Written by: Scott Farwell 

An independent contractor is an individual who generally falls outside of the structure of the Workers’ Compensation Act. Whether a person employed to perform specified work for another is to be regarded as an independent contractor or as an employee within meaning of Workers’ Compensation Act is determined by application of ordinary common-law tests.  Youngblood v. N. State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433 (1988). There are generally eight factors, with no one factor being determinative, which indicate classification as an independent contractor – namely, the person employed: (1) is engaged in independent business, calling, or occupation; (2) is to have independent use of his special skill, knowledge, or training in execution of work; (3) is doing specified piece of work at fixed price or for lump sum or upon quantitative basis; (4) is not subject to discharge because he adopts one method of doing work rather than another; (5) is not in regular employ of other contracting party; (6) is free to use such assistants as he may think proper; (7) has full control over such assistants; and (8) selects his own time. McCown v. Hines, 140 N.C. App. 440, 537 S.E.2d 242 (2000) aff’d, 353 N.C. 683, 549 S.E.2d 175 (2001). The fact that the work must meet specific standards and requirements is not enough to find sufficient control. The control must be in the method in which the results were obtained, not in the results themselves. Grouse v. DRB Baseball Mgmt., Inc., 121 N.C. App. 376, 465 S.E.2d 568 (1996).

The term “statutory employer” is not defined in the North Carolina Workers’ Compensation Act. However, North Carolina Courts have applied the term in situations involving general and sub contractors when the sub contractor is the employer but has neglected to cover themselves with workers’ compensation insurance. The chain of liability for making workers’ compensation payments extends from the immediate employer of the injured employee up the chain to the first responsible contractor who has the ability to pay. N.C. Gen. Stat. § 97–19. Spivey v. Wright’s Roofing, 737 S.E.2d 745 (N.C. Ct. App. 2013).

The statutory employer statute (N.C. Gen. Stat. 97-19) is an exception to the general definitions of “employment” and “employee” set forth in the Workers’ Compensation Act, and provides that a principal contractor, intermediate contractor, or subcontractor may be held liable as a “statutory employer” where two conditions are met: (1) the injured employee must be working for a subcontractor doing work which has been contracted to it by a principal contractor, and (2) the subcontractor does not have workers’ compensation insurance coverage covering the injured employee. Putman v. Alexander, 194 N.C. App. 578, 670 S.E.2d 610 (2009).[1]

As long as the general contractor obtains a certificate of insurance (COI) from the subcontractor, the general contractor will not be liable for workers’ compensation benefits for injured employees of the subcontractor. N.C. Gen. Stat. § 97–19. In Patterson v. Markham & Associates, 123 N.C. App. 448, 474 S.E.2d 400 (1996), a general contractor was not a statutory employer where the plaintiff worked for a subcontractor on a job which was contracted to the subcontractor by the general contractor because when work under the contract began, the subcontractor’s insurance agent sent the general contractor a certificate of insurance indicating coverage for the subcontractor for one year; and when the subcontractor’s insurance was canceled for its failure to pay its premium, the general contractor was not notified of the cancellation.

[1] In Masood v. Erwin Oil Co., 181 N.C. App. 424, 639 S.E.2d 118 (2007), a petroleum wholesaler had a contractor/subcontractor relationship with its gas station operator, who did not have workers’ compensation insurance, and thus the wholesaler was the gas station cashier’s statutory employer for purposes of the cashier’s workers’ compensation claim.

The Washington Post recently published a story about an emerging trend among senior citizens: worker camps. As life expectancy continues to rise and social security benefits stagnate, more and more would-be retirees find they lack the retirement savings to provide for themselves and their lifestyles. The number of senior workers in the United States has more than doubled since the year 2000, and now nearly 20% of Americans over 65 are working. Contributing factors for this phenomenon are the 2008 recession, a shift from pensions to worker-based retirement programs, such as 401(k)’s, and rising costs of healthcare.

“Workampers” is the appellation for a growing group of seniors who have adopted an itinerant lifestyle of traveling the nation’s highways, often in an RV (hence the nickname), driving state to state looking for seasonal employment. The jobs are typically low-paying and devoid of benefits but are increasingly necessary to an expanding class of citizens who simply do not have the retirement savings to provide for themselves in their final years.

As the work camp movement spreads, it can be expected to generate confusion in states’ workers’ compensation programs. “Workampers” routinely travel between states seeking employment, leading to inevitable disputes over which state’s work comp program has jurisdiction over a particular claim. Beyond that, the seasonal nature of the employment will almost surely complicate calculation of a given worker’s average weekly wage and, by extension, the value of his or her weekly benefits. Finally, as employees age, they naturally become more susceptible to workplace illness and injury, which means that as more seniors opt to postpone retirement—by choice or out of necessity—a rise in overall work comp claims can also be anticipated. 

Well-placed sources inform us that the powers that be within the Division have begun focusing on the number of dispute proceedings held each month, supposedly as a means of gauging the effectiveness and productivity of the Hearings section. The higher the number of proceedings held, the reasoning goes, the greater the number of disputes that have been resolved. 

However, as usual, a strict quantitative analysis (i.e., pure statistics and number-crunching) tells only part of the story and provides skewed results. In accumulating their data, the DWC makes no differentiation between Contested Case Hearings that result in a Decision & Order and those that are merely convened and continued at the outset. In other words, a hearing that continues at the scheduled start time is considered a “proceeding held,” while a hearing for which a motion to continue is granted before the proceeding will not count toward the tally.

There are two obvious results of this practice. First, the DWC can artificially inflate its total number of proceedings held per month by urging judges to postpone ruling on continuance requests until the day of the hearing. Second, the costs associated with preparing for and traveling to a Contested Case Hearing, only to find that is has been continued at the last minute, are passed along to system participants.

The Texas hiring freeze for state workers lapsed on September 1, 2017, and since then the Division of Workers’ Compensation has hired three new Administrative Law Judges. 

Ana Kirk Thornton will soon begin presiding over disputes in the new San Antonio Field Office.  Ms. Thornton is a graduate of Trinity University and The University of Texas School of Law. She has been licensed since 1991 and most recently worked with another state agency, the Texas Workforce Commission. 

Christopher Maisel is another graduate of The University of Texas School of Law but has recently returned to Texas after practicing in California. He brings with him decades of experience in bankruptcy, mergers & acquisitions, and insurance law. Mr. Maisel will become one of two new ALJ’s in the Houston West Field Office.

The other new Houston judge is Eric Robertson, a Baton Rouge native but longtime Texas resident. A degree in Business Administration brought him to Texas Wesleyan University School of Law, and he has been licensed in Texas since 2014. Mr. Robertson first practiced criminal law before moving into the realm of workers’ compensation in January 2017 at the firm of Bailey & Galyen. 

