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Legal Updates
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December 20, 2007 Issue: Worker’s Compensation Claimants Not Immune From Absenteeism Policies
Because of Coolidge, many Ohio employers feared that they had lost the ability to enforce their normal absenteeism policies as to employees who claimed that they were missing work because of an industrial injury. Employers were understandably concerned that Coolidge required them to hold jobs open indefinitely for employees who said that they were missing work due to the effect of a workers’ compensation claim. The Bickers Court addressed that concern and wrote that Coolidge “does not create a claim of wrongful discharge in violation of public policy for an employee who is discharged while receiving workers’ compensation.” In Bickers, an employee of the Western & Southern Life Insurance Company filed a workers’ compensation claim, which was allowed for multiple conditions. Following the injury, Bickers experienced periods of inability to work, which were compensated through temporary total disability benefits under the Workers’ Compensation Act. Bickers was terminated by her employer because of absenteeism while she was receiving temporary total disability compensation. Bickers filed a complaint for wrongful discharge, relying on Coolidge. The Supreme Court, however, held her discharge to be lawful, holding that the rule in Coolidge only applies to a determination of whether there was cause sufficient to overturn the contractual protection afforded under R.C. 3319.16, governing contracts involving school teachers. The Court took note that Bickers, unlike the plaintiff in Coolidge, was not a school teacher whose employment was subject to R.C. 3319.16 and, for that reason, could not base a claim on Coolidge. This strict limitation on the scope of the Coolidge case practically overturns it. The Court noted that if Ohio ever adopts immunity from absenteeism policies for workers’ compensation claimants, it would have to be the General Assembly that creates the immunity. The Court’s majority wrote that it would not impose such a rule in Ohio through judge-made law. While the Court acknowledged the long-standing principle that workers’ compensation claimants cannot be singled out for selective enforcement of absenteeism policies, workers’ compensation claimants have no greater right to be absent from work without penalty than do all other Ohio workers. It remains the case that workers’ compensation claimants may enjoy a right to limited absence without penalty under certain familiar laws, such as the Family and Medical Leave Act, but there is no special right to be absent enjoyed by those who claim an inability to work due to industrial injuries. The opportunity of employers to set attendance policies for employees, including workers’ compensation claimants, is made clear by the new Bickers decision. Many Ohio employers suspended enforcement of their normal absenteeism policies as to employees who claimed that they were missing work because of an industrial injury. Those employers may now want to revisit renewed enforcement of attendance policies with respect to workers’ compensation claimants. The Court’s majority has ended a four-year period of ambiguity on this important point of Ohio employment and workers’ compensation law. Justified concerns about workers’ compensation claimants enjoying a special right to be absent without consequence have been forcefully laid to rest by the majority in Bickers.
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May 31, 2007 Wrongful Discharge under Coolidge and Retaliatory Discharge under R.C. 4123.90 Wurzauf v. Honda of America Mfg., Inc., Slip Copy, 2007 WL 1175481, Ohio App. Third Dist. (April 23, 2007). In 2003, the claimant injured his right hand while
working for Honda. He was unable to return to work and began
receiving temporary total disability compensation ("TTD").
