CALFEE, HALTER & GRISWOLD LLP
STATE LAW (OHIO) UPDATE
SEPTEMBER 2018[1]
“Calfee Corner” - - Recent Calfee Cases before the Ohio Industrial Commission
Claim 18-163810 (“Fight in parking lot”). On 6/29/18, Injured Worker (IW) was hurt in the parking lot of the facility where he was placed by his staffing company employer. The injury was a blow to the head caused by a punch from a co-worker. Upon investigation and several witness interviews, the following factual circumstances were uncovered:
Earlier that day, IW had been driving a forklift and ran that forklift into a pole, damaging it. IW was cited by the employer for failing to survey his surroundings before backing up the forklift. The employer took him off forklift duty for the remainder of the day and going forward. Subsequently, a female co-worker asked IW why he was upset and he responded to her angrily. The female co-worker reported this behavior to her boyfriend, also an employee at the facility, and the remainder of the shift was filled with angry stares and tension between IW and the two co-workers. At the end of the shift when the workforce gathered at the time clock, another female co-worker asked IW what was wrong, and he responded to the group “Let’s go outside.” Once in the parking lot, the other co-workers entered their vehicles, but IW made a “come on” motion to the male co-workers in their vehicles while still in the parking lot. One of the male co-workers (the aforementioned boyfriend) got out of his vehicle and struck IW with a punch to the face.
The aftermath of the fight was caught on cell phone video, and the operations manager began his investigation of the incident. All workers involved in the incident, including IW, were terminated. Witness statements were gathered. IW went to the emergency room for treatment for his punch injury and an Ohio workers’ compensation claim was filed with the diagnosis of a “contusion to head.”
The staffing company employer appealed Ohio BWC’s allowance of the claim. At hearing, counsel and the employer’s operations manager presented the evidence and argued that the claim should be disallowed as it did not arise in the course of IW’s employment. Ohio workers’ compensation law authorizes the allowance of a claim for an injury resulting from a workplace fight as long as: (1) the origin of the assault/fight was work-related; and (2) the IW/claimant was not the instigator of the assault/fight. While the origin of the fight may well have been work-related (IW’s anger over forklift incident), and despite IW being the only one actually punched, it was argued that he was the instigator and therefore his claim should be disallowed. The Industrial Commission agreed and disallowed his claim. Thorough investigation with witness statements was crucial to the hearing presentation in establishing that IW was the instigator, and getting his claim denied.
Claim 15-859933 (“Paraplegia diagnosis not medically justified”). On 12/3/15 IW, a then 52 year old experienced nurse’s aide in a facility providing care for the elderly, slipped and fell in the dining room. A week later she had surgery to her right elbow. While hospitalized she developed an infection to the surgically repaired elbow. Still in the hospital, the IW developed a lumbar epidural abscess which also necessitated surgery. The IW had a complicated hospital course and was not released to rehabilitation until some six (6) months after the initial elbow surgery. Her claim was allowed for “Displaced Fracture Lateral Condyle Right Humerus; Lumbar Epidural Abscess.”
The IW remained physically unable to return to her former position of employment as a nurse’s aide and was restricted to sedentary/office work. She eventually came under the care of Dr. N, a Physical Medicine and Rehabilitation Specialist. Dr. N provided a causal relationship for the additional allowance of her claim for “L3 AIS D Paraplegia.” The Employer obtained an independent medical examination which concluded the additional condition shouldnot be allowed because: “Paraplegia is defined as paralysis characterized by motor or sensory loss in the lower limbs and trunk…The medical records support that she has good strength…”
In successfully arguing the case before the Industrial Commission, Calfee emphasized the “International Standards for Neurological Classification of Spinal Cord Injury.” The “L3” was simply the nerve root level that was the source of the alleged Paraplegia. “D” stood for “Motor Incomplete.” Motor Incomplete status is defined…“with at least half (half or more) of key muscle functions below the single Nerve Root Level having a muscle grade greater than or equal to 3.” Dr. N’s extensive office notes all showed physical examination muscle function scores of “4” and “5” throughout the IW’s lumbar spine. The additional allowance was denied.
Claim 14-864539 (“She fooled all the doctors, but not the camera”). IW suffered a left foot fracture at work on 12/7/14. The claim later was additionally allowed for complex regional pain syndrome (CRPS – formerly known as RSD). IW was paid TT from the DOI without interruption. Two separate employer IMEs supported on-going TT status as this doctor and that doctor tried this treatment and that treatment (PT, blocks, etc.), all to no apparent avail as the years went by.
