Ohio Workers’ Compensation and COVID-19 FAQ Infographic

We hope this infographic is helpful to you. Our COVID-19 Workers’ Compensation attorneys are available to answer questions and help you through your claims process, should you proceed. You can email us at info@barkanmeizlish.com, or call 614-221-4221. We hope you are staying safe and well during the current situation, and staying home to help #flattenthecurve.

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
 

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.

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 

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 and Wage Loss

Working Wage Loss compensation (“WWL”) is available to an injured worker who has restrictions related to the allowed conditions in the claim, which cause a loss of earnings. An injured worker may qualify for WWL if they have found work other than their former position, and now receive less pay than they did at the time of the injury. Moreover, to receive WLL, the injured worker must: (1) Seek suitable employment with your employer (unless it would be futile), (2) register with the Ohio Department of Job and Family Services, or an equivalent out of state agency, (3) and submit medical reports identifying your restrictions.

In a recent case State ex rel. Holmes v. Indus. Comm., 2014-Ohio-4823, the Tenth District Court of Appeals in Ohio determined that the claimant should not be allowed to receive WLL, as the claimant’s medical reports were both inconsistent and equivocal. Id at ¶ 47. Moreover, the Court found that the claimant had not conducted a good-faith job search for suitable employment with comparable pay. Id. at ¶ 53. The Supreme Court of Ohio has held that a claimant is required to show a good faith effort to search for suitable employment, which is comparably paying work before the claimant can recover wage loss compensation. State ex rel. Pepsi-Cola Bottling Co. v. Morse, 72 Ohio St.3d 210 (1995).

This recent decision among others make it increasingly difficult for a claimant to recover WWL, as there are many factors that go into its determination. Injured workers should be aware of these factors, and should contact an attorney if they have any questions as to their own case. More information on the Holmes case and wage loss compensation can be found in the links below.

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-4823.pdf
https://www.bwc.ohio.gov/downloads/blankpdf/wageloss.pdf 

Workers’ Compensation and the Dual Purpose Doctrine

Some states recognize a dual-intent, or dual-purpose doctrine when an employee is injured while traveling for both business and personal purposes. However, in a recent case, the Ohio Supreme Court clarified that the doctrine of dual intent does not apply in Ohio when determining whether an employee who is injured while traveling for both work and personal reasons is entitled to benefits through workers’ compensation. Instead, workers’ compensation benefits are only available for an injury that occurs in the course of and arising out of the person’s employment.

In Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion 2014-Ohio-4531, the claimant was employed as a nurse by the Visiting Nurse Association of Mid-Ohio (VNA) to provide home health care services to clients. The claimant frequently traveled to the homes of her patients, and sometimes stopped at the VNA office for job-related activities. On weekdays she was paid for travel time and mileage, minus the distance it took to go to and from VNA’s office. On weekends, the claimant was compensated for all travel time and mileage.

In January of 2011, on the way to her first patient’s home, the claimant drove her two children and two family friends to the mall. Before she was able to reach the mall, her car was rear-ended. The claimant sought workers’ compensation benefits for a neck sprain.

After several administrative and judicial decisions, the state appeals court found that the claimant would not have been at the accident site if she had not been engaged in work duties as she was on her way to her patient’s home and that, therefore, she was entitled to benefits. However, the Ohio Supreme Court reversed this decision.

As stated, when an employee is injured while traveling for both business and personal purposes, some jurisdictions recognize the dual-intent or dual-purpose doctrines. There, if an employee’s work creates the need for travel, then the employee is acting in the course of employment while traveling, even if he or she does a personal errand. However, Ohio courts have rejected this doctrine. See Cardwell v. Indus. Comm., 155 Ohio St. 466, 99 N.E.2d 306 (1951).

Therefore, if you are injured while traveling to or from work, you should immediately contact an attorney to get a better understanding of what your rights and remedies are. For a longer analysis of Friebel and a copy of the Ohio Supreme Court’s slip opinion, please visit: http://www.courtnewsohio.gov/cases/2014/SCO/1021/130892.asp#.VE49IfnF-uF.

Jurisdiction and Workers’ Compensation

What happens when a workplace injury occurs in Ohio, but the employer is located in another state? Which state law applies? For example, what happens if you are a resident of Florida, employed by a Texas company, but injured while in the course of employment in Ohio?

