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.
REGULATORY ACTIONS (New Rules)
4123-6-36 Enhanced care program
(Effective January 1, 2023)
The proposed new rule would permit an MCO to authorize medical treatment reimbursement requests for any conditions within the same knee as the conditions initially allowed in the claim and presumed to be causally related to the industrial injury during such time as the conditions are being considered for allowance or being adjudicated. If the injured worker or employer appeal a claim, additional allowance, or medical treatment reimbursement request, the claim will be removed from the enhanced care program. Applies to knee only claims. Treatment limited to first sixty days from date of initial allowance. State fund claims, only.
4123-3-37 Lump Sum Advancements
Eliminates the requirement that a Lump Sum Advancement application be notarized. In response to the BWC’s request for comments, on September 26, 2022, the OMA submitted a comment to the BWC in support of the proposed change.
Changes the criteria the BWC uses to determine the rate of a successor entity that wholly succeeds one or more legal entities when at least one of the entities involved has a merit rating experience. The proposed change will permit the BWC to combine the experience of all of the involved entities to establish the rate of the successor entity without regard to whether one of the entities involved has a merit rating experience. Eliminates the requirement that a legal entity be assigned only one risk pursuant to O.A.C.
4123-17-13 Employer Application for Workers’ Compensation Coverage
Permits the BWC to deny or rescind an employer’s application for coverage when the BWC determines the employer that has submitted an application for coverage is essentially the same employer for which the BWC has previously provided coverage. Upon denial or rescission of the employer’s application, the BWC will have the option to maintain the applying employer’s prior or existing policy, in addition to the BWC’s current authority to transfer a prior policy to the applying employer or reactivate a previously cancelled policy of the applying employer.
Modifies the start date of Employer’s coverage so that it begins upon the BWC’s receipt of the employer’s coverage application fee, instead of the BWC’s receipt of the employer’s first estimated premium payment, as long as the employer makes the first estimated premium payment.
State ex rel. Ohio State Univ. v. Pratt, 2022-Ohio-4111 (November 18, 2022)
On June 20, 2017, Ms. Pratt submitted a two-week letter of resignation stating her last day of work at OSU would by July 5th. On June 24th she sustained a work-related injury and on June 27th she had surgery. On June 28th, she accepted a new job with Sweet Carrot to begin in the fall after she recovered from her surgery. She requested temporary total compensation. OSU objected based on her resignation letter arguing Ms. Pratt was ineligible for temporary total compensation because she voluntarily abandoned her previous position of employment prior to her work injury. OSU relied on the Supreme Court’s 2018 decision in Klein v. Precision Excavating & Grading Co., 155, Ohio St.3de 78, 2018-Ohio-3890. In Klein, the Court held that when a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary total compensation, even if the claimant remains disabled at the time of his separation from employment. The Industrial Commission granted Ms. Pratt’s request for temporary total compensation and OSU appealed.
The Supreme Court acknowledged that its decision in Klein created some confusion because the Court interchangeably referred to both abandonment of the claimant’s former “position of employment” and abandonment of “employment” generally. And, the Court noted that its holding in Klein focused on an injured worker who voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury.
The Court clarified its prior decision in Klein and found in favor of Ms. Pratt stating that the test for temporary total compensation is not whether the injured worker has abandoned the former position of employment but whether the injured worker has abandoned the workforce. The Court ruled that a determination of voluntary abandonment requires consideration of all relevant circumstances existing at the time of the alleged abandonment. The Court also noted that, in contrast to Ms. Pratt’s case, in Klein, the injured worker resigned his employment to look for another job and did not have another job to go to during his period of disability.
Note that the Court determined that the current version of R.C. 4123.56 did not apply as it became effective September 15, 2020, after the Industrial Commission issued its final order in Ms. Pratt’s workers’ compensation claim.
R.C. 4123.56(F) current states:
If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the
employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is 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.
