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.
Legal Update by Attorney Sandra Kromminga
The issues in Tweeten d/b/a Tweeten Farms v. Tweeten were: (1) Does the statutory bar under Iowa Code section 85.35(9) preclude further benefits following a compromise settlement between a claimant and the Second Injury Fund of Iowa (“SIF”); (2) Does the discovery rule toll the statute of limitations following amendments to Iowa Code section 85.26(1); and (3) How do amendments to Iowa Code section 85.39(2) affect reimbursement for independent medical examinations? This case was argued by Attorney Christopher S. Spencer.
The Claimant, Corey Tweeten, worked for his father on the family farm, Tweeten Farms. While Claimant and his father were vacuuming grain out of a bin on July 25, 2017, the Claimant injured his right arm. The Claimant sought treatment on August 14 and was diagnosed with right lateral epicondylitis or ‘tennis elbow.’ The Claimant eventually underwent an MRI in May of 2018 that showed a “significant deltoid insertional tear.” Surgery to repair the deltoid was done on June 18. At a follow-up appointment in October, Dr. Warme opined that Corey had likely overcompensated for the tennis elbow which had caused the deltoid tear. Dr. Warme believed that both injuries were related to the July 2017 grain bin incident.
In January of 2020, the Claimant filed an arbitration petition seeking benefits from Tweeten Farms and Grinnell Mutual for an upper right extremity injury, asserting his injury date was February 1, 2018. The Petition also included a claim against the Second Injury Fund of Iowa, premised on a prior right ankle injury in 2008. The Claimant also sought reimbursement for an independent medical evaluation (“IME”) with Dr. Robin Sassman at hearing. The cost of the IME was $4,650.00.
An arbitration hearing was set for March of 2021. The Second Injury Fund of Iowa filed a notice that they had reached a settlement with the Claimant and would not be at the upcoming hearing pending approval of the settlement. The case proceeded to hearing. In Defendants’ April 13 Post-Hearing Brief, they argued that the Compromise Settlement with the Second Injury Fund of Iowa extinguished Claimant’s claims for benefits under section 85.35(9). This divested the workers’ compensation Commissioner of jurisdiction to award him additional benefits. The settlement was approved in April. The deputy found that the Claimant did not learn of the seriousness of his injury until April 2018, meaning that his January 21, 2020, Petition was not barred by the two-year statute of limitations in section 85.26.
The Iowa Supreme Court held that the Commissioner’s decision in Millbrandt v. R.R. Donnelly recognized that “a claim brought by a claimant against the SIF is distinct from a claim brought by a claimant against an employer and an insurance carrier,” such that the claim against the employer was not “regarding the subject matter of the compromise.” Compromise settlements between an employee and the Second Injury Fund of Iowa will not always bar an employee from seeking benefits from their employer, but the extent of any bar will depend on the subject matter of the compromise. In this instance, the dispute was as to the applicability of the Second Injury Fund Act related to the prior loss in 2008.
As for the applicability of the discovery rule, the Court held that for purposes of section 85.26, the two-year statutory period begins to run when the employee knows or should have known that an injury is work-related, without regard to whether the injury is also serious enough to be compensable. The Claimant knew that he had a right-arm injury that was work-related more than two years before he sought benefits, and his claim is therefore barred as untimely. This holding modifies the prior common law discovery rule that would have tolled the statute of limitations until the injured worker also knew of the seriousness of the claimed injury.
Finally, the Court determined that Claimant was not entitled to reimbursement for Dr. Sassman’s examination under Iowa Code 85.39. The Claimant’s Petition had been untimely, meaning his injury was not compensable, and, as a result, was not entitled to reimbursement.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2024 Peddicord Wharton. All Rights Reserved.
Legal Update by Attorney Morgan Todd Borron
In 2017, the Iowa Legislature overhauled Iowa Code Chapter 85 and made numerous amendments to previously established workers’ compensation statutes, and the impact of those amendments continues to be the center of much of the workers’ compensation litigation in Iowa today.
Iowa Code § 85.39 was one of the statutes subject to the 2017 amendments. Attorneys Stephen W. Spencer and Christopher S. Spencer of Peddicord Wharton recently had the opportunity to bring a case to the Iowa Supreme Court to clarify the impact that the 2017 amendment has had on reimbursement of independent medical examinations (“IME”) per § 85.39. The case was retained by the Iowa Supreme Court on further review from a decision of the Iowa Court of Appeals.
In Mid American Construction, LLC v. Sandlin, Claimant presented for an exam with Dr. Kennedy. There was a dispute as to whether Dr. Kennedy was retained by the Employer and Insurance Carrier for purposes of triggering Iowa Code § 85.39, but the issue was decided in favor of the Claimant on factual grounds. Thereafter, Sandlin’s counsel arranged for Claimant to be evaluated by Dr. Taylor for an IME and requested reimbursement for Dr. Taylor’s fees associated with the IME, in the amount of $2,020, per Iowa Code § 85.39. Defendants contended that, per Iowa Code § 85.39 as amended in 2017, Claimant was only entitled to reimbursement for the cost to obtain an impairment rating of his own to rebut the rating of Dr. Kennedy, and not the cost of the entire IME.
The Iowa Court of Appeals found that the 2017 amendment to Iowa Code § 85.39 limited the Claimant to solely the costs to perform an impairment rating. On further review, the Iowa Supreme Court held that Iowa Code § 85.39, as amended, entitles employees to the reasonable cost of an examination conducted by a physician of their choosing, in addition to the cost of that physician’s determination of impairment, and not merely the cost assessed for the impairment rating itself. See Mid American Construction, LLC v. Sandlin, No. 22-0471, 2024 WL 500652 at *1, *9 (Iowa Ct. App. Feb. 9, 2024). Further, that the reasonableness of the IME physician’s fees for the examination are to be analyzed in conjunction with what physicians in that locality typically charge for an IME, “including costs of reviewing medical records, conducting a physical examination, opining on causation, assessing permanent impairment, assigning restrictions, and addressing further treatment recommendations.” Id. at *9 (quoting Turner v. NCI Bldg. Sys., Inc., Iowa Workers’ Comp. Comm’n No. 1652235.01, 2022 WL 1787301 at *26 (Feb. 24, 2022).
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2024 Peddicord Wharton. All Rights Reserved.
The recent passage of A5909 has generated many questions from hospitals and private sector ambulance companies which provide EMT and paramedic services. The questions focus on the recently passed legislative overhaul of N.J.S.A. 34:15.7.3. That original 1988 law is entitled, “Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to an emergency: presumption of compensability.”
On January 16, 2024, Governor Phil Murphy signed a sweeping overhaul of this 1988 legislation, providing coverage for a new category of employees, namely paramedics and EMTs, and extending the coverage to private sector paramedics and EMTs. The new law covers paramedics and EMTs who suffer a heart attack or stroke while responding to a public safety or medical emergency or remediating from one within a 24-hour period after the emergency has ended.
As readers know, a presumption of compensability shifts the burden of proof to the employer to disprove a case. The original 1988 public sector cardiovascular or cerebrovascular law employed a preponderance of evidence presumption, meaning essentially that if the employer could prove by more than 50% that the heart attack or stroke was not work related, then employer would prevail. The overhaul law which was passed last week changed the presumption to a much higher legal standard. Now the employer has to prove by clear and convincing evidence that the heart attack or stroke was not related to work. This is the first statute in New Jersey history to apply a clear and convincing evidence standard in workers’ compensation.
What does this new standard mean? Readers can think of clear and convincing evidence as requiring the employer to offer proof that demonstrates by a high probability that the facts or medical evidence offered by the employer are true or accurate. Merely showing that the employer’s position is more likely than not to be accurate (just over 50%) will be insufficient to meet the clear and convincing evidence standard. The defense must demonstrate a high probability that its position is accurate.
The questions that have been coming into our office have focused on what the new law means when it refers to private sector EMTs and paramedics. Does this mean every single paramedic and EMT in New Jersey who has a heart or attack or stroke in close time relation to an emergency call is covered by this high presumption? Unfortunately, this new law does not provide any commentary. Here is what it says:
Coverage under this law shall apply to “any career emergency medical technician or paramedic, employed by the State, a county, a municipality or a private sector counterpart, who is engaged in public emergency medical and rescue services.” Some have asked what the word “counterpart” means. This is not a legal term, so one can study a dictionary definition. The word “counterpart” is defined as someone who performs a function that corresponds to that of another person. Example, the Manager of a baseball team is the counterpart to the Coach of a football team. They perform similar services for their respective teams. Does this new law mean that every private sector paramedic and EMT is automatically considered a “counterpart” of a public sector paramedic or EMT?