In its October 5, 2017 edition, the New York Times reported on an alarming development in some Japanese workplaces: “karoshi,” which translates to “death from overwork.” First emerging in the production boom of the 1980’s,karoshi initially affected blue-collar workers disproportionately, as employees in manufacturing industries pushed themselves to dangerous levels of fatigue by way of inordinately high overtime hours per month. Over the past three decades, the tendency to forego sleep, work on weekends, and bypass holiday leave in an effort to clock ever higher numbers of overtime hours has seeped into the white collar realm.

The reporting was based around the recent disclosure of the 2013 death of Miwa Sado, a journalist at NHK, Japan’s premiere broadcasting company. Sado clocked 159 hours of overtime in one month before passing away of congestive heart failure at age 31. Following a government investigation, it was determined that Ms. Sado’s death was directly attributable to her work schedule, which produced persistent fatigue and chronic sleep deprivation.

For many Japanese workers, especially those employed by prestigious companies, exhaustion by way of overwork is a sign of one’s commitment to an employer. Karoshi can sometimes require employees to continue working after the end of shift by entertaining business clients well into the evening. Workers under the age of 35 were found to be particularly susceptible to the alarming phenomenon, according to the Japan Institute for Labor Policy and Training.  

The new prosecution unit of the Texas Department of Insurance, Division of Workers’ Compensation, has obtained indictments against a Massachusetts company and three individuals for organized crime activity pertaining to workers’ compensation fraud. The indicted defendants are EME International Inc. and Christine Caldwell, both of Marblehead, Massachusetts, and Enrique Colon and Marcos Ricoy of Deer Park, Texas and Rancho Viejo, Texas, respectively. 

Charges include submitting false workers’ compensation health care claims to Texas Mutual Insurance Company pertaining to functional capacity evaluations of injured workers. The defendants are alleged to have submitted false medical claims for more time than the services required in order to defraud the insurance company in an amount between $20,000 and $100,000.

The indictment is the first step in the trial process. We will keep you posted as the cases develop.

It seems that every month we have something to relate about the ongoing national opioid epidemic, and, unfortunately, this month is no different. Recent reporting from Bloomberg news indicates that, while opioid dependence is a growing cause of unemployment, about two-thirds of those who abuse pain relievers are still employed. The impact of such a scenario should be obvious: opiate use in the workplace lowers attentiveness and increases the risk of injury to the affected worker and his or her colleagues. Additionally, according to Castlight Health, a San Francisco-based healthcare information company, the cost of healthcare expenses posed to an employer by an opioid-dependent worker is roughly twice as much as that of clean employee. 

Drug-testing among employers is on the rise, but synthetic opioids such as oxycodone are frequently omitted from testing, perhaps because of their basis in seemingly legitimate prescriptions from medical providers. 

The crisis was addressed at the 2017 Risk Management Summit in Las Vegas. Greater employer involvement, specifically through the use of nurse case managers, was touted as a particularly effective tool in preventing opioid dependence among injured employees, returning them to work quickly, and maintaining productivity upon their return. When a physician has prescribed narcotics, a nurse case manager can engage the prescribing physician in discussions about how best to wean an injured employee off the medication, stopping dependence before it begins.

In the wake of the recent shooting in Las Vegas, numerous news reporting agencies have expressing shock and disbelief over California’s denial of workers’ compensation benefits to its police officers that were injured during the attack. Most people believe that police officers should be beneficiaries of workers’ compensation benefits when they place their lives on the line to protect and serve, even when working off duty. Unfortunately, extending benefits to these heroes is not that simple.

Without being deputized, an officer’s ability to act in any official capacity ends at the state line. Even federal law enforcement officers have to be deputized by a state before they are able to enforce that state’s law. This mechanism protects state sovereignty, and is also a Constitutional right that expressly reserves general "police power" to the state. Because they were not deputized, the California police officers were acting as private citizens.

Of note, it would not be handled any differently in Alabama. While Alabama does extend workers’ compensation benefits to police officers when they sustain injuries while acting in a law enforcement capacity (whether they are technically on duty or not), the reach of those benefits has not extended to officers outside the confines of the state. Thankfully, no Alabama officers were injured in Las Vegas.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Court Decisions of Note

Constitutionality

Ferguson v. State, 2017-Ohio-7844 (September 28, 2017).

In 2006 the legislature amended the statute governing appeals to the courts of common pleas to require the Plaintiff-Claimant to obtain the Defendant-Employer’s consent to a Civil Rule 41(A) voluntary dismissal when the Employer had initiated the court appeal. Ford had filed the court appeal, and, when Ferguson sough to voluntarily dismiss, it refused to agree. The trial court then pended the original appeal and proceeded with a declaratory-judgment action regarding the employer consent provision’s constitutionality.

The trial court found the employer consent provision unconstitutional for three reasons. First, by overriding a Civil Procedure Rule, the legislature had violated separation-of-powers by intruding on the court’s power to govern trials. Second, the creation of two different classes of Plaintiff-Claimants, those who filed their own appeals and those whose employers appealed, ran afoul of equal protection. Finally, Plaintiff-Claimants were inhibited from adequately presenting their cases, a violation of the Ohio Constitution’s Due Course of Law Clause. The Cuyahoga County Court of Appeals (Cleveland) affirmed.

A unanimous Ohio Supreme Court reversed. There was no violation of separation of powers because the General Assembly may create procedural rules for “specialty statutory proceedings” like workers’ compensation court appeals. Furthermore, equal protection and due process were not violated because a suspect class had not been created. Differentiating injured workers based on whether they, or their employers, initiated the court appeal survived rational basis review. This standard was sufficient, especially given the differences between workers’ compensation and the civil justice system. 

Injury

Clendenin v. Girl Scouts of Western Ohio, 2017-Ohio-2830 (5/18/17).

In this case, Ms. Clendenin was injured in 2008 in the course of her employment with the Girl Scouts and her claim was allowed for various conditions, including substantial aggravation of preexisting dermatomyositis. In 2013, the BWC moved to terminate Ms. Clendenin’s benefits and compensation arguing that the condition dermatomyositis had returned to its baseline, pre-injury status. The Commission evaluated the BWC’s medical report on the issue and agreed.

Ms. Clendenin filed an appeal in the Hamilton County Court of Common Pleas arguing that the condition had not returned to pre-injury status and that the order should be vacated. The BWC sought dismissal of the case arguing that the issue was one of “extent of disability” and not a “right to participate” case and therefore the appeal to the common pleas court was improper. The Hamilton County Court agreed with the BWC and dismissed the appeal. On mandamus before the First District, that order was reversed. The First District Court of Appeals opined that when the BWC decides the condition is no longer impacted by the workplace injury, then the BWC is in effect terminating the injured worker’s right to participate for that condition in the workers’ compensation system. Therefore, the First District held, such an appeal would be properly in the common pleas court.

