it was held that the Ohio Bureau of Workers’ Compensation (BWC) must be notified of potential third-party settlements that would compensate an injured worker for an injury, even when an application for workers’ compensation benefits has been denied and is under appeal.

In this case, Ms. Verlinger was involved in a motorcycle accident while working for her employer. She applied for worker’s compensation benefits, but the BWC initially denied her claim. While her appeal was pending, she reached a settlement with the relevant insurance companies. Verlinger incorrectly believed she did not have to inform the BWC or the Ohio Attorney General’s Office (AGO) about her insurance settlement because it had been reached during the period when her claim was denied by the BWC. However, the Court held that she remained a claimant eligible to receive workers’ compensation benefits during the appeal period, and therefore, was required to notify the BWC and AGO of their rights under R.C. § 4123.931. (Her claim was eventually allowed by the Industrial Commission of Ohio through the administration hearing process).

Therefore, the Verlinger Court tells us through its opinion that (1) a claimant, for subrogation purposes, is any party who is eligible for compensation, medical benefits, or death benefits from the BWC; and, (2) a claimant is “eligible” for BWC benefits unless and until a final determination has been made indicating a claimant is not eligible for such; and, (3) employers can be penalized if the BWC and/or AGO are not notified of third-party payments made to a claimant in their employ.

Constitutionality

Ferguson v. State, 2017-Ohio-7844 (September 28, 2017).

In 2006 the legislature amended the statute governing appeals to the courts of common pleas to require the Plaintiff-Claimant to obtain the Defendant-Employer’s consent to a Civil Rule 41(A) voluntary dismissal when the Employer had initiated the court appeal. Ford had filed the court appeal, and, when Ferguson sough to voluntarily dismiss, it refused to agree. The trial court then pended the original appeal and proceeded with a declaratory-judgment action regarding the employer consent provision’s constitutionality.

The trial court found the employer consent provision unconstitutional for three reasons. First, by overriding a Civil Procedure Rule, the legislature had violated separation-of-powers by intruding on the court’s power to govern trials. Second, the creation of two different classes of Plaintiff-Claimants, those who filed their own appeals and those whose employers appealed, ran afoul of equal protection. Finally, Plaintiff-Claimants were inhibited from adequately presenting their cases, a violation of the Ohio Constitution’s Due Course of Law Clause. The Cuyahoga County Court of Appeals (Cleveland) affirmed.

A unanimous Ohio Supreme Court reversed. There was no violation of separation of powers because the General Assembly may create procedural rules for “specialty statutory proceedings” like workers’ compensation court appeals. Furthermore, equal protection and due process were not violated because a suspect class had not been created. Differentiating injured workers based on whether they, or their employers, initiated the court appeal survived rational basis review. This standard was sufficient, especially given the differences between workers’ compensation and the civil justice system.

Permanent Total Compensation

State ex rel. Gulley v. Industrial Comm’n., 2017-Ohio-9131 (12/21/17)

In this case, Mr. Gulley was injured on November 9, 2009 when he slipped off a piece of heavy equipment at work. His claim was allowed for various physical conditions and also later for psychological conditions. Mr. Gulley had not worked since the date of injury, and when the BWC approached him in 2010 and 2012 with opportunities for rehabilitation and retraining, he refused in both instances. Subsequently in 2014, Mr. Gulley’s attorney referred him to “assertive vocational services” for rehabilitation, where the assessment by Ms. McCoy, a rehabilitation counselor, resulted in a finding that Mr. Gulley did not appear to be a feasible candidate for vocational-rehabilitative services. Mr. Gulley then applied for permanent total compensation (“PTD”), and in doing so, his attorney hired Ms. McCoy to opine that Mr. Gulley was not employable. The Ohio Industrial Commission, through its staff hearing officer, denied his application in part because of his refusal to participate in vocational rehab and also rejected Ms. McCoy’s reports on the basis that she had conflicts of interest in that she had reviewed the matter for the BWC prior to being engaged by Mr. Gulley. The hearing officer concluded that Mr. Gulley was medically capable of performing sedentary work. Mr. Gulley filed a complaint seeking a writ of mandamus.

The 10th District Court of Appeals determined that permanent total compensation should not be denied based primarily on Mr. Gulley’s refusal of rehab services (in 2010 and 2012) when he later attempted to use such services in 2014 (and was deemed not feasible after the assessment). The court issued a limited writ requiring the Commission to address the merits of Mr. Gulley’s PTD application without relying on the earlier refusal of rehab services.

On appeal before the Oho Supreme Court, there was no dispute that Mr. Gulley was medically capable of performing sedentary work, but the issue was the Commission’s analysis of Mr. Gulley’s non-medical factors, particularly the impact of the evidence of vocational rehabilitation in the record. The Commission argued that it may consider an injured worker’s lack of participation in vocational rehab and that Mr. Gulley’s refusal to participate was “some evidence” that supported its decision in denying PTD. The Court held that the Commission did not abuse its discretion when it considered that refusal to participate in rehab when he was deemed eligible in 2010 and 2012. However, the Court disagreed with the Commission’s act of summarily rejecting the report of Ms. McCoy on an alleged conflict of interest. The Court held that although the commission is not bound to accept all vocational evidence in the record, it is required to review the evidence to determine whether the claimant is foreclosed from sustained remunerative employment. The Court ruled that the Commission failed to do so here, and ordered the Commission to review all the vocational evidence before determining whether Mr. Gulley was entitled to PTD.

Temporary Total Compensation

State ex rel. Cordell v. Pallet Companies, Inc., 149 Ohio St. 3d 483, 2016-Ohio-8446 (12/29/16).

The Cordell case is important for understanding the current status of the voluntary abandonment doctrine in the context of a positive post-injury drug test. Here the Supreme Court narrowed the circumstances that would make an injured worker ineligible to collect temporary total under the voluntary abandonment doctrine. The employer, Pallet, had a typical drug-free-workplace policy which prohibited the use of illegal substances “at any time whether on or off duty.” Mr. Cordell broke his leg in the course and scope of his employment at Pallet and subsequently failed a routine post-accident drug screen which was positive for marijuana. Mr. Cordell was terminated immediately after Pallet became away of the positive drug screen.

At the Industrial Commission, Pallet did not contest the allowance of the claim itself, conceding that the drug use had not caused the accident itself (it was due to a fall off a tow motor that occurred when a truck pulled away from a loading dock too quickly). The Commission denied TTD to Mr. Cordell finding that he had voluntarily abandoned his employment. In a divided panel decision by the Commission, it was found that the Staff Hearing Officer had failed to apply State ex rel. PaySource USA, Inc. v. Industrial Comm’n, 10th Dist. Franklin No. 08AP-677(June 30, 2009), wherein the Tenth District had found the injured worker abandoned his employment when he used drugs prior to the injury, which severed any connection between the workplace injury and the loss of wages. The panel found that Mr. Cordell “sustained an injury in the course of and arising out of his employment on 2/16/12,” but he voluntarily abandoned his employment by use of marijuana prior to the industrial injury making him ineligible for TTD. The dissenting commissioner argued that PaySource had been discredited and urged granting the award of TTD under the decision of State ex rel. Gross v. Industrial Comm’n, 115 Ohio St. 3d 249 (2007) (“Gross II”).

The Tenth District agreed with the dissenting commissioner and granted Mr. Cordell’s writ. The Ohio Supreme Court affirmed and its decision has narrowing consequences on eligibility for TTD after a post-accident drug test. The Court held that an injured worker fired after their injury “for conduct prior to and unrelated to” the injury does not lose eligibility for TTD if (1) the discovery of the dischargeable offense occurred because of the injury; and (2) at the time of the termination, the employee was incapable of returning to work as a result of the allowed conditions in the claim.

Therefore, in practice, the Court has extended the Gross II rationale to pre-injury conduct, holding that the fact that Pallet had the right to fire Mr. Cordell does not change the fact that Mr. Cordell was injured in the course and scope of his employment and that at the time of his termination, he was temporarily and totally disabled.

Violation of Specific Safety Requirements (“VSSR”)

State ex. rel. Sunesis Constr. Co. v. Industrial Comm’n., Slip Opinion No. 2018-Ohio- _____; on appeal from the 10th District Court of Appeals in Franklin County (2/2/18)

In this case, the employer, Sunesis Construction Company (“Sunesis”) filed a writ of mandamus with the 10th District Court of Appeals alleging that the Commission abused its discretion when it issued an award for the violation of specific safety requirements (“VSSR”). The alleged violations concerned the regulation of trenches and excavations. The court of appeals held that the Commission supported its decision with some evidence and denied the writ of mandamus.

The underlying workers’ compensation claim involved an employee, Timothy Roark, who was killed in a collapsed trench. Roark was working at the bottom of a 20-foot trench when one of the sides of the trench collapsed and he died from a head injury and traumatic asphyxia. Roark’s dependents filed an application for an VSSR award on regulations that apply to shoring, shorting and bracing the sides of trenches and excavations. Sunesis properly shored up three sides of the trench but it attempted to shore up the fourth side with a steel plate at the top pf the wall and slipped the rest of the wall.

The Commission found that (1) the fourth wall was not sufficiently supported, (2) the attempted shorting did not meet appropriate engineering standards, and (3) Roark did not disregard any instructions about working in the trench. The court of appeals held that some evidence supported the Commission’s decision, which included relying on engineering specifications noting that wet soil requires “special” treatment. This information was corroborated by testimony from four other employees.

The Ohio Supreme Court affirmed the court of appeals’ decision and denied Sunesis’ writ of mandamus. First, Sunesis should have supported the fourth wall with sufficient means because four employees testified that the trench was more than five feet high and consisted of soft or unstable material. Although Sunesis provided support for the top portion of the fourth wall, the remaining bottom portion was left unsupported. Second, the fourth wall did not meet accepted engineering standards. Sunesis attempted to argue that certain engineering standards were met, but the Court rejected that argument because wet soil required “special” treatment per engineering standards that Sunesis relied upon. Third, the Court rejected the unilateral negligence defense that states that an employee’s deliberate circumvention of a safety device will defeat a VSSR claim. However, the Court noted the employer must first comply with a VSSR for an employee to circumvent it. As a result, there was insufficient evidence that Sunesis complied with the safety requirement in the first place and insufficient evidence that Roark circumvented any precautions.

State ex rel. Ohio Paperboard v. Industrial Comm’n., 152 Ohio St.3d 155, 2017-Ohio-9233 (12/28/17)

Mr. Ruckman was performing maintenance on a conveyor belt that transported wire-bound recycled paper bales to a pulper for shredding. Along the conveyor, overhead saws cut the wire surrounding the bales. Some of those wires get wrapped around the shafts and gears of the conveyor, which requires weekly maintenance to remove. During this routine maintenance, the machine is placed into “maintenance mode” and de-energized. In this case, however, Ruckman decided to turn the machine back on to loosen some jammed wires. While reaching in to remove the wire, the conveyor caught Mr. Ruckman’s hand and crushed it. He filed a workers’ compensation claim that was allowed for left hand amputation and replantation, major depressive disorder and total loss of use of the left hand.

Ruckman alleged that Ohio Paperboard violated three safety rules regarding (1) means shall be provided to disengage the conveyor from power where exposed to contact; (2) conveyor pinch points shall be guarded or means provided at the pinch point to disengage the power; and (3) means shall be provided at each machine, within easy reach of the operator, to disengage the power. Two conditions must be met for these rules to be applicable: (1) the claimant must be an operator, which means “any employee assigned or authorized to work at the specific equipment; and (2) the conveyor must be “exposed to contact” which means “during the course of operation, the conveyor is accessible to an employee in the course in performance of an employee’s regular or assigned duty.”

The Industrial Commission awarded Mr. Ruckman an award for violation of specific safety requirements, and Ohio Paperboard filed for a writ of mandamus. The 10th District Court of Appeals denied the writ and the employer appealed the matter to the Ohio Supreme Court. The Court agreed with the Commission and the court of appeals that Mr. Ruckman was an operator because he was authorized or assigned to work on the equipment. However, the Court found that Ohio Paperboard complied with the safety requirements in question because it had emergency stop buttons within easy reach of the operator in the control shack and the pinch points were guarded in the normal operation. The Court disagreed with the Commission’s order because it failed to acknowledge that the employee was performing maintenance while the machine was disengaged from the power. The actual cause of the injury was due to Rickman’s disregard of the employer’s safety procedure and not the violation of any safety requirements. Thus, the Court granted Ohio Paperboard’s writ ordering the Commission to deny the application for an award.

State ex rel. 31, Inc. v. Industrial Comm’n., 2017-Ohio-9112 (12/21/17)

31, Inc. processes rubber to make products that are used to repair tires. Mr. Ashworth was employed at 31 as a “calendar” operator. A calendar is defined in Ohio regulations as “a machine equipped with two or more metal rolls revolving in opposite directions and used for continuously sheeting or plying up rubber or plastic impounds and for fractioning or coating fabric with rubber or plastic compounds.” Ashworth operated a calendar with three rolls and on one day grabbed rubber to pull it off a roll and it caught the fingers on his right hand and pulled his hand into a three-inch space between the rolls. He filed a claim for an award for violation of a specific safety requirement (“VSSR”) alleging that 31 had violated an Ohio safety requirement for “nip points” at workshop and factories. This specific regulation provided an exception when the machinery is covered expressly by requirements contained in other codes of specific requirements.

31 argued that the exception to this alleged requirement applied because the calendar was expressly covered under another code regulation, a rule that provides specific safety guidelines for calendars in the rubber and plastic industry. Before the Industrial Commission, 31’s argument was rejected by the hearing officer who argued that both regulations applied to the calendar, citing State ex real. Hartco, Inc. v. Industrial Commission, 38 Ohio St.3d 181 (1988), in which the Ohio Supreme Court held that provision on nip points for workshops and factories applied to a pre-roll machine used in the rubber and plastic industry. The Staff Hearing Officer granted the VSSR application and rejected 31’s argument that the exception to the nip point regulation applied, finding that the administrative rules for the rubber industry supplement - but do not supplant - the workshop and factory rules, citing Hartco. On appeal before the 10th District Court of Appeals, 31’s request for a writ was denied.

The Ohio Supreme Court agreed with 31’s argument that there are specific safety requirements for calendar machines in the Ohio administrative code that apply to the rubber industry. The rule requires that employees protect employees by either providing safety rip cords that immediately stop the calendar’s rolls when the cord is pushed or pulled or by locating the calendar where employees cannot come into contact with the roll bites. 31 argued that because this rule expressly covers calendars, the exception to the workshop and factory rule applies, and the Court agreed. For the Commission to require 31 to comply with the nip-point rule, it must ignore the rule that expressly covers the safety controls for calendar machines in the rubber industry.

Injury/ Idiopathic Injuries

Clendenin v. Girl Scouts of Western Ohio, 2017-Ohio-2830 (5/18/17).

In this case, Ms. Clendenin was injured in 2008 in the course of her employment with the Girl Scouts and her claim was allowed for various conditions, including substantial aggravation of preexisting dermatomyositis. In 2013, the BWC moved to terminate Ms. Clendenin’s benefits and compensation arguing that the condition dermatomyositis had returned to its baseline, pre-injury status. The Commission evaluated the BWC’s medical report on the issue and agreed.

Ms. Clendenin filed an appeal in the Hamilton County Court of Common Pleas arguing that the condition had not returned to pre-injury status and that the order should be vacated. The BWC sought dismissal of the case arguing that the issue was one of “extent of disability” and not a “right to participate” case and therefore the appeal to the common pleas court was improper. The Hamilton County Court agreed with the BWC and dismissed the appeal. On mandamus before the First District, that order was reversed. The First District Court of Appeals opined that when the BWC decides the condition is no longer impacted by the workplace injury, then the BWC is in effect terminating the injured worker’s right to participate for that condition in the workers’ compensation system. Therefore, the First District held, such an appeal would be properly in the common pleas court.

The Ohio Supreme Court, however, reversed the First District’s decision. The Court held that an Industrial Commission’s decision that a preexisting condition substantitally aggravated by an injury at work which has returned to “pre-injury status” involves “extent of disability.” Therefore, an appeal under Ohio Rev. Code § 4123.512 (i.e., “a right to participate appeal”) was not proper, but instead must be challenged by mandamus. Simply put, the Court found that since the dermatomyositis was already an “allowed condition” it was not a right to participate issue. The real matter was one of the amount of compensation and benefits to be paid for such condition, and that called for a challenge in mandamus and the Hamilton County Court of Common Pleas was not permitted to hear the matter.

White v. Buehrer, 2nd District No. 27295, 2017-Ohio-8254 (10/20/17)

Ms. White was injured in a fall at work and broke her right hip. She testified at the Industrial Commission that the exam room floor where she fell had been “tacky” causing her fall. She also presented an expert report from someone who had examined the floor two weeks after the accident and opined that the floor may have been stripped but not yet relaxed at the time of White’s fall. Fiver Rivers Health Center, the employer, offered testimony from a senior nurse who worked in the exam room the day before, the day of and the day after White’s fall and said the floor was not “tacky” or otherwise hazardous. Five Rivers also offered testimony on the maintenance of the floors and that it had not been stripped or relaxed for more than a year prior to White’s fall. Ms. White’s claim was denied at all levels of the Ohio Industrial Commission, and she filed a complaint in the Montgomery Court of Common Pleas. The court granted Ms. White’s motion for summary judgment and Five Rivers appealed to the 2nd District Court of Appeals.

The issue before the court of appeals involved idiopathic causes of workplace accidents, and ruled that the trial court erred in refusing to allow the BWC to challenge White’s motion for summary judgment on the basis that the claimant bears the burden of eliminating idiopathic causes of a workplace injury. White had asserted in her motion that idiopathic causes are an “extremely limited exception” to the compensability of injuries and the existence of such a condition constituted an affirmative defense to a claim. She provided no evidence aimed at eliminating an idiopathic cause for her fall. The medical evidence in the claim and offered by Fiver Rivers and the BWC in response to her motion presented facts that there may have been an idiopathic factor that contributed to her fall (diabetic neuropathy, foot pain and noncompliance with medication).

The court of appeals ruled that, pursuant to Waller v. Mayfield, 37 Ohio St.3d 118 (1988), because the cause of the fall was not clear, White bore the burden of eliminating idiopathic conditions as the cause of her fall and the burden did not rest with Five Rivers or the BWC to disprove the effects of these conditions. The trial court’s judgment granting White’s motion for summary judgment was therefore reversed.

Evidence for Summary Judgment

Coleman v. KBO, Inc., 2nd District No. 2017-CA-82, 2018-Ohio-763 (3/2/18)

Ms. Coleman was involved in an accident at her workplace, KBO, Inc., in 2009 as a result of which she sustained physical injury to her right wrist. Her claim was allowed for a sprain, right wrist synovitis and ulnocarpal abutment syndrome. More than five years later, Ms. Coleman sought additional allowances for psychological conditions. The Commission, at the district hearing officer level, denied the requested conditions and the staff hearing officer affirmed. Coleman filed a complaint in the Clark County Court of Common Pleas, where KBO filed a motion for summary judgment arguing there was no genuine issue of material fact whether Coleman’s depression arose from the previously allowed physical conditions and that KBO was entitled to judgment as a matter of law.

