As we recently reported, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) to provide paid Family Medical Leave (FMLA) and paid sick leave to families affected by the COVID-19 pandemic. Although the law provides a number of protections to American workers, it also has a few gaps. One gap in the FFCRA, for example, is that it does not apply to employers of 500 or more employees.…
Archives: Workers’ Compensation
Subscribe to Workers’ Compensation RSS FeedOhio BWC guidance for employers during COVID-19 outbreak
On March 19, 2020, the Ohio Bureau of Workers’ Compensation (BWC) issued some guidance to employers and employees to explain how the BWC is continuing to operate during this crisis. The BWC is continuing to process claims. For employers, the present changes may result in increased claim costs attributed to their risk. The BWC is permitting benefits to continue while suspending some of the employees’ requirements to maintain those benefits.…
Workers’ compensation implications of COVID-19 in the workplace
Presently there are many uncertainties surrounding the coronavirus outbreak. It is certainly possible employees will allege they contracted coronavirus while at work. Given that the United States has not experienced a pandemic in a significant period of time, this is a gray area for employers. Most states do not have specific legislation addressing this situation.
In general, any illness, injury or occupational disease could be a compensable claim if it arises out of the course and scope of the employee’s employment. The difficulty is that it is likely impossible to determine with certainty as to where the employee contracted the …
Are Ohio workers’ compensation laws changing?
As we reported in June, the Ohio legislature attempted to make substantial changes to workers’ compensation laws as part of the overall budget. However, after the House and Senate could not reach an agreement on many parts of the budget, Gov. DeWine permitted the legislature additional time to reach a compromise. The actual budget submitted to and signed by the governor contained NO changes to the workers’ compensation laws. Conspicuously absent from the budget was the House’s proposal requiring any applicant for workers’ compensation benefits to disclose whether they were a citizen or not. Further, the budget did not include …
Applicants may be required to declare citizenship status when filing for Ohio workers’ compensation benefits
The Ohio House of Representatives passed a two year $645 million workers’ compensation budget on June 5, 2019. As part of the budget bill, a provision was added that requires anyone who files an application for a workers’ compensation claim through the Ohio Bureau of Workers’ Compensation, to identify themselves as either a U.S. citizen, a noncitizen with permission to work in the country or an illegal alien or an unauthorized alien. All applicants may be eligible for workers’ compensation benefits regardless of citizenship identification. However, under the bill, anyone providing false information on a claim application will be ineligible …
Resources and events for employers offered by the Ohio Bureau of Workers’ Compensation
The Ohio Bureau of Workers’ Compensation (BWC) hosts monthly webinars for employers to learn more about workers’ compensation topics. The brief webinars help employers stay up to date on developments in the workers’ compensation system. You can visit the employer webinar webpage on the Ohio BWC website to learn more about upcoming webinars and register to attend.
In addition, the BWC is hosting its Fourth Annual Workers’ Compensation Medical and Health Symposium on April 26-27, 2019 at the Great Columbus Convention Center. There is no cost to attend.
Attendees of the provider clinical education track will have access to state …
Voluntary abandonment doctrine strengthened by Ohio Supreme Court
On Sept. 27, 2018,the Ohio Supreme Court took the unusual step of overturning two prior decisions in an attempt to clarify a confusing aspect of workers’ compensation law. A long-standing tenet of workers’ compensation law, temporary total disability compensation, is intended to compensate an injured worker when they are unable to work due to a work-related injury. To be entitled to temporary total disability compensation, an injured worker must be medically unable to work and the inability to work must be caused by the work injury.
One exception to this rule, and a defense routinely used by employers, is the …
Workers’ compensation law aiming to reduce appeal time is constitutional
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 …