Sometimes the Legislature adds comments after a new Bill explaining its analysis of the main changes to the bill. There are no comments to explain why this law, formerly focused only on the public sector, is now applicable to private sector paramedics and EMTs. It seems clear that this law will apply to a situation when a hospital or a private company enters into a contract with a municipality, county or the State to provide paramedic or EMT services for residents or facilities within the municipality, county or state. What we cannot tell is if a contract with a public sector employer is a threshold requirement. Example: a private sector ambulance company enters into a contract directly with a nursing home to perform emergency services. Does that make the private sector EMT a “counterpart” under the above definition? Does it matter that perhaps in the past the municipality used to perform these services with its paid or volunteer EMTs for the nursing home? No one knows the answer, but we do know this: arguments for a broad interpretation of this new law will be advanced by paramedics and EMTs who suffer heart attacks or strokes. Those cases will be tried in the courts, which will eventually provide us with an answer.
It is also important to understand two other major aspects of the legislative overhaul of N.J.S.A. 34:15-7.3. First, the former requirement that the public safety official prove that he or she was “acting under orders from a competent authority in effecting a response” has been deleted. The private sector paramedic or EMT does not have to demonstrate proof that he or she was ordered to respond to the emergency by some superior from work.
The other point to understand is that covered employees, including paramedics and EMTS, are presumed to be covered while “remediating from a law enforcement public safety or medical emergency.” This language is also new. The word “remediating” is defined as “leaving an emergency in a reasonable period of time, not to exceed 24 hours from the end of the emergency, to carry out post-injury agency protection and decompression including measures such as ‘critical incident stress debriefing.’” In other words, if the heart attack occurs within 24 hours after the emergency has ended, most likely the presumption of compensability will still apply. Again, this presumption is the highest presumption ever applied to any New Jersey workers’ compensation statute.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Several bills of interest
are advancing in the Committee process in the West Virginia Senate and House related to Workers’ Compensation. With the exception of the bills related to presumptions of compensability in firefighters for named diseases, the bills do not have much momentum at this time. Please contact me if you want a copy of a proposed bill or would like additional information.Senate Bill 597 grants twenty weeks (or 5% permanent partial disability)
awards of worker's compensation benefits to claimants with no measurable
pulmonary impairment from occupational pneumoconiosis (OP). Additionally,
claimants with an x-ray diagnosis of pulmonary massive fibrosis or complicated
pneumoconiosis without measurable impairment would be granted a 25% permanent
partial disability award. The OIC’s Fiscal Note Memorandum states that the
additional benefits are likely to significantly increase the expenses and could
cause a deficit for the Worker's Compensation Old Fund and create adverse
claims development in the other funds administered by the OIC with exposure to
OP claims. The increased benefits are likely to raise private insurance carrier
worker's compensation insurance premium rates for employers in industries where
exposure to OP exists. Senate Bill 597 is also likely to significantly increase
the worker's compensation expense for self-insured employers in the coal
industry. As drafted, Senate Bill 597 appears to be retroactive and would
effectively restore the presumptive 5% OP award for both past (July 1, 2003
forward) and future OP claims. Additionally, it is unclear if the 5%
presumptive award is to be granted in addition to the 25% award for those
diagnosed with pulmonary fibrosis or complicated pneumoconiosis, or if those
two awards are mutually exclusive.
Senate Bill 286 would extend the time within which a claimant may
obtain an evaluation from the Occupational Pneumoconiosis Board. In its Fiscal
Note Memorandum, the OIC stated it is unable to estimate the fiscal impact of
SB 286. The OIC does not have data regarding any OP claim applicants being
denied a hearing before the OP Board due to time limitations exceeding three
years or due to the lack of an impairment diagnosis. The OIC believes that SB
286 would increase the expenses of the OIC, but the OIC is unable to quantify
the increased expenses accurately at this time. The OIC funds the costs of the
OP Board and any increase in the number of examinations undertaken by the OP
Board would increase the expense of the OIC.
House Bill 4283 would create a new program and new Fund called the West Virginia Black Lung Program, which would create entitlement benefits and a presumptive award for those benefits for occupational pneumoconiosis. In its Fiscal Note to this proposed bill, the OIC stated it is unable to estimate all of the potential cost to the State for HB 4283. The OIC did note some technical issues with HB 4283. West Virginia Code §23-4D-2 grants the presumptive benefit to anyone who has worked in WV for a period of 10 years during the 15 years immediately preceding the Date of Last Exposure. The language in the proposed bill does not limit the exposure to coal dust, so any type of minute dust particle would appear to qualify. The language in the proposed bill does not limit the benefits to WV residents, but would be available to anyone who has worked in WV for the above specified period of employment. The benefit to be granted is a fixed amount and is to be paid in addition to any state or federal disability award. The bill appears to be retroactive in nature. HB 4283 creates a new general revenue fund, but does not clearly identify who is to administer the Fund. The OIC noted the State Tax Department should be consulted regarding the increased severance taxes and the creation of the new taxes on energy producing activities.
HB 4687 which would repeal the law making prime contractors liable for the failure of subcontractors to obtain workers’ compensation coverage. The OIC’s Fiscal Note predicted HB 4687, if enacted, would have a significant impact on the Uninsured Employers Fund (UEF). Present law provides that if a subcontractor is neither self-insured, nor covered by a workers' compensation insurance policy, then the prime contractor rather than the state's UEF is responsible for payment of statutory workers’ compensation benefits: provided, that receipt of the prime contractor of a certificate of coverage from a subcontractor shall be deemed to relieve the prime contractor of responsibility regarding the subcontractor's workers' compensation coverage. The OIC stated in its Fiscal Note that it has not had to issue an assessment in order to raise funds for the UEF since its creation in 2006. However, in the event that additional funding is needed, the OIC has the statutory authority to issue an assessment to private insurance carriers, which may be passed on to employers through a policy surcharge, as well as to self-insured employers to raise the necessary funding for the UEF.
HB 5244 relates to portable benefit plans for independent contractors. It creates a new State Portable Benefit Fund to provide portable benefit plans that individuals can purchase. A benefit plan would be assigned to an independent contractor and would not be associated with the hiring party. The statute has language that a hiring party can contribute to these plans but the contribution would not be construed as an element of an employment relationship for purposes of determining workers’ compensation coverage.
SB 170 expands coverages related to professional firefighters and a rebuttable presumption to include bladder cancer, mesothelioma, and testicular cancer to join leukemia, lymphoma, and multiple myeloma previously passed by statute. The purpose of this bill is to include three types of cancer for which rebuttable presumption of injury from employment exists for firefighters and provides that the presumption for the three types of cancer expires July 1, 2027, unless extended by the Legislature.
HB 4216 reaffirms and enhances the workers compensation exclusive remedy rule or doctrine and would repeal the deliberate intent statute in its entirety.
For the mining industry members, eight bills not included on the
attached Legislative Monitor Report have been introduced to authorize the Office
of Miners’ Health Safety and Training (WVMHST) to promulgate legislative rules
for a variety of safety issues including substance abuse screening, standards
and procedures. The bills were referred to the Judiciary Committee on 1/19/24.
Dill Battle, Executive Secretary
West Virginia Workers’ Compensation Association
o 304-340-3823
m 304-206-1986
In South Dakota, Claimants must prove that "employment or employment-related activities were a major contributing cause of the condition of which the employee complained, or, in cases of a preexisting disease or condition, that the employment or employment-related injury is and remains a major contributing cause of the disability, impairment, or need for treatment." Norton v. Deuel Sch. Dist. No. 19-4, 2004 S.D. 6, ¶ 7, 674 N.W.2d 518, 521. Additionally, the South Dakota Supreme Court has held that “the claimant's work activities do not have to be ‘‘the’ major contributing cause’’ of the injury; they only have to be ‘‘a’ major contributing cause.’” Hughes v. Dakota Mill & Grain, Inc., 2021 S.D. 31, ¶ 20, 959 N.W.2d 903, 909 (citations omitted). “[T]he claimant has the burden of establishing a ‘causal connection between the employment and the disability.’” "Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D. 1992) (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 7010 (S.D.1989)).
Causation is a medical question, and “[t]he testimony of professionals is crucial in establishing this causal relationship because the field is one in which laymen ordinarily are unqualified to express an opinion.” Id.