The Ohio Supreme Court, however, reversed the First District’s decision. The Court held that an Industrial Commission’s decision that a preexisting condition substantitally aggravated by an injury at work which has returned to “pre-injury status” involves “extent of disability.” Therefore, an appeal under Ohio Rev. Code § 4123.512 (i.e., “a right to participate appeal”) was not proper, but instead must be challenged by mandamus. Simply put, the Court found that since the dermatomyositis was already an “allowed condition” it was not a right to participate issue. The real matter was one of the amount of compensation and benefits to be paid for such condition, and that called for a challenge in mandamus and the Hamilton County Court of Common Pleas was not permitted to hear the matter.

Miller v. Horizons Health Servs., LLC, 8^th Dist. No. 104423, 2017-Ohio-465 (2/9/17).

This case emerging from the Eighth District Court of Appeals deals with idiopathic injuries. Ms. Miller worked for Horizons as a nurse and her position requires her to travel to the residences of her clients. On December 17, 2014, Ms. Miller was driving to a client’s residence when she lost consciousness at a stop light, her vehicle crashed into a light pole and she suffered injuries to her left tibia and left fibula. Upon visit to the emergency room she was diagnosed as having had a “syncopal episode” (syncope causes dizziness, fainting and temporary loss of consciousness due to low blood pressure). In proceedings before the Industrial Commission, Ms. Miller’s claims were denied for her inability to eliminate idiopathic causes for her losing consciousness, which caused her to strike the pole that caused her injury. Evidence at the hearings included her ongoing treatment for low blood pressure with medication and also diabetes.

In the trial court, the BWC filed a motion for summary judgment arguing that Ms. Miller suffered an idiopathic injury and therefore her injury did not “arise out of” her employment; and further that she did not face any employment duty or hazard that increased her risk of injury. The trial court agreed. On appeal before the Eighth District, Ms. Miller did not contest whether her injury was idiopathic in nature. Instead her main argument was that driving – part of her employment duties as a home health nurse – contributed to her risk of injury. In affirming the trial court’s dismissal of Ms. Miller’s appeal, the Court citedWaller v. Mayfield, 37 Ohio St. 3d 118 (1988), where the Ohio Supreme Court ruled that when an unexplained injury happens, “that claimant has the burden of eliminating idiopathic causes.”

If there is an idiopathic cause of injury, the Court opined, the employee must demonstrate “that although the workplace conditions or environment did not cause the injury, the conditions or environment caused the employee tosuffer worse injuries” in order to participate in the workers’ compensation system (emphasis added). In this case, the Eighth District rejected her argument that her driving contributed to her risk of injury and ruled that her injury occurred “irrespective of her employment” explaining that the light pole was not attendant to her employment and there was no evidence that the roadway was unsafe.

Aho v. RTI Int’l Metals, Inc., 11^th Dist. Nos. 2016-T-80, 2016-T-82, 2017-Ohio-2803 (5/15/17)

This case out of the Eleventh District Court of Appeals also deals with the issue of the nature of an “injury” in the workers’ compensation system. Mr. Aho was injured at work when he was climbing stairs on the premises of his employer, RTI International Metals, Inc. The Industrial Commission allowed his claim for right knee sprain and right knee medial meniscus tear. On appeal before the Trumbull County Court of Common Pleas, the trial court found Mr. Aho’s injury “did not arise out of” his employment with RTI and reversed the Commission. Essentially, the trial court held that there was no “casual connection” between the injury and the work.

The Eleventh District was faced with the issue of whether an injury resulting from “normal activity” can be compensable. Starting with the definition of injury in § 4123.01(C), the Court of Appeals found no dispute that the injury occurred “in the course of” Mr. Aho’s employment. Instead, the analysis centered on whether it “arose out of” his employment. Citing theBralley v. Daugherty, 61 Ohio St. 2d 302 (1980) case, the court indicated the test is, whether a causal connection existed between the employee’s injury and his employment either through the activities, the conditions or the environment of the employment – the totality of the circumstances test.

The trial court had found that Mr. Aho’s climbing of the stairs to be a “normal activity of daily life.” However, the Eleventh District found that “climbing this particular unlit staircase is only associated with Mr. Aho performing a necessary function of his job duties.” The court distinguished Mr. Aho’s situation from other cases where a claim was denied for involving a “normal movement that could easily have occurred at home or any other place.” Here, because Mr. Aho, in his testimony, could not identify the origin of the knee injury, other than his foot hit the stair tread “awkwardly,” an inference arises that it is traceable to some ordinary, yet unidentified risk to which Mr. Aho was exposed to on RTI’s premises.

Notably, given the discussion of idiopathic injuries about in theMiller case, here RTI did not argue in its trial court motion for summary judgment that Mr. Aho’s injury was idiopathic, and therefore the Eleventh District did not opine on that issue.

Coming and Going

Rees v. University Hosps., 8^th Dist. No. 104848, 2017-Ohio-1372 (4/13/17).

In Rees, the Eighth District Court of Appeals dealt with the issue of whether an employee on route to a required training class was in the course and scope of her duties as a nurse. On January 29, 2015, Ms. Rees was scheduled to participate in a CPR training class which was required for her continued employment with University Hospital (UH) and which was offered by UH at its main campus. Ms. Rees, like other UH employees, was paid her normal wage to attend the class and was registered for her class by her supervisor. Ms. Rees fell on the street adjacent to the parking lot at UH’s main campus walking into the training room and sustained several injuries. Her claim for workers’ compensation benefits was denied at all levels of the Industrial Commission. Her appeal into the common pleas court went through to a trial on the merits where the trial court reversed and granted her right to participate.

On appeal before the Eighth District, the Court of Appeals agreed with the trial court and ruled that it did not err in ruling that Ms. Rees was injured within the course of and arising out of her employment with UH. The court first dealt with whether Ms. Rees had demonstrated that her injury occurred “in the course of employment.” The Eighth District cited prior case law holding that “in the course of employment” limits compensable injuries to those sustained while “performing a required duty in the employer’s service” and is compensable if it is “sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer’s business.” Applying to the facts here, Ms. Rees demonstrated that she was instructed to perform this task by her supervisor, also an employee of UH and was within the scope of her employment.

Next the court looked at the causal connection between the injury and employment to determine whether Ms. Rees had demonstrated that the injury “arose out of” the course of the employment relationship. The court found that the area where the accident occurred was in a public street adjacent to the UH parking lot and while UH did not maintain control over that street, such factor was not dispositive. Here, the court cited the Ohio Supreme Court decision in Baughman v. Eaton Corp., 62 Ohio St. 2d 62 (1980), where benefits were granted to an employee when he was injured after he fell in a public street walking from the employer’s parking lot to the employer’s factory. The court also found that UH received a benefit from Ms. Rees’ presence at the class. The court distinguished the Rees case from others with very similar facts by focusing on her presence within the “zone of employment.”

