NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Gotte vs Air Conduit, LLC 22-C-0097 (La. 6/8/2022) 347 So. 2d 860
(OWC Judge Melissa St. Mary District 03)
Summary: The Court refused to grant a Writ of Certiorari on a Third Circuit Judgment affirming
the reduction of a claimant’s benefits due to his failure to cooperate with vocational
rehabilitation with two dissenting opinions urging legislative action.
The claimant was collecting SEB following a shoulder injury which required multiple surgeries.
The employer retained a vocational counselor to provide rehabilitation in accordance with
Louisiana workers compensation law. The counselor was unable to contact the claimant or his
attorney after several attempts. For this reason, the employer availed itself of the 50 %
compensation reduction provision in LA RS 23:1226(B)(3)(c) without the need for a hearing.
The claimant filed a disputed claim for compensation and the matter went to hearing. The
Louisiana Workers’ Compensation Office found that the claimant refused to cooperate with
vocational rehabilitation and reduced his compensation by 50%. The claimant argued on appeal
to the Third Circuit that the vocational counselor had a conflict of interest with the claimant
because she was chosen by the employer.
The Third Circuit upheld the employers’ reduction based on a prior Supreme Court opinion
holding this particular conflict of interest has been legislatively resolved.
The claimant applied for a Writ of Certiorari, which was denied by a majority of Justices. Justice
Genovese disagreed, and would have granted the writ. He opined the reduction of claimant’s
benefits without a hearing amounted to “sham rehabilitation” and a denial of due process.
Perceiving a Justice Griffin concurred in the writ denial, admonishing “this area of the law
warrants legislative reform.”
Boudreaux v. Take 5, LLC 2022-42 (La. App. 3 Cir. 10/5/2022) Not yet released for
publication.
(OWC Judge Paula Murphy District 04)
Summary: the claimant’s orthopedic injury while performing regular job duties caused by no
unusual strain is a compensable injury.
{01453324.DOCX;1}
The claimant was employed as an assistant manager at an oil change station. He was changing
oil in the pit under the cars, which requires him to unscrew tight oil filters over his head. At this
particular station, the filters were very tightly fixed, requiring the claimant to apply extra force.
He reported a back injury about a week later, due to having struggled with several filters
throughout the day.
The case went to trial and the employer moved for a directed verdict (involuntary dismissal). The
Louisiana Workers’ Compensation Hearings Officer denied the motion and entered judgment in
favor of the claimant, finding that he proved an injury.
The employer appealed the finding of a work injury, as the claimant did not identify an “actual,
identifiable, precipitous event” as the cause of his injury. The Third Circuit disagreed with this
analysis, citing precedent that an injury is compensable if the claimant can identify with some
particularity the manifestation of the accidental injury.
Minnesota Case Law Update--PTSD
Juntunen v. Carlton County
SUPREME COURT – DECEMBER 21, 2022
No. A22-0090
WCCA No. WC21-6418
Douglas Juntenen worked as a police officer for Carlton County and was diagnosed with post-traumatic stress disorder (“PTSD”) on August 20, 2019. Pursuant to the applicable Minnesota statute, first responders diagnosed with PTSD are entitled to a rebuttable presumption that the condition is work-related.
The employer and insurer denied primary liability and made arrangements for an independent medical evaluation to address causation for the diagnosed PTSD. The IME was completed on July 20, 2020, and stated that the employee was not suffering from PTSD at the time of the exam or any time in the 30 days prior.
The Compensation Judge ruled that the medical opinions expressed in the independent medical evaluation report were more persuasive than the employee’s treating physician and found that the statutory presumption did not apply. The judge denied the Employee’s claim for workers’ compensation benefits.
The employee appealed, and the Minnesota Workers’ Compensation Court of Appeals (“WCCA”) reversed the decision of the Compensation Judge, holding that the presumption applied at the time the employee was diagnosed with PTSD.
On appeal, the Minnesota Supreme Court affirmed the decision of the WCCA holding that the statutory presumption applies as soon as a diagnosis of PTSD has been made. The Court held that the employer and insurer failed to rebut the presumption because their medical expert commented only on the diagnosis of PTSD for the three months prior to the evaluation and not during any other time frame. Therefore, the Court found that the opinion of the treating doctor regarding the diagnosis of PTSD was unopposed for any other time frame.
Chrz v. Mower County
SUPREME COURT-March 8, 2023
A22-0792
WCCA No. WC21-6418
Ryan Chrz worked as a sheriff’s deputy for Mower County and was diagnosed with post-traumatic stress disorder (“PTSD”) on September 25, 2019.
