State News : Ohio

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.