MONTGOMERY COUNTY, OHIO

Workers’ Compensation Update

February 24, 2010

Gary W. AumanDunlevey, Mahan & Furry

110 N. Main St., Ste. 1000Dayton OH 45402

937-223-6003

1913 Ohio State Constitution

Article II, Section 35 - 11/26/1923 Why Workers’ Compensation Exclusive Remedy

Injury 4123.01

In course of employment

Arising out of employment

Gradual onset

Whether caused by external accidental means or

Accidental in character or result

Exceptions

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

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

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.

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

Employee must prove that safety standard applies to job

That the standard was violated That the violation was the proximate cause of

the injury

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.

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

Construction Safety Requirements

Ohio Administrative Code § 4121:1-3

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

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

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

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

TREATMENT ISSUE

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.

Claimant appealed.Supr. Court ruled that R.C. § 4123.54 gives

claimant right to treatment, but not to dictate terms of treatment.

State ex rel. Tracy v. I/C, (2009) 121 Ohio St. 3d 477

Employer injured left shoulder and neck in 2004.

Late 2005 – MMIFebruary 2006 reinjured neck pushing back

with neck against head rest of car.POR all problems stemmed from 2004 injury.Employee filed for TTD.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

§ 4123.56(A) – TTD test.1. Return to Work2. 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.

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.

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.

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.

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.

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.

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.

OSHA

Recordkeeping NEP• Effective 9/30/09 until 10/1/10.• Academic studies reference inaccurate

recordkeeping in poultry and meat industries.

• Under recorded and incorrectly recorded.• Written access order from Asst. Sec. of Labor

under recommendations of OSHA Medical Records Officer.

SUMMIT CONTRACTORS

OSHRC – Struck down multi-employer policy in 2008.

Eighth Circuit – Reversed OSHRC and sent case back to them 4/2009.

OSHRC – Adopted Eighth Circuit decision 7/27/09

Contract language may be important

Presence of general contractor on site may be important

Understand your responsibility to the employees of others on job site under your contract.

May be able to limit exposure through contract language.

OSHA FIELD OPERATIONS MANUAL (FOM)

New manual effective 3/26/09.

Some significant changes.

State OSHA citation may NOT any longer be used as the basis for a federal repeat. (Caution)

But, it may be used to document employer knowledge to support a willful citation.

FOM (continued)

Employee complaint includes only present employees, not past employees.

Complaint by telephone is treated as a non-formal complaint until a signed copy of information is received.

FOM (continued)GENERAL DUTY CLAUSE

• Employer fails to keep workplace free from hazard;

• Hazard was recognized;• Causing or likely to cause death or serious

physical harm; and• Feasible and useful method available to

correct hazard.• Involved only cited employer’s employees.

FOM (continued)GENERAL DUTY CLAUSE (continued)

Recognition of hazard can be based on Employer recognition Industry recognition “Common sense” recognition

Employer recognition Statements made by employer, management, or

supervisory personnel during or before inspection E-mails

OSHA BUDGET PROPOSAL – FY 2010

$50.1 million over FY 2009 – 160 new CSHOs.

Emphasis on enforcement and new regs, less on VPP, alliances, and compliance assistance.

Increase in whistleblower and discrimination investigators.

PROTECTING AMERICA’S WORKERS ACT

Introduced in Senate on August 7, 2009

Sponsor – Ted Kennedy

Similar to legislation introduced in House on April 23, 2009

S.B. 1580

KEY COMPONENTS

• Increases whistleblower protection

• Redefines imminent danger refusal to work

• Employee has 180 days to file complaint• Remedy injunctive relief, reinstatement,

compensatory damages, civil penalties

• For reporting purposes a serious accident is one in which two (2) or more employees are hospitalized.

• Victims rights Any employee who sustains an injury that

is subject of OSHA investigation or family of deceased employee.

May – meet with A.D. regarding inspection

receive a copy of citation before citation is modified in the case of

a serious incident or death – appear before parties and make a statement.

• Employee rep may now file a notice within contest period that citation fails to properly designate violation as serious, willful, or repeated; that proposed penalty is not adequate or concerning abatement period.

• Affected employees may now challenge any settlement agreement and may have a hearing on challenge.

PENALTIES - CIVIL

Willful $8000 — $120,000Willful (death) $50,000 — $250,000Willful $25,000 — $250,000 (death <25 employees)

Serious $0 — $12,000Serious (death) $20,000 — $50,000Serious $10,000 — $50,000 (death <25 employees)

Other than serious — same as seriousFailure to Abate — up to $12,000/dayViolation of posting

requirement — $0 - $12,000

PENALTIES - CRIMINAL

Willful (death) -- fines as set out for civil penalties + imprisonment up to 10 yrs.

Willful (serious injury) – fines as set out for civil penalties + imprisonment up to 5 yrs.

Employer includes any responsible corporate officer

Advance notice of inspection – imprisonment up to 2 yrs.

False statements – imprisonment up to 5 yrs.

Serious bodily injury – injury involving substantial risk of death, protracted unconsciousness, protracted and obvious physical disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Questions or Comments