On March 30, 2021, the employee’s treating psychologist found that his condition had improved such that he no longer met all of the DSM-5 criteria for a valid PTSD diagnosis. Instead of PTSD, she found that his work-related mental health condition after March 30, 2021, was “other specified trauma and stress related disorder.” She continued to support his claim for disability from working in law enforcement due to his work-related mental-health condition. The employee then filed a Claim Petition for ongoing workers’ compensation benefits.
Following a full evidentiary hearing, the Compensation Judge awarded the employee ongoing workers’ compensation benefits.
The employer and insurer appealed, and the Minnesota Workers’ Compensation Court of Appeals (“WCCA”) reversed in part, holding that the employee was not entitled to any workers’ compensation benefits after March 30, 2021.
On appeal, the Minnesota Supreme Court affirmed the WCCA holding that, even if an employee remains disabled from a work-related mental health condition that was originally diagnosed as PTSD, the claim stops being compensable once the employee no longer meets the diagnostic criteria set forth by the current version of the DSM. On that basis, the Court held that Mr. Chrz did not have an ongoing compensable work injury and was not entitled to ongoing workers’ compensation benefits.
MINNESOTA STATUTORY UPDATE—COVID PRESUMPTION HAS ENDED
Effective January 14, 2023, Covid-19 is no longer presumed to be work related, regardless of occupation.
During the height of the Covid-19 pandemic, Minnesota statute held that for any employee working in one of the following occupations who contracted Covid-19, the condition as presumed to be work related:
· firefighter
· paramedic
· nurse or health care worker
· correctional officer, or security counselor employed by the state or a political subdivision in the following work environment: corrections, detention, or secure treatment facility
· emergency medical technician
· a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct Covid-19 patient care or ancillary work in Covid-19 patient units, and
· workers required to provide childcare to first responders and health care workers.
In 2022, the Minnesota legislature extended the Covid-19 presumption with an applicable sunset provision effective 11:59 p.m. on January 13, 2023. As of January 14, 2023, the provision has now expired andCovid-19 is no longer a presumptive disease in any employee.
Kentucky Workers’ Compensation Case Law Update
By H. Douglas Jones, Esq. and Margo Menefee, Esq., JSB Attorneys, PLLC
Employee v. Independent Contactor and Economic Realities Test
Oufafa v. Taxi, LLC d/b/a Taxi 7, et. al., (2022-SC-0003-W, not final) Supreme Court of Kentucky
Taxi 7 generates revenue by leasing taxis to its drivers, which it identifies as independent contractors. Claimant sought to work for Taxi 7 in 2016, meeting with the office’s head, providing his license, resume and background check. He passed a drug test and was given two documents to fill out. In one document, Claimant acknowledged in his own handwriting that he was not an employee and not entitled to workers’ compensation benefits.
Taxi 7 only allows the leased cabs to be used for Taxi 7 rides. It operates a dispatch system and cab drivers are penalized for declining rides. Customers could either pay with a credit card, which would go through Taxi 7’s processing system, or could pay the driver directly.
Claimant filed for workers' compensation benefits after being shot while driving. The ALJ found Claimant was an independent contractor and Taxi 7 was a taxicab leasing company utilizing the factors outlined in Ratliff v. Redmon and Chambers v. Wooten’s IGA Foodliner.
The appellate Board reversed, finding that the ALJ incorrectly concluded that Taxi 7 was a taxicab leasing company rather than a taxicab company that employed the Claimant as a driver. The Court of Appeals reversed the Board, stating that the ALJ’s finding of fact that Taxi 7 was a taxicab leasing business and Claimant was not an employee was supported by the facts and not clearly erroneous. The Court of Appeals held on its own that the Claimant was an independent contractor by relying on the definition of “work” as tied directly to renumeration as defined in KRS 342. The Court of Appeals further emphasized that Taxi 7’s income was unaffected by how much or little the lessees work.
Vacating the ALJ’s decision, and striking down the Court of Appeals’ reasoning, the Supreme Court of Kentucky adopted the economic realities test to determine whether a worker is an employee or independent contractor, remanding the claim to the ALJ for a determination consistent with that test.
