State News : Ohio

NWCDN Ohio State Law Update - October 2025

Ohio Bureau of Workers’ Compensation Update

BWC Actions

Ohio Bureau of Workers’ Compensation Unveils New Substance Use and Prevention Recovery Program

On July 16, 2025, the Ohio Bureau of Workers’ Compensation (BWC) unveiled its new Substance Use Prevention and Recovery Program (SUPR). The innovative SUPR Program brings together the Drug Free Safety Program (DFSP), DFSP Safety Grants, and the Substance Use Recovery and Workplace Safety Program (SUR) under one umbrella designed to focus on workplace use and misuse of drugs and alcohol.  The voluntary program is designed to assist State Funded Employers in effectively preventing workplace injuries by integrating drug free initiatives into their workplace safety programs. The program changes are effective as of July 1, 2025.

According to BWC Administrator/CEO Stephanie McCloud, “…[C]ombining the key pieces of our previous programs into one creates a better and more efficient experience for our customers. The Substance Use Prevention and Recovery Program is focused on helping Ohio’s business manage and prevent substance use in their workplaces.”

Basic eligibility requirements for State Funded Employers or Public Employer Taxing Districts to participate in the SUPR program include: 1) being current on all payments due to the BWC; 2) having an active policy status; 3) not having cumulative lapses in coverage in excess of 40 days within the preceding 12 months; and (4) reporting actual payroll for the preceding policy year with payment of any additional premiums that may be due.

The SUPR program offers Employers a choice of four participation options: 1) Advance Level; 2) Basic Level; 3) Comparable Program; and 4) SUPR Reimbursement, with Advance Level and Basic Level participants being eligible for 7% and 4% bonuses respectively based upon their premium payments. Basic Level participation requirements include accident analysis training; written drug free workplace policies; employee education requirements; supervisor testing; drug and alcohol testing; and employee assistance. The Advance Level participation requirements include all of the Basic Level requirements in addition to random drug testing, and employee support and employee retention requirements. Those that choose the Comparable level program will be required to have a drug free workplace policy; education requirements; supervisor training; and drug and alcohol testing, while the Reimbursement Level does not require any training, reporting or drug testing like the other levels. Despite your level of participation, all employers are eligible for reimbursement of certain costs incurred in the management and prevention of substance use issues in the workplace.

What are some of the changes in the new SUPR program? Most participants will now automatically be eligible for reimbursement grants. Employers with “second chance” policies are now eligible for reimbursement of substance use assessments, and year-round enrollment in the program is also available. Additionally, an online portal is being developed for Employers to report on program requirement completion and request reimbursement of activities all in one place. For a summary of the changes to the program please click here.

Ohio Judicial Decisions

Violation of a Specific Safety Requirement (VSSR)

State ex rel. Prime Roof Solutions, Inc. v. Industrial Commission, 2025-Ohio-4399 (September 23, 2025)

In a per curiam opinion of the Ohio Supreme Court, the 10^th District Court of Appeals decision was affirmed finding that some evidence in the record supported the Ohio Industrial Commission’s granting of the claimant’s VSSR petition and finding that the employer had failed to provide him with the required fall-protection gear. (See Adm.Code 4123:1-3-03(J)(1) (requiring that fall-protection gear be provided to employees exposed to hazards of falling). The 10^th District found that the employer failed to establish that Industrial Commission failed to perform a legal duty or abused its discretion in granting claimant’s application for VSSR award for violation of Adm.Code 4123:1-3-03(J)(1). The Court affirmed that some evidence supports commission’s finding that claimant was not assisting in installation of fall-protection system when he fell.

Permanent Total Disability (PTD)

State ex rel. Urban v. Wano Expediting, Inc., 2025-Ohio-3009 (August 29, 2025).

In another per curiam decision from the Ohio Supreme Court, the Court reversed the 10^th District Court of Appeals judgment and denied the writ of mandamus. The Ohio Industrial Commission had denied claimant’s application for PTD, finding that he retains the ability to perform sustained remunerative employment with limitations at a sedentary level. Claimant filed a complaint at the 10^th District seeking a writ of mandamus directing the Commission to vacate its order and issue a new order. The 10^th District granted the writ, concluding that the Commission had failed to comply with Ohio Admin. Code 4121-3-34)D)(3)(i), an administrative rule under which it was required to consider claimant’s allowed psychological conditions in combination with his allowed physical conditions.

