Legal Update | May 2006

June 5, 2006
Workers’ Compensation Case Law Update

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. Dixon appealed the denial of living-maintenance compensation to the Court of Appeals. The court denied the request and Dixon appealed to the Supreme Court. The Supreme Court affirmed the prior decision. The Court found the approval of the living-maintenance was conditioned upon Dixon entering an approved vocational rehabilitation plan. Dixon did not choose a course of action within the recommended plan and, therefore, was not entitled to living-maintenance compensation.

2. State, ex rel. Danstar Builders, Inc. v. Indus. Comm., 108 Ohio St. 3d 315, 2006-Ohio-1060 (March 22, 2006).

Claimant was killed as a result of slipping on ice and falling off of the roof upon which he was working. There were no safety belts, lines, harnesses, lanyards, or catch platforms in place on the roof. A VSSR claim was filed on behalf of claimant’s dependents. The dependents alleged violations of two VSSR provisions. The employer argued that it had provided wood to construct slide guards in compliance with OSHA regulations, and therefore no safety violation occurred. The hearing officer concluded that compliance with OSHA was irrelevant to compliance with the Ohio Administrative Code. The hearing officer concluded that a safety violation had occurred and assessed a penalty for VSSR against the employer. The employer petitioned the Court of Appeals for a writ of mandamus ordering the commission to vacate its order and deny the award. The Court of Appeals confirmed the Commission’s order and denied the writ. The employer appealed to the Supreme Court. The Supreme Court affirmed the award. The employer argued that it had complied with safety requirements by providing slide guards and that the Claimant was unilaterally negligent, thus, a VSSR could not be awarded. The Supreme Court rejected both arguments. First, slide guards do not comply with the administrative code safety requirements. Second, unilateral negligence bars a VSSR when the employer has complied with the safety requirements and the employee has circumvented or disabled the safety devices, neither of which occurred in this case.

3. State, ex rel. United Auto Aero. & Agric. Implement Workers of Am. v. Ohio Bureau of Workers’ Comp., 108 Ohio St. 3d 432, 2006-Ohio-1327 (April 5, 2006).

Employee Union, UAW, filed a complaint in the Court of Appeals for Franklin County against the BWC. UAW alleged that R.C. 4123.931 as amended by S.B. 227 contained provisions substantially identical to former R.C. 4123.931 that was found unconstitutional in Holeton v. Crouse Cartage Co. (2001), 92 Ohio St. 3d 115. UAW requested a writ of mandamus to compel BWC to follow the law as set forth in Holeton and Glaspell v. Ohio Edison Co. (1987), 29 Ohio St. 3d 44. BWC moved to dismiss UAW’s complaint, because UAW lacked standing, and the court of appeals did not have jurisdiction to grant declaratory and injunctive relief. The court of appeals dismissed the complaint. UAW appealed, and BWC cross-appealed. The Supreme Court accepted the appeal, but denied the parties’ requests for oral argument. The Supreme Court held that the court of appeals did not err in dismissing UAW’s claims, as a writ of mandamus is an extraordinary relief. Furthermore, BWC had not disregarded the holdings of Holeton or Glaspell, and the writ of mandamus would only serve to compel the BWC to observe the law in the future. Compelling the future observance of laws is not a basis upon which to issue a writ of mandamus. The Supreme Court held, additionally, it lacked jurisdiction to consider the merits of the mandamus action. The court applied the general rule that a mandamus action challenging the constitutionality of statutory provisions is precluded. Furthermore, no exception to the general rule is applicable. Therefore, in accordance with the general rule, the Supreme Court lacked original jurisdiction over the mandamus claims. The Court also held that UAW had adequate remedy at law, which precluded entitlement to the writ. A constitutional challenge to legislation could be raised in an action in a common pleas court. Generally, the Supreme Court affirmed the decision of the Court of Appeals and dismissed the claim for mandamus.

4. Palmer Bros. Concrete, Inc. v. Indus. Comm., 2006-Ohio-1659 (3rd Dist. Ct. App. Seneca County April 3, 2006).

Employee died from an injury he sustained during his employment with Palmer Bros. Employee’s surviving spouse filed a claim with the BWC for death benefits, a civil suit against Palmer Bros., and an application with the Industrial Commission for a VSSR award. Employee’s surviving spouse subsequently entered into a release of all claims with Palmer Bros. The Industrial Commission determined that the release barred the VSSR application and dismissed it, but some time later discovered that dismissal was in error. Palmer Bros. filed a complaint seeking a preliminary and permanent injunction to stop reinstatement of the VSSR application, a declaratory judgment that the release precluded the same, and attorney fees and costs. Palmer Bros. filed a motion for judgment on the pleadings. The court granted the motion in favor of Palmer Bros. based solely on the release signed by employee’s surviving spouse. The Industrial Commission appealed. The appellate court determined that it did not have jurisdiction to review the order of the trial court, because the entry granting summary judgment was not a final appealable order. An entry granting summary judgment only becomes final and appealable when it declares the parties’ respective rights and obligations. In this case, the trial court left unresolved Palmer Bros. requests for injunctive relief and attorney fees.