Medical Fee Dispute – Burden of Proof
Perry County Board of Education v. Campbell, et. al. (2022-SC-0119-WC, not final)
Claimant worked for school district and was in the school gym hanging a banner when he hit his head on a duct and fell on April 11, 2018, alleging injury to his head, shoulder and knee. Radiology report indicated mild changes in the right knee from arthritis and possible fracture. One month later, a follow-up appointment indicated softening of cartilage of patella and partial dislocation. Non-surgical treatment was unsuccessful and a right knee arthroscopy with partial meniscectomy was performed on November 6, 2018, after which Claimant was released to full duty. His knee pain persisted, and a total knee replacement was recommended following his September 16, 2019 office visit. The employer denied the knee replacement on reasonableness and necessity grounds as well as causation, citing to pre-existing arthritic changes. The employer presented three medical opinions finding the knee replacement not
reasonable nor necessary for treatment of the work injury. Claimant presented an opinion from Dr. Madden diagnosing total knee replacement surgery and chronic knee pain. Dr. Madden stated Claimant’s complaints were caused by the work injury, but he did not explicitly state whether the osteoarthritis or need for a total knee replacement were causally related to work injury. He further stated that the work injury required surgical repair and that failing to provide the recommended treatment would worsen his condition. The ALJ found the total knee replacement compensable. The employer appealed, arguing the ALJ improperly relied on inferences instead of medical opinion to determine the knee replacement was causally related to the work injury and to find it was reasonable and necessary.
The Court of Appeals affirmed, finding the ALJ as fact finder has sole authority to judge the weight, credibility, substance and inferences to be drawn from evidence. First, although there was prior arthritis, all of the medical records indicated the Claimant had no prior right knee problems, so the ALJ’s determination that the arthritis was dormant and aroused into a disabling reality by the work injury was supported by substantial evidence. Second, the Court of Appeals approved the ALJ’s use of a patchwork of evidence, including treating doctor’s notes’ Claimant’s testimony, timeline of events, and inferences from Dr. Madden’ s report, to determine the knee replacement was causally related to the work injury as well as reasonable and necessary. The Court concluded that the Claimant bore the burden of proving the compensability of the knee surgery, he was successful, and the determination was supported by substantial evidence.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
There are not many new SOAH decisions these days because there are not nearly
as many medical fee disputes as there used to be. Therefore, when a new
SOAH decision comes out it bears mention.
In SOAH Docket No. 454-22-09437, the
Administrative Law Judge held that the claimant was not entitled to
reimbursement for his out-of-pocket medical expenses because he did not file
his request for medical fee dispute resolution with the Division until about
ten months after the filing deadline:
[Claimant] argues that he has much experience in workers’ compensation—having even written a book on it—and “if someone as well versed in the workers’ compensation system cannot prevail in this matter, what hope does the average injured worker have?” Although the fairness of a labyrinthine workers’ compensation system can be questioned, ultimately its existence and structure is a question for the Texas Legislature and for the Commissioner of Insurance. The ALJ only applies the law as it is. Because [claimant’s] request for resolution was untimely, he is not entitled to reimbursement of his out-of-pocket medical expenses involved in this appeal.
The ALJ’s decision to strictly enforce the Division’s filing deadline should come as no surprise. As the Texas Supreme Court put it, “A deadline is not something one can substantially comply with. A miss is as good as a mile.” Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 403 (Tex. 2009). The U.S. Supreme Court has explained why filing deadlines must be strictly enforced:
The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the least, a surprising notion, and it is a notion without limiting principle. If 1–day late filings are acceptable, 10–day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. Any less rigid standard would risk encouraging a lax attitude toward filing dates. A filing deadline cannot be complied with, substantially or otherwise, by filing late—even by one day.
United States v. Locke, 471 U.S. 84, 100–101
(1985).
The Supreme Court’s words are important to remember. The Texas workers’
compensation system is replete with deadlines that must be strictly enforced to
keep the system running smoothly.
Copyright 2023, Stone Loughlin & Swanson, LLP
It is a common misperception in the industry that the exclusive remedy defense
prevents an employee of a subsidiary company from suing the parent company. It
does not. The Dallas Court of Appeals makes this clear in Olivares v. Chevron, issued March
14, 2023.
For a defendant to assert the exclusive remedy defense, the defendant must be
the plaintiff’s employer. However, the Dallas Court explains that
employees of a subsidiary company are not by default also employees of the
parent company and in fact, there is a strong presumption that a parent
corporation is not the employer of its subsidiary employees. The court’s
decision continues:
“An injured employee of a subsidiary corporation, who is estopped under an exclusive remedy provision in his state's workers’ compensation act from suing his employer, may nonetheless bring a third-party claim against the subsidiary's parent or sibling corporation.” Sims v. W. Waste Indus., 918 S.W.2d 682, 684 (Tex. App.—Beaumont 1996, writ denied) (cleaned up). “We are not persuaded that the legislature ever intended parent corporations, who deliberately chose to establish a subsidiary corporation, to be allowed to assert immunity under the Texas Workers’ Compensation Act by reverse piercing of the corporate veil they themselves established.” Id. at 686.
The plaintiff in Olivares v. Chevron was
employed by Apache Global, a subsidiary of Apache Industrial Services, Inc.
