Ohio Supreme Court Narrows Intentional Tort Liability

On November 20, 2012, the Ohio Supreme Court reigned in the circumstances under which Ohio employers can be held liable for intentional tort actions filed by employees.  Ohio's workers' compensation system is designed to limit employer's exposure to litigation in the court system. In exchange for an administratively-run, "no fault" workers' compensation program where employees can be compensated for on-the-job injuries, employers gain the assurance that they cannot be sued in the Ohio court system for negligence that may have caused the work injuries. 

Ohio statute carves out an exception to this protection that employers enjoy when an injured employee can prove that an injury sustained in the course of employment was caused by an act of the employer which intended to cause injury or was substantially certain to cause injury.  (O.R.C. 2745.01)

An intentional tort has traditionally been difficult for an injured worker to prove simply because intent is difficult to prove.  However, the Eighth District Court of Appeals made a significant dent in the otherwise restrictive intentional tort statute.  The appeals court loosely interpreted the meaning of "equipment safety guard" to include personal protective equipment, such as gloves, or perhaps goggles.  The state's high court righted the situation this week.
In Hewitt v. L.E. Myers Co., Slip Opinion No. 2012-Ohio-5317, the Supreme Court held that an employee's failure to use, or an employer's failure to require the use of protective rubber gloves and sleeves does not fall under the deliberate removal of "equipment safety guard" for purposes of the intentional tort statute.  In this case, Larry Hewitt was working as an apprentice lineman for his employer, the L.E. Myers Company.  Mr. Hewitt claimed that his supervisor told him he did not need to wear rubber gloves and sleeves because the power line with which he would be working was de-energized.  However, when a wire Mr. Hewitt was holding in his un-gloved hand came in contact with live wire, he sustained severe burns and electrical shock. 

Mr. Hewitt sued his employer under the intentional tort statute.  L.E. Myers had unfavorable rulings at trial court and appeals court.  At the two lower courts, the finding against the employer was that its failure to make Mr. Hewitt wear rubber gloves constituted a deliberate removal of equipment safety guard, which then created a rebuttable presumption that L.E. Myers had intended the injury, and L.E. Myers had not provided evidence to rebut the presumption of intent.

Fortunately, the Supreme Court reversed the lower rulings, finding in favor of L.E. Myers.  In an opinion written by Justice Evelyn Lundberg Stratton, the Court did not extend the definition of "equipment safety guard" to apply to personal protective items such as gloves, but rather found that the definition "equipment safety guard" in O.R.C. 2745.01(C) was meant by the legislature to apply to guards on machinery.  The legislative intent of the involved statute was to restrict liability, and the Court refrained "from expanding the scope of the rebuttable presumption of intent in R. C. 2745.01(C)."  Hewitt, paragraph 25. 

To sum it up for Ohio employers, the Supreme Court is keeping lower courts in check with the legislature's goal to keep the intentional tort statute very restrictive.

Ohio BWC Implements New Medicare Set-Aside Policy

As most Ohio self-insured employers know, one of the most difficult hurdles in settling a workers' compensation claim is the Medicare Set-Aside.  On November 5, 2012, BWC Administrator Stephen Buehrer announced a new BWC policy which addresses the MSA threshold for state funded settlements. 

BWC will issue a Medicare set-aside letter only if 1.) the settlement is $100,000 and over or 2.) if the settlement is over $10,000 and the injured worker is already on Medicare or has a reasonable expectation of receiving Medicare within 30 months.

While Buehrer's policy announcement appears to address settlement of state fund claims, self-insured employers can look to the BWC's MSA thresholds for guidance.  Of course, Dawson Disantis & Myers, LLC encourages SI employers to discuss MSA for Ohio workers' compensation settlements further with legal counsel.

Buehrer's MSA policy letter is below: