Admittedly there will be “2017 greatest hits” lists on subjects much more exciting than this, but this is a workers’ compensation blog after all. So (drumroll please) here are my “top 14” of 2017 Ohio workers’ compensation cases and legislation.
Enacted Legislation
House Bill 27, which became effective September 29, 2017, made several important substantive changes, including: 1) reducing the statute of limitations for filing an injury claim to one year; 2) extending the deadline for filing court appeals to 150 days if the parties file a “notice of intent to settle”; 3) increasing the maximum Claimant’s attorney fee for a successful appeal to $5,000.00; 4) allowing the BWC to dismiss PPD applications where the injured worker does not appear for a medical exam. The statute also makes changes with respect to other issues, including BWC 90 day exams, handicap reimbursements, drug testing requirements, firefighter cancer claims, and temporary total disability awards.
Here’s the link to a more detailed discussion of House Bill 27, and to the Ohio Legislature’s comprehensive summary of the bill’s provisions. http://bit.ly/2yuLxBn
House Bill 207: allows an employer whose employee is injured in a motor vehicle accident caused by a third-party to apply to the Ohio Bureau of Workers’ Compensation to have that claim charged against the BWC Surplus Fund and not the employer’s risk experience. The BWC’s summary of the new rules can be found here. http://bit.ly/2AZ0Kk3
Court Decisions
Litigation
-Ferguson v. State – The Ohio Supreme Court upheld the “consent provision” of R.C. §4123.512(D), which requires employers to consent to an injured worker’s voluntary dismissal of an employer’s court appeal. Further analysis and the full text of the Court’s decision can be found here. http://bit.ly/2yOWlO6
Substantial Aggravation
–Clendenin v. Girls Scouts of Western Ohio-The Ohio Supreme Court held that the Industrial Commission’s determination that a substantial aggravation has returned to baseline is not appealable to common pleas court. Further analysis and the full text of the Court’s decision can be found here. http://bit.ly/2AH6duN
Permanent Partial Disability
-State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm. – The Court held that an employee cannot get both permanent partial and permanent total disability compensation in the same claim, even when the PPD award is based upon conditions that played no part in the PTD finding. Further analysis and the full text of the Court’s decision can be found here. http://bit.ly/2jxE8g5
Voluntary Abandonment
-In State ex rel. Cordell v. Pallet Cos., Inc. the Supreme Court found that termination of an employee after a workplace injury for conduct prior to and unrelated to the injury is not a voluntary abandonment when the offense was discovered as a result of the injury and, at the time of the termination, the employee was medically unable to return to work. The Court’s decision can be found here. http://bit.ly/2AWMKnF
Going and Coming Rule
-Rees v. University Hospitals – Rees, who was at the UH main campus for a training class, fell on a public street between the parking garage and the hospital, after going back to retrieve some materials she left in her car. The 8th Appellate District found that her injuries were compensable, because she entered the “zone of employment” by reporting to the training class, and was injured while doing work that was related to her job activities. The Court’s decision can be found here. http://bit.ly/2B2XrYu
-Franklin v. BHC Services., Inc. – In Franklin the 8th Appellate District reversed the trial court’s grant of summary judgment for the employer in the case of a home health aide injured in a car accident driving from one client’s home to another. The Court, recognizing that different appellate districts have addressed similar situations with varying results, held that there were genuine issues of material fact as to whether the injury arose out of Franklin’s employment, and remanded the matter to the trial court. The Court’s decision can be found here. http://bit.ly/2yPCizn
Ideopathic Injuries
– Miller v. Horizons Health Servs., LLC – Miller, an LPN whose job involved traveling to the residences of clients, was injured after she lost consciousness while driving. Miller had a history of syncopal episodes due to low blood pressure. The 8th District Court upheld the trial court’s grant of summary judgment for the employer and the BWC on the grounds that Miller had not met her burden of eliminating idiopathic causes for her injury. The Court’s decision can be found here. http://bit.ly/2AAlzhQ
–Aho v. RTI Int’l Metals, Inc. –The 11th District Court of Appeals reversed the trial court’s grant of summary judgment for the employer in a claim for knee injuries sustained while climbing stairs at work. The Court found that climbing the staircase was “a necessary function” of the job, that the lights were not functioning in the staircase, and that there may have been something on the stair that caused the knee injury. The Court’s decision can be found here. http://bit.ly/2jbEMmA
Pending Legislation
House Bill 380 – Undocumented workers -The Ohio House passed this bill, which would block undocumented workers injured on the job from collecting workers’ compensation benefits. The bill would also subject employers who knew that the worker was undocumented at the time of the injury to negligence lawsuits without the statutory damage caps provided in the workers’ compensation system. The bill now moves to the Ohio Senate. A more complete discussion of the bill can be found here. http://bit.ly/2BY864r
House Bill 268 – Private Insurance – Ohio House Bill 268, introduced June 12, 2017, proposes allowing self-insured employers to contract with private insurers to indemnify them against their workers’ compensation liability. The legislation also proposes establishing an additional self-insured employers’ guarantee fund, potentially allowing more employers to become self-insured. A more complete discussion of the bill can be found here. http://bit.ly/2AKm4ZF
Industrial Commission Memorandum
Voluntary Abandonment – The Commission issued Memo D5, which addresses 3 scenarios under which a hearing officer should make a finding of voluntary abandonment: 1) Voluntary Retirement for reasons unrelated to the injury; 2) Termination-the memorandum addresses, among other issues, when a series of formal “write ups” can take the place of a written work rule and the recent decision in State ex rel. Cordell v. Pallet Cos., Inc., (see above); 3) Abandonment of the Workforce. A more complete discussion and link to Memo D5 can be found here. http://bit.ly/2Cdz6gg
Substantial Aggravation – The Industrial Commission also revised Memo B2, which provides additional guidance on how the Commission is to handle substantial aggravation issues in light of the Clendenin decision.
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