Chevron sought to show that it had an owner-controlled insurance program (OCIP)
with the plaintiff’s employer meaning that Chevron would also be considered his
employer and therefore, could not be sued for his work injury. The court
held that Chevron failed to show that the OCIP was with Apache Global, the
subsidiary company, rather than Apache Industrial, the parent company and
because employees of a subsidiary company are not also employees of the parent
company, the exclusive remedy defense did not prevent the plaintiff from suing
Chevron.
Chevron presumably spent a lot of money to put this OCIP together to prevent it
from being sued for work injuries on its premises and it was for naught. This
case provides some good practice pointers for anyone working with OCIPs to make
sure they are set up and administered properly.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Third Court of
Appeals decision issued on February 28, 2023 in Texas Department of Insurance, Division of Workers’
Compensation v. Accident Fund Insurance Company of America and Texas Cotton
Ginners’ Trust prevents the Division of Workers’ Compensation (DWC)
from using work search contacts as a substitute for job applications submitted
to a prospective employer by a worker eligible to apply for Supplemental Income
Benefits. Experience over the years since 2005 when the Texas Legislature
did away with the “good faith” SIBs standard and replaced it with the four objectively
verifiable methods by which a worker qualifies for SIBs, showed that the
methods used gradually devolved over time.
In recent years, SIBS applications were approved by the DWC administrative law
judges where only work search contacts were submitted in a check-box manner
with no supporting documentation that the worker made an active, meaningful,
and personal work search. During discovery, DWC admitted that its position was
that solo job seekers do not need to personally file any job applications to qualify
for SIBs: they could rely on "work search activities" filed by
another on their behalf. Applications were rare where the worker attested to
participating in a vocational rehab program, participated with the Texas
Workforce Commission (TWC), or documented his job search with copies of
applications submitted to employers.
As a result, many carriers rubber-stamped and approved applications showing
only contacts, knowing that disputing a workers’ entitlement to SIBs was a
fool’s errand because of the DWC’s instructions through its Appeals Panel
Manual to system participants simply to count whether the requisite number of
“contacts” was made. For the same reason, carriers were not offering vocational
rehabilitation programs to their injured workers eligible to apply for SIBs.
And the incentive was removed for workers to go through the TWC, an
agency with a variety of resources for Texas workers who can work in some
capacity to find employers who post job openings for which the worker would
qualify.
What can we expect next? We can expect closer scrutiny by the DWC when
considering SIBs applications, either at the first quarter or subsequent ones
as may be disputed and taken to a contested case hearing. Even though
applying for jobs can now be done on-line, the worker can prove his search by
submitting a copy of applications submitted and attach them to the DWC-52 for
review by the carrier and the agency for credibility. He can show that he
is participating with the TWC. He can accept a carrier’s offer to
participate in vocational rehabilitation. These methods will result in a
meaningful, active job search—a search most likely to bring a job offer and
return the worker to gainful employment.
This is, after all, the goal of the Labor Code. SIBs are to provide a bridge to
support a worker returning to the workforce to the extent he is able. It
is short-sighted for workers to forego the resources available to them for
finding work. This is because even if they manage to get a regular check from the
carrier for the entire SIBs period, the benefits will end 401 weeks from the
date disability began, leaving the worker without income.
A job is a much more reliable and meaningful outcome of the SIBs process, and
is what the Texas Legislature intended.
Editor’s note: Jane Stone and David Swanson of the Firm represent Accident Fund
Insurance Company of America in this case.
Copyright 2023, Stone Loughlin & Swanson, LLP
For all you non-subscribers not enjoying the many benefits of the Texas workers’ compensation system, it is that time of year again when you must tell DWC that you do not care enough to provide your employees with workers’ compensation coverage. Employers must use the DWC-Form 005 to let DWC know they have opted out of the workers’ compensation system. According to the Division’s Biennial Report to the 88th Legislature, “In 2022, the percentage of employers that were non-subscribers (25%) was the lowest in six years” and “The percentage of Texas employees working for non-subscribers (17%) was the lowest in 12 years.” In other words, three out of four employers have decided that it is in the best interest of them and their employees to carry workers’ compensation coverage. Check out this link for more information for non-subscribers including a coverage comparison and analysis of alternative coverages: https://www.tdi.texas.gov/wc/employer/cb007.html
Copyright 2023, Stone Loughlin & Swanson, LLP
In Appeal No. 230067 issued March 3, 2023, the Appeal Panel reversed the ALJ’s decision that the carrier is entitled to reduce the claimant’s IIBs by 50% based on contribution from an earlier compensable injury and rendered a new decision that the carrier is not entitled to a reduction of the claimant’s IIBs. The Appeals Panel held that the carrier still bore the burden of proof at the hearing even though the Division issued an order approving the carrier’s application for contribution which the claimant appealed. The Appeals Panel held that because the carrier failed to present a cumulative impact analysis, it did not meet its burden of proof. The Appeals Panel analogized the case to the situation in which the Division determines a claimant is entitled to first quarter SIBs and the carrier appeals the determination. In that situation, the employee still has the burden of proof at the hearing. The decision was authored by Appeals Panel Judge Carisa Space-Beam. Appeal No. 230067, filed March 3, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division expends a great deal of effort to ensure compliance with its
deadlines and in fact, most of its enforcement actions involve a missed
deadline. Here is an overview of some of the most recent workers’ compensation
disciplinary orders:
Fine: $14,000. Violation: Carrier paid IIBs on a DD report 186 days late.
