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“The Calfee Corner” - Recent Successes Before the Industrial Commission of Ohio and Ohio Courts
In one of the few new decisions upholding independent contractor status, the Supreme Court of Ohio recently turned down the appeal of a “short haul” delivery truck driver seeking to be classified as an “employee” so as to be eligible for benefits under the Workers’ Compensation Act of Ohio. In Barcus v Administrator, Ohio BWC (Franklin Cty C.A. Case No. 14-AP-942); app. denied2016-Ohio-467 (2/10/16), the State Supreme Court upheld lower court and Ohio Industrial Commission determinations that the relationship between driver Barcus and alleged employer CEVA Freight was an independent contractor relationship.
Barcus was a truck driver who delivered “home delivery” freight for CEVA Freight in a dedicated “short-haul” regional area. Barcus was injured while working for CEVA and sought workers’ compensation benefits. However, Barcus leased his truck to CEVA, signed an “independent contractor” agreement, was compensated on the basis of a percentage of the tariff for each load and not by the hour, and received a 1099 at the end of the year. Barcus nonetheless argued that the “economic realities” were that he was merely an employee. Barcus pointed to the everyday routine of his work; specifically, that he was assigned a group of customers that required delivery within a four hour window (albeit in any order that Barcus chose), that CEVA decals and logo were required on the side of his truck, that CEVA mandated a uniform, and that there were various CEVA training and other work requirements, including a drug test.
At an evidentiary hearing before the Ohio Industrial Commission, the alleged employer presented evidence of the independent contractor nature of the relationship and the services performed, including explaining that any apparent employer requirements were actually requirements passed along either from customers or from Department of Transportation (DOT) and/or Federal Motor Carrier Safety (FMCS) regulations. The Ohio Commission denied Barcus’ claim on the basis that he was in fact an independent contractor.
Barcus filed an appeal to the trial level court in Franklin County, Ohio (Columbus). Prior to a trial by jury on the merits, CEVA filed a motion to dismiss the case (summary judgment), supported by a transcript of the proceedings before the Industrial Commission demonstrating the evidence of the independent contractor relationship. The trial court granted CEVA’s summary judgment motion.
Barcus filed an appeal to the Ohio Tenth District Court of Appeals. After briefing and oral argument, the appeals court upheld the trial court’s ruling. The court’s decision relied upon the long standing “right to control” test and found that most factors pointed towards an independent contractor relationship (agreement of the parties; method of compensation; ownership and responsibility of the primary tool in question (the truck); right to refuse work). The Court did note that the decal/logo and uniform requirements might point to an employment relationship, but found that these requirements were, in actuality, DOT requirements. Furthermore, as the court noted, “as a practical matter, every contract for work reserves to the employer a certain degree of control to enable him to insure that the contract is performed according to specifications.”
Barcus filed a further appeal with the Ohio Supreme Court. On February 10, 2016, the Court turned down the appeal. This case can be put on the “short stack” of rulings finding in favor of an independent contractor status in our current legal climate.
Barcus was represented by M. Christopher Kneflin of Fox & Fox Co., L.P.A.; Ohio BWC was represented by Ohio Assistant Attorney General John R. Smart; William L. S. Ross and Christopher M. Ward of Calfee, Halter & Griswold LLP represented CEVA Freight.
Anthony Q (15-356755) -- Ohio jurisdiction found for California employee, (June 3, 2016). A Calfee client faced a tough workers’ compensation coverage situation -- it did not have coverage for its California resident employee who suffered an ankle/foot injury in the course and scope of his California employment for the Ohio-based employer. Worse yet, the Ohio BWC order denying the claim on jurisdictional grounds was not appealed.
Not to worry. We filed a motion for “Continuing Jurisdiction” asserting a “clear mistake of law or fact” based on there being sufficient contacts between Claimant’s California-based employment and the State of Ohio to allow for Ohio coverage. Specifically, evidence was presented at hearing that the contract of employment was entered into in Ohio, Claimant’s work activities were directed from Ohio, he was paid from Ohio, the only state of available coverage was Ohio, and, perhaps, most significant, Claimant’s employment, while not localized in Ohio, did involve regular trips to the Ohio home office. Thus at least some portion of Claimant’s work actually was performed in Ohio.
Based on the foregoing, the Ohio Industrial Commission exercised its “Continuing Jurisdiction” and allowed the claim to the relief of both the Claimant and the Employer.
Scott P. (14-811966) -- Changing the theory of causation does not get the Claimant a second bite of the apple at the Industrial Commission. (April 6, 2016)
Mr. P is a delivery driver who fell from the back of his truck, hit his head, and cracked his ribs. The claim was initially allowed for two rib fractures and an intracranial hemorrhage. Later, the request for the additional allowances of concussion and post-concussion syndrome were granted. Soon after came the request for psychological conditions -- “Depressive Disorder, Single Episode, Moderate” and “Adjustment Disorder with Anxiety.” The theory of causation was that of direct causation. In support of the allowances, Mr. P submitted a report from his examining psychologist.
