DEFINITIONS

Employer

For purposes of Ohio’s workers’ compensation system, the term “employer” is defined in Ohio Revised Code § 4123.01 (B) and is very broad. Employer includes every person, firm, public or private corporation, professional employer organization, and/or public service corporation that has in service one or more employees or shared employees under any contract of hire, express or implied, oral or written.

Employer also includes the state, including state hospitals, each county, municipal corporation, township, school district and hospital owned by a political subdivision or subdivisions other than the state.

Statutory Employer

All employers are defined by R.C. §4123.01(B), so, technically all employers are statutory employers for workers’ compensation purposes, if they meet the definition of an employer, as defined in §4123.01(B).

In addition, R.C. §4123.038 and R.C. §4123.039, creates a statutory employer by providing that every apprentice, pre-apprentice, entry-level trainee, or journeyman trainee is considered an employee of the organization or apprenticeship committee that is sponsoring the apprenticeship.

Employee

For purposes of Ohio’s workers’ compensation system, the term “employee” is also very broad and is defined in R.C. §4123.01(A)(1). In short, the term “employee” includes four major categories of persons:
(a) persons employed by the state, county, municipal corporation, township, or a school district;
(b) persons employed by private employers that employee one or more persons;
(c) persons working pursuant to a construction contract if they at least ten of the criteria listed in §4123.01(A)(1)(c); and
(d) any person not covered by the other three categories, that the employer elects to treat as an employee.

The term “employee” also includes illegal aliens, minors, and household workers who earn one hundred sixty dollars or more in any calendar quarter from a single employer. R.C. §4123.01(A)(1)(b).

Further, the term employee includes off duty peace officers, firefighters, first responders and emergency medical technicians, whether paid or volunteer, when responding to inherently dangerous situations that call for an immediate response, if the person respond they way he or she normally would if they were on duty within his or her jurisdiction.

R.C. §4123.01(A)(2), of the Ohio Revised Code specifically excludes the following class of persons from being considered an employee for purposes of workers’ compensation, unless the employer elects to treat them as an employee:
(a) ordained, commissions or licensed ministers;
(b) any officer of a family farm corporation;
(c) an individual incorporated as a corporation; or
(d) an individual who signs a religious exemption waiver and affidavit and the waiver is approved by the Administrator of the Ohio Bureau of Workers’ Compensation.

Borrowed Employee (Loaned Servant Rule)

Ohio has adopted the loaned servant rule, which applies when an injured worker is employed by a temporary and/or staffing agency to work for the agency’s customer. In these situations, the employee may have dual employment status and be considered an employee of both the staffing agency and the customer.

The customer may be considered the employer if the employer’s role is merely to pay the employee, but the employee actually works for the customer of the employer and the customer has the right to control the manner or means of performing the work. See Daniels v. Macgregor Co., 2 Ohio St.2d 89 (1965); Below v. Dollar Gen. Corp., 163 Ohio app.3d 694, 2005-Ohio-4752. In addition, the customer will enjoy immunity from tort actions pursuant to Ohio’s workers’ compensation immunity statute found in R.C. §4123.74.

Ohio courts apply the right to control test in Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.3d 881(1988) to determine whether the customer has control over the employee and will be considered a dual employer.

Independent Contractor

The general rule under Ohio law is that an independent contractor is not an employee for purposes of workers’ compensation and is not entitled to workers’ compensation benefits from the contractor. The Ohio Supreme Court applies the “right to control test,” as stated in the lead case of Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.3d 881(1988), to determine whether a person is an employee versus an independent contractor and focuses on whether the employer reserves the right to control the manner and means of doing the work. The Ohio Supreme Court reviews several factors, including:
1.       who controls the details and quality of the work;
2.       who controls the hours worked;
3.       who selects the materials, personnel, and tools used;
4.       who selects the routes traveled;
5.       length of employment;
6.       the type of business;
7.       the method of payment i.e., paid by the hour versus by the job; and
8.       any pertinent agreements or contracts.

Ohio courts also consider additional factors such as: whether the one employed is engaged in a distinct occupation or business; whether the work is done by a specialist, requiring a particular skill; whether the worker or the employer supplies the place and requisite instrumentalities; and whether the work is a part of the regular business of the employer.

