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 Ohio Bureau of Workers’ Compensation (BWC) filed a motion to abate the claim for the substantial aggravation condition. The Industrial Commission granted the motion, finding that compensation and medical benefits were no longer to be paid in the claim for the allowed substantial aggravation condition.


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

Two centuries ago, the Justices of the Ohio Supreme Court “rode the circuit” on horseback across the State, holding court in Ohio’s many county courthouses. A bit of that tradition survives today under the Court’s Off-Site Court Program, which is held twice a year outside of Columbus in order to educate high school students and other Ohio citizens about Ohio’s judicial system. As the Court’s website explains,

“When the Supreme Court holds court off-site, public, private and home-schooled high school students from throughout the host county are invited to participate. The students and their teachers are provided with curriculum material to study before the session, including summaries of the specific cases to be argued. Local attorneys team with educators at each participating school to explain Ohio’s judicial system and review case materials. On the morning of the court session, selected students attend a question and answer session with the justices of the Court. Then, students from each participating school attend one of the four oral arguments. After their assigned case has been argued, each group of students meets with the case attorneys for a debriefing.”

On April 9, at an off-site session to be held at the University of Toledo College of Law, the Ohio Supreme Court will be hearing oral arguments in an interesting employment dispute, Cedar Fair, L.P. v. Falfas, Ohio Supreme Court Case No. 2013-0890. The case concerns Jacob “Jack” Falfas, a longtime employee of Cedar Fair, which is the publicly-traded entity that owns Cedar Point and several other amusement parks across the country. Falfas worked his way up the corporate ladder to become Chief Operating Officer, and he was employed pursuant to a 2007 Amended and Restated Employment Agreement, with an automatic three-year renewal commencing on December 1, 2009 (and on every subsequent three-year anniversary) unless one of the parties provided advance notice of intent to terminate.

In June 2010, after a short telephone call with Cedar Fair’s CEO, Falfas’s employment ceased. Cedar Fair took the position that Falfas had resigned, while Falfas contended that he was terminated. In a 2-1 decision, an Arbitration Panel determined that Falfas was terminated for reasons other than cause, and that the facts failed to establish resignation. Most notably for purposes of this appeal, the arbitrators found that “equitable relief was needed to restore the parties to the positions they held prior to the breach of the Employment Agreement.” The Arbitrators thus directed that Falfas be restored to his former position as COO, with back pay.
Continue Reading Ohio Supreme Court to hear notable employment dispute at special off-site session in Toledo

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 interpretations from Ohio appellate courts.

R.C. 2745.01 was designed to raise the standard by requiring employees to prove that the employer acted with “deliberate intent” to cause an employee to suffer an injury, a disease, a condition, or death. The statute created only two presumptions of a deliberate intent to injure: (a) if an employer deliberately lied to an employee about whether a substance was toxic or hazardous and as a result that substance injured the employee, or (b) if an employer deliberately removed an “equipment safety guard” and as a result of the removal the employee was injured. In those two circumstances, specific intent would be presumed.

Once the Ohio Supreme Court upheld the constitutionality of R.C. 2745.01 the plaintiffs’ bar attempted to find ways around the statute to once again open up the lucrative business of employer intentional torts. However, one-by-one early successes by the plaintiffs’ bar in the appellate courts have been overturned in the Ohio Supreme Court.

For example, in Houdek v. ThyssenKrupp Materials N.A., Inc., the Ohio Supreme Court rejected the Eighth Appellate District’s finding that R.C. 2745.01 did not really require deliberate intent to injure in order to establish an employer intentional tort. Similarly, in Hewitt v. L.E. Myers Co., the Ohio Supreme Court rejected the Sixth Appellate District’s broad interpretation of an “equipment safety guard” to include personal protective equipment (rather than a guard attached to a piece of a equipment) Had it been upheld, the lower court decision in Hewitt in effect would have imposed an affirmative duty on employers to make available personal protective equipment at the risk of being found liable for an employer intentional tort. In reaching its decision, the Ohio Supreme Court in Hewitt defined an equipment safety guard as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.”

Despite the Ohio Supreme Court’s rejection of expansive interpretations of employer intentional torts from the intermediate courts of appeal, the Sixth Appellate District again has attempted to find a way around the statute. Specifically, in Pixley v. Pro-Pak Industries, Inc., the Sixth District concluded, contrary to the Supreme Court’s Hewitt decision, that for purposes of interpreting R.C. 2745 an equipment safety guard need not be a device “designed to shield the operator [of the equipment] from injury.” Therefore, according to the Sixth District non-operators injured by removal of such a device from a piece of equipment could obtain a presumption of specific intent and proceed to a jury on an employer intentional tort claim. This interpretation by the Sixth District, if upheld by the Ohio Supreme Court, would substantially expand the scope of the intentional tort exception by expanding the types of devices that can constitute equipment safety guards as well as expanding the types of employees who could argue for the exception.


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

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.
Continue Reading Ohio Supreme Court Again Reins In BWC On Successor Liability

This past May, we reported that the Ohio Supreme Court ruled in Acordia of Ohio, L.L.C. v. Fishel that following a merger, the surviving company may not be able to enforce employees’ non-compete agreements, where the agreements failed to contain an assignment clause, and the time period of the employees’ non-competes began to run as of the date of the merger. The Court reconsidered its decision, and issued a new decision today.
Continue Reading Ohio Supreme Court Partially Reverses its Acordia Non-Compete Decision

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 endorsement in an employer intentional tort action.


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

The Ohio Supreme Court agreed to hear an appeal that addresses the extent to which a corporate merger may impact the surviving company’s ability to enforce restrictive covenants that its predecessor companies entered into with their employees.
Continue Reading Ohio Supreme Court to Address Assignability of Noncompetes During Mergers and Acquisitions