In defense of these conditions, the Employer scheduled him for an examination with a psychologist of our choice. To assist our examiner in making the determination of whether this condition was directly related to the allowed physical conditions received in the fall, we requested and obtained records from Mr. P’s primary care physician. Our request encompassed records from several years prior to this incident. In those records, we found that Mr. P, due to anger and anxiety, had been prescribed Xanax for several years before this incident -- a small detail that he forgot to tell his own examining psychologist.
Based on the report from our doctor and the faulty history provided by the Claimant to his expert, the Industrial Commission denied the requested conditions by direct causation at all levels. Soon after that denial, Claimant filed a new motion asking for the same conditions based on the theory that the allowed physical conditions “substantially aggravated his pre-existing psychological conditions.” When that new motion arrived at the District Hearing Officer level of the Industrial Commission, the Hearing Officer opined that the Industrial Commission lacked jurisdiction to adjudicate the request for “substantial aggravation of a pre-existing psychological condition” based onStarkey v. Builders FirstSource Ohio Valle, L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278 noting that, when a condition is in court on one theory of causation, the Industrial Commission cannot adjudicate that same condition based on a new theory of causation. The request for substantial aggravation does not change the condition; just the method of causation and that can be litigated in court with the initial theory of causation.
The denial of the psychological condition is now in Court on the Claimant’s appeal and hopefully, ripe for settlement of the whole claim.
Timothy H. 14-827371 --- Claimant cannot take a 7-year-old rotator cuff tear and turn it into a new tear. (October 2, 2015)
A factory worker, on 4/25/14, pushed a heavy lift device and chain and felt a pain in his right shoulder. The Self-Insured Employer certified the claim for a right shoulder sprain/strain. On 2/9/15, a motion was filed requesting that the claim be additionally allowed for “Supraspinatus Tendon, Substantial Aggravation of AC Joint Arthritis and Undersurface Osteophyte, Degenerative Changes in Right Shoulder Glenoid Labrum and Humeral Head.” In a strategic decision, it was decided to take a court reporter to the District Hearing Officer hearing and obtain a more detailed medical history from the Claimant, as it was noted that the doctor providing the causal for all of these conditions was not only his prior surgeon, but also a friend.
After obtaining a more detailed medical history, records were requested from the Claimant’s prior right shoulder surgeries, CD copies of the shoulder MRIs and X-rays. The Claimant had several previous surgeries on the same rotator cuff -- failed surgeries. The Claimant argued that prior to this incident there was “a strand” of rotator cuff remaining, and that “strand” was torn by this incident! To disprove this theory, the MRIs and X-rays were re-read by a radiologist specialist and a separate report was obtained from a medical doctor putting all the pieces together. Despite this, the Staff Hearing Officer additionally allowed the claim for “Supraspinatus Tendon, Substantial Aggravation of AC Joint Arthritis and Undersurface Osteophyte, Degenerative Changes in Right Shoulder Glenoid Labrum and Humeral Head.”
Upon review of this Order, an appeal was filed with the Full Industrial Commission. A Commission appeal must be based on a mistake of fact or law. The allowance of “Right Shoulder Supraspinatus Tendon” is not a diagnosis -- it is a body part. Body parts are no longer recognized under Ohio law as conditions or diagnoses. Further, the Staff Hearing Officer relied on the Employer’s report to allow these conditions -- a clear mistake of fact. After a Hearing by the Full Commission, all of the requested additional allowances were denied, based on the Employer’s medical report and radiology review. The Self-Insured Employer will not be required to pay for a shoulder replacement under this claim --- a surgery that had been discussed years before this incident!
COURT DECISIONS OF NOTE
Violation of Specific Safety Requirement (VSSR)
In State ex rel. Armstrong Steel Erectors, Inc. v. Industrial Commission of Ohio, et al.,144 Ohio St.3d 243, 2015-Ohio-4525 (November 3, 2015), the Ohio Supreme Court denied Armstrong Steel Erector’s request for a writ of mandamus and upheld a VSSR award for the Claimant. The Claimant, Frank Seidita, was an ironworker who was working beneath a bridge decking on top of a concrete pier. Chain link fencing had been strung between piers to catch falling debris and to act as a safety net. Seidita was not wearing a safety harness or fall-protection equipment when he fell through a gap between the pier and fencing.