The trial court granted KBO’s motion and concluded that, due to the five years between the physical injury and the diagnosis of the psychiatric condition and to Coleman’s assertions that she was not suffering from depression during the intervening period, reasonable minds could only conclude that the psychiatric condition did not arise from the physical injury. Upon review before the 2nd District Court of Appeals, the court noted that in her opposition to the summary judgment motion, Ms. Coleman offered the affidavit of Dr. Drown who opined that her depression was “directly caused by her workers’ compensation injury.” KBO had argued that Coleman’s admissions that she had not experienced depression in the several years following her injury undercut her assertion that there was a causal connection, but the court of appeals disagreed and indicated she need not have continuously experienced depression from the time of her physical injury to establish that the depression she experienced years later was caused by the injury. Further, the court of appeals held that Dr. Drown’s affidavit created a genuine issue of material fact as to whether her depression was caused by the injury. The court found that the trial court improperly concluded that it could not consider the affidavit because the affidavit “contradicted” Coleman’s “former deposition testimony” without sufficient explanation. The trial court distinguished cases offered by KBO supporting a court’s non-consideration of an allegedly contractor affidavit in deciding summary judgment by noting that Dr. Drown did not make the contradictory statements and was not a party to the case.

The court of appeals states that the trial court concluded, based on the passage of time and without further elaboration or reasoning, that reasonable minds could not conclude that Coleman’s 2015 condition arise from the 2009 injury. This finding would imply the existence of a “bright-line” rule as to the time for filing claims for psychological injuries, when no such rule exists.

“The Calfee Corner” – Recent Calfee Cases Before the Industrial Commission and Courts of Ohio

City of Cleveland v. Bureau of Workers’ Compensation, 8th District Court of Appeals Case No. CA 17-105604

Calfee represented the City of Cleveland as the Plaintiff in an “unjust enrichment”/premium overcharge case against the Ohio Bureau of Workers’ Compensation. Based on expert actuarial testimony presented at trial, the trial court awarded $4.5M in restitution to the City. BWC appealed to the 8th District Court of Appeals (Cuyahoga County) alleging numerous errors. On March 8, 2018, the Court of Appeals rejected all assignments of error and upheld the trial court’s judgment in full (relying onSan Allen, Inc. v. Buehrer, 2014-Ohio-2071 (May 15, 2014)).

An appeal to the Ohio Supreme Court is expected. Issues upon appeal likely will include proper venue (trial court versus Court of Claims), exhaustion of administrative remedies, and Statute of Limitations applicability.

Claims 14-872004 and 16-837301. – Strong preparation of evidence and testimony continues to defeat attempts of independent contractor drivers – here Mr. R and Mr. B - to be recognized as “employees”.

Mr. R was a delivery driver who was injured in a car accident while performing his deliveries near Bellefontaine, Ohio. He had entered into an Owner/Operator Agreement in 2012 under which he agreed to provide delivery services which entailed picking up automobile parts from an Advanced Auto parts hub in one Ohio city and delivery of those auto parts to three other cities on a daily route. Mr. R. argued that he was the employee of the other party to the Agreement, the Alleged Employer. In support of its defense against the claim, the Alleged Employer offered both documentation of the manner and means of Mr. R’s performance of his work, as well as testimony of a witness with knowledge of the operations.

Based upon the evidence and testimony at the hearing, the Ohio Industrial Commission denied the claim and found that Mr. R. had failed to establish the existence of an employer-employee relationship with the Alleged Employer, and to the contrary, the Commission found Mr. R. to be an independent contractor on the date of his injury. The Commission found that the evidence and testimony established these facts: Mr. R. controlled the manner and means of providing his delivery services; Mr. R. provided his own vehicle, paid for his own fuel and maintenance; the Alleged Employer did not dispatch Mr. R. on any particular route; Mr. R. controlled which hours he worked and was free to work for other entities; Mr. R. was free to terminate the relationship at any time and was also free to reject any assignments; Mr. R. was paid “per route/delivery” not by a wage; and Mr. R. was issued 1099 statements from the Alleged Employer and filed his taxes as self-employed.

Similarly, Mr. B. also alleged an employer-employee relationship with the company with which he entered into an independent contractor agreement. Mr. B., a delivery driver, was injured when unloading materials from his truck and was struck with a heavy box that was unsecured. In defense of Mr. B’s claim of employment, this Alleged Employer also supplied the Industrial Commission with documentary evidence of the independent contractor relationship, as well as two witnesses with personal knowledge of the day-to-day operations of the relationship.

The Industrial Commission disallowed Mr. B’s claim finding that he was not an employee of the Alleged Employer, but an independent contractor. The Alleged Employer offered evidence and testimony to establish the defense that it insufficient control over the manner and means of Mr. B’s performance of his work, failing to establish an employment relationship under Ohio law for workers’ compensation purposes. The commission determined that Mr. B was paid a percentage of each load delivery – not a wage; Mr. B was free to accept or reject each and every load offered; the equipment used, including the truck, was owned by Mr. B.; Mr. B set his own hours subject only to the delivery deadline set by the customer (not the Alleged Employer); and Mr. B was not told what specific route he had to take for his deliveries.

Allegations of employment relationships in truck delivery matters are very fact specific. However, diligent preparation of documents and testimony establishing the control factors on the performance of the work rest with the driver (or some third party) and not the Alleged Employer. Successful results before the Ohio Industrial Commission reflect this diligent preparation. The denial of Mr. R’s claim is now in Court on Mr. R’s appeal on the denial of an employment relationship. Mr. B. did not appeal the Commission’s final order denying his claim.

Claim 15-851474. On October 19, 2015 the IW fell off an eight (8) foot ladder while performing asbestos abatement. She sustained multiple rib fractures and soft tissue injuries to her fingers. A year after the injury the IW had surgery to her left hand. She returned to work. Some twenty (20) months after the accident she stopped working, claiming she also had developed “Right Hip Trochanteric Bursitis; Right Hip Labral Tear.” These conditions weredenied administratively both by the District and Staff Hearing Officers. The IW appealed to the court of common pleas.

In August, 2017 Ph.D. M diagnosed the IW with “Major Depression, Recurrent, Severe without Psychotic Features” as a direct and proximate result of her work injury. Ph.D. M’s history included sexual abuse as a child, adolescent, and in her first marriage. The Bureau of Workers’ Compensation sent the IW to Ph.D. Ko who supported the causal relationship to her work injury, omitting any history of her being a victim of sexual abuse and other stressors including her current marriage. Ph.D. Ka conducted a thorough psychological examination, including objective testing, something which hadnot been performed in the two prior psychological examinations.

Ph.D. Ka diagnosed a “Major Depressive Disorder, Recurrent, Moderate Severity” unrelated to the work injury. He also was aware that current Ohio Lawrequires that an additional psychological condition be caused by the work injury. Since both the labral tear and the bursitis had beendenied in the Claim, the District Hearing Officer disallowed the psychological condition being alleged.

Claim 17-208220. On September 4, 2017, the IW injured his low back while closing a truck tailgate door in loading a lawnmower in the course of his landscaping work. His claim was allowed for a lumbar sprain. On October 19th, the IW had returned to work full duty and was part of a crew performing landscaping services at a customer apartment complex. The manager of the complex called the employer’s main office with a resident’s complaint of a broken patio door caused by a rock striking the door in the area where the IW was using the industrial mower. The employer’s manager came to the complex and discussed the incident with the manager and agreed to repair the broken door. The IW disputed that he was involved in the accidental damage with the manager, but the manager and advised the work crew, including the IW, that the matter was handled and not to dispute the matter with the complex or resident and leave the work site.

Unbeknownst to the employer, the IW returned to the worksite moments later and paid a visit to the resident who reported the damage and began to dispute the incident and his role in it. The manager of the complex called the employer to express the deep disappointment in one of its residents feeling threatened by the IW. When the IW next returned to the employer’s office, the manager discussed with the IW the extremely problematic behavior of approaching the resident and terminated the IW on October 23rd. Subsequently, the IW filed for temporary total compensation alleging he was unable to work between November 4th and December 3rd, allegedly as a result of his allowed physical conditions.

Before the District Hearing Officer, evidence was prepared and offered in the form of documentation and testimony that the IW was not entitled to disability compensation because he had voluntarily abandoned his employment. The DHO noted that the employer had provided evidence that the Separation Report revealed that the IW had been terminated for “Misconduct,” and specifically for “Insubordination and violation of or failure to follow work rules and procedures” and “abusive conduct toward employees and/or customers.” Evidence was provided that the handbook clearly classified this conduct as an immediately terminable offense.

The employer was successful in establishing that the IW was terminated for a written work rule related to insubordination and abusive conduct toward customers, this rule was known to the IW or should have been known and constituted voluntary abandonment of his employment precluding temporary total compensation pursuant to theLouisiana-Pacific case decided by the Ohio Supreme Court.

Claim 14-820563. On March 11, 2014 the IW tripped over a vacuum cleaner cord and fell, fracturing her elbow. It was surgically repaired and she returned to light duty, eventually taking a different light duty job with another employer. Approximately two (2) years after the injury the Claim was additionally allowed for “Complex Regional Pain Syndrome/Reflex Sympathetic Dystrophy (CRPS/RSD) Left Upper Extremity.”

The IW stopped even limited duty work and started collecting Temporary Total Compensation effective July 1, 2016. She began treatment at The Cleveland Clinic Pain Clinic where she received a series of stellate ganglion blocks. By Summer. 2017 it appeared that she could return to a limited duty position but her attending family physician continued to keep her off work. The IW claimed her symptoms had migrated to her right lower extremity and that she needed to be treated with a spinal cord stimulator. The Employer became suspicious, in part due to the insights of the nurse case manager who felt the IW’s symptoms had become inconsistent.

Surveillance was undertaken which showed the IW using her left upper extremity to close a SUV door, carry an umbrella, make calls and take pictures with her cell phone, clap her hands at her middle school aged son’s football game, and so forth. A new independent medical examination was scheduled with M.D. H, a physical medicine specialist. After he completed his examination, he was sent the surveillance tape. Further highlights showed the IW walking normally with her right lower extremity across stadium bleachers holding a soda pop bottle with her supposedly symptomatic left upper extremity.

On cross-appeals from the District Hearing Officer, the Staff Hearing Officerdenied right lower extremity CRPS/RSD and the spinal cord stimulator. The IW was declared to have reached Maximum Medical Improvement.

Claim No. 17-185318: The Ohio Industrial Commission granted the Employer’s appeal and vacated a prior order allowing a long-time assembler employee’s carpal tunnel/cubital tunnel claim. Evidence presented at the appeal hearing included a summary of Claimant’s work activities that minimized the time spent with vibrating tools and repetitive tasks. We also highlighted Claimant’s pre-existing risk factors of diabetes and high body mass. Finally, we pointed out that Claimant had worked for years at the assembler position without issue, and then had been removed from the assembler position for months with no abatement of hand/wrist/elbow symptomology.

Industrial Commission Update

The Industrial Commission has issued several Memoranda over the past year, two of which are based on noteworthy court decisions discussed above. These Memoranda are designed to provide “guidance” to Hearing Officers in applying the law as interpreted by the Ohio Supreme Court.

Memo B2. Substantial Aggravation (Effective 08/25/2017).

In light of the Clendenin case, the Industrial Commission instructed Hearing Officers to be especially clear on the bases of decisions for substantial aggravations. The “substantial aggravation” standard only applies to claimsafter August 25, 2006, the date on which this legal provision became effective. Similarly, “abatement” of the substantially aggravated condition is only possible with these claims.

By legal definition, a substantial aggravation must be evidenced by objective diagnostic findings, objective clinical findings, or objective test results. Whether a substantial aggravation has occurred is alegal rather than medical determination. “...(A)lthough it is necessary that the hearing office rely on medical evidence that provides the necessary documentation pursuant to the statute, it is not necessary that the relied upon medical evidence contain an opinion as to substantial aggravation.”

Consistent with Clendenin, finding that a substantially aggravated condition has abated, or returned to baseline, is an extent of disability decision which isnot appealable to common pleas court. The claim remains allowed for the substantial aggravation. “Hearing officers are to handle requests for additional compensation or treatment after an abatement finding as they do requests for a new period of temporary total disability after a finding of maximum medical improvement.”

The Industrial Commission has issued two Memoranda in the past year. These Memoranda are designed to provide “guidance” to Hearing Officers in applying the law based on recent developments in Ohio.

Memo C1. Firefighters’ and Police Officers’ Occupational Disease (Effective 8/25/2017).

This Memo, which the Commission adopted in the aftermath of Ohio Senate Bill 27, discussed more thoroughly below in the BWC update, looks to guidance hearing officers in the application of a rebuttable presumption in dealing with cancer-related claims filed by first responders like police and fire fighters. The Memoranda sets fort the affirmative evidence that would be used to rebut the presumption that the disease he or she suffers from was contracted or induced in the course of and arising out of the employment, and therefore, is compensable.

Memo D5. Voluntary Abandonment (Effective 05/17/2017).

This Memo is based on the Cordell case. It differentiates three (3) logical types of voluntary abandonment. The most straightforward is voluntary retirement from the workforce. If the retirement is based on the “voluntary” choice of the worker then future temporary total or permanent total benefits are precluded. If the retirement is due to the allowed conditions in the claim, then it is not considered “voluntary.” Future compensation for being off work is possible if the appropriate criteria for compensation have been met.

Closely related to voluntary retirement is “abandonment of the entire workforce.” This may or may not be a result of the industrial injury. When it does result from an industrial injury, the correct inquiry centers on whether the worker has sought other employment. A typical scenario would be an injury followed by some period of temporary total, an end to the temporary total, and future medical treatment. If there has beenno attempt to re-enter the workforce, future wage replacement benefits are precluded regardless of whether or not the worker could return to the former position of employment.

The third type of voluntary abandonment is described by Cordell and requires review on a case-by-case basis. In pursuing this inquiry, theCordell test should be addressed: off-work benefits may not be denied where: (1) the worker remained medically incapable of returning to work due to the injury; and (2) discovery of the dischargeable offense occurredbecause of the injury.

Memo M7. Treatment Requests (Effective 8/25/2017).

This Memo simply sets forth the providers who may submit treatment requests in a BWC claim for physical and psychological conditions. For physical conditions, the Memo guides the Hearing Officer that such treatment requests may be submitted by a Medical Doctor, a Doctor of Osteopathy, Chiropractor, Advanced Practice Nurse, Nurse Practitioner, Clinical Nurse Specialist, Physician Assistant, Physical Therapist, Occupational Therapist, Optometrist and Audiologist.

For psychological conditions, the treatment request would need to be submitted by a Psychologist, Medical Doctor, Doctor of Osteopathy, Licensed Clinical Counselor or a Licensed Independent Social Worker.

Ohio Administrative Code Revisions

Two provisions of the Ohio Administrative Code that govern proceeding before the Ohio Industrial Commission were also revised. Ohio Administrative Code 4121-1-02 and 4121-1-03 (Effective February 8, 2018), were revised to clarify the rules for public meetings and non-adjudicatory meetings of the Industrial Commission.

Bureau of Workers’ Compensation News

Another Billion Back

On April 24, 2018, Ohio Governor John R. Kasich and Ohio Bureau of Workers’ Compensation (BWC) Administrator/CEO Sarah Morrison proposed giving Ohio employers another $1.5 billion in premium rebates this summer. The rebate was proposed to BWC’s board of directors and the board will take up a vote at its May 24th meeting. If approved, rebate checks would likely be mailed in July and August. The proposed rebate equals 85% of the premiums paid for the policy year that ended June 30, 2017 (calendar year 2016 for public employers). With this rebate, BWC will have saved employers $8 billion in workers’ compensation costs since 2011 after considering other rebates, credits, greater efficiencies and several rate reductions, including two this year.

In the past year, many changes to the Ohio Workers’ Compensation system were implemented and/or have recently become law. A summary of some of the more intriguing updates follows:

Changes Affecting Ohio State Fund Employers
Another Round of Refunds

The financial position of the Ohio State Fund continues to be quite healthy. Strong investment returns and reductions in claims cost allocations continue to outpace the BWC’s recent rebates and premium transition credits totaling over $3 billion, increases in safety grant funding, and reduction of employer premium rates.

As a result of the BWC’s net surplus of $9.6 billion, the BWC announced in Spring 2017 yet another round of “Billion $ Back” refunds, the 3rd such rebate in the last 4 years. An estimated total of over $1 billion is on track to be refunded to State Fund employers by late October 2017. The rebates are based on premiums paid for 2015 policy years, and will provide employers with a refund of 66% of premiums calculated for that year.

A few interesting tidbits about this rebate:

• Public employers, since they already received a 50% credit as part of the transition to paying premiums in advance, are getting refunds ~16% higher than the amount they actually paid to BWC.

• Public employers enrolled in group retrospective rating programs are potentially adding rebates, payable in Spring 2017 through Spring 2019, to this “profit” position.

• Private employers, since they received a 16.67% credit as part of the transition to paying premiums in advance, are seeing net premiums of 17.34% versus the calculated premium for the July 2015 PY.

• Private employers enrolled in group retrospective rating programs are potentially adding rebates payable in Fall 2017 through Fall 2019, and could ultimately realize a “negative net” premium for the July 2015 policy year.

Expanded Handicap Recovery

Currently the Ohio handicap reimbursement provision permits reduction of medical and “total

disability” costs charged to an employer, including associated reserves if applicable, based on the impact of a defined listing of pre-existing conditions on the complexity and costs of a claim.

Settlement amounts, since they are not disability compensation per se, have historically not been reducible by the handicap recovery. In fact, when a claim with a handicap recovery also has a settlement, a rather complicated allocation-type calculation is required to derive the total claims cost reduction resulting from the handicap recovery.

House Bill 27 has changed the handicap rules so that the handicap recovery also will be applied to settlement payments.

BWC has not finalized how they will implement this change, but they plan to propose to apply the new rules only when the settlement effective date or handicap recovery determination is after the September 29, 2017 effective date of the Bill.

Changes Affecting All Employers

Firefighters Cancer Claim Rebuttable Presumption

In Spring 2017, Ohio Senate Bill 27 expanded the scope of claims of work-related cancer filed by firefighters.

Under this Bill, “cancer contracted by a firefighter who has been assigned to at least six years of hazardous duty as a firefighter constitutes a presumption that the cancer was contracted in the course of and arising out of the firefighter's employment, if the firefighter was exposed to an agent classified by the international agency for research on cancer or its successor organization as a group 1 or 2A carcinogen.” The law states this presumption is rebuttable if there is evidence that:

• The firefighter was not exposed to an agent classified by the international agency for research on cancer as a group 1 or 2A carcinogen;

• The firefighter has been exposed to cigarettes, tobacco products, or other conditions presenting an extremely high risk for the development of the cancer alleged, or was probably a significant factor in the cause or progression of the cancer;

• The firefighter incurred the type of cancer alleged before becoming a member of the fire department;

• It has been more than 20 years since the firefighter was last assigned to hazardous duty as a firefighter.

• The firefighter is 70 years of age or older.

Statute of Limitations for Filing Claims

Currently in Ohio a workers’ compensation claim is considered timely if it is filed within 2 years of the date of injury or other defining date of occupational disease. House Bill 27 reduced that statute of limitations, for injury or death claims only, to 1 year, for all new claims occurring on or after September 29, 2017. The statute of limitations for filing occupational disease claims remains at 2 years.

This could seemingly have an impact on motor vehicle accidents claims where the filing of the workers’ compensation claim were purposefully delayed until insurance and other recoveries have been obtained. The subrogation process and associated recoveries under such circumstances could also be impacted.