Franklin v. BHC Servs., Inc., 8^th Dist. No. 104695, 2017-Ohio-655 (2/23/17)

The compensability of an injury for a home health nurse travelling between clients raised itself again in the Franklin case before the Eighth District. Ms. Franklin had to travel between the homes of her employer’s clients to do her work as a home health aide. While the job required visits to multiple clients during a given day, the employer only paid employees like Franklin for the time spent at a client’s home (but did reimburse for mileage). Franklin was injured in a car accident driving from one client’s home to another. She filed a workers’ compensation claim which was denied by the Commission. The trial court granted summary judgment in favor of the employer and ruled that “as a home health aide, Plaintiff is a fixed-situs employee. Her injury did not arise out of her employment and the coming-and-going rule bars her claim. No exceptions apply.”

The Eighth District Court of Appeals reversed the trial court. First, in considering whether Ms. Franklin was indeed a “fixed-situs employee” the court found a split among the districts: some holding home health aides to be fixed-situs (Fourth, Fifth, and Ninth) and some finding home health aides to not be fixed-situs (Fifth and Twelfth). Two prior decisions in the Eighth District also were split. The court ultimately found that there are genuine issues of materials fact as to whether Franklin was a fixed-situs employee, making summary judgment improper. The court then looked to the potential exceptions to the coming and going rule, and applied the “totality of the circumstances” test. The ruling was that the totality of the circumstances surrounding the accident created a causal connection between the injury and the employment for Ms. Franklin, and again, therefore summary judgment was improper. Notably, the factors deemed significant by the court included that it was unclear who owned the car, whether Franklin was proceeding directly to the next patient’s house, the proximity of the accident to the second patient, the logically related of the travel to her business and the benefit the employer received from her presence at the scene of the accident.

Death Claim/Substitution

Zebrasky v. Discount Drug Mart, Inc., 8th Dist. No. 105087, 2017-Ohio-4446 (6/22/17).

Ms. Zebrasky filed a .512 appeal in court from the administrative denial of her claim. She died while the claim was pending in court. The employer filed a motion to dismiss, claiming the workers’ compensation claim had “abated” when she died. Her counsel argued that Ohio Rev. Code § 4123.60 applied and Mr. Zebrasky could “stand in her shoes” and pursue her appeal as a dependent. Section 4123.60 provides that if a decedent would have been lawfully entitled to have applied for an award at the time of his death then the BWC may make a compensation award. The Court of Appeals ruled that although a deceased claimant’s dependents may pursue their own claims under § 4123.60 predicated upon the injury to the claimant, the surviving spouse of a deceased claimant cannot simply “step into the shoes” of the deceased claimant and continue to pursue the deceased claimant’s appeal of his or her workers’ compensation claim after the claimant’s death.

Permanent Partial Compensation

State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Industrial Comm’n, 2017-Ohio-7577 (09/14/17).

Ms. Redwine was granted permanent total compensation based on the Commission’s finding that her psychological condition prevented her from performing sustained remunerative employment. She subsequently filed for an award of permanent partial impairment, but based solely on her physical allowances, not her psychological. The Commission granted Ms. Redwine a PPD award. The employer appealed the Commission’s ruling in mandamus and the Court of Appeals denied the writ. On appeal before the Ohio Supreme Court, the court of appeals’ decision was reversed. The Court engaged in an analysis of statutory authority for concurrent awards of PPD and PTD. The Court noted statutory authority for payment of concurrent awards in other limited instances (i.e. PPD and TTD; PTD and scheduled loss), but noted that neither Ohio Rev. Code § 4123.57 or Ohio Rev. Code § 4123.58 expressly authorize concurrent payment of PPD and PTD compensation. The Court viewed this “conspicuous absence” as a sign of legislative intent to prohibit the simultaneous receipt of these benefits. In its review of prior case law to determine if there were other circumstances where PPD and PTD were award simultaneously, the Court made a bright line distinction between such awards being sought by the same claimant in different claims as opposed to the same claimant seeking both awards in the same claim. Ms. Redwine then filed a Motion for Reconsideration. The Ohio Supreme Court concluded it had reached the proper conclusion and ordered the Industrial Committee vacate the PPD award.

Permanent Total Compensation

State ex rel. McKee v. Union Metal Corp., 2017-Ohio-5541 (6/29/17).

In this recent case, the Supreme Court affirmed the Tenth District’s denial of the employee’s request for mandamus that would compel the Commission to award him permanent total compensation. Mr. McKee was injured in 1993 in the course and scope of his employment as an auto welder with Union Metal Corporation. His claim was allowed for cervical strain, focal spinal stenosis due to marked degenerative disc bulge and spur formation, and neurotic depression. His first request for PTD in 1999 was denied based on a finding that Mr. McKee’s disability was not total and he was capable of performing entry-level work. Fourteen years later he filed another PTD application. Upon consideration, the Staff Hearing Officer found no evidence that Mr. McKee had worked or even looked for work since 1998 and that he was receiving SSDI benefits. The SHO denied the PTD application finding that Mr. McKee had voluntarily abandoned the workforce and effectively retired for reasons other than the allowed conditions in the claim.

The Court held that the Commission’s order with the finding of voluntary abandonment was supported by some evidence in the record: (1) the Commission’s 2000 finding (based on two medical reports and a vocational assessment) that Mr. McKee retained the capacity to perform remunerative employment (which Mr. McKee never appealed); and (2) the absence of evidence in the record that he had worked, had been unable to find work or had attempted vocational retraining since 1998. The Court rejected Mr. McKee’s argument that he did not voluntarily abandon his employment but that he stopped working in 1998 based on the advice of his physician and psychologist, and citing to State ex rel. Kroger Co. v. Paysen, 109 Ohio St. 3d 155, 2006-Ohio3057, for the proposition that an injured worker has an absolute right to rely on the advice of a physician regarding his ability to engage in gainful employment. The Court stated that the medical reports filed on his behalf in the 2000 PTD application did not advise him he must stop working, and Paysen involved a PTD award after refused to accept a light-duty job (which the Court found inconsistent with allowed conditions) and was not applicable to the facts of Mr. McKee’s case.

State ex rel. Bonnlander v. Hamon, 2017-Ohio-4003 (5/30/17).

Mr. Bonnlander was injured in a motor vehicle accident in 1992. Since the injury, Mr. Bonnlander worked various jobs in the construction industry and for the postal service. After he applied for permanent total disability, the Industrial Commission filed reports from Drs. Brannan, MD, and Sinha, PhD, which opined that Mr. Bonnlander could work “part-time, up to four hours a day” with limitations. Based on these reports, the Commission denied permanent total stating in its Order that Bonnlander “could engage [in] sedentary employment activity which involves part-time work, up to four hours a day and also involves routine employment and minimal new learning on an ongoing basis. The sedentary work should also avoid overhead use of the right arm and avoid excessive lifting, bending and twisting.” Upon appeal, the Tenth District Court of Appeals adopted the magistrate’s opinion, which held that the reports of Drs. Brannan and Sinha met the standard for part-time work under prior case law.

