Retaliation and Workers’ Compensation

The Ohio Revised Code states that no employer shall discharge, demote, or take any punitive action against an employee because the employee filed a workers’ compensation claim. R.C. 4123.90. The elements of a retaliatory discharge require an employee to prove that (1) they were injured on the job; (2) the employee filed a claim for workers’ compensation benefits; and (3) that the employee was discharged in contravention of R.C. 4123.90. Once the employee establishes each of these elements, the burden shifts to the employer to articulate a legitimate and nondiscriminatory reason for terminating the employee.

In a recent case, the Court of Appeals of Ohio granted an employer’s Motion for Summary Judgment, because the employee was unable to sufficiently prove that the employer was aware that a workers’ compensation claim had been filed prior to the employee’s termination. In Dragmen v. Swagelok Co., 2014-Ohio-5345 (2014), the employee injured himself while failing to follow the employer’s standard safety procedures. As such, he was placed in a work safety program to stress the importance of following safety procedures, and warned that repeat or additional violations could constitute further discipline, including termination. Id. at ¶8. The employee also filed a workers’ compensation claim, but did not inform his supervisors, and instead filed the claim through the employer’s third party administrator.

Three weeks after being placed in the employee safety program, the employee had a disagreement with a co-worker, which resulted in the employee pulling a chair out from underneath his co-worker. Id. at ¶ 10. The employee was terminated, and he filed a suit alleging that he was fired in retaliation for filing a workers’ compensation claim. The employer filed a Motion for Summary Judgment, which was granted, because there was no evidence that the employee’s supervisors who made the decision to fire him were aware that the employee filed a workers’ compensation claim. Id. at 20.

Thus, “To be liable for retaliating against an employee for taking part in a protected activity, the employer must have knowledge of it.” Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261 at ¶22. Moreover, even though circumstantial evidence can establish knowledge, it is not enough for an employee to simply assert that their employer’s supervisors generally have knowledge of the charges filed by employees. Id. As such, an employee must prove that their employer knew of their workers’ compensation claim, and fired them as a result of it in order to have a valid retaliation claim.

Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-5345.pdf
 

How Does SSA Decide if I am Disabled?

Social Security follows a multi-step evaluation process. They will gather medical records from your doctors and obtain hospital records and test results. SSA may choose to have you examined by a doctor or psychologist. To determine if you meet the definition of disability, SSA will ask the following questions:

1) Are you working? If so, your claim will be denied. If not, proceed to next question.

2) Do you have an impairment or combination of impairments which significantly effects work related functions such as standing, walking, lifting, hearing, seeing, concentration, attention to task, attendance, and understanding instructions? SSA will also consider if your impairments have lasted or are expected to last for at least 12 months. If not, your claim will be denied. If yes, proceed to next question.

3) Is your condition so severe as to qualify for disability without further consideration? SSA has a list of impairments which are considered to be totally disabling. If your impairment meets all the elements of the listed impairment, you will be determined to be disabled. If not, proceed to next question.

4) Do your impairments restrict your work capacity so that you cannot return to any of your past relevant work? SSA considers your past relevant work to be all jobs you performed in the past 15 years. If you are found to be capable of returning to one or more of your past jobs, your claim will be denied. If SSA agrees you cannot return to your past work, proceed to next question.

5) Do your impairments restrict your work capacity so that you are unable to adjust to other work which exists in significant numbers in the national economy? SSA does not have to find you work or determine that you could be hired. SSA only determines whether you would be capable of performing and sustaining work if given the opportunity. In determining whether you are capable of other work, SSA will consider your age, education, past work performed, and acquired skills.

Traveling Fixed-Situs Employees?

Is an employee who travels to different job sites on a daily basis a fixed-situs employee subject to the “coming and going rule” for the purposes of determining whether he or she is entitled to workers’ compensation? If so, does the “special hazard exception” apply? Recently, in Palette v. Fowler Electric Co., 2014-Ohio-5376 (2014), the 11th Appellate District determined that they would be subject to the “coming and going rule” and the “special hazard exemption would not apply. Id.