The Industrial Commission (“IC”) found that Ohio Administrative Code (“O.A.C.”) 4123:1-3-03(L)(1) and (3), regarding the use of safety nets, applied to the case and that it was impractical for the Claimant to use personal protective equipment (“PPE”) based on his testimony. The IC found a VSSR, and a magistrate subsequently agreed. In upholding the VSSR finding, the Ohio Supreme Court rejected the Employer’s unilateral-negligence defense based on the Claimant’s failure to use employer-provided PPE because it found that the Employer had not first complied with the applicable safety regulation requiring the use of safety nets.
In State ex rel. Precision Steel Services, Inc. v. Industrial Commission of Ohio, et al., 2015-Ohio-4798 (November 24, 2015), the Ohio Supreme Court granted the Employer, Precision Steel’s request for a writ of mandamus and vacated the Industrial Commission’s finding of a VSSR. The Claimant, Melvin Myers, was injured when a magnet holding a 1,200 pound piece of metal fell on his hand. The Claimant was operating a Kone XLD ten-ton crane with a magnet attached by wire rope to turn a metal piece he was welding. The wire rope holding the magnet had loops at both ends. The upper loop was attached to the crane, and the smaller loop at the bottom of the wire was attached via hook to the magnet. The hook holding the magnet did not have a latch or clip closing it.
The Industrial Commission found that O.A.C. 4123:1-5-14(G)(1) and 4123:1-515(B) applied because the Claimant was operating a power-driven crane. The IC found that the crane had “a defective safety device” because of the missing latch and that such defect required the crane be taken out of service. A magistrate reversed, finding that the cited rules did not provide notice to repair or replace a defective hook safety latch on a crane. The magistrate also found that the hook and safety latch were not “equipment” under 4123:1-5-15(A). The Ohio Supreme Court granted the employer’s writ, finding that neither 4123:1-5-14(G) nor 4123:1-515(B) specifically requires a latch to be attached to a crane hook. Therefore, neither rule placed the Employer on notice of a legal obligation to put a latch on a hoist hook, replace a latch on a hook if one is missing, or remove the crane from service because a latch was not on a hook.
Temporary Total Disability (TTD)
In State ex rel. Frank Strahin v. Indus. Comm., 2016-Ohio-1323 (10th Dist. March 29, 2016), the 10th District Court of Appeals affirmed denial of a writ of mandamus and denied the Claimant’s request for TTD compensation. The Claimant, Frank Strahin, was injured in the course and scope of his employment, and his claim was allowed for various left hip and leg conditions. He was released to work full-duty and continued to work full-duty with no restrictions for approximately three years. The Claimant also testified at IC hearings that he had begun “looking into” retirement during this period. He completed retirement forms in October 2012 and indicated his reason for separation was “retirement.” He did not check the provided box for “health” as a reason, and at the time of his separation he was working full duty. His retirement became effective November 1, 2012.
The Claimant argued that there was evidence that his retirement was medically-induced and that he was therefore entitled to TTD compensation. The Claimant saw his physician on October 2, 2012. His physician noted increased pain due to a “flare-up of his meniscus tear.” The Commission and 10th district found this to be insufficient evidence. The Court noted that the Claimant testified at the IC hearings that he was contemplating retirement in June 2012, at which time he was working full duty with no restrictions. The Claimant also testified that his retirement was motivated at least in part by upcoming changes to the PERS system. Finally, the Court noted that there were no records in the parties’ stipulation of evidence which would indicate that the Clamant was having any problems with his knee or receiving any supportive care for the knee in June 2012.
In State ex rel. Ritzie v. Reece-Campbell, Inc., et al., 2015-Ohio-5224 (December 16, 2015), the Claimant, Fred Ritzie, was seeking temporary total benefits under some very unique circumstances. The Claimant was originally injured on November 10, 1994, and his claim was allowed for lumbosacral sprain, lumbar disc displacement, and postoperative infection. He returned to work light duty on September 25, 1995. He began treating with Dr. Brian Nobbs in August 2007, and he received temporary total disability (“TTD”) compensation and a 29% permanent partial disability (“PPD”) award over the next two years. The Claimant was then again injured in January 2010 while at work, and his 2010 claim was allowed for neck, upper back, and shoulder injuries. The Claimant settled then settled the 2010 claim on December 7, 2011. He continued lower-back treatments with Dr. Nobbs in 2011 and 2012, and Dr. Nobbs indicated that Claimant’s condition was “chronic but shown to improve with treatment.” In July 2012, the BWC additionally allowed three lumbar conditions in the 1994 claim, and the Claimant requested TTD beginning December 8, 2011 – the day after his 2010 claim settled – based on the new conditions.