Extended Time for Appeals to the Common Pleas Court

Currently an appeal to the Court of Common Pleas is due within 60 days from the Industrial Commission’s final order. New Ohio law extends appeal timeline to 150 days, but only if the claimant or employer files notice of intent to settle the claim and other party does not object to that intent.

This change should help to facilitate settlement of claims without the costs of legal activity surrounding the filing of/response to the Court actions. This applies to new claims occurring on or after September 29, 2017.

The legislation also increases the maximum award of attorney’s fees for a successful court challenge from $4,200 to $5,000.

Incarcerated Dependents Cannot Receive Compensation

It has long been the case that incarcerated Ohio workers’ compensation claimants could not receive compensation payments. However, this rule did not prevent a dependent (ie widow/child in a death claim) from receiving compensation payments during a period of incarceration. The new law corrects this situation and bars payment to incarcerated dependents as well.

90 Day Extent of Disability Examinations

Per statute, the BWC is required to examine claimants who are collecting temporary total disability every 90 days. These examinations are currently scheduled “automatically” by BWC (but in practice often require prodding of the BWC by employers or their representatives). Per the new law, the BWC may now waive the 90-day examination for good cause. However, if the employer objects to the waiver, the BWC shall be required to schedule the examination.

Permanent Partial Examination No-Shows

Currently if a claimant repeatedly does not show for scheduled BWC examinations related to a filing for percentage of permanent partial benefits (C92), the BWC may suspend the claim until the claimant formally promises to comply. However, over the years this has resulted in ~20,000 claims statewide being suspended for this reason, and remaining in that status. The new law empowers the BWC to dismiss the C92 application entirely due to a failure to appear for BWC examination(s).

July 2018 Policy Year Rates Announced

The BWC will be reducing private employer premium rates by an average 12% for the July 1, 2018 policy year. This reduction would save private employers $163.5 million over the current policy year's premiums, according to BWC’s analysis.

The current policy year’s rates, according to the BWC, are already at their lowest rates in at least 40 years.

BWC experienced 86,290 allowed claims in 2017, nearly an 18% drop from 2011. This is the lowest number of claims dating back to at least 1997, when there were more than 277,000 claims.

BWC's efforts to promote safe and healthy workplaces, increased safety funding and more employers putting safety education and resources to work, have contributed to this decrease in claims and premiums.

From 2010 through 2015, BWC's Division of Safety & Hygiene, which provides a wide array of no cost safety and other assistance to Ohio employers, saw a 71% increase in the number of employers using its safety programs and services.

BWC's private employer rates have decreased or remained unchanged every year since 2007, with the last reduction occurring in 2016. Public employer rates have fallen as well, including a 6.1% cut that took effect January 1, 2018.

Of course, rate adjustments for an employer’s particular manual classifications vary widely between the BWC’s self-imposed caps of +14% to -36%. Additionally, expected loss rates, which drive experience calculations, also saw an overall decrease, which could result in higher experience modifiers that would at least partially offset base rate reductions.

Employers’ third-party administrators or other resources should be consulted to determine how their individual premiums may be affected by these BWC rate changes.

Motor Vehicle Accidents Not Chargeable – Practical Observations

As a result of the passage of House Bill 207, if a State Fund employer can establish that an employee’s claim is a result of a motor vehicle accident involving a third party in which the employee was not at fault, BWC may exclude the cost of the claim from the employer’s future premium rating calculations. This policy is effective for accidents occurring on or after July 1, 2017.

The law, as currently written, requires that the third party at-fault driver have active insurance coverage, or the employer has active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident, to obtain the claim cost exemption.

Initial experiences with this new procedure have revealed that the issuance of a citation can prove to be a stumbling block in gaining BWC approval of the exemption. Since issuance of a citation tends to be discretionary, we are finding that they are not always available. BWC thus far has adhered to the letter of the law as currently written, and is denying relief absent an actual citation.

Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their rights to subrogate against a third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.

Proposed Rating Experience Changes / Premium Credits for July 2019 Policy Year

BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs. As a result, BWC is proposing a number of changes to the core factors which govern BWC’s experience rating calculations, and the resulting premiums charged to this set of employers.

The proposed changes, which are in the process of review and approval, include:

• Introducing a Premium Size Factor to reduce the premiums of individually rated employers who pay in excess of $5,000 in annual premium. The current proposal recommends:

o A 15% discount on premiums between $5,000 and $100,000

o A 20% discount on premiums between $100,000 and $500,000

o A 25% discount on premiums above $500,000

• Reduce the maximum chargeable claims losses and experience credibility factors for the smallest Ohio employers

o The current $12,500 per claim maximum in place for very small employers would be scaled to between $2,000 and $8,000, depending on size (as measured by expected experience period losses)

o Increase experience credibility factors for medium to large employers

▪ Credibility factors applied to larger employers would rise towards the 53% maximum more quickly under the current proposal

▪ This should result in a more significant influence of loss ratios on experience modifiers and resulting premiums

• Introduce an experience modifier adjustment factor for individual employers. The current proposal recommends:

o An experience modifier adjustment credit of 5% for EMRs 0.90 and lower

▪ ie a 0.80 EMR would be adjusted to 0.76

o No adjustment factor for EMRs 0.91 to 1.99

o An experience modifier adjustment penalty of 5% for EMRs 2.00 and higher

▪ ie a 2.25 EMR would be adjusted to 2.36

• Revise group retrospective rating program basic premium factors to compensate for the impact of above changes

o Base premium factors would increase by 4-6% for most currently available group retrospective rating programs

▪ This would reduce the potential performance-based refunds available to participating employers

As mentioned, these proposals have already evolved from their original form, and may change further before final approval by the BWC’s Board of Directors. However, the BWC seems intent on making these changes effective for the July 1, 2019 policy year.

The changes mean that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.

Employers’ third-party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes.

BWC Wellness Initiative

Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).

At present, this program is limited to the following high-risk industries: Agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.

Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and agreeing to participate, injured workers can qualify for free services such as:

• Health and wellness awareness, education and training

• Health assessments & biometric screenings to better understand their health and well-being

• A website allowing them to develop health plans & track progress to achieve their health goals

• A state-of-the art mobile app for creating weekly action plans and getting health tips

• Digital coaching to help them on their journey to better health.

This program, still in its infancy, strives to extend the BWC existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including measurements and coaching to address at risk health behaviors.

Payment of Initial Compensation Expedited

Currently, if sufficient wage information is not on file, calculation of the Full Weekly Wage (FWW) cannot be accomplished, and therefore Temporary Total compensation cannot be initiated. The new law requires that in these cases, the FWW shall be established equal to 1/3 of the statewide average weekly wage, and compensation paid accordingly. When the necessary history of prior wages is filed, the compensation rate and amount due will be adjusted with either additional payment made, or in the case of a lower FWW, a declaration of overpayment will result.

BWC Funding Raid Averted

House Bill 49, among many other things, permitted the Ohio Office of Budget & Management (OBM) to transfer up to 2% of the annual BWC/Industrial Commission funding appropriation to the State’s General Revenue Fund.

In response to this unprecedented action, on July 7, 2017 a meeting between the Director of the OBM and Members of the Ohio Business Community was held. The result of this meeting was a signed Memorandum of Understanding between the Business Community and the OBM, including commitments that:

• The OBM will not exercise their authority to transfer funds before January 13, 2019;

• If the OBM intends to access the BWC/Industrial Commission’s funding, they will provide at least a 14-day notice to the Ohio Business Community’s counsel;

• The Ohio business community will not take legal action (prior to January 13, 2019) based on the authority granted under the Bill;

• The OBM will not oppose legislative efforts to remove or negate the offending language in the Bill.

About the Author

Michael Brown, ARM is an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions. Michael has over 37 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio, and is also a licensed Health Insurance agent.

In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers. Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer. This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide-reaching solutions to the most complex Workers’ Compensation challenges.

With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury. Please feel free to reach out to Michael at mike.brown@promedica.orgor (877) 765-4200 ext. 270.

Court Decisions of Note

Constitutionality

Ferguson v. State, 2017-Ohio-7844 (September 28, 2017).

In 2006 the legislature amended the statute governing appeals to the courts of common pleas to require the Plaintiff-Claimant to obtain the Defendant-Employer’s consent to a Civil Rule 41(A) voluntary dismissal when the Employer had initiated the court appeal. Ford had filed the court appeal, and, when Ferguson sough to voluntarily dismiss, it refused to agree. The trial court then pended the original appeal and proceeded with a declaratory-judgment action regarding the employer consent provision’s constitutionality.

The trial court found the employer consent provision unconstitutional for three reasons. First, by overriding a Civil Procedure Rule, the legislature had violated separation-of-powers by intruding on the court’s power to govern trials. Second, the creation of two different classes of Plaintiff-Claimants, those who filed their own appeals and those whose employers appealed, ran afoul of equal protection. Finally, Plaintiff-Claimants were inhibited from adequately presenting their cases, a violation of the Ohio Constitution’s Due Course of Law Clause. The Cuyahoga County Court of Appeals (Cleveland) affirmed.

A unanimous Ohio Supreme Court reversed. There was no violation of separation of powers because the General Assembly may create procedural rules for “specialty statutory proceedings” like workers’ compensation court appeals. Furthermore, equal protection and due process were not violated because a suspect class had not been created. Differentiating injured workers based on whether they, or their employers, initiated the court appeal survived rational basis review. This standard was sufficient, especially given the differences between workers’ compensation and the civil justice system. 

Injury

Clendenin v. Girl Scouts of Western Ohio, 2017-Ohio-2830 (5/18/17).

In this case, Ms. Clendenin was injured in 2008 in the course of her employment with the Girl Scouts and her claim was allowed for various conditions, including substantial aggravation of preexisting dermatomyositis. In 2013, the BWC moved to terminate Ms. Clendenin’s benefits and compensation arguing that the condition dermatomyositis had returned to its baseline, pre-injury status. The Commission evaluated the BWC’s medical report on the issue and agreed.

Ms. Clendenin filed an appeal in the Hamilton County Court of Common Pleas arguing that the condition had not returned to pre-injury status and that the order should be vacated. The BWC sought dismissal of the case arguing that the issue was one of “extent of disability” and not a “right to participate” case and therefore the appeal to the common pleas court was improper. The Hamilton County Court agreed with the BWC and dismissed the appeal. On mandamus before the First District, that order was reversed. The First District Court of Appeals opined that when the BWC decides the condition is no longer impacted by the workplace injury, then the BWC is in effect terminating the injured worker’s right to participate for that condition in the workers’ compensation system. Therefore, the First District held, such an appeal would be properly in the common pleas court.

The Ohio Supreme Court, however, reversed the First District’s decision. The Court held that an Industrial Commission’s decision that a preexisting condition substantitally aggravated by an injury at work which has returned to “pre-injury status” involves “extent of disability.” Therefore, an appeal under Ohio Rev. Code § 4123.512 (i.e., “a right to participate appeal”) was not proper, but instead must be challenged by mandamus. Simply put, the Court found that since the dermatomyositis was already an “allowed condition” it was not a right to participate issue. The real matter was one of the amount of compensation and benefits to be paid for such condition, and that called for a challenge in mandamus and the Hamilton County Court of Common Pleas was not permitted to hear the matter.

Miller v. Horizons Health Servs., LLC, 8th Dist. No. 104423, 2017-Ohio-465 (2/9/17).

This case emerging from the Eighth District Court of Appeals deals with idiopathic injuries. Ms. Miller worked for Horizons as a nurse and her position requires her to travel to the residences of her clients. On December 17, 2014, Ms. Miller was driving to a client’s residence when she lost consciousness at a stop light, her vehicle crashed into a light pole and she suffered injuries to her left tibia and left fibula. Upon visit to the emergency room she was diagnosed as having had a “syncopal episode” (syncope causes dizziness, fainting and temporary loss of consciousness due to low blood pressure). In proceedings before the Industrial Commission, Ms. Miller’s claims were denied for her inability to eliminate idiopathic causes for her losing consciousness, which caused her to strike the pole that caused her injury. Evidence at the hearings included her ongoing treatment for low blood pressure with medication and also diabetes.

In the trial court, the BWC filed a motion for summary judgment arguing that Ms. Miller suffered an idiopathic injury and therefore her injury did not “arise out of” her employment; and further that she did not face any employment duty or hazard that increased her risk of injury. The trial court agreed. On appeal before the Eighth District, Ms. Miller did not contest whether her injury was idiopathic in nature. Instead her main argument was that driving – part of her employment duties as a home health nurse – contributed to her risk of injury. In affirming the trial court’s dismissal of Ms. Miller’s appeal, the Court citedWaller v. Mayfield, 37 Ohio St. 3d 118 (1988), where the Ohio Supreme Court ruled that when an unexplained injury happens, “that claimant has the burden of eliminating idiopathic causes.”

If there is an idiopathic cause of injury, the Court opined, the employee must demonstrate “that although the workplace conditions or environment did not cause the injury, the conditions or environment caused the employee tosuffer worse injuries” in order to participate in the workers’ compensation system (emphasis added). In this case, the Eighth District rejected her argument that her driving contributed to her risk of injury and ruled that her injury occurred “irrespective of her employment” explaining that the light pole was not attendant to her employment and there was no evidence that the roadway was unsafe.

Aho v. RTI Int’l Metals, Inc., 11th Dist. Nos. 2016-T-80, 2016-T-82, 2017-Ohio-2803 (5/15/17)

This case out of the Eleventh District Court of Appeals also deals with the issue of the nature of an “injury” in the workers’ compensation system. Mr. Aho was injured at work when he was climbing stairs on the premises of his employer, RTI International Metals, Inc. The Industrial Commission allowed his claim for right knee sprain and right knee medial meniscus tear. On appeal before the Trumbull County Court of Common Pleas, the trial court found Mr. Aho’s injury “did not arise out of” his employment with RTI and reversed the Commission. Essentially, the trial court held that there was no “casual connection” between the injury and the work.

The Eleventh District was faced with the issue of whether an injury resulting from “normal activity” can be compensable. Starting with the definition of injury in § 4123.01(C), the Court of Appeals found no dispute that the injury occurred “in the course of” Mr. Aho’s employment. Instead, the analysis centered on whether it “arose out of” his employment. Citing theBralley v. Daugherty, 61 Ohio St. 2d 302 (1980) case, the court indicated the test is, whether a causal connection existed between the employee’s injury and his employment either through the activities, the conditions or the environment of the employment – the totality of the circumstances test.

The trial court had found that Mr. Aho’s climbing of the stairs to be a “normal activity of daily life.” However, the Eleventh District found that “climbing this particular unlit staircase is only associated with Mr. Aho performing a necessary function of his job duties.” The court distinguished Mr. Aho’s situation from other cases where a claim was denied for involving a “normal movement that could easily have occurred at home or any other place.” Here, because Mr. Aho, in his testimony, could not identify the origin of the knee injury, other than his foot hit the stair tread “awkwardly,” an inference arises that it is traceable to some ordinary, yet unidentified risk to which Mr. Aho was exposed to on RTI’s premises.

Notably, given the discussion of idiopathic injuries about in theMiller case, here RTI did not argue in its trial court motion for summary judgment that Mr. Aho’s injury was idiopathic, and therefore the Eleventh District did not opine on that issue.

Coming and Going

Rees v. University Hosps., 8th Dist. No. 104848, 2017-Ohio-1372 (4/13/17).

In Rees, the Eighth District Court of Appeals dealt with the issue of whether an employee on route to a required training class was in the course and scope of her duties as a nurse. On January 29, 2015, Ms. Rees was scheduled to participate in a CPR training class which was required for her continued employment with University Hospital (UH) and which was offered by UH at its main campus. Ms. Rees, like other UH employees, was paid her normal wage to attend the class and was registered for her class by her supervisor. Ms. Rees fell on the street adjacent to the parking lot at UH’s main campus walking into the training room and sustained several injuries. Her claim for workers’ compensation benefits was denied at all levels of the Industrial Commission. Her appeal into the common pleas court went through to a trial on the merits where the trial court reversed and granted her right to participate.

On appeal before the Eighth District, the Court of Appeals agreed with the trial court and ruled that it did not err in ruling that Ms. Rees was injured within the course of and arising out of her employment with UH. The court first dealt with whether Ms. Rees had demonstrated that her injury occurred “in the course of employment.” The Eighth District cited prior case law holding that “in the course of employment” limits compensable injuries to those sustained while “performing a required duty in the employer’s service” and is compensable if it is “sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer’s business.” Applying to the facts here, Ms. Rees demonstrated that she was instructed to perform this task by her supervisor, also an employee of UH and was within the scope of her employment.

Next the court looked at the causal connection between the injury and employment to determine whether Ms. Rees had demonstrated that the injury “arose out of” the course of the employment relationship. The court found that the area where the accident occurred was in a public street adjacent to the UH parking lot and while UH did not maintain control over that street, such factor was not dispositive. Here, the court cited the Ohio Supreme Court decision in Baughman v. Eaton Corp., 62 Ohio St. 2d 62 (1980), where benefits were granted to an employee when he was injured after he fell in a public street walking from the employer’s parking lot to the employer’s factory. The court also found that UH received a benefit from Ms. Rees’ presence at the class. The court distinguished the Rees case from others with very similar facts by focusing on her presence within the “zone of employment.”

Franklin v. BHC Servs., Inc., 8th Dist. No. 104695, 2017-Ohio-655 (2/23/17)

The compensability of an injury for a home health nurse travelling between clients raised itself again in the Franklin case before the Eighth District. Ms. Franklin had to travel between the homes of her employer’s clients to do her work as a home health aide. While the job required visits to multiple clients during a given day, the employer only paid employees like Franklin for the time spent at a client’s home (but did reimburse for mileage). Franklin was injured in a car accident driving from one client’s home to another. She filed a workers’ compensation claim which was denied by the Commission. The trial court granted summary judgment in favor of the employer and ruled that “as a home health aide, Plaintiff is a fixed-situs employee. Her injury did not arise out of her employment and the coming-and-going rule bars her claim. No exceptions apply.”

The Eighth District Court of Appeals reversed the trial court. First, in considering whether Ms. Franklin was indeed a “fixed-situs employee” the court found a split among the districts: some holding home health aides to be fixed-situs (Fourth, Fifth, and Ninth) and some finding home health aides to not be fixed-situs (Fifth and Twelfth). Two prior decisions in the Eighth District also were split. The court ultimately found that there are genuine issues of materials fact as to whether Franklin was a fixed-situs employee, making summary judgment improper. The court then looked to the potential exceptions to the coming and going rule, and applied the “totality of the circumstances” test. The ruling was that the totality of the circumstances surrounding the accident created a causal connection between the injury and the employment for Ms. Franklin, and again, therefore summary judgment was improper. Notably, the factors deemed significant by the court included that it was unclear who owned the car, whether Franklin was proceeding directly to the next patient’s house, the proximity of the accident to the second patient, the logically related of the travel to her business and the benefit the employer received from her presence at the scene of the accident.

Death Claim/Substitution

Zebrasky v. Discount Drug Mart, Inc., 8th Dist. No. 105087, 2017-Ohio-4446 (6/22/17).