No. 2023-7845 03/15/23 Security National Ins. Co.
Fine: $1,500. Violation: Carrier took action on a medical bill 159 days
late.
No. 2023-7842 03/10/23 Travelers Property Cas. Co. of Am.
Fine: $800. Violation: Carrier reported the true death benefit
termination 5,536 days late.
No. 2023-7831 03/01/23 West American Insurance Co.
Fine: $11,000. Violation: Carrier failed to timely make IIBs payments
from 6 to 111 days late.
No. 2023-7830 03/01/23 LM Insurance Corp.
Fine: $2,500. Violation: Carrier paid a medical bill 198 days late.
No. 2023-7829 02/28/23 National Interstate Ins. Co.
Fine: $10,000. Violation: Carrier failed to timely pay SIBs.
No. 2023-7827 02/28/23 Safety National Cas. Corp.
Fine: $10,000. Violation: Carrier paid IIBs on a DD report 175 days
late.
No. 2023-7824 02/28/23 New Hampshire Ins. Co.
Fine: $5,500. Violation: Carrier paid benefits on a CCH decision 52 days
late.
No. 2023-7823 02/28/23 New Hampshire Ins. Co.
Fine: $8,000. Violation: Carrier took action on a medical bill 35 days
late.
No. 2023-7820 02/24/23 Chubb Indem. Ins. Co.
Fine: $700. Violation: Carrier paid medical bill 97 days late.
No. 2023-7815 02/21/23 Montgomery County
Fine: $3,500. Violation: Carrier started death benefits 57 days
late.
No. 2023-7814 02/21/23 TASB Risk Mgmt. Fund
Fine: $4,000. Violation: Carrier paid benefits on a CCH decision 16 days
late.
No. 2023-7812 02/21/23 TASB Risk Mgmt. Fund
Copyright 2023, Stone Loughlin & Swanson, LLP
REGULATORY ACTIONS (New Rules)
4123-6-36 Enhanced care program
(Effective January 1, 2023)
The proposed new rule would permit an MCO to authorize medical treatment reimbursement requests for any conditions within the same knee as the conditions initially allowed in the claim and presumed to be causally related to the industrial injury during such time as the conditions are being considered for allowance or being adjudicated. If the injured worker or employer appeal a claim, additional allowance, or medical treatment reimbursement request, the claim will be removed from the enhanced care program. Applies to knee only claims. Treatment limited to first sixty days from date of initial allowance. State fund claims, only.
4123-3-37 Lump Sum Advancements
Eliminates the requirement that a Lump Sum Advancement application be notarized. In response to the BWC’s request for comments, on September 26, 2022, the OMA submitted a comment to the BWC in support of the proposed change.
4123 Successorship
Changes the criteria the BWC uses to determine the rate of a successor entity that wholly succeeds one or more legal entities when at least one of the entities involved has a merit rating experience. The proposed change will permit the BWC to combine the experience of all of the involved entities to establish the rate of the successor entity without regard to whether one of the entities involved has a merit rating experience. Eliminates the requirement that a legal entity be assigned only one risk pursuant to O.A.C.
4123-17-13 Employer Application for Workers’ Compensation Coverage
Permits the BWC to deny or rescind an employer’s application for coverage when the BWC determines the employer that has submitted an application for coverage is essentially the same employer for which the BWC has previously provided coverage. Upon denial or rescission of the employer’s application, the BWC will have the option to maintain the applying employer’s prior or existing policy, in addition to the BWC’s current authority to transfer a prior policy to the applying employer or reactivate a previously cancelled policy of the applying employer.
Modifies the start date of Employer’s coverage so that it begins upon the BWC’s receipt of the employer’s coverage application fee, instead of the BWC’s receipt of the employer’s first estimated premium payment, as long as the employer makes the first estimated premium payment.