The Industrial Commission found that he Claimant had not presented persuasive medical evidence of TTD as of December 8, 2011. It found that Dr. Nobbs’ report indicated the Claimant’s condition was improving and that it did not opine that the Claimant was disabled due to the allowed conditions in the 1994 claim. The appeals court denied the Claimant’s request for mandamus requiring the IC to pay TTD benefits beginning December 8, 2011. The Ohio Supreme Court then upheld denial of a writ of mandamus requested by the Claimant to award him TTD compensation and affirmed the appeals court, again noting that Dr. Nobbs’ notes indicated that the Claimant’s condition improved with treatment and that Dr. Nobbs did not indicate he considered the Claimant’s condition to have deteriorated to the point of TTD. The Court also reiterated that adding new conditions to a claim does not necessarily guarantee the payment of a new period of TTD compensation.
Permanent Total Disability (PTD)
In State ex rel. Boyd v. Scotts Miracle-Gro Co.., 146 Ohio St.3d 3, 2016-Ohio-1508 (April 13, 2016), the Claimant, Robert Boyd had an allowed claim for asbestosis in both lungs. He then applied for PTD benefits and submitted a report of Dr. Marissa Mertz, M.D., as support. The IC denied the PTD application based upon the vocational disability factors analysis of the medical reports of Dr. Shadel and Dr. Grodner, on behalf of the Employer and BWC, respectively. The Claimant then filed a writ of mandamus, arguing that the Commission abused its discretion in relying on the report of Dr. Grodner arguing that “he was not qualified to give an opinion because he did not take x-rays of Boyd and he was not a certified “B reader.”
The Ohio Supreme Court affirmed the appellate court’s judgment holding that the IC did not abuse its discretion in denying PTD to a worker suffering from asbestosis based on medical from a doctor who was not a certified B reader because IC Resolution R03-1-02, which requires evidence from a certified B reader, only applies to the initial allowance of an asbestosis claim.
In State ex rel. Old Dominion Freight Line, Inc. v. Indus. Comm., Slip Opinion No. 2016-Ohio-343 (September 15, 2015), the Ohio Supreme Court found that the Industrial Commission’s failure to send the Employer’s medical reports to independent examining physicians before their examination of the Claimant was not prejudicial when the Commission subsequently provided those reports to the physicians. The Claimant, Robert Mason, was injured while working as a truck driver. He applied for PTD on 2007 but his application was rejected. He again filed his application in July 2009. The Employer informed the IC that it would be submitting medical evidence opposing the application. The Employer filed reports from Drs. Clary, Sterle, and Murphy regarding the psychological and physical conditions in the claim. The IC then set up the Claimant with its own physicians but did not send them copies of the Employer’s medical reports. The IC denied the Employer’s subsequent requests to depose its doctors. Instead, the IC submitted copies of the Employer’s reports to the appropriate doctors and requested an addendum report.
The Employer’s complaint alleged that the IC’s medical reports were flawed because their doctors did not review the Employer’s medical reports before examining the Claimant. The Supreme Court found that there was no dispute that the IC should have sent the Employer’s medical reports to their physicians but failed to do so, albeit in good faith. However, the Court found that the IC’s doctors presumably reached a PTD opinion based on their own exams of the Claimant and not the findings of other physicians. The Court found Employer’s prejudice argument to be speculative as to whether the IC’s doctors would have reached different conclusions had they been provided with the Employer’s medical evidence at first.
In State ex rel. Tradesmen International v. Industrial Commission, et al 143 Ohio St.3d 336, 2015-Ohio-2342 (June 24, 2015), the Ohio Supreme Court affirmed the court of appeals’ denial of the employer’s mandamus request. The Claimant, Raymond Smith, was injured while working for Tradesmen International in 2003. His claim was allowed for low back sprain, right shoulder sprain, cervical and left wrist sprain, right paracentral disc protrusion, chronic pain syndrome, and adjustment disorder with depressed mood. In 2011, the Claimant applied for PTD compensation and submitted a report from his treating physician, Dr. DePaz, which outlined activity restrictions; limited the Claimant to sedentary work; required “periods of continuous rest to control exacerbations of his back pain;” and found that the Claimant would not be able to maintain a regular working schedule. The Industrial Commission submitted two reports finding that the Claimant was incapable of working based on the allowed conditions in the claim. The Industrial Commission awarded the Claimant PTD compensation. The Employer filed for mandamus, alleging the IC abused its discretion when it ordered TTD compensation to begin on April 26, 2011, the date of Dr. DePaz’s report. The court of appeals denied the writ, finding that while Dr. DePaz stated that Claimant could perform sedentary work, he also outlined restrictions so narrow as to effectively preclude the Claimant from any sustained remunerative employment.