Recently in Linardos v. Joe Tex, Inc. 12th Dist. No. CA2013-08-067, 2014-Ohio-4522, the Court of Appeals decided just that when it held that an injured worker who lived in Florida, was employed by a Texas company, and was injured while on the job in Ohio could participate in Ohio’s workers’ compensation system pursuant to R.C. 4123.54(H). The employer argued that because the employee was covered by a third-party insurance policy in Texas, the injured worker could not participate in Ohio workers’ compensation. However, the Court disagreed. Linardos at ¶ 5.

In its opinion, the Court stated that Ohio courts have interpreted R.C.4123.54 to preclude Ohio workers’ compensation for an employee when (1) the employee is a resident of a state other than Ohio; (2) the employee is insured in a state other than Ohio; and (3) the employee is only temporarily in Ohio. Wartman v. Anchor Motor Freight Co., 75 Ohio App.3d 177, 181 (6th Dist. 1991). All three of these conditions must exist to preclude an employee from receiving benefits in Ohio. Wartman at 181.  Because the employer in Linardos was covered by a private third-party insurance policy (legal in Texas) instead of Texas’ workers’ compensation system, the Court determined that the employee was not covered by a similar workers’ compensation law in Texas.

As a result, the employee in Linardos was allowed to participate in the Ohio workers’ compensation system, even though he was a resident of Florida and employed by a company in Texas. Thus, when an employee is injured in Ohio, but employed by an out-of-state employer, they can participate in the Ohio workers’ compensation system if they meet the criteria set forth cases like Wartman. Be sure to inquire about your employer’s policy, so you are aware of your rights as an employee.

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Widow to Collect Benefits After Husband’s Death

The widow of a worker who died in Ohio after hours his workplace injury should receive more than 23 years’ worth of workers’ compensation benefits for the lost use of his limbs, sight and hearing from the time of his injury to his death a few hours later, an Ohio appellate court has ruled. Dhimitraq Taluri, 63, worked for Lakewood, Ohio-based Arberia L.L.C. and died in October 2011 after he reportedly fell 30 feet through a roof while performing demolition work, court records show. Mr. Taluri initially survived the fall with severe injuries to his brain and skull, but died 4½ hours later at a nearby hospital.

The Ohio Bureau of Workers’ Compensation granted workers compensation death benefits to Mr. Taluri’s widow. Ms. Taluri later filed a motion seeking an award for loss of use of Mr. Taluri’s arms, legs, eyes and ears caused by his fall in the hours prior to his death. Arberia appealed, arguing in part that Ohio law would limit the award for the loss or Mr. Taluri’s limbs, sight and hearing to one week of benefits since he only lived for a few hours after his work accident.

However, a three-judge panel of the Ohio Court of Appeals in Columbus unanimously overruled Arberia’s objections and upheld the benefits award to Ms. Taluri. The court found that Mr. Taluri qualified for loss-of-use benefits before his death that could be awarded in a lump sum payment. The court also held that, partial disability benefit awards are based on the life expectancy of a claimant’s surviving spouse and other dependents, not on the life span of the deceased claimant.

Sources:
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-5351.pdf
http://www.dispatch.com/content/stories/business/2015/01/02/widow-can-get-injury-and-death-benefits.html
http://www.businessinsurance.com/article/20141210/NEWS08/141219979?tags=|338|308|68|339|304|92. 

Fired or Abandoned?

On June 3, 2009 an employee injured himself while working as a mechanic. He was later diagnosed with a sacroiliac joint sprain/strain. He was released to work six days later with the ability to work in a light duty capacity.

Upon returning, the employer confirmed that the employee could return to light-duty work and asked that the employee return a Jeep that the employee had borrowed from the employer. This upset the employee, and a disagreement followed, prompting the police to be called. The employee cooperated with police and left the premises, ending his employment.

Upon filing for Workers’ Compensation, the employer objected to the claim, but the claim for a left sacroiliac sprain/strain was allowed. However, the employee’s request for temporary total disability compensation (TTD) was denied on the basis that the employee voluntarily abandoned his job. The Court held that the employee was barred from receiving TTD, as he voluntarily quit his job for reasons unrelated to his industrial injury.

“This disagreement happened to occur shortly after (the employee) reported to work with a note from his doctor restricting him to modified duty.” Moreover, “His departure was not causally related to the industrial injury. … Temporary-total-disability compensation is intended to compensate an injured worker who is temporarily unable to return to the duties of his or her former position of employment as a result of a workplace injury.” Thus, it is important that when an employee leaves their job, it must be due to the industrial accident, if they wish to recover TTD benefits.

Sources: http://www.businessinsurance.com/article/20150129/NEWS08/150129786?tags=%7C339%7C304%7C92
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-ohio-167.pdf

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