We have started to encourage our clients to challenge claimants treating doctor(s) and their medical opinions with competing IMEs. In two separate 2023 cases, both of which are currently under appeal, the South Dakota Department of Labor (“the Department”) sided with the employer and the insurer finding that the claimants failed to meet their burden of proving that the work injuries were a major contributing cause of their conditions.
First in Roem v. E & N Street, LLC., HF No. 69, 2020/21, the claimant was suffering from a wide range of injuries including neck issues, headaches, right shoulder and arm pain, potential CRPS and chronic pain. The claimant had three separate treating doctors who looked at the neck injury. One of the doctors found the claimant’s injuries to be a major contributing cause, another stated that there could be other causes of the claimant’s neck issues but he did not know if the condition was preexisting, and the other did not see any objective evidence of acute injuries. The employer had an IME completed and the doctor found that the claimant had some degeneration in the neck as well as a lack of any acute findings. The Department found the IME doctor's opinions to be “more persuasive” and stated that his findings were “particularly significant.” As to the neck injuries, the Department held that the work incident was not a major contributing cause of the injury. When looking at the claimant’s shoulder injury, one of the treating doctors failed to provide an opinion connecting the shoulder issues to work, thus the Department held there was not sufficient evidence to meet the claimant’s burden of proof. The Department continued to side with the IME doctor’s opinions on all alleged injuries often stating that the IME was “more persuasive” or that the treating doctor's opinions failed to establish the claimant’s burden of proof. Specifically, as to the CRPS diagnosis, the Department was not persuaded by the treating doctors' opinions because the opinions were “not definitive” and one of the doctors concluded that CRPS was “merely possible, but not probable.” The Department held that the claimant’s expert opinions did not meet her burden of proving medical probability or that the work was a major contributing cause of any of the injuries.
Similarly, in Pham v. Smithfield Foods, Sioux Falls, HF No. 8, 2020/21, the Department sided with the employer’s IME doctor's findings as opposed to the claimant’s treating doctors. Specifically, the Department was moved by the fact that the IME doctor reviewed all of the claimant's prior medical records when forming his opinion whereas the treating doctor failed to review the claimant's entire medical history. The Department stated that due to the treating doctor’s failure to review the claimant’s medical history in its entirety, his opinion was “not well-supported.” Additionally, the Department found the IME doctor’s opinion to be “more persuasive” and described his analysis of the claimant’s injuries as “particularly significant.”
All in all, we are finding that an IME with strong opinions therein can persuade a factfinder that just because the claimant’s treating doctor makes an opinion or recommendation, does not mean that their opinion is always the most informed or proper under the circumstances.
2023 Budget
The two-year operating budget for the Ohio Bureau of Workers’ Compensation (“BWC”) was signed prior to the June 30th deadline (House Bill 31). It included a slight increase in appropriations for the agency, but no new policy initiatives included in the final version. The BWC had proposed to rename the BWC as the “Department of Workforce Insurance and Safety,” but this was removed by the legislature prior to passage and the BWC’s name remains the same.
Amendments related to requirements for the BWC to provide PTSD benefits without accompanying injury and a loss of use proposal that would have exposed self-insured employers to major liability were defeated during the BWC budget process.
Marijuana
An attempt to add a proposal to modify the state’s medical marijuana program was unsuccessful in 2023. However, in the November elections, Ohio citizens Issue 2 ballot initiative to legalize recreational marijuana.
Regulatory Actions (New Rules)
Ohio Administrative Code (“OAC”) sections 4123:1-5-01 through 4123:1-5-16: Specific Safety Requirements Applicable to “Workshops” and “Factories.” Replaces “shall” with “will”; “requirement” with “specification,”; “required” with “needed”; and “requiring” with “involving.” Change was effective June 30, 2023. Similar changes made to OAC 4123:1-5-17 through 4123:1-5-29 and 4123:1-5-99 with regard to other sections applicable to “Workshops” and “Factories.” Change effective September 1, 2023.
OAC 4121-3-09: Hearings before the Commission and its Staff and District Hearing Officers: Adds language that parties and representatives may attend a hearing in person by telephone or through Industrial Commission authorized web-based technology. This eliminates the requirement for the filing of a notice of waiver to appears in person when attending a hearing virtually. Change effective July 20, 2023.
OAC 4123-17-02: Successorship: Changes the criteria the BWC uses to determine the rate of 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 involves has a merit rating experience. States that the BWC will consider, but is not bound by, language in a purchase agreement between the parties regarding non-assumed liabilities when determining experience transfers. Change effective July 1, 2023.
Ohio Judicial Decisions
Temporary Total Compensation - State ex rel. Quest Diagnostics, Inc. v. Indus. Comm., 2023-Ohio-2213. (July 5, 2023)
In early 2018, Quintina Stone, a phlebotomist with Quest Diagnostics, Inc., notified her supervisor that she would be relocating to California due to her husband’s employment. Ms. Stone expressed her desire to transfer her employment within the company and was told that she would be permitted to do so. On October 3rd, Ms. Stone learned that her husband would start his new position on October 29th and submitted multiple transfer requests with Quest in California which were signed and dated by her supervisor. On October 6th, Ms. Stone was injured at work when she fell from a stepladder. Her workers’ compensation claim was allowed for various shoulder injuries. Her doctor ordered work restrictions that were to expire on October 31st. Ms. Stone was off work for four days due to her injury and then took a previously scheduled five-day vacation. Ms. Stone’s physician released her to work with temporary restrictions and she returned to work with light-duty restrictions on October 22nd.
On October 24th, Ms. Stone further discussed with Quest about transferring to one of Quest’s California locations. Upon contacting the California recruiter, Ms. Stone learned that a certification was required in California which she did not have. On October 28th, Ms. Stone resigned from Quest indicating her move to California as the reason. In March 2019, Ms. Stone received her California phlebotomist certification. In June 2019, Ms. Stone filed for temporary total disability (“TTD”) compensation dating back to October 27, 2018, to continue until she was medically able to return to work.
The District Hearing Officer (“DHO”) found that Ms. Stone did not qualify for TTD compensation because (1) She voluntarily removed herself from her position; (2) her transfer was not approved by Quest and she relocated to be with her spouse; (3) Ms. Stone knew she lacked the certification to do the job she sought before moving; (4) Ms. Stone chose to resign and relocate; (5) Ms. Stone may not have known about the certification until right before her move, but she should have known she had not been approved to formally relocate; (6) Ms. Stone chose to resign and relocate, even given that it “seemed fairly” certain that she would not be able to keep working for Quest; and (7) Ms. Stone’s decision to resign was hers alone.
On appeal, the Staff Hearing Officer (“SHO”) also denied her request for TTD, compensation ordering that (1) Ms. Stone voluntarily resigned; (2) There was no job offer or guarantee with Quest; (3) Ms. Stone’s options at the time of her resignation included either to stay behind and work towards her California certification or resign from her position; (4) Ms. Stone resigned for personal reasons; and (5) Ms. Stone’s resignation was a personal choice.
On appeal, the Industrial Commission found that the SHO had misapplied State ex rel. Klein v. Precision Excavating & Grading. The Commission vacated the SHO’s order and granted Ms. Stone’s request for TTD compensation. The Commission reasoned that Klein was different from Ms. Stone’s claim because Ms. Stone “had expressed her desire to transfer within the company and received reassurances from her supervisor that a transfer was possible prior to sustaining her injury.” And Ms. Stone had submitted her forms for transfer prior to her injury, to only later find out that a separate certification was necessary for transfer. This created justifiable reliance that Ms. Stone would be able to transfer, and she “reasonably expected” she would be able to transfer, but for her injury.
The Commission further explained that voluntarily abandonment hinges on intent which is “inferred from words spoken, acts alone, other objective facts, and all relevant circumstances existing at the time of the alleged abandonment.” Because Ms. Stone’s intent was to remain employed with Quest, and her words and actions showed that she did not plan to abandon her position, she did not voluntarily remove herself from her position with Quest and was entitled to TTD compensation.
