State News : Ohio

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 (8^th 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.