TAKE ACTION: Protect Workers Compensation for Undocumented Workers

The Ohio House recently passed, and the Ohio Senate is now considering legislation that would deny workers compensation benefits to undocumented workers who are seriously injured on the job.  The bill would also limit undocumented workers access to the courts for injuries suffered on the job. This bill is bad for all Ohio workers, and will work against those employers who comply with the law. If this bill passes, it will reduce the incentive for companies to provide safe conditions for its workers—and serious injuries among Ohio workers in the most dangerous industries will increase.

Review Does Not Mean Reweigh

Recently, in State ex rel. Turner Constr. Co. v. Indus. Comm., 142 Ohio St.3d 310, 2015-Ohio-1202, an employer requested a writ of mandamus that would compel the Industrial Commission to vacate an order of permanent-total disability compensation to a former employee.
In this case, the employee had several previous workers’ compensation claims, but only a claim from 2007 had allowed psychological conditions. In 2011, the employee applied for permanent-total disability compensation based off the psychological condition alone. This request was supported by medical, and approved by the Industrial Condition.
The employer filed a complaint for a writ of mandamus, but this was denied, as the Court of Appeals concluded that there was not an abuse of discretion. The employer appealed, and requested mandamus to determine whether the entire award should be granted under the 2007 claim, or spread amongst other claims. The court denied this mandamus request, because it is not the role of a reviewing court to assess the credibility of the evidence. State ex rel. Pass v. C.S.T. Extraction Co.. 74 Ohio St.3d 373, 376, 658 N.E.2d 1055 (1996).
Thus, so long as the commission’s order is supported by some evidence, there is no abuse of discretion and a court must uphold its decision. Id. Because the commission based its decision to approve the permanent total disability application based off the medical relating to the psychological condition, which was only allowed in the 2007 claim, the Court determined that the employer was not entitled to the extraordinary relief in mandamus.
Source:
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-1202.pdf

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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
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Temporary Total Disability & Voluntary Abandonment

Recently, the 10th Appellate District of the Court of Appeals of Ohio released a favorable decision for an injured worker who was determined to reach Maximum Medical Improvement (“MMI”) for his physical conditions, but not his allowed psychological conditions. In Cummins v. Lee, 2014-Ohio-5296 (2014), an employee was shot in the back during an attempted robbery while in the course of his employment. The employee suffered very serious physical and psychological problems as a result of the incident.

In this case, the physical conditions were determined to be “MMI” on January 25th 2009. However, on October 29th 2009, the employee’s workers’ compensation claim was allowed for post-traumatic stress disorder (“PTSD”), and he filed for Temporary Total Disability Compensation (“TTD”) which was granted. A significant gap in treatment followed, until the employee attempted to reinitiate treatment for his PTSD years later with his doctor.

Upon reinitiating treatment, the employee filed for TTD and was denied due to the lack of treatment, and alleged voluntary abandonment of his job. The employer argued that because he never returned to the workforce after February 27th 2010, the employee had voluntarily abandoned his position (the employer cited to Eckerly v. Indus. Comm., 105 Ohio St.3d 428 (2005)). However, the Court of Appeals determined that Eckerly did not apply, as the employee’s industrial injury had removed him from his job, as opposed to his own voluntary abandonment. As such, the Court issued a writ of mandamus ordering the commission to vacate its order, which denied the employee TTD and to re-determine whether or not relator is entitled to an award of TTD.

Thus, it is important to contact an attorney, should you have questions about temporary total disability compensation, voluntary abandonment, or any other issues regarding workers’ compensation. For more information, please see the Court of Appeals decision cited below.

Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-5296.pdf
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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.

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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 

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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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Workers’ Compensation: Quicker Access to Prescriptions Coming Soon

Recently, the Ohio Bureau of Workers’ Compensation adopted a new rule that is meant to help injured workers access medications needed to treat their injuries faster than before. The new rule allows injured workers to get their prescriptions filled while their claim is being processed. This new rule is especially important to those workers’ who do not have access to health insurance, and can not pay for their medication while waiting for their claim to be approved.

So, who pays for the medications if your claim is denied? In cases where the prescription is filled, but the claim is denied, the cost of the medication will be charged to the Ohio Bureau of Workers’ Compensation, and not the employer. “This new rule is significant for injured workers in Ohio, especially those who do not have health insurance or are otherwise unable to foot the bill while awaiting claim approval,” said BWC Administrator/CEO Steve Buehrer in a statement. This rule is expected to become effective on February 1, 2015.

For more information, please see the following sources:
http://www.dispatch.com/content/blogs/the-bottom-line/2014/11/new-rule-meant-to-treat-injured-workers-faster.html
http://www.limaohio.com/news/business-news/50632622/Yazels-Flowers-set-to-move
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