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MONTGOMERY COUNTY, OHIO. Workers’ Compensation Update February 24, 2010 Gary W. Auman Dunlevey, Mahan & Furry 110 N. Main St., Ste. 1000 Dayton OH 45402 937-223-6003. 1913 Ohio State Constitution Article II, Section 35 - 11/26/1923 Why Workers’ Compensation Exclusive Remedy.

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  1. MONTGOMERY COUNTY, OHIO Workers’CompensationUpdate February 24, 2010 Gary W. Auman Dunlevey, Mahan & Furry 110 N. Main St., Ste. 1000 Dayton OH 45402 937-223-6003

  2. 1913 • Ohio State Constitution • Article II, Section 35 - 11/26/1923 • Why Workers’ Compensation • Exclusive Remedy

  3. Injury 4123.01 • In course of employment • Arising out of employment • Gradual onset

  4. Whether caused by external accidental means or • Accidental in character or result

  5. Exceptions • Psychiatric conditions • Natural deterioration of tissue (idiopathic) • Pre-existing condition • Recreational waiver • Fighting • Self-inflicted

  6. Fellow Employee Immunity A fellow employee is immune from any damages connected to the injured worker’s employment as long as the injury or disease is compensable. – ORC § 4123.741

  7. Intentional Torts – The Exceptionto Immunity If an employer creates a hazard or fails to correct a hazard when they know an employee has a substantial certainty of injury because of the hazard, the employer may be sued for an intentional tort in addition to filing a workers’ comp. claim. Insurance may be purchased.

  8. VSSR • Ohio Specific Safety Requirements • In addition to Federal OSHA • Ohio Constitutional Provision • Not always the same requirement as OSHA • Only happens if there has been a compensable injury

  9. Employee must prove that safety standard applies to job • That the standard was violated • That the violation was the proximate cause of the injury

  10. VSSR penalty is between 15% and 50% of the maximum weekly benefits rate available to the claimant in the year of the injury. • Employer remains responsible for penalty beyond experience period.

  11. Max. available weekly = $775 • 50% penalty = $387.50/week • 25 year old claimant PTD • 50 year life expectancy $775 x 50% x 52 wks x 50 yrs =$1,007,500

  12. Construction Safety Requirements Ohio Administrative Code § 4121:1-3

  13. Subrogation • Relatively new concept • ORC 4123.93 et. seq. • Returns a portion of claim costs back to state or self-insured employer, if a third party was at fault, in whole or in part, for the industrial injury

  14. Statutes of Limitations • For an injury – 2 years from the date of injury. ORC § 4123.84 • Notice must be made to I/C or BWC, or • Employer, with knowledge of claimed injury or disease has paid wages in lieu of compensation

  15. Statutes of Limitations • Occupational Disease – 2 years from date disability from disease began, or within a longer period, not to exceed six (6) months after a diagnosis of the occupational disease by a licensed physician. • ORC § 4123.85

  16. Types of Benefits • Temporary Total Disability (TTD) ORC § 4123.56 • Working Wage Loss (WWL) ORC § 4123.56 • Non-Working Wage Loss (NWWL) ORC § 4123.56 • Permanent Partial Disability (PPD) ORC § 4123.57(A) • Loss of Use – ORC § 4123.57(B) • Permanent Total Disability (PTD) ORC § 4123.58 • Death – ORC § 4123.59

  17. TREATMENTISSUE State ex rel. Jordan v. I/C (2008) 120 Ohio St. 3d 142 1984 claim. Employee prescribed name brand drugs. Fully reimbursed with Ohio Adm. Code § 4123-6-21(I). Makes claimant responsible for difference in cost between max allowable cost and actual cost.

  18. Claimant appealed. Supr. Court ruled that R.C. § 4123.54 gives claimant right to treatment, but not to dictate terms of treatment.

  19. State ex rel. Tracy v. I/C, (2009) 121 Ohio St. 3d 477 Employer injured left shoulder and neck in 2004. Late 2005 – MMI February 2006 reinjured neck pushing back with neck against head rest of car. POR all problems stemmed from 2004 injury. Employee filed for TTD.