Quest appealed to the Tenth District Court of Appeals asking to vacate the Commission’s award of TTD compensation and to reinstate the SHO’s order. The Tenth District concluded that the Commission had misinterpreted and misapplied the law of voluntary abandonment. The Court pointed to Klein’s reassertion of ineligibility for TTD compensation if a claimant’s workplace injury did not cause the loss of earnings. Essentially, if a claimant resigns “for reasons unrelated to her workplace injury she is no longer eligible for TTD.” Because Ms. Stone resigned for reasons not related to her October 2018 injury, she was not eligible for TTD compensation. Contrary to Ms. Stone’s objection, Ms. Stone’s intent/reason(s) for resigning were not related to her injuries. Because there was no relationship between Ms. Stone resigning to move to California with her spouse and her sustained injuries, there was an absence of a “causal connection.” The Court ordered the Commission to vacate its order and to enter an order denying Ms. Stone’s request for TTD compensation. Both Ms. Stone and the Commission appealed.
In July 2023, the Ohio Supreme Court affirmed the decision of the Tenth District Court of Appeals stating that in Klein, we 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 TTD compensation, even if the claimant remains disabled at the time of his separation from employment. Klein overruled precedent, returning to the fundamental tenet of TTD compensation: that the industrial injury must cause the worker’s loss of earnings. The key question is whether an injured worker who is no longer in the former position has abandoned the workforce, either temporarily or permanently, not merely abandoned the former position. In other words, it must appear that, but for the industrial injury, the claimant would be gainfully employed. The Supreme Court concluded that, had Ms. Stone not been injured, she would have experienced the same wage loss upon relocating to California without the proper certification. And had Ms. Stone remained employed by Quest in Ohio, she would not have experienced any wage loss. Accordingly, the undisputed facts demonstrate that Ms. Stone’s industrial injury was not the “but for” cause of her lost earnings. Ms. Stone’s reasons for abandoning the workforce and experiencing lost wages lack the necessary causal relationship to her industrial injury.
Voluntary Abandonment Defense – State ex rel. AutoZone Stories, Inc. v. Indus. Comm., 2023-Ohio-633 (March 2, 2023).
In State ex rel. AutoZone Stores, Inc. v. Industrial Commission, the Tenth District Court of Appeals issued Ohio’s first appellate review of R.C. 4123.56(F), which deals with temporary total benefits (“TTD”) and went into effect in 2020. R.C. 4123.56(F) states, in part:
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.
R.C. 4123.56(F) supersedes any previous Ohio court cases establishing the doctrine of “voluntary abandonment,” which blocked disability benefits for claimants who voluntarily removed themselves from the workforce or were terminated for violation of work rules. In AutoZone, the claimant was injured on June 15, 2020 but worked light duty until his termination for cause in September 2020, following an argument with a coworker. The claimant requested TTD benefits in October 2020 and underwent an approved shoulder surgery in November 2020.
The Industrial Commission granted the claimant’s request for TTD beginning the date of his surgery. His employer brought a mandamus action before the Tenth District, arguing he was not entitled to TTD pursuant to R.C. 4123.56(F). The Tenth District affirmed the Commission’s decision and rejected the employer’s arguments. The employer argued that under the last sentence of 4123.56(F) outlined above, the claimant was not entitled to TTD because the surgery was not the reason he was off work—rather it was his prior termination for cause. Therefore, the claimant was off work “as the direct result of reasons unrelated to his injury.” The employer further argued that the claimant had no “wage loss” because he had already been terminated before he underwent the surgery. The Tenth District disagreed, stating:
Overall, we find the text of R.C. 4123.56(F) to be unambiguous. If a claimant is unable to work, R.C. 4123.56(F) sets forth two operative questions to be eligible for TTD compensation: (1) whether he or she is unable to work as the direct result of an impairment arising from an injury or occupational disease; and (2) whether he or she is otherwise qualified to receive TTD compensation. R.C. 4123.56(F) does not impose an additional requirement on a claimant to prove he or she is unable to work solely due to an impairment arising from an injury or occupational disease. Only when an otherwise qualified claimant is not working as a direct result of reasons unrelated to the allowed injury or occupational disease is the claimant ineligible to receive TTD compensation.
The court also directly addressed the prior voluntary abandonment doctrine from Ohio case law used before the enactment of R.C. 4123.56(F):
Although the employer implies we should analyze the effect of the termination and whether evidence exists that claimant had abandoned the workforce prior to his approved surgery, this is exactly the analysis the legislature expressly superseded by enacting R.C. 4123.56(F). Contrary to the employer's position, R.C. 4123.56(F) requires us to review only whether the claimant in this case was unable to work as the direct result of an impairment arising from an injury or occupational disease to support the grant of TTD for the period specified.
The development of Ohio case law on the interpretation of R.C. 4123.56(F) will provide further clarity for Ohio employers on this issue. As for now, arguments on limiting AutoZone to its specific facts may be an avenue for employers in defeating these requests for TTD – such as that despite an internal investigation prior to the claimant’s termination, he received unemployment compensation because his termination was found to be “without just cause” by the Ohio Department of Jobs and Family Services; and that the claimant was on light duty at the time of his termination and waited only two months to undergo surgery, showing intention to “abandon” the workforce may have been more evident if he had been working full duty at the time of termination but subsequently waited six months or more to undergo surgery.
State ex rel. Butler Vill. v. Indus. Comm., 2023-Ohio-3774 (10th District, October 17, 2023)
The Tenth District Court of Appeals held that an employee who voluntarily resigned their employment is entitled to temporary total disability compensation. In March 2021, a Butler Village employee was injured at work and thereafter worked in a light duty capacity. In April 2021, the employer reorganized and the injured worker’s job duties changed. In May 2021, the injured worker voluntarily resigned her position. In her resignation letter, she wrote, “I do not feel I can accomplish this newly reorganized position effectively. Therefore, please accept my resignation effective immediately.” Notably, she did not cite her injury as a reason for her resignation.
The injured worker first applied for temporary total disability compensation in September 2021, four months after she resigned. During the Staff Hearing Officer (SHO) hearing, the injured worker testified that her injuries prevented her from performing her job “effectively.” She testified that she needed assistance from a co-worker to perform some of her job duties, and she did not want to perform below standards. Therefore, she resigned her employment. During the hearing, the employer testified that the injured worker was successfully working at the time of her resignation. Additionally, the injured worker did not cite her industrial injury as a contributing factor in her resignation letter. The Staff Hearing Officer found, however, that the injured worker’s testimony outweighed this contrary evidence. The Staff Hearing Officer concluded that the industrial injury caused the injured worker to resign and granted temporary total disability.
The employer appealed the Industrial Commission decision to the Tenth District Court of Appeals, arguing that it abused its discretion and made a mistake of law under R.C. 4123.56(F). The employer argued the injured worker’s unemployment was solely the result of her voluntary resignation rather than reasons related to her allowed injury. The court rejected the employer’s argument. In reaching its decision, the court noted that the injured worker was working light duty at the time of her resignation. The injured worker could initially perform most job duties with one arm. When the employer reorganized and eliminated two of her roles, the injured worker alleged her job duties became more physically demanding than she could accomplish working light duty. Only after her job duties changed did the injured worker resign her position.
In granting temporary total disability compensation, the court reasoned: “while [the employee] may have had other reasons or motivations, there is some evidence in the record supporting the finding that she was unable to work as the direct result of an impairment arising from her allowed injury.”
Permanent Total Disability - State ex rel. Kidd v. Indus. Comm. 2023-Ohio-2975. (August 29, 2023)
Donna Kidd injured her back in 2013 while working as a warehouse and production employee at Tronair, Inc. Ms. Kidd’s workers’ compensation claim was allowed for various lumbar-spine conditions. Ms. Kidd returned to work for approximately 6 months and then left work due to increasing pain. In 2015, Ms. Kidd underwent a spinal surgery which did not relieve her pain symptoms. Ms. Kidd completed 27 weeks of vocational rehabilitation, and the BWC determined that she demonstrated the ability to independently continue her job search. In 2017, Ms. Kidd obtained part-time employment as a school-cafeteria server but ended her employment approximately eight months later due to increasing pain in her lower back and legs and increased difficulty with standing, bending, and lifting.
In 2018, Ms. Kidd filed for Permanent Total Disability (“PTD”) compensation. In support of her application for PTD, Ms. Kidd submitted a report from her chiropractor who reported that Ms. Kidd required the ability to change her position on a frequent basis, that she was unable to sit or stand for periods between 10 to 20 minutes without having to change positions due to increasing left leg pain. The chiropractor further noted that Ms. Kidd was unable to return to gainful employment “due to worsening of her lumbar disc condition and radicular leg complaints” and that Ms. Kidd “would be considered permanently and totally disabled due to her allowed conditions.”
