State News

New York State is to resume In-person hearings at the Workers' Compensation Board on or after 10/7/24! Although the WCB has decided to reopen its hearing points for In-person hearings, it will continue to allow virtual attendance. In-person attendance is strictly voluntary. It remains to be seen how the reopening will be laid out across the state. It is also an unknown regarding whether claimants and attorneys will choose to attend hearings in-person. 

New York State workers' compensation hearings have been held exclusively via the Board's virtual hearing system since the onset of the COVID-19 pandemic in March 2020. 

Ohio Judicial Decisions

Supreme Court of Ohio

Temporary Total Compensation – State ex re. Dillon v. Indus. Comm., 2024-Ohio-744 (March 5, 2024).

On March 5, 2024, The Ohio Supreme Court issued a significant decision in State ex rel. Dillon v, Industrial Commission (Slip opinion No. 2024-Ohio-744) by ruling that any Temporary Total Disability Benefits (TTD) received by a Claimant subsequent to achieving Maximum Medical Improvement (MMI) can be recouped by Employers. While on its face this may not seem like a major change in the current law, this landmark decision overrules prior case law and sets the stage for potential widescale determination of overpayments in many of Ohio Workers’ Compensation claims.   

For almost twenty-six years, the termination of TTD by way of a finding of MMI was governed by the Supreme Court’s decision in State ex rel. Russell v. Indu. Comm., 82 Ohio Std.3d 516, (1998). In Russell the Court determined that a Claimant’s TTD benefits may not be terminated prior to a hearing before an Industrial Commission hearing officer so long as the Claimant’s attending physician continues to certify TTD, and that a hearing officer may not terminate a Claimant’s TTD benefits retroactive to a date prior to the date of hearing.  Moreover, the Russell Court further stated that a Claimant is entitled to all compensation paid up to the date of the hearing.  The Russell Court then summarily concluded that “…the appropriate date on which to terminate disputed TTD compensation on the basis of maximum medical improvement is the date of the termination hearing and the commission may not declare an overpayment for the payments received by the claimant before that date.” Id at 519. This is no longer the case.  

In Dillon, the Bureau of Workers’ Compensation (BWC) allowed Dillon’s claim for “lumbar strain.” On appeal, a District Hearing Officer once again allowed Dillon’s claim for only the “lumbar strain” but granted TTD compensation for that condition. Dillon subsequently appealed the denial of her additional requested conditions to the Staff Hearing Officer (SHO) level, and her employer obtained an Independent Medical Examination (IME). The employer’s IME concluded that Dillon had reached MMI as of August 8, 2019.  The SHO hearing was held on October 28, 2019, at which time the SHO affirmed the disallowance of Dillon’s addition requests and also found Dillon to be MMI as of August 8, 2019, the date of the Employer’s IME. However, between August 8, 2019, and the time of the October 28, 2019, SHO hearing, Dillon had received TTD payments totaling $5,549.40.  The BWC issued an Order attempting to recoup these funds. The Ohio Industrial Commission found that recoupment was appropriate which gave rise to Dillon seeking a writ of mandamus from the Tenth District Court of Appeals.  The court of appeals denied the writ which gave rise to this matter before the Ohio Supreme Court.

The Ohio Supreme Court in Dillon denied the requested writ but took a de novo review of the issue since the court of appeals decision involved an issue of statutory interpretation. The Dillon Court concluded that Claimants are not entitled to receive payments after attaining MMI pursuant to ORC 4123.56(A), and that if the Claimant is not entitled to those payments, ORC 4123.511(K) requires that those payments be recouped.  The Dillon Court concluded that the reasoning by the Russell Court ran counter to the plain language of those statutes and therefor overruled Russell. 

So, where do we go from here? The practical effect of Dillon is that Employers will now argue at hearings that a Claimant should be determined MMI as of the date of the Employer’s IME. 

Loss of Use – State ex rel. Walters v. Indus. Comm., 2024-Ohio-553 (Feb. 16, 2024)

Mr. Walters (Decedent) was employed as a mechanic by Paradise Lawn Care.  On May 16, 2018, the Decedent was pinned under the bucket while repairing a bucket loader, sustaining blunt trauma to his chest. The injury caused traumatic asphyxiation leading to cardiac arrest and ultimately severe anoxic brain injury. The Decedent died the next day. The Ohio BWC allowed the claim for dependent death benefits to his surviving spouse Mrs. Walters (Walters).