The Supreme Court affirmed the denial of Mr. Bonnlander’s request for mandamus. Specifically, the Court agreed with the Commission that four hours of a work day is not a threshold requirement for “part-time sustained remunerative employment” and that such a bright-line rule would interfere with the commission’s role as finder of fact and exclusive evaluator of disability. The question to be answered by the Commission on PTD is whether the claimant can perform sustained remunerative employment, and Bonnlander now stands for the principal that such question will be determined on a case-by-case basis, and there is no set hourly amount a claimant must be capable of working to make that determination.

State ex rel. Manpower of Dayton, Inc. v. Industrial Comm’n, 2016-Ohio7741 (11/16/16).

This case involves the evidence cited to support a Commission’s finding of permanent total disability. Ms. Fox filed an application for PTD supported by the medical reports of Dr. Kenneth J. Manges, PhD. The Commission’s medical examiners also found Ms. Fox to be at maximum medical improvement and incapable of sustained remunerative employment based on its medical examiners, Dr. James Lutz, MD, and Dr. Thomas Heitkemper, PhD. The Commission granted the PTD application based on all three reports, finding her medically unable of working. The order stated it was based solely on medical impairment caused by her allowed conditions, and not on any of her nonmedical disability factors.

Manpower sought mandamus in the Tenth District arguing the Commission’s order none of the medical evidence cited by the Commission—the reports of all three medical examiners—was “some evidence” in the record to support the grant of permanent total. First, the Court rejected Manpower’s argument that Dr. Manges’ impairment report focused on nonmedical factors to support his position that Ms. Fox was disabled. The Court found that Dr. Manges’ opinion was that Ms. Fox was disabled due to the effects of her injury based on her allowed conditions, without consideration of nonmedical factors. Next, the Court rejected Manpower’s argument that Dr. Lutz’s opinion that Ms. Fox could not work was contradicted by his description of her activities of daily living. Lastly, the Court rejected Manpower’s argument challenging the evidentiary value of Dr. Heitkemper’s report because of his use of the word “medical” in rendering his opinion to a “reasonable degree of medical/psychological probability.” The Court found that under Ohio Admin. Code § 4121-3-34(C)(1), a psychologist may provide “medical” evidence in support of an application for PTD.

State ex rel. Penske Truck Leasing Co., LP v. Industrial Comm’n, 10 Dist. No. 15AP-223, 2017-Ohio-1119 (3/28/17).

Ms. Fizer sustained an injury in 2001 while employed as a driver for Penske, and subsequently a claim was assigned as No. 01-865473 for the condition of “cervical strain” (the “2001 claim”). She sustained a second injury in January 2004, which was assigned claim No. 04-800300 and allowed for the conditions of “lumbar strain, left rotator cuff strain, and adhesive capsulitis of left shoulder” (the “2004 claim). Finally, she sustained a third injury in June 2007 for a subsequent employer, assigned claim No. 07-350194 and allowed for “neck strain, left shoulder strain, disc bulge with compression at C5-C7 and recurrent depressive psychosis-severe” (the “2007 claim”). After filing an application for permanent total disability, the Commission’s medical examiner, Dr. Bond, issued a report with respect to all the allowed physical conditions in all three claims determining that Ms. Fizer had a “34 percent whole person impairment” for all the allowed conditions and was capable of performing sedentary work. Dr. Chatterjee did find 19 percent whole person impairment for the allowed psychological claim in the 2007 claim.

The Commission order granting PTD compensation was based on the reports of Dr. Bond and Dr. Chatterjee and allocated the award among the three claims (78 percent to 2007 claim, 13 percent to 2004 claim, and 9 percent to 2001 claim). In its request for mandamus before the Tenth District Court of Appeals, Penske argued that the report of Dr. Bond failed to separate out the claims in her impairment analysis despite an overlap between the body parts affected by the allowed conditions. Penske’s argument was that the 2001 claim with the only allowed condition of cervical strain had not resulted in significant treatment while the 2007 claim, also involving a neck strain and cervical disc bulges had resulted in five surgeries.

The magistrate found that the report of Dr. Bond failed to indicate the 2001 claim contributed to Ms. Fizer’s permanent total disability (i.e., her ability to engage in sustained remunerative employment) and the Tenth District agreed, finding the evidence does not support the Commission’s allocation of 9 percent of the PTD award to the 2001 claim. Further, the magistrate found the 13 percent allocation to the 2004 award an abuse of the Commission’s discretion because Dr. Bond’s report did not assign a whole person impairment rating as to each of the allowed physical conditions but instead by “body part” or “body area.” The Tenth District agreed with the magistrate, finding that while there is some evidence from Dr. Bond’s report of medical impairment in the 2004 claim, the Commission’s order does not adequately explain what percentage of impairment is attributable to the 2004 claim.

Temporary Total Compensation

State ex rel. James v. Wal-Mart Stores, Inc., 2017-Ohio-1426 (4/20/17).

This case involves eligibility for temporary total compensation in the context of the voluntary abandonment doctrine. Mr. James was injured in the course of his employment with Wal-Mart in 2004. After being released by his doctor with no restrictions the following year, he returned to work for Wal-Mart. He quit his job in April 2007 and then subsequently worked for Petco and then a company called Casper Transport. Casper terminated Mr. James in 2007 for excessive absenteeism. He has not worked since that termination and filed a motion seeking temporary total benefits in 2007. The Commission denied his request for TTD finding that he had voluntarily abandoned his employment. On mandamus before the Tenth District, a limited writ was issued ordering the Commission to consider whether State ex rel. Estes Express Lines v. Industrial Comm’n, 10th Dist. No. 08AP-569, 2009-Ohio-2148 applied. In Estes, the Tenth District found the injured worker to be eligible for TTD when he was laid off because the worker “had submitted medical evidence substantiating that his disability existed at the time of his layoff.”

The Court reversed the Tenth District and denied the limited writ. As prior court doctrine has borne out, an injured worker loses TTD eligibility when he or she voluntarily abandons his or her employment. If one returns to the workforce after abandoning the employment, eligibility for TTD is regained. However, such an injured worker will be eligible for TTD, if, due to the original industrial injury the claimant becomes temporarily and totally disabled at the new job. Here, the Court characterized the status of Mr. James’ departure from Wal-Mart and subsequent employment as follows: Mr. James quit his job at Wal-Mart to seek other employment and his departure was therefore “voluntary”; his departure from his employment from the original injury was not due to the allowed conditions in the workers’ compensation claim; and his subsequent departure from the job at Casper was not due to the allowed conditions in the claim either. Because the record indicates Mr. James was fired due to absenteeism and no evidence was offered showing those absences were due to his prior workplace injury, he was not eligible for temporary total benefits.

State ex rel. Cordell v. Pallet Companies, Inc., 149 Ohio St. 3d 483, 2016-Ohio-8446 (12/29/16).