Ohio does carve out a statutory exception to the general rule that independent contractors are not entitled to workers’ compensation benefits from a general contractor. Pursuant to R.C. §4123.01(C), a general contractor can be deemed the employer of a subcontractor or independent contractor’s employees if the subcontractor failed to pay workers’ compensation premiums and provide workers’ compensation insurance for its employees.

The “right to control test” found in Bostic is a common law test that Ohio courts use to determine employee vs. independent contractor status of all injured workers except those providing labor and/or services pursuant to a construction contract. For construction workers, the courts do not apply the common law test in Bostic. Instead, the courts assesses whether the injured worker satisfies the twenty criteria listed in R.C. §4123.01(A)(1)(c). If the injured worker satisfies at least ten of these criteria, the worker will be considered an employee.

The definition of a construction contract is found in R.C. §4123.79 and includes “any oral or written agreement involving any activity in connection with the erection, alteration, repair, replacement, renovation, installation, or demolition of any building, structure, highway, or bridge.

Employer as the Employee & Self-Employed persons

If an employer is a partnership, sole proprietorship, individual incorporated as a corporation, or family farm corporation, the employer may elect to treat any member of such partnership, the owner of the sole proprietorship, the individual incorporated as a corporation, or the officers of the family farm corporation as an employee by giving the Ohio Bureau of Workers’ compensation written notice of the election, and complying with Ohio Administrative Code §§ 4123-17-07 and 4123-17-30.

EXCLUSIVE REMEDY

General Rule

Article II, Section 35 of the Ohio Constitution makes workers’ compensation benefits the sole remedy for workplace injuries. R.C. §4123.74 codifies the constitutional grant of employer immunity and provides that an employer who complies with the coverage provisions of the workers’ compensation laws is not liable for damages for any injury or occupational disease sustained by an employee in the course of or arising out of his employment. This immunity extends not only to injured employee civil suits but also suits brought by other parties such as the dependents of the injured worker, third parties who may be jointly sued and any others who claim a loss as a result of the industrial injury. Fellow employees also enjoy immunity under R.C. §4123.741.

Exceptions to General Immunity

Where the employer’s conduct producing an injury is intentional and tortious, immunity will not apply as it is deemed to be outside the employment relationship. Brady v. Safety-Kleen Corp., 61 Ohio St. 3d 624, 576 N.E.2d 722(1991); Stetter v. R.J. Corman Derailment Servs., LLC, 125 Ohio St. 3d 280, 2010-Ohio-1029, 927 N.E.2d 1092 (2010). Employer liability for intentional torts is statutorily addressed and limited by R.C. §2745.01 which requires proof of “intent to injure or with the belief that the injury was substantially certain to occur.” Immunity also will not apply in dual capacity situations Bakonyi v. Ralston Purina Co. (1985), 17 Ohio St. 3d 154, 478 N.E. 2d; Freese v. Consolidated Rail Corp. (1983), 4 Ohio St. 3d 5, 445 N.E.2d 1110. Finally, the Ohio Supreme Court in Balyint v. Arkansas Best Freight System, Inc. (1985), 180 Ohio St. 3d 126, 480 N.E. 2d 417 recognized the right of an employee of a self insured employer to bring an action against that employer for an intentional and wrongful termination of workers’ compensation benefits.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Employment relationships which are “localized” in Ohio or have “sufficient contacts” with the state are subject to Ohio workers’ compensation laws. Prendergast v. Indus. Comm. (1940), 136 Ohio St. 535, 543; State ex rel. Stanadyne, Inc. v. Indus. Comm. (1984), 12 Ohio St. 3d 199, 202. A totality of the circumstances analysis is used to determine whether a particular employment relationship has sufficient Ohio contacts to be considered localized in Ohio. The factors examined and weighed include:
(1) where the contract of employment was entered;
(2) where the injury occurred;
(3) where the employee performed the work:
(4) the residence or domicile of the employee;
(5) the employer’s place of business;
(6) the location from which the employee was supervised and controlled;
(7) the state where the employee’s payroll was processed;
(8) the availability of workers’ compensation in other states;
(9) whether the work was to be performed solely in another state;
(10) whether the work was to be performed exclusively in interstate commerce;
(11) the relation of the employee’s work to the employer’s place of business or situs of industry, and
(12) the state having supreme governmental interest in the employee as affecting his or her social, business and political life. Id.;