In addition to the award of dependent death benefits, Walters also requested a scheduled loss of use award claiming that that prior to her husband’s death that he suffered the loss of use of both arms and legs, loss of sight in both eyes and loss of hearing in both ears. Hospital records indicate that there were no injuries to the Decedent’s arms, legs, eyes or ears. In support of her claim, Walters submitted a letter from the Decedent’s trauma surgeon in which he opined that by the very nature of the anoxic brain injury the Decedent was left without the use of his arms and legs and likely without his vison or hearing from the time of the injury until his death the next day.  The Claimant also obtained a medical opinion from a neuro-ophthalmologist who opined that the Decedent had suffered a total loss of vision and hearing as a result of the traumatic injuries.  

The BWC obtained a file review in which he State doctor opined that the Decedent was unresponsive and had no neurologic function from the time of the blunt trauma until his death and that there was no evidence or trauma to the extremities or any compromise to the vascular or neurologic structures that support the extremities. The opinion was that had the Decedent survived he would have retained the use of his arm and legs.

The DHO granted the request for scheduled loss of use and the Employer and BWC obtained another report in which the physician opined that the Decedent was dead prior to the loss of use of his arms, legs, vision and hearing.  Walters also obtained two additional medical opinions one stating that while it was not possible to perform tests of brain function it was still their opinion that the Decedent spent the last day of his life without hearing or vision. Yet another opinion obtained by Walters found that the decedent was never “brain dead” because he never underwent testing to confirm brain death and that until his death the decedent had lost use of his vision, hearing, arms and legs.  

The SHO vacated the DHO Order found that the medical evidence did not substantiate the request for scheduled-loss compensation as set forth by the Supreme Court’s decision in State ex rel. Smith v. Indus. Comm., 138 Ohio St. 3d 312. Walters then filed a writ of mandamus to the Tenth District Court of appeals which denied the writ finding that where there is only a loss of brain function and no other injury to the body that Commission does not abuse its discretion in failing to award loss of use compensation.  Walters then appealed to the Ohio Supreme Court.

The Ohio Supreme Court upheld the Court of Appeals decision with an analysis that revolved around the basic premise of the Smith case. The crux of the holding in Smith is that in the absence of an injury to the eyes and ears, evidence of a brain injury that precludes definitive visual and auditory testing is insufficient to support an award for loss of sight and hearing.  In the Smith case no test could be performed to determine whether there was an actual loss of hearing or sight and the medical evidence there showed that Smith was unable to process sights and sounds because of damage to his brain not to because of an injury to his eyes or ears. The Court found that the instant matter involving Walters was like that in Smith.

However, although the Court also upheld the Tenth Districts ruling as it applies to the denial of the request for the loss of limbs, it did not go as far as to say that the same loss of use analysis the Court used in Smith for loss of sight and hearing is applicable for the loss of limbs request. The Court rather stated that apart from the Smith analysis there was some evidence to in the Walters case to support the SHO’s finding that an award for the loss of arms and legs was not substantiated.      

Violation of Specific Safety Requirement (“VSSR”) – State ex rel. Cassens Corp. v. Indus. Comm., 2024-Ohio-526 (February 14, 2024).

Mr. Ybarra worked for Cassens Corp, an automobile transportation company. He was moving newly manufactured cars by driving them to a staging area in the outdoor lot of an automobile manufacturer for eventual delivery to auto dealerships. The outdoor lot was enclosed by a fence with a gate and not accessible to the public. While walking in the lot, Mr. Ybarra was hit from behind by a coworker who was driving a newly manufactured car to the staging area. The coworker did not see Mr. Ybarra because the car’s windshield was covered with snow. Following allowance of his workers’ compensation claim, Mr. Ybarra filed an application for a violation of a specific safety requirement (“VSSR”) award alleging Administrative Code Chapter 4123:1-5 applied to Cassens Corp because the enclosed outdoor lot qualified as a “workshop” and Cassens Corp violated Administrative Code Section 4123:1-5-13(C)(4) which required all motor vehicles to have cab glass with the vision “unimpaired by its condition.” The Industrial Commission granted Mr. Ybarra’s VSSR application finding that the outdoor yard constituted a “workshop” because the perimeter of the outdoor lot was fenced with gates for entry and exit, which were guarded and not open to unauthorized people and that Cassens Corp’s business operations were always conducted outside in the lot. The Commission further found that the newly manufactured vehicle constituted a “motor vehicle,” and that the accumulated snow violated Administrative Code Section 4123:1-5-13(C)(4). Cassens Corp appealed to the Tenth District Court of Appeals.

The Tenth District Court of Appeals overturned the Commission’s decision finding that the commission abused its discretion regarding whether the outdoor lot constituted a “workshop.” The Court determined that, although the outdoor lot was enclosed by a perimeter fence, the area did not meet the definition of a “workshop” as it was nothing more than a very large parking lot. The outdoor lot was not “a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.” There was no manufacturing or vehicle assembly in the lot and driving the vehicles to a staging area for delivery to dealerships was not part of the manufacturing process.