In 2004, he was terminated from his employment for his failure
to comply with a disability management program at Honda. Because
he had failed to timely submit medical documentation of his absence
from work, the claimant was not receiving TTD at the time of
his termination, although TTD was later retrospectively ordered
paid by the Commission. Following his discharge, the claimant
commenced an action against Honda for retaliatory discharge under
R.C. 4123.90. In his trial brief, he argued that his separation
was also in violation of public policy as set forth in the Coolidge
case. A bench trial resulted in a finding that Honda did not
retaliate against the claimant and that the termination did not
violate public policy. The Third Appellate District Court agreed
and affirmed, finding that the claimant presented no evidence
in support of his retaliation claim and failed to plead a cause
of action under Coolidge. The Court discussed that the claimant
could not have prevailed even if he had successfully pleaded
an action for wrongful discharge; The Court acknowledged that an employer cannot circumvent Coolidge by implementing a program to couch an otherwise unlawful, absenteeism-based discharge in terms of noncooperation or noncompliance. However, Honda's disability management program was implemented well before Coolidge. |
BUGBEE & CONKLE, LLP |
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May 31, 2007 Wrongful Discharge under Coolidge and Retaliatory Discharge under R.C. 4123.90 Klopfenstein v. NK Parts Industries, Inc., Slip Copy, 2007 WL 1175243, Ohio App. Third Dist. (April 23, 2007). The claimant was terminated for absenteeism at a time when he was receiving TTD. He initiated an action against his employer for wrongful discharge in violation of public policy. The trial court dismissed the action for lack of subject matter jurisdiction. The dismissal was based on a finding that R.C. 4123.90 is the exclusive remedy for retaliatory discharge in connection with a workers' compensation claim and the claimant had not met the 180 day statute of limitations. The appellate court reversed the decision and remanded the case, finding that Coolidge provides a public policy exception to the employment at will doctrine and creates a separate cause of action. Therefore, cases brought under Coolidge are not subject to the limitations set forth in R.C. 4123.90. NOTE: This decision contains a good discussion of the post-Coolidge litigation in both the Ohio and federal court systems. It is noted that despite a number of district court opinions finding in favor of the public policy exception, the Sixth Circuit has held that a retaliatory discharge action must be brought under R.C. 4123.90. Current Ohio appellate courts are split on this issue. The Eighth App. Dist. has rejected the concept that Coolidge created a public policy exception to employment at will and the First App. Dist. has found that Coolidge does create such a public policy exception. The Ohio Supreme Court has accepted a discretionary appeal in the First App. Dist. case in Bickers v. W.S. Life Ins. Co., Inc., 110 Ohio St.3d 1409, 2006-Ohio-3306. |
BUGBEE & CONKLE,
LLP |
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May 31, 2007 Application of R.C. 2305.19 (the Savings Statute) to R.C. 4123.512 Appeals Hughes v. Fed. Mogul Ignition Co., Slip Copy, 2007 WL 1226416, Ohio App. 5 Dist. (April 26, 2007). The employer appealed the allowance of a workers' compensation to the court of common pleas in accordance with R.C. 4123.512. The claimant filed a complaint, then voluntarily dismissed it (under Civ. R. 41(A)) one month prior to trial. The claimant failed to re-file her complaint within one year from dismissal as required by the savings statute. The employer filed a motion for judgment on the pleadings which was granted by the trial court and upheld on appeal. The claimant unsuccessfully argued that she was entitled to an extension of time to re-file her complaint under Civ R. 6(B) due to various illnesses suffered by her attorney. The court held that the time extensions of Civ. R. 6(B) do not apply to Ohio's savings statute, R.C. 2305.19. |
BUGBEE & CONKLE,
LLP |
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May 31, 2007 Permanent Total Disability State, ex rel.
McDaniel, v. Indus. Comm., Slip Copy, 2007 WL 1219483 The BWC's Fraud SIU received an anonymous tip that a claimant was working while receiving permanent, total disability compensation ("PTD"). A motion was filed asking for the termination of PTD and a declaration of fraud. Evidence was collected and presented to the Commission that the claimant had a lawn care business and had cut one lawn in 2001; mowed a church's lawn twice for $90 in 2002; and mowed three lawns during the growing season in 2003: one for free, one for $30, and one for $20. The claimant used a riding lawn mower, a push lawn mower, a grass trimmer, and a blower. The Commission granted the motion, terminated PTD and made a declaration of fraud. The claimant filed an action in mandamus seeking reinstatement of PTD on the basis that his activities did not meet Lawson test for ineligibility for PTD. The court agreed and granted the writ. "These activities are substantially less strenuous and less consistent than those in Lawson, and there is no evidence that the activities were outside of relator's restrictions. Admittedly, a complicating factor in the present case is that relator was operating a business and advertising such, while the claimant in Lawson was engaging in volunteer activities largely associated with his position on the city council. Nevertheless, we do not find that this fact is significant enough to take the current case out of the ambit of the circumstances and holding in Lawson… While we do not condone relator's failure to inform the Commission of his activities and his evasiveness when confronted by the investigators from the Bureau of Workers’ Compensation we cannot find that there is some evidence of relator's ability to engage in sustained remunerative employment." |
BUGBEE & CONKLE,
LLP |
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May 31, 2007 TTD/Voluntary Abandonment State, ex rel. Gebhart, v. Indus. Comm., Slip Copy, 2007 WL 944079 Ohio App. 10 Dist. (March 30, 2007). The claimant signed a voluntary resignation following his work-related injury in order to avoid having to take a post-accident drug test. He subsequently applied for TTD in his WC claim. The employer argued that the signed resignation precluded claimant's eligibility for TTD. The Commission agreed. On mandamus, the Court denied the writ, finding that the settlement agreement which stated that claimant voluntarily quit his employment operated as a voluntary abandonment of the workplace. Therefore, it was not an abuse of discretion for the Commission to deny TTD. |
BUGBEE & CONKLE,
LLP |
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May 31, 2007 TTD/Voluntary Abandonment State, ex rel. Luther, v. Ford Motor Co., 113 Ohio St.3d 144 (April 04, 2007). The claimant returned to work following back surgery
and worked light duty until the plant was sold. Further light
duty was not available and the claimant was awarded TTD. He remained
off work and, for a period of nine months, failed to provide
medical documentation of his absence. He subsequently turned
in a C-84 form which the employer disputed as a new period of
disability. A self-insured complaint was denied by the BWC on
the basis that the nine month lapse in documentation entitled
the employer to treat the application as a new period of TTD.