JUDICIAL DECISIONS
State ex rel. Ohio State Univ. v. Pratt, 2022-Ohio-4111 (November 18, 2022)
On June 20, 2017, Ms. Pratt submitted a two-week letter of resignation stating her last day of work at OSU would by July 5th. On June 24th she sustained a work-related injury and on June 27th she had surgery. On June 28th, she accepted a new job with Sweet Carrot to begin in the fall after she recovered from her surgery. She requested temporary total compensation. OSU objected based on her resignation letter arguing Ms. Pratt was ineligible for temporary total compensation because she voluntarily abandoned her previous position of employment prior to her work injury. OSU relied on the Supreme Court’s 2018 decision in Klein v. Precision Excavating & Grading Co., 155, Ohio St.3de 78, 2018-Ohio-3890. In Klein, the Court held that when a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary total compensation, even if the claimant remains disabled at the time of his separation from employment. The Industrial Commission granted Ms. Pratt’s request for temporary total compensation and OSU appealed.
The Supreme Court acknowledged that its decision in Klein created some confusion because the Court interchangeably referred to both abandonment of the claimant’s former “position of employment” and abandonment of “employment” generally. And, the Court noted that its holding in Klein focused on an injured worker who voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury.
The Court clarified its prior decision in Klein and found in favor of Ms. Pratt stating that the test for temporary total compensation is not whether the injured worker has abandoned the former position of employment but whether the injured worker has abandoned the workforce. The Court ruled that a determination of voluntary abandonment requires consideration of all relevant circumstances existing at the time of the alleged abandonment. The Court also noted that, in contrast to Ms. Pratt’s case, in Klein, the injured worker resigned his employment to look for another job and did not have another job to go to during his period of disability.
Note that the Court determined that the current version of R.C. 4123.56 did not apply as it became effective September 15, 2020, after the Industrial Commission issued its final order in Ms. Pratt’s workers’ compensation claim.
R.C. 4123.56(F) current states:
If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the
employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.
State ex rel. Walmart, Inc. v. Hixson, 2022-Ohio-4187 (November 30, 2022)
Ms. Hixson sustained injuries when she fell while working for Walmart in 2017. Ms. Hixson received temporary total compensation. On March 6, 2018, Ms. Hixson notified Walmart of her age-related retirement and Walmart moved to terminate her temporary total compensation based on her voluntary abandonment of employment. The Industrial Commission denied Walmart’s motion, relying on State ex rel. Pretty Prods. Inc., v. Indus. Comm. 77 Ohio St.3d 5, (1976) which held that a claimant who voluntarily abandons his employment is entitled to temporary total compensation if he is medically incapable of returning to work at the time of the abandonment. In other words, a claimant can abandon a former position only if he has the physical capacity for employment at the time of the abandonment.
The Industrial Commission concluded that Ms. Hixson did not voluntarily abandon her employment when she retired because she was temporarily and totally disabled from her position with Walmart on the date of her retirement.
The Ohio Supreme Court subsequently decided State ex rel. Klein v. Precision Excavating & Grading Co., overruling State ex rel. Pretty Prods. Inc., holding that when a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary total compensation, even if the claimant remains disabled at the time of his separation from employment.
After the Ohio Supreme Court issued its decision in Klein, Walmart appealed the Industrial Commission’s 2018 denial of its motion to terminate temporary total compensation and asked the Court to retroactively apply the new rule in Klein to Ms. Hixson’s claim.
The 10th District Court of Appeals agreed and terminated Ms. Hixson’s temporary total compensation based on a retroactive application of the Ohio Supreme Court’s ruling in Klein. The 10th District Court of Appeals noted that decisions of the Ohio Supreme Court are generally applied retroactively unless the Supreme Court states otherwise, and the Supreme Court did not state the Klein decision did not apply retroactively. Ms. Hixson appealed.
The Ohio Supreme Court reversed the 10th District Court of Appeals decision and reinstated Ms. Hixson’s temporary total compensation. The Supreme Court stated that its decision in Klein applied prospectively only. The Court noted that, although it did not explicitly say it in its decision, the language of its decision in Klein implies that it should be applied prospectively, only. The Court held that its decision in Klein established a new principle of law that was not foreshadowed in prior decisions and that retroactive application of the Klein decision would cause and inequitable result to injured workers who were not part of the case.
State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., 2022-Ohio 4581 (December 22, 2022)
Travis Gelhausen lost control of a truck he was driving for Waste Management of Ohio which flipped on its side pinning him in the wreckage. Jolene Szapowal was driving behind Mr. Gelhausen and stopped to help. She later testified via affidavit that when she approached the wreckage, she could see Mr. Gelhausen from his ribs to his knees and that he was breathing for approximately three minutes before he passed. She did not see Mr. Gelhausen move his arms or legs.