The Cordell case is important for understanding the current status of the voluntary abandonment doctrine in the context of a positive post-injury drug test. Here the Supreme Court narrowed the circumstances that would make an injured worker ineligible to collect temporary total under the voluntary abandonment doctrine. The employer, Pallet, had a typical drug-free-workplace policy which prohibited the use of illegal substances “at any time whether on or off duty.” Mr. Cordell broke his leg in the course and scope of his employment at Pallet and subsequently failed a routine post-accident drug screen which was positive for marijuana. Mr. Cordell was terminated immediately after Pallet became away of the positive drug screen.

At the Industrial Commission, Pallet did not contest the allowance of the claim itself, conceding that the drug use had not caused the accident itself (it was due to a fall off a tow motor that occurred when a truck pulled away from a loading dock too quickly). The Commission denied TTD to Mr. Cordell finding that he had voluntarily abandoned his employment. In a divided panel decision by the Commission, it was found that the Staff Hearing Officer had failed to apply State ex rel. PaySource USA, Inc. v. Industrial Comm’n, 10th Dist. Franklin No. 08AP-677(June 30, 2009), wherein the Tenth District had found the injured worker abandoned his employment when he used drugs prior to the injury, which severed any connection between the workplace injury and the loss of wages. The panel found that Mr. Cordell “sustained an injury in the course of and arising out of his employment on 2/16/12,” but he voluntarily abandoned his employment by use of marijuana prior to the industrial injury making him ineligible for TTD. The dissenting commissioner argued that PaySource had been discredited and urged granting the award of TTD under the decision of State ex rel. Gross v. Industrial Comm’n, 115 Ohio St. 3d 249 (2007) (“Gross II”).

The Tenth District agreed with the dissenting commissioner and granted Mr. Cordell’s writ. The Ohio Supreme Court affirmed and its decision has narrowing consequences on eligibility for TTD after a post-accident drug test. The Court held that an injured worker fired after their injury “for conduct prior to and unrelated to” the injury does not lose eligibility for TTD if (1) the discovery of the dischargeable offense occurred because of the injury; and (2) at the time of the termination, the employee was incapable of returning to work as a result of the allowed conditions in the claim.

Therefore, in practice, the Court has extended the Gross II rationale to pre-injury conduct, holding that the fact that Pallet had the right to fire Mr. Cordell does not change the fact that Mr. Cordell was injured in the course and scope of his employment and that at the time of his termination, he was temporarily and totally disabled.

State ex rel. Klein v. Precision Excavating & Grading Co., 10th Dist. No. 15AP-908, 2017-Ohio-1020 (3/21/17).

Mr. Klein was injured on November 5, 2014, while working for Precision Excavating and Grading Co. (Precision). In a follow-up appointment with Dr. Robert Marley, a MEDCO-14 was completed, which indicated that Mr. Klein was temporarily and totally disabled and unable to work from 11/5/14 to 1/5/15. Mr. Klein never returned to his employment after the date of injury. The record before the Commission contained evidence that Mr. Klein had planned to quit his job and move to Florida before the date of injury. A witness testified at the

hearing that Mr. Klein called her on October 31 (before the injury) stating he was moving to Florida and asked the procedure for quitting the job at Precision. Further evidence showed Mr. Klein indicated to another employee on November 3rd his intent to give his two-week notice and go to work in Florida. Finally, the MCO’s notes in the record show Mr. Klein’s indications of a plan to move to Florida on November 20th and a note that he had so moved by November 24th. Mr. Klein applied for TTD and the Commission granted benefits for a closed period of November 6th through November 19th (finding benefits after 11/19 to be barred for voluntary abandonment of his employment.)

Mr. Klein filed in a mandamus petition in the Tenth District Court of Appeals requesting an order vacating the Commission’s denial of TTD benefits from November 20th onward. In granting a limited writ, the Court of Appeals looked to the prior case law including State ex rel. Reitter Stucco, Inc. v. Industrial Comm’n, 117 Ohio St. 3d 71, 2008-Ohio-499. In Reitter, the Court found that Mr. Mayle, who was fired while on TTD, did not lose eligibility for TTD even if the requirements underState ex rel. Louisiana Pacific Corp. v. Industrial Comm’n, 72 Ohio St. 3d 401 (1995), were met. The Court stated that “eligibility for temporary total compensation remains if the claimant was still disabled at the time the discharge occurred.”

In the Klein opinion, the Tenth District discusses the voluntary abandonment doctrine at length, citing to both the Pretty Products, Hildebrand and Cordell cases and trying to compare and distinguish the facts before them. In the end, the Court of Appeals found that the key issue was whether Mr. Klein was medically disabled beginning of November 20th. Unlike inHildrebrand, the facts in Klein did not show a release by his doctor to return to light duty which, coupled with a concurrent resignation by the worker broke the nexus between the injury and the employment. Therefore, the Tenth District found that, like in Cordell, if the injured worker is medically incapable of returning to work at the time of the departure from the employment, eligibility for TTD remains. 

“The Calfee Corner” – Recent Calfee Cases Before the Industrial Commission and Courts of Ohio

 State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Industrial Comm’n, 2016-Ohio-7988 (12/6/16).

Ms. Earles was injured in 2011 in the course and scope of her employment. She returned to work subsequently with temporary restrictions on climbing, pushing, lifting, and carrying. There were no restrictions on the number of hours she could work. Ms.Earles was placed in Goodrich’s light duty/restricted duty program, the conditions of which were set forth in the collective bargaining agreement between Ms. Earles’ union and her employer. The CBA provided that employees on light-duty outside their own job classification would not be eligible for overtime. Ms. Earles filed an application for working wage loss based on her reduction in earnings attributed to lack of overtime in her light-duty position. The district hearing officer denied her application and mailed the order on November 23, 2012. Her union representative filed an appeal of the DHO order 20 days later. At the subsequent hearing the staff hearing officer refused the appeal for lack of jurisdiction because of the untimely appeal.

The Commission later allowed the appeal based on an affidavit of the union representative claiming he did not receive the order until November 29th and therefore the appeal was timely. The Commission then allowed the wage loss application on the merits. Goodrich filed a mandamus action before the Tenth District Court of Appeals. The writ was denied and the Ohio Supreme Court affirmed the denial.

The primary issue before the Court was whether Ms. Earles met the requirement under Ohio Admin. Code § 4125-1-01(A)(15) that her wage loss be “the direct result of physical and psychiatric restrictions caused by the impairment that is causally related to the allowed conditions.” Goodrich argued that since Ms. Earles had no restrictions on the number of hours she could work, her ability to work overtime was not causally related to her allowed conditions, but due to the CBA restrictions. The Court disagreed and ruled that the evidence showed Ms. Earles to have been placed in the light-duty program because of her medical restrictions causally related to the allowed conditions in her claim. The Court further ruled that the appeal of the DHO order was timely and rejected the employer’s argument that the Commission abused its discretion in not applying the “mailbox rule” to calculate the appeal time. Without any analysis on the mailbox rule case law, the Court, like the Commission and Tenth District, relied upon the affidavit of the union representative that he did not receive the appeal for six days after mailing.

