D&M wins summary judgment in ADA litigation

D&M was recently successful in litigation before the U.S. District Court for the Southern District of Ohio. The case involved the Americans with Disabilities Act, and we successfully obtained an Order granting summary judgment for our client. As an always-growing firm in Columbus, we continue to expand and thrive in different areas of employment litigation. Great job to everyone involved! You can see the Opinion and Order by following the link below:

http://law.justia.com/cases/federal/district-courts/ohio/ohsdce/2:2014cv01768/175481/39/

D&M gets big win in comp litigation before Ohio Supreme Court

Dawson & Myers, LLC was recently successful in a workers' comp. litigation matter before the Supreme Court of Ohio. In State ex. rel. Carroll v. Galion Assisted Living, Ltd., 2016-Ohio-8117, the Court held that in claimant's challenge of commission's disallowance of her claim where surgery revealed that the condition for which her claim was originally allowed did not exist, court of appeals did not err in denying petition for writ of mandamus where claimant had an adequate remedy at law by way of appeal. Congrats to Shane Dawson and everyone involved!

D&M has extensive experience in workers' comp litigation and works hard to obtain favorable results for its clients.

You can view the slip opinion here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-8117.pdf

Have a wonderful holiday!

D&M

Shane Dawson obtains unanimous jury verdict in ADA litigation

Following a week-long trial before the United States District Court for the Northern District of Ohio, managing partner Shane Dawson obtained a unanimous jury verdict in favor of the employer in a case alleging discrimination under the Americans with Disabilities Act. 

Dawson & Myers, LLC has the experience in employment matters, like the ADA, to counsel employers to avoid litigation when possible and to successfully defend our clients when necessary. Associate Jared Buker and Paralegal Corrine Ivey were also instrumental in assisting with the case. Details about the case are available on the Federal Court website PACER under Case No.: 1:14CV1135

Senate Bill 268, the Employment Law Uniformity Act

The first hearing for sponsor testimony on Senate Bill 268, the Employment Law Uniformity Act, will be held tomorrow, April 13th, at 2:30PM or immediately following the Senate session. At this hearing, Senator Seitz, the sponsor of the bill, will explain why this legislation is needed to harmonize Ohio’s employment discrimination laws with federal law.

Here is an overview of Senate Bill 268.

Also, read below for an interesting blog post from Jon Hyman-Myers, emphasizing the importance of Senate Bill 268.

D&M

_________________________________________________________________________________

ENDORSING THE EMPLOYMENT LAW UNIFORMITY ACT

For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.

Yesterday, Senate Bill 268 was formally introduced in the Ohio Senate. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms, S.B. 268:

• Creates a universal 365-day statute of limitations for all employment discrimination claims.
• Eliminates individual statutory liability for managers and supervisors.
• Caps non-economic and punitive damages based on the size of the employer.
• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
• Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission or filing a discrimination lawsuit in court, with the filing of the former tolling the statute of limitations for the latter.
• Prioritizes mediation and conciliation for all charges filed with the OCRC, such that all but the most difficult of cases can be resolved efficiently and cost-effectively.
• Establishes an affirmative defense to claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.

This bill presents a tangible opportunity to fix a broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive business disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 268 restores balance and predictability for Ohio employers, while, at the same time, preserving the crucial right of employees to be free from discrimination in the workplace.

Focusing on the elimination of individual liability for discrimination claims, vocal opponents of S.B. 268 have already labeled this legislation as protecting sexual harassers. Nothing could be further from the truth. The legislation leaves intact all common-law remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, and invasion of privacy—along with the possibility criminal sanctions for the most egregious of misconduct. S.B. 268 merely brings Ohio in line with federal law and the law of almost every other state on this issue. It also harmonizes Ohio law on this issue, as the Ohio Supreme Court has already eliminated individual supervisor and manager liability for public officials.

Now comes the hard part—getting this bill passed. If you believe S.B. 268 presents the necessary reform of a broken system, call or email your state senator and urge him or her to support this bill. Getting S.B. 268 passed is a battle worth fighting to bring meaningful reform to a broken system.

BWC Seeks to Cut Opioid Use by Ohio’s Injured Workers - by Rita Price, Columbus Dispatch

This is a very interesting article from Yesterday's Columbus Dispatch. The Ohio Bureau of Workers' Compensation wants to be the first in the nation to put guidelines for prescribing opiods into the state administrative code. The hope is that such action will reduce opioid dependency by reducing and regulating the Bureau's role in prescribing such prescriptions. Follow the link above or read below. D&M.

The numbers were stunning, even to those who already knew that scores of injured workers were being prescribed potentially dangerous amounts of painkillers.

More than 9,300 workers — nearly 20 percent of claimants receiving medication paid for by the Ohio Bureau of Workers’ Compensation — had prescriptions sufficient to render them physically dependent on opioids.

At least 60 workers were at doses equivalent to 200 Vicodin tablets a day.

“We had to draw a line in the sand,” said John Hanna, the bureau’s pharmacy program director. “ Injured workers do not go back to work when they’re medicated into a stupor. They don’t go back when they’re dead.”