5. State, ex rel. Dobbins v. Indus. Comm., 109 Ohio St. 3d 235, 2006-Ohio-2286 (May 24, 2006).

In 1997 Dobbins was examined by Drs. Ward and Weaver after he applied for an increase in his permanent partial disability. Dr. Ward found a 39 percent permanent partial impairment and Dr. Weaver found an 18 percent permanent partial impairment. The Industrial Commission of Ohio increased Dobbins’s permanent partial disability to 34 percent, and the order became final. In 2003 Dobbins moved for another increase in permanent partial disability. Dobbins submitted the report of Dr. Lundeen, who stated that Dobbins had a 48 percent permanent partial impairment. Dr. Weinerman performed a medical-file review for the BWC. He considered the reports of Drs. Ward, Weaver, and Lundeen and assessed a 29 percent permanent partial impairment. The Industrial Commission, based on Dr. Weinerman’s report, found that permanent partial disability had not increased and denied Dobbins’s application. Dobbins filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion in relying on Dr. Weinerman’s report. The court denied the writ, and Dobbins appealed to the Supreme Court. The Supreme Court affirmed the decision of the Court of Appeals for four reasons. First, Dr. Weinerman, as a nonexamining physician, was required to consider and accept the factual findings, as of the time of the examinations, of all the examiners who preceded him. Second, comparison of Dobbins’s 2003 symptomatology with that in 1997 is an indicator of how much Dobbins’s condition changed in six years; in this case there was minimal change. Third, Dobbins’s proposition that Dr. Weinerman must have found a corresponding increase in impairment if he found a decreased range of lumbar motion since 1997 is unsupported legally and medically. Fourth, the Industrial Commission has the exclusive authority to determine disputed facts and weight of the evidence; thus, the commission can choose to weigh Dr. Weinerman’s report more heavily than Dr. Lundeen’s.

6. State, ex rel. Avalon Precision Casting Co. v. Indus. Comm. 109 Ohio St. 3d 237, 2006-Ohio-2287 (May 24, 2006).

Edwards filed a claim for benefits in 2001. The BWC reviewed the claim and determined Edwards was entitled to benefits for workplace injuries to his right knee and leg. In 2003 Edwards’s treating physician recommended that Edwards undergo a MRI procedure on his right knee. The BWC authorized the MRI. Edwards’s employer challenged the BWC authorization of the MRI, exhausting all administrative appeals. The employer subsequently filed a petition for writ of mandamus in the Court of Appeals, alleging that the BWC and the Industrial Commission had improperly authorized the MRI. In a separate filing the employer also asked the commission to vacate the BWC’s underlying determination awarding benefits to Edwards for the injuries in 2001. The Industrial Commission filed a motion for summary judgment in the mandamus action, and the Court of Appeals granted the summary judgment in the commission’s favor. The employer appealed to the Supreme Court. The Supreme Court affirmed the appellate court. The employer argued that the motion for summary judgment was untimely and should not have been accepted by the Court of Appeals. The Supreme Court finds that absent an abuse of discretion, a lower court’s decision to accept an untimely motion will not be reversed on appeal. No abuse of discretion was found in this case, and the acceptance of the motion could not be reversed. The employer asked the Supreme Court to consider the merits of the mandamus complaint. The Court dismissed the complaint on the merits. If the Court finds some evidence in the record supporting the commission’s decision, the commission will not be deemed to have abused its discretion and no writ of mandamus to correct the decision will be issued. The court does not find that the commission abused its discretion, as there is some evidence in the record to support the commission’s decision. The Court declined to overturn the BWC’s authorization of the MRI.

7. State, ex rel. Erieview metal Treating Co. v. Indus. Comm. 109 Ohio St. 3d 147, 2006-Ohio-2036 (May 10, 2006).

Employee worked for Erieview from the 1970’s to the 1980’s and was exposed to chemical and paint fumes in the course of his employment. In 1986 employee was diagnosed with occupational asthma and a claim was allowed for that condition. In 1997 employee began work with Meijer, Inc. where he was exposed to flour dust. A claim was allowed against Meijer for aggravation of pre-existing occupational asthma. In 2003 employee moved the Industrial Commission for compensation for permanent total disability. The commission granted the motion and assessed the entire award against Erieview. Erieview filed a complaint in mandamus in the Court of Appeals alleging that the commission had abused its discretion in assessing the cost of the claim to Erieview and not Meijer. The Court of appeals disagreed and denied the writ. Erieview appealed to the Supreme Court. The Supreme Court affirmed the Court of Appeals. The issue before the Supreme Court was whether the evidence was sufficient to support the commission’s order. Erieview relied upon the last injurious exposure theory. This theory is applied before the allowance of a claim in situations involving several potentially liable employers. This case does not involve the initial allowance of a workers’ compensation claim. In this case it is possible to determine with some degree of accuracy which exposure was responsible for employee’s disability. The Supreme Court declines to apply the last injurious exposure theory. Furthermore, the occupational disease had been causally related to Erieview, and therefore it was not an abuse of discretion for the Industrial Commission to find that continued disability was attributable to Erieview. Erieview then tries to rely upon State, ex rel. Swigart v. Chrysler Corp. (1982), 8 Ohio App. 3d 84, 455 N.E.2d 1349, which states that when permanent and total disability results from an industrial injury aggravating a preexisting condition for which a claim has been previously allowed, the permanent and total disability should be allocated entirely to the second claim in the absence of evidence supporting allocation to the earlier claim. The Court denied reliance upon Swigart, because there was evidence supporting the allocation of the disability to Erieview. The Court found that the commission did not abuse its discretion in assessing the entire award to Erieview.