  20. Employer objected. SHO held new intervening injury; denied TTD. C/A Reversed – SHO relied on isolated words and language taken out of context. Supr. Court agreed with C/A. 1. SHO reliance on POR diagnosis of re-injury was misplaced.

  21. 2. Rejected employer’s argument that because condition was worse after 2006 incident had to be a new injury. Supr. Court concluded that by definition “exacerbation” is a worsening of a condition. 3. Rejected employer’s argument that mandamus was premature because additional condition was pending in Common Pleas Court. Supr. Court held that allowance of additional condition is not determinative of TTD issue.

  22. Benton v. Hamilton Cty. Edu. Service Ctr., 2009 – Ohio 4969 Case involves right to appeal I/C decision on fraud into Common Pleas Court. Claimant claimed auto accident injury while traveling for employer. Employer did not object. One year later employer asked I/C to find fraud and terminate participation.

  23. DHO & SHO denied employer’ Employer appealed into Common Pleas Court and argued that denial for fraud motion affected claimant’s right to participate. Claimant’s motion to dismiss was granted by court on grounds that it lacked subject matter jurisdiction.

  24. Supr. Court agree. It reasoned that after the employer fails to contest right to participate, Court of Common Pleas essentially loses jurisdiction. BUT, the Supr. Court also reasoned that had the I/C granted the employer’s fraud motion, the claimant could have appealed to Common Pleas Court, because her right to participate would have been denied.

  25. The employer argued a denial of equal protection, but the Supr. Court disagreed and pointed out that both the employer and the claimant have the right to appeal when they are negatively affected.

  26. State ex rel. Lowe v. Cincinnati, Inc., (2009) 2009-Ohio 5864 Employee injured shoulder in 1998. PTD in 2003. 2005 – Employer moved to terminate PTD based on surveillance that showed employee capable of sustained remunerative employment.

  27. SHO granted motion after a “meticulous” review of surveillance, medical records, and past reports. Ultimately, Supr. Court denied the writ of mandamus. Court found that there was sufficient evidence to demonstrate that there “may have been” a change of circumstances. “May have been” is enough to invoke continuing jurisdiction.

  28. Employee argued that surveillance was only for two days. Court rejected this argument and found that doctors not only viewed the surveillance, but also examined the claimant. Finally, SHO performed a detailed non medical review to determine that the employee was not disqualified from sedentary employment by age or education.

  29. State ex rel Gibson v. I/C, 123 Ohio St. 3d 92 (2009) Claimant returned to work in 2005 with restrictions. Several months later, light duty job was eliminated. Employee was no longer employed, but did not request TTD.

  30. In 2007 another condition was added to claim. POR filed C-84 requesting TTD back to date restricted duty job had ended. BWC doctor reviewed file and concluded nothing had changed since restricted duty job had ended. DHO & SHO denied motion for TTD. Employee filed for mandamus.

  31. BWC doctor also stated that the symptoms were the same when restricted duty job ended. C/A denied writ. Supr. Court agreed – I/C is not bound by any work arrangement between employee and employer and there was no contemporaneous medical evidence with the belated assertion of TTD.

  32. State ex rel Dillard Department Stores v. Ryan, (2009) 122 Ohio St. 3d Allowed claim, employee filed for additional condition. Allowed by I/C. Employer appealed to Common Pleas Court. Employee took Rule 41(A)(1) dismissal. Employer re-filed.

  33. Settlement agreed to at $15,000 before trial. Settlement automatically approved by I/C. Employee dismissed case with prejudice. Employer moved for reimbursement. BWC denied employer’s request. Employer took mandamus claiming that it was the prevailing party in light of employee’s dismissal with prejudice.

  34. BWC argued that a SI employer who pays a substantial settlement is not a prevailing party, so it cannot obtain reimbursement. Court of Appeals denied the Writ. Supr. Court agreed – In order to be eligible for a surplus fund reimbursement, the employer must obtain a final judicial determination on the merits.