That and other alarming data, gathered as the nation sank deeper into an opioid medication crisis, prompted the bureau to create a pharmacy management program that includes a closed formulary for prescription drugs. Since it was implemented in 2011, total opioid doses for injured workers have declined by 41 percent, and the average daily opioid load per injured worker in 2015 was below the 2003 level, officials say.

The number of workers considered to be opioid dependent based on their prescriptions (the equivalent of at least 12 tablets of 5 milligrams of Vicodin per day for 60 days) has dropped from 9,343 in 2011 to 4,723, Hanna said.

“Part of that is attributable to the formulary; part of that is education,” he said.

Ohio and Washington are the only states that have a closed formulary, which essentially means that there is a list of permitted drugs and dosages for workers’ comp cases. Taxpayers also have saved millions of dollars, although Hanna said the motivation for Ohio’s tightened policies is clinical, not fiscal.

The Ohio bureau wants to go further, becoming the first in the nation to put guidelines for prescribing opioids and rules for workers’ comp cases into the state administrative code. In addition to requiring doctors to develop a treatment plan, monitor it and document whether the worker is improving, the proposed administrative rules also would include guidelines and assurances for weaning injured workers off opioids.

“I don’t know of any other place in the nation that has a rule that says, ‘We’ll pay for your treatment for 18 months,’” Hanna said. “We’ll pay for counseling.”

Pain-management specialist Dr. Kort Gronbach of Mount Carmel Health, who serves on the bureau’s pharmacy and therapeutics committee, praised the efforts. “Everyone on the committee is trying to do the best thing for injured workers,” he said.

The challenge is to make sure the pendulum doesn’t swing too far for chronic-pain patients with debilitating conditions, some of whom can no longer find doctors willing to manage their care, Gronbach said. Some doctors have even posted signs at their offices saying they don’t take pain patients.

“It’s as sad as I’ve ever seen it,” Gronbach said. “It’s been so vilified that my patients, on a daily basis, come in crying.”

One of the trickiest sections in the proposed administrative rule focuses on the “clinically meaningful improvement in function” that must be documented to justify keeping a worker on opioids for many weeks after the injury or surgery.

“Nobody can measure pain,” Gronbach said. “We don’t have a tool for that.”

Still, bureau officials and others say, there is little doubt that liberal prescribing of drugs once largely reserved for cancer, end-of-life or postoperative care has hindered the recoveries of untold numbers of workers in Ohio and elsewhere, resulting in dependence, addiction and fatal overdoses.

“I am 100 percent sure that opioids have contributed to long-term disability in the workers’ comp system,” said Dr. Gary Franklin, medical director at the Washington State Department of Labor & Industries. “People are losing their lives because we haven’t figured out how to take good care of people in pain.”

Franklin spoke during the bureau’s medical and health symposium last month, along with Dr. Jane Ballantyne, a pain expert at the University of Washington.

“The reason opiates don’t work very well long term is because of tolerance and dependence,” she said, so many patients don’t wind up with good pain relief anyway. “Probably 90 percent of pain that’s treated with opiates shouldn’t be.”

Dr. Stephen Woods, medical director for the Ohio Bureau of Workers’ Compensation, said officials have made the most progress curbing excessive prescribing during the acute phase of an injured workers’ case, or when injuries are relatively minor.

“What’s more challenging is the people who have been on opioids long term,” he said.

Hanna expects plenty of discussion as the proposal moves to the bureau’s board of directors and on to a bipartisan legislative panel for review. Officials are open to adjustments but committed to change.

“You’ll never mop your way out of it,” Hanna said, “if you don’t shut off the water.”

rprice@dispatch.com

@RitaPrice

COSIA's 27th Education Day will feature Melilssa Black from Dawson & Myers!!

COSIA's 27th Education Day

Our attorney, Melissa Black, will be speaking speak about workers' comp issues this Friday, March 18, as part of COSIA's Education Day 2016. The event is held at Nationwide Hotel and Conference Center, 100 Green Meadows Drive South, Lewis Center, Ohio (previously known as The Conference Center at Northpointe).

The event agenda includes presentations from the Ohio BWC, attorneys, medical providers, and other specialists in the workers’ compensation field.

COSIA's mission is to provide assistance and educational opportunities for the self-insured community of Central Ohio. Through educational forums, COSIA enables its members to achieve the highest possible standard of self-insured administration. Here's a link to their website: http://www.cosia.org/. We are excited that Attorney Black will get to share her knowledge of workers' comp with others this Friday.

It is unfortunately too late to sign up to attend the event, which was good for 4.5 CLE hours. We were in the process of updating and revamping our social media platforms so that we could remain current and stay connected, and in that process, this event snuck up on us!

It is our goal here at Dawson & Myers to stay as closely connected with those who wish to learn more about workers' compensation as possible. Going forward, our social media streams, pages, and blogs will be maintained with punctuality and importance. Stay tuned! D&M

Register Today for the Advanced Workers' Compensation Seminar to be held on December 16, 2015

Shane Dawson, of Dawson & Myers, LLC will be a featured speaker at the 11th Annual Advanced Workers' Compensation Seminar on December 16, 2015 held by Sterling Education. This seminar will take place in Columbus, Ohio.

Shane’s presentation will be "Latest Developments with Psychological Claims."