State ex rel. Mike Coates Constr. Inc. v. Industrial Comm’n, 10th Dist. No. 16AP-114, 2017-Ohio-718 (2/28/17).

Mr. Van Buskirk sought treatment on September 4, 2002, regarding a back injury that had allegedly occurred the day before. His claim was allowed for several conditions and he began receiving temporary total compensation from September 5, 2002, onward. Several years later, the BWC’s Special Investigations Department received information that Mr. Van Buskirk had been working during the period he was receiving temporary total. The BWC moved for a declaration of overpayment for TTD benefits paid from 11/20/02 through the present. After a hearing, the District Hearing Officer ruled Mr. VanBuskirk had committed fraud and ordered almost twelve years of overpayment for TTD benefits.

In July 2015, the employer filed a motion invoking continuing jurisdiction under OhioRev. Code § 4123.52 to disallow the entire industrial claim based on the DHO Order that determined the compensation was fraudulently obtained. After administrative hearings on the employer’s motion, which included record evidence in the form of affidavits of coworkers stating they did not witness the alleged Van Buskirk injury, the motion was denied and the employer filed a mandamus action.

The Tenth District Court of Appeals denied the employer’s request for a writ, finding the Commission did not abuse its discretion. The court opined that the employer here was looking for an “inference” from the SID report and the prior DHO order finding Mr. VanBuskirk had fraudulently obtained compensation that he also fraudulently obtained the claim allowance. The court indicated it was not required to accept such inference and would not do so here. Essentially, while noting the Commission’s ability to draw reasonable inferences, the Court of Appeals ruled that “concluding that the perpetration of a fraud in obtained TTD compensation does not necessarily mean that the September 3, 2002, injury did not occur, and the SHO simply relied on his own common sense in evaluating the evidence.”

John R. (14-872004) and Ronald B. (16-837301) – Strong preparation of evidence and testimony continues to defeat attempts of independent contractor drivers to be recognized as “employees” (5/6/17 and 2/23/17).

Mr. R was a delivery driver who was injured in a car accident while performing his deliveries near Bellefontaine, Ohio. He had entered into an Owner/Operator Agreement in 2012 under which he agreed to provide delivery services which entailed picking up automobile parts from an Advanced Auto parts hub in one Ohio city and delivery of those auto parts to three other cities on a daily route. Mr. R. argued that he was the employee of the other party to the Agreement, the Alleged Employer. In support of its defense against the claim, the Alleged Employer offered both documentation of the manner and means of Mr. R’s performance of his work, as well as testimony of a witness with knowledge of the operations.

Based upon the evidence and testimony at the hearing, the Ohio Industrial Commission denied the claim and found that Mr. R. had failed to establish the existence of an employer-employee relationship with the Alleged Employer, and to the contrary, the Commission found Mr. R. to be an independent contractor on the date of his injury. The Commission found that the evidence and testimony established these facts: Mr. R. controlled the manner and means of providing his delivery services; Mr. R. provided his own vehicle, paid for his own fuel and maintenance; the Alleged Employer did not dispatch Mr. R. on any particular route; Mr. R. controlled which hours he worked and was free  to work for other entities; Mr. R. was free to terminate the relationship at any time and was also free to reject any assignments; Mr. R. was paid “per route/delivery” not by a wage; and Mr. R. was issued 1099 statements from the Alleged Employer and filed his taxes as self-employed.

Similarly, Mr. B. also alleged an employer-employee relationship with the company with which he entered into an independent contractor agreement. Mr. B., a delivery driver, was injured when unloading materials from his truck and was struck with a heavy box that was unsecured. In defense of Mr. B’s claim of employment, this Alleged Employer also supplied the Industrial Commission with documentary evidence of the independent contractor relationship, as well as two witnesses with personal knowledge of the day-to-day operations of the relationship.

The Industrial Commission disallowed Mr. B’s claim finding that he was not an employee of the Alleged Employer, but an independent contractor. The Alleged Employer offered evidence and testimony to establish the defense that it insufficient control over the manner and means of Mr. B’s performance of his work, failing to establish an employment relationship under Ohio law for workers’ compensation purposes. The commission determined that Mr. B was paid a percentage of each load delivery – not a wage; Mr. B was free to accept or reject each and every load offered; the equipment used, including the truck, was owned by Mr. B.; Mr. B set his own hours subject only to the delivery deadline set by the customer (not the Alleged Employer); and Mr. B was not told what specific route he had to take for his deliveries.

Allegations of employment relationships in truck delivery matters are very fact specific. However, diligent preparation of documents and testimony establishing the control factors on the performance of the work rest with the driver (or some third party) and not the Alleged Employer. Successful results before the Ohio Industrial Commission reflect this diligent preparation. The denial of Mr. R’s claim is now in Court on Mr. R’s appeal on the denial of an employment relationship. Mr. B. did not appeal the Commission’s final order denying his claim.

Barnabas B. (16-823848) – The entity that pays the Claimant’s wages on the date of injury is not always deemed to be the “employer” for workers’ compensation purposes. (5/26/17)

Officer B. is a police officer for the City’s police department. Pursuant to a secondary employment agreement between the City and the Employer, Officer B. was working security at Employer’s premises during his off-duty time with the City, and was injured when he fell off a Segway while pursuing the investigation of a suspect as directed by a separate State law enforcement agency. Officer B. claimed that he was employed by the Employer at the time of injury because he was working security for it at the time, was being paid at that time by the Employer, and the injury occurred on the Employer’s property.

At the hearing before the Ohio Industrial Commission, Officer B. and the City argued that the claim should be assigned to the Employer. In defense, the Employer provided the “Acknowledgment of Secondary Employment” agreement entered between the City and the Employer and provided its head of security to explain both the agreement and the actual implementation of the arrangement to the Commission.  The document stated under “Workers’ Compensation” heading that “[i]f an officer is injured while acting in his capacity as a law enforcement officer, the officer’s injury will be covered by the [City’s] police department. However, if the officer receives a non-police related injury while working for [the Employer], [the Employer’s] workers’ compensation must cover it.”

The Employer’s witness explained the nature of the arrangement, that the Employer hires the “police authority,” not the individual police officers such as Officer B.  If a police officer were to arrest somebody while working for the Employer, the officer would be working within his duties as a police officer for the City, not for the Employer.  Further, the Commission agreed with the Employer that under the arrangement, if the police officer were to use force, he would be within his capacity as a police officer for the City; but if the police officer were to happen to slip and fall coming out of the restroom at the Employer’s premises while working for the Employer, then that would be covered under the Employer’s workers’ compensation policy.

