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Employer Law Report

Category Archives: Workers’ Compensation

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Join Us In Cleveland On Thursday, October 23 for The Greatest Seminar on Earth!*

Posted in EEO, Employee Benefits/ERISA, Events, Traps for the Unwary, Workers' Compensation, Workforce Strategies

Come one, come all!

 Register here

There is no charge for this seminar; however, seating is limited. Please RSVP by Monday, Oct. 20. If you have questions, please contact
Erin Hawk.

Thursday, Oct. 23, 2014 

7:45 – 8:30 a.m.
Registration and Breakfast 

8:30 – 11:00 a.m.
Program

LockKeepers Restaurant
8001 Rockside Road
Valley View, OH 44125

 

Come One, Come All!

Feel like a lion tamer or a trapeze artist trying to avoid a risky move or a dangerous misstep? 

Join Porter Wright’s Labor and Employment Group in Cleveland on Thursday, October 23 as we present . . .

The Greatest Seminar On Earth!*
The Circus


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Detailed, written job descriptions are vital to employer’s defense in workers’ compensation claim

Posted in Workers' Compensation

As we have explained before, one of an employer’s main defenses in a workers’ compensation claim is that the employee’s own actions – rather than the work-related injuries — have led to the employee being off work. The Ohio Supreme Court recently revisited the analysis of when an employee’s actions constitute a voluntary abandonment of employment thereby precluding receipt of temporary total disability compensation.

In State ex. rel. Robinson v. Indus. Comm., Parma Care Nursing and Rehabilitation hired Shelby Robinson in 1995, and at that time, provided her with a written job description that established her job duties and responsibilities. …


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Missed Our Recent Workers’ Compensation Seminar: Strategies For Protecting Your Workplace? Listen to the recordings

Posted in Events, Workers' Compensation

If you missed our recent Workers’ Compensation seminar, you can listen to the recordings here.  You must enter the following to access the download:

User name:  PorterWright

Password:  Event

Once again, the topics presented were:

Effectively Managing Mental Stress Claims in Light of the Recent Armstrong Decision
Presented by Fred J. Pompeani

The Ins and Outs of The New Wage Loss Rules
Presented by Christopher C. Russell

Social Media: An Employer’s Best Friend In Defending Against Questionable Workers’ Compensation Claims?
Presented by Brian D. Hall

Shining a Light On The Workers’ Compensation Hearing: Strategies for Success and Pitfalls to


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Sixth Circuit En Banc Decision Rejects RICO Claim for Alleged Workers’ Compensation Fraud

Posted in Workers' Compensation

Every once in a while – okay maybe more frequently than that – I realize that I have missed a court decision on an issue I have been following. Most recently, I had been intrigued by the Sixth Circuit panel decisions in Brown v. Cassens Transport Co. (Brown II) and Jackson v. Sedgwick Claims Management Services, Inc. that had upheld Michigan workers’ compensation claimants’ rights to file federal RICO claims against their employers, their employers’ third party administrators and physicians who had conducted independent medical examinations on the theory that the defendants had conspired to unlawfully deny …


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Mental Block: Ohio Supreme Court Affirms Denial Of Workers’ Compensation Benefits For PTSD Not Caused By Physical Injury To Claimant

Posted in Workers' Compensation

In August 2009, Shaun Armstrong sustained minor physical injuries in a motor vehicle accident while in the scope of his employment. The other driver, who plowed into the back of Armstrong’s truck, was killed.

Armstrong’s workers’ compensation claim was allowed for neck and back injuries. He also sought an allowance for PTSD, which the Industrial Commission also allowed. Armstrong’s employer appealed the PTSD allowance to the common pleas court on the grounds that the PTSD was not caused by his physical injuries.