Mr. Gelhausen’s dependents filed for compensation under R.C. 4123.57(B) for Mr. Gelhausen’s loss of use of both arms and legs during the three minutes he survived prior to his death. The expert witnesses for the dependents and Waste Management offered contrasting opinions as to the medical conclusions to be drawn from the nature of Mr. Gelhausen’s post-accident breathing. However, both experts agreed that, based on Ms. Szapowal’s non-medical testimony, Mr. Gelhausen initially survived the accident before he died.
A Staff Hearing Officer for the Industrial Commission initially denied the dependents’ request for loss of use compensation finding that Mr. Gelhausen did not survive the accident for a discernible period of time after his injury. On reconsideration, the Industrial Commission exercised its continuing jurisdiction finding that the Staff Hearing Officer’s Order contained a clear mistake of fact as it was uncontroverted that Mr. Gelhausen had survived the accident for approximately three minutes. The
Industrial Commission further determined that Mr. Gelhausen lost the use of his bilateral arms and legs during the time between the accident and his death and awarded the dependents 850 weeks of compensation.
Waste Management appealed. The Tenth District Court of Appeals found that there was a mistake of fact therefore the commission did not abuse its discretion when it invoked its continuing jurisdiction. Waste Management appealed to the Supreme Court of Ohio.
The Ohio Supreme Court upheld the Industrial Commission’s decision to grant
850 weeks of loss of use benefits to the dependents of a deceased worker who survived for three minutes before dying from his injuries.
The Supreme Court also upheld the commission’s decision to invoke continuing jurisdiction. The Court noted that, contrary to the Staff Hearing Officer’s conclusion that Mr. Gelhausen did not survive the accident, both experts agreed that Mr. Gelhausen initially survived the accident. The Court reiterated that Ohio law does not require a specific length of time for survival or that the injured worker be aware of his loss of use in order to qualify for scheduled loss of use benefits. The Court also upheld the commission’s award of a lump sum payment of 850 weeks of compensation. The Court stated that, if Mr. Gelhausen had survived, Ohio law would have permitted him to request the BWC to commute his weekly installments to a lump sum payment. Further, Ohio law permits the dependents to receive an award up to the amount Mr. Gelhausen would have been entitled to receive had he survived. Therefore, the commission did not abuse its discretion when it awarded the dependents 850 weeks of compensation in a lump sum amount.
Note that an interesting evidentiary issue lingers within the Industrial Commission’s decision to award loss of use benefits to the dependents. The only evidence that Mr. Gelhausen survived the accident was the non-medical testimony of Ms. Szapowal. And, although, Ms. Szapowal testified that she did not see Mr. Gehausen move his arms or legs, there was no objective medical evidence that Mr. Gelhausen could not move his arms or legs. However, the Ohio Supreme Court determined this point was irrelevant. Instead, the Court focused solely on the commission’s finding of a mistake of fact regarding Mr. Gelhausen surviving the accident to justify the commission’s invoking its continuing jurisdiction.
10th District Court of Appeals
State ex rel. Block v. Indus. Comm., 2022-Ohio-4474 (December 13, 2022)
On December 12, 2012, Michael Block was injured while working as a roofer when he fell from a residential roof onto a concrete walkway. He suffered a number of injuries, most prominently to the right wrist. After surgery and years of treatment, he filed a claim for the total loss of use of the right hand. The Industrial Commission denied Mr. Block’s motion and he appealed.
The Court upheld the commission’s decision based on the abuse of discretion standard stating that the Court will not determine that the commission abused its discretion when there is some evidence in the record to support the commission’s finding.
The Court noted that R.C. 4123.57(B) authorizes scheduled compensation to a claimant for the total loss of a body part, such as the total loss of an arm or leg. “Loss” includes not only amputation, but also the loss of use of the affected body part. To qualify for compensation under R.C. 4123.57(B), the loss of use need not be absolute if the claimant has “suffered the permanent loss of use of the injured bodily member for all practical intents and purposes.”
The Court noted that Mr. Block relied heavily on the rebuttal report of his expert
witness, Dr. George, to support permanency, pointing to Dr. George’s findings that there was total ankyl
fingers extending all the way up throughout the hand to the wrist. However, the Court stated that these findings did not mandate a conclusion that Mr. Block suffered a total loss of use of the right hand. Ankylosis of the wrist and loss of sensation in two fingers did not inevitably equate to total loss of use of the right hand. Mr. Block's allowed conditions and ankylosis were in his wrist, not his hand, and a loss of use of two or more fingers by amputation or ankylosis is required to constitute a loss of the use of the hand per R.C. 4123.57(B). Even if Dr. George opined Mr. Block had a loss of sensation in two fingers, Mr. Block did not show the loss of use of two or more fingers.
