December 1, 2005
Permanent Total Disability
Not all conditions need to be permanent

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.

An SHO denied the PTD Application. He interpreted the rule to require all of the allowed conditions to be permanent and work-prohibitive before PTD benefits could even be considered.

Before the Court of Appeals, claimant argued that a physical PTD finding, by itself, was enough for him to be awarded the requested benefits regardless of whether the psychological condition had the potential to improve. The Court agreed. His physical condition was both permanent and work-prohibitive, according to the medical reports that were filed. Whether claimant’s psychological impairment was MMI, under those circumstances, mattered not. Accordingly, the PTD Application was returned to the Industrial Commission for a new determination of whether the permanent physical conditions alone were sufficient to prohibit the claimant from performing sustained remunerative employment.

Court Appeals: Issue to be Decided

Ward v. Kroger Co. (2005), 106 Ohio St.3d 35, 2005-Ohio-3560.

The Ohio Supreme Court finally laid to rest a decades long controversy as to what conditions are the proper subject of a court appeal to common pleas court.

Ward injured his knee at work. His workers’ compensation claim was allowed for a knee sprain but not for chondromalacia and a medial meniscus tear. He appealed the final IC Order under RC §4123.512 to the common pleas court.

Before trial, the judge allowed plaintiff to add aggravations of pre-existing joint disease and osteoarthritis to the claim even though they were never presented to the Industrial Commission. A jury verdict in Ward’s favor added the aggravation conditions to the claim.

Both the Court of Appeals and the Supreme Court found that it was improper to allow these new conditions to be considered by the jury when they were not first presented to the Industrial Commission. Unquestionably this now former practice in some Ohio courts of permitting new conditions on appeal, effectively defeated the Workers’ Compensation Act’s administrative process as the initial arbiter of allowance issues. All additional conditions must now be pursued before the IC before they can be the subject of a Common Pleas Court case.

Wage Loss Compensation
Failure to perform a job search not fatal

State ex rel. Bishop v. Indus. Comm, Franklin App. No. 04AP-747, 2005-Ohio-4548.

After reaching maximum medical improvement (MMI) for an injury that prevented a return to his former position of employment, Bishop began selling cars for Nelson Auto. He applied for working wage loss (WWL) compensation for the difference between his current earnings and pre-injury wages. Seeking to improve his earnings, he went to work for another auto dealer. After a stint there, he returned to work for the original dealership. His earnings continued to improve and his income eventually increased beyond WWL eligibility

Industrial Commission rules require an ongoing, good-faith job search for comparably paying work to pre-injury earnings. For the claimed WWL period, the employer contested the employee’s application for lack of the required ongoing job search. Ohio courts have more recently excused a job search in some circumstances. The Commission held that it was required here and denied benefits.

The broad analysis in the Court’s opinion primarily focused on whether the employee’s lower-paying positions were voluntary, i.e., a lifestyle choice, and in lieu of a search for better paying employment the wage loss rule requires. The Court, in the end, found no evidence the employee voluntarily chose lower-paying work or was grossly underemployed. The Industrial Commission’s denial was reversed. Claimant was awarded WWL for the period in question.

Key to the outcome were these facts: the employee worked more than 40 hours per week, took advantage of any opportunity to improve his skills, attempted to increase his earnings by changing jobs, and eventually eliminated his wage loss – the very essence of why a good-faith job search is required.

Observation: Courts are more and more looking beyond a strict application of the wage loss rule; this is but one recent example.

Safety Violation: Lockout/Tag Out

State ex rel. Blair v. Indus. Comm, Franklin App. No. 04AP-1134, 2005-Ohio-4351.

Blair was injured while refilling the reservoir of a machine that had not been shut down beforehand. Seeking to charge the employer with a safety violation, she argued that a running/idling machine was still subject to the tag out requirement so the operator would not run the machine while it was being cleaned, adjusted or repaired.

Citing to strict interpretation principles governing alleged safety violations, the Court held that the tag out rule only applies when machines are “shut down” or required to be shut down in the first instance. Here, the applicable safety rule did not mandate that the subject machine be shut down during the procedure claimant was performing. So the employer violated no safety rule by failing to furnish the claimant with a warning tag to place on the machine controls before she began her work.

Because safety violations are penalties provided for under the Ohio Constitution and the Workers’ Compensation Act, they will be found only where the rule plainly apprises the employer of its legal obligations.