Other Topics include:

• Defending Workers’ Compensation Claims
• Workers’ Compensation Retaliation
• Challenges and Considerations for Employees Who Work at Home
• Legislative and Case Law Update
• WC Attorney and Ethical and Professional Behavior
• A View for the Industrial Commission

Interested? Register here: Advanced Workers’ Compensation Seminar

Register Today for the Advanced Workers' Compensation Seminar to be held on December 8, 2015

Shane Dawson, of Dawson & Myers, LLC will be a featured speaker at the December 8, 2015 Advanced Workers' Compensation seminar produced by the National Business Institute.  The seminar takes place in Worthington, Ohio.

Shane's presentation will be "Voluntary Abandonment."

 

Other topics include:

• Legislative and Case Law Update
• Causal Relationship, Apportionment and the Fund
• Medical Issues and Their Role in the Complex Workers' Compensation Claim
• Ethical Obligations
• Litigation Techniques for the Difficult Workers' Compensation Case

Interested?  Register here: Advanced Workers’ Compensation Seminar

Don't Forget to Register for the August 18, 2015 Advanced Employment Law Seminar

Shane Dawson of Dawson & Myers, LLC will be a featured speaker at the August 18, 2015 Advanced Employment Law seminar produced by the National Business Institute.  The seminar takes place in Worthington, Ohio.  Shane's presentations will be "Deciphering FMLA, ADA and Workers' Compensation Issues" and "Responding to EEOC and State Agency Charges."

Other topics include
Fair Labor Standard Act Compliance Strategies
Conducting an Effective Internal Investigation
National Labor Relations Board Decisions Affecting Unionized and Non-Unionized Workplaces
Preparing for Electronic Discovery in Litigation

Interested?  Sign up here: Advanced Employment LawAdvanced Employment Law

Opportunities to Learn about Ohio Workers' Compensation

Dawson & Myers, LLC will be presenting at two upcoming seminars.  Join us if you can!

June 3, 2015 "Overview of Workers' Compensation Claims" at the HR Group of the Delaware, Ohio Chamber of Commerce.

Call here for more information!

Augutst 18, 2015 Advanced Employment Law seminar in Worthington, Ohio presented by the National Business Institute.

Sign up here!

Join Dawson and Myers at the December 12, 2014 seminar on "Complex Workers' Compensation Issues"

Shane Dawson will be presenting at the National Business Institute's December 12, 2014 seminar on the topic of "Complex Workers' Compensation Issues."  Shane will be discussing the impact of new case law on common claims.  Other topics at the seminar include Medicare Set-Asides and settlements, litigation techniques, medical issues, subrogation, causation, and ethical obligation.

The seminar will take place from 9:00 a.m. to 4:30 p.m. on December 12, 2014 at the Holiday Inn in Worthington, Ohio.  Six hours of CLE credit are available.

Register now at www.nbi-sems.com

Avoid the Pitfalls of Using Independent Contractors

In an over-regulated complex business economy such as ours, the use of independent contractors is undeniably attractive.  The contractor is responsible for his or her own withholdings and taxes, and the employer doesn’t have to pay workers’ compensation or unemployment compensation premiums. 

At least as far as workers’ compensation is concerned, the use of independent contractors can be a mine field.  The moment that contractor is injured while working on your job, you’ve got a potentially big, expensive problem.  If you haven’t established your relationship properly with the contractor, your business could be on the hook for the contractor’s medical expenses and lost time compensation out of pocket, dollar for dollar.  The Ohio Bureau of Workers’ Compensation is not shy about tagging your business as the “employer of record” for an independent contractor’s work related injury.  And if you had assumed the contractor was not an employee and you weren’t paying workers’ compensation premiums, the claim will be considered a “non-compliant” claim that will stick with you as long as the claim is alive.

A few simple steps might help in proving to the BWC and Industrial Commission that the business relationship between your company and an independent contractor was not of an employer/employee nature.

1.                  Before any work begins, obtain a copy of your contractor’s BWC certificate of premium coverage and make sure you require him or her to provide you with an updated copy every six months.  If your contractor doesn’t have BWC coverage, tell him or her that there’s no work until they do have it.  Direct them here to apply. 

2.                  Step number one includes domestic workers employed at your residence.  Do you have a nanny or someone who cleans your house for you?  Someone who mows your lawn, perhaps?  Step one applies as long as you are paying them $160 or more per quarter.  Some situations may require that you as the homeowner pay for their BWC coverage.  Have questions? Call us.

3.                  Consider writing up an agreement with the contractor which outlines your relationship, including who is responsible for what, payment terms, and separation terms.  An attorney could draft an agreement for you easily in order to offer your business the most protection.

4.                  The less control your business has over the contractor, the better.  If your business dictates the hours of work, the manner or method of work, the tools to be used, the order of work, etc., then you might easily be considered an employer to the contractor, and would be responsible for workers’ compensation premiums.

5.                  An independent contractor should be able to make his or her services available to the general public, and should not necessarily be required to perform the work personally.

6.                  Have your contractor keep track of his or her own hours and invoice you for the time.

7.                  If you have any doubts about whether or not your contractor might be construed as an employee, by all means, call us to discuss the situation.