State ex rel. Walmart, Inc. v. Hixson, 2022-Ohio-4187 (November 30, 2022)
Ms. Hixson sustained injuries when she fell while working for Walmart in 2017. Ms. Hixson received temporary total compensation. On March 6, 2018, Ms. Hixson notified Walmart of her age-related retirement and Walmart moved to terminate her temporary total compensation based on her voluntary abandonment of employment. The Industrial Commission denied Walmart’s motion, relying on State ex rel. Pretty Prods. Inc., v. Indus. Comm. 77 Ohio St.3d 5, (1976) which held that a claimant who voluntarily abandons his employment is entitled to temporary total compensation if he is medically incapable of returning to work at the time of the abandonment. In other words, a claimant can abandon a former position only if he has the physical capacity for employment at the time of the abandonment.
The Industrial Commission concluded that Ms. Hixson did not voluntarily abandon her employment when she retired because she was temporarily and totally disabled from her position with Walmart on the date of her retirement.
The Ohio Supreme Court subsequently decided State ex rel. Klein v. Precision Excavating & Grading Co., overruling State ex rel. Pretty Prods. Inc., holding that when a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary total compensation, even if the claimant remains disabled at the time of his separation from employment.
After the Ohio Supreme Court issued its decision in Klein, Walmart appealed the Industrial Commission’s 2018 denial of its motion to terminate temporary total compensation and asked the Court to retroactively apply the new rule in Klein to Ms. Hixson’s claim.
The 10th District Court of Appeals agreed and terminated Ms. Hixson’s temporary total compensation based on a retroactive application of the Ohio Supreme Court’s ruling in Klein. The 10th District Court of Appeals noted that decisions of the Ohio Supreme Court are generally applied retroactively unless the Supreme Court states otherwise, and the Supreme Court did not state the Klein decision did not apply retroactively. Ms. Hixson appealed.
The Ohio Supreme Court reversed the 10th District Court of Appeals decision and reinstated Ms. Hixson’s temporary total compensation. The Supreme Court stated that its decision in Klein applied prospectively only. The Court noted that, although it did not explicitly say it in its decision, the language of its decision in Klein implies that it should be applied prospectively, only. The Court held that its decision in Klein established a new principle of law that was not foreshadowed in prior decisions and that retroactive application of the Klein decision would cause and inequitable result to injured workers who were not part of the case.
State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., 2022-Ohio 4581 (December 22, 2022)
Travis Gelhausen lost control of a truck he was driving for Waste Management of Ohio which flipped on its side pinning him in the wreckage. Jolene Szapowal was driving behind Mr. Gelhausen and stopped to help. She later testified via affidavit that when she approached the wreckage, she could see Mr. Gelhausen from his ribs to his knees and that he was breathing for approximately three minutes before he passed. She did not see Mr. Gelhausen move his arms or legs.
Mr. Gelhausen’s dependents filed for compensation under R.C. 4123.57(B) for Mr. Gelhausen’s loss of use of both arms and legs during the three minutes he survived prior to his death. The expert witnesses for the dependents and Waste Management offered contrasting opinions as to the medical conclusions to be drawn from the nature of Mr. Gelhausen’s post-accident breathing. However, both experts agreed that, based on Ms. Szapowal’s non-medical testimony, Mr. Gelhausen initially survived the accident before he died.
A Staff Hearing Officer for the Industrial Commission initially denied the dependents’ request for loss of use compensation finding that Mr. Gelhausen did not survive the accident for a discernible period of time after his injury. On reconsideration, the Industrial Commission exercised its continuing jurisdiction finding that the Staff Hearing Officer’s Order contained a clear mistake of fact as it was uncontroverted that Mr. Gelhausen had survived the accident for approximately three minutes. The
Industrial Commission further determined that Mr. Gelhausen lost the use of his bilateral arms and legs during the time between the accident and his death and awarded the dependents 850 weeks of compensation.
Waste Management appealed. The Tenth District Court of Appeals found that there was a mistake of fact therefore the commission did not abuse its discretion when it invoked its continuing jurisdiction. Waste Management appealed to the Supreme Court of Ohio.
The Ohio Supreme Court upheld the Industrial Commission’s decision to grant
850 weeks of loss of use benefits to the dependents of a deceased worker who survived for three minutes before dying from his injuries.
