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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 …

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

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?

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

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

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

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

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

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 …

Scalia v. Aldi–A Mixed Bag for Employers

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. …

BWC Implements Workplace Wellness Grant Program for Employers

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 …

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

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 …

Ohio BWC Board Approves New Grow Ohio Incentive Program

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 …

Clearing the Backlog – September

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 …

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

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 …

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

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 …

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

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 …

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

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 …

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

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 …

Ohio BWC Approves New Drug-Free Safety Program

On March 29, 2010, the Ohio Bureau of Workers’ Compensation voted to adopt its new Drug-Free Safety Program (DFSP) in an attempt to prevent workplace injuries attributed to the use or abuse of drugs and alcohol. The new program will replace the current Drug-Free Workplace Program and the Drug-Free EZ Program as of July 1, 2010.

The DFSP extends eligibility to more employers and eliminates the current program’s participation limit of five years. Other features of the new program include:

  • Two levels of participation – basic and advanced – which offers premium discounts ranging from 4% to 7% (the advanced level will

Ohio Employer Intentional Tort Statute Survives Challenge

On Tuesday, in two separate decisions, the Ohio Supreme Court finally resolved the lingering question as to the constitutionality of a state law that limits the ability of workers who are injured on the job to sue their employers for a “workplace intentional tort” in addition to receiving workers’ compensation benefits. The challenged statute – RC § 2745.01 – requires that an injured worker bringing an intentional tort action against his employer must prove that the employer acted with a “deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” 

In Kaminski v. Metal

Bill Limiting Immigrant Workers’ Compensation Benefits

On Tuesday, March 16, 2010, Senator Bill Seitz introduced Senate Bill 238 to the Ohio General Assembly. If passed, this bill would amend Ohio’s Revised Code to prohibit illegal and unauthorized aliens from receiving compensation and benefits under Ohio’s Workers’ Compensation Law.

Currently, illegal and unauthorized aliens are afforded the same benefits under Ohio Workers’ Compensation Law that other workers are. In other words, illegal and unauthorized workers who are injured in the course of and arising out of their employment are allowed to file workers’ compensation claims and receive benefits and treatment for their injuries.

 

Since this bill was just …

Death Benefits Denied for an Accidental Death Caused by Overdose of OxyContin

Ohio’s Third District Court of Appeals recently held that the family of an injured worker whose accidental death was caused by a lethal concentration of OxyContin is not entitled to death benefits under Ohio Workers’ Compensation Act.

In Parker v. Honda of America Mfg., the decedent suffered a severe back injury in 1988. Mr. Parker underwent several surgical procedures in an unsuccessful attempt to alleviate his back pain. Eventually, Mr. Parker was prescribed and began using OxyContin in 1999 and subsequently became addicted. He sought treatment for his addiction in August 2004 and again in March 2005. In March 2006, he was discovered …

Facebook Photos Prompt Termination of Long Term Disability Benefits

CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the …

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