Ms. Zebrasky filed a .512 appeal in court from the administrative denial of her claim. She died while the claim was pending in court. The employer filed a motion to dismiss, claiming the workers’ compensation claim had “abated” when she died. Her counsel argued that Ohio Rev. Code § 4123.60 applied and Mr. Zebrasky could “stand in her shoes” and pursue her appeal as a dependent. Section 4123.60 provides that if a decedent would have been lawfully entitled to have applied for an award at the time of his death then the BWC may make a compensation award. The Court of Appeals ruled that although a deceased claimant’s dependents may pursue their own claims under § 4123.60 predicated upon the injury to the claimant, the surviving spouse of a deceased claimant cannot simply “step into the shoes” of the deceased claimant and continue to pursue the deceased claimant’s appeal of his or her workers’ compensation claim after the claimant’s death.

Permanent Partial Compensation

State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Industrial Comm’n, 2017-Ohio-7577 (09/14/17).

Ms. Redwine was granted permanent total compensation based on the Commission’s finding that her psychological condition prevented her from performing sustained remunerative employment. She subsequently filed for an award of permanent partial impairment, but based solely on her physical allowances, not her psychological. The Commission granted Ms. Redwine a PPD award. The employer appealed the Commission’s ruling in mandamus and the Court of Appeals denied the writ. On appeal before the Ohio Supreme Court, the court of appeals’ decision was reversed. The Court engaged in an analysis of statutory authority for concurrent awards of PPD and PTD. The Court noted statutory authority for payment of concurrent awards in other limited instances (i.e. PPD and TTD; PTD and scheduled loss), but noted that neither Ohio Rev. Code § 4123.57 or Ohio Rev. Code § 4123.58 expressly authorize concurrent payment of PPD and PTD compensation. The Court viewed this “conspicuous absence” as a sign of legislative intent to prohibit the simultaneous receipt of these benefits. In its review of prior case law to determine if there were other circumstances where PPD and PTD were award simultaneously, the Court made a bright line distinction between such awards being sought by the same claimant in different claims as opposed to the same claimant seeking both awards in the same claim. Ms. Redwine then filed a Motion for Reconsideration. The Ohio Supreme Court concluded it had reached the proper conclusion and ordered the Industrial Committee vacate the PPD award.

Permanent Total Compensation

State ex rel. McKee v. Union Metal Corp., 2017-Ohio-5541 (6/29/17).

In this recent case, the Supreme Court affirmed the Tenth District’s denial of the employee’s request for mandamus that would compel the Commission to award him permanent total compensation. Mr. McKee was injured in 1993 in the course and scope of his employment as an auto welder with Union Metal Corporation. His claim was allowed for cervical strain, focal spinal stenosis due to marked degenerative disc bulge and spur formation, and neurotic depression. His first request for PTD in 1999 was denied based on a finding that Mr. McKee’s disability was not total and he was capable of performing entry-level work. Fourteen years later he filed another PTD application. Upon consideration, the Staff Hearing Officer found no evidence that Mr. McKee had worked or even looked for work since 1998 and that he was receiving SSDI benefits. The SHO denied the PTD application finding that Mr. McKee had voluntarily abandoned the workforce and effectively retired for reasons other than the allowed conditions in the claim.

The Court held that the Commission’s order with the finding of voluntary abandonment was supported by some evidence in the record: (1) the Commission’s 2000 finding (based on two medical reports and a vocational assessment) that Mr. McKee retained the capacity to perform remunerative employment (which Mr. McKee never appealed); and (2) the absence of evidence in the record that he had worked, had been unable to find work or had attempted vocational retraining since 1998. The Court rejected Mr. McKee’s argument that he did not voluntarily abandon his employment but that he stopped working in 1998 based on the advice of his physician and psychologist, and citing to State ex rel. Kroger Co. v. Paysen, 109 Ohio St. 3d 155, 2006-Ohio3057, for the proposition that an injured worker has an absolute right to rely on the advice of a physician regarding his ability to engage in gainful employment. The Court stated that the medical reports filed on his behalf in the 2000 PTD application did not advise him he must stop working, and Paysen involved a PTD award after refused to accept a light-duty job (which the Court found inconsistent with allowed conditions) and was not applicable to the facts of Mr. McKee’s case.

State ex rel. Bonnlander v. Hamon, 2017-Ohio-4003 (5/30/17).

Mr. Bonnlander was injured in a motor vehicle accident in 1992. Since the injury, Mr. Bonnlander worked various jobs in the construction industry and for the postal service. After he applied for permanent total disability, the Industrial Commission filed reports from Drs. Brannan, MD, and Sinha, PhD, which opined that Mr. Bonnlander could work “part-time, up to four hours a day” with limitations. Based on these reports, the Commission denied permanent total stating in its Order that Bonnlander “could engage [in] sedentary employment activity which involves part-time work, up to four hours a day and also involves routine employment and minimal new learning on an ongoing basis. The sedentary work should also avoid overhead use of the right arm and avoid excessive lifting, bending and twisting.” Upon appeal, the Tenth District Court of Appeals adopted the magistrate’s opinion, which held that the reports of Drs. Brannan and Sinha met the standard for part-time work under prior case law.

The Supreme Court affirmed the denial of Mr. Bonnlander’s request for mandamus. Specifically, the Court agreed with the Commission that four hours of a work day is not a threshold requirement for “part-time sustained remunerative employment” and that such a bright-line rule would interfere with the commission’s role as finder of fact and exclusive evaluator of disability. The question to be answered by the Commission on PTD is whether the claimant can perform sustained remunerative employment, and Bonnlander now stands for the principal that such question will be determined on a case-by-case basis, and there is no set hourly amount a claimant must be capable of working to make that determination.

State ex rel. Manpower of Dayton, Inc. v. Industrial Comm’n, 2016-Ohio7741 (11/16/16).

This case involves the evidence cited to support a Commission’s finding of permanent total disability. Ms. Fox filed an application for PTD supported by the medical reports of Dr. Kenneth J. Manges, PhD. The Commission’s medical examiners also found Ms. Fox to be at maximum medical improvement and incapable of sustained remunerative employment based on its medical examiners, Dr. James Lutz, MD, and Dr. Thomas Heitkemper, PhD. The Commission granted the PTD application based on all three reports, finding her medically unable of working. The order stated it was based solely on medical impairment caused by her allowed conditions, and not on any of her nonmedical disability factors.

Manpower sought mandamus in the Tenth District arguing the Commission’s order none of the medical evidence cited by the Commission—the reports of all three medical examiners—was “some evidence” in the record to support the grant of permanent total. First, the Court rejected Manpower’s argument that Dr. Manges’ impairment report focused on nonmedical factors to support his position that Ms. Fox was disabled. The Court found that Dr. Manges’ opinion was that Ms. Fox was disabled due to the effects of her injury based on her allowed conditions, without consideration of nonmedical factors. Next, the Court rejected Manpower’s argument that Dr. Lutz’s opinion that Ms. Fox could not work was contradicted by his description of her activities of daily living. Lastly, the Court rejected Manpower’s argument challenging the evidentiary value of Dr. Heitkemper’s report because of his use of the word “medical” in rendering his opinion to a “reasonable degree of medical/psychological probability.” The Court found that under Ohio Admin. Code § 4121-3-34(C)(1), a psychologist may provide “medical” evidence in support of an application for PTD.

State ex rel. Penske Truck Leasing Co., LP v. Industrial Comm’n, 10 Dist. No. 15AP-223, 2017-Ohio-1119 (3/28/17).

Ms. Fizer sustained an injury in 2001 while employed as a driver for Penske, and subsequently a claim was assigned as No. 01-865473 for the condition of “cervical strain” (the “2001 claim”). She sustained a second injury in January 2004, which was assigned claim No. 04-800300 and allowed for the conditions of “lumbar strain, left rotator cuff strain, and adhesive capsulitis of left shoulder” (the “2004 claim). Finally, she sustained a third injury in June 2007 for a subsequent employer, assigned claim No. 07-350194 and allowed for “neck strain, left shoulder strain, disc bulge with compression at C5-C7 and recurrent depressive psychosis-severe” (the “2007 claim”). After filing an application for permanent total disability, the Commission’s medical examiner, Dr. Bond, issued a report with respect to all the allowed physical conditions in all three claims determining that Ms. Fizer had a “34 percent whole person impairment” for all the allowed conditions and was capable of performing sedentary work. Dr. Chatterjee did find 19 percent whole person impairment for the allowed psychological claim in the 2007 claim.

The Commission order granting PTD compensation was based on the reports of Dr. Bond and Dr. Chatterjee and allocated the award among the three claims (78 percent to 2007 claim, 13 percent to 2004 claim, and 9 percent to 2001 claim). In its request for mandamus before the Tenth District Court of Appeals, Penske argued that the report of Dr. Bond failed to separate out the claims in her impairment analysis despite an overlap between the body parts affected by the allowed conditions. Penske’s argument was that the 2001 claim with the only allowed condition of cervical strain had not resulted in significant treatment while the 2007 claim, also involving a neck strain and cervical disc bulges had resulted in five surgeries.

The magistrate found that the report of Dr. Bond failed to indicate the 2001 claim contributed to Ms. Fizer’s permanent total disability (i.e., her ability to engage in sustained remunerative employment) and the Tenth District agreed, finding the evidence does not support the Commission’s allocation of 9 percent of the PTD award to the 2001 claim. Further, the magistrate found the 13 percent allocation to the 2004 award an abuse of the Commission’s discretion because Dr. Bond’s report did not assign a whole person impairment rating as to each of the allowed physical conditions but instead by “body part” or “body area.” The Tenth District agreed with the magistrate, finding that while there is some evidence from Dr. Bond’s report of medical impairment in the 2004 claim, the Commission’s order does not adequately explain what percentage of impairment is attributable to the 2004 claim.

Temporary Total Compensation

State ex rel. James v. Wal-Mart Stores, Inc., 2017-Ohio-1426 (4/20/17).

This case involves eligibility for temporary total compensation in the context of the voluntary abandonment doctrine. Mr. James was injured in the course of his employment with Wal-Mart in 2004. After being released by his doctor with no restrictions the following year, he returned to work for Wal-Mart. He quit his job in April 2007 and then subsequently worked for Petco and then a company called Casper Transport. Casper terminated Mr. James in 2007 for excessive absenteeism. He has not worked since that termination and filed a motion seeking temporary total benefits in 2007. The Commission denied his request for TTD finding that he had voluntarily abandoned his employment. On mandamus before the Tenth District, a limited writ was issued ordering the Commission to consider whether State ex rel. Estes Express Lines v. Industrial Comm’n, 10th Dist. No. 08AP-569, 2009-Ohio-2148 applied. In Estes, the Tenth District found the injured worker to be eligible for TTD when he was laid off because the worker “had submitted medical evidence substantiating that his disability existed at the time of his layoff.”

The Court reversed the Tenth District and denied the limited writ. As prior court doctrine has borne out, an injured worker loses TTD eligibility when he or she voluntarily abandons his or her employment. If one returns to the workforce after abandoning the employment, eligibility for TTD is regained. However, such an injured worker will be eligible for TTD, if, due to the original industrial injury the claimant becomes temporarily and totally disabled at the new job. Here, the Court characterized the status of Mr. James’ departure from Wal-Mart and subsequent employment as follows: Mr. James quit his job at Wal-Mart to seek other employment and his departure was therefore “voluntary”; his departure from his employment from the original injury was not due to the allowed conditions in the workers’ compensation claim; and his subsequent departure from the job at Casper was not due to the allowed conditions in the claim either. Because the record indicates Mr. James was fired due to absenteeism and no evidence was offered showing those absences were due to his prior workplace injury, he was not eligible for temporary total benefits.

State ex rel. Cordell v. Pallet Companies, Inc., 149 Ohio St. 3d 483, 2016-Ohio-8446 (12/29/16).

The Cordell case is important for understanding the current status of the voluntary abandonment doctrine in the context of a positive post-injury drug test. Here the Supreme Court narrowed the circumstances that would make an injured worker ineligible to collect temporary total under the voluntary abandonment doctrine. The employer, Pallet, had a typical drug-free-workplace policy which prohibited the use of illegal substances “at any time whether on or off duty.” Mr. Cordell broke his leg in the course and scope of his employment at Pallet and subsequently failed a routine post-accident drug screen which was positive for marijuana. Mr. Cordell was terminated immediately after Pallet became away of the positive drug screen.

At the Industrial Commission, Pallet did not contest the allowance of the claim itself, conceding that the drug use had not caused the accident itself (it was due to a fall off a tow motor that occurred when a truck pulled away from a loading dock too quickly). The Commission denied TTD to Mr. Cordell finding that he had voluntarily abandoned his employment. In a divided panel decision by the Commission, it was found that the Staff Hearing Officer had failed to apply State ex rel. PaySource USA, Inc. v. Industrial Comm’n, 10th Dist. Franklin No. 08AP-677(June 30, 2009), wherein the Tenth District had found the injured worker abandoned his employment when he used drugs prior to the injury, which severed any connection between the workplace injury and the loss of wages. The panel found that Mr. Cordell “sustained an injury in the course of and arising out of his employment on 2/16/12,” but he voluntarily abandoned his employment by use of marijuana prior to the industrial injury making him ineligible for TTD. The dissenting commissioner argued that PaySource had been discredited and urged granting the award of TTD under the decision of State ex rel. Gross v. Industrial Comm’n, 115 Ohio St. 3d 249 (2007) (“Gross II”).

The Tenth District agreed with the dissenting commissioner and granted Mr. Cordell’s writ. The Ohio Supreme Court affirmed and its decision has narrowing consequences on eligibility for TTD after a post-accident drug test. The Court held that an injured worker fired after their injury “for conduct prior to and unrelated to” the injury does not lose eligibility for TTD if (1) the discovery of the dischargeable offense occurred because of the injury; and (2) at the time of the termination, the employee was incapable of returning to work as a result of the allowed conditions in the claim.

Therefore, in practice, the Court has extended the Gross II rationale to pre-injury conduct, holding that the fact that Pallet had the right to fire Mr. Cordell does not change the fact that Mr. Cordell was injured in the course and scope of his employment and that at the time of his termination, he was temporarily and totally disabled.

State ex rel. Klein v. Precision Excavating & Grading Co., 10th Dist. No. 15AP-908, 2017-Ohio-1020 (3/21/17).

Mr. Klein was injured on November 5, 2014, while working for Precision Excavating and Grading Co. (Precision). In a follow-up appointment with Dr. Robert Marley, a MEDCO-14 was completed, which indicated that Mr. Klein was temporarily and totally disabled and unable to work from 11/5/14 to 1/5/15. Mr. Klein never returned to his employment after the date of injury. The record before the Commission contained evidence that Mr. Klein had planned to quit his job and move to Florida before the date of injury. A witness testified at the

hearing that Mr. Klein called her on October 31 (before the injury) stating he was moving to Florida and asked the procedure for quitting the job at Precision. Further evidence showed Mr. Klein indicated to another employee on November 3rd his intent to give his two-week notice and go to work in Florida. Finally, the MCO’s notes in the record show Mr. Klein’s indications of a plan to move to Florida on November 20th and a note that he had so moved by November 24th. Mr. Klein applied for TTD and the Commission granted benefits for a closed period of November 6th through November 19th (finding benefits after 11/19 to be barred for voluntary abandonment of his employment.)

Mr. Klein filed in a mandamus petition in the Tenth District Court of Appeals requesting an order vacating the Commission’s denial of TTD benefits from November 20th onward. In granting a limited writ, the Court of Appeals looked to the prior case law including State ex rel. Reitter Stucco, Inc. v. Industrial Comm’n, 117 Ohio St. 3d 71, 2008-Ohio-499. In Reitter, the Court found that Mr. Mayle, who was fired while on TTD, did not lose eligibility for TTD even if the requirements underState ex rel. Louisiana Pacific Corp. v. Industrial Comm’n, 72 Ohio St. 3d 401 (1995), were met. The Court stated that “eligibility for temporary total compensation remains if the claimant was still disabled at the time the discharge occurred.”

In the Klein opinion, the Tenth District discusses the voluntary abandonment doctrine at length, citing to both the Pretty Products, Hildebrand and Cordell cases and trying to compare and distinguish the facts before them. In the end, the Court of Appeals found that the key issue was whether Mr. Klein was medically disabled beginning of November 20th. Unlike inHildrebrand, the facts in Klein did not show a release by his doctor to return to light duty which, coupled with a concurrent resignation by the worker broke the nexus between the injury and the employment. Therefore, the Tenth District found that, like in Cordell, if the injured worker is medically incapable of returning to work at the time of the departure from the employment, eligibility for TTD remains. 

“The Calfee Corner” – Recent Calfee Cases Before the Industrial Commission and Courts of Ohio

 State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Industrial Comm’n, 2016-Ohio-7988 (12/6/16).

Ms. Earles was injured in 2011 in the course and scope of her employment. She returned to work subsequently with temporary restrictions on climbing, pushing, lifting, and carrying. There were no restrictions on the number of hours she could work. Ms.Earles was placed in Goodrich’s light duty/restricted duty program, the conditions of which were set forth in the collective bargaining agreement between Ms. Earles’ union and her employer. The CBA provided that employees on light-duty outside their own job classification would not be eligible for overtime. Ms. Earles filed an application for working wage loss based on her reduction in earnings attributed to lack of overtime in her light-duty position. The district hearing officer denied her application and mailed the order on November 23, 2012. Her union representative filed an appeal of the DHO order 20 days later. At the subsequent hearing the staff hearing officer refused the appeal for lack of jurisdiction because of the untimely appeal.

The Commission later allowed the appeal based on an affidavit of the union representative claiming he did not receive the order until November 29th and therefore the appeal was timely. The Commission then allowed the wage loss application on the merits. Goodrich filed a mandamus action before the Tenth District Court of Appeals. The writ was denied and the Ohio Supreme Court affirmed the denial.

The primary issue before the Court was whether Ms. Earles met the requirement under Ohio Admin. Code § 4125-1-01(A)(15) that her wage loss be “the direct result of physical and psychiatric restrictions caused by the impairment that is causally related to the allowed conditions.” Goodrich argued that since Ms. Earles had no restrictions on the number of hours she could work, her ability to work overtime was not causally related to her allowed conditions, but due to the CBA restrictions. The Court disagreed and ruled that the evidence showed Ms. Earles to have been placed in the light-duty program because of her medical restrictions causally related to the allowed conditions in her claim. The Court further ruled that the appeal of the DHO order was timely and rejected the employer’s argument that the Commission abused its discretion in not applying the “mailbox rule” to calculate the appeal time. Without any analysis on the mailbox rule case law, the Court, like the Commission and Tenth District, relied upon the affidavit of the union representative that he did not receive the appeal for six days after mailing.

State ex rel. Mike Coates Constr. Inc. v. Industrial Comm’n, 10th Dist. No. 16AP-114, 2017-Ohio-718 (2/28/17).

Mr. Van Buskirk sought treatment on September 4, 2002, regarding a back injury that had allegedly occurred the day before. His claim was allowed for several conditions and he began receiving temporary total compensation from September 5, 2002, onward. Several years later, the BWC’s Special Investigations Department received information that Mr. Van Buskirk had been working during the period he was receiving temporary total. The BWC moved for a declaration of overpayment for TTD benefits paid from 11/20/02 through the present. After a hearing, the District Hearing Officer ruled Mr. VanBuskirk had committed fraud and ordered almost twelve years of overpayment for TTD benefits.