Bridges v. Natl. Engineering & Contracting Co. (1990), 49 Ohio St. 3d 108, 113; Dotson v. Com. Trans., Inc. (1991), 76 Ohio App. 3d 98, 104; Lynch v. Mayfield (1990), 69 Ohio App. 3d 229, 233.

Extraterritorial Jurisdiction

An Ohio employee, who is required to perform temporary duties in another state, i.e. 90 days or less, will generally have the full protection of the Ohio workers’ compensation system.

An employee who enters into an employment contract outside of Ohio with an Ohio employer may work in another state some or all of the time. This leads to the possibility that Ohio’s workers’ compensation laws may conflict with those of the other state. In these cases, Ohio law allows employers and employees to choose workers’ compensation coverage from Ohio or from the other state. Form C-110 allows the employer and employee to sign and agreement to be bound exclusively by the workers’ compensation laws of Ohio. Another form, Form C-112 allows the employer and employee to agree be bound exclusively by the workers’ compensation laws of the other state. However, neither form Form C-110 nor C-112 can create jurisdiction where none exists. The forms merely clarify which state’s laws will apply in the event of a conflict between states having jurisdiction over an employer and employee. Although BWC honors a valid Form C-110 in Ohio, the laws of another state might not recognize the terms of the agreement. Ohio urges the parties to consult the workers’ compensation agency in the other state(s) or private counsel to verify the validity of the Form C-110 nor C-112 agreements outside Ohio. Again, form Form C-110 is not needed for coverage to apply to Ohio employees who are temporarily working outside the state. Ohio coverage applies to them regardless whether the form is completed.

SB 334, effective January 1, 2009, requires the Ohio BWC to recognize the coverage laws of another state for its employees temporarily in Ohio to the extent that state recognizes Ohio coverage for Ohio employers temporarily within that state. In no event will Ohio recognize the coverage beyond 90 days. So, if the worker’s home state allows Ohio employers to enter their state and work temporarily and still be covered by the Ohio BWC, then Ohio will reciprocate, that is, will allow out of state employers from that state to enter Ohio to work temporarily and still be covered by their home state’s workers’ compensation system, up to a maximum of 90 days. However, if the other state requires Ohio employers working in their state to have workers’ compensation coverage through that state, regardless of the duration of work performed, then Ohio will reciprocate, that is, require out of state employers to be covered under Ohio workers’ compensation. R.C. §§4123.01, 4123.26, 4123.29, 4123.34, 4123.51, 4123.54, 4123.82, 4123.88,, 4123.292 and 4123.542.

If any employee or the employee's dependents pursue workers' compensation benefits or recover damages from the employer under the laws of another state, the amount awarded or recovered, whether paid or to be paid in future installments, shall be credited on the amount of any award of compensation or benefits made to the employee or the employee's dependents by the bureau. R.C. §4123.54(H)(2).

Time Limitation

For injury and death claims, notice of the specific part or parts of the body claimed to have been directly injured, or notice of death must be given within 2 years of the injury or death, or the claim is forever barred. R.C. §4123.84. The form of the notice is not determinative so long as notice is given. Toler v. Copeland Corp. (1983), 5 Ohio St. 3d 88, 448 N.E. 2d 1386.

Discovery Rule

Ohio’s period of limitations commences to run on the date of the injury rather than at the time of the claimant’s actual or constructive discovery of the injury’s disabling consequences. State ex rel. Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 198 N.E. 480; Campbell v. Indus. Comm. (1926), 22 Ohio St. 454, 153 N.E. 276.

Notice of Injury

While the claimant has the affirmative duty to formally file a claim application, the Bureau’s receipt of written information giving actual notice of a claim need not be by use of the FROI-1 (First Report of Injury) form. The Bureau’s receipt of a doctor’s bill or written information indicating the occurrence of an injury or the contraction of an occupations disease from a third part can satisfy the notice requirements of R.C. §§4123.84 and 4123.85.