The Commission, based on this testimony, found that the facts that Officer B. was on duty with the Employer and was paid by the Employer at the time of the injury were not determinative. Instead, the fact that Officer B. had been dispatched to investigate and arrest a suspect by a totally separate state law enforcement agency when he was injured, demonstrated he was working within his capacity as a law enforcement officer and his injury would be covered by the City.

Officer B., having his injury compensated under the City’s policy, did not appeal. The City, despite contesting the claim at the first level hearing before the Commission, did not appeal the ruling and accepted the claim.

Industrial Commission Update

The Industrial Commission has issued two Memoranda based on two of the noteworthy court decisions discussed above.  These Memoranda are designed to provide “guidance” to Hearing Officers in applying the law as interpreted by the Ohio Supreme Court.

Memo D5.  Voluntary Abandonment (Effective 05/17/2017). 

This Memo is based on the Cordell case.  It differentiates three (3) logical types of voluntary abandonment.  The most straightforward is voluntary retirement from the workforce.  If the retirement is based on the “voluntary” choice of the worker then future temporary total or permanent total benefits are precluded.  If the retirement is due to the allowed conditions in the claim, then it is not considered “voluntary.”  Future compensation for being off work is possible if the appropriate criteria for compensation have been met.

Closely related to voluntary retirement is “abandonment of the entire workforce.”  This may or may not be a result of the industrial injury.  When it does result from an industrial injury, the correct inquiry centers on whether the worker has sought other employment.  A typical scenario would be an injury followed by some period of temporary total, an end to the temporary total, and future medical treatment.   If there has beenno attempt to re-enter the workforce, future wage replacement benefits are precluded regardless of whether or not the worker could return to the former position of employment.

The third type of voluntary abandonment is described by Cordell and requires review on a case-by-case basis.  In pursuing this inquiry, theCordell test should be addressed: off-work benefits may not be denied where: (1) the worker remained medically incapable of returning to work due to the injury; and (2) discovery of the dischargeable offense occurredbecause of the injury.        

Memo B2.  Substantial Aggravation (Effective 08/25/2017). 

In light of the Clendenin case, the Industrial Commission instructed Hearing Officers to be especially clear on the bases of decisions for substantial aggravations.  The “substantial aggravation” standard only applies to claimsafter August 25, 2006, the date on which this legal provision became effective.  Similarly, “abatement” of the substantially aggravated condition is only possible with these claims. 

By legal definition, a substantial aggravation must be evidenced by objective diagnostic findings, objective clinical findings, or objective test results.  Whether a substantial aggravation has occurred is alegal rather than medical determination.  “...(A)lthough it is necessary that the hearing office rely on medical evidence that provides the necessary documentation pursuant to the statute, it is not necessary that the relied upon medical evidence contain an opinion as to substantial aggravation.”

Consistent with Clendenin, finding that a substantially aggravated condition has abated, or returned to baseline, is an extent of disability decision which isnot appealable to common pleas court.  The claim remains allowed for the substantial aggravation.  “Hearing officers are to handle requests for additional compensation or treatment after an abatement finding as they do requests for a new period of temporary total disability after a finding of maximum medical improvement.”

Bureau of Workers’ Compensation News

BWC has promulgated two new rules in the Ohio Administrative Code (OAC). 

OAC 4123-6-21.7 “Utilization of opioids in the subacute or chronic phases of pain treatment for a work-related injury or occupational disease” has emerged from BWC’s efforts resulting in a 49% reduction in prescribed opioid doses from 2011 through 2016.  The Rule governs reimbursement of opioid prescriptions in the subacute phase of pain treatment, at high doses, or in the chronic phase of pain treatment, and for discontinuing opioids in the chronic phase of pain treatment.  The Rule emphasizes the prescriber’s sound clinical judgment and adherence to prescribing guidelines from the Ohio State Medical Board.

In the subacute phase of pain treatment, escalating the dosing regimen beyond fifty (50) milligrams morphine equivalent dose (MED) per day must meet certain requirements.  The time frame is six (6) weeks after the date of injury or surgery related to the allowed conditions, whichever occurs first.  First, an individualized treatment plan with clinical rationale must be developed.  Second, a clinically validated tool for risk assessment and drug testing must be utilized.  Finally, the worker must demonstrate “clinically meaningful improvement in pain and function” (CMIF). 

For reimbursements at high doses, or in the chronic phase of pain treatment, the criteria are eighty (80) MED and twelve (12) weeks to trigger the above three requirements.  In addition, there must be documentation that reasonable alternatives to opioids have been tried and failed.  For one hundred twenty (120) MED, added criteria include a risk benefit assessment, consultation with a pain management specialist, evidence of the worker’s informed consent, and appropriate additional consultations if the worker has a substance abuse issue or poorly controlled mental health disorder. 

More than twelve (12) weeks after the date of injury or surgery related to the allowed conditions, reimbursement will be provided when standard dose tapering schedules have been utilized.  During the following eighteen (18) month period, a single designated prescriber must be selected by the injured worker.  Formulary medications as adjuncts to withdrawal from opioids will be reimbursed.  With appropriate documentation, up to thirty (30) days of inpatient detoxification also will be reimbursed.

OAC 4123-6-32 “Payment for lumbar fusion surgery” mandates three (3) prerequisites for authorization.  First, there must be at least sixty (60) days of conservative care emphasizing physical reconditioning, opioid avoidance, and the provider not “catastrophizing the explanation of lumbar MRI findings.”  Second, the operating surgeon must have evaluated the injured worker on at least two occasions before requesting authorization for surgery.  Third, the injured worker must have undergone a comprehensive evaluation with coordination between the treating physician and the operating surgeon.

The Rule differentiates between injured workers with no prior history of lumbar fusion from those who have a history of prior lumbar surgery.  For both categories, the Rule lists various objective signs/symptoms which must be present for the surgery to be authorized.  The treating physician and the operating surgeon are required to follow the injured worker until maximum medical improvement has been reached.  An Appendix to Rule OAC 4123-6-32, “What BWC Wants You to Know About Lumbar Fusion Surgery,” must be shared with the injured worker and signed by him or her, the Physician of Record, and the Operating Surgeon.

Health and Behavioral Assessment Intervention (HBAI) The BWC has created a new mechanism for the HBAI. It is designed to address cognitive, emotional, social, behavioral, and psychological issues which may interfere with effective healing from an industrial injury.  The HBAI is not intended to focus on mental health issues created by the physical injury which could become the subject of an additional claim allowance.  The BWC designed HBAI as a tool to help the attending physician design a more effective treatment regimen.

HBAI has two components.  The first is the Assessment, for which approval must be sought from the Managed Care Organization.  Once approved, the attending physician learns the issues which may be impeding the patient’s recovery.  The next step is the Intervention, which also has to be separately approved by the Managed Care Organization.  According to the BWC, intervention services generally take the form of limited coaching and/or counseling sessions.  It is important to emphasize that this is a new program for which there have been no results.