In July 2015, the employer filed a motion invoking continuing jurisdiction under OhioRev. Code § 4123.52 to disallow the entire industrial claim based on the DHO Order that determined the compensation was fraudulently obtained. After administrative hearings on the employer’s motion, which included record evidence in the form of affidavits of coworkers stating they did not witness the alleged Van Buskirk injury, the motion was denied and the employer filed a mandamus action.

The Tenth District Court of Appeals denied the employer’s request for a writ, finding the Commission did not abuse its discretion. The court opined that the employer here was looking for an “inference” from the SID report and the prior DHO order finding Mr. VanBuskirk had fraudulently obtained compensation that he also fraudulently obtained the claim allowance. The court indicated it was not required to accept such inference and would not do so here. Essentially, while noting the Commission’s ability to draw reasonable inferences, the Court of Appeals ruled that “concluding that the perpetration of a fraud in obtained TTD compensation does not necessarily mean that the September 3, 2002, injury did not occur, and the SHO simply relied on his own common sense in evaluating the evidence.”

John R. (14-872004) and Ronald B. (16-837301) – Strong preparation of evidence and testimony continues to defeat attempts of independent contractor drivers to be recognized as “employees” (5/6/17 and 2/23/17).

Mr. R was a delivery driver who was injured in a car accident while performing his deliveries near Bellefontaine, Ohio. He had entered into an Owner/Operator Agreement in 2012 under which he agreed to provide delivery services which entailed picking up automobile parts from an Advanced Auto parts hub in one Ohio city and delivery of those auto parts to three other cities on a daily route. Mr. R. argued that he was the employee of the other party to the Agreement, the Alleged Employer. In support of its defense against the claim, the Alleged Employer offered both documentation of the manner and means of Mr. R’s performance of his work, as well as testimony of a witness with knowledge of the operations.

Based upon the evidence and testimony at the hearing, the Ohio Industrial Commission denied the claim and found that Mr. R. had failed to establish the existence of an employer-employee relationship with the Alleged Employer, and to the contrary, the Commission found Mr. R. to be an independent contractor on the date of his injury. The Commission found that the evidence and testimony established these facts: Mr. R. controlled the manner and means of providing his delivery services; Mr. R. provided his own vehicle, paid for his own fuel and maintenance; the Alleged Employer did not dispatch Mr. R. on any particular route; Mr. R. controlled which hours he worked and was free  to work for other entities; Mr. R. was free to terminate the relationship at any time and was also free to reject any assignments; Mr. R. was paid “per route/delivery” not by a wage; and Mr. R. was issued 1099 statements from the Alleged Employer and filed his taxes as self-employed.

Similarly, Mr. B. also alleged an employer-employee relationship with the company with which he entered into an independent contractor agreement. Mr. B., a delivery driver, was injured when unloading materials from his truck and was struck with a heavy box that was unsecured. In defense of Mr. B’s claim of employment, this Alleged Employer also supplied the Industrial Commission with documentary evidence of the independent contractor relationship, as well as two witnesses with personal knowledge of the day-to-day operations of the relationship.

The Industrial Commission disallowed Mr. B’s claim finding that he was not an employee of the Alleged Employer, but an independent contractor. The Alleged Employer offered evidence and testimony to establish the defense that it insufficient control over the manner and means of Mr. B’s performance of his work, failing to establish an employment relationship under Ohio law for workers’ compensation purposes. The commission determined that Mr. B was paid a percentage of each load delivery – not a wage; Mr. B was free to accept or reject each and every load offered; the equipment used, including the truck, was owned by Mr. B.; Mr. B set his own hours subject only to the delivery deadline set by the customer (not the Alleged Employer); and Mr. B was not told what specific route he had to take for his deliveries.

Allegations of employment relationships in truck delivery matters are very fact specific. However, diligent preparation of documents and testimony establishing the control factors on the performance of the work rest with the driver (or some third party) and not the Alleged Employer. Successful results before the Ohio Industrial Commission reflect this diligent preparation. The denial of Mr. R’s claim is now in Court on Mr. R’s appeal on the denial of an employment relationship. Mr. B. did not appeal the Commission’s final order denying his claim.

Barnabas B. (16-823848) – The entity that pays the Claimant’s wages on the date of injury is not always deemed to be the “employer” for workers’ compensation purposes. (5/26/17)

Officer B. is a police officer for the City’s police department. Pursuant to a secondary employment agreement between the City and the Employer, Officer B. was working security at Employer’s premises during his off-duty time with the City, and was injured when he fell off a Segway while pursuing the investigation of a suspect as directed by a separate State law enforcement agency. Officer B. claimed that he was employed by the Employer at the time of injury because he was working security for it at the time, was being paid at that time by the Employer, and the injury occurred on the Employer’s property.

At the hearing before the Ohio Industrial Commission, Officer B. and the City argued that the claim should be assigned to the Employer. In defense, the Employer provided the “Acknowledgment of Secondary Employment” agreement entered between the City and the Employer and provided its head of security to explain both the agreement and the actual implementation of the arrangement to the Commission.  The document stated under “Workers’ Compensation” heading that “[i]f an officer is injured while acting in his capacity as a law enforcement officer, the officer’s injury will be covered by the [City’s] police department. However, if the officer receives a non-police related injury while working for [the Employer], [the Employer’s] workers’ compensation must cover it.”

The Employer’s witness explained the nature of the arrangement, that the Employer hires the “police authority,” not the individual police officers such as Officer B.  If a police officer were to arrest somebody while working for the Employer, the officer would be working within his duties as a police officer for the City, not for the Employer.  Further, the Commission agreed with the Employer that under the arrangement, if the police officer were to use force, he would be within his capacity as a police officer for the City; but if the police officer were to happen to slip and fall coming out of the restroom at the Employer’s premises while working for the Employer, then that would be covered under the Employer’s workers’ compensation policy.

The Commission, based on this testimony, found that the facts that Officer B. was on duty with the Employer and was paid by the Employer at the time of the injury were not determinative. Instead, the fact that Officer B. had been dispatched to investigate and arrest a suspect by a totally separate state law enforcement agency when he was injured, demonstrated he was working within his capacity as a law enforcement officer and his injury would be covered by the City.

Officer B., having his injury compensated under the City’s policy, did not appeal. The City, despite contesting the claim at the first level hearing before the Commission, did not appeal the ruling and accepted the claim.

Industrial Commission Update

The Industrial Commission has issued two Memoranda based on two of the noteworthy court decisions discussed above.  These Memoranda are designed to provide “guidance” to Hearing Officers in applying the law as interpreted by the Ohio Supreme Court.

Memo D5.  Voluntary Abandonment (Effective 05/17/2017). 

This Memo is based on the Cordell case.  It differentiates three (3) logical types of voluntary abandonment.  The most straightforward is voluntary retirement from the workforce.  If the retirement is based on the “voluntary” choice of the worker then future temporary total or permanent total benefits are precluded.  If the retirement is due to the allowed conditions in the claim, then it is not considered “voluntary.”  Future compensation for being off work is possible if the appropriate criteria for compensation have been met.

Closely related to voluntary retirement is “abandonment of the entire workforce.”  This may or may not be a result of the industrial injury.  When it does result from an industrial injury, the correct inquiry centers on whether the worker has sought other employment.  A typical scenario would be an injury followed by some period of temporary total, an end to the temporary total, and future medical treatment.   If there has beenno attempt to re-enter the workforce, future wage replacement benefits are precluded regardless of whether or not the worker could return to the former position of employment.

The third type of voluntary abandonment is described by Cordell and requires review on a case-by-case basis.  In pursuing this inquiry, theCordell test should be addressed: off-work benefits may not be denied where: (1) the worker remained medically incapable of returning to work due to the injury; and (2) discovery of the dischargeable offense occurredbecause of the injury.        

Memo B2.  Substantial Aggravation (Effective 08/25/2017). 

In light of the Clendenin case, the Industrial Commission instructed Hearing Officers to be especially clear on the bases of decisions for substantial aggravations.  The “substantial aggravation” standard only applies to claimsafter August 25, 2006, the date on which this legal provision became effective.  Similarly, “abatement” of the substantially aggravated condition is only possible with these claims. 

By legal definition, a substantial aggravation must be evidenced by objective diagnostic findings, objective clinical findings, or objective test results.  Whether a substantial aggravation has occurred is alegal rather than medical determination.  “...(A)lthough it is necessary that the hearing office rely on medical evidence that provides the necessary documentation pursuant to the statute, it is not necessary that the relied upon medical evidence contain an opinion as to substantial aggravation.”

Consistent with Clendenin, finding that a substantially aggravated condition has abated, or returned to baseline, is an extent of disability decision which isnot appealable to common pleas court.  The claim remains allowed for the substantial aggravation.  “Hearing officers are to handle requests for additional compensation or treatment after an abatement finding as they do requests for a new period of temporary total disability after a finding of maximum medical improvement.”

Bureau of Workers’ Compensation News

BWC has promulgated two new rules in the Ohio Administrative Code (OAC). 

OAC 4123-6-21.7 “Utilization of opioids in the subacute or chronic phases of pain treatment for a work-related injury or occupational disease” has emerged from BWC’s efforts resulting in a 49% reduction in prescribed opioid doses from 2011 through 2016.  The Rule governs reimbursement of opioid prescriptions in the subacute phase of pain treatment, at high doses, or in the chronic phase of pain treatment, and for discontinuing opioids in the chronic phase of pain treatment.  The Rule emphasizes the prescriber’s sound clinical judgment and adherence to prescribing guidelines from the Ohio State Medical Board.

In the subacute phase of pain treatment, escalating the dosing regimen beyond fifty (50) milligrams morphine equivalent dose (MED) per day must meet certain requirements.  The time frame is six (6) weeks after the date of injury or surgery related to the allowed conditions, whichever occurs first.  First, an individualized treatment plan with clinical rationale must be developed.  Second, a clinically validated tool for risk assessment and drug testing must be utilized.  Finally, the worker must demonstrate “clinically meaningful improvement in pain and function” (CMIF). 

For reimbursements at high doses, or in the chronic phase of pain treatment, the criteria are eighty (80) MED and twelve (12) weeks to trigger the above three requirements.  In addition, there must be documentation that reasonable alternatives to opioids have been tried and failed.  For one hundred twenty (120) MED, added criteria include a risk benefit assessment, consultation with a pain management specialist, evidence of the worker’s informed consent, and appropriate additional consultations if the worker has a substance abuse issue or poorly controlled mental health disorder. 

More than twelve (12) weeks after the date of injury or surgery related to the allowed conditions, reimbursement will be provided when standard dose tapering schedules have been utilized.  During the following eighteen (18) month period, a single designated prescriber must be selected by the injured worker.  Formulary medications as adjuncts to withdrawal from opioids will be reimbursed.  With appropriate documentation, up to thirty (30) days of inpatient detoxification also will be reimbursed.

OAC 4123-6-32 “Payment for lumbar fusion surgery” mandates three (3) prerequisites for authorization.  First, there must be at least sixty (60) days of conservative care emphasizing physical reconditioning, opioid avoidance, and the provider not “catastrophizing the explanation of lumbar MRI findings.”  Second, the operating surgeon must have evaluated the injured worker on at least two occasions before requesting authorization for surgery.  Third, the injured worker must have undergone a comprehensive evaluation with coordination between the treating physician and the operating surgeon.

The Rule differentiates between injured workers with no prior history of lumbar fusion from those who have a history of prior lumbar surgery.  For both categories, the Rule lists various objective signs/symptoms which must be present for the surgery to be authorized.  The treating physician and the operating surgeon are required to follow the injured worker until maximum medical improvement has been reached.  An Appendix to Rule OAC 4123-6-32, “What BWC Wants You to Know About Lumbar Fusion Surgery,” must be shared with the injured worker and signed by him or her, the Physician of Record, and the Operating Surgeon.

Health and Behavioral Assessment Intervention (HBAI) The BWC has created a new mechanism for the HBAI. It is designed to address cognitive, emotional, social, behavioral, and psychological issues which may interfere with effective healing from an industrial injury.  The HBAI is not intended to focus on mental health issues created by the physical injury which could become the subject of an additional claim allowance.  The BWC designed HBAI as a tool to help the attending physician design a more effective treatment regimen.

HBAI has two components.  The first is the Assessment, for which approval must be sought from the Managed Care Organization.  Once approved, the attending physician learns the issues which may be impeding the patient’s recovery.  The next step is the Intervention, which also has to be separately approved by the Managed Care Organization.  According to the BWC, intervention services generally take the form of limited coaching and/or counseling sessions.  It is important to emphasize that this is a new program for which there have been no results.

“The Calfee Corner” - Recent Successes Before the Industrial Commission of Ohio and Ohio Courts

Independent Contractors

In one of the few new decisions upholding independent contractor status, the Supreme Court of Ohio recently turned down the appeal of a “short haul” delivery truck driver seeking to be classified as an “employee” so as to be eligible for benefits under the Workers’ Compensation Act of Ohio.  In Barcus v Administrator, Ohio BWC (Franklin Cty C.A. Case No. 14-AP-942); app. denied2016-Ohio-467 (2/10/16), the State Supreme Court upheld lower court and Ohio Industrial Commission determinations that the relationship between driver Barcus and alleged employer CEVA Freight was an independent contractor relationship.

Barcus was a truck driver who delivered “home delivery” freight for CEVA Freight in a dedicated “short-haul” regional area.  Barcus was injured while working for CEVA and sought workers’ compensation benefits.  However, Barcus leased his truck to CEVA, signed an “independent contractor” agreement, was compensated on the basis of a percentage of the tariff for each load and not by the hour, and received a 1099 at the end of the year.  Barcus nonetheless argued that the “economic realities” were that he was merely an employee.  Barcus pointed to the everyday routine of his work; specifically, that he was assigned a group of customers that required delivery within a four hour window (albeit in any order that Barcus chose), that CEVA decals and logo were required on the side of his truck, that CEVA mandated a uniform, and that there were various CEVA training and other work requirements, including a drug test.

At an evidentiary hearing before the Ohio Industrial Commission, the alleged employer presented evidence of the independent contractor nature of the relationship and the services performed, including explaining that any apparent employer requirements were actually requirements passed along either from customers or from Department of Transportation (DOT) and/or Federal Motor Carrier Safety (FMCS) regulations.  The Ohio Commission denied Barcus’ claim on the basis that he was in fact an independent contractor.

Barcus filed an appeal to the trial level court in Franklin County, Ohio (Columbus).  Prior to a trial by jury on the merits, CEVA filed a motion to dismiss the case (summary judgment), supported by a transcript of the proceedings before the Industrial Commission demonstrating the evidence of the independent contractor relationship.  The trial court granted CEVA’s summary judgment motion. 

Barcus filed an appeal to the Ohio Tenth District Court of Appeals.  After briefing and oral argument, the appeals court upheld the trial court’s ruling.  The court’s decision relied upon the long standing “right to control” test and found that most factors pointed towards an independent contractor relationship (agreement of the parties; method of compensation; ownership and responsibility of the primary tool in question (the truck); right to refuse work).  The Court did note that the decal/logo and uniform requirements might point to an employment relationship, but found that these requirements were, in actuality, DOT requirements.  Furthermore, as the court noted, “as a practical matter, every contract for work reserves to the employer a certain degree of control to enable him to insure that the contract is performed according to specifications.”

Barcus filed a further appeal with the Ohio Supreme Court.  On February 10, 2016, the Court turned down the appeal.  This case can be put on the “short stack” of rulings finding in favor of an independent contractor status in our current legal climate.

Barcus was represented by M. Christopher Kneflin of Fox & Fox Co., L.P.A.; Ohio BWC was represented by Ohio Assistant Attorney General John R. Smart; William L. S. Ross and Christopher M. Ward of Calfee, Halter & Griswold LLP represented CEVA Freight.

Anthony Q (15-356755) -- Ohio jurisdiction found for California employee, (June 3, 2016). A Calfee client faced a tough workers’ compensation coverage situation -- it did not have coverage for its California resident employee who suffered an ankle/foot injury in the course and scope of his California employment for the Ohio-based employer.  Worse yet, the Ohio BWC order denying the claim on jurisdictional grounds was not appealed.

Not to worry.  We filed a motion for “Continuing Jurisdiction” asserting a “clear mistake of law or fact” based on there being sufficient contacts between Claimant’s California-based employment and the State of Ohio to allow for Ohio coverage.  Specifically, evidence was presented at hearing that the contract of employment was entered into in Ohio, Claimant’s work activities were directed from Ohio, he was paid from Ohio, the only state of available coverage was Ohio, and, perhaps, most significant, Claimant’s employment, while not localized in Ohio, did involve regular trips to the Ohio home office.  Thus at least some portion of Claimant’s work actually was performed in Ohio. 

Based on the foregoing, the Ohio Industrial Commission exercised its “Continuing Jurisdiction” and allowed the claim to the relief of both the Claimant and the Employer.

Scott P. (14-811966) -- Changing the theory of causation does not get the Claimant a second bite of the apple at the Industrial Commission. (April 6, 2016)

Mr. P is a delivery driver who fell from the back of his truck, hit his head, and cracked his ribs.  The claim was initially allowed for two rib fractures and an intracranial hemorrhage.  Later, the request for the additional allowances of concussion and post-concussion syndrome were granted.  Soon after came the request for psychological conditions -- “Depressive Disorder, Single Episode, Moderate” and “Adjustment Disorder with Anxiety.”  The theory of causation was that of direct causation.  In support of the allowances, Mr. P submitted a report from his examining psychologist.

In defense of these conditions, the Employer scheduled him for an examination with a psychologist of our choice.  To assist our examiner in making the determination of whether this condition was directly related to the allowed physical conditions received in the fall, we requested and obtained records from Mr. P’s primary care physician.  Our request encompassed records from several years prior to this incident.  In those records, we found that Mr. P, due to anger and anxiety, had been prescribed Xanax for several years before this incident -- a small detail that he forgot to tell his own examining psychologist.   

Based on the report from our doctor and the faulty history provided by the Claimant to his expert, the Industrial Commission denied the requested conditions by direct causation at all levels.  Soon after that denial, Claimant filed a new motion asking for the same conditions based on the theory that the allowed physical conditions “substantially aggravated his pre-existing psychological conditions.” When that new motion arrived at the District Hearing Officer level of the Industrial Commission, the Hearing Officer opined that the Industrial Commission lacked jurisdiction to adjudicate the request for “substantial aggravation of a pre-existing psychological condition” based onStarkey v. Builders FirstSource Ohio Valle, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278 noting that, when a condition is in court on one theory of causation, the Industrial Commission cannot adjudicate that same condition based on a new theory of causation.  The request for substantial aggravation does not change the condition; just the method of causation and that can be litigated in court with the initial theory of causation. 

The denial of the psychological condition is now in Court on the Claimant’s appeal and hopefully, ripe for settlement of the whole claim.

Timothy H. 14-827371 --- Claimant cannot take a 7-year-old rotator cuff tear and turn it into a new tear. (October 2, 2015)

A factory worker, on 4/25/14, pushed a heavy lift device and chain and felt a pain in his right shoulder. The Self-Insured Employer certified the claim for a right shoulder sprain/strain. On 2/9/15, a motion was filed requesting that the claim be additionally allowed for “Supraspinatus Tendon, Substantial Aggravation of AC Joint Arthritis and Undersurface Osteophyte, Degenerative Changes in Right Shoulder Glenoid Labrum and Humeral Head.”  In a strategic decision, it was decided to take a court reporter to the District Hearing Officer hearing and obtain a more detailed medical history from the Claimant, as it was noted that the doctor providing  the causal for all of these conditions was not only his prior surgeon, but also a friend.