The Industrial Commission’s examining doctor, Dr. Shah, concluded that Ms. Kidd could work at a sedentary level with the additional restrictions of no bending, twisting, or squatting, avoiding overhead activities, and avoiding activities that require increased balance, including using ladders. Ms. Kidd was limited to standing for approximately 20 minutes, sitting for 20 to 30 minutes with changes in position, and walking up to 1/2 mile. She required rest periods every 15-20 minutes for 1-2 minutes as needed during standing, sitting, or walking, and had difficulty lifting due to her low back pain Ms. Kidd was also evaluated by a vocational consultant who disagreed with Dr. Shah’s opinion that Ms. Kidd could work at a sedentary level. She stated that Ms. Kidd was 100% totally unemployable and does not retain the capacity to engage in sustained, remunerative employment. She stated that Dr. Shah’s list of restrictions was less than a sedentary level; that no employer will accommodate a break every 15 minutes due to being non-productive and inefficient for most job tasks; and the restrictions are so limiting that Ms. Kidd would find it very difficult to find an employer willing to accommodate such requirements. While sitting in this position for 15 minutes, Ms. Kidd is in pain and this affects her concentration. At home, she is able to change positions frequently. At a job, she would not have this opportunity because alternating between sitting, standing, and walking around would impact her ability to complete job tasks in a timely manner. Additionally, she participated in vocational rehabilitation that included job seeking skills training, job development, job coaching and working with an employment specialist but finding an employer who would accommodate her restrictions could not be identified.
The Commission denied Ms. Kidd’s application for PTD compensation based on her testimony and Dr. Shah’s opinion that she was capable of sustained remunerative employment at a sedentary level. The Commission found that Dr. Shah’s restrictions were consistent with the definition of sedentary work in Ohio Administrative Code Section 4121-3-34(B)(2)(a), and that “modern innovations in office equipment, such as sit/stand desks and wireless telephone technology, as well as work-from-home options, offer workers the ability to change positions at their convenience.” Ms. Kidd appealed to the Tenth District Court of Appeals.
On appeal, Ms. Kidd argued that the Commission had abused its discretion by relying on Dr. Shah’s report because his restrictions were less than sedentary work and therefore inconsistent with the definition of sedentary work in Ohio Administrative Code Section 4121-3-34(B)(2)(a). Ms. Kidd also argued that the Commission’s analysis of the nonmedical factors relating to her alleged disability status was flawed and that the Commission failed to consider how Ms. Kidd’s need to telework or utilize modern office innovations would hinder her ability to find employment.
The Tenth District Court of Appeals agreed with Ms. Kidd and held that the Commission’s reliance on Dr. Shah’s opinion constituted an abuse of discretion because his restrictions were “seemingly inconsistent” with the definition of “sedentary work” in Ohio Administrative Code Section 4121-3-34(B)(2)(a). The Court further determined that advancements in workplace technology and Ms. Kidd’s potential proficiency in that regard do not address Ms. Kidd’s apparent impediment to sedentary work as that term is defined in the Ohio Administrative Code.” The Commission appealed to the Supreme Court of Ohio.
On appeal, the Commission argued that its decision was not an abuse of discretion because Dr. Shah’s work restrictions were consistent the definition of sedentary work and that the Commission’s acknowledgment of advances in workplace accommodations further supported its decision. Ms. Kidd reiterated her argument that Dr, Shah’s medical restrictions were inconsistent with the definition of sedentary work and maintained that her need to take rest periods every 15 to 20 minutes limited her ability to function such that she was incapable of engaging in sustained remunerative employment.
The Supreme Court found the restrictions in Dr. Shah’s report consistent with the definitions of PTD and sedentary work. The Court specifically noted that the definition of sedentary work does not address “rest periods” so Dr. Shah’s imposition of rest periods with his restrictions is not inconsistent with the definition of sedentary work. Regarding the Commission’s reliance on advances in workplace technology, the Supreme Court reasoned that in making a PTD determination, the Commission must consider the doctors’ reports and opinions; a claimant’s age, education, and work record; factors of a psychological, psychiatric, and sociological nature; and “any other factors” that might be important to its determination of whether this specific claimant may return to the job market by utilizing past employment skills, or those skills which may be reasonably developed.” Because the Commission can consider any other factors it is not precluded from considering advances in workplace technology in determining whether jobs exist that are reasonably likely to accommodate a claimant’s medical restrictions.
The Court also noted that the evaluation of the weight and credibility of the evidence is left to the discretion of the Commission within the context of each case. And because workers’ compensation cases are largely fact-specific, no one test or analysis can be said to apply to each and every factual possibility. Therefore, we prefer a flexible and analytically sound approach that eschews hard-and-fast rules. Prohibiting consideration of prevalent workplace accommodations and technology would be antithetical to this flexible approach and to the Commission’s exercise of discretion within its field of expertise. The Court concluded that Dr. Shah’s report constituted some evidence, the Commission did not abuse its discretion in denying Kidd’s application for PTD compensation, and reversed the Tenth District Court of Appeals’ decision.
Loss of Use - State ex rel. Ottinger v. B&B Wrecking & Excavating, Inc., 2023-Ohio-1758 (May 25, 2023)
In 2018, claimant was injured when he fell from a roof and sustained multiple injuries and his claim was allowed for various conditions including “paraplegia, incomplete.” In 2019, he filed a motion for compensation for functional loss of use of both of his legs. His motion stated: “In support of this motion, please consider that the medical on file and the fact that his claim is allowed fo[r] ‘paraplegia.’” A BWC nurse reviewed the motion and stated that the medical evidence and the allowed condition of “paraplegia” support the request for compensation of the functional loss of use of both of his legs. However, the claim was allowed for the condition of “paraplegia, incomplete” not “paraplegia” and claimant’s medical records indicated that he could walk for 200 feet, used a walker and wheelchair for mobilization, and is continuing physical therapy on his legs with a goal of returning to work.
The BWC initially granted his request for loss of use compensation. Approximately six weeks later, the BWC filed a motion requesting the Industrial Commission to exercise its continuing jurisdiction arguing there were clear mistakes of law and fact in the BWC’s order granting claimant’s loss of use award. The Industrial Commission granted the BWC’s motion finding continuing jurisdiction was warranted based on the mistake of fact that his claim was allowed for “paraplegia, incomplete” not “paraplegia” and that the medical evidence in the file demonstrated that he had not lost the use of his legs. The Industrial Commission also found that the BWC had made a mistake of law by issuing the loss of use award based on the incorrect allowed condition and the medical evidence that he retained some use of his legs.
Upon appeal before the 10th District, the magistrate found that the commission did not abuse its discretion and the commission’s order was supported by some evidence. The commission identified the following two mistakes of fact by the BWC: (1) the incorrect diagnoses of paraplegia instead of paraplegia, incomplete; and (2) there was evidence on file prior to and subsequent to the issuance of the order of claimant’s ability to stand and ambulate independently with a wheeled walker, which was inconsistent with a loss of use award.
The Court concluded that the commission found at least one clear mistake of fact that was supported by some evidence and therefore did not abuse its discretion in its exercise of continuing jurisdiction. The Court noted that a single mistake of fact or mistake of law was all that was needed to justify the commission’s exercise of continuing jurisdiction. As long as some medical evidence supports the commission’s findings, those findings will not be disturbed. In this case, the commission had ample. evidence in the record which supported the commission’s finding that the BWC granted claimant’s motion based on the factual mistake that his claim had been allowed for “paraplegia,” not “paraplegia, incomplete,” in order to properly exercise continuing jurisdiction.
Classification of Workers - State ex rel. Friendship Supported Living, Inc. v. Ohio Bur. of Workers’ Comp., 2023-Ohio-957. (March 28, 2023).
Friendship Supported Living, Inc., (“Friendship”), provided in-home direct-care services to developmentally disabled persons. In addition to its regular W-2 employees, Friendship classified individuals who provided home health care services as independent contractors. In 2008, the BWC conducted an audit of Friendship and determined the workers were independent contractors. In 2017, the BWC conducted a second audit of Friendship and determined the workers were employees, not independent contractors. The BWC supported its decision by finding that Friendship also had W-2 employees who visited the same consumers as the workers to perform related services. The workers were interviewed, hired, and paid set wages. Friendship assigned schedules and work hours to the workers. Friendship made decisions about care, medication, exercise, etc., and the worker followed a plan developed by a healthcare provider and overseen by a case manager or RN. The contract stated that after 24 months the workers could apply to be employees of Friendship. Friendship performed all scheduling of days and times when the worker was to work. Friendship monitored the workers’ activities for compliance and quality. A worker could not hire someone to cover the worker’s services – the services must be performed by the individual worker. The workers submitted timesheets, were paid by the hour, and did not invoice for services. Friendship carried liability insurance.