Permanent Total Disability
Loss of leg and foot mandates statutory PTD, despite ability to work, under R.C. §4123.58(C).

State ex rel. International Paper v. Trucinski, 106 Ohio St.3d 203, 2005-Ohio-4557.

Employee Trucinski was injured in a chemical explosion at work for International Paper, resulting in an above-the-knee amputation. He was eventually fitted for a prosthesis and returned to other employment. He was awarded scheduled loss compensation under R.C. §4123.57(B) for the total loss of the left leg. He later applied for and was granted statutory permanent total disability (PTD) compensation under R.C. §4123.58(C) for the same total loss of the left lower extremity.

Statutory PTD is established by “the loss or loss of use of both hands or both arms, both feet or both legs, or both eyes, or of any two thereof. Prior case law decided that the hand and arm are distinct body parts for purposes of statutory PTD, i.e., the loss of an entire single extremity can equate to the loss of two body parts and statutory PTD. The employer cogently argued this prior case law defied common sense and should be overruled.

The Ohio Supreme Court, however, was unconvinced that the prior cases were incorrectly decided. It disagreed with the employer’s contention that, because Trucinski was not literally totally disabled, a windfall was created, because statutory PTD was designed by the legislature to award compensation irrespective of a claimant’s inability to work or even actual employment. It further held that whether the total loss was of an arm or leg was a meaningless distinction that made no legal difference.

Temporary Total Disability/Wrongful Discharge
Termination of employment – Coolidge update.

Brooks v. Qualchoice, Inc., Cuyahoga App. No. 85692, 2005-Ohio-5136, citing, Coolidge v. Riverdale Local School District, 100 Ohio St.3d 141, 2003-Ohio-5357.

In 2003, the Ohio Supreme Court issues a groundbreaking decision in Coolidge v. Riverdale Local School District. The Court then held that an employee who was injured on the job and receiving temporary total disability (TTD) benefits could not be terminated even under a neutral leave of absence policy. This ruling was a major departure from past decisions. It has sent shock waves through the Ohio employer community that are still reverberating two years later.

The Cuyahoga County Court of Appeals recently applied the 2003 Ohio Supreme Court case of Coolidge holding in a wrongful discharge case to affirm judgment for an employer. Brooks was terminated when she was unable to return to work following a leave of absence apparently related to the allowed conditions in a workers’ compensation claim. She had taken a previous medical disability leave, for which she received TTD. But importantly, she did not apply for TTD for her later absences, all which occurred within six or seven months of the injury. The reviewing court strictly applied Coolidge and determined that, because the employee was not receiving TTD, her termination was not in violation of the Ohio Workers’ Compensation Act.

Significantly, the appeals court refused to extend the Coolidge rule to a case where the employer was arguably aware that the employee’s absence was or could be related to her workers’ compensation injury and that she was potentially eligible for TTD even though she had not applied for it. Brooks argued that Coolidge at least suggested if the employer knew the reasons for the absence, then it might not escape liability for discharging an employee who had failed to complete the required forms.

How the Supreme Court would view the facts of the case is unknown. An appeal to the high court is expected. Watch for updates on this particular case and the Coolidge decision in future issues.

Course and Scope
Injury while cleaning snow off employer’s vehicle in employee’s driveway held compensable.

Tressler v. Specialty Transportation Services, Inc., Lucas App. No. L-04-1301, 2005 Ohio-4866.

Tressler worked as a van driver, transporting special needs children to and from school. Each morning she first went to the employer’s garage to pick up her assigned van. She would then drive it home to wait for the starting time of her route. The employer was aware of and did not object to employee’s practice of taking company vehicles home during “down time.” On the injury date, while waiting to start her route, it snowed. While brushing snow off the van to begin her route, she slipped and injured herself.

The employer argued that, because she was at home before actually beginning her route, her injuries did not occur in the course and scope of her employment. The issue was whether the “coming and going rule” applied to defeat the claim. It prohibits compensation for injuries sustained while an employee is traveling to or from a fixed place of employment.

In this case, the employee was not assigned to a fixed location for her entire shift. The nature of her position required her to be mobile, at varying locations throughout the work day. The “coming and going rule” did not apply. The injury was in the course and scope of employment because Tressler had to clear the snow off the van in order to safely begin her route. The activity of clearing snow was, therefore, entirely and directly connected to her job and the employer’s business. The injury, as a result, was covered by workers’ compensation.