The Ohio Revised Code addresses the issue of independent contractors specifically as they relate to construction contracts.  O.R.C. 4123.01 (A)(1)(c) lists twenty criteria to be considered in determining whether an independent contractor is an employee.  A person is an employee, not a contractor, if at least ten of these questions apply to him/her.  While some of these questions are worded awkwardly, and they technically apply only to construction contracts, Ohio courts have found these questions instructive in considering whether injured workers are employees or not regardless of the industry.  Read them for yourself, and consider them before using any independent contractor.

4123.01 (A)(1) “Employee” means:

(c) Every person who performs labor or provides services pursuant to a construction contract, as defined in section 4123.79 of the Revised Code, if at least ten of the following criteria apply:

(i) The person is required to comply with instructions from the other contracting party regarding the manner or method of performing services;

(ii) The person is required by the other contracting party to have particular training;

(iii) The person's services are integrated into the regular functioning of the other contracting party;

(iv) The person is required to perform the work personally;

(v) The person is hired, supervised, or paid by the other contracting party;

(vi) A continuing relationship exists between the person and the other contracting party that contemplates continuing or recurring work even if the work is not full time;

(vii) The person's hours of work are established by the other contracting party;

(viii) The person is required to devote full time to the business of the other contracting party;

(ix) The person is required to perform the work on the premises of the other contracting party;

(x) The person is required to follow the order of work set by the other contracting party;

(xi) The person is required to make oral or written reports of progress to the other contracting party;

(xii) The person is paid for services on a regular basis such as hourly, weekly, or monthly;

(xiii) The person's expenses are paid for by the other contracting party;

(xiv) The person's tools and materials are furnished by the other contracting party;

(xv) The person is provided with the facilities used to perform services;

(xvi) The person does not realize a profit or suffer a loss as a result of the services provided;

(xvii) The person is not performing services for a number of employers at the same time;

(xviii) The person does not make the same services available to the general public;

(xix) The other contracting party has a right to discharge the person;

(xx) The person has the right to end the relationship with the other contracting party without incurring liability pursuant to an employment contract or agreement.

Every person in the service of any independent contractor or subcontractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the administrator of workers' compensation for the person's employment or occupation or if a self-insuring employer has failed to pay compensation and benefits directly to the employer's injured and to the dependents of the employer's killed employees as required by section 4123.35 of the Revised Code, shall be considered as the employee of the person who has entered into a contract, whether written or verbal, with such independent contractor unless such employees or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contractor as the employer. 

Psychiatric Allowances in an Ohio Workers' Compensation Claim Must Result from the Physical Injury, Not the Mechanism of Injury

All too often, Ohio workers’ compensation claims are additionally allowed for psychological conditions that have not necessarily resulted from the allowed physical injury in the claim, but rather from the circumstances of the accident itself, or from the socioeconomic fallout from a work injury.  Ohio Revised Code §4123.01(C)(1) provides Industrial Commission hearing officers with the gift of plain, unambiguous language.  It states that psychiatric conditions are excluded from the general definition of injury “except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant.” Yet, psychological allowances continue to be added to claims, even when the genesis of the conditions are contrary to the statute’s plain language.

The statute doesn’t state that a compensable psychiatric condition can arise from the financial hardship that often follows a work related disability, nor from a particularly heinous mechanism of injury.  The General Assembly did carve out one exception to the premise that a psychiatric injury can grow from something other than the allowed physical injury, which is if the mental condition arises from “sexual conduct in which the claimant was forced by threat of physical harm to engage or participate.”  R.C. 4123.01(C)(1)  The fact that the one exception for sexual assault is so carefully carved out in the statute should necessarily mean that all other potential causes for a mental condition are not to be considered, besides when a psychiatric condition arises from a physical injury sustained by the claimant.

On June 4, 2013, the Ohio Supreme Court offered clarification to the Industrial Commission on this issue, despite the seemingly clear statute.  In Armstrong v. John R. Jurgensen Co., Slip Opinion No. 2013-Ohio-2237, the court ruled that the claimant’s post traumatic stress disorder was caused by the involvement in the work related motor vehicle accident that caused his physical injury, but was not caused by the physical injury itself.  Therefore, the psychiatric disorder was not compensable in the claim. 

In this case, the claimant, Armstrong, was a dump truck driver who had his truck stopped at a yield sign on a highway access ramp when he noticed a vehicle approaching behind him at an accelerated speed.  The vehicle struck the dump truck from behind.  Before being taken to the hospital, he saw the other driver slumped behind the wheel, and suspected that the other driver was dead.  His suspicion was later confirmed.  Armstrong’s claim was allowed for various back sprains, and he later asked to add post traumatic stress disorder to his claim.  Armstrong’s psychologist opined that the PTSD was caused by both the physical injuries and the horror of the motor vehicle accident itself.  The employer’s expert insisted that Armstrong would have developed PTSD even if he hadn’t sustained the physical injuries during the accident. 

The Industrial Commission granted the request to add the PTSD to the claim.  The employer appealed into court and won at trial level, the Second District Court of Appeals, and now at the Supreme Court.  Unambiguously, just as in the statute, the Supreme Court held that, “for a mental condition to be compensable under the Ohio workers’ compensation system, a compensable physical injury sustained by the claimant must cause the mental condition.”  It is simply not good enough that a mental condition arises contemporaneously with a physical injury as a result of the same accident.  The psychiatric condition must be connected to the physical injury itself.