A fixed-situs employee is one who commences his or her substantial employment duties only after arriving at a specific and identifiable workplace designated by his employer. Barber v. Buckey Masonry & Constr. Co., 146 Ohio App.3d 262, 269 (11th Dist. 2001). “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite casual connection between the injury does not exist.” MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66 (1991). This is referred to as the “coming and going” rule, and it is used to determine whether an injury suffered in an auto accident occurs in the course of and arising out of the employment relationship. Ruckman v. Cubby Drilling, Inc. 81 Ohio St.3d 117, 120, 689 N.E.2d 917 (1998).

In Palette, the employee worked as an electrician and was injured in an auto accident while driving a company car from his home, to a supply house, before going to the company office for a weekly meeting. Id. at ¶10. Here, the Court determined that because the employee did not commence his substantial employment duties until after arriving at a specific and identifiable work place, he was considered a fixed-situs employee. Palette at ¶30. Moreover, the Court determined that the “special hazard exception” to the “coming and going” rule did not apply, as his travel on the date of the accident did not create a risk that was distinctive or greater in nature than risks to the greater public. Ruckman, 81 Ohio St.3d 117 at paragraph two of the syllabus.

For more information on Palette and other cases, please see:  http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-5376.pdf.

The Social Security Disability Claims Process

Paul F. Woodrow

Filing for Social Security Disability (SSD) benefits involves a sometimes lengthy administrative process.  A claim is filed by contacting the Social Security Administration (SSA), which may be done online, over the telephone, or in person at your local SSA office.  The SSA representative will ask you for information about when you became disabled, your work history  and,  most importantly,  the medical and /or mental health conditions that prevent you from working.  It is very important that this information be complete and accurate, so that SSA can thoroughly evaluate your claim.  Once they have obtained this information, SSA will transfer your claim to the Bureau of Disability Determination, an agency of the state of Ohio, which will actually process your claim, using SSA’s rules and regulations for evaluating disability.

The state agency will contact your doctors and other medical providers, and gather all of the medical evidence pertaining to your disabling conditions.  They may send you to a doctor for an examination, at their expense, in order to get a better picture of your medical condition.  They may also contact you or your representative for additional information.  Once the state agency has gathered all the evidence, your claim will be reviewed by a state agency doctor, who will determine the severity of your medical conditions, how they may limit your ability to function in a work setting, and whether they meet the SSA definition of disability.  Your claim will then be returned to SSA, who will send you a written decision.  At the initial level, this process usually takes about six months.  If SSA finds you disabled, they will then process payment of your benefits.

If your claim is denied, you have the right to appeal.  This is called requesting a reconsideration.  At this level, SSA and the state agency will obtain updated medical evidence, review your claim again, and make a new decision.  This process usually takes three to six months.  If SSA finds you disabled at this level, they will notify you and process your benefits.

If your claim is denied at the reconsideration level, you have the right to request a hearing.  At the hearing level, you will have the opportunity to appear and testify at an informal hearing before an Administrative Law Judge.  Your representative will make sure all the evidence is up to date, and will present your claim to the Judge, making arguments on your behalf.  The Judge does not have to follow the earlier decisions which denied your claim, but will make a brand new decision after considering the medical evidence, your testimony, and the arguments of your representative.  Because of the large backlog of claims at the hearing level, it usually takes about nine to twelve months for a hearing to be scheduled.

When filing for disability benefits, it is very important to be in treatment for all of your medical and/or mental health conditions, so that they can be documented for your claim.  It is also vital that SSA be kept informed of any changes in your medical condition or treatment, so that they will have complete and accurate information when evaluating your claim.  Your attorney representative can help you make sure SSA has all the information they need at all stages of the claim, and can help present your claim in a way that will maximize your chance of success.