The claimant then failed to appear for two employer-sponsored
IMEs and his claim was suspended. Pursuant to the collective
bargaining agreement, the claimant was notified that he had five
days to report to work or provide medical documentation. The
claimant failed to respond and was terminated. The Commission
denied TTD from the date of termination forward on the basis
that claimant voluntarily abandoned his employment under Louisiana
Pacific. The claimant argued that the termination was not voluntary
and violated the public policy under the Coolidge case. |
BUGBEE & CONKLE,
LLP |
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May 31, 2007 Due Process: Notice State, ex rel. Care Ents., Inc., v. Mabe, Slip Copy, 2007 WL 1083418, Ohio App. 10 Dist., 2007 (April 12, 2007). The Commission allowed the claimant's workers' compensation claim and ordered the payment of compensation and benefits. The employer learned of the claim upon receipt of a staff level notice of hearing regarding wage loss compensation. In response, the employer filed a mandamus action against the BWC asking for a writ ordering the BWC to pay for the claim out of the surplus fund because the employer never received proper notice of the claim and was denied due process. The court found that the employer had received proper notice, but that its third-party administrator had not. The form which identified the employer's TPA did not contain an address or the proper name of the employer's facility. The court concluded that the employer's lack of notice of the claim was due primarily to its own error. Further, the employer had an opportunity to appear at the hearing for which it received notice, but failed to do so. The requested writ of mandamus was denied. |
BUGBEE & CONKLE,
LLP |
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May 1, 2007 (07 ö No.3) 4123.90: COOLIDGE Klopfenstein v. NK Parts Industries, Inc. (3rd Dist. No. 17-05-05), 2007-Ohio-1916 (April 23, 2007). Plaintiff had a workersâ compensation claim for which he was receiving TTD compensation. Because of absenteeism due to his injury, the employer terminated his employment consistent with its attendance policy. Plaintiff filed a lawsuit alleging wrongful discharge in violation of public policy, but did not allege a violation under R.C. 4123.90. Employer moved to dismiss the lawsuit pursuant to Civ.R. 12(B)(1), contending plaintiff failed to comply with the notice and time provisions under R.C. 4123.90. Trial court granted the motion, dismissing the case. Plaintiff appealed to the court of appeals, which reversed the trial court. The court of appeals held that Coolidge creates a public policy exception to the employment-at-will doctrine. The public policy is embedded in the Workersâ Compensation Act, not solely R.C. 4123.90, and prohibits discharge for absenteeism. Therefore, plaintiffâs action was not based upon R.C. 4123.90. Discharge for absenteeism when employee is receiving TTD compensation violates the public policy in the Workersâ Compensation Act. R.C. 4123.90 does not provide the exclusive remedy for such discharges. |
BUGBEE & CONKLE,
LLP |
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May 1, 2007 (07 ö No.3) 4123.90: COOLIDGE Wurzauf v. Honda of America MFG., Inc. (3rd Dist. No. 14-06-31), 2007-Ohio-1913 (April 23, 2007). Plaintiff had a workersâ compensation claim for which he was absent from work. Honda discharge plaintiff for non-compliance with its ãMITä program, a return to work program. Plaintiff was not receiving TTD compensation at the time of his discharge because he had failed to submit proper documentation. Commission retroactively awarded TTD compensation. Thereafter, plaintiff filed a wrongful discharge action under R.C. 4123.90, but did not allege he was wrongfully discharged in violation of public policy. Trial court found no evidence supporting wrongful discharge under the statute or under public policy. Plaintiff appealed to the court of appeals, which affirmed the trial courtâs judgment. Court of appeals found plaintiff failed to allege violation of public policy in his complaint, and therefore, such a claim was not before the trial court. Additionally, the court distinguished the case from Coolidge because plaintiff was not discharged under an attendance policy. To pursue a claim for wrongful discharge under Ohioâs public policy, plaintiff must allege such a claim in his complaint. |
BUGBEE & CONKLE, LLP |