After obtaining a more detailed medical history, records were requested from the Claimant’s prior right shoulder surgeries, CD copies of the shoulder MRIs and X-rays.  The Claimant had several previous surgeries on the same rotator cuff -- failed surgeries.  The Claimant argued that prior to this incident there was “a strand” of rotator cuff remaining, and that “strand” was torn by this incident! To disprove this theory, the MRIs and X-rays were re-read by a radiologist specialist and a separate report was obtained from a medical doctor putting all the pieces together. Despite this, the Staff Hearing Officer additionally allowed the claim for “Supraspinatus Tendon, Substantial Aggravation of AC Joint Arthritis and Undersurface Osteophyte, Degenerative Changes in Right Shoulder Glenoid Labrum and Humeral Head.”

Upon review of this Order, an appeal was filed with the Full Industrial Commission.  A Commission appeal must be based on a mistake of fact or law.  The allowance of “Right Shoulder Supraspinatus Tendon” is not a diagnosis -- it is a body part.  Body parts are no longer recognized under Ohio law as conditions or diagnoses.  Further, the Staff Hearing Officer relied on the Employer’s report to allow these conditions -- a clear mistake of fact.  After a Hearing by the Full Commission, all of the requested additional allowances were denied, based on the Employer’s medical report and radiology review. The Self-Insured Employer will not be required to pay for a shoulder replacement under this claim --- a surgery that had been discussed years before this incident!

 

COURT DECISIONS OF NOTE

Violation of Specific Safety Requirement (VSSR)

In State ex rel. Armstrong Steel Erectors, Inc. v. Industrial Commission of Ohio, et al.,144 Ohio St.3d 243, 2015-Ohio-4525 (November 3, 2015), the Ohio Supreme Court denied Armstrong Steel Erector’s request for a writ of mandamus and upheld a VSSR award for the Claimant. The Claimant, Frank Seidita, was an ironworker who was working beneath a bridge decking on top of a concrete pier. Chain link fencing had been strung between piers to catch falling debris and to act as a safety net. Seidita was not wearing a safety harness or fall-protection equipment when he fell through a gap between the pier and fencing.

The Industrial Commission (“IC”) found that Ohio Administrative Code (“O.A.C.”) 4123:1-3-03(L)(1) and (3), regarding the use of safety nets, applied to the case and that it was impractical for the Claimant to use personal protective equipment (“PPE”) based on his testimony. The IC found a VSSR, and a magistrate subsequently agreed. In upholding the VSSR finding, the Ohio Supreme Court rejected the Employer’s unilateral-negligence defense based on the Claimant’s failure to use employer-provided PPE because it found that the Employer had not first complied with the applicable safety regulation requiring the use of safety nets.

In State ex rel. Precision Steel Services, Inc. v. Industrial Commission of Ohio, et al., 2015-Ohio-4798 (November 24, 2015), the Ohio Supreme Court granted the Employer, Precision Steel’s request for a writ of mandamus and vacated the Industrial Commission’s finding of a VSSR. The Claimant, Melvin Myers, was injured when a magnet holding a 1,200 pound piece of metal fell on his hand. The Claimant was operating a Kone XLD ten-ton crane with a magnet attached by wire rope to turn a metal piece he was welding. The wire rope holding the magnet had loops at both ends. The upper loop was attached to the crane, and the smaller loop at the bottom of the wire was attached via hook to the magnet. The hook holding the magnet did not have a latch or clip closing it.

The Industrial Commission found that O.A.C. 4123:1-5-14(G)(1) and 4123:1-5­15(B) applied because the Claimant was operating a power-driven crane. The IC found that the crane had “a defective safety device” because of the missing latch and that such defect required the crane be taken out of service. A magistrate reversed, finding that the cited rules did not provide notice to repair or replace a defective hook safety latch on a crane. The magistrate also found that the hook and safety latch were not “equipment” under 4123:1-5-15(A). The Ohio Supreme Court granted the employer’s writ, finding that neither 4123:1-5-14(G) nor 4123:1-5­15(B) specifically requires a latch to be attached to a crane hook. Therefore, neither rule placed the Employer on notice of a legal obligation to put a latch on a hoist hook, replace a latch on a hook if one is missing, or remove the crane from service because a latch was not on a hook.

Temporary Total Disability (TTD)

In State ex rel. Frank Strahin v. Indus. Comm., 2016-Ohio-1323 (10th Dist. March 29,  2016), the 10th District Court of Appeals affirmed denial of a writ of mandamus and denied the Claimant’s request for TTD compensation. The Claimant, Frank Strahin, was injured in the course and scope of his employment, and his claim was allowed for various left hip and leg conditions. He was released to work full-duty and continued to work full-duty with no restrictions for approximately three years. The Claimant also testified at IC hearings that he had begun “looking into” retirement during this period. He completed retirement forms in October 2012 and indicated his reason for separation was “retirement.” He did not check the provided box for “health” as a reason, and at the time of his separation he was working full duty. His retirement became effective November 1, 2012.

The Claimant argued that there was evidence that his retirement was medically-induced and that he was therefore entitled to TTD compensation. The Claimant saw his physician on October 2, 2012. His physician noted increased pain due to a “flare-up of his meniscus tear.” The Commission and 10th district found this to be insufficient evidence. The Court noted that the Claimant testified at the IC hearings that he was contemplating retirement in June 2012, at which time he was working full duty with no restrictions.  The Claimant also testified that his retirement was motivated at least in part by upcoming changes to the PERS system. Finally, the Court noted that there were no records in the parties’ stipulation of evidence which would indicate that the Clamant was having any problems with his knee or receiving any supportive care for the knee in June 2012.

In State ex rel. Ritzie v. Reece-Campbell, Inc., et al., 2015-Ohio-5224 (December 16, 2015), the Claimant, Fred Ritzie, was seeking temporary total benefits under some very unique circumstances.  The Claimant was originally injured on November 10, 1994, and his claim was allowed for lumbosacral sprain, lumbar disc displacement, and postoperative infection. He returned to work light duty on September 25, 1995. He began treating with Dr. Brian Nobbs in August 2007, and he received temporary total disability (“TTD”) compensation and a 29% permanent partial disability (“PPD”) award over the next two years. The Claimant was then again injured in January 2010 while at work, and his 2010 claim was allowed for neck, upper back, and shoulder injuries. The Claimant settled then settled the 2010 claim on December 7, 2011. He continued lower-back treatments with Dr. Nobbs in 2011 and 2012, and Dr. Nobbs indicated that Claimant’s condition was “chronic but shown to improve with treatment.” In July 2012, the BWC additionally allowed three lumbar conditions in the 1994 claim, and the Claimant requested TTD beginning December 8, 2011 – the day after his 2010 claim settled – based on the new conditions.

The Industrial Commission found that he Claimant had not presented persuasive medical evidence of TTD as of December 8, 2011. It found that Dr. Nobbs’ report indicated the Claimant’s condition was improving and that it did not opine that the Claimant was disabled due to the allowed conditions in the 1994 claim. The appeals court denied the Claimant’s request for mandamus requiring the IC to pay TTD benefits beginning December 8, 2011. The Ohio Supreme Court then upheld denial of a writ of mandamus requested by the Claimant to award him TTD compensation and affirmed the appeals court, again noting that Dr. Nobbs’ notes indicated that the Claimant’s condition improved with treatment and that Dr. Nobbs did not indicate he considered the Claimant’s condition to have deteriorated to the point of TTD. The Court also reiterated that adding new conditions to a claim does not necessarily guarantee the payment of a new period of TTD compensation.

Permanent Total Disability (PTD)

In State ex rel. Boyd v. Scotts Miracle-Gro Co.., 146 Ohio St.3d 3, 2016-Ohio-1508 (April 13, 2016), the Claimant, Robert Boyd had an allowed claim for asbestosis in both lungs.  He then applied for PTD benefits and submitted a report of Dr. Marissa Mertz, M.D., as support.  The IC denied the PTD application based upon the vocational disability factors analysis of the medical reports of Dr. Shadel and Dr. Grodner, on behalf of the Employer and BWC, respectively.  The Claimant then filed a writ of mandamus, arguing that the Commission abused its discretion in relying on the report of Dr. Grodner arguing that “he was not qualified to give an opinion because he did not take x-rays of Boyd and he was not a certified “B reader.” 

The Ohio Supreme Court affirmed the appellate court’s judgment holding that the IC did not abuse its discretion in denying PTD to a worker suffering from asbestosis based on medical from a doctor who was not a certified B reader because IC Resolution R03-1-02, which requires evidence from a certified B reader, only applies to the initial allowance of an asbestosis claim. 

In State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., Slip Opinion No. 2016-Ohio-343 (September 15, 2015), the Ohio Supreme Court found that the Industrial Commission’s failure to send the Employer’s medical reports to independent examining physicians before their examination of the Claimant was not prejudicial when the Commission subsequently provided those reports to the physicians. The Claimant, Robert Mason, was injured while working as a truck driver. He applied for PTD on 2007 but his application was rejected. He again filed his application in July 2009. The Employer informed the IC that it would be submitting medical evidence opposing the application. The Employer filed reports from Drs. Clary, Sterle, and Murphy regarding the psychological and physical conditions in the claim. The IC then set up the Claimant with its own physicians but did not send them copies of the Employer’s medical reports. The IC denied the Employer’s subsequent requests to depose its doctors. Instead, the IC submitted copies of the Employer’s reports to the appropriate doctors and requested an addendum report.

The Employer’s complaint alleged that the IC’s medical reports were flawed because their doctors did not review the Employer’s medical reports before examining the Claimant. The Supreme Court found that there was no dispute that the IC should have sent the Employer’s medical reports to their physicians but failed to do so, albeit in good faith. However, the Court found that the IC’s doctors presumably reached a PTD opinion based on their own exams of the Claimant and not the findings of other physicians. The Court found Employer’s prejudice argument to be speculative as to whether the IC’s doctors would have reached different conclusions had they been provided with the Employer’s medical evidence at first.

In State ex rel. Tradesmen International v. Industrial Commission, et al 143 Ohio St.3d 336, 2015-Ohio-2342 (June 24, 2015), the Ohio Supreme Court affirmed the court of appeals’ denial of the employer’s mandamus request. The Claimant, Raymond Smith, was injured while working for Tradesmen International in 2003. His claim was allowed for low back sprain, right shoulder sprain, cervical and left wrist sprain, right paracentral disc protrusion, chronic pain syndrome, and adjustment disorder with depressed mood. In 2011, the Claimant applied for PTD compensation and submitted a report from his treating physician, Dr. DePaz, which outlined activity restrictions; limited the Claimant to sedentary work; required “periods of continuous rest to control exacerbations of his back pain;” and found that the Claimant would not be able to maintain a regular working schedule. The Industrial Commission submitted two reports finding that the Claimant was incapable of working based on the allowed conditions in the claim. The Industrial Commission awarded the Claimant PTD compensation. The Employer filed for mandamus, alleging the IC abused its discretion when it ordered TTD compensation to begin on April 26, 2011, the date of Dr. DePaz’s report. The court of appeals denied the writ, finding that while Dr. DePaz stated that Claimant could perform sedentary work, he also outlined restrictions so narrow as to effectively preclude the Claimant from any sustained remunerative employment.

The Supreme Court upheld the denial of mandamus, rejecting the Employer’s argument that Dr. DePaz’s report failed to list the allowed conditions in the claim and stated that Claimant could perform sedentary work. The Court found that the IC knew Dr. DePaz was the Claimant’s treating physician and that his report referred to the Claimant’s back pain and various restrictions. The report contained no indication that DePaz considered any non-allowed conditions. As such, it was within the IC’s discretion to accept DePaz’s identification of back pain as referring to the allowed conditions in the claim. Although the report stated that the Claimant could work sedentary work, DePaz also included numerous restrictions and the entirety of the report therefore constituted evidence of PTD based on the medical factors alone.

In State ex rel. Lacroix v. Industrial Commission of Ohio, et al., 144 Ohio St,3d 17,  2015-Ohio-2313 (June 16, 2015) the Ohio Supreme Court affirmed denial of mandamus requested by the employee. The Claimant, Sherwood Lacroix, was injured in September 2007 while working as a dishwasher/baker/maintenance worker for GMRI, Inc. The claim was allowed for cervical/lumbar strain, head contusion, disc displacement, and postlaminectomy syndrome. The Claimant applied for PTD compensation in 2006 and 2008 but was denied both times. The Claimant again applied in 2010 with a report from his physician, Dr. Timothy Morley. However, Dr. Kiva Shtull examined the Claimant for the Employer, and found that the Claimant was capable of full-time sedentary employment while seated with the following restrictions: (1) ability to change position as necessary; (2) no foot pedal operation with lower extremities; and (3) no exposure to vibratory forces. Dr. Craig Johnston, Ph.D. then examined the Claimant and concluded that, based on Dr. Shtull’s report, the Claimant could perform sedentary work. The Industrial Commission denied the PTD application based on Dr. Shtull’s report, and the court of appeals denied the Claimant’s mandamus request.

The Ohio Supreme Court upheld denial of mandamus, rejecting the Claimant’s argument that Dr. Johnston’s report was flawed because he did not consider Dr. Shtull’s limitation that the Claimant must remain in a seated position, and Dr. Johnston listed potential jobs, such as security guard and cashier, that seemed impossible for a person who relied on a walker or wheelchair. The Court noted that a vocational expert need not list all restrictions when referring to a medical report and that the IC had the discretion to accept some or all of Dr. Johnston’s report.

Employment

In Onderko v. Sierra Lobo, Inc., Slip Opinion No. 2016-Ohio-5027 (July 21, 2016), the Ohio Supreme Court recently held that a worker does not have to establish that he or she suffered a workplace injury to establish aprima facie case of retaliatory discharge under Ohio Revised Code (R.C.) 4123.90.  The Claimant, Michael Onderko, was an engineering tech with Sierra Lobo, Inc., when he suffered an injury to his knee and was prescribed prescription pain medications to aid in his recovery. After the Claimant’s request for light duty work was denied, he filed a workers’ compensation claim. The parties disputed whether the injury occurred at work, and when Claimant’s claim was eventually denied by the Ohio BWC on the grounds that the injury did not occur in the course of his employment, he did not appeal the decision as he had already returned to work.

The Claimant was subsequently fired on December 12, 2012, for filing a deceptive workers’ compensation claim. The Claimant then filed a complaint alleging retaliatory discharge under Ohio’s workers’ compensation statute (R.C. 4123.90).  The trial court granted summary judgment to the Employer on the grounds that the Claimant had not suffered a workplace injury. The Sixth District Court of Appeals reversed, holding that a workplace injury was not required to state a claim of workers’ compensation retaliation.

The Ohio Supreme Court affirmed the Sixth District’s decision. The Court held that the plain language of the statute requires only that an employee file a workers’ compensation claim or institute, pursue, or testify in a workers’ compensation proceeding, but does not require an actual workplace injury.

R.C. 4123.90 states: “No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”

The Court reasoned that requiring an employee to prove he or she had suffered a workplace injury undermined the basic purpose of the workers’ compensation statute: to allow employees to exercise their rights without fear of retribution. Interpreting the statute in a manner that may leave employers free to discipline any employee who brought an unsuccessful workers’ compensation claim, the Court said, may produce a chilling effect on employees.  Thus, the Court made clear that theprima facie case of a claim for retaliatory discharge requires only that a plaintiff prove that he or she was discharged, reassigned, demoted, or otherwise disciplined in retaliation for filing a workers’ compensation claim or instituting, pursing, or testifying in a workers’ compensation proceeding.

As proof of a workplace injury is not required under the statute, the Court also rejected the Employer’s argument that failure to appeal the denial of workers’ compensation benefits foreclosed a plaintiff’s retaliation suit.  In response to the dissent’s concerns that the Court’s decision will encourage fraudulent workers’ compensation claims, the five-judge majority stated that employees who bring false claims or make misleading statements in an attempt to receive workers’ compensation benefits are subject to criminal penalties under Ohio law.  Following Onderko, employers should proceed with caution when disciplining an employee who has filed a workers’ compensation claim, even if the claim was unsuccessful, unless the Employer has other, independent justification for taking disciplinary action.

In State ex rel. Aaron’s Inc. v. BWC, Slip Opinion No. 2016-Ohio-5011 (July 20, 2016), the Employer was granted a limited writ of mandamus to order the BWC to explain why it had denied the company’s request that the BWC order reclassifying some of the company’s employees for purposes of workers; compensation premiums be applied solely prospectively. 

The Ohio Supreme Court affirmed the appellate court decision which concluded that the evidence in the record supported the BWC’s decision and that no internal policy of the BWC created a clear legal duty requiring the Bureau to apply the classifications solely prospectively.  Therefore, under this case, the BWC is recognized to have the authority to retroactively adjust the premiums it charged an employer to correct the employer’s improper classification of its employees, even without evidence of intentional wrongdoing. 

In State ex rel. WFAL Construction v. Buehrer, 144 Ohio St.3d 21, 2015-Ohio-2305  (June 16, 2015), the Ohio Supreme Court addressed the employee/independent contractor distinction for workers’ compensation purposes. In 2009, WFAL contracted with Ohio Fresh Eggs to repair barns. WFAL provided the labor and Ohio Fresh Eggs provided materials for the job. The BWC conducted an audit of the WFAL Construction during 2009. The audit was conducted to determine whether WFAL was required to report its payroll to the BWC for purposes of setting and collecting premiums. The BWC concluded from the audit that individuals working for WFAL were employees, not independent contractors and determined that, because WFAL improperly classified the workers, the company owed back premiums.

The Bureau’s adjudicating committee found the workers to be employees, noting that two workers’ compensation claims had been allowed against WFAL in 2009 and 2010, and that the Claimants were employees for workers’ compensation purposes. The court of appeals subsequently denied WFAL’s request for mandamus. The Ohio Supreme Court affirmed, finding that WFAL directed the workers; paid the workers every week based on timesheets; and that the workers were not at risk for a financial loss given the hourly nature of their wages.


RECENT DECISIONS OF THE FULL INDUSTRIAL COMMISSION

Injured Worker Permitted to file two separate “First Report of Injury” and pursue each

The Full Commission, by unanimous decision, vacated an SHO Order denying a Claimant’s 2014 claim asres judicata in light of the Industrial Commissions prior disallowance of the Claimant’s 2013 claim arising from the same incident. The Commission found that while the Claimant’s 2013 claim had been disallowed for the condition of “lumbar sprain” and was currently on appeal to the Court of Common Pleas, that did not preclude consideration of the Claimant’s subsequent request by way of a separate 2014 FROI for a different diagnosis arising from the same 2013 incident. The Commission found that the holding in Ward v.. Kroger Co., 106 Ohio St. 3d 25, 2005-Ohio-3560, 8730 N.E. 2d 1155, allowed for consideration of the compensability of a claim for a new condition, even when the claim has been previously disallowed with regard to a different condition. Accordingly the issue of the “disc bulge and arthropathy at L5-S1 and annular tears at L4-5 and Lr-S1,” as alleged in the subsequent FROI, were referred to the District Hearing Officer for determination on the merits.