Statute of Limitations

R.C. §4123.84 prescribes the limitations and notice requirements governing claims arising from injury or death and provides that in all cases claims for compensation or benefits for the specific body part or parts injured shall be forever barred unless within 2 years after the injury or death
(1) written notice of the specific body part or parts has been made to the Industrial Commission or Bureau;
(2) the employer, with knowledge of a claimed compensable injury or occupational disease, has paid wages in lieu of compensation for total disability;
(3) in the event the employer is self-insured, one of the following has occurred:
(a) written notice of the specific body part or parts has been given to the Industrial Commission or Bureau or the employer has furnished treatment by a licensed physician in the employ of an employer; provided, however, that the furnishing of such treatment shall not constitute a recognition of compensability, but shall do no more than satisfy the requirements of this section;
(b) compensation or benefits have been paid or furnished equal to or greater than is provided in R.C. §§4123.52, 4123.55 to 4123.62 and 4123.64 to 4123.67;
(4) written notice of death has been given to the Industrial Commission or Bureau.

Special Rules for Death Claims

Pursuant to R.C. §4123.84, a workers compensation claim for industrial accidents or incidents resulting in death, must be brought within 2 years of the date of death.

Occupational Disease Death Claims

Pursuant to R.C. §4123.85 a workers’ compensation claim for death due to occupational disease, must be brought within 2 years after death occurs.

Occupational Disease Claims

These must be filed within 2 years after the date of disability, 6 months from date of diagnosis or 2 years from date of death, whichever date is the latest. R.C. §4123.85. The date of disability has been defined by the Ohio Supreme Court to be the latest of the following three dates:
(1) the date on which the claimant was first diagnose has having the occupational disease;
(2) the date on which the claimant was first treated for the occupational disease; or
(3) the date on which the claimant first quit work because of the occupational disease.
White v. Mayfield (1988), 37 Ohio St. 3d 11, 523 N.E. 2d 497.

Extension of Limitation Period

Ohio does not recognize the tolling of claims filed after the expiration of the limitation period for reasons such as mental incapacity, minor status, imprisonment, ignorance of a right or military service. However, under R.C. §4123.28 pertaining to injuries and occupational diseases, fatal or otherwise, received in the course of employment and resulting in 7 days or more of total disability and requiring the filing of a report by the employer with the Bureau within 1 week after acquiring knowledge of such injury or death therefrom, for each day that an employer fails to file the report, it constitutes an additional day within the time period given to a claimant by the applicable statute of limitations for the filing of a claim provided that the failure to file a report shall not extend the applicable statute of limitations for more than 2 additional years.

COMPENSABILITY

General Rule

Ohio’s Workers’ Compensation Act (the “Act”) provides workers’ compensation benefits for any injury received in the course of, and arising out of, the injured employee's employment.

“Injury”Defined

The Act defines an injury in R.C. §4123.01(C). The term "Injury" includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment.

"Injury" does not include:
1.       Psychiatric conditions except where the claimant's psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant or where the claimant's psychiatric conditions have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate;
2.       Injury or disability caused primarily by the natural deterioration of tissue, an organ, or part of the body;
3.       Injury or disability incurred in voluntary participation in an employer-sponsored recreation or fitness activity if the employee signs a waiver of the employee's right to compensation or benefits under this chapter prior to engaging in the recreation or fitness activity;
4.       A condition that pre-existed an injury unless that pre-existing condition is substantially aggravated by the injury. Such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.

Types of Injuries

Accident Not Required

Ohio courts used to require that the injury be the result of a sudden mishap, or accident at a particular time and place in order to be compensable. See Dripps v. Indus. Comm., 165 Ohio St. 407, 135 N.E.2d 873 (1956).

In response, the Ohio legislature revised the definition of an injury to clarify that an accident is no longer required. R. C. §4123.01(C). The Ohio Supreme court acknowledged this change in Czrnecki v. Jones & Laughlin Steel Corp., 58 Ohio St. 2d 413, 390 N.E.2d 1195(1979) and held that it is not necessary to show that unusual circumstances preceded an injury in order for that injury to be compensable under the Act.