The Supreme Court upheld the denial of mandamus, rejecting the Employer’s argument that Dr. DePaz’s report failed to list the allowed conditions in the claim and stated that Claimant could perform sedentary work. The Court found that the IC knew Dr. DePaz was the Claimant’s treating physician and that his report referred to the Claimant’s back pain and various restrictions. The report contained no indication that DePaz considered any non-allowed conditions. As such, it was within the IC’s discretion to accept DePaz’s identification of back pain as referring to the allowed conditions in the claim. Although the report stated that the Claimant could work sedentary work, DePaz also included numerous restrictions and the entirety of the report therefore constituted evidence of PTD based on the medical factors alone.
In State ex rel. Lacroix v. Industrial Commission of Ohio, et al., 144 Ohio St,3d 17, 2015-Ohio-2313 (June 16, 2015) the Ohio Supreme Court affirmed denial of mandamus requested by the employee. The Claimant, Sherwood Lacroix, was injured in September 2007 while working as a dishwasher/baker/maintenance worker for GMRI, Inc. The claim was allowed for cervical/lumbar strain, head contusion, disc displacement, and postlaminectomy syndrome. The Claimant applied for PTD compensation in 2006 and 2008 but was denied both times. The Claimant again applied in 2010 with a report from his physician, Dr. Timothy Morley. However, Dr. Kiva Shtull examined the Claimant for the Employer, and found that the Claimant was capable of full-time sedentary employment while seated with the following restrictions: (1) ability to change position as necessary; (2) no foot pedal operation with lower extremities; and (3) no exposure to vibratory forces. Dr. Craig Johnston, Ph.D. then examined the Claimant and concluded that, based on Dr. Shtull’s report, the Claimant could perform sedentary work. The Industrial Commission denied the PTD application based on Dr. Shtull’s report, and the court of appeals denied the Claimant’s mandamus request.
The Ohio Supreme Court upheld denial of mandamus, rejecting the Claimant’s argument that Dr. Johnston’s report was flawed because he did not consider Dr. Shtull’s limitation that the Claimant must remain in a seated position, and Dr. Johnston listed potential jobs, such as security guard and cashier, that seemed impossible for a person who relied on a walker or wheelchair. The Court noted that a vocational expert need not list all restrictions when referring to a medical report and that the IC had the discretion to accept some or all of Dr. Johnston’s report.
In Onderko v. Sierra Lobo, Inc., Slip Opinion No. 2016-Ohio-5027 (July 21, 2016), the Ohio Supreme Court recently held that a worker does not have to establish that he or she suffered a workplace injury to establish aprima facie case of retaliatory discharge under Ohio Revised Code (R.C.) 4123.90. The Claimant, Michael Onderko, was an engineering tech with Sierra Lobo, Inc., when he suffered an injury to his knee and was prescribed prescription pain medications to aid in his recovery. After the Claimant’s request for light duty work was denied, he filed a workers’ compensation claim. The parties disputed whether the injury occurred at work, and when Claimant’s claim was eventually denied by the Ohio BWC on the grounds that the injury did not occur in the course of his employment, he did not appeal the decision as he had already returned to work.
The Claimant was subsequently fired on December 12, 2012, for filing a deceptive workers’ compensation claim. The Claimant then filed a complaint alleging retaliatory discharge under Ohio’s workers’ compensation statute (R.C. 4123.90). The trial court granted summary judgment to the Employer on the grounds that the Claimant had not suffered a workplace injury. The Sixth District Court of Appeals reversed, holding that a workplace injury was not required to state a claim of workers’ compensation retaliation.
The Ohio Supreme Court affirmed the Sixth District’s decision. The Court held that the plain language of the statute requires only that an employee file a workers’ compensation claim or institute, pursue, or testify in a workers’ compensation proceeding, but does not require an actual workplace injury.
R.C. 4123.90 states: “No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”
The Court reasoned that requiring an employee to prove he or she had suffered a workplace injury undermined the basic purpose of the workers’ compensation statute: to allow employees to exercise their rights without fear of retribution. Interpreting the statute in a manner that may leave employers free to discipline any employee who brought an unsuccessful workers’ compensation claim, the Court said, may produce a chilling effect on employees. Thus, the Court made clear that theprima facie case of a claim for retaliatory discharge requires only that a plaintiff prove that he or she was discharged, reassigned, demoted, or otherwise disciplined in retaliation for filing a workers’ compensation claim or instituting, pursing, or testifying in a workers’ compensation proceeding.
As proof of a workplace injury is not required under the statute, the Court also rejected the Employer’s argument that failure to appeal the denial of workers’ compensation benefits foreclosed a plaintiff’s retaliation suit. In response to the dissent’s concerns that the Court’s decision will encourage fraudulent workers’ compensation claims, the five-judge majority stated that employees who bring false claims or make misleading statements in an attempt to receive workers’ compensation benefits are subject to criminal penalties under Ohio law. Following Onderko, employers should proceed with caution when disciplining an employee who has filed a workers’ compensation claim, even if the claim was unsuccessful, unless the Employer has other, independent justification for taking disciplinary action.