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May 1, 2007 (07 ö No.3) PTD State ex rel. McDaniel v. Indus. Comm. (10th Dist. No. 06AP-513), 2007-Ohio-2009 (April 26, 2007). Claimantâs PTD compensation was terminated by the Commission on the grounds claimant was engaged in sustained remunerative employment at the time he was receiving PTD compensation and had committed fraud. Claimant filed a complaint in mandamus to reinstate his PTD compensation. Facts revealed the following work activities: claimant mowed one lawn in 2001; mowed a churchâs lawn twice in 2002 for $90; and mowed three lawns in 2003, one for free and the other two for $30 and $20. Facts also revealed claimantâs lawn mowing activities were within his physical restrictions, and he was operating a business and advertising such. Finding claimantâs activities were minimal and did not constitute sustained remunerative employment, appellate court magistrate granted the writ of mandamus. Commission objected. Although the court of appeals acknowledged the case was ãcomplicatedä by the fact the claimant operated a business, court affirmed the magistrateâs decision. Minimal work activities within claimantâs restrictions do not constitute sustained remunerative employment. |
BUGBEE & CONKLE, LLP |
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May 1, 2007 (07 ö No.3) TRIAL COURTâS JURISDICTION UNDER R.C. 4123.512 Davidson v. BWC, (2nd Dist. No. 21731), 2007-Ohio-792 (February 23, 2007). Claimant filed motion to additionally allow claim for lumbar sprain. In a second motion, claimant requested claim be additionally allowed for lateral tibial plateau defect, right knee and aggravation of pre-existing chondral defect of the middle patella facet, right knee. Commission denied both motions and claimant appealed under R.C. 4123.512. Claimant sought jury instruction to include ãaggravationä of lumbar sprain. Because Commission never decided ãaggravation of lumbar sprain,ä court refused to instruct jury on issue. Jury found claimant not entitled to participate for a lumbar sprain. Claimant appealed, alleging courtâs refusal to instruct on aggravation was erroneous under Robinson v. AT&T Network Systems which held employee forfeited right to litigate condition as an ãaggravationä when he fails to appeal denial of said condition on direct cause. Appellate court cites Ward v. Kroger Co., finding that a claim for an aggravation of a pre-existing condition not previously adjudicated by Commission is not within courtâs jurisdiction under R.C. 4123.512. An appeal under R.C. 4123.512 provides a mechanism for judicial review of Commission decisions, not for amendment of administrative claims for conditions not yet ruled on by Commission. |
BUGBEE & CONKLE, LLP |
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October 3, 2006 (06 ö No.8) Status of New Workersâ Compensation Legislation Senate Bill 7 On June 29, 2006, a petition was filed with the Ohio Secretary of State requesting a referendum on Senate Bill 7. The Secretary of Stateâs office sent a letter to the referendum committee advising them of signature deficiencies. The committee had 10 days from the date of receipt of the letter to submit additional signatures to overcome the deficiency. On August 29, 2006 the referendum committee filed a motion for temporary restraining order and preliminary injunction with the Franklin County Court of Common Pleas alleging the 10 day letter was issued too soon as the Secretary of Stateâs office is not authorized to issue a 10 day letter while challenges to the initial signatures are pending. Supporters of the referendum filed an additional 103,000 signatures on September 15, 2006 with the Secretary of State. After reviewing the signatures, the Secretary of State determined the signature requirement still had not been met. On September 18, 2006, the Franklin County Court of Common Pleas granted a preliminary injunction ruling the Secretary of Stateâs office should not have started the 10 day cure period until the challenges to the signatures at the local county board of elections are complete. The Secretary of Stateâs office has appealed the common pleas court decision to the 10th District Court of Appeals and the parties will be filing briefs this week. As of todayâs date it is still unclear whether Senate Bill 7 will be on the November ballot. In short, the referendum has not yet been defeated. |
BUGBEE & CONKLE, LLP |
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June 5, 2006
Workers’ Compensation Case Law Update By: Dennis Rademaker 1. State, ex rel. Dixon v. Airborne Express, Inc., 108 Ohio St. 3d 200, 2006-Ohio-660 (March 1, 2006). Claimant Dixon was injured and unable to return to his previous position. Dixon requested a vocational rehabilitation plan. The Commission ordered the employer to pay living-maintenance compensation “once the claimant enters the approved vocational rehabilitation plan.” The plan recommended direct placement or pursuit of an Associate Degree in the business field. Dixon subsequently enrolled in a four-year degree program at Wright State University. The employer did not approve this action. Dixon’s request for living-maintenance compensation was denied... |
