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Workers’ compensation law aiming to reduce appeal time is constitutional

By Rebecca Kopp Levine on

The Ohio Supreme Court has definitively decided that an employee cannot unilaterally dismiss an employer-initiated appeal in a workers’ compensation case; rather, the employer must consent to the dismissal.

After a workers’ compensation claim proceeds administratively before the Industrial Commission, any party may appeal the Commission’s decision to permit the employee to participate in the workers’ compensation system to the Court of Common Pleas. After an appeal is filed, the employee must file a petition/complaint within 30 days.

Regardless of which party files the appeal, the employee is the plaintiff in the workers’ compensation case. While the court case is …

Workers’ compensation law changes

By Rebecca Kopp Levine on

Recently, Gov. Kasich signed into law the workers’ compensation budget. In addition to funding the Ohio Bureau of Workers’ Compensation (BWC), the bill enacted a number of substantive changes to the law. These changes are effective Sept. 29, 2017. Below are some of the significant amendments impacting Ohio employers:

  • Decreases statute of limitations: For claims with dates of injuries on or after Sept. 29, 2017, injured workers must file a claim application within one year of the date of injury. This is a reduction from the current two year time limit.
  • Extends deadline to file court appeal if settling claim:
…

Some clarity: The Supreme Court of Ohio definitively decides procedure for abatement of substantial aggravation conditions

By Rebecca Kopp Levine on

In its recent decision, Clendenin v. Girl Scouts of W. Ohio, the Supreme Court of Ohio definitively decided that an Industrial Commission order determining that a pre-existing condition that was substantially aggravated by a work-related incident has returned to the pre-injury level is an issue that may not be appealed to a court of common pleas.

While working for the Girl Scouts of Western Ohio, Audrey Clendenin (Clendenin) was injured on Oct. 21, 2008. Her claim was recognized for multiple right shoulder conditions as well as substantial aggravation of pre-existing dermatomyositis, a rare inflammatory disease. In March 2013, the …

Sunday deliveries of FMLA paperwork: A recipe for disaster

By Rebecca Kopp Levine on

A recent case highlights the intersection of FMLA and workers’ compensation laws. Angela Samuel (Samuel) was employed by Progressive Casualty Insurance Co. (Progressive) as a retention specialist and primarily worked out of her home. While on a leave of absence covered by the Family Medical Leave Act (FMLA), Progressive notified Samuel that she needed to submit documentation in support of her FMLA request. Previously, Samuel’s documents in support of her FMLA leave were either never received or misplaced by Progressive.

On a Sunday evening, Samuel hand-delivered the paperwork to an unattended reception desk outside of a human resources department at …

EEOC issues guidance directed specifically to HIV positive employees and their physicians

By Rachel Burke on

Whether the U.S. Equal Employment Opportunity Commission is taking advantage of the fact that HIV infection has been in the news lately (thanks to Charlie Sheen’s recent disclosure about his own HIV status) or the timing is pure coincidence, the EEOC earlier this month issued two publications regarding the rights afforded by the Americans with Disabilities Act to job applicants and employees living with HIV. Although the EEOC previously issued a more general guidance about the ADA’s protections for individuals with HIV/AIDS in 2012, these two new publications are notable in that they are specifically directed to HIV positive applicants …

Employers must take their employees as they are – pre-existing conditions included

By Rebecca Kopp Levine on

Ohio law has long held that an employee’s particular health conditions, personal frailties and peculiar susceptibilities do not prohibit the employee from having a compensable work injury when the injury occurred in the course of and arising out of the employee’s employment. Ohio courts do not deny an employee a compensable claim merely because the employee’s physical fitness at the time of the work incident rendered him more susceptible to the injury than an otherwise healthy individual.

Recently, an Ohio employer questioned the compensability of a workers’ compensation claim when an employee with pre-existing arthritis suffered a subsequent work-related injury. …

Workers’ compensation and summer outings

By Brian Hall on

Summertime brings company picnics, charity walks and softball leagues. Great moments for increasing employee morale, but these activities may lead to employer liability if an employee is injured while participating in such activities.

In Ohio, employees injured while engaged in an employer-sponsored recreational or fitness activity are entitled to workers’ compensation benefits unless the employee signed a waiver prior to participating in the activity. Hence, it is critical employers request employees execute a waiver before an activity occurs. The BWC provides a sample waiver on its website.