In State ex rel. Aaron’s Inc. v. BWC, Slip Opinion No. 2016-Ohio-5011 (July 20, 2016), the Employer was granted a limited writ of mandamus to order the BWC to explain why it had denied the company’s request that the BWC order reclassifying some of the company’s employees for purposes of workers; compensation premiums be applied solely prospectively.
The Ohio Supreme Court affirmed the appellate court decision which concluded that the evidence in the record supported the BWC’s decision and that no internal policy of the BWC created a clear legal duty requiring the Bureau to apply the classifications solely prospectively. Therefore, under this case, the BWC is recognized to have the authority to retroactively adjust the premiums it charged an employer to correct the employer’s improper classification of its employees, even without evidence of intentional wrongdoing.
In State ex rel. WFAL Construction v. Buehrer, 144 Ohio St.3d 21, 2015-Ohio-2305 (June 16, 2015), the Ohio Supreme Court addressed the employee/independent contractor distinction for workers’ compensation purposes. In 2009, WFAL contracted with Ohio Fresh Eggs to repair barns. WFAL provided the labor and Ohio Fresh Eggs provided materials for the job. The BWC conducted an audit of the WFAL Construction during 2009. The audit was conducted to determine whether WFAL was required to report its payroll to the BWC for purposes of setting and collecting premiums. The BWC concluded from the audit that individuals working for WFAL were employees, not independent contractors and determined that, because WFAL improperly classified the workers, the company owed back premiums.
The Bureau’s adjudicating committee found the workers to be employees, noting that two workers’ compensation claims had been allowed against WFAL in 2009 and 2010, and that the Claimants were employees for workers’ compensation purposes. The court of appeals subsequently denied WFAL’s request for mandamus. The Ohio Supreme Court affirmed, finding that WFAL directed the workers; paid the workers every week based on timesheets; and that the workers were not at risk for a financial loss given the hourly nature of their wages.
RECENT DECISIONS OF THE FULL INDUSTRIAL COMMISSION
Injured Worker Permitted to file two separate “First Report of Injury” and pursue each
The Full Commission, by unanimous decision, vacated an SHO Order denying a Claimant’s 2014 claim asres judicata in light of the Industrial Commissions prior disallowance of the Claimant’s 2013 claim arising from the same incident. The Commission found that while the Claimant’s 2013 claim had been disallowed for the condition of “lumbar sprain” and was currently on appeal to the Court of Common Pleas, that did not preclude consideration of the Claimant’s subsequent request by way of a separate 2014 FROI for a different diagnosis arising from the same 2013 incident. The Commission found that the holding in Ward v.. Kroger Co., 106 Ohio St. 3d 25, 2005-Ohio-3560, 8730 N.E. 2d 1155, allowed for consideration of the compensability of a claim for a new condition, even when the claim has been previously disallowed with regard to a different condition. Accordingly the issue of the “disc bulge and arthropathy at L5-S1 and annular tears at L4-5 and Lr-S1,” as alleged in the subsequent FROI, were referred to the District Hearing Officer for determination on the merits.
Change in job requirements provides employee with an exception to the “coming and going rule
The Full Commission allowed an injured worker’s claim for injuries sustained as a result of an automobile accident that the Claimant was involved in when he fell asleep at the wheel of his car at 3:05 am after working a third shift. The Employer appealed the claim allowance to the Industrial Commission arguing that the Claimant was a fixed situs employee and therefore subject to the “coming and going rule”. The evidence did support that at the time the Claimant was hired, and for the next year and a half, the Claimant was indeed a fixed situs employee and was not required to travel between stores.
However, in April of 2015 the Claimant was assigned additional duties by the Employer which required the Claimant to assist a team assigned to change cash registers at seven of the Employer’s locations between April and June of 2015. During this time the Claimant would travel to other cities and assist in changing the cash registers. This was a two night process and the Claimant worked from 8:00 pm until 3:00 am each night. The Claimant was also reimbursed by the Employer for mileage as well.
The Commission found that the Claimant’s change in job duties created special hazards not faced by the public in general, including traveling long distances on the highway at 3:00 am after an 8 hour shift. The Claimant’s additional job assignment was also found to be a benefit to the Employer, and but for this additional assignment the Claimant would not have been injured. The Commission found that the Claimant had demonstrated a causal connection between his employment and the injury under the “special hazard exception to the “coming and going rule.”
Claimant fired for buying too much gas found to be pretexual termination and not job voluntary abandonment.
The Commission found that a Claimant’s termination in October of 2015 for buying too much gas was not a voluntary abandonment of the workforce recognizing “the great potential for abuse” by Employers. The Commission scrutinized the Claimant’s termination and concluded that it was a pretextual termination.