Rademaker, Matty, McClelland & Greve 55 Public Square |
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April
3, 2006
The Latest Updates in
Workers’ Compensation
Law:
What You Should Know REFORM LEGISLATION ALTERS WORKERS’ COMPENSATION LANDSCAPE Governor Taft’s recent signing of SB 7 will reform significant aspects of Ohio’s workers’ compensation. Under the bill, injured workers and employers can expect changes in benefits such as... |
Calfee, Halter & Calfee's Workers' Compensation group - find articles, newsletters and events under related resources. Calfee is the Ohio member of the National Workers' Compensation Defense Network. |
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February
1, 2006
Mental-Mental
Claims: Where are we now? The Conflict On April 1, 2004, the Fifth District Court of Appeals in Ohio issued its decision in Wood v. Ohio State Highway Patrol, 156 Ohio App.3d 725, 808 N.E.2d 887 (Ohio App. 5th Dist. 2004). In Wood, the Claimant, a former Ohio State Highway Patrolmen, appealed the decision of the Industrial Commission which denied him workers’ compensation benefits for the psychological diagnosis of post traumatic stress disorder (“PTSD”). Claimant allegedly contracted PTSD as a result of several incidents which occurred during his years of employment with the Highway Patrol. The trial court affirmed the Commission’s decision which denied claimant the right to receive workers’ compensation benefits. |
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January 3, 2006 The
Unauthorized Practice of Law Continues In December of 2004, the Ohio Supreme Court issued its much anticipated decision regarding Third Party Administrators (TPA’s) and the unauthorized practice of law. Although the court did put some restrictions on TPA’s, it basically rejected the recommendation of the Board on the Unauthorized Practice of Law. |
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December 1, 2005 Permanent
Total Disability. State ex rel. Ferrell v. Indus. Comm, Franklin App. No. 04AP-948, 2005-Ohio-3100. Farrell applied for permanent total disability (PTD) benefits based solely on the allowed physical conditions in his claim, which had been determined to be MMI. At that time, he was receiving TTD for allowed psychological conditions. These conditions were not yet MMI, per an Industrial Commission Order. |
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December 1, 2005 Third-Party
Representation. In response to a challenge from a local bar association, the Ohio State Supreme Court late last year upheld the right of non-attorney representatives (TPAs) to continue appearing at administrative hearings for employers. This ruling re-affirmed a practice that had been in place for 34 years under an agreement between the Ohio Bar Association and the TPAs. (More...)
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November 1, 2005 Inaccurate Employment Application Not
Enough to Deny Temporary Total Disability Compensation Benefits On September 7, 2005, the Ohio Supreme Court
ruled that an inaccurate employment application was not sufficient
to terminate temporary total disability benefits without additional
proof that there was an “intent to deceive.” |
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April 1, 2005 Proposed
Workers’ Compensation Reform Legislation
Legislative changes may be on the horizon for Ohio employers. Governor
Taft has made it his number two priority behind tax reform, to reform the Ohio
workers’ compensation system. Reform legislation is being proposed by
Senator Cates under S. B. 7 and by Representative Buehrer under H.B. 7. Hearings
have been held in both chambers of the legislature concerning the proposed
legislation with employer groups, such as the Ohio Self-Insured Association,
the Ohio Manufacturers Association and the Ohio Chamber of Commerce, providing
testimony that they are generally in favor of the bills. (MORE...) |
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TTD
Not Compensable under Voluntary Abandonment.
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Rebuttable
Presumption—Round Two |
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State
ex rel. Hassan v. Marsh Bldg. Products, SUBJECT RULE |
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Payne
v. Greater Cleveland R.T.A., Cuyahoga App. No. 83240, SUBJECT RULE |
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State
ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., SUBJECT RULE |
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State
ex rel. Pinson v. Indus. Comm., SUBJECT RULE |
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State ex rel. Parsec, Inc., 155 Ohio App.3d 303 (2003) SUBJECT RULE |
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