© Copyright 2025 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

NWCDN Ohio State Law Update - July 2025

Ohio Bureau of Workers’ Compensation Update

BWC Actions

On February 28, 2025, the Board of the Ohio BWC announced and approved a 6% reduction in private employer premiums, set to take effect on July 1, 2025, saving businesses an expected $60 million. This reduction would be the sixth straight reduction since Governor DeWine took office and the 16^th rate decrease in the last 17 years going back to 2008.  Overall, the average rate levels for the 257,000 private and public Ohio employers are at their lowest in over 60 years.

The actual premium paid by individual private employers depends on several factors, including the expected future claims costs in their industry, their company’s recent claims history, and their participation in various BWC programs.

House Bill 80, the Industrial Commission and Proposed Ombuds Office Rename, and House Bill 81 for the Ohio BWC, were both approved by the Ohio General Assembly as of June 26, 2025. The Ohio Industrial Commission is responsible for providing a process for fair and impartial resolutions of disputed workers compensation claims, adjudicating 85,000 claims annually. Funded through the Administrative Cost Fund surcharge applied to employers’ workers compensation premiums, their request of $107.4 million over the biennium is the lowest budget since FY 2018-19. The Bureau of Workers' Compensation provides insurance coverage for Ohio business and employees, serving 258,000 public and private employers across the state. Funded by employer premiums, Ohio has the 5th lowest workers' compensation premiums in the nation.

Ohio Judicial Decisions

Violation of a Specific Safety Requirement (VSSR)

State ex rel. Allen Industries Inc. v. Industrial Commission, 2024-Ohio-5992 (December 23, 2024)

On October 30, 2018, Lewis Lands was working as a sign installer for Allen Industries, Inc., at a Meijer store construction site in Fremont, Michigan. Lands and a coworker were installing a large steel sign, which required welding steel uprights to a pole that had been placed in a trench. While kneeling at ground level and welding near the edge of the trench, the soil beneath Lands gave way, causing him to fall headfirst into the seven-foot-deep trench. Lands was momentarily buried upside down and received an electrical shock from the welder lead until his coworker shut off the power and helped him out of the trench using a ladder.

Lands filed a workers’ compensation claim which was allowed for the following injuries: anterior cruciate ligament tear left knee; unspecified sprain of right wrist; strain of muscle, fascia and tendon at neck level; sprain of medial collateral ligament of left knee; contusion of left knee; contusion of left front wall of thorax, left chest; unspecified sprain of left shoulder joint left shoulder; pulmonary embolism bilateral; deep vein thrombosis vein; fracture scaphoid/navicular, right wrist; fracture scaphoid/navicular with non-union, right wrist; sprain left acromioclavicular joint; low back strain; herniated disc C5-C6; L4-5 disc displacement with left radiculopathy; L5-S1 central disc displacement; herniated disc C5-C6; substantial aggravation of pre-existing arthritis, right wrist, left shoulder adhesive capsulitis.

On September 14, 2020, Lands filed an application for additional award for a violation of a specific safety requirement under Ohio Adm. Code 4123:1-3-13(D)(1), which mandates trenches over five feet deep must be shored, sloped, or otherwise protected where employees may be exposed to moving ground or cave-ins. The BWC’s Safety Violations Investigations Unit (SVIU) released a report on January 7, 2021, finding the trench was at least seven feet deep and lacked any shoring or bracing. Lands testified that he had raised concerns about the soil conditions but was instructed to continue working.

A Staff Hearing Officer (“SHO”) initially denied the VSSR application. In an order dated December 22, 2021, the SHO found sufficient evidence the soil was unstable but insufficient evidence to show Lands was working in the trench or whether the area where the ground gave way was the exposed face of the trench or an inclined earth surface.

Lands appealed, and on March 29, 2022, an SHO vacated the prior SHO order and set the application for VSSR award for a hearing. After the hearing, an SHO on April 18, 2023, granted the application for VSSR award, finding Ohio Amd. Code 4123:1- 3-13(D) applied and the site where Lands was injured constituted an excavation site because it was a manmade cavity and a trench due to its size. To address Allen Industries argument that Lands was not in the trench, the SHO specified he was reaching in the trench when the ground gave way, and Allen Industries’ not providing safety equipment was the proximate cause of Lands’s injuries.