The Employer alleged that the Claimant purchased more gas on two dates in July and August of 2015 that was the capacity of the Claimant’s vehicle. The Commission found that this issue however was not raised by the Employer until October of 2015; was a “miniscule amount” of gas; and that the Employer had been paying the Claimant salary continuation during the month of September of 2015. As such the Commission found that the termination was pretexual and did not constitute a voluntary abandonment of the workplace by the Claimant
NEWS FROM THE OHIO BUREAU OF WORKERS COMPENSATION
New BWC Administrator
As of May 2016, Sarah Morrison has been named by Ohio Governor John Kasich as the permanent Administrator and CEO of the State Fund for injured workers at the Ohio Bureau of Workers’ Compensation. Morrison replaces Steve Buehrer, who left the Ohio Bureau of Workers' Compensation in April 2016. Morrison had been interim leader since his departure. Morrison leads an agency with more than 1,800 employees that serves more than 250,000 employers. "Sarah has been an important part of the BWC leadership team that helped drive our state's workplace injury rate below the national average and provide Ohio businesses with $4.3 billion in rate cuts, cuts, rebates and credits. I am confident she will build on that record of achievement and continue BWC's work to strengthen Ohio's business environment," Gov. John Kasich said in a statement. Morrison had been the bureau's chief legal officer since 2012. She came to the agency after 15 years in private law practice.
Administrator Creates New Position Focused on Customer Service
In one of her first actions as the Administrator/CEO of the Ohio BWC, Sarah Morrison has directed her attention toward improving the overall customer experience with the Ohio BWC. To those ends Administrator Morrison created a position entitled “Director of Customer Experience,” and has appointed Scottie Powell to fill the new position. Director Powell is charged with using data to better understand the BWC customers to improve their experience and making processes simpler, faster and less expensive.
Ohio BWC Cracks Down on Opioid Prescription
The Ohio Bureau of Workers’ Compensation Board of Directors approved a new opioid prescribing rule aimed at preventing opioid dependence and encouraging physicians to employ current best medical practices when treating injured workers with opioids. Under the rule, the first of its kind in Ohio, BWC will not reimburse for opioid prescriptions written by physicians who fail to use best medical practices. “We must ensure best practices are followed at the onset of an injury and throughout the course of treatment so injured workers receive care that improves their condition,” said BWC Administrator/CEO Sarah Morrison. “Ohio’s injured workers deserve the best possible treatment that addresses their medical needs without facing the life-changing consequences of opioid dependence or addiction.”
Best practices include the development of an individualized treatment plan, risk assessment and monitoring of the progress and improvement in function of the worker. The new rule strengthens BWC’s peer review process to address physicians who fail to comply with those practices. Corrective actions range from written warnings to removing the physician from BWC’s network of approved providers.
The new rule also allows BWC to provide treatment for opioid dependence that arises from the use of opioid medications covered by BWC. Treatment for dependence could include psychological counseling and medication assisted treatment for recovery. The rule now moves to the Ohio General Assembly’s Joint Committee on Agency Rule Review. If approved there, it becomes effective Oct. 1 this year.
Ohio Unveils New “Other States” Coverage Option
In November of 2015, a new coverage option was approved by the BWC Board of Directors which hopes to simplify workers' comp for businesses with employees who work in other states. Workers' comp laws vary by state and the new Other States' Coverage will help ensure that Ohioans injured on the job will be covered regardless of where they are injured. While BWC generally provides coverage for employees working temporarily outside of Ohio, complications can arise when the injured worker files a claim in another state by contracting with an insurer licensed in other states, BWC will be able to offer an option that ensures proper coverage regardless of jurisdiction. A law enacted in 2014 granted BWC the authority to contract with an insurer to provide this coverage, the board approved the rules governing the optional policy offering designed by BWC in November 2015, and the policy in now in place and over 100 policies have been issued as of July 2016.
NEWS FROM THE OHIO INDUSTRIAL COMMISSION
February 2016 Rule Amendments
The Industrial Commission has recently reviewed nine administrative rules, and recommended the following three amendments:
· O.A.C. 4121-3-16 (Motions): Removes current O.A.C. 4121-3-16(E), which provides for motions to include legal citations and renumbers the remaining subsections.
· O.A.C. 4121-3-22 (Inspection of Claim Files): Removes current O.A.C. 4121-3-22(B), which sets forth requirements for accepting an authorization on behalf of an injured worker which lacks the claim number, removes current O.A.C. 4121-3-22(E)(F)(G) and (H) which contained requirements related to physical inspections of claim files, and renumbers the remaining subsections.
· O.A.C. 4121-3-30 (Emergency Hearings): Amends current O.A.C. 4121-3-30(B)(2) and (C)(2) to provide that the hearing administrator and Commission shall contact the parties and attempt to reach an agreement regarding the date and time of an emergency hearing before scheduling the hearing.