For the waiver to be valid, the following requirements must be met:…

Join us in Cleveland on Wednesday, May 13 for our Spring Employment Relations Seminar – Fresh Ideas for Employers

By Porter Wright on

Fresh ideas header

Need to refresh your workplace?

Join Porter Wright’s Labor and Employment Group on Wednesday, May 13 as we share Fresh Ideas for Employers

Topics Include:

Freshly Picked: A Review of Recent Employment Law Updates Tracey L. Turnbull, Porter Wright

As you look to make sure your policies and practices reflect recent developments, you will not want to miss this session. We will review recent significant judicial and administrative decisions addressing a variety of employment law issues. This review will highlight the best practices and instincts that will ensure you are complying with new laws and developments.

Straight Off the Vine: …

Proposed Ohio Senate bill would permit workers’ compensation benefits for emergency personnel With PTSD

By Rebecca Kopp Levine on

Ohio Senators have introduced a bill to change Ohio workers’ compensation laws to permit claimants who are peace officers, firefighters or emergency medical personnel diagnosed with post-traumatic stress disorder (“PTSD”) to obtain workers’ compensation benefits.

Presently, Ohio law only recognizes claims for psychological conditions if the psychological condition arises out of an injury or occupational disease or is the result of sexual assault. As we have previously reported on this blog, the Ohio Supreme Court, in the Armstrong v. John R. Jurgenson Comp., et al., case explicitly determined that compensable psychological conditions must arise out of the claimant’s physical …

Quitting Employment for Personal Reasons Precludes Temporary Total Disability Compensation

By Rebecca Kopp Levine on

In State ex rel. Hildebrand v. Wingate Transp., Inc., the Ohio Supreme Court  recently ruled that an employee who quit his job for reasons unrelated to his work injury was barred from receiving temporary total disability compensation.

Brian Hildebrand, a mechanic with Wingate Transport, Inc. injured his back on June 3, 2009. On June 8, 2009, he sought chiropractic treatment and was diagnosed with a left sacroiliac joint sprain/strain. After seeking treatment, he returned to work the following day with a note from the chiropractor restricting him to modified duties.   Hildebrand spoke with the owner, Jeffrey Wingate, and confirmed …

Insurance policies do not protect employers from intentional torts in Ohio

By Rebecca Kopp Levine on

In Hoyle v. DTJ Ents., Inc., the Ohio Supreme Court has ruled that provisions of an insurance policy do not require an insurance company to indemnify employers if they are found to have intentionally injured their employee.

On March 25, 2008, Duane Allen Hoyle, while working for DTJ Enterprises and Cavanaugh Building Corporation, fell approximately 14 feet from a ladder-jack scaffold, landed on concrete and suffered injuries. Hoyle sued his employers alleging claims of intentional tort, including an allegation that his supervisor would not permit him to use bolts and pins to secure the ladder jacks to the ladders. …

Doctrine of dual intent/dual purpose does not apply to Ohio workers’ compensation claims

By Rebecca Kopp Levine on

The Supreme Court of Ohio in Friebel v. Visiting Nurse Association of Mid-Ohio recently determined that an employee who was injured in a car accident while dropping passengers off at a mall on the way to perform her work duties could not use the doctrine of dual intent or dual purpose in support of her request for workers’ compensation benefits.

Home health nurse Tamara Friebel was employed by Visiting Nurse Association of Mid-Ohio (“VNA”) to travel to client’s homes and provide in-home health care services. While working, she was primarily in client’s homes, and not at VNA’s offices, but sometimes …

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

By Rebecca Kopp Levine on

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. …

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

By Brian Hall on

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 …

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

By Brian Hall on

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 …

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

By Porter Wright on

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 …

Ohio Supreme Court Again Reins In BWC On Successor Liability

By Rebecca Kopp Levine on

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 …

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

By Brian Hall on

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 …

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

By Porter Wright on

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).

In Ohio, employees injured while engaged in an employer-sponsored recreational or fitness activity are entitled to workers’ compensation benefits unless the employee signed a waiver prior to participating in the activity. Hence, …

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

By Jamie LaPlante on

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 …

Ohio Supreme Court Upholds Denial of TTC to Retired Employee

By Porter Wright on

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 …

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

By Porter Wright on

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 …

Recession Rebound Could Create Risks

By Rebecca Kopp Levine on

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 …

Workers’ Compensation Considerations When Purchasing a Company

By Rebecca Kopp Levine on

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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