Friendship appealed the BWC’s decision to the Tenth District Appellate Court. The Court determined that the BWC had abused its discretion and ordered the BWC to vacate its order. The BWC appealed to the Supreme Court of Ohio arguing that the court committed error by reweighing the evidence and that the BWC’s decision was based on reasoning that was fully supported by evidence in the record.
The Ohio Supreme Court noted the key determination for determining whether an individual is an employee or an independent contractor is who has the right to control the manner or means of doing the work. The Court stated that the right-to-control test is not marked by a bright-line rule but rather a set of non-exhaustive factors such as: the existence of a contract for the performance by an individual of a certain piece or kind of work at a fixed price; the independent nature of the individual’s business or the individual’s distinct calling; the individual’s employment of assistants with the right to supervise their activities; the individual’s obligation to furnish necessary tools, supplies, and materials; the individual’s right to control the progress of the work except as to final results; the time for which the individual is employed; whether the method of payment is by time or by job; whether the work is part of the regular business of the employer; who controls the details and quality of the work; who controls the hours worked; who selects the routes travelled; what is the length of employment; the type of business; and any pertinent agreements or contracts.
The Court reviewed the factors and found that the Ohio Department of Developmental Disability’s regulation of Friendship was not evidence that supported the BWC’s classification of Friendship’s workers as employees. The Court also concluded that Friendship did not exert control over a facet of the work relationship with the workers by requiring that the workers carry their own automobile insurance, because even if the direct-care workers were not involved with Friendship, they would still be required by law to maintain insurance coverage per state-law requirements. The Court noted that Friendship paid the workers hourly but also issued 1099’s to the workers. Because the bureau’s analysis regarding these two aspects of how Friendship paid the workers was supported by some evidence in the record, the Court concluded that these findings effectively canceled each other out.
Instead of determining whether the BWC’s weighing of the factors in the right-to-control test was supported by some evidence, the Supreme Court determined that the BWC failed to consider the totality of the circumstances and remanded the issue back to the BWC for the BWC to provide specific evidence whether Friendship’s monitoring for quality and compliance demonstrated Friendship’s control over the workers or whether it was merely confirming compliance with the terms of the independent contractor agreement. The Court also ordered the BWC to address whether the workers were free to work for other companies including Friendship’s competitors, and to address the previously omitted factors regarding the workers’ routes.
Death Benefits - State ex rel. McDonald v. Indus. Comm., 2023-Ohio-1620. (May 17, 2023).
Mr. McDonald died in a ditch collapse while working for the employer. Amanda Carpenter was Mr. McDonald’s fiancée and the mother of Mr. McDonald’s two minor children. She filed a claim with the BWC for death benefits for her and their two minor children. The Industrial Commission granted death benefits to their two minor children but denied death benefits to Ms. Carpenter. The commission found that she was not dependent on Mr. McDonald as a surviving spouse because they were never married, common-law marriage was abolished in Ohio since 1991, case law did not extend R.C. 4123.59(D)(2) to an unmarried person in a relationship with a decedent worker, and for over 80 years the commission had required that a legal marriage exist.
Ms. Carpenter appealed to the Tenth District Court of Appeals. The Tenth District concluded that because the last paragraph of R.C. 4123.59(D) says that a dependent can be “a member of the family of the deceased employee” or a person that “bears to the deceased employee the relation of surviving spouse, lineal descendant, ancestor, or brother or sister,” Ms. Carpenter could potentially qualify for death benefits as a member of McDonald’s family, even though she was not his surviving spouse.
On appeal before the Ohio Supreme Court reviewed R.C. 4123.59(D) and noted that the statute is divided into two sections. The Court noted that the first section stated that “no person shall be considered a prospective dependent unless such person is a member of the family of the deceased employee and bears to the deceased employee the relation of surviving spouse, lineal descendant, ancestor, or brother or sister.” While the second section stated “in all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless such person is a member of the family of the deceased employee, or bears to the deceased employee the relation of surviving spouse, lineal descendant, ancestor, or brother or sister.”
The Court reasoned that because the second section used the word “or” instead of the word “and” as used in first section, the second section in R.C. 4123.59(D) created two categories of potential dependents: (1) “a member of the family of the deceased employee” or (2) a person who “bears to the deceased employee the relation of surviving spouse, lineal descendent, ancestor, or brother or sister.” Therefore, the Court concluded that marital status was not determinative of whether a person is eligible to receive death benefits under the last paragraph of R.C. 4123.59(D). In other words, any person may be eligible for death benefits if it is determined that the person is “a member of the family of the deceased employee” under the facts of the particular case.
The Court concluded that the Industrial Commission failed to further consider or determine whether Ms. Carpenter was a member of Mr. McDonald’s family, even though she was not married to Mr. McDonald, pursuant to the second section of 4123.59(D). And, the commission could determine that an unmarried person who was in a relationship with a deceased employee was “a member of the family of the deceased employee,” depending on the facts of that particular case. The Court remanded the matter back to the commission to determine whether Ms. Carpenter was a member of Mr. McDonald’s family at the time of the injury that resulted in his death.
State ex rel. Heilman v. Indus. Comm., 2023-Ohio-3073. (August 31, 2023).
Arthur Heilman was injured on April 4, 2019, while working for Riverside Maine Industries, Inc., (“Riverside”) when he was struck in the head by a piece of metal from a machine that failed. Mr. Heiman died on April 6, 2019, as a result of his work-related injuries. Patricia Heilman filed a death claim and a loss of use application for the total loss of use of both arms and legs, total loss of vision in both eyes, and total loss of hearing in both ears on behalf of her deceased husband. Riverside certified Ms. Heilman’s claim, and her request for death benefits was paid on October 15, 2019. The Commission denied her application for payment of loss-of-use-compensation, pursuant to R.C. 4123.57(B). Ms. Heilman appealed to the Tenth District Court of Appeals.
The Court concluded that certain medical reports cannot constitute “some evidence” to support the Commission’s order denying Ms. Heilman’s motion for loss-of-use compensation because it did not comply with the holding in State ex rel. Wallace v. Indus. Comm., 57 Ohio St. 2d 55, 386 N.E.2d 1109 (1979) inasmuch as the reviewing physician, when rendering his opinion, did not accept the objective findings of the coroner who was an examining physician.
Accordingly, the Court directed the Commission to vacate its order denying Ms. Heilman’s application, determine, without reliance on the reviewing physician’s reports, whether Ms. Heilman had established Mr. Heilman’s loss of use of both arms and legs, loss of vision in both eyes, and loss of hearing in both ears, and enter an order granting or denying compensation accordingly. On October 5, 2023, the Industrial Commission filed an appeal to the Ohio Supreme Court. On October 16, 2023, Ms. Heilman filed a cross-appeal to the Ohio Supreme Court.
State ex rel. Kenneth Cogan v. Indus. Comm., 2022-Ohio-3748 (October 5, 2023)
Mr. Cogan did not have a lens in his right eye as a result of a childhood injury involving a BB pellet. With the use of a hard contact lens, his vision was restored to 20/40. Without a hard contact lens, his vision was “count fingers at two feet.” However, Mr. Cogan never underwent corrective surgery prior to his work injury. Several decades later, Mr. Cogan was injured at work when a ratchet struck his right eye. Mr. Cogan underwent three corrective surgeries. Following the second surgery, Mr. Cogan’s corrected vision in his right eye was measured at “count fingers at two feet.” After the third surgery, Mr. Cogan’s vision was 20/400 and his doctor opined he did not have usable vision in his right eye due to refractive error. Mr. Cogan filed an application for total vision loss in his right eye. Relying on the report of Dr. Raffoul, the Industrial Commission denied his application determining that Mr. Cogan could not show that he suffered any loss of vision due to the industrial injury when comparing his pre-injury uncorrected vision without the hard contact lens of “count fingers at two feet” to his post-injury uncorrected vision of “count fingers at two feet.” Mr. Cogan appealed to the Tenth District Court of Appeals.