Change in job requirements provides employee with an exception to the “coming and going rule

The Full Commission allowed an injured worker’s claim for injuries sustained as a result of an automobile accident that the Claimant was involved in when he fell asleep at the wheel of his car at 3:05 am after working a third shift.  The Employer appealed the claim allowance to the Industrial Commission arguing that the Claimant was a fixed situs employee and therefore subject to the “coming and going rule”. The evidence did support that at the time the Claimant was hired, and for the next year and a half, the Claimant was indeed a fixed situs employee and was not required to travel between stores.

However, in April of 2015 the Claimant was assigned additional duties by the Employer which required the Claimant to assist a team assigned to change cash registers at seven of the Employer’s locations between April and June of 2015.  During this time the Claimant would travel to other cities and assist in changing the cash registers. This was a two night process and the Claimant worked from 8:00 pm until 3:00 am each night. The Claimant was also reimbursed by the Employer for mileage as well.

The Commission found that the Claimant’s change in job duties created special hazards not faced by the public in general, including traveling long distances on the highway at 3:00 am after an 8 hour shift.  The Claimant’s additional job assignment was also found to be a benefit to the Employer, and but for this additional assignment the Claimant would not have been injured.  The Commission found that the Claimant had demonstrated a causal connection between his employment and the injury under the “special hazard exception to the “coming and going rule.”

Claimant fired for buying too much gas found to be pretexual termination and not job voluntary abandonment.  

The Commission found that a Claimant’s termination in October of 2015 for buying too much gas was not a voluntary abandonment of the workforce recognizing “the great potential for abuse” by Employers. The Commission scrutinized the Claimant’s termination and concluded that it was a pretextual termination.

The Employer alleged that the Claimant purchased more gas on two dates in July and August of 2015 that was the capacity of the Claimant’s vehicle. The Commission found that this issue however was not raised by the Employer until October of 2015;  was a “miniscule amount” of gas; and that the Employer had been paying the Claimant salary continuation during the month of September of 2015.  As such the Commission found that the termination was pretexual and did not constitute a voluntary abandonment of the workplace by the Claimant


NEWS FROM THE OHIO BUREAU OF WORKERS COMPENSATION

New BWC Administrator

As of May 2016, Sarah Morrison has been named by Ohio Governor John Kasich as the permanent Administrator and CEO of the State Fund for injured workers at the Ohio Bureau of Workers’ Compensation.  Morrison replaces Steve Buehrer, who left the Ohio Bureau of Workers' Compensation in April 2016. Morrison had been interim leader since his departure.  Morrison leads an agency with more than 1,800 employees that serves more than 250,000 employers.  "Sarah has been an important part of the BWC leadership team that helped drive our state's workplace injury rate below the national average and provide Ohio businesses with $4.3 billion in rate cuts, cuts, rebates and credits. I am confident she will build on that record of achievement and continue BWC's work to strengthen Ohio's business environment," Gov. John Kasich said in a statement.  Morrison had been the bureau's chief legal officer since 2012. She came to the agency after 15 years in private law practice.

Administrator Creates New Position Focused on Customer Service

In one of her first actions as the Administrator/CEO of the Ohio BWC, Sarah Morrison has directed her attention toward improving the overall customer experience with the Ohio BWC.  To those ends Administrator Morrison created a position entitled “Director of Customer Experience,” and has appointed Scottie Powell to fill the new position.  Director Powell is charged with using data to better understand the BWC customers to improve their experience and making processes simpler, faster and less expensive. 

Ohio BWC Cracks Down on Opioid Prescription

The Ohio Bureau of Workers’ Compensation Board of Directors approved a new opioid prescribing rule aimed at preventing opioid dependence and encouraging physicians to employ current best medical practices when treating injured workers with opioids.  Under the rule, the first of its kind in Ohio, BWC will not reimburse for opioid prescriptions written by physicians who fail to use best medical practices.  “We must ensure best practices are followed at the onset of an injury and throughout the course of treatment so injured workers receive care that improves their condition,” said BWC Administrator/CEO Sarah Morrison. “Ohio’s injured workers deserve the best possible treatment that addresses their medical needs without facing the life-changing consequences of opioid dependence or addiction.”

Best practices include the development of an individualized treatment plan, risk assessment and monitoring of the progress and improvement in function of the worker. The new rule strengthens BWC’s peer review process to address physicians who fail to comply with those practices. Corrective actions range from written warnings to removing the physician from BWC’s network of approved providers.

The new rule also allows BWC to provide treatment for opioid dependence that arises from the use of opioid medications covered by BWC. Treatment for dependence could include psychological counseling and medication assisted treatment for recovery.  The rule now moves to the Ohio General Assembly’s Joint Committee on Agency Rule Review. If approved there, it becomes effective Oct. 1 this year.

Ohio Unveils New “Other States” Coverage Option

In November of 2015, a new coverage option was approved by the BWC Board of Directors which hopes to simplify workers' comp for businesses with employees who work in other states. Workers' comp laws vary by state and the new Other States' Coverage will help ensure that Ohioans injured on the job will be covered regardless of where they are injured.  While BWC generally provides coverage for employees working temporarily outside of Ohio, complications can arise when the injured worker files a claim in another state by contracting with an insurer licensed in other states, BWC will be able to offer an option that ensures proper coverage regardless of jurisdiction. A law enacted in 2014 granted BWC the authority to contract with an insurer to provide this coverage, the board approved the rules governing the optional policy offering designed by BWC in November 2015, and the policy in now in place and over 100 policies have been issued as of July 2016.


NEWS FROM THE OHIO INDUSTRIAL COMMISSION

February 2016 Rule Amendments

The Industrial Commission has recently reviewed nine administrative rules, and recommended the following three amendments:

·        O.A.C. 4121-3-16 (Motions): Removes current O.A.C. 4121-3-16(E), which provides for motions to include legal citations and renumbers the remaining subsections.

·        O.A.C. 4121-3-22 (Inspection of Claim Files): Removes current O.A.C. 4121-3-22(B), which sets forth requirements for accepting an authorization on behalf of an injured worker which lacks the claim number, removes current O.A.C. 4121-3-22(E)(F)(G) and (H) which contained requirements related to physical inspections of claim files, and renumbers the remaining subsections.

·        O.A.C. 4121-3-30 (Emergency Hearings): Amends current O.A.C. 4121-3-30(B)(2) and (C)(2) to provide that the hearing administrator and Commission shall contact the parties and attempt to reach an agreement regarding the date and time of an emergency hearing before scheduling the hearing.

The Commission determined that O.A.C. 4121-3-17 (Briefs), O.A.C. 4121-3-18 (Administrative Appeals), O.A.C. 4121-3-21 (Change of Address), O.A.C. 4121-3-24 (Fee Controversies), and O.A.C. 4121-3-31 (Waiver for Recreational Activities) did not require any changes.

New Hearing Officer Manual

After a year and a half of review, the Commissioners of the Ohio Industrial Commission have finalized the revisions to the Hearing Officer Manual, which is effective as of August 15, 2016. The updated version is now entitledAdjudications Before the Ohio Industrial Commission.  Several memos have been moved and new memos have been added and it can be found at

https://www.ic.ohio.gov/policies/adjudications_before_oic/adjudications_before_oic.pdf


LEGISLATIVE NEWS

Ohio’s New Medical Marijuana Law to have little impact on the Bureau of Workers’ Compensation.

House Bill 523, effective September 8, 2016, legalizes medical marijuana in Ohio for certain medical conditions, including pain that is either chronic and severe or intractable, PTSD, and traumatic brain injuries.  At this time, the only legal forms of medical marijuana will be edibles, oils, patches, plant material and tinctures.  Vaporization is permitted.  It cannot be smoked or combusted.  Home growth is prohibited.

The impact of the new law on BWC and its programs is limited.  It does not adversely affect the Drug-free Safety Program, will not require BWC to pay for patient access to marijuana, and expressly states that an employee under the influence of marijuana is not covered by workers’ compensation. 

Specifically:

·        Nothing in the law requires an employer to accommodate an employee’s use of medical marijuana;

·        The law does NOT prohibit an employer from refusing to hire, discharging, or taking an adverse employment action because of a person’s use of medical marijuana;

·        The law specifies that marijuana is covered under “rebuttable presumption.”  In general, this means that an employee whose injury was the result of being intoxicated or under the influence of marijuana is not eligible for workers’ compensation.  This is the case regardless of whether the marijuana use is recommended by a physician;

·        While the law does not specifically address reimbursement for medical marijuana recommended for injured workers, Ohio law already has rules and statutes in place that limit what medications are reimbursable by BWC.

o   Administrative code provides that drugs covered by BWC are limited to those that are approved by the United States Food and Drug Administration.  Marijuana has not been approved by the FDA and remains and Schedule I illegal drug under federal law.

o   BWC-funded prescriptions must be dispensed by a registered pharmacist from an enrolled provider.  Medical marijuana will be dispensed from retain marijuana dispensaries, not from enrolled pharmacies.

o   BWC only reimburses drugs that are on its pharmaceutical formulary, which is a complete list of medications approved for reimbursement by BWC.  Drugs not on the list are not eligible for reimbursement, and under BWC’s current rules, it cannot be included in the formulary, nor is it otherwise eligible for reimbursement. 

“I’m just a Bill...yes I’m only a Bill”

House Bill 207 becomes Law!

House Bill 207 made its way into law this past Summer, effective August 31, 2016, after being signed by Governor Kasich. The new law addresses workers compensation claims involving vehicular accidents and also tackles issues involving self insured employers.

With respect to workers’ compensation claims that involve vehicular accidents, the new law:

·        Requires workers’ compensation claims to be charged to the Surplus Fund Account in lieu of to a state fund employer’s experience in certain circumstances when a claim is based on a motor vehicle accident involving a third party.

·        Allows a state fund employer who believes that a claim may qualify to be charged to the Surplus Fund Account under the act to file a request with the Administrator of Workers’ Compensation for a determination.

·        Requires the Administrator to make the determination within 180 days after the Administrator receives the request.

·        Requires any amount collected by the Administrator through the subrogation process for compensation or benefits that were charged to the Surplus Fund Account to be credited to the Surplus Fund Account and not applied to an individual employer’s account.

With respect to self insuring employers, the new law:

·        Eliminates the minimum number of employees required for a private sector employer or board of county commissioners to obtain self-insuring status under the Workers’ Compensation Law.

·        Requires a self-insuring employer who resumes paying premiums to the state insurance fund to provide the Administrator with any information that the Administrator may require to develop a state fund experience modification factor.

·        Requires, if a professional employer organization agreement is terminated, a self-insuring professional employer to provide the Administrator with information that the Administrator must use to develop a state fund experience modification factor for each client employer formerly subject to the agreement.

House Bill 205 “...is still a just a Bill...”

House Bill 205, sponsored by Rep. Mike Henne (R-Clayton) and Rep. Wes Retherford (R-Hamilton) would modify the requirements for an employer to allow them to become a self-insuring employer for purposes of the Workers’ Compensation Law, to transfer authority over the workers’ compensation self-insurance program to the Superintendent of Insurance, and to allow certain employers and groups of employers to obtain workers’ compensation coverage from a private workers’ compensation insurer.  The bill is has been assigned to the Senate Insurance Committee and has not seen any movement since the early part of 2016.   

“The Calfee Corner” - Recent Successes Before the Industrial Commission of Ohio

William F (13-351333) - No “Substantial Aggravation” of Pre-Existing Conditions, (April 27, 2015)

A construction worker and former college football lineman had injured his right knee at work in 2000.  This Claim was eventually settled in 2011.  In 2013 while employed by a Calfee client, he slipped off a plank into a shallow trench.  He did not seek medical treatment until 9 days later.  The Claim was allowed for a “Right Knee Strain” and Calfee appealed.  The original independent medical examination had noted the badly degenerated condition of the worker’s knee and the likelihood he would require a knee replacement unrelated to the alleged injury.  The worker then alleged that the knee strain had caused him to alter his gait and as a result he had sustained a “Lumbar Sprain/Strain.”  Testimony established that his gait was unchanged and instead was due to his weighing 300 pounds.  The supposed back injury was denied and the worker appealed to the court of common pleas.  While a Motion to Consolidate was pending in court, the worker attempted to achieve his ultimate objective, having his knee replacement paid for by workers’ compensation.  “Substantial Aggravation” of 4 degenerative conditions of the right knee wasdenied by the Industrial Commission.

Glen K (13-826115) - Alleged Adjustment Disorder Due to Being Caught Stealing from EmployerNot Industrial Injury (May 19, 2015)

 A chemical worker on the first shift of a Sunday night/Monday morning arrived at work feuding with his ex-wife.  He failed to follow proper procedures in checking whether liquid chemicals had solidified.  When it turned out they had not, he sustained second degree burns to various body parts.  The worker returned to light duty 2 months later and then full duty 2 months after that.  The worker was changed to a new job which gave him access to the facility after hours.  He consulted a psychologist 13 months after returning to full duty and was diagnosed him with “Adjustment Disorder with Mixed Anxiety and Depressed Mood” supposedly due to the accident.  The Employer then discovered that the worker had been stealing sophisticated metal molds and selling them for scrap.  He was terminated and reported to the local authorities.  The worker was convicted of Aggravated Theft and given a 6 month jail sentence with work release privileges.  The Employer’s Psychologist and the State Psychologist found “...multiple non-occupational stressors” rather than the industrial injury responsible for the worker’s mental state.

Lesbia S (13-302988) - Temporary Total Disability Compensation Terminated Due to Claimant’s Refusal of Modified Duty Off Site Light Duty Job Offer (January 22, 2015)

 

Claimant’s request for temporary total disability compensation was denied based on Claimant’s refusal to accept a restricted duty work offer.  The Claimant had been paid salary continuation through August 18, 2015.  The Claimant filed a motion requesting temporary total commencing August 19, 2014.  The Employer did not have light duty available on-site, so it set up modified duty off site to accommodate the Claimant.  On September 8, 2014, Claimant was given a bona fide offer of light duty employment based on the restrictions given by the doctor who performed Employer’s independent medical examination. The light duty job offer letter was sent by U. S. mail and certified mail and in both English and Spanish.  The light duty job offer included the title of the position offered, the details of the job, Claimant’s restrictions, and the date Claimant was scheduled to return to work.  Claimant failed to appear.  At the administrative hearings before the Industrial Commission Claimant testified that her doctor reviewed the light duty job offer and told her that she could not work.  Calfee successfully argued the treatment notes of Claimant’s chiropractor and Pain Management Specialist included impairments and symptomsnot related to the allowed conditions.   

Court Decisions of Note

Intentional Tort

“Transfer cars” operated by workers had safety bumpers which cut power  when compressed.  A maintenance worker investigating a malfunctioning conveyor motor  was struck by a transfer car whose operator’s view was obstructed.  The worker alleged the transfer car  safety device must have malfunctioned and was entitled to the malfunctioning safety device presumption in Pixley v. Pro-Pak Industries, Inc. 142 142 Ohio St. 3d 203 (Dec.2014).  The trial court granted Pro-Pak summary  judgment but the court of appeals reversed.

The Ohio Supreme Court reversed, finding that the Claimant failed to prove that Pro-Pak deliberately removed or disabled the transfer car safety bumper.  Pro-Pak utilized extensive post-accident testing of the transfer car bumpers.  The Claimant’s experts relied on OSHA video footage showing dragging bumpers which failed to halt transfer cars.  The  Court never reached the question of  whether  the intentional tort statute  creating the presumption for safety device removal was restricted to machine operator injuries or  also applied to nonoperators.  Failure to address this issue led three justices to dissent.

VSSR

In State ex rel. Richmond v. Indus. Comm'n, 139 Ohio St. 3d 157 (Apr. 2014), the Claimant sought an additional award for a violation of a specific safety requirement (VSSR) after he fell from a ladder that he improperly secured. As a defense to the VSSR allegation, the Employer pointed to OSHA regulations in order to show that the safety gear was indeed appropriate.  The Hearing Officer denied the VSSR. The Claimant then argued that the Industrial Commission abused its discretion by relying on the OSHA regulations when deciding the VSSR.  The Claimant contended that the appropriate specific standard to be applied in deciding  a VSSR  was whether or not Ohio's specific safety requirements (SSR) were violated.

The Ohio Supreme Court disagreed with the Claimant’s position explaining that "although the Industrial Commission may not adopt external standards as thesole basis for a violation of a SSR award, it may look to those standards asrelevant factors to inform its interpretation of a SSR and its determination whether the employer violated that SSR." (emphasisadded).  The Court ruled that the Commission's use of the OSHA regulation was appropriate.

Temporary Total

In State ex rel. Floyd v. Formica Corp., 140 Ohio St. 3d 260 (Aug. 2014), the  Industrial Commission denied a claim for Temporary Total Compensation applied for by a Claimant in 2010, almost ten years after the Claimant left his employment with the Employer.  During the intervening time, the Claimant had several surgeries and went through alternating periods of Temporary Total  and Maximum Medical Improvement.  The Commission determined that, based upon the fact that the Claimant never looked for work and applied for Social Security, the Claimant was no longer eligible to receive Temporary Total because he had abandoned the entire job market when he left the Employer and retired. The Claimant argued that the Industrial Commission's order was not supported by the evidence as he was not required to look for work while he was receiving Temporary Total and when he was not receiving compensation he still was not medically able to work.

 

The Ohio Supreme Court found that the Industrial Commission’s Order was indeed supported by the evidence. The Court noted  the Claimant was not required to apply for Social Security benefits; rather, this was a personal choice. If the Claimant intended to return to the workforce after leaving the Employer, he had no reason to file for retirement at that time.

In State ex rel. Bailey v. Indus. Comm'n of Ohio, 139 Ohio St. 3d 295 (May 2014), the Claimant contended that the Ohio Industrial Commission erred in relying on an older medical report to deny her temporary total compensation. The report, written  in 2009, stated that the Claimant had reached maximum medical improvement, and "...can perform without significant limitations at this time. However, this does not take into account the physical allowances in this claim ... and/or high levels of exaggeration and malingering measured on objective psychometric testing."   The Claimant asserted that the Commission abused its discretion when it failed to acknowledge later reports which were contrary to the 2009 report. The Franklin County Court of Appeals reviewed the reports and noted that the Claimant had given a different version of his medical history and withheld certain information from a different doctor. Additionally, no psychological testing was performed in preparing the second doctor’s report; instead, the doctor seemed to have based her opinion only on the Claimant’s history and complaints. The Court of Appeals overruled the Claimant’s objections.

On appeal, the Ohio Supreme Court affirmed the judgment of the Court of Appeals, noting that the Commission "is exclusively responsible for determining the weight and credibility of the evidence." The Court rejected the notion that the 2009 report was stale, explaining the "content of the report and the question at issue are more relevant than the date the report was issued." The Court ruled that the later report failed to establish any new and changed circumstances that would lessen the probative value of the earlier report, so it was appropriate for the Commission to rely on it.

In State ex rel. McCormick v. McDonald's, 2015-Ohio-123 (Jan. 2015), a Claimant  asserted that her Temporary Total was improperly terminated based upon an incomplete medical report stating she had reached Maximum Medical Improvement.  The Claimant believed her physician's request for authorization of three additional steroid injections after the original report rendered the medical report incomplete and unreliable based on the reasoning of State ex rel. Sellards v. Indus. Comm., 108 Ohio St.3d 306 (2006). 