The Industrial Commission appealed to the Supreme Court of Ohio arguing that an enclosed, restricted, and fenced-in area, where motor vehicles are used as an integral and primary part of the Employer’s work process, constitutes a workshop or factory, and that the outdoor lot where Mr. Ybarra did his manual labor of moving motor vehicles was “a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.”

The Supreme Court noted that the term “workshop” is defined as “a small establishment where manufacturing or handicrafts are carried on. Or similarly, as “a small establishment where manufacturing or craftwork is carried on by a proprietor with or without helpers and often without power machinery.” The Supreme Court agreed with the Tenth District Court of Appeals that there was not some evidence to support the commission’s finding that the purpose of the outdoor yard was conducting the type of work that would classify the outdoor yard as a workshop and that the commission placed too much emphasis on the presence of a perimeter fence. The Supreme Court stated that the mere presence of a guarded and gated perimeter fence, in and of itself, is not sufficient to classify the enclosure as a “workshop.” There was no evidence that Cassens Corp’s business was one of craftwork, trade, or manufacturing, with or without power machinery. Cassens Corp did not manufacture the vehicles. It only drove them from the manufacturing plant to the outdoor lot. The Supreme Court concluded that, because Mr. Ybarra was not injured in a “workshop,” Administrative Code Chapter 4123:1-5 did not apply to Cassens Corp and, therefore, Cassens Corp was not liable for the alleged VSSR.

Tenth District Court of Appeals

Temporary Total Compensation – State ex rel. Michell Brown v. Indus. Comm., 2024-Ohio-797 (March 5, 2024).

In September 2017, Ms. Brown was injured when she slipped and fell on a wet floor. Her workers’ compensation claim was allowed, she underwent two surgeries, and she received temporary total compensation. On November 4, 2019, Ms. Brown returned to work on light duty with restrictions to wear a knee brace and take seated breaks. Ms. Brown continued to experience significant symptoms but was able to work through May 23, 2020, when the employer laid her off work due to the COVID-19 pandemic. On December 9, 2020, Ms. Brown requested temporary total compensation from May 23, 2020, through March 1, 2021, based on her treating physician’s opinion that Ms. Brown was unable to return to her former position of employment due to the allowed conditions in her claim. On December 9, 2020, Dr. David Dunkin reviewed the medical file at the request of the BWC and opined that there was no objective medical evidence supporting any substantial change in circumstances in Ms. Brown’s condition since she last worked on May 23, 2020, or that Ms. Brown is unable to work at her former position of employment.

The Industrial Commission denied Ms. Brown’s request for temporary total compensation under R.C. 4123.56(F) finding that Ms. Brown was not working as of May 23, 2020, for reasons unrelated to the allowed conditions in the claim, and that her request was unsupported by the medical evidence based on the opinion of Dr. Dunkin. Ms. Brown appealed to the Tenth District Court of Appeals.

Ms. Brown argued that R.C. 4123.56(F), which was effective as of September 15, 2020, did not apply to her request for compensation because her right to compensation accrued on May 23, 2020, even though she filed her request for compensation on December 9, 2020, after R.C. 4123.56(F) went into effect. Ms. Brown also argued that even if R.C. 4123.56(F) applied, she was eligible to receive temporary total compensation because she was working light duty when she was laid off on May 23, 2020, and her subsequent requests for compensation included additional limitations preventing her from working full duty.

The Court noted that R.C. 4123.56(F) applied to claims pending on or arising after the September 15, 2020 effective date of the legislation and because Ms. Brown’s claim “arose” on May 23, 2020, and was filed on December 9, 2020, Ms. Dillon’s request for compensation was pending on or after September 15, 2020.

The Court also noted that R.C. 4123.56(A) states that temporary total compensation will not be paid for the period when work within the physical capabilities of the employee is made available by the employer or another employer. The Court stated that when a claimant takes work with provided restrictions and then is terminated for reasons unrelated to the allowed conditions, the claimant is not eligible for temporary total compensation. The Court referred to Dr. Dunkin’s report wherein he opined that the medical evidence was insufficient to establish that Ms. Brown was not capable of performing the sedentary duties of her job with employer accommodations. The Court further noted that, although Ms. Brown was not required to prove that she was unable to work solely due to an impairment arising from the allowed conditions in her claim, she was required to establish that the allowed conditions in her claim were a reason she was not working. However, the Industrial Commission determined that Ms. Brown was capable of working on May 23, 2020, based on Dr. Dunkin’s opinion. Lastly, the Court determined that Dr. Dunkin’s report was not internally inconsistent, applied the correct standard, and was some evidence upon which the Industrial Commission could rely to deny Ms. Brown’s request for temporary total compensation.