The Commission determined that O.A.C. 4121-3-17 (Briefs), O.A.C. 4121-3-18 (Administrative Appeals), O.A.C. 4121-3-21 (Change of Address), O.A.C. 4121-3-24 (Fee Controversies), and O.A.C. 4121-3-31 (Waiver for Recreational Activities) did not require any changes.
New Hearing Officer Manual
After a year and a half of review, the Commissioners of the Ohio Industrial Commission have finalized the revisions to the Hearing Officer Manual, which is effective as of August 15, 2016. The updated version is now entitledAdjudications Before the Ohio Industrial Commission. Several memos have been moved and new memos have been added and it can be found at
Ohio’s New Medical Marijuana Law to have little impact on the Bureau of Workers’ Compensation.
House Bill 523, effective September 8, 2016, legalizes medical marijuana in Ohio for certain medical conditions, including pain that is either chronic and severe or intractable, PTSD, and traumatic brain injuries. At this time, the only legal forms of medical marijuana will be edibles, oils, patches, plant material and tinctures. Vaporization is permitted. It cannot be smoked or combusted. Home growth is prohibited.
The impact of the new law on BWC and its programs is limited. It does not adversely affect the Drug-free Safety Program, will not require BWC to pay for patient access to marijuana, and expressly states that an employee under the influence of marijuana is not covered by workers’ compensation.
· Nothing in the law requires an employer to accommodate an employee’s use of medical marijuana;
· The law does NOT prohibit an employer from refusing to hire, discharging, or taking an adverse employment action because of a person’s use of medical marijuana;
· The law specifies that marijuana is covered under “rebuttable presumption.” In general, this means that an employee whose injury was the result of being intoxicated or under the influence of marijuana is not eligible for workers’ compensation. This is the case regardless of whether the marijuana use is recommended by a physician;
· While the law does not specifically address reimbursement for medical marijuana recommended for injured workers, Ohio law already has rules and statutes in place that limit what medications are reimbursable by BWC.
o Administrative code provides that drugs covered by BWC are limited to those that are approved by the United States Food and Drug Administration. Marijuana has not been approved by the FDA and remains and Schedule I illegal drug under federal law.
o BWC-funded prescriptions must be dispensed by a registered pharmacist from an enrolled provider. Medical marijuana will be dispensed from retain marijuana dispensaries, not from enrolled pharmacies.
o BWC only reimburses drugs that are on its pharmaceutical formulary, which is a complete list of medications approved for reimbursement by BWC. Drugs not on the list are not eligible for reimbursement, and under BWC’s current rules, it cannot be included in the formulary, nor is it otherwise eligible for reimbursement.
“I’m just a Bill...yes I’m only a Bill”
House Bill 207 becomes Law!
House Bill 207 made its way into law this past Summer, effective August 31, 2016, after being signed by Governor Kasich. The new law addresses workers compensation claims involving vehicular accidents and also tackles issues involving self insured employers.
With respect to workers’ compensation claims that involve vehicular accidents, the new law:
· Requires workers’ compensation claims to be charged to the Surplus Fund Account in lieu of to a state fund employer’s experience in certain circumstances when a claim is based on a motor vehicle accident involving a third party.
· Allows a state fund employer who believes that a claim may qualify to be charged to the Surplus Fund Account under the act to file a request with the Administrator of Workers’ Compensation for a determination.
· Requires the Administrator to make the determination within 180 days after the Administrator receives the request.
· Requires any amount collected by the Administrator through the subrogation process for compensation or benefits that were charged to the Surplus Fund Account to be credited to the Surplus Fund Account and not applied to an individual employer’s account.
With respect to self insuring employers, the new law:
· Eliminates the minimum number of employees required for a private sector employer or board of county commissioners to obtain self-insuring status under the Workers’ Compensation Law.
· Requires a self-insuring employer who resumes paying premiums to the state insurance fund to provide the Administrator with any information that the Administrator may require to develop a state fund experience modification factor.
· Requires, if a professional employer organization agreement is terminated, a self-insuring professional employer to provide the Administrator with information that the Administrator must use to develop a state fund experience modification factor for each client employer formerly subject to the agreement.
House Bill 205 “...is still a just a Bill...”
House Bill 205, sponsored by Rep. Mike Henne (R-Clayton) and Rep. Wes Retherford (R-Hamilton) would modify the requirements for an employer to allow them to become a self-insuring employer for purposes of the Workers’ Compensation Law, to transfer authority over the workers’ compensation self-insurance program to the Superintendent of Insurance, and to allow certain employers and groups of employers to obtain workers’ compensation coverage from a private workers’ compensation insurer. The bill is has been assigned to the Senate Insurance Committee and has not seen any movement since the early part of 2016.