Allen Industries filed a writ of mandamus in the Tenth District Court of Appeals and argued the regulation did not apply because Lands was not working inside the trench, and that Michigan’s safety code (Mich. Amd. Code 408.40901) governed the worksite and only required protections when employees were required to enter a trench.

The Tenth District Court rejected both arguments. It held the plain language of Ohio Adm. Code 4123:1-3-13(D)(1) applies to any employee exposed to moving ground or cave-ins, not just those inside a trench. The Court emphasized that other subsections of the rule explicitly refer to employees “working within” trenches, but subsection (D)(1) does not. The rule broadly applies to employees who may be exposed to moving ground or cave-ins and does not distinguish between those working inside the trench or those working at ground level near the trench. The court also found no irreconcilable conflict with Michigan law as Michigan’s rule only apples when employees are required to enter a trench while Ohio’s rule is more broadly applied. Because Lands was not required to enter the trench, both rules could be followed without conflict.

Loss of Use

State ex rel. Kreitzer v. Indus. Comm., 2025-Ohio-281 (January 30, 2025)

Rodney Kreitzer suffered a workplace eye injury in December of 1982 when a metal rod struck his right eye. His workers’ compensation claim was allowed for multiple conditions: contusion, visual loss, traumatic cataract, zonula dialysis, and traumatic mydriasis. In 1983, Kreitzer received a scheduled-loss award based on a finding of 28.5% uncorrected vision loss in the right eye.

In March 2008, Kreitzer filed a C-86 motion seeking an increase in the scheduled-loss award for his right eye. On April 29, 2008, he underwent surgery on his right eye, removing the lens, performed by Michael E. Snyder, M.D. On July 16, 2008, and at the request of the BWC, Kreitzer was examined by Richard Roebuck, M.D., who determined Kreitzer had 99% central vision loss in his right eye, but after adjusting for comparative vision, the injury caused a 34% uncorrected loss of vision. Based on this, the BWC issued an order granting an increased scheduled-loss award after finding a 33% uncorrected loss of vision, which Kreitzer did not appeal.

In 2011, the Supreme Court of Ohio considered the issue of whether the surgical removal of an eye lens in the course of treatment for a workplace injury entitles a worker to compensation for a total loss of vision pursuant to R.C. 4123.57(B) in State ex rel. Baker v. Coast to Coast Manpower, L.L.C., 129 Ohio St.3d 138, 2011-Ohio-2721. The Court declined to adopt a blanket rule that a claimant is automatically entitled to a total loss of vision award under R.C. 4123.57(B) whenever the natural lens or cornea is surgically removed due to workplace injury. Instead, the court held that it is proper to calculate the loss of vision based on the percentage of vision actually lost because of the injury but prior to any corrective surgery. The Court also clarified it was the loss of vision in Autozone and Parsec that formed the basis for the award of compensation for total loss of vision.

On March 15, 2022, Kreitzer filed another C-86 motion requesting an additional increase in his scheduled-loss award to reflect a total loss of vision in the right eye based on the Supreme Court of Ohio’s decisions in Autozone and Parsec. In support of his motion, Kreitzer did not submit a new medical report but relied on the same 2008 surgical report from Dr. Snyder. The BWC referred the motion to the Industrial Commission and recommended denial, noting the lack of medical evidence of new and changed circumstances. On June 10, 2022, a District Hearing Officer (“DHO”) denied the motion, concluding it was barred because the issue had already been adjudicated in 2008. Kreitzer appealed.

Kreitzer’s appeal of the June 10, 2022 denial from the DHO proceeded to a hearing before a Staff Hearing Officer (“SHO”), who issued an order on August 3, 2022, vacating the DHO’s order and denying Kreitzer’s C-86 motion filed on March 15. The SHO found Kreitzer failed to meet his burden of proof because he did not submit any new medical evidence supporting an increase in the degree of vision loss. The SHO noted the doctor’s report from 2008 already considered the 2008 surgical findings, including the lens removal, and the previously awarded 33% vision loss remained appropriate.

Kreitzer filed a complaint for a writ of mandamus with the Tenth District Court of Appeals, arguing the Industrial Commission should have granted his motion for total loss based on the legal significance of the lens removal surgery and the 2008 order was legally incorrect under State ex rel. Autozone, Inc. v. Indus. Comm., 2008-Ohio-541, and State ex rel. Parsec v. Agin, 155 Ohio App.3d 303, 2003-Ohio-6186 (10^th Dist.).