The Employer then had IW surveilled. Surveillance revealed an active IW with no apparent left foot problems at all and an IW ambulating in complete contradiction to her professed clinical picture. A somewhat indignant IME doctor (who previously found the CRPS condition to be on-going and requiring treatment) issued a supplemental report finding MMI and no need for additional treatment. All of this lead to a Commission order terminating TT, as well as all on-going and future treatment in the claim.
Court Decisions of Note:
Employer Intentional Tort
HP Manufacturing Co. v. Westfield Insurance (Eighth District Case No. 106541 7/19/18).
The reports of the demise of employer intentional torts in Ohio have been greatly exaggerated. A case in point isH. P. Manufacturing Co. out of Cuyahoga County (Cleveland) wherein the appellate court upheld a $400K jury verdict against the employer for the deliberate removal of a safety guard leading to injury to IW. See also Lunsford v H. P. Manufacturing Co. (Cuyahoga C.P. Case No. 14-828457). In addition, the court held that the loss was uninsurable as it involved intentional conduct.
As well as demonstrating that employer intentional torts live on in Ohio, the H. P. Manufacturing Co. case is also instructive in that an employer should not simply turn over an intentional tort case defense to its insurer and assume that it will be all taken care of as though it was just another premises liability claim.
Travelling Employee/Personal Errands
Aysha Osten v. Ohio BWC (Second District Case No. 27583 12/29/17).
Reports that Ohio is a “24/7” coverage state for travelling employees also are greatly exaggerated. Osten is a case in point. Flight attendant Osten was on a lay-over at LaGuardia staying at a Hampton Inn between assigned flights. That evening, after having dinner with other flight attendants and crew personnel, she slipped and fell on a public sidewalk while returning to her hotel.
The Ohio Industrial Commission, the trial court, and then the Court of Appeals, all found that this slip and fall by a travelling employee was one occurring on a “personal errand” (i.e., dinner), and therefore wasnot compensable under the Ohio Workers’ Compensation Act. The take-away here is that an employer should assume nothing when it comes to the compensability of injuries to travelling employees (or any other employee for that matter).
Travelling Employee/Coming & Going Rule
Green v. Mark Glassman, Inc. (Eleventh District Case No. 17-P-0041).
IW’s job was installing cash registers at retail stores. IW suffered injuries in an MVA upon returning home from his last store. IW argued that travelling on various roads to various locations made him a “travelling employee,” and one that also faced a “special hazard.” The court disagreed and found in essence that he was a “rotating fixed site” employee who did not commence his employment duties until he arrived at a specific and identifiable workplace as designed by the employer. Thus, IW’s claim was barred by the “coming-and-going” rule.
Job Abandonment
State ex rel. Demellweek v. Indus. Comm. (10th Dist. Franklin No. 16AP-874).
The court granted the IW’s request for a writ of mandamus ordering the Commission to vacate an order denying TT compensation. The Commission had found IW’s safety rule violation subjected him to immediate dismissal, making him ineligible for TTD compensation. The court found no evidence that the employee handbook provided IW with notice that his actions would constitute conduct that would warrant immediate firing. The takeaway here is that the employer did not have sufficient evidentiary support to show voluntary abandonment so as to bar TT.
State ex rel. Williams v. Indus. Comm. (10th Dist. No. 17AP-157).
In Williams, the court held that the Commission properly denied IW’s request for PTD compensation on the ground that he had voluntarily abandoned the workforce. The evidence indicated IW did not attempt rehabilitation following his injury, and that his only attempt at employment in the 30-year period involved a position not within his work restrictions.
Medical Evidence
State ex rel. Farrell v. Ohio Indus. Comm. (10th Dist. No. 17AP-126).
The court denied IW’s request for a writ of mandamus to order the Commission to vacate its order denying PTD compensation, finding that the Commission properly relied on the medical report of a doctor who opined that IW was capable of working in a “supportive environment.” IW argued the doctrine of stare decisis operated to compel the Commission to grant PTD compensation, asserting that the Commission, in a separate and wholly unrelated decision, granted a different IW’s PTD application based on the same doctor’s opinion that used nearly identical language as the opinion in his claim.
The court held the doctrine of stare decisis applies to principles of law, not findings of fact. To conclude that the Commission had to use the doctor’s report to determine that this IW was entitled to PTD compensation ignores the myriad factual intricacies at play in both IW’s case and the case of the unrelated IW. Both decisions involved heavily fact-dependent determinations by the Commission, and it was the Commission’s role, in each case it evaluated, to determine the appropriate weight given to the evidence before it.
Independent Contractor
Green v. Admr., Ohio Bur. Of Workers’ Comp. (4th Dist. No. 17CA17).