The Tenth District Court of Appeals found that the Commission applied the incorrect standard to determine Mr. Cogan’s preinjury visual baseline. The Court stated that the Commission should not have strictly adhered to the standard of comparing Mr. Cogan’s uncorrected pre-injury vision without a hard contact lens to Mr. Cogan’s uncorrected post-injury vision. In doing so, the Commission predetermined that Mr. Cogan did not suffer vision loss because Mr. Cogan’s uncorrected vision remained at “count fingers at two feet.” Instead, the Commission should have construed the statute liberally in favor of Mr. Cogan, exercised its discretion, and taken into account the unique circumstances of Mr. Cogan’s medical history regarding his right eye. The Commission should have compared Mr. Cogan’s pre-injury, corrected, usable vision of 20/40 to his post-injury, uncorrected, unusable vision of 20/400. Note that, instead of finding Mr. Cogan had lost 100% of his vision in his right eye, the Court remanded the matter back to the Commission to apply the correct standard to determine Mr. Cogan’s pre-injury visual baseline and determine whether the medical evidence supports an award for loss of vision. The Commission appealed to the Supreme Court of Ohio.
The issue before the Ohio Supreme Court was whether the Commission had discretion to use Mr. Cogan’s vision as corrected by a hard contact lens as Mr. Cogan’s preinjury visual baseline. The Commission argued that Mr. Cogan’s use of a hard contact lens to correct his vision was distinguishable from someone who had surgery to correct their vision prior to their work injury. As a result, the Commission argued it was required to use Mr. Cogan’s pre-injury, uncorrected vision as a baseline. The Court noted that R.C. 4123.57(B) states that the standard for post-injury vision is the claimant’s uncorrected vision without consideration of surgical procedures, contact lenses, or glasses. However, R.C. 4123.57(B) does not address the standard for measuring pre-injury vision.
On October 5, 2023, the Supreme Court rejected the Commission’s argument finding no distinction between surgical procedures and optical prostheses as both are considered a correction to vision, not a restoration of vision. The Court found that whether a claimant has had a preinjury surgical correction is not determinative under R.C. 4123.57 or case law, therefore, the Commission abused its discretion by using Mr. Cogan’s pre-injury, uncorrected vision as a baseline. The Court affirmed the decision of the Tenth District Court of Appeals and remanded the matter to the Commission for further proceedings.
State ex rel. Levitin v. Indus. Comm., 2022-Ohio-2750 (October 4, 2023)
Rimmia Levitin was injured when her right hand was caught in the rollers of a flatbed die-cutter machine. Approximately ten months prior to her injury, the Employer renovated the machine and modified a guard by increasing its weight to prevent it from bowing and accidentally shutting down the machine. In addition to her BWC claim, Ms. Levitin filed an application for a VSSR award alleging the Employer violated two sections of the Administrative Code. The Industrial Commission denied Ms. Levitin’s VSSR application stating that the first code section was not violated because it applied to a single function machine and the machine in this case was a multifunction machine. And, the second code section was not violated because a safety device need not be foolproof. The purpose of a specific safety requirement is to provide reasonable but not absolute safety for employees. The increased weight of the guard may have made the guard less effective, but not useless. Lastly, there was no evidence that the Employer had been forewarned of the malfunction by a prior malfunction of the guard under the “one-time malfunction” rule. Ms. Levitin appealed to the Tenth District Court of Appeals.
The Tenth District Court of Appeals found that the Industrial Commission decision was based on “some evidence” and was not an abuse of discretion. The Court also noted that safety regulations do not impose strict liability on employers whenever a safety device fails. The Court referenced the “one-time malfunction” exception which provides that the fact that a safety device that otherwise complies with the safety regulations failed on a single occasion is not alone sufficient to find that the safety regulation was violated. Under this exception, the question becomes whether the Employer had ever been forewarned of the malfunction on the date of injury by a prior malfunction of the safety device. In this case, the modified safety guard had not malfunctioned prior to Ms. Levitin’s injury. Ms. Levitin appealed to the Supreme Court of Ohio.
On appeal Ms. Levitin argued that because the employer intentionally modified the guard, the guard did not provide reasonable safety from accidental injury and the employer cannot claim a lack of forewarning under the one-time malfunction rule. On October 4, 2023, the Supreme Court affirmed the Tenth District Court of Appeals’ decision finding that the Commission’s decision was supported by “some evidence.” The Court noted that the employer did not modify the guard to disable it. Instead, the employer modified the guard because it was malfunctioning and accidentally actuating a shutdown. The employer may have provided a less-effective means of protection, but that is not the same as an employer providing no guard at all. As to the one-time malfunction rule, the Court noted that the Commission’s decision was supported by witness testimony and maintenance logs that the type of failure had never occurred before. The Court refused to reweigh the evidence, even if contrary witness statements existed. Ms. Levitin also tried to argue that where a corporate party denies knowledge of a fact, a court should determine whether any evidence demonstrates knowledge of that fact by any employee. The Court rejected Ms. Levitin’s argument as an inversion of the “some evidence” rule and an attempt to get the Court to reweigh the evidence.
State ex rel. Spotleson v. Medlab Ohio Inc., 2023-Ohio-2464. (July 18, 2023).
On October 13, 2010, Susan Spotleson sustained an injury while employed at Medlab Ohio, Inc., when a vehicle she was driving was struck by another vehicle. Her workers’ compensation claim was allowed for “left shoulder sprain”; “neck sprain”; “head injury with no loss of consciousness”; ”disc protrusion C6-C7 level”; “substantial aggravation of pre-existing disc protrusion C5-C6”; “reflex sympathetic dystrophy bilateral upper arms”; “left neoplasm uncertain behavior lower neck from previous cervical surgery”; “complex regional pain syndrome of left lower limb”; “chronic regional pain syndrome of the face”; “myelomalacia C3-C4 and C7”; and “cervical disorder with myelopathy C3-C4 and C7.”
In March 2012, the BWC issued an order granting temporary total disability (“TTD”) compensation beginning on February 22, 2012, and to continue based on the submission of medical evidence. The BWC paid TTD compensation through February 27, 2017. Ms. Spotleson submitted C-84 forms dated February 25, March 25, April 25, and May 25, 2017. In addition to the C-84 forms, Ms. Spotleson submitted a January 31, 2017, physician report of work ability MEDCO-14 estimating a potential return to work date of February 28, 2017. The BWC issued a letter informing Ms. Spotleson that she had not submitted a physician report of work ability MEDCO-14 or any other medical evidence to support the most recent period of TTD compensation. The letter also indicated that if the requested documentation was not submitted, TTD compensation would end on February 27, 2017. Ms. Spotleson submitted C-84 forms dated June 25 and July 25, 2017. TTD compensation was granted, and the BWC appealed. In July 2021, the order was vacated, and TTD compensation was denied on the basis that TTD was not payable from two years prior to the date that the motion was filed pursuant to R.C. 4123.52. Ms. Spotleson appealed to the Tenth District Court of Appeals.
The Court upheld the BWC’s denial of TTD compensation finding that there was “some evidence” in the record to support the order denying TTD compensation for the period of February 28, 2017, through February 26, 2018. Because the only application for compensation before the SHO was the February 27, 2020, C-86 motion, the two-year limitation in R.C. 4123.52 prohibited the SHO from granting TTD compensation from February 17, 2017, through February 26, 2018. The Court noted that the language in R.C. 4123.52 barring the Commission from awarding compensation beyond two years prior to the date of the filing of the application is explicit and mandatory. On August 29, 2023, Ms. Spotleson filed an appeal to the Ohio Supreme Court which is pending.
State ex rel. Jeld-Wen, Inc. v. Indus. Comm., 2023-Ohio-2593. (July 27, 2023).
On May 13, 2019, Steven Totten’s right hand was caught between a conveyor and outfeed table on a patio door cleaner while working for Jeld-Wen, Inc., a self-insured employer. Jeld-Wen recognized Mr. Totten’s claim for his injuries.
