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 or terminate their workers’ compensation benefits. I had also noted that at least one other such case had been filed in federal court in Arizona.

My initial reaction was that these were terrible decisions that would enable any workers’ compensation claimant who was dissatisfied with a decision relating to his claim to challenge that decision in federal court. That reaction was further intensified when it occurred to me that the shoe could just as easily go on the other foot – that employers could file similar actions against an employee, his doctor and his representative, based on theories claiming that they conspired with each other to create or perpetuate a fraudulent claim. I wondered whether such a lawsuit could be viable in Ohio, which also is situated in the Sixth Circuit. What a horrible intrusion into a state’s workers’ compensation system this would create….

Fortunately, the Sixth Circuit’s September 24, 2013, en banc decision in the Jackson case relieves my concerns for the time being. In Jackson, two Coca-Cola Enterprises, Inc., employees sued their employer, Sedgwick (its workers’ compensation third-party administrator), and a physician who had examined them both, claiming that they had “engaged in a fraudulent scheme involving the mail . . . to avoid paying benefits to injured employees” in violation of the Racketeer Influenced and Corrupt Organization Act (“RICO”). In short, both plaintiffs claimed that Sedgwick, on behalf of Coca-Cola, scheduled them for examinations with a physician who they claimed was a “a doctor ‘who could be relied upon to lie for defendants and write a report stating a claimant did not have a work related disability regardless of the true facts.’” Then, the plaintiffs’ complaint alleges that Coca-Cola and Sedgwick relied on the physician’s reports to either deny or terminate benefits in their claims.
Continue Reading Sixth Circuit En Banc Decision Rejects RICO Claim for Alleged Workers’ Compensation Fraud

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

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

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

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

n 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.
Continue Reading 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

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”).
Continue Reading Ohio Supreme Court Upholds Denial of TTC to Retired Employee

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