  35. State ex rel. Johnson v. I/C, 2009 122 Ohio St. 3d 289 Employee installing safety rails on scaffold. Wind caused scaffold to dip. Employee filed VSSR alleging violation of safety rules requiring bracing and anchorage of a scaffold.

  36. The I/C denied the application holding that the requirements did not apply because the scaffold was not complete and the safety rules apply to only completed scaffolds. The Court of Appeals agreed. The Supr. Court held that this interpretation would not adequately protect employees.

  37. They reasoned that scaffolds do not build themselves. Workers erect scaffolds level by level, thus requiring the employees to be on unfinished scaffolds. The Supr. Court held that the scaffold safety standard applies to ALL scaffolds regardless the stage of construction. Obviously, this places employers in an untenable position when erecting scaffolds.

  38. State ex rel. Kostler v. Wellness Center Health Assoc., LLC, (2009) 122 Ohio St. 3d 131. Employee TTD for one year. Returned to work for a few days and again requested TTD. Office notes of a secondary physician indicated she could not return to work because she did not have child care.

  39. Her doctor said TTD. Another doctor felt she needed a FCE and extensive rehab. SHO denied TTD. Supr. Court determined that physicians reports were contradictory and vague. Remanded case back to I/C to state which report it relied on.

  40. State ex rel. Int’l Truck v. I/C, (2009) 122 Ohio St. 3d 428 Employee injured using overhead transport system. Before accident hoist had been sticking. Employer tried to correct by replacing Teflon rollers. Used wrong nut to reattach assembly.

  41. VSSR – defective load carrying equipment shall be repaired or replaced. SHO found violation – failed to correctly repair. Court of Appeals – By repairing improperly employer created a new defect. To Supr. Court employer argued evidence must be construed in its favor. Supr. Court held that is not the rule.

  42. Employer argued that the sticking roller defect had been corrected. Supr. Court ruled that you had to look at entire assembly (defective) not the component parts. Employer argued it may have been negligent but not deliberate. Supr. Court – Not an issue. Employer argument it had made good faith effort. Supr. Court – Not relevant.

  43. State ex rel. Daimler-Chrysler v. I/C, (2009) 121 Ohio St. 3d 341 Employee receiving TTD – Not yet MMI. POR – employee would not return to previous position. Employer felt that this supported termination of TTD.

  44. § 4123.56(A) – TTD test. 1. Return to Work 2. POR releases employee to former position. 3. Work within physical restrictions as made available. 4. MMI Supr. Court held MMI is the only standard by which TTD can be terminated on a basis of permanency.

  45. State ex rel Shelly v. Steigerwald, (2009) 121 Ohio St. 3d 158 Employee killed when construction truck backed over employee. OSHA investigation concluded that warning system may have been disconnected during attempted rescue. I/C concluded VSSR violation.

  46. On motion for rehearing the employer raised defense of first time equipment failure. Supr. Court ruled – Could not rely on first time equipment failure defense, because did not raise it at first hearing – too late to raise on rehearing. Also, IC has substantial leeway in evaluating evidence before drawing inferences from it. Commission is not bound by OSHA findings.

  47. State ex rel. Saunders v. Cornerstone Found. Sys. Inc., (2009) 2009-Ohio-4083 Employee returned to work after injury. Terminated for insubordination. Filed for TTD – denied under Louisiana-Pacific. Employee filed mandamus and claimed rule had never been shown to him.

  48. There were two rules, Jan. 2004 and June 2004. Employee signed for Jan. policy – It stated “Violation of any rule may lead to termination.” (NOT ENOUGH.) C/A upheld I/C. Supr. Court revised – concluded that policy regarding termination for insubordination was added in June 2004 – No evidence employee was aware of that rule.

  49. State ex rel Hina v. I/C, (2009) 121 Ohio St. 3d 4 Injury on milling machine. VSSR for not having means to disconnect from power supply within easy reach of operator. There was a lever at chest of employee to stop machine when pulled.

  50. I/C – No violation. C/A – Found violation lever did not disengage machine from power supply. Supr. Court – Safety requirements must be strictly construed, all reasonable doubts re interpretation construed against their applicability. Supr. Court also felt that C/A may have been confused. Supr. Court reversed.

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