This decision is potentially a game changer when it comes to psychiatric conditions in Ohio claims.  Take a claim where a claimant suffers a torn rotator cuff in the course and scope of their employment.  If they work in a job requiring use of their arm, they are likely to be out of work or on light duty for an extended period of time.  If they begin to show clinical signs of depression, is the condition due to the torn rotator cuff or does it arise as a consequence of the various impacts on the claimant’s life?  The degree of separation between the actual physical injury and the development of the psychological condition may now be too much to support a compensable psych condition.

No doubt this issue will be challenged and the courts will be asked to further refine the Armstrong holding.  For the time, however, employers may have just received a new tool in the defense of flow through psychological conditions.

Termination for Misconduct Which Also Caused a Work Injury is Not Voluntary Abandonment of Employment

On March 13, 2013, the Ohio Supreme Court re-affirmed its holding in the Gross II case by finding that an employee who is terminated for misconduct or violation of a work rule that also caused a work injury can still receive temporary total compensation.[1] 

In State ex rel. Haddox v. Indus. Comm., Slip Opinion No. 2013- Ohio-794, the injured worker was a truck driver who already had two traffic violations when he had a third moving violation, a motor vehicle accident in which he was injured.  Because the employer’s insurance company would no longer insure the injured worker due to the three moving violations, the employer terminated him.  When the injured worker made his first request for temporary total compensation (TT) from the date of injury forward, the Industrial Commission found that he had voluntarily abandoned his employment by having three moving violations, which forced a cancellation of his insurance, resulting in the termination.  This finding of voluntary abandonment of employment was issued before the Gross II case was announced. 

Later, after Gross II had been announced, the injured worker made a second request for TT, which was a subsequent period of compensation to commence after additional conditions had been added to the claim.  A Staff Hearing Officer awarded this later period of TT compensation, finding that the Gross II case held that a discharge which was related to acts that occurred contemporaneously with or before the work injury could not preclude payment of TT. 

With this success, the injured worker once again asked for payment of the first period of TT from the date of injury.  The Industrial Commission, however, denied the injured worker’s request for TT from the date of injury because the issue had already been decided when it was found that the injured worker had voluntarily abandoned his employment.

On this victory, the employer then requested that the Industrial Commission invoke its continuing jurisdiction to vacate the second requested period of TT that was awarded to the injured worker after the additional conditions were allowed in the claim, arguing that the second period of TT should have been barred both because of the voluntary abandonment of employment and res judicata.  The Commission determined that the SHO who had awarded TT following the additional conditions had made a clear mistake of law in not relying on res judicata to deny the TT.  Additionally, the Commission determined that even if res judicata did not apply, the injured worker was not terminated because of the moving violation that caused the injury; he was fired because he was no longer covered by group liability insurance.  Thus, his voluntary abandonment of employment should preclude the TT which awarded following the additional conditions. 

From this decision, the injured worker filed a Mandamus Action, asking the Franklin County Court of Appeals to require the Industrial Commission be ordered to pay TT from the date of injury pursuant to the Gross II decision.  The Court of Appeals, and ultimately the Ohio Supreme Court, found that the injured worker’s termination was inextricably linked to the work injury, and thus his termination was involuntary and could not prevent payment of TT to compensate for loss of wages.  If an employee is injured by the very misconduct that leads to termination of employment, eligibility for TT is not prohibited, because the Gross II case, later the Upton case, and now the Haddox case, find that this type of abandonment from employment is involuntary, not voluntary.   To find otherwise, to deprive an injured worker of TT compensation due to an injury caused by the claimant’s own fault would pervert the “no fault” workers’ compensation system.

Further, the Court found that when the Industrial Commission invoked its far-reaching continuing jurisdiction to correct a mistake of law, it pushed aside any argument of res judicata.  Thus, when the Industrial Commission decided to re-open the question of whether TT was payable following the allowance of additional conditions, the Commission cannot have declared that the issue should have been  res judicata at the lower level because the very act of invoking its continuing jurisdiction eliminates this as a possibility. 

Curiously, the Court did not fully analyze the fine line between Haddox’s traffic violation and the uninsurability issue as the reason for termination.  Perhaps because the traffic violation’s natural consequence was not only the injury but the disqualification for insurance coverage, the Court did not see the need to discuss the matter, even though the Commission apparently did see a distinction.

Chief Justice O’Connor wrote a “dissent” disguised as a concurring opinion.  She acknowledged that she must follow the Gross II precedent as it stands, but clearly disagrees with it and urged the legislature to right the wrongs of that case, which she resolves was wrongly decided due solely to public criticism.

This is yet another cautionary tale for employers to check with legal counsel prior to terminating an injured employee.

---

[1] In State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249,2007-Ohio-4916, 874 N.E.2d 1162, a KFC worker who had been warned on several occasions not to put water in the deep fryer to clean it did so again, injuring himself and others.  When he was terminated because of because of this violation of policy which ultimately caused his injury, the court held that his termination was involuntary and could not preclude temporary total benefits.