The parties stipulated that Armstrong had PTSD and conducted a bench trial to determine whether he was entitled …


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Ohio’s Sixth District Court of Appeals Finds a New Way to Expand Scope of the Employer Intentional Tort Statute

Posted in Workers' Compensation

Until the Ohio legislature enacted R.C. 2745.01 in 2005, the employer intentional tort exception to workers’ compensation immunity exasperated Ohio employers. Under the exception as interpreted by the Ohio Supreme Court, employers could be held liable for an intentional tort (with the accompanying tort damages such as punitive damages) so long as they had knowledge of a dangerous condition in its workplace that was substantially certain to cause injury and nevertheless required its employee to work under that condition. This was a very relaxed standard for an “intentional” tort and one that was made even more relaxed by increasingly liberal …


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Ohio Supreme Court Again Reins In BWC On Successor Liability

Posted in Workers' Compensation

As we have previously discussed, the Bureau of Workers’ Compensation (BWC) has traditionally taken an aggressive position in finding that a business purchasing all or part of another business is responsible for the predecessor entity’s workers’ compensation risk, frequently resulting in an increase in premiums and penalties for the purchasing entity.

As we reported in 2009, the Ohio Supreme Court reaffirmed a narrow exception to the BWC’s broad successor-in-interest rules when the alleged successor obtained the business from the predecessor through an involuntary foreclosure proceeding. Then, in 2010, the BWC created a new rule that invalidated the Ohio Supreme …


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Cuyahoga County Common Pleas Court Finds Ohio BWC Group Rating Program Resulted in Overcharges to Non-Group Employers, Orders Restitution

Posted in Workers' Compensation

Beginning on August 20, 2012, a bench trial was conducted before Cuyahoga County Common Pleas Court Judge Richard McMonagle in a class action lawsuit against Stephen Buehrer, the Ohio Bureau of Workers’ Compensation Administrator, in his official capacity in which a class of employers alleged that they were unlawfully excluded from participating in, or were dismissed from, the Bureau’s group-rating program during the years from 2001 to 2009. As a result, the plaintiff companies alleged that they were overcharged by the Bureau and sought restitution of the excess premiums paid. Judge McMonagle issued his decision last week finding in favor …


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‘Tis the Season for Holiday Workplace Issues. Day 5 – What If Santa Was The One That Got Run Over By a Reindeer?

Posted in Traps for the Unwary, Workers' Compensation, Workforce Strategies

It is important not to require employee attendance at holiday parties and that pressure to attend is properly managed. Mandatory attendance at company-sponsored functions, like holiday parties, can result in workers’ compensation claims if an attending employee is injured. It can also mean that the employee is entitled to be compensated for his or her time spent at the event pursuant to the Fair Labor Standards Act ("FLSA").

For workers’ compensation liability, if the employee is required to attend a company-sponsored event, or there is significant business that takes place at the event that essentially makes attendance mandatory, then the …


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Ohio Supreme Court Holds that Employee Not Wearing PPE Did Not Amount to a Deliberate Removal of an Equipment Safety Guard and Could Not Establish an Intentional Tort Claim

Posted in Workers' Compensation, Workforce Strategies

In Hewitt v. L.E. Myers Co., 2012-Ohio-5317, the Ohio Supreme Court held last week that protective gloves and sleeves are “personal protective items” that an employee controls and not equipment safety guards for purposes of stating a cause of action under Ohio’s intentional tort statute, which provides an exception to an employer’s workers’ compensation immunity. The Court also clarified that an employee claiming that his employer removed a safety guard—which creates a rebuttable presumption of intent to injure under the statute—must establish that the employer made a deliberate decision to lift, push aside, take off, or otherwise eliminate the …


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Ohio Supreme Court Upholds Denial of TTC to Retired Employee

Posted in Workers' Compensation

The Ohio Supreme Court issued a decision in State ex rel. Rouan v. Indus. Comm., last month making it clear that employees who retire, and thereby remove themselves from the workforce, for reasons unrelated to their workers’ compensation claims are ineligible to receive Temporary Total Compensation. ("TTC").