The Court deferred to the commission’s conclusion that Dr. George's rebuttal report was insufficient to support a finding that there was a total loss of use and that any loss of use was permanent. In contrast, the commission relied on Dr. Pellegrino’s report providing some evidence to support the commission’s decision that Mr. Block retained some function of the right hand therefore the allowed injury did not result in a total permanent loss of use of the right hand. Dr. Pellegrino explained that Mr. Block's primary functional limitation of the right arm was due to the fusion of his right wrist, and Mr. Block suffered some subjective decreased sensation in the right hand, he indicated that the right hand neurological function remained functionally intact to allow full range of motion without increased pain, and grasping, pincher grasp, and fine-motor movement.
State ex rel. Walters v. Indus. Comm., 2022-Ohio-4587 (December 20, 2022)
On May 16, 2018, Timothy Walters was employed as a mechanic with Paradise Lawn Care, Inc. Mr. Walters was working on a small bucket loader that was used to load mulch onto company trucks. The bucket loader moved from its upright position toward the ground, landing on Mr. Walters’ chest. Mr. Walter’s was found pinned under the bucket loader and was unconscious. The next day, Mr. Walters died from a sustained a traumatic cardiac arrest as a result of traumatic asphyxiation caused by his work injury.
Laurie Walters, Mr. Walters’ surviving spouse, filed a motion for a scheduled loss of use award. The Industrial Commission denied Ms. Walters’ motion stating that the medical evidence did not substantiate that a loss of use award was warranted where, as a result of this anoxic brain injury, decedent was left without function of his arms and legs and without the ability to hear or see. Relying on State ex rel. Smith v. Indus. Comm., 138 Ohio St.3d 312, 2014-Ohio-513, the Industrial Commission stated that this type of injury does not satisfy the requirements for the requested loss of use award as the losses of function due to a brain injury do not qualify for the losses enumerated in R.C. 4123.57(B).
The 10th District Court of Appeals affirmed the Industrial Commission’s decision to deny the loss of use award stating that the loss of use of vision and hearing caused by anoxic brain injury that prevents the processing and visual and auditory signals by functioning eyes and ears is not compensable under R.C. 4123.57. The 10th District Court
brain injury when the Ohio Supreme Court has not allowed the loss of use of eyes and ears due to anoxic brain injury, and specifically stated in Smith that the General Assembly had not included loss of brainstem functioning in the schedule for compensation set forth in R.C. 4123.57.
The Court noted that, as with the worker's eyes and ears in Smith, in the present case, there was no evidence that Mr. Walters’ legs and arms were not functionable. Instead, the expert medical report relied on by the commission showed that Mr. Walters was left without function of his arms and legs due to anoxic brain injury. There was no conclusive evidence from any medical professional that Mr. Walters suffered injuries directly to the eyes and ears, and there was no evidence of trauma to the eyes or ears.
State ex rel. AutoZone Stores, Inc. v. Indus. Comm., 2023-Ohio-644 (March 2, 2023)
On June 15, 2020, Jason Schomaker sustained an injury when he was moving batteries while working for AutoZone. On September 5, 2020, Mr. Schomaker was involved in an argument with another employee. AutoZone conducted an investigation and terminated Mr. Schomaker on September 16, 2020. On November 16, 2020, Mr. Schomaker underwent surgery and filed a request for temporary total compensation.
AutoZone argued that Mr. Schomaker was not eligible for temporary total compensation pursuant to R.C. 4123.56(F) because he was terminated from employment prior to his surgery. The Industrial Commission rejected AutoZone’s argument and granted Mr. Schomaker’s request for compensation beginning on the date of his surgery as he was unable to return to and perform his former position of employment due to the allowed conditions in his claim. AutoZone appealed.
The Court noted that when a claimant removes himself from employment for reasons unrelated to the work-related injury, he is no longer eligible for temporary-total-disability compensation since the voluntary abandonment—and not the injury—causes the loss of wages. Amended R.C. 4123.56(F) contains two distinct sections for determining whether an employee is entitled to TTD compensation based upon wage loss. Pursuant to the first section, an employee is entitled to receive compensation if the employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease. Pursuant to the second section of R.C. 4123.56(F), if an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive wage-loss compensation.
The Court concluded that the first section applied to Mr. Schomaker. He was entitled to receive compensation because he underwent an authorized surgery to treat the allowed conditions on November 16, 2020. Mr. Schomaker was unable to work as of the date of his surgery as the direct result of an impairment arising from an injury. At that point, his failure to work was not “a direct result of reasons unrelated to the allowed injury” as stated in the second section. The Court noted that contrary to the employer's argument, as of November 16, 2020, Mr. Schomaker was unable to work regardless of the reason for or cause of his termination on September 16, 2020. His reason for not working up until the date of surgery was irrelevant for purposes of determining his eligibility for wage-loss compensation after the surgery due to the allowed conditions.