After Czrnecki, it was unclear whether an injured worker still had to prove that his or her injury occurred at a particular time and place. The Ohio Supreme Court clarified its position on gradual wear and tear injuries in the case of Village v. General Motors, 15 Ohio St.3d 129, 472 N.E.2d 1079(1984), and held “[a]n injury which develops gradually over time as the result of the performance of the injured worker’s job-related duties is compensable under R.C. §4123.01(C).”

In Village, the Ohio Supreme Court explained that, it intended to overrule “any other case which suggests that an injury must be the result of a sudden mishap occurring at a particular time and place to be compensable.” Village, 15 Ohio St.3d at 131.

Infectious Diseases

Infectious diseases such as HIV aids, Hepatitis B, etc… are compensable if the injured worker can show that he or she contracted the disease in the course of his or her employment.

Heart

Ohio courts have held that heart conditions, such as heart attacks are compensable if the injured worker can show that the heart attack was an acute event caused by job-related stress, i.e., stress experienced in the course of and arising out of his employment. Mataraza v. Euclid, 2011-Ohio-2795, 193 Ohio App. 3d 479.

In addition, “[a] heart attack brought on by a sudden and dramatic stimulus, such as a severe muscular strain, is clearly compensable under our statute.” Euclid, 2011-Ohio-2795 at ¶ 38.

In Ryan v. Connor, 28 Ohio St.3d 406, 409, 503 N.E.2d 1379, the Ohio Supreme Court held that physical injuries occasioned solely by emotional stress are compensable under the Ohio’s Workers’ Compensation Act , in the same manner as physical injuries resulting from contemporaneous physical injury or physical trauma. But, “[i]n order for a stress-related injury to be compensable, the claimant must make a two-part showing. Euclid, 2011-Ohio-2795 at ¶ 38.

First, the claimant must show that the injury resulted from greater emotional strain or tension than that to which all workers are occasionally subjected.” Ryan, 28 Ohio St.3d at 406. “In other words, the injury must result from “unusual” workplace stress unlike the normal, everyday stress that all workers experience from time to time.” Small v. Defiance Pub. Library (1993), 85 Ohio App.3d 583, 587, 620 N.E.2d 879. The court must view the stress from an objective standpoint, focusing on the stress experienced by all workers as a whole, and not from the subjective standpoint of the injured worker or the worker's individualized or subjective response to the stress. Id.

Second, the claimant must establish that the stress to which he was subjected in his employment was, in fact, the medical cause of his injury. Ryan, 28 Ohio St.3d at 406.

Heart attacks are also compensable as residual injuries proximately caused by original injuries. See Kenyon v. Scott Fetzer Co., 113 Ohio App.3d 264, 680 N.E.2d 1034 (1996) where the court held that the claimant's heart attack, suffered during the course of his treatment for work-related injuries to his hip and groin, was a compensable residual injury proximately caused by the original injuries.

Lastly, R.C. 4123.68(W) specifically provides a rebuttable presumption that cardiovascular diseases caused by the cumulative effect of a firefighter or police officers’ exposure to heat, smoke, toxic gases, chemical fumes, etc. is a compensable occupational disease. But, in order to obtain the presumption, “[f]irst, the firefighter must establish that the disease was “caused or induced by” the cumulative exposure to the toxins designated by statute.” Cunningham v. Conrad, Summit App. No. 19187, 1999 WL 194458 (Mar. 31. 1999). “Once the firefighter has shown causation, a refutable presumption arises that such exposure, and the resulting disease, occurred ‘in the course of and arising out of his employment.’” Id.

Psychological Injury

Pursuant to R.C. §4123.01(C)(1), which defines a workplace injury, psychiatric conditions are not compensable under Ohio’s Workers’ Compensation Act except where the claimant's psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant or where the claimant's psychiatric conditions have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate. In other words, a mental injury is not compensable unless it is causally related to a work-related physical injury.