The court rejected Kreitzer’s argument and denied the writ. The court found Kreitzer’s March 2022 motion, which was the only decision properly before the Commission and the court, did not raise any claims about legal error or request continuing jurisdiction. The court emphasized the Industrial Commission is not required to reopen old awards without new and changed medical evidence, and here, Kreitzer relied entirely on a report from 2008 that had already been considered. The court explained that Autozone and Parsec do not create a blanket rule that surgical removal of a lens requires a finding of total vision loss. Rather, such determinations depend on medical evidence showing the extent of vision loss attributable to the injury, measured before corrective surgery. The Court distinguished these cases from Kreitzer’s situation by clarifying the court in Parsec relied on a finding that the claimant had sustained a total loss of vision prior to surgery. In Autozone, the court specifically held a physician’s finding that claimant was legally blind supported a determination for total loss.

To establish a claim for award under RC. 4123.57 (B), Kreitzer needed to submit medical evidence showing the amount of vision loss. Because Kreitzer submitted no new evidence to demonstrate an increase in loss, he was not entitled to an increase in scheduled-loss compensation for total loss of vision. The Industrial Commission’s denial was supported and the court overruled Kreitzer's objections.

Temporary Total Compensation

State ex rel. Camp v. Ferrellgas, Inc., 2025-Ohio-464 (February 13, 2025)

On June 13, 2017, Adam Camp sustained a work-related injury while lifting a propane cylinder during his employment. His workers’ compensation claim was initially allowed for the following physical conditions: bilateral inguinal hernia without obstruction or gangrene, not current; post op seroma inguinal area; and mononeuropathy ilioinguinal left lower extremity. Camp was awarded temporary total disability compensation (“TTD”) starting on June 14, 2017, and underwent hernia surgery in July.

In May 2019, Gururau Sudarshan, M.D., filed two MEDCO-14 forms indicating Camp could return to work part-time with restrictions and was a candidate for vocational rehabilitation. On August 7, 2019, Paul T. Hogya, M.D., issued a report finding Camp had reached maximum medical improvement for the allowed conditions and could perform light-duty work with restrictions. Following this report, Camp’s employer filed a C-86 motion to terminate TTD which was heard before the Industrial Commission. A District Hearing Officer (“DHO”) issued an order terminating TTD, effective October 8, 2019. Camp did not return to work or participate in vocational rehabilitation following this determination.

On November 12, 2020, Camp filed a motion to amend his claim to include the psychological conditions of unspecified depressive disorder and generalized anxiety disorder, following a report by Jennifer Stoeckel, Ph.D., who found Camp suffered from these conditions as a result of accident. The Commission allowed the additional conditions in October 2021. Dr. Stoeckel completed additional MEDCO-14 forms, certifying Camp’s inability to work due to the newly allowed conditions from November 2, 2020, through April 6, 2022. Camp subsequently filed a motion requesting TTD compensation for this period.

A DHO granted the request, finding the Camp was unable to work and suffering a wage loss as a direct result of the allowed psychological conditions. The DHO awarded TTD compensation from November 2, 2020, through March 23, 2022, and continuing with the submission of proof. Ferrellgas, Inc., appealed the decision, arguing Camp was not eligible for TTD because he had not been working prior to the onset of the psychological conditions and had failed to seek work or vocational rehabilitation after being found at MMI in 2019.

A Staff Hearing Officer (“SHO”) vacated the DHO’s order and denied TTD compensation. The SHO emphasized that Camp had not worked in any capacity since being found at MMI in 2019 and had not demonstrated that his failure to return to work or seek rehabilitation was due to the allowed conditions. The SHO concluded Camp’s wage loss beginning November 2, 2020, was due to his failure to return to the workforce, not the newly allowed conditions. The Commission refused further appeal and denied Camp’s request for reconsideration.

Camp filed a mandamus action, seeking an order compelling the Commission to award TTD compensation. He argued that under R.C. 4123.56(F), as amended in 2020, the Commission improperly applied the voluntary abandonment doctrine by focusing on his employment status prior to the onset of the psychological conditions. Camp relied on the Tenth District Court of Appeal’s decision in Autozone Stores, Inc. v. Indus. Comm., 2023-Ohio-633, which held that R.C. 4123.56(F) focuses on whether the claimant is unable to work due to the allowed conditions during the claimed period, without regard to prior employment status.