The Court refused to extend the reasoning ofSellards to this case, explaining:"Sellards was narrowly decided based on its unique facts. This  Court's conclusion that the doctor's opinion was premature was narrowly based on two factors:  the bureau's error or delay in paying for Sellards' psychiatric prescriptions and Dr.Levy's lack of awareness of the contemporaneous approval of Dr. Spare's treatment plan when he issued his report. Those factors do not appear in this case." The Court ruled that the subsequent request for and approval of a treatment plan does not automatically render a doctor's opinion on maximum medical improvement premature.

PTD

In State ex rel. Sheppard v. Indus. Comm'n, 139 Ohio St. 3d 223 (May 2014), the Claimant suffered a work-related back injury in 1997. Subsequent MRI results indicated that the condition was resolved, and an intervening injury occurred in 2002.  In 2006, the Claimant filed a motion to reactivate his claim in order to pay for additional medical treatment. The Industrial Commission determined that the treatment was related to the Claimant’s degenerative disc disease, a non-allowed condition, and denied his motion. 

In 2010, the Claimant filed an application for Permanent Total Disability.  Following a hearing on the application, a Staff Hearing Officer granted it without addressing the intervening injury.  Eventually the Ohio Industrial Commission exercised its continuing jurisdiction and reversed the Staff Hearing Officer's ruling. The Claimant contended that the Ohio Industrial Commission’s action was an abuse of discretion, asserting that the hearing officer was not required to address the intervening injury. The Ohio Supreme Court ruled that, since the Ohio Administrative Code requires the hearing officer to specifically determine whether the Claimant established proximate cause, the Industrial Commission has the right to exercise its continuing jurisdiction to determine proximate cause.  The Court contended that an intervening injury could eliminate the industrial injury as the proximate cause of the inability of the Claimant to work and thus destroy the Claimant’s eligibility for Permanent Total Disability compensation. The Court held therefore that there was no abuse of discretion by the Ohio Industrial Commission.

Loss of Use/Amputation

In State ex rel. Varney v. Indus. Comm'n of Ohio, 2014-Ohio-5510 (Dec. 2014) a Claimant had four fingers on his left hand amputated in a work-related accident in 1983.  Three of the Claimant’s fingers were completely reattached, and a fourth was partially reattached.  Because the fingers did not regain their full function, the BWC awarded the Claimant compensation for the amputation of his fingers.  Twenty years later, the employee sought an additional award for the total loss of use of three of his fingers. The Industrial Commission denied the claim, concluding that there was no legally valid medical report in the record supporting the loss of the functional use of these fingers.

Upon appeal, the employee argued that,  when analyzing the loss of use of his fingers, the Industrial Commission should have applied the standard for the loss of use of a thumb articulated inState ex rel. Rodriquez v. Indus. Comm'n.,2009-Ohio-4834 (10th Dist.). In a split decision, the Court of Appeals concluded that the reasoning inRodriguez regarding the loss of use of a thumb did also apply to the loss of use of a finger.

The Ohio Supreme Court, however, held that "in the absence of a statutory numerical measure for the total loss of a finger, the Industrial Commission must apply the accepted and mandated method for measuring loss of use—a physician's opinion on impairment or extent of loss."  The Court found that it was entirely appropriate for the Industrial Commission to rely on a physician's report that stated the employee had some functional use of his fingers.

Due Process

In State ex rel. Evert v. Indus. Comm'n of Ohio, 2015-Ohio-120 (Jan. 2015), the Claimant alleged that she had been denied due process of law when a Commissioner on the Ohio Industrial Commission who did not attend the Claimant’s hearing voted on the Claimant’s Motion for Reconsideration.  The Court found that the Commissioner was not required to attend the hearing in order to vote on the matter being heard, as the issue presented by the Claimant was a purely legal one that could be settled as a matter of law without judging a witness' credibility.   The Commissioner had discussed the matter with an experienced Staff  Hearing Officer who had been present at the hearing and who summarized the testimony and arguments presented.  The commissioner had reviewed the entire claim file.   The Court determined the Commissioner had conducted a meaningful review of the matter sufficient to satisfy due-process concerns.

RECENT DECISIONS OF THE FULL INDUSTRIAL COMMISSION

Injured Worker Denied Wage Loss for Not Verifying On-Line Searches as Required

The Full Commission vacated the SHO Order granting Wage Loss Compensation to an Injured Worker working part-time and denied Wage Loss Compensation.  The Injured Workers had not verifyied any of her on-line job searches as required by Ohio Adm. Code sections 4125-1-01 (D)(1)(d) and (E)(1)(c).  The Injured Worker was restricted to only working 30 hours per week and worked part-time within this restriction.  She documented 42 job contacts during the requested wage loss time period.  Twenty-two job contacts were through the internet, which had to be verified with a copy of the on-line posting and the application submission.  The Injured Worker did not verify any of her on-line searches as required.  The Commission found the limited number of contacts (20) over a seven-week period insufficient to constitute a consistent, sincere and best attempt to obtain suitable employment.

Failing to Complete Required Post-Accident Drug Test Constitutes Voluntary Abandonment Terminating Temporary Total Disability Compensation

Injured Worker’s claim was allowed for cervical strain.  Injured Worker’s employment began on November 4, 2013 and prior to the start of his shift, he verified acknowledgment of the Employer’s Substance Abuse Policy.  The Acknowledgement included a “Statement of Understanding,” which notified Injured Worker that his employment was contingent upon the successful completion of drug and alcohol screen tests. Injured Worker was terminated on November 5, 2013.  He had sought treatment on November 5, 2013 and was asked to submit a urine sample for drug testing.  Affidavits were submitted confirming that Injured Worker provided a sample of insufficient quantity, which precluded temperature verification.  The Injured Worker refused a second sample.  The Commission found that a suitable sample was implicit in the Employer’s Substance Abuse Policy.  By providing a urine sample that could not be verified, the Commission found that Injured Worker failed to successfully complete the required post-accident drug test.  Specifically, the Commission found that the Employer’s written work rules and policies clearly required post-accident drug testing and appropriately warned Injured Worker that failure to successfully complete such testing was grounds for termination.  Injured Worker acknowledged his receipt of the policies.  Accordingly, Injured Worker’s  termination constituted a voluntary abandonment of the workforce and temporary total disability compensation was denied.

Psychiatric Consultation Denied When Hearing Officer Manual Memo M1 Criteria Not Met

The Full Commission denied a request for authorization and payment for psychiatric consultation.  Hearing Officer Manual Memo M1 states that psychiatric consultative fees are payable in claims withno allowed psychiatric condition when the consultation is necessary for pre-operative work-up or as a resource in planning future treatment.  Injured Worker did not submit evidence of either criteria and the request was denied.

NEWS FROM OHIO BWC

CSI Ohio Style

Ohio’s CSI -- Common Sense Initiative, was established in Executive Order 2011-01K.  Under this initiative, agencies, including the Bureau of Workers' Compensation, are directed to balance the critical objectives of all regulations with the costs of compliance by the regulated parties, and use plain language.  Every proposed rule under CSI is accompanied by a business impact analysis.

On 5/22/2015, under the auspices of the CSI, O.A.C. 4123-3-36, the Provisional Treatment Pilot Program, became effective.  Based on “common sense,” this provision allows the BWC to immediately allow claims for specific medical conditions which have a historical record of being allowed whenever requested in a claim and also having low medical costs in relation to that diagnosis.” The diagnoses and their ICD 10 codes that fall within this program are listed in Appendix A, which runs five (5) pages!

To prepare medical providers for this new program, also called “The Enhanced Care Program,” the BWC began provider education programs in April.  In addition to education, the BWC has promised enhanced fee payments.  Also, the Physician of Record (POR) will have greater treatment latitude in the first 60-days of the claim along with a reduced administrative burden.   On the other side, the BWC will require participating providers to take a more active role in managing these claims.

A provider in this pilot program is allowed to consider the claimant in a more “holistic view” -- and can develop a care plan which can include other medical providers such as the claimant’s own primary care physician, specialists and perhaps physical therapists to address issues/injuries not officially allowed in the claim but that the physician of record believes to be causally related to the workplace injury. And, last but not least, the POR can consider the Claimant’s general health issues that may impact the Claimant’s optimal path back to work.  This plan would need to be submitted to the appropriate Managed Care Organization (MCO)  within 5 days but the POR could begin treatment and expect appropriate reimbursement if the care plan falls within the ODG treatment guidelines.  The Bureau of Workers' Compensation expects the physician of record to serve as “quarterback” for managing claimant’s care to receive the enhance compensation.

BWC ICD-10 changeover

The changeover from ICD-9 to ICD 10 codes is set for October 2015.  The Bureau of Workers' Compensation is on-track to be compliant with this mandate.

NEWS FROM INDUSTRIAL COMMISSION

Industrial Commission Happenings:  Really New!

After being on the 7th Floor of the Office Building since 1979, the Cleveland Industrial Commission has moved to the 5th Floor.  Among the heralded features of the 5th Floor is handicapped accessibility.  The hearing rooms are spacious.  The corridors are wide enough to accommodate at least 2 wheelchairs at the same time.  The most important innovation is restrooms on thesame floor as the Industrial Commission.  This removes the necessity of having to descend to the Plaza level (you can guess how this is designated on the elevator button) in order to respond to calls of nature.  (The status of a couch in the Women restroom remains unclear.)  Although the 5th Floor started holding hearings on May 19, 2015, the official grand opening was June 3, 2015 with cake, punch, and Industrial Commissioners.  From a decorative perspective, the color scheme is bright orange (perhaps inspired by the Cleveland Browns) with windows providing views of Lake Erie, the Cuyahoga River, and downtown Cleveland.  The aesthetic compares favorably with an airport waiting room, quite an improvement after 36 years on the 7th Floor.

LEGISLATIVE NEWS

Mental-Mentals Mired in Legislature

Bills recognizing Post-Traumatic Stress Disorder without a physical injury for “first responders” (police, fire, emergency medical, etc.) are currently on hold.  A first problem was defining the eligible class of workers and whether this created equal protection problems for those who were ineligible but witnessed the same kind of event.  A second was the government entities who employ first responders became concerned about the potential costs.

Legislative Bill and Rumor Mill

Various bills heard by the House Insurance Committee proposed tweaks to Ohio’s unique Workers’ Compensation System such as providing health care more quickly to Injured Workers and assisting them with return to work after 45 days of missed work.  Among these bills was one which turns out to be the latest iteration of cyclical attempts over the years to privatize the system.  Whether privatization ever makes it out of committee will be dependent on support in the dominant Republican Caucus.  As to the politics, one legislator was quoted as saying: “Everybody’s a fiscal conservative and a lot of people ran on the concept that they wanted to do some type of privatization of workers’ comp...”  It is not clear at present if this will become a legislative priority.

A Special Contribution to the “Calfee Update” by Michael F. Brown, Account Executive, Benefits 1 Group

mikeb@benefits1group.com

Ohio Workers’ Compensation – A New Way of Paying Premium

 Prospective Premium Payment

As previously communicated in our prior updates, the dominating story for Ohio employers for Summer 2015 is that the Ohio BWC has now begun their transition to having employers pay premiums in advance, consistent with most other insurance payment schedules.  

Included in the BWC’s transition to this new payment method is providing Ohio employers a total of 8 months of free WC premium, offered in the form of credits for the premium which would otherwise be due for the period January 1, 2015 through August 31, 2015.

·        As an aside, BWC’s posture is that payment is not complete until posted by BWC, even if payment is made online via EFT.  As posting may take “a few days”, BWC recommends paying premiums at least 3 days before the stated deadline, to avoid lapses in WC coverage.

 A brief summary of the key points in the prospective premium timeline is included below:

 May 2015

·        The BWC will send a letter to all private state fund employers, explaining the new processes.  This communique will also include an estimated payroll that BWC will use to generate the invoices issued for the 2015-16 rating year. (Public employers are on a different schedule; their transition to prospective premium payment will occur in Spring 2016)

·        The payroll used to estimate premiums for the 2015-16 rating year will be the amount that the employer reported from the period July 1, 2013 through June 30, 2014. If an employer believes their 2015-16 payroll will be significantly different than the BWC’s estimate, they may request the BWC to adjust the premium (either up or down.) 

 ·        The BWC will also default all employers to a six payment plan, which can also be altered to anywhere from 1-12 installments, by requesting same from the BWC.  Employers should carefully consider their options as each additional payment cycle establishes another deadline for making payment to avoid lapses in WC coverage.

 Jun 2015

·        In June 2015, invoices will not be issued because the BWC’s transition credit will cover this installment for this rating year only.  Going forward in June 2016 and beyond, an invoice will be issued, and payment will be due prior to July 1, 2016. 

 ·        In the future, an Ohio employer will be required to pay at least part of their annual estimated WC premium prior to the beginning of the rating year (July 1, or January 1 for public employers).

 Aug 2015

·        This invoice covers the period September 1, 2015 to October 31, 2015. Payment is due by August 31, 2015. At this time, employers must also report payroll for 6 months ending 6-30-15 by 8-31 (but pay $0). 

 ·        Timely reporting of payroll for the first half 2015 is extremely critical, as all premium credits (8 months’ worth) being offered as part of the transition will be forfeited if payroll for this period is not reported by the last business day of August 2015.

 Oct 2015

·        This invoice covers the period November 1, 2015 to December 31, 2015. Payment is due by October 31, 2015.

Dec 2015

·        This invoice covers the period January 1, 2016 to February 29, 2016. Payment is due by December 31, 2015 to avoid a lapse in WC coverage.

 Feb 2016

·        This invoice covers the period March 1, 2016 to April 30, 2016. Payment is due no later than February 29, 2016.

 Apr 2016

·        This is the final invoice for the July 2015 rating year, presuming that no changes to the BWC’s default billing schedule were requested.  The invoice covers the period May 1, 2016 to June 30, 2016, and payment is no later than April 30, 2016.

Aug 2016 // Filing & Reconciliation

·        Prior to August 15, 2016, employers must report actual payroll for the year ending June 30, 2016 to reconcile their WC account. 

·        If a credit balance results due to reporting less than the BWC’s estimated payroll, a credit to the employer’s WC account will accrue and be applied to future payments.  If additional premium is due to BWC, any amount due must be paid by the same August 15, 2016 date (note prior comment about BWC’s posting philosophy).

·        Timely reporting of this annual payroll is extremely important, as significant penalties apply to non-compliant employers.  Should actual payroll and any associated payment not be made by the August 15 deadline, the employer will be removed from any and all BWC programs for which they have enrolled for the July 2016 rating year.  This includes all group rating, deductible, retrospective rating or other alternative financing programs, as well as the BWC’s multiple incentive rebate programs.  Hence, the consequences of failing to comply with this deadline could amount to tens or hundreds of thousands of dollars.

Premium Rates Decreased 10.8%

In more good news for Ohio employers, the Bureau of Workers’ Compensation (BWC) will adopt a 10.8 percent overall rate reduction for Ohio private employers with approval from the BWC Board of Directors today. The change, effective July 1, is expected to bring a decrease in projected annual premium of $153 million, and bring private employer rate levels 21.4 percent lower than the rate levels in effect January 1, 2011.

"The environment for employers operating in Ohio is improving along with the state's economy, and BWC is certainly part of that story," said BWC Administrator/CEO Steve Buehrer. "We’ve targeted improvements that will yield positive improvements to Ohio's workers' compensation system, and are conducive to business growth. Lower rates, along with a focus on workplace accident prevention and care for those who are injured, all support the state’s continued economic recovery."

The reduction is possible due to a number of factors, including lower expected claim frequency, the impact of positive investment results on the State Fund, as well as the upcoming adoption of a prospective billing system. Details on prospective billing and the resulting one-time premium credit totaling $1.2 billion for private employers and local governments are available at bwc.ohio.gov.

The reduction is an overall statewide average. The actual premium paid by an employer will depend on expected future costs in their industry segment, their recent claims history, and participation in various premium credit and savings programs.

Revamped pharmacy program protecting health and safety of Ohio's injured workers

A new report details the success of the Ohio Bureau of Workers' Compensation (BWC) first-ever outpatient medication formulary, as well as future steps BWC will take to protect injured workers from deadly drug regimens.

Injured workers were prescribed 15.7 million fewer opiate doses in 2014 than in 2010, representing a 37 percent decrease. BWC implemented the closed formulary in 2011 to improve the efficiency and effectiveness of treatment, limit inappropriate uses of medications and lower prescription costs.

"Our goal is to ensure injured workers in Ohio are receiving effective, clinically grounded treatments that help them heal while protecting their well-being so they can regain their footing and return to work whenever possible," said BWC Administrator/CEO Steve Buehrer. "Prescription medications should assist in recovery following a workplace injury, and we’ve put safeguards in place because no one should suffer from addiction or an unintentional overdose while trying to get back on their feet."

The report was delivered by JohnHanna, BWC's pharmacy program director, during the fourth annual National RX Drug Abuse Summit in Atlanta, Georgia.Hanna provided the national audience an overview of the BWC formulary, and discussed the impact it’s had on drug and opiate use by injured workers since it went into effect in September 2011.

After implementing the formulary, BWC began refining coverage for opiates as well as coverage of muscle relaxants and anti-ulcer agents, which are also commonly overprescribed and misused. Over that period of time, prescriptions for muscle relaxants and anti-ulcer medications decreased by 72 percent and 83 percent.

"Our focus when implementing the formulary and making subsequent changes has been on the clinical rationale, and BWC's goal of ensuring the medications injured workers receive following their injury do not ultimately hinder their recovery," said Hanna.

Hanna stressed that injured workers can face risks beyond those posed by opiates. Moving forward, BWC will be targeting dangerous combinations of medications prescribed by multiple physicians. After detecting those at the highest risk, BWC will work with their physicians or make referrals to managed care organizations to ensure injured workers aren’t receiving medication combinations that can be deadly. BWC will be studying its data about injured worker medication and hopes to present early findings to its pharmacy and therapeutics committee this summer.

Ongoing improvements to the pharmacy program have also produced dollar savings. In 2014, BWC's total drug costs were 16 percent, or $20.7 million, less than in 2010. Opiate costs were down 36 percent ($19.9 million); muscle relaxant costs were down 78 percent ($3.3 million); and anti-ulcer costs were down 95 percent ($6.4 million).

With 859,000 open claims, BWC is the largest state fund workers' compensation insurer in the country. The agency paid $1.7 billion in total benefits during fiscal year 2014, including $662 million in medical spending and $109 million in pharmacy benefits.

San Allen Update

At press time, it appeared that the first payments related to theSan Allen v. Ohio BWC class action suit were beginning to arrive in employer mailboxes.  This is welcome news as the final step in settling the long-standingSan Allen v. Ohio BWC matter. 

Claim forms were issued last Fall to members of the class of employers who were not in a group rating program between 2001 and 2008.  The completed forms, once verified, entitled employers to their share of the $420 million settlement agreed to by the BWC. 

Michael F. Brown, ARM is an Account Executive with Benefits 1 Group.  Michael has been in the workers’ compensation and risk management industry for over 35 years. In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers to develop and maintain best-in-class strategies to workers’ compensation cost-containment and risk financing.

In his past experience, Michael served as a workers’ compensation and employee benefits manager for a multi-facility, self-insured employer.  Certified as an Associate in Risk Management (ARM), Michael applies an in-depth evaluation process to develop tailored solutions to the most complex workers’ compensation challenges.