Ohio law addresses three scenarios in which mental conditions may arise in the workplace, but only two of these scenarios create a compensable injury as outlined below:
Mental/Mental - mental conditions caused solely by work related stress that do not result in a physical injury are not compensable. Rombaldo v. Accurate Die Casting, 65 Ohio st.3d 281, 603 N.E.2d 975 (1992). State ex rel. Clark v. Industrial Commission, 92 Ohio St.3d 455, 751 N.E.2d 967(2001). McCrone v. Bank One Corporation, 107 Ohio St.3d 272, 839 N.E.2d 1, 2005–Ohio–6505.

Mental/physical – mental conditions caused by employment related physical injuries are compensable. In Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 741 N.E.2d 121 (2001), the Ohio Supreme Court allowed a claimant to recover for a mental condition (depression) suffered as a result of the physical injuries of a third party. Specifically, a workers' compensation claimant, who suffered from severe depression after he accidentally killed a coworker.

However, the decision in Bailey was superseded by a 2006 amendment to R.C. §4123.01(C); and Ohio court’s have since clarified that “the physical injury must be one that the claimant suffered in order for the claimant's psychological injury to be compensable” and the if the physical injury is one suffered by someone other than the claimant, the claimant’s resulting mental condition is not compensable. Jones v. Catholic Healthcare Partners, Inc., 2012-Ohio-6269, 986 N.E.2d 486.

In Armstrong v. John R. Jurgenson Co., 2013-Ohio-2237, the Ohio Supreme Court further clarified in order “[f]or a mental condition to be compensable under workers’ compensation law, a causal connection must exist between the claimant's physical injury and the claimant's mental condition.”

Physical/mental - physical injuries caused by employment related stress are compensable. See Ryan v. Connor, 28 Ohio St.3d 406, 409, 503 N.E.2d 1379, (1986), where the court held that physical injuries occasioned solely by emotional stress are compensable under the Ohio’s Workers’ Compensation Act , in the same manner as physical injuries resulting from contemporaneous physical injury or physical trauma.

Occupational Diseases

Occupational diseases are compensable medical conditions under Ohio’s Workers’ Compensation Act. R.C. §4123.01(F) defines an ‘occupational disease’ as “a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.”

R.C. §4123.68 provides compensation for certain diseases listed in the statute (“scheduled diseases)” if the injured worker can show that he or she contracted one of the scheduled diseases in the course of their employment by the process described in the statute. For instance, if the employee suffers from anthrax as a result of handling wool, hair, bristles, hides, and skins during his or her employment; or the employee contracted lead poisoning during his or her employment by “any industrial process involving the use of lead or its preparations or compounds.”

Some of the scheduled diseases listed in R.C. §4123.68 include: lead poisoning, silicosis, asbestosis, berylliosis, black lung disease, carbon dioxide poisoning, and carbon dioxide poisoning. See R.C. §4123.68 for the complete list of scheduled diseases and the required process by which the injured worker must have contracted the disease.

R.C. §4123.68 also places additional restrictions on six of the scheduled diseases: berylliosis, cardiovascular and pulmonary diseases contracted by firefighters and police officers, silicosis, coal miners pneumoconiosis, radiation illness and asbestosis.

With respect to “non-scheduled” occupational diseases, the injured worker must prove:
“(1) the disease is contracted in the course of employment;
(2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation, or the conditions of claimant's employment result in a hazard which distinguishes the employment in character from employment generally; and
(3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.” State ex rel. Ohio Bell Tel. Co. v. Krise, 42 Ohio St.2d 247, 253–254, 327 N.E.2d 756 (1975); Nevinski v. Dunkin’s Diamonds, 2010-Ohio-3004.

Lastly, the Ohio Supreme Court has made it clear that Ohio does not recognize occupational disease claims for aggravation of pre-existing non-industrial medical conditions or diseases unless the aggravation itself qualifies as a compensable injury or occupational disease.       Brody v. Mihm, 72 Ohio St.3d 81, 82-83, 647 N.E.2d 778 (1995).

EXCLUSIONS AND DEFENSES

Course of Employment

Before a worker can participate in the Workers’ Compensation Fund for an injury, the employee must demonstrate that the injury:
(1) was received in the course of the employee’s