BWC ON THE HOOK FOR OVER CHARGING NON-GROUP RATED EMPLOYERS

Cuyahoga County Common Pleas Judge Richard J. McMonagle recently issued a decision in San Allen v. Buehrer, Administrator, BWC (Cuyahoga County Court of Common Pleas 2012), No. CV-07-644950 on December 28, 2012 in favor of thousands of Ohio employers who were not eligible for or removed from a group rating plan from 2001 to 2009.  A class action suit filed on behalf employers who were allegedly charged excessive workers’ compensation premiums to subsidize other employers who enjoyed the benefits of inclusion in group rating programs has reached a partial resolution, with BWC found in violation of two Ohio statutes. 

In the 28 page decision, the court found that though BWC did not violate the Equal Protections rights of the Plaintiff employers, BWC did violate Ohio statutes and admitted to treating group rated and non-group rated employers inequitably.   The decision indicates that BWC had a rational basis for treating group/non-group employers differently, in that implementing workplace safety incentives represented a legitimate government interest.  However, BWC specifically violated Ohio Revised Code § 4123.29 and § 4123.34(C) by implementing a prospective rating plan rather than a retrospective plan as required by statute, and by neglecting to “develop fixed and equitable rules controlling the rating system” which “shall conserve to each risk the basic principles of workers’ compensation insurance.” 

Judge McMonagle’s decision drew heavily from the testimony of BWC actuary officials, who admitted to overcharging non-group employers in order to offer deeper premium discounts to group employers.  The class of non-group employers was found entitled to restitution without interest, but the amount is to be determined.  In calculating the amount BWC will be required to repay, the court will rely upon the formula established by the Plaintiffs’ actuarial expert, not upon the formula of BWC’s expert.  A hearing on the final restitution figure is scheduled for March 14, 2013. 

The Ohio Chamber of Commerce estimates the restitution amount could be between $1.3 and $2 billion dollars.  BWC’s assets appear to be robust enough at well over $6 billion to cover the potential judgment.  BWC is almost certain to appeal the decision and the restitution formula to the Eighth District Court of Appeals and the case will likely end up before the Ohio Supreme Court before reaching final resolution.  For those employers who may be eligible for restitution, don't look for a check in the mail any time soon.

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:

Interstate Jurisdiction

At the Ohio Chamber of Commerce Workers' Compensation Committee meeting on October 23, 2012, BWC Underwriting Consultant John Best discussed the important topic of interstate jurisdiction.  Of course, each state has its own laws for workers' compensation coverage with respect to out-of-state employers.  Some states have lenient jurisdiction policies, like Indiana, while others offer no grace period and no reciprocity if an Ohio employee suffers a work-related injury within its borders, like Michigan.

Ohio employers who regularly send their employees out of state should already be familiar with workers' compensation coverage rules for other states, but for those employers who rarely send employees out of state, a careful review of interstate jurisdiction is highly advisable.  Even when an Ohio employer holds a training meeting across states lines, depending on the state, an employee injured while attending the meeting might have valid claims in both Ohio and in the other state, unless the proper paperwork is completed and coverage is secured ahead of time.

Establishing jurisdiction in Ohio for work related injuries requires in-depth analysis alone, before any consideration is given to the rules of the other state.  According to a BWC legal memorandum dated March 5, 2009 written by Tom Sico, Ohio will take jurisdiction over work related injuries only after,

"A totality-of-the-circumstances analysis is used to determine whether an employment relationship has sufficient Ohio contacts to be considered localized in this state." 

BWC has a brief overview of interstate jurisdiction here.

If your company plans on sending one or more employees out of Ohio for any work-related activity or training, contact Dawson Disantis & Myers for an individualized analysis of the possible out-of-state coverage you might need.  Or, if you would like us to e-mail you a copy of the BWC's internal legal memorandum on the topic of interstate jurisdiction, give us a call and we'd be happy to forward it to you.

Permanent Partial Disability: A Process that Defies Logic

         For a couple of years now, I have threatened to write a blog article about the laughable, illogical and completely arbitrary manner in which permanent partial disability awards are handled by the Industrial Commission for Ohio workers’ compensation claims.  It was a threat because everyone in my office knows I how feel about permanent partials and that there was a very good chance that a rational review and a reasoned argument could easily devolve into me ranting about how intellectually dishonest this process is and why employers are naturally repulsed by it.  So, after some research, some outlining, some editing and rewriting, I am prepared to offer my suggestions for reforming the Commission’s processing of permanent partials.  I will allow you, gentle reader, to be the judge of whether this is a well reasoned argument or simply my rant.

            Employers seem to get worked up about some PP awards for seemingly minor, “everyday” types of injuries as well as the way in which hearing officers create compromise awards out of vastly varying opinions regarding injured workers’ impairments.  I wanted to get a sense of what is causing the stir.  Let’s start out by looking at some statistics.  Over the past three fiscal years, the number of overall claims has dropped from 132, 549 in FY 2009 to 116,378 in FY 2011.[1]  The number of lost-time claims dropped from 15,428 to 13,404 over the same span.  Medical costs also dropped from $833,508,906 to $778,853,015 while total compensation was lowered from $1,130,764,997 to $1,053,770,995 in the same three year period.  Of the total compensation, 2009 saw $23,361,375 paid in PP awards.  This went down to $20,353,634 in 2010 and up slightly to $21,033,715 in 2011.  Thus, in a system that paid out nearly $2 billion in 2009 and over $1.8 billion in 2011, permanent partial awards accounted for only about 2% of the compensation paid. 