In Green, the appellate court held that competent and credible evidence supported the trial court’s ruling that IW’s alleged employer did not exert the requisite control over his logging work necessary to establish an employer/employee relationship. IW was hired as an experienced logger, he de-limbed trees independently without control exerted by the alleged employer, and he was free to leave regardless of hours worked or time of day.
The take away here is that Ohio continues to be fairly conservative on the “employee versus independent contractor” disputes and with proper presentation of evidence under the standard “right to control” test, a lack of employment relationship frequently can be found.
Industrial Commission Update
Memo D8 (“Temporary Total Disability Certification for Physical and Psychological Conditions”):
During the first six weeks after the date of injury, temporary total disability can be certified by a physician, certified nurse practitioner, clinical nurse specialist, psychologist, or physician assistant who has examined the injured worker.
Both during and after six weeks from the date of injury, certification of temporary total disability for physical conditions may be submitted by a Medical Doctor, Doctor of Osteopathy, Doctor of Podiatric Medicine, or Chiropractor.
Both during and after six weeks from the date of injury, certification of temporary total disability for psychological conditions may only be submitted by a Psychologist, Medical Doctor, or Doctor of Osteopathy.
Memo F4 (“Loss of Use of Vision and/or Hearing Secondary to a Traumatic Brain Injury”):
R.C. 4123.57(B) does not permit an award for loss of vision or hearing resulting from the loss of brain stem functioning. To be entitled to an award for loss of vision or hearing, evidence must demonstrate an actual loss of function of the eyes or ears.
Memo F6 (“Orders Awarding Scheduled Losses”):
When awarding compensation for a scheduled loss, hearing officers shall provide a start date for the award. In the case of amputation or actual loss, the start date is the date of amputation or loss. In the case of a loss of use, the start date is the date of the earliest medical evidence being relied upon to make the award.
However, pursuant to R. C. 4123.52, in no case shall the start date be earlier than two years prior to the filing of the application seeking the award.
Memo S-11 (“Request for Allowance of a Condition by Either Direct Causation, Aggravation/Substantial Aggravation, or Flow-Through, and Jurisdiction to Rule at Hearing”):
If there is evidence on file or presented at hearing to support the theories of direct causation, aggravation (date of injury or disability prior to August 25, 2006)/substantial aggravation (date of injury or disability on or after August 25, 2006), or flow-through, a request to allow a condition in a claim is to be broadly construed to cover those theories of causation. The hearing officer shall address the origin of the condition under those alleged theories of causation without referring the claim back to the prior hearing level or the Bureau of Workers’ Compensation. Where a new theory, not formerly requested, is raised at hearing or where new evidence regarding an alternative theory of causation is submitted by any party, hearing officers and/or hearing administrators shall ensure that all parties are given adequate opportunity to obtain evidence in support of their position by continuing the hearing for a period of at least 30 days, unless the parties agree that less time is sufficient for obtaining the necessary evidence. The hearing officers and/or hearing administrators shall state in their order or compliance letter the period of time allotted to obtain the necessary evidence.
New BWC Rules
OAC § 4123-6-32 (“Payment for Lumbar Fusion Surgery” 1/1/18).
This new rule requires at least sixty days of conservative care before considering a surgical fusion option. Exceptions: spinal fractures, tumors, progressive functional neurological deficits.
OAC § 4123-6-33 (“Payment for Health & Behavioral Assessment and Services” 7/1/18).
This rule allows for a modicum of psychological-type assessment and counseling in order to help a physician “address cognitive, emotional, social and behavioral issues interfering with expected healing,” without adding a psychological condition to the claim.
New BWC Form – C-512 (“Notice of Intent to Settle”)
This form puts the BWC (and presumably any others receiving it) on notice that, after a final order of the Industrial Commission, the parties are entering into settlement negotiations. This allows the Statute of Limitations governing the filing of an appeal into court of an adverse order of the Commission on allowance and additional allowance issues to be extended from sixty days to one hundred and fifty days, “unless the opposing party files an objection of the Notice of Intent to Settlement within fourteen days after date of receipt of the Notice of Intent to Settle.”
Medical Marijuana
Medical marijuana has come to Ohio, although the rules governing the dispensing, etc. of medical marijuana are not yet set. However, BWC has gone on record with an August 2018 bulletin that essentially states that BWC’s position is that medical marijuana does not exist in Ohio for workers’ compensation purposes. This is based on the fact that medical marijuana is not an approved FDA drug, will not be dispensed by a registered pharmacist, and is not listed on the BWC pharmaceutical formulary. Thus, marijuana is not an approved drug in Ohio for workers’ compensation purposes.