 

Scheduled Loss for Your Limbs

Losing the use of a body part, no matter how big or small can have a great impact on a person’s life. In order to compensate a claimant for such scheduled losses,  R.C. 4123.57(B) assigns specific values depending on the extent of the injury. For example, the loss of the third or distal phalange of any finger is considered equal to the loss of one-third of a finger, but the loss of the middle or second phalange of any finger is considered equal to the loss of two-thirds of the finger.

When the statute was originally written, amputation was the only compensable loss. State ex rel. Meissner v. Indus. Comm., 94 Ohio St. 3d 203, 205 N.E.2d 618 (2002). Later, the rule evolved to recognize the loss of use of a body part without amputation where an injury involved paraplegia. State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 10. Finally, in State ex rel. Alcoa Bldg. Prods. V. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, the court held that a claimant may qualify for loss of total use when the body part retains some residual function if the claimant can demonstrate a total loss of use for all practical purposes with medical evidence. Id.

Recently in State ex rel. Varney v. Indus. Comm. Slip Opinion  No. 2014-Ohio-5510, the Ohio Supreme Court denied an injured worker’s claim for total loss of use of three fingers, as 50% loss of use of the hand had previously been awarded. Moreover, a physician opined that there was some residual functional use of the fingers.  Thus, unless there is medical evidence that there has been a total loss for all practical purposes, the scheduled loss in R.C. 4123.57(B) will not apply.

More Information:

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-ohio-5510.pdf 

http://codes.ohio.gov/orc/4123.57 

Cost of Living Adjustment

The Social Security Administration recently announced that monthly Social Security and Supplemental Security Income (SSI) benefits will increase 1.7 percent in 2015. The 1.7 percent cost-of-living adjustment (COLA) will begin for Social Security Disability and Retirement beneficiaries in January 2015. Increased payments for SSI beneficiaries will begin on December 31, 2014. SSI beneficiaries will now receive $733.00 a month, increased from $721.00. The Social Security Act states that the annual COLA is linked to the increase in the Consumer Price Index as determined by the Department of Labor’s Bureau of Labor Statistics.

If you are currently receiving Social Security benefits, you may soon receive award notices in the mail that will show your monthly payment. If you have any questions regarding your new payment, please don’t hesitate to contact our office. If you are not yet receiving benefits, but are interested in what your monthly benefit amount may be, you can create an account at www.socialsecurity.gov/myaccount.

How do Workers’ Compensation Payments Affect My Disability Benefits?

Disability payment you receive from workers’ compensation and/or another public disability payment may reduce you and your family’s Social Security benefits.

Your Social Security disability benefit will be reduced so that the combined amount of the Social Security benefit you and your family receive plus your workers’ compensation payment and/or public disability payment does not exceed 80 percent of your average current earnings.

A workers’ compensation payment is one that is made to a worker because of a job-related injury or illness. It may be paid by federal or state workers’ compensation agencies, employers, or insurance companies on behalf of employers.

Public disability (PDB) payments that may affect your Social Security benefit are those paid under a federal, state, or local government law or plan. A PDB is not usually based on a work-related disability. They differ from workers’ compensation because the disability that the worker has may not be job-related. Examples are civil service disability benefits, military disability benefits, state temporary disability benefits, and state or local government retirement benefits which are based on disability.

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Right to Withdraw Consent to Settlement

Recently the Ohio Court of Appeals (9th District) determined that an injured worker was required to provide written notice to the employer, as well as administrator of workers’ compensation in order to withdraw consent to a settlement agreement. In Hart v. Ridge Tool Co. 2014-Ohio-5088 (2014), the employee filed two workers’ compensation claims seeking coverage for alleged conditions. Prior to the initial court date, the parties informed the court that they had reached a settlement agreement.

The parties informed the court of their intent to settle the case and the court entered judgment in both cases, without waiting the statutorily required 30 days before enforcing the settlement. Hart v. Ridge Tool Co., 9th Dist. Lorain No. 12CA010234, 2013-Ohio-1487, ¶ 7-8. The Court of Appeals determined that the trial court had prematurely entered judgment in violation of R.C. 4123.65, which provides that parties have 30 days after signing a written settlement agreement to withdraw from the consent, and the case was remanded. Id. After 30 days passed, the employer filed a motion to enforce the settlement agreement, and the trial court determined that the settlement agreement was final, and dismissed the case. Id. at 7.