Patricia Rouan, a social services inspector for Mahoning County, hurt her leg at work on May 24, 2004. She received Temporary Total Disability compensation benefits through May 15, 2005, at which time the Ohio Bureau of Workers’ Compensation ("BWC") terminated her benefits. On June 1, 2005, the BWC issued an order stating …


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You’re Fired! Wait, Didn’t Anyone Tell You? Ohio Supreme Court Addresses the Workers’ Compensation Statutory Notice Requirement

Posted in Workers' Compensation

The Ohio Supreme Court issued a decision yesterday in Lawrence v. City of Youngstown, 2012-Ohio-4247 (Sept. 20, 2012), which reminds employers that they have a duty to notify employees within a reasonably prompt time of their discharge.

Keith Lawrence, a former City of Youngstown employee, was suspended on January 7, 2007, without pay, pending an investigation. Two days later, the City discharged him. Lawrence claimed he did not become aware of his discharge until February 19th—nearly six weeks later. The City stated it sent Lawrence a letter because he was not working at the time he was discharged. Unfortunately …


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Recession Rebound Could Create Risks

Posted in Workers' Compensation

In Ohio and nationally, experts are reporting that the unemployment rate is decreasing. Further, the number of job openings is increasing. With returning employees and hiring new employees, employers are at a risk for increased workers’ compensation claims. Although we generally presume that workers who change employment are at a higher risk for injuries, re-hired employees may also pose safety concerns when returning to their former employers after an extended time away from the job. As a result, it is equally important for employers to pay attention to safety training for new employees as well as re-hired employees. Training not …


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Workers’ Compensation Considerations When Purchasing a Company

Posted in Workers' Compensation

When a purchase of a business takes place in Ohio, the purchaser often overlooks the fact that it will assume the sellers’ workers’ compensation claims experience either in part or in whole. The Bureau of Workers’ Compensation ("BWC") has taken a fairly strict line in combining and transferring coverage to purchasers.

When a new owner wholly assumes the former employer’s business, the BWC transfers all of the employer’s claims experience to the purchaser. If the new owner purchases a portion of the business, only a part of the former employer’s experience will be transferred. Even if the parties enter into …


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Scalia v. Aldi–A Mixed Bag for Employers

Posted in EEO, Workers' Compensation

The Ohio Court of Appeals for the Ninth Appellate District recently issued a decision that has potential to create more questions than answers when it comes to workers’ compensation retaliation and disability discrimination law in Ohio.

While employed at Aldi, Maria Scalia injured her elbow. Her claim for workers’ compensation was granted, and she was off work receiving workers’ compensation benefits while her restrictions impaired her ability to perform her job. A year later, Aldi ordered an independent medical examination which found Ms. Scalia had reached maximum medical improvement, which resulted in the termination of Ms. Scalia’s workers’ compensation benefits. …


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BWC Implements Workplace Wellness Grant Program for Employers

Posted in Workers' Compensation

Effective January 10, 2012, the BWC has implemented a new program providing grants up to $15,000 over 4 years to state-fund employers to create workplace wellness programs for the prevention of occupational injuries and illnesses and to address health risk factors to reduce the number and severity of workplace injuries and illnesses.

State fund employers without an existing wellness program who are current on all premiums and other costs are eligible to apply for a grant. In addition, employers shall agree not to eliminate any jobs or reduce employment due to the implementation of the workplace wellness program. The BWC …


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Ohio BWC Offers a One-Time Waiver of Penalties to Employers Who Fail to Timely Pay Premiums

Posted in Workers' Compensation

The Ohio Bureau of Workers’ Compensation has implemented a new policy for employers who fail to pay premiums timely.

Pursuant to Governor Kasich’s Common Sense Initiative, in an effort to attract and retain business in Ohio, the Bureau of Workers’ Compensation will permit an employer one violation of the reporting deadline for payroll and waive any associated penalties with the violation.

If an employer fails to pay premiums timely and the employer’s coverage lapses, the employer becomes liable for late payments, interest and claim costs on claims that occur during the lapse. Previously, the only way an employer could be …


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Ohio BWC Board Approves New Grow Ohio Incentive Program

Posted in Workers' Compensation

The Ohio Bureau of Workers’ Compensation Board of Directors has approved a new Grow Ohio Incentive Program (Grow Ohio) in an effort to encourage economic development and job creation in Ohio.

