April 3, 2006
The Latest Updates in Workers’ Compensation Law: What You Should Know

By: David E. Gray II and Donald E. Lampert

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:

• wage loss is limited to a total of 226 weeks;
• working wage loss (200 weeks maximum) is reduced by the number of weeks of living maintenance wage loss while in rehabilitation;
• non-working wage loss (52 weeks maximum) - any weeks in excess of 26 weeks are deducted from the working wage loss total (creating the 226 week maximum); and
• PPD waiting period was reduced to 26 weeks.

Permanent Total Disability also received an overhaul. Under the new law, “loss of use” of one limb will not constitute the loss of two body parts for the statutory Permanent Total Disability purposes.  Impairment must prevent sustained remunerative employment using the employment skills the injured worker has or may reasonably be expected to develop. Furthermore, permanent total is prohibited when any of the following apply, either individually or in combination:

• impairment not resulting from an allowed injury or disease;
• age;
• retirement or abandonment of the workforce unrelated to injury or occupational disease; and
• failure to pursue educational or rehabilitative efforts to enhance employability unless such efforts are determined to be in vain.

The threshold limit for a medical only claim for state fund employers was raised to $5,000.  Likewise, injured workers may now file state fund settlements without employers’ signatures under the following circumstances:

• employer no longer does business in Ohio;
• no longer employed by employer and claim is out of employer’s experience; and
• employer has not complied with premium payment laws.         

Continuing jurisdiction was limited to five years. The definition of “injury” also was clarified further when a psychiatric condition is at issue Specifically, a contemporaneous injury or occupational disease must have been sustained by the injured worker, except when a psychiatric condition arises from forced sexual conduct with threat of physical harm. Aggravation of pre-existing condition now must be substantial and must be substantiated by objective diagnostic findings, clinical findings, or test results. Once a substantially aggravated condition returns to a level that would have existed without the injury/substantial aggravation no further benefits are payable.

Where the employer has filed an appeal, pursuant to ORC 4123.512, the injured worker-plaintiff cannot dismiss the complaint without the employer’s consent. Also, an injured worker’s claim file is not public record under the public records law. Attorney fees for injured worker-plaintiff counsel were raised to $4,200.00. The BWC special investigation department is a criminal justice agency.  Lastly, Ohio’s minimum wage was increased to $5.15/hour. 

THE UNAUTHORIZED PRACTICE OF LAW: THE SAGA CONTINUES

In Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St. 3d 168 (2004), the Ohio Supreme Court had ordered remand back to the Supreme Court of Ohio Board on the Unauthorized Practice of Law. The purpose of the remand was to determine whether there had been conduct prohibited by Ohio Industrial Commission Resolution No. R04-1-01 by CompManagement and its various co-respondents. On January 24, 2006 the amended final report on remand was filed. Further Ohio Supreme Court action will take place over the course of the next several months. 

The following conduct was found to constitute the unauthorized practice of law:

• negotiation and involvement with settling claims;
• witness examination including direct, indirect and cross examination of a witnesses during hearings;
• presentation of employer concerns, arguments, summations of evidence, conclusions regarding the import of factual information and/or closing statements on behalf of employers during hearings; and
• recommendations and advice to employers as to taking appeals and other legal action. 

However, the following conduct was not considered the unauthorized practice of law:

• preparation, signing and filing of documents in handling claims before the Industrial Commission on behalf of employers; and
• evaluation, advice or recommendation concerning whether an employer should retain an attorney to handle a claim before the Industrial Commission.

RECENT REPORTED CASES

Refusal of improperly formulated light duty job offer did not bar temporary total disability compensation.

State ex rel. Ganu v. Willow Brook Christian Communities, 108 Ohio St.3d 296 (2006).

Ganu had been hurt, requested temporary total, and was paid wage continuation. The employer’s independent medical examination found Ganu could perform light duty but disputed the allowed conditions. The Industrial Commission found refusal of the light duty job barred temporary total.  Ohio Supreme Court affirmed Court of Appeals reversal of Industrial Commission. The doctor’s report, which did not consider all allowed conditions, could not be considered for temporary total eligibility. Therefore it could not support a light duty offer on which eligibility for such compensation might hinge.

Claim suspension for failure to appear for independent medical examination did not bar retroactive award of benefits once suspension was lifted.

State ex rel. Apcompower, Inc. v. Indus. Comm., 108 Ohio St.3d 196 (2006).

Injured worker on temporary total failed to appear for employer’s independent medical examination resulting in suspension of claim. Injured worker then appeared resulting in suspension being lifted.  Employer’s doctor found maximum medical improvement and hearings were scheduled on extent of disability. Injured worker prevailed and temporary total encompassing the period of claim suspension was ordered. Ohio Supreme Court affirmed Court of Appeals remand to the Industrial Commission on evidentiary issues. Employer’s argument that compensation was barred for period of suspension was rejected.