The injured worker appealed, but the Court of Appeals held that the injured worker was required to provide written notice to the employer and workers’ compensation administrator to withdraw his consent. Therefore, by not putting his intent to withdraw consent in writing within 30 days, the trial court was well within its power to enforce the settlement agreement. Thus, it is crucial for you to be aware of the statutory rules when entering into a settlement agreement with your employer.

If you have any questions, you should immediately contact an attorney. For more information on the case, please reference the following site: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-5088.pdf
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What Income or Resources are Considered in Determining SSI Eligibility?

Income – any income received will affect the amount of SSI payable.  Income exceeding SSI federal benefit monthly rate will preclude entitlement.   Spouse and household income and living arrangements can affect the amount of SSI payable.  SSA uses a deeming chart to look at income from a spouse to a spouse, or from parents to their children.

Countable income includes:

• Wages, commissions, bonuses, severance pay

• Net earnings from self-employment

• Tax refunds

• In-kind support such as food, clothing or shelter

• Payment for services performed in sheltered workshop

• Pensions

• Alimony and support

• Dividends, interest and royalties

• Rents

• Gifts and inheritances

• Prizes and awards

Resources -generally may not exceed $2000 per individual or $3000 per eligible couple.

Countable resources include:

Funds held in financial institutions such as banks or credit unions

Cash or other liquid assets

Real or personal property owned or which could be converted to cash

Resources which usually do not preclude SSI entitlement include:

• Property right which cannot be liquidated

• Personal home and land if principal place of residence

• Household goods and personal effects valued at less than $2000

-Automobile if necessary for employment or modified for handicapped or necessary for medical treatment

• Property of trade or business essential to self-support

• Life insurance up to $1500 face value

• Disaster relief funds

• Burial spaces and funds up to $1500 for burial expenses

• Housing assistance

• Victims of crime compensation for period of nine months after receipt.

This list is not exhaustive.  For more detailed list, please contact the Social Security Administration or Barkan Meizlish.

What Happens in a Wage and Hour Investigation?

As we’ve previously discussed, the Department of Labor Wage and Hour Division (WHD) has stepped up its enforcement initiatives over the past few years to pursue civil money penalties, back wages, and liquidated damages when violations of the Fair Labor Standards Act (FLSA) are found.  Specifically, Section 11(a) of the FLSA authorizes the WHD to enter an employer’s premises to investigate the employer’s compliance with the Act’s requirements.  Most of these investigations begin after an employee submits a complaint.  But the WHD can also initiate investigations by strategically targeting certain industries (like the restaurant industry, for example) or by examining particular geographic areas.

Here are the main steps in an investigation:

1. INITIAL CONFERENCE. The investigator will first contact the employer to set up an initial conference to explain the review process, or they may just show up unannounced.

2. EXAMINE RECORDS. Next, the investigator will examine records to see if any exemptions apply.  This includes records relating to the employer’s involvement in interstate commerce, government contracts, and the dollar volume of an employer’s annual business transactions.  The investigator will then look for any miscalculations or inaccuracies by examining personnel time records and payroll records dating back at least two years.  If willful violations of the FLSA are reported, records for the past three years may be examined.

3. EMPLOYEE INTERVIEWS. The investigator will interview certain employees to verify their payroll records and inquire into the employer’s pay policies.

4. ENFORCEMENT ACTION. If violations are found, the investigator will meet with the employer to discuss corrective actions and request any back wages owed to the employees for minimum wage and overtime violations.

Source:  DOL Fact Sheet http://www.dol.gov/whd/regs/compliance/whdfs44.htm; BURKE COSTANZA & CARBERRY LLP, Department of Labor Investigations – Basis for an Employer, Jan. 31, 2013 http://www.bcclegal.com/labor-employment-blog/2013/1/31/department-of-labor-investigations-basics-for-an-employer. 

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