Grow Ohio offers eligible new employers a 25% discount on their workers’ compensation premium for two years, or immediate access to participation in the group rating program, which was normally not accessible to new employers until the first policy year following the date of obtaining workers’ compensation coverage.

A new employer to Ohio is defined as any new business entity in the State of Ohio, or an out of state …


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Clearing the Backlog – September

Posted in Business Competition, EEO, Workers' Compensation, Workforce Strategies, Workplace Privacy

More and more these days it seems like the obligations of being a lawyer, husband, father, son, sports fan, etc, get in the way of blogging. As a result, I end up accumulating a number of worthwhile topics for blog posts that end up in the discard pile. Twitter helps keep the backlog to a minimum, but I really don’t know how many of you actually follow me @briandhallesq (hint, hint). So, while I am by no means committing to make this a regular feature of Employer Law Report, I will now clear – in no particular order — my …


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Supreme Court Says No Duty To Defend Employer Intentional Tort Claims Under Stop Gap Insurance Endorsements

Posted in Traps for the Unwary, Workers' Compensation

Under Ohio law, employees may sue their employer to recover damages for an employer intentional tort – even when the injuries are otherwise covered by workers’ compensation.  Because these cases can be costly to defend, employers historically have purchased commercial general liability policies with “stop-gap” insurance endorsements for years, believing these provisions imposed a duty to defend the employer against an employer intentional tort lawsuit.

On July 6, however, the Ohio Supreme Court decided Ward v. United Foundries, Inc., determining that Gulf Underwriters Insurance Company did not have a duty to defend United Foundries, Inc. under such a stop-gap …


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Sutton v. Tomco Machining, Inc.: Ohio Supreme Court Expands Workers’ Compensation Retaliation Protection

Posted in Workers' Compensation

On June 9, 2011, the Ohio Supreme Court issued its long awaited decision in Sutton v. Tomco Machining, Inc., in which the Court expanded the scope of workers’ compensation retaliation protection to include employees who are injured on the job but have not yet filed an actual workers’ compensation claim.

On April 14, 2008, DeWayne Sutton injured his back while working at Tomco Machining, Inc. ("Tomco”). He allegedly reported the injury to Tomco’s president and within one hour of reporting the injury, Sutton was fired. According to Sutton’s complaint, the president did not give him a reason for the …


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Will GINA Impact Ohio Employers’ Ability to Conduct Medical Investigations In Workers’ Compensation Claims?

Posted in EEO, Workers' Compensation, Workplace Privacy

In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only …


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Ohio BWC Creates New Rule Circumventing the Ohio Supreme Court’s Decision

Posted in Workers' Compensation

In June 2009, we reported on the Ohio Supreme Court’s decision to create a narrow exception to the broad BWC successor rules. The Ohio Supreme Court’s decision in State ex rel. Valley Roofing, LLC v. Ohio Bureau of Workers’ Compensation created a small exception to the BWC’s broad authority to impose successorship liability when it held that a business that acquired another business’s assets via a bank foreclosure was not a successor to the previous business.

Ohio’s courts have long held that the workers’ compensation statute authorizes the BWC to find successorship whenever “any employer transfers a business in whole or …


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Ohio H.B. 523 Would Unify Definition of Employee, Make it Easier to Find Misclassification

Posted in Traps for the Unwary, Wage & Hour, Workers' Compensation, Workforce Strategies

On Tuesday, May 25, 2010, Representatives Phillips and Driehaus introduced in the Ohio General Assembly a bill that effectively would create a single definition of "employee" for purposes of Ohio workers’ compensation, unemployment compensation, payroll taxes, minimum wage and other purposes. Presently, each statute contains its own test for determining whether an individual is an employee or an independent contractor, often resulting in conflicting results.

If passed, this legislation would create a single seven-factor test for evaluation whether an individual truly is an independent contractor.

For an individual to be an independent contractor under H.B. 523, all of the following …


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