After an absence, Mr. Totten returned to work on August 11, 2019, and was assigned light-duty work. After working less than one week, Mr. Totten was experiencing pain in his right fourth finger and was examined by a doctor who initially removed him from work entirely but then allowed him to return on August 15, 2019, “with a complete restriction from using his right hand.” This restriction was continued until October 2019, at which time Mr. Totten stopped working because “the offered employment required him to use his right hand which was contrary to the doctor’s restrictions.” Mr. Totten was subsequently examined by a new physician, who completely removed Mr. Totten from work from October 4, 2019, through January 15, 2020, based on Mr. Totten’s inability to perform the light-duty work that had been offered. In January 2020, Mr. Totten was examined by a third doctor, who concluded that Mr. Totten could have performed the light-duty work as of October 4, 2019, in part because Mr. Totten had been performing that work between August 15th and October 4th. Subsequently, Mr. Totten sought TTD compensation benefits from October 4, 2019, onward. The Commission granted Mr. Totten’s temporary total benefits. Jeld-Wen appealed to the Tenth District Court of Appeals. Jeld-Winn argued that it had offered a light-duty job to Mr. Totten and therefore the Commission should have denied his request for TTD compensation. The Court determined that Jeld-Wen did not provide any evidence—such as testimony from an occupational specialist—that its light-duty work could be performed with a single hand, and it was undisputed that Mr. Totten testified that the light-duty work required him to use his right hand. Although two of the doctor’s disagreed over the “no use of right hand” restriction, the record was clear that both doctors believed that the restriction was appropriate. In light of this other evidence, the Commission was free to give the opinion that Mr. Totten could perform light-duty work appropriate weight in view of Mr. Totten’s testimony and the other evidence in the record.
The Court upheld the Commission’s decision because there was “some evidence” in the record to support the Commission’s orders. No appeal was filed to the Ohio Supreme Court.
State ex rel. Moore v. Indus. Comm., 2023-Ohio-3075. (August 31, 2023).
On November 26, 1991, Tamara Moore sustained an injury to her right shoulder while picking up a small motor during her employment for Gemi Holdings, Inc. Her workers' compensation claim was allowed for “right shoulder sprain,” “myoneural disorder of long thoracic nerve,” “joint derangement right shoulder,” and “depressive disorder.” She received temporary total disability compensation. She never underwent any surgeries for her injury.
Moore attempted to participate in rehabilitation, but in June 1992, was informed that she was not medically stable for participation in rehabilitation, and her rehabilitation file was closed in January 1993. Without rehabilitation, she returned to restricted-duty work with Gemi in February 1993, and continued working there for approximately 28 years. However, she continued to have pain in her right shoulder and continued to receive medical treatment periodically.
In August 2019, Ms. Moore was laid off due to the Gemi’s relocation of the workforce to Mexico. In February 2021, Ms. Moore filed for Permanent Total Disability (“PTD”). Ms. Moore was examined by four doctors in 2021. Ms. Moore’s doctor, Dr. Hurst, opined Ms. Moore had no capacity for sustained remunerative employment due to the allowed physical conditions in the claim. Ms. Moore’s psychologist, Dr. Lyall, opined Ms. Moore was PTD for the allowed psychological conditions in the claim. The BWC doctor, Dr. Scheatzle, opined Ms. Moore could perform light-duty work with restrictions. The BWC psychologist, Dr. Pawlarczyck, opined that Ms. Moore’s psychological condition resulted in a 24% whole-person impairment and caused her to experience significant social withdrawal, and be irritable and pessimistic which would affect her ability to work with others. She would be unable to tolerate stress encountered at work, and there was the potential to engage in some suicidal behavior.
A Staff Hearing Officer (“SHO”) denied Ms. Moore’s application for PTD based on Dr. Scheatzle’s and report, finding that among other things: Ms. Moore was able to perform light-duty work for the employer for 28 years; Ms. Moore was laid off only due to the employer’s moving its workforce to Mexico; following her layoff, Ms. Moore did not seek vocational rehabilitation; Ms. Moore’s lack of sleep has been a chronic problem for a number of years, but she was still capable of working; Ms. Moore was capable of performing light work, and can sit, stand, walk, and lift with her right arm to shoulder height; Ms. Moore did not take any pain medications; Ms. Moore did not pursue any vocational rehabilitation; Ms. Moore performed activities of daily living inconsistent with being unable to perform all sustained remunerative employment; and Ms. Moore
refused psychotherapy treatment despite feeling stressed. The SHO rejected Dr. Pawlarczyk’s report as internally inconsistent and Dr. Lyall’s report because he stated Ms. Moore had only worked for Gemi for 11/2 years.
Ms. Moore appealed to the Tenth District Court of Appeals arguing the SHO failed to provide a reason why it rejected Ms. Moore’s reports, and improperly considered her percentage of partial impairment in violation of Ohio Administrative Code 4121-3-34(D)(3)(f).
The Court noted that the Commission was the exclusive evaluator of weight and credibility of the evidence and it would be improper for the Court to evaluate the propriety of the Commission’s finding that a doctor’s report was persuasive. The Court further noted that the Commission was not required to identify the evidence it finds unpersuasive or the reason for rejecting it, because “[l]ogic dictates that if the identity of rejected evidence is irrelevant, so is the reason for the rejection.” Accordingly, the Commission did not need to state why it found one doctor’s report more persuasive than that of another doctor. The Commission may not state an arbitrarily reason for rejecting a report but the Commission must have “some reasonable basis for the rejection of a physician’s finding.” The Court noted that, contrary to Ms. Moore’s argument, the SHO provided two reasons for rejecting the reports as some evidence: (1) the doctor failed to explain how Ms. Moore was unable to return to sustained remunerative employment yet worked for 28 years after her injury in a light-duty capacity; and (2) the doctor indicated in his report that Ms. Moore had been diagnosed with an unspecified anxiety disorder, a condition not allowed in Ms. Moore’s claim.
The Court stated that OAC section 4121-3-34(D)(3)(f) provides that an “adjudicator shall not consider the injured worker's percentage of permanent partial impairment as the sole basis for adjudicating an application for compensation for permanent total disability. However, contrary to Ms. Moore’s argument, the SHO did not consider Ms. Moore’s percentage of impairment as the sole basis for denying her PTD application as the SHO denied Ms. Moore’s application for the numerous other reasons as indicated in its order. Therefore, because the SHO did not consider Moore’s percentage of impairment as the sole basis for denying Ms. Moore PTD compensation, the SHO’s decision did not violate OAC 4121-3-34(D)(3)(f).
The Court held that because the SHO’s order was based on “some evidence” and did not violate OAC 4121-3-34(D)(3)(f) the Commission did not abuse discretion when it denied Ms. Moore’s PTD compensation. No appeal has been filed with the Ohio Supreme Court as of October 16, 2023.
State ex rel. Cincinnati v. Indus. Comm., 2023-Ohio-3638 (October 5, 2023)
Joseph Conley was diagnosed with thyroid cancer while working as a firefighter for the City of Cincinnati. Mr. Conley’s claim was initially denied by the Industrial Commission. Upon Mr. Conley’s request for reconsideration, the Commission invoked its continuing jurisdiction based on “a clear mistake of law” and found that the expert reports relied on by the hearing officers to deny Mr. Conley’s claim were insufficient as a matter of law to rebut the presumption under R.C. 4123.68(X)(1). Specifically, the Commission found that the reports did not show, by a preponderance of competent scientific evidence, that exposure to the type of carcinogen alleged did not or could not have caused Mr. Conley’s cancer. After reconsideration, the Commission allowed Mr. Conley’s claim. The City of Cincinnati appealed to the Tenth District Court of Appeals arguing that a clear mistake of law did not exist, instead the Commission was improperly reweighing the evidence.
The Court noted that R.C. 4123.68(X) sets forth a rebuttable presumption that cancer contracted by firefighter who has been assigned to at least six year of hazardous duty as a firefighter constitutes a presumption that the cancer was contracted in the course of and arising out of that firefighter’s employment if the firefighter was exposed to certain carcinogens. An employer can rebut the presumption through evidence that shows, by a preponderance of competent scientific evidence, that exposure to the type of carcinogen alleged did not or could not have caused the cancer being alleged.
The Court reviewed Cincinnati’s expert reports and determined that the medical literature the city’s expert relied on did not establish that the exposure to the pertinent carcinogens did not or could not have caused Mr. Conley’s cancer. Therefore, the City’s expert report did not show by a preponderance of competent scientific evidence that Mr. Conley’s exposure to the carcinogens did not or could not have caused Mr. Conley’s cancer. The Court stated that the misapplication of the rebuttable presumption was a clear mistake of law, and concluded that the Commission properly identified the mistake of law in that the medical evidence cited the hearing officers was not legally sufficient to rebut the statutory presumption in R.C. 4123.68(X). No appeal has been filed with the Ohio Supreme Court as of October 16, 2023
© Copyright 2024 by Christopher M. Ward, Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.