Contemporaneous physical injury or occupational disease required for compensability of job related psychiatric or psychological condition.

McCrone v. Bank One Corp., 107 Ohio St.3d 272 (2005).

On December 28, 2005, the Supreme Court of Ohio upheld the validity of ORC § 4123.01(C) (1), which specifically excludes psychiatric conditions from the definition of compensable injuries, except when a psychiatric condition arises from a job-related physical injury or occupational disease. The injured worker had been a bank teller robbed on two occasions without physical injury. The second robbery had resulted in a psychiatric condition.

Firing for falsification of previous employment history held not to be voluntary abandonment of job where there is no “intent to deceive.”

State ex rel. Nick Stimbu, Inc. v. Indus. Comm., 106 Ohio St.3d 173 (2005).

The employer claimed that the injured worker should be prohibited from receiving temporary total compensation under State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995), because he omitted a former employer from his employment application. Due to the omission the injured worker was terminated for falsifying his application. The employer alleged that the omission was deliberate but the injured worker claimed it was an oversight. The Supreme Court held in favor of the injured worker, stating that in order for a firing for an omission on an employment application to constitute a voluntary abandonment, the omission must be “deliberate and motivated by an intent to deceive.”

Conditions not ruled upon by the ICO cannot be appealed to court.

Ward v. Kroger Co., 106 Ohio St.3d 35 (2005).

A worker suffered an injury while employed by a self-insured employer. The claim was allowed in part by the Industrial Commission. The injured worker appealed to common pleas court pursuant to ORC § 4123.512 and sought to add additional conditions to his appeal that were not adjudicated at the Industrial Commission. The Supreme Court held that an injured worker could only appeal into court those conditions that were addressed in the administrative order from which the appeal was taken. Here, the injured worker was not entitled to proceed on his amended complaint, which added new conditions.

When does “work” bar compensation?

State ex rel. Sherry v. Indus. Comm., 198 Ohio St.3d 122 (2006).

An injured worker was simultaneously receiving temporary total compensation from an on-the-job injury as a warehouseman and running a home repair business. Bureau of Workers’ Compensation sought a fraud finding. Industrial Commission refused, concluding that the home repair business was not profitable and without “earning” there was no “working.” Ohio Supreme Court declared the Industrial Commission had committed a legal error because compensation for labor rather than profitability is the correct standard, so temporary total was terminated.

State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St.3d 20 (2002).

Injured worker with lawn care business was on temporary total due to a neck injury while working at Ford as a laborer. The injured worker admitted to signing checks for landscaping workers and fueling and driving riding lawnmowers onto a truck. Ford’s surveillance showed the injured worker not performing any landscaping tasks (which would have been inconsistent with his physical restrictions). Ohio Supreme Court found injured worker’s activities did not preclude temporary total because they were truly minimal and only indirectly related to generating income.

RECENT UNREPORTED CASES

Temporary Total: “Former Position of Employment.”

State ex rel. Meade v. Indus. Comm., 2005-Ohio-6206. 

Injured worker and his wife owned “Ron’s Pizza” of which he was president and statutory agent.  While receiving temporary total the injured worker took orders, made food, and delivered pizzas.  Court of Appeals found temporary total overpaid rejecting the injured worker’s argument that he was not paid for his activities. The tasks he performed were directly related to generating income for the business and distinguishable from more passive supervisory activities as in Ford.

State ex rel. Honda of America Mfg. v. Indus. Comm., 2005-Ohio-4672. 

Injured worker receiving temporary total owned a retail scrap book store. She opened her store, used the cash register, and assisted customers. Honda’s motion for overpayment and declaration of fraud was refused by Industrial Commission. Court of Appeals Magistrate found no fraud but an overpayment should have been declared. Split Court of Appeals found overpayment inappropriate based on Ford.

Permanent Total: “Sustained Remunerative Employment.”

State ex rel. Bentley v. Indus. Comm., 2005-Ohio-6755. 

Injured worker was awarded permanent total in December, 2002 retroactive to July, 2002. During the retroactive period he was paid for driving a public school van for two 30 minute periods five days a week. Industrial Commission grant of fraud motion reversed by Court of Appeals. Based on the medical evidence, the injured worker would not have been able to drive for hire full time. This was the kind of work a retiree would perform just to get out of the house rather than to make money.

State ex rel. Settler v. Mid Atlantic Canners Assoc. Inc., 2005-Ohio-5646. 

Permanently and totally disabled injured worker would spend four to five hours a day at a car dealership occasionally answering phones, delivering messages, and driving the dealership’s car.  Industrial Commission found fraud because the use of the car was “remuneration” even though the injured worker was not being paid. Court of Appeals reinstated permanent total disability because the injured worker’s activities were not sustained remunerative employment.