Additional Ohio BWC Updates
Since our last update, the Ohio Bureau of Workers’ Compensation (BWC) has implemented additional changes affecting Ohio employers. A summary of some of the more intriguing updates follows:
Motor Vehicle Accidents Not Chargeable – Updated Application In Process
As previously reported, the passage of House Bill 207 states that if a State Fund employer can establish that an employee’s claim is the result of a motor vehicle accident involving a third party in which the employee was not at fault, the cost of that claim will be excluded from the employer’s future premium rating calculations. This law/policy is effective for accidents occurring on or after July 1, 2017.
The law, as originally written, required that to obtain the claim cost exemption, the third party at-fault driver must have active insurance coverage, or the employer must have active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident.
Initial experiences with this new procedure revealed that the citation requirement was in many cases an unforeseen stumbling block in gaining BWC approval of the exemption, as issuance of a citation tends to be discretionary, and therefore is not always available.
This unintended consequence was brought to the attention of the Ohio legislature, and an amended law has been passed & signed by the Governor. This revision removes the requirement for an actual citation, but fault on the part of the third party must still be shown. The change is intended to be retroactive to the original July 1, 2017 effective date of the law, which will require the BWC to re-adjudicate previously denied applications for recovery.
BWC is currently finalizing their procedures to comply with the revised law. We urge employers to re-visit any claims involving motor vehicle accidents occurring July 1, 2017 or after, to ensure that if applicable, this potential 100% recovery is obtained.
Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their historical rights to subrogate against a responsible third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.
Rating Experience Changes / Premium Credits for July 2019 Policy Year
BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs. As a result, BWC has implemented a number of changes to the factors which govern BWC’s experience rating calculations, and the resulting premiums charged to many Ohio employers.
The most significant of these changes involves introducing a Premium Size Factor to reduce the premiums of non-group experience rated employers who pay in excess of $5,000 in annual premium.
The reductions, which will be applied automatically to the employer’s premiums, are:
· 15% discount on premiums between $5,000 and $100,000
· 20% discount on premiums between $100,000 and $500,000
· 25% discount on premiums above $500,000
The impact of these changes suggest that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.
For instance, for a larger employer, if traditional group experience rating results in savings of less than ~25%, consideration may be given to the group retrospective rating option, which could provide downstream rebates dwarfing the traditional up-front group rating discounts.
Employers’ third party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes.
Other changes for the July 2019 policy year include:
· An experience modifier adjustment factor for individually rated employers
o Experience modifier adjustment credit of 5% for EMRs 0.90 and lower
o No adjustment factor for EMRs 0.91 to 1.99
o Experience modifier adjustment penalty of 5% for EMRs 2.00 and higher
· Revised group retrospective rating program basic premium factors to compensate for the premium size factor adjustments
· Reduce the maximum chargeable claims losses for the smallest Ohio employers
July 2018 Policy Year Rates Reduced
The BWC reduced private employer premium rates by an average of 12% for the July 1, 2018 policy year. BWC estimates this will save private employers $163.5 million during the policy year ending June 30, 2019.
Ohio Workers’ Compensation rates are at their lowest point in over 40 years, with no overall rate increases since 2007.
Employers should consult their third party administrators or other resources to confirm the impact of these rate changes, as individual manuals’ base rate changes can range from +14% to -36%.
Additionally, premium rate reductions often are accompanied by similar reductions to expected loss rates, which can result in higher experience modifiers that would at least partially offset base rate reductions.
BWC Wellness Initiative
Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).
At present, this program is limited to the following high-risk industries: agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.
Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and by agreeing to participate, injured workers can qualify for free services such as:
· Health and wellness awareness, education and training
· Health assessments & biometric screenings to better understand their health and well-being
· A website allowing them to develop health plans & track progress to achieve their health goals
· A state-of-the art mobile app for creating weekly action plans and getting health tips
· Digital coaching to help them on their journey to better health.
This program, still in its infancy, strives to extend the BWC’s existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including biometric measurements and coaching to address at risk health behaviors.
A number of Ohio-certified Wellness program developers, including Paramount Preferred Solutions, are available to assist employers to implement Wellness programs which qualify for the BWC Wellness Grant reimbursements.
About the Author
Michael Brown, ARM is an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions. Michael has over 38 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio.
In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers. Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer, and is well versed in Integrated Disability Management programs and philosophies. This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide reaching solutions to the most complex Workers’ Compensation challenges.
With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury.
Please feel free to reach out to Michael at mike.brown@promedica.org, www.linkedin.com/in/michaelbrown5 or (844) 777-5867 ext. 301770.