The magistrate, relying on Autozone, focused on whether Camp was unable to work during the requested period of TTD compensation due to his allowed psychological conditions. The magistrate emphasized once Camp became medically unable to work due to those conditions, the reasons he had not been working prior to that point, such as his return to work after reaching MMI for his allowed physical conditions, were irrelevant. The magistrate concluded Camp’s inability to work was directly caused by his psychological conditions and recommended granting writ of mandamus to award TTD.

However, while Camp’s case was pending, the Ohio Supreme Court reversed the Tenth District Court of Appeal’s decision in Autozone, clarifying that R.C. 4123.56(F) requires a claimant to show the inability to work is not only caused by the allowed conditions but also not due to reasons unrelated to the injury. The Court stated the inability to work must be directly caused by an impairment arising from an injury and not caused by reasons unrelated to the allowed injury. If an injured worker is not employed for reasons unrelated to their approved injury, the worker is not entitled to wage loss compensation, even if the injury later causes a new or additional disability.

Applying the Supreme Court’s interpretation, the Tenth District found that although Camp’s psychological conditions rendered him unable to work starting November, 2020, he had already been out of the workforce for over a year due to reasons unrelated to those conditions. The court concluded Camp’s wage loss was not a direct result of the allowed psychological conditions but rather his failure to return to work after reaching MMI for his physical injuries. Accordingly, the court denied the writ of mandamus, holding Camp was not entitled to TTD compensation because his wage loss stemmed from reasons unrelated to the allowed conditions in the claim.

© Copyright 2025 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

Ohio Bureau of Workers’ Compensation Update 

BWC Actions

The Board of the Ohio Bureau of Workers’ Compensation (“BWC”) met in January 2025to discuss another potential rate reduction for Ohio’s private employers. The proposed rate reduction would be 6% which would amount to almost $60 million less in premiums paid by Ohio private employers. It would apply to the next fiscal year effective July 1, 2025. If approved at the Board’s next meeting on February 28, 2025, this reduction would be the sixth straight reduction since Governor DeWine took office and the 16th rate decrease in the last 17 years going back to 2008.  Overall, the average rate levels for the 257,000 private and public Ohio employers are at their lowest in over 60 years.

The proposed 6% rate cut represents an average statewide premium change, including administrative costs. The actual premium paid by individual private employers depends on several factors, including the expected future claims costs in their industry, their company’s recent claims history, and their participation in various BWC programs.

Ohio Judicial Decisions

Temporary Total Compensation 

State ex rel. Ohio State Univ. v. Pratt, 169 Ohio St.3d 527, 2022-Ohio-4111, 206 N.E.3d 708

On June 20, 2017, the claimant, a food and beverage manager for OSU at the Blackwell Inn, submitted her two-week notice, to resign on July 5, 2017. She had an offer of employment from a different employer. Four days later, on June 24, 2017, the claimant sustained a trip and fall injury. The claimant’s claim was allowed, and she underwent surgeries on June 27, 2017, and May 29, 2018, and was paid TTD compensation. The employer moved to terminate TTD. The commission’s SHO determined TTD was payable because the claimant did not voluntarily abandon the workforce as she was leaving her position at OSU for another position. The commission voted not to exercise continuing jurisdiction, but, in the dissent, one commissioner asserted the majority misinterpreted and misapplied State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 1446, 2018-Ohio-3890, 119 N.E.3d 386, by evaluating whether the claimant intended to abandon the workforce instead of whether the claimant intended to abandon her former position of employment.

The Court of Appeals granted the employer’s requested writ of mandamus and ordered the commission to vacate the award of TTD after July 5, 2017. The commission’s order was issued after the decision in Klein but before the effective date of the amendment to R.C. 4123.56(F). The Court found that, under Klein, the commission is to consider only whether the claimant has voluntarily abandoned her former position of employment and not whether she has removed herself from the workforce generally.