The Supreme Court also upheld the commission’s decision to invoke continuing jurisdiction. The Court noted that, contrary to the Staff Hearing Officer’s conclusion that Mr. Gelhausen did not survive the accident, both experts agreed that Mr. Gelhausen initially survived the accident. The Court reiterated that Ohio law does not require a specific length of time for survival or that the injured worker be aware of his loss of use in order to qualify for scheduled loss of use benefits. The Court also upheld the commission’s award of a lump sum payment of 850 weeks of compensation. The Court stated that, if Mr. Gelhausen had survived, Ohio law would have permitted him to request the BWC to commute his weekly installments to a lump sum payment. Further, Ohio law permits the dependents to receive an award up to the amount Mr. Gelhausen would have been entitled to receive had he survived. Therefore, the commission did not abuse its discretion when it awarded the dependents 850 weeks of compensation in a lump sum amount.
Note that an interesting evidentiary issue lingers within the Industrial Commission’s decision to award loss of use benefits to the dependents. The only evidence that Mr. Gelhausen survived the accident was the non-medical testimony of Ms. Szapowal. And, although, Ms. Szapowal testified that she did not see Mr. Gehausen move his arms or legs, there was no objective medical evidence that Mr. Gelhausen could not move his arms or legs. However, the Ohio Supreme Court determined this point was irrelevant. Instead, the Court focused solely on the commission’s finding of a mistake of fact regarding Mr. Gelhausen surviving the accident to justify the commission’s invoking its continuing jurisdiction.
10th District Court of Appeals
State ex rel. Block v. Indus. Comm., 2022-Ohio-4474 (December 13, 2022)
On December 12, 2012, Michael Block was injured while working as a roofer when he fell from a residential roof onto a concrete walkway. He suffered a number of injuries, most prominently to the right wrist. After surgery and years of treatment, he filed a claim for the total loss of use of the right hand. The Industrial Commission denied Mr. Block’s motion and he appealed.
The Court upheld the commission’s decision based on the abuse of discretion standard stating that the Court will not determine that the commission abused its discretion when there is some evidence in the record to support the commission’s finding.
The Court noted that R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the total loss of a body part, such as the total loss of an arm or leg. “Loss” includes not only amputation, but also the loss of use of the affected body part. To qualify for compensation under R.C. 4123.57(B), the loss of use need not be absolute if the claimant has “suffered the permanent loss of use of the injured bodily member for all practical intents and purposes.”
The Court noted that Mr. Block relied heavily on the rebuttal report of his expert
witness, Dr. George, to support permanency, pointing to Dr. George’s findings that there was total ankyl
fingers extending all the way up throughout the hand to the wrist. However, the Court stated that these findings did not mandate a conclusion that Mr. Block suffered a total loss of use of the right hand. Ankylosis of the wrist and loss of sensation in two fingers did not inevitably equate to total loss of use of the right hand. Mr. Block's allowed conditions and ankylosis were in his wrist, not his hand, and a loss of use of two or more fingers by amputation or ankylosis is required to constitute a loss of the use of the hand per R.C. 4123.57(B). Even if Dr. George opined Mr. Block had a loss of sensation in two fingers, Mr. Block did not show the loss of use of two or more fingers.
The Court deferred to the commission’s conclusion that Dr. George's rebuttal report was insufficient to support a finding that there was a total loss of use and that any loss of use was permanent. In contrast, the commission relied on Dr. Pellegrino’s report providing some evidence to support the commission’s decision that Mr. Block retained some function of the right hand therefore the allowed injury did not result in a total permanent loss of use of the right hand. Dr. Pellegrino explained that Mr. Block's primary functional limitation of the right arm was due to the fusion of his right wrist, and Mr. Block suffered some subjective decreased sensation in the right hand, he indicated that the right hand neurological function remained functionally intact to allow full range of motion without increased pain, and grasping, pincher grasp, and fine-motor movement.
