2018 Workers’ Compensation Top Ten

While it may not be as exciting as other 2018 top ten lists you’ve seen, here are 10 of the most significant developments in Ohio Workers’ Compensation law in 2018.

Klein v. Precision Excavating & Grading Co., 2018-Ohio-3890

In the Klein case, the Supreme Court specifically overruled its decisions in State ex rel. Reitter Stucco, Inc. and State ex rel. Omni-Source Corporation (which held that if an injured worker was medically unable to work at the time he left his former job, he could not be denied temporary total disability compensation “TTD” on the grounds of voluntary abandonment).

As the Klein court put it:

When a claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, the claimant is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment.”

However, the Supreme Court specifically stated that its decision in State ex rel. Gross v. Indus. Comm. (which held that an injured worker’s termination as the result of violation of a work rule which caused the injury did not preclude TTD) remained good law.  The Court also reiterated that if an injured worker quits or retires because of a work injury they would still be entitled to TTD. In Klein’s case, the injured worker was certified as being unable to work, and subsequently informed the Ohio Bureau of Workers’ Compensation that he intended to move to Florida, for “better weather and more job opportunities.” For further discussion of the Klein case and a link to Court’s decision, click here.

Bur. of Workers’ Comp. v. Verlinger, 2018-Ohio-1481

In Bur. of Workers’ Comp. v. Verlinger, the Supreme Court held that the BWC’s right of subrogation vests at the time of the injury or death that occurred during the course of employment.  A subrogation interest is the BWC or self-insured employer’s right to reimbursement for funds workers receive from third parties for injuries which gave rise to the workers’ compensation claim. For example, a work-related motor vehicle accident in which a lawsuit is brought against the driver of the other vehicle involved.

The Verlinger decision is important because, before this decision, injured workers could assert that the employer/BWC’s subrogation interest did not arise until their workers’ compensation claim was allowed.  Particularly in occupational disease cases, injured workers could take up to two years collecting money from third parties for the injury that gave rise to the claim without the BWC or SI employer being able to assert their subrogation interest. For further discussion of the Verlinger case and a link to the Court’s decision click here.

State ex rel. Jackson Tube Service, Inc. v. Indus. Comm., 2018-Ohio-3892

In Jackson Tube the Supreme Court considered whether an employer could defend an application for an additional award for a Violation of a Specific Safety Requirement on the grounds that it would have been impossible to comply with the specific safety requirement at issue.  The Supreme Court held that impossibility could be an affirmative defense if the employer could prove that: 1) it would have been impossible to comply with the specific safety requirement and compliance would have precluded performance of the work at hand; and 2) no alternative means of employee protection were available.

State ex rel. Navistar, Inc. v. Indus. Comm., 2018-Ohio-3386

In Navistar, the 10th Appellate District held that a doctor’s report which held that an injured worker could only work 3 to four hours a day was sufficient evidence to support a finding that the injured worker was permanently and totally disabled.

The Navistar case had been before the 10th Appellate District once before (on the issue of voluntary abandonment).  The 10th Appellate District Court found that the magistrate incorrectly determined that the injured worker voluntarily abandoned his employment, and remanded the case for a ruling on the merits of the injured worker’s permanent total disability application.

On remand, the magistrate determined that the injured worker was permanently and totally disabled, and the 10th Appellate District Court heard Navistar’s objection to that decision.  Specifically, the Court considered whether the report of a physician who indicated that the injured worker could only work 3 to 4 hours a day supported the finding that he was permanently and totally disabled.  The 10th Appellate District found that despite medical evidence which indicated that the injured worker was capable of working up to four hours a day, the IC could find that he was permanently and totally disabled. For more discussion of the Navistar decision click here.

 State ex rel. Penske Truck Leasing Company, L.P. v. Indus. Comm., 2018-Ohio-2153

In the Penske case, the 10th Appellate District held that a doctor’s report which allocated permanent total disability compensation by body part, in a case where an injured worker had injuries to overlapping body parts in several claims, was not a sufficient basis to support the Commission’s allocation of permanent total disability compensation.  The Court remanded the case to the Industrial Commission for an order which allocated permanent total disability compensation among the three claims in question based upon evidence which addressed the degree of disability attributable to each of the individual claims.

State ex rel. Witt v. Indus. Comm., 2018-Ohio-1693

In Witt, the Supreme Court addressed O.R.C. §4123.52, Ohio’s continuing jurisdiction statute.  The continuing jurisdiction statute does three main things. It gives the Ohio Bureau of Workers’ Compensation and Ohio Industrial Commission jurisdiction to modify orders they previously made. It also prohibits the Industrial Commission or Bureau of Workers’ Compensation from addressing any issues in claims where no medical benefits or indemnity compensation have been paid in over five years.  Lastly, it prohibits the Industrial Commission from awarding compensation or medical benefits for a back period in excess of two years.

In Witt, the BWC issued a retroactive order, which lowered an injured worker’s average weekly wage, and found an overpayment from 17 years of compensation paid at a considerably higher rate.  The injured worker asserted that the BWC’s decision was contrary to the two year limitation in O.R.C. §4123.52.  The injured worker also argued that the Bureau of Workers’ Compensation was required to file a motion with the Industrial Commission to exercise its continuing jurisdiction.

The Supreme Court held that the Bureau did not have to file an application in order to exercise its continued jurisdiction to modify a prior order.  The Supreme Court also held that although the Industrial Commission was restricted under O.R.C. §4123.52 from modifying prior orders to award compensation more than two years back, that restriction did not apply to the Bureau of Workers’ Compensation.

OSHA Memorandum Regarding Drug Testing

Although this is not a workers’ compensation case, it is an important decision for employers who conduct routine post-accident drug testing.  Back in 2016, the Occupational Safety and Health Administration (“OSHA”) informed employers that drug testing employees who report injuries was prohibited unless an employer had an “objectively reasonable basis” for conducting the test.  According to OSHA, blanket post-accident drug testing could be considered retaliation for reporting an injury or filing a workers’ compensation claim.

However, in response to employer complaints, on October 11, 2018 OSHA revised its policy.  According to the new OSHA memorandum, random drug testing and post-accident drug testing will not be considered retaliation so long as the testing is conducted pursuant to state workers’ compensation laws or “for the legitimate purpose of promoting workplace safety and health.”  This decision means that Ohio employers who conduct drug testing pursuant to Ohio’s drug testing statute should not generally have to worry about allegations of OSHA violations as the result of their post-accident drug and alcohol testing policies.  For further discussion of the new OSHA memorandum, click here.

BWC Rate Reductions and Rebates

In 2018 the Oho BWC announced its intention to issue another $1.5 billion in rebates to Ohio employers. The BWC also recommended a 12% reduction in rates for Ohio’s school districts, cities and other local-government employers.  For a further discussion of the rebate programs, click here and here.

Ohio Workers First Act

In late 2017 the Ohio House voted 62-30 in favor of legislation that would block undocumented workers injured on the job from collecting workers’ compensation benefits.  In 2018 the bill was sent to the Ohio Senate for a vote, which should take place sometime in 2019.  Further discussion of the Ohio Workers First Act can be found here.

BWC’s Opioid Workplace Safety Program

On September 10, 2018 the Ohio BWC issued a press release announcing a new pilot program. The BWC’s Opioid Workplace Safety Program will provide up to $5 million over two years to help employers in Montgomery, Ross and Scioto counties hire, manage and retrain workers recovering from Opioid addiction.  Click here for a further discussion of the BWC’s Opioid Workplace Safety Program.


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