The Ohio Supreme Court reversed the decision of the Court of Appeals and found that the commission did not abuse its discretion by determining that, but for the injury, the claimant would have remained in the workforce. The Supreme Court explained that while Klein referenced whether the claimant “voluntarily removes himself from his former position of employment,” the analysis was specific to the facts of the case and that “Klein’s abandonment of his former position was therefore equivalent to abandonment of the workforce during the period for which he sought TTD compensation.” Thus, the Supreme Court concluded, “The question is whether those circumstances demonstrate a voluntary abandonment of the workforce – permanent or temporary – such that the injured worker’s wage loss is not the result of the work injury. In other words, do the circumstances indicate that the injured worker would be working – somewhere – but for the injury?”

 Permanent Partial Disability

State ex rel. Hobbs v. Indus. Comm., 10th Dist. Franklin No. 22AP-308, 2023-Ohio-1759

Tenth District Court of Appeals found the commission did not abuse its discretion in denying the claimant’s application for another increase in his percentage of permanent partial disability under R.C. 4123.57(A). The commission found the request was not supported with “substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination,” as required by R.C. 4123.57(A). The record did not show the clamant underwent any medical treatment since 2002, that his condition became disabling following his last treatment, or that the claim was amended to include an additional medical condition, nor does the record support employee's contention that he testified that his medical condition was worsening since no such testimony appears in the record. The Tenth District Court of Appeals found the claimant failed to meet the burden in mandamus to demonstrate a clear right to relief, and denied the claimant’s requested writ of mandamus. Following this decision, the claimant filed a Notice of Appeal to the Ohio Supreme Court, which is currently pending.

Scheduled Loss

State ex rel. Harris v. Indus. Comm., Supreme Court of Ohio, Slip Opinion No. 2023-Ohio-3081. The claimant sustained a head injury that impacted his vision. The commission denied his motion for scheduled loss of vision compensation pursuant to R.C. 4123.57(B), relying on a physician’s medical opinion that the claimant’s vision impairment was not due to an actual injury to the eyes. The Tenth District Court of Appeals found the commission did not abuse its discretion and denied the requested writ, finding there was some evidence in the record that established the claimant’s loss of vision was not attributable to damage to the structure or function of the claimant’s eye, but was due to the loss of brain function. R.C. 4123.57(B) did not authorize loss of use compensation when the loss of brain function was the cause of the vision loss rather than actual damage to the eye structure itself. The Supreme Court affirmed the Court of Appeals’ decision and denied the writ of mandamus, albeit on different grounds. The Supreme Court determined the commission’s order, which was based upon “the absence of a credible assessment” of loss of vision, was based upon some evidence. The Supreme Court declined to address the Smith case, finding the commission’s order did not deny compensation in reliance upon that case.

Substantial Aggravation of a Preexisting Condition

Dunn v. Devco Holdings, Inc., 3d Dist. Union No. 14-22-18, 2023-Ohio-680

The claimant suffered a workplace injury to her hip, and she later filed for additional psychological conditions in her workers’ compensation claim. The commission additionally allowed the claim for “substantial aggravation of persistent depressive disorder, with anxious distress, late onset, with persistent major depressive disorder, moderate.” The employer appealed to common pleas court under R.C. 4123.512. The trial court found in favor of the claimant, finding the testimony of Dr. Black to be persuasive in that her diagnosis is based upon objective diagnostic findings, objective clinical findings, or objective test results as required by R.C. 4123.01(C), and that the psychiatric condition arose from the injury.

The employer appealed, arguing the claimant did not present evidence of objective diagnostic findings, objective clinical findings, or objective test results that demonstrated a substantial aggravation of her psychological condition. Specifically, the employer argued the MMPI-2 test that Dr. Black had administered to the claimant is not an objective test and did not show substantial aggravation. The Third District Court of Appeals found Dr. Black testified at trial that the MMPI-2 is a standardized objective test. It gives you the idea of the person’s personality characteristics and helps with your diagnosis formulation. It has 567 true and false questions and the responses are combined together and scored to give you kind of a concrete and quantifiable results. She added that the MMPI-2 was developed out of standardized testing and provides a concrete and quantifiable result. She explained that although the person’s answers are subjective, the actual results and scoring of it makes it objective. The appellate court affirmed the trial court’s decision, finding the Dr. Black’s testimony showed that the MMPI-2 test provided objective results, and her testimony that the claimant’s injury substantially aggravated a pre-existing condition was based on objective findings, as required by R.C. 4123.01(C).

© Copyright 2025 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

Ohio Judicial Decisions

Supreme Court of Ohio

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tenth District Court of Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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