Temporary Total Compensation – State ex rel. Ruffin v. Indus. Comm., 2024-Ohio-799 (March 5, 2024).

In September 2008, Ms. Ruffin was injured her lower back when she was pushing boxes through a machine. Ms. Ruffin was restricted from work and received temporary total compensation until she returned to work with light duty restrictions on September 4, 2012. Ms. Ruffin worked light duty with restrictions until July 17, 2013. On July 19, 2013, Ms. Ruffin presented to the emergency department with complaints of right-sided hip and back pain. She was diagnosed with non-allowed conditions of lumbar radiculopathy and osteoarthritis, provided steroids, and discharged home.

Ms. Ruffin retired on January 13, 2014. On February 12, 2014, Ms. Ruffin’s doctor submitted a letter to Ms. Ruffin’s attorney stating that Ms. Ruffin was 66 years old and suffering from chronic conditions as a result of her work injury. The work that she does aggravates her symptoms and she probably won’t feel better until she leaves that employment.

In September 2015, Ms. Ruffin’s was diagnosed with major depressive disorder, single episode, moderate and restricted from all work from September 17, 2015 through March 17, 2016. The BWC subsequently allowed the condition of major depressive disorder, single episode, moderate in Ms. Ruffin’s BWC claim. In January 2016, Ms. Ruffin filed a C-84 request for temporary total compensation indicating she was not presently working in any capacity and was receiving social security retirement benefits. She also filed a request for temporary total compensation from September 17, 2015, through March 17, 2016, and to continue.

In April 2016, the Industrial Commission denied her request for temporary total compensation finding that Ms. Ruffin had voluntarily abandoned her employment when she retired on January 31, 2014, for reasons unrelated to her industrial injury. The Commission found that although, Ms. Ruffin testified that she retired because her doctor told her that she would not get better until she stopped working, there were no retirement or resignation papers in the claim file certifying that Ms. Ruffin retired for reasons related to her industrial injury. Further, the last physical restrictions in the claim file certified restrictions through October 31, 2012, only. There were no documented restrictions in the claim file from October 31, 2012, through January 31, 2014.

Additionally, the letter from her doctor was issued approximately two weeks after Ms. Ruffin resigned and stated that Ms. Ruffin would not feel better until she leaves “that” employment – not all employment. Further, Ms. Ruffin testified that she had not looked for any other employment and had been receiving social security retirement since she retired on January 31, 2014. Accordingly, Ms. Ruffin failed to show that she was disabled from all employment at the time of her retirement and therefore she did not have any wages to replace. In November 2022, (over six years later) Ms. Ruffin appealed to the Tenth District Court of Appeals.

The court noted that R.C. 4123.56(F) did not apply to Ms. Ruffin’s case because the Industrial Commission had resolved Ms. Ruffin’s claim prior to the statute’s effective date of September 15, 2020. Therefore, the judicially created doctrine of voluntary abandonment was applicable. Voluntary abandonment exists “when a workers’ compensation claimant voluntarily removes [themselves] from [their] former position of employment for reasons unrelated to a workplace injury, [the claimant] is no longer eligible for [TTD] compensation, even if the claimant remains disabled at the time of [their] separation from employment.” The court noted that when determining whether an employee’s retirement bars a subsequent request for temporary total compensation, two considerations predominate: Was the retirement precipitated by the workplace injury, and did the claimant remain in the workforce after retiring?

The court found that Ms. Ruffin was not under any work restrictions related to the allowed conditions in the claim at the time of her retirement as she retired over a year after her work restrictions were no longer in effect. The court also found that Ms. Ruffin’s doctor did not issue his letter recommending Ms. Ruffin leave “that” employment until two weeks after she had retired. There was no evidence to indicate that Ms. Ruffin’s doctor had communicated his opinion to her prior to her retirement. Further, Ms. Ruffin’s doctor did not recommend Ms. Ruffin retire from all employment. He merely advised that Ms. Ruffin should retire from her current job. Lastly, it was undisputed that Ms. Ruffin had retired from all employment, received social security retirement benefits, and had not sought any work after January 31, 2014. Therefore, the court concluded that there was some evidence to support the Commission’s determination that Ms. Ruffin had voluntarily abandoned her employment and its denial of her request for temporary total compensation.

© Copyright 2024 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

As of July 1, 2024, the maximum workers’ compensation payable is increased to $1,130.00 per week and the minimum is increased to $311.00 per week. The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.

About the Author

This blog submission was prepared by Mike Fish, 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 Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

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