State ex rel. Walters v. Indus. Comm., 2022-Ohio-4587 (December 20, 2022)
On May 16, 2018, Timothy Walters was employed as a mechanic with Paradise Lawn Care, Inc. Mr. Walters was working on a small bucket loader that was used to load mulch onto company trucks. The bucket loader moved from its upright position toward the ground, landing on Mr. Walters’ chest. Mr. Walter’s was found pinned under the bucket loader and was unconscious. The next day, Mr. Walters died from a sustained a traumatic cardiac arrest as a result of traumatic asphyxiation caused by his work injury.
Laurie Walters, Mr. Walters’ surviving spouse, filed a motion for a scheduled loss of use award. The Industrial Commission denied Ms. Walters’ motion stating that the medical evidence did not substantiate that a loss of use award was warranted where, as a result of this anoxic brain injury, decedent was left without function of his arms and legs and without the ability to hear or see. Relying on State ex rel. Smith v. Indus. Comm., 138 Ohio St.3d 312, 2014-Ohio-513, the Industrial Commission stated that this type of injury does not satisfy the requirements for the requested loss of use award as the losses of function due to a brain injury do not qualify for the losses enumerated in R.C. 4123.57(B).
The 10th District Court of Appeals affirmed the Industrial Commission’s decision to deny the loss of use award stating that the loss of use of vision and hearing caused by anoxic brain injury that prevents the processing and visual and auditory signals by functioning eyes and ears is not compensable under R.C. 4123.57. The 10th District Court
brain injury when the Ohio Supreme Court has not allowed the loss of use of eyes and ears due to anoxic brain injury, and specifically stated in Smith that the General Assembly had not included loss of brainstem functioning in the schedule for compensation set forth in R.C. 4123.57.
The Court noted that, as with the worker's eyes and ears in Smith, in the present case, there was no evidence that Mr. Walters’ legs and arms were not functionable. Instead, the expert medical report relied on by the commission showed that Mr. Walters was left without function of his arms and legs due to anoxic brain injury. There was no conclusive evidence from any medical professional that Mr. Walters suffered injuries directly to the eyes and ears, and there was no evidence of trauma to the eyes or ears.
State ex rel. AutoZone Stores, Inc. v. Indus. Comm., 2023-Ohio-644 (March 2, 2023)
On June 15, 2020, Jason Schomaker sustained an injury when he was moving batteries while working for AutoZone. On September 5, 2020, Mr. Schomaker was involved in an argument with another employee. AutoZone conducted an investigation and terminated Mr. Schomaker on September 16, 2020. On November 16, 2020, Mr. Schomaker underwent surgery and filed a request for temporary total compensation.
AutoZone argued that Mr. Schomaker was not eligible for temporary total compensation pursuant to R.C. 4123.56(F) because he was terminated from employment prior to his surgery. The Industrial Commission rejected AutoZone’s argument and granted Mr. Schomaker’s request for compensation beginning on the date of his surgery as he was unable to return to and perform his former position of employment due to the allowed conditions in his claim. AutoZone appealed.
The Court noted that when a claimant removes himself from employment for reasons unrelated to the work-related injury, he is no longer eligible for temporary-total-disability compensation since the voluntary abandonment—and not the injury—causes the loss of wages. Amended R.C. 4123.56(F) contains two distinct sections for determining whether an employee is entitled to TTD compensation based upon wage loss. Pursuant to the first section, an employee is entitled to receive compensation if the employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease. Pursuant to the second section of R.C. 4123.56(F), if an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive wage-loss compensation.
The Court concluded that the first section applied to Mr. Schomaker. He was entitled to receive compensation because he underwent an authorized surgery to treat the allowed conditions on November 16, 2020. Mr. Schomaker was unable to work as of the date of his surgery as the direct result of an impairment arising from an injury. At that point, his failure to work was not “a direct result of reasons unrelated to the allowed injury” as stated in the second section. The Court noted that contrary to the employer's argument, as of November 16, 2020, Mr. Schomaker was unable to work regardless of the reason for or cause of his termination on September 16, 2020. His reason for not working up until the date of surgery was irrelevant for purposes of determining his eligibility for wage-loss compensation after the surgery due to the allowed conditions.