            When I looked at these numbers, I wondered whether my angst about permanent partials was deserved.  After all, why get so worked up about a form of compensation that amounts to only 2% of the total compensation paid out each year?  But the more I thought about it, I remembered the questions from clients over the years about how the hearing officer could award something (anything) for a four year old bruise, or how they could arrive at 11% when two physicians said 4% and 5% and one claimed 25% based upon range of motion findings.  I concluded that the process should be as fair and evidence-based as possible so that the system seems fair, even if it doesn’t change the total amount paid out by one dollar.[2]  Therefore, I am not looking at the entire permanent partial process.  Others can debate whether there should be PP awards at all or how the Bureau handles them.  The focus of this article is on the process only in those cases when an objection is filed to the BWC tentative order and the matter is referred to the Industrial Commission for resolution. 

            Let’s look then at the system we have today and how we got here.  The statutory language regarding typical PP awards under Revised Code 4123.57(A) is simple and straightforward enough. 

The district hearing officer…shall determine the percentage of the employee’s permanent disability…based upon the condition if the employee resulting from the injury…and causing impairment evidenced by medical of clinical findings reasonably demonstrable.(emphasis added.)

From this it certainly sounds like the Commission is committed to awarding PP based upon objective evidence, doesn’t it?

Hoover requires “some evidence”

            The case of State ex rel. Hoover Universal, Inc. v. Indus. Comm. (10^th Dist. 1985), 26 Ohio App.3d 175 seemed to advance the notion of objective evidence controlling PP awards.  Unfortunately, the holding and lessons from Hoover seemed to have been lost.  In Hoover, the Commission granted a 25% PP based upon findings that were subjective.  In fact, the examining physician noted that the injured worker was objectively normal.  The court granted the employer’s request for a writ reasoning that “reasonably demonstrable” requires objective evidence and a complete lack of objective evidence for the award can not satisfy the statute.  The court noted the normal deferral to the Commission to evaluate evidence but reminded the Commission of the “some evidence” rule and that its decision must be based upon “some evidence” in order to withstand scrutiny.

            The court noted that “…[w]here there is no evidence upon which the Commission could have based its factual conclusion an abuse of discretion in present and mandamus becomes appropriate.” State ex rel. Hutton v. Indus. Comm. (1972), 29 Ohio St.2d 9.  Remember this point and see how it was since cast aside by the same court.

Yellow Freight endorses compromise awards

            There are plenty of cases involving permanent partial disputes.  It appears that the first time the Ohio Supreme Court squarely addressed the issue of the Commission hearing officers making compromise awards was in State ex rel. Yellow Freight System, Inc. v. Indus. Comm., 97 Ohio St.3d 179, 202 Ohio 5811.  This case involved a C92A filed for an increase award in a 1992.  The claimant had previously received a 2% award for the same shoulder in the claim.[3] The state doctor opined a 9% impairment or a 7% increase.  The claimant’s medical evidence found a 15% impairment while the employer’s physician opined 1% impairment.  The Commission ultimately awarded 7% PP, a 5% increase.

            The Court’s entire treatment of the issue of compromise awards is contained in the final paragraph of the per curiam opinion. Although Yellow Freight challenged the compromise award, they did so only partially.  Yellow Freight asserted that a compromise award was improper where one physician found an increase but the other did not.  However, Yellow Freight generally accepted “the Commission’s right to employ compromise logic”.  Oh, I wish they didn’t.  After taking the employer to task for making its argument without citing authority in support, the Court defends the practice of the Commission making compromise awards based not upon a reasoned legal analysis but because the Commission “has used this approach for years” and to prohibit the Commission from making compromises “is nonsensical and certainly does not correct any perceived unfairness to employers”.  This is the rationale to support the Commission’s practice?  “Hey, they’ve been doing it that way for a long time and it’s just nonsense to suggest otherwise.”

            If you are like me, take a deep breath at this point.  Squeeze the stress ball you got at that seminar a few years back.  Do yoga or something that will calm you down and then come back. 

            Better? Okay.  So you see the complete lack of logic in the Court’s reasoning, right?  It’s not just me, is it?  Any argument primarily advanced by “But that’s how it’s been done for years” is probably lacking.  When the follow up argument is simply to call the opposing position “nonsense”, without any reasoning whatsoever, you know the Court simply didn’t want to upset the Commission’s system of processing permanent partial applications.  Perhaps that is why we got an opinion for which no individual justice wanted to take credit.

            The problem with the compromise award is that it is really based upon no evidence.  After all, there was not a single piece of evidence in the Yellow Freight case in which an expert, a physician, opined that the claimant’s impairment was 7%.  The only person who found 7% impairment was a hearing officer.  Even if all three of the opinions considered were based upon objective evidence, not subjective findings, and thus were based upon reasonably demonstrable evidence, where was there some evidence of a 7% impairment.  There was none.  There was evidence of a 15%, a 9% and a 1% impairment.  There was no evidence of a 7% impairment.

Tenth District supports compromise awards

            In the wake of Yellow Freight, the Tenth District Court of Appeals (where mandamus cases against the Commission are filed) is not going to change its position regarding the Commission’s practice of issuing compromise awards.  In State ex rel. Wrenn v. Kroger Company (10^th Dist.), 2003 Ohio 6470, the Magistrate noted that “[o]rdinarily, when the relied upon medical reports present a range of percentages, the commission does not abuse its discretion by choosing a percentage within the range of those percentages, and there is no requirement, in that situation, that the commission explain why it has selected the percentage chosen.” Id. at P34.  Of course, the only Ohio Supreme Court decision cited as support for this proposition is Yellow Freight which, as we’ve seen, cited no authority or rationale.  The Tenth District continues to hold to this position today as evidenced by its repeated citations to this self-conceived notion, most recently in State ex rel. Houston v. Mental Health Millcreek Children’s Psych. Hosp. (10^th Dist.), 2011 Ohio 3594.

What can be done?

            Any employer or group looking to make a change in this process through the courts must know going in that it is an uphill battle.  It is pretty clear that challenging the Commission’s right to make a compromise between two or more medical opinions before the Tenth District is a losing argument.  The employer will need to be prepared to appeal to the Ohio Supreme Court.  While the make up of the Court is different now than in 2002 (five of the seven justices are different), the argument will require an assault on the Court’s faulty logic, or lack thereof, in Yellow Freight.  Would such an argument be successful or would the Court simply shrug its collective shoulders and keep the status quo?  Who knows?  Any employer willing to try, please give me a call.

            A better course of action may be to seek legislative reform through the General Assembly.  A simple change to the statute and accompanying administrative rules could instruct that hearing officers be required to choose from among the valid medical opinions before them.  This would effectively outlaw the practice of creating compromises.  Yet, such a piece of legislation probably will require a larger, more comprehensive piece of workers’ compensation reform legislation with which it would be included.  It’s hard to imagine a reform like this existing as a stand-alone bill.

If changes are made, then what?

            It is all well and good to change a flawed process just because it is intellectually dishonest and to challenge bad case law because it is constructed on a baseless foundation.  But ultimately, employers are going to want to know how making this change will affect the bottom line.  Is this change going to decrease or increase the average permanent partial award?  The honest answer is – I don’t know.  My suspicion is that eventually, it may decrease awards by a small amount.  However, when coupled with the potential to more significantly limit defenses costs on PP matters the advantages of these changes are amplified.

            If hearings officers were required to pick from among two or three opinions rather than adding the numbers and dividing by the number of reports, I predict that we would see the range of percentages in each case shrink considerably.  Instead of the Bureau doctor opining 0% and the claimant’s doctor opining 14% on some claim, we would likely see Bureau doctors finding 5% and claimant’s doctors finding 7%.  This would happen because hearing officers often award something, so they may be reluctant to choose the report that says 0%.  In that case, their only choice may be to choose the inflated 14%.  However, if the Bureau doc comes in with a low, but supportable 5% and the claimant’s examiner still says 14%, then the claimant’s report is very likely to be rejected.  In that case, the claimant has spent money on a report and has no additional money to show for it.  Naturally, claimant’s docs will begin to adjust their findings to a reasonable percentage that has a chance of being accepted.

            So, in the first scenario with a 0% and a 14% opinion, we know that many hearing officers would arrive at an award around 7%.  After all, (0+14) ÷ 2 = 7.  Of course, the employer would likely need to go to hearing before a DHO and possibly before an SHO on recon to get final award.  Without compromise awards, the opinions before the hearing officer are 5% and 7%.  If the hearing officer chooses the 7% award, the employer is no worse off.  But where the parties really win will be when the Bureau issues the tentative order for 5% and no objection is taken. 

The current system encourages claimant’s to object to the tentative order, especially when it is 0%, because they know they can get a ridiculously high opinion and usually get a compromise award that will more than pay for the doctor’s report.  If claimants know they have a small, but reasonable award in hand, they may be less inclined to spend money when the prospect for an increased award is less certain.  No objection by the claimant means no need for hearings or defense IMEs and lower costs associated with litigation for PP awards.  This will be where employers may find savings to improve the bottom line.

Conclusion

            It’s clear that fixing Ohio’s permanent partial process is not a magic bullet that will suddenly make Ohio’s workers’ compensation system more attractive to businesses.  I think it is equally clear that it is flawed both in the process of creating compromise awards and the tenuous legal authority that permits the process to continue.  Whether change comes through the courts or through legislation does not matter.  Simply by eliminating the compromise award, we could reduce litigation costs and the waste of conducting thousands of PP hearings every year.  So there you have it.  Anybody with me?

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[1] Statistics taken from BWC Fiscal Year 2011 Report, available online at www.ohiobwc.com.

[2] As explained later, I believe a reformed system would reduce the amount of litigation associated with PP awards.  This would certainly reduce employers’ costs in terms of medical exams and the cost of having counsel at hearings.

[3] Facts were complicated by a 7% award in a 1988 claim that included the same shoulder but other conditions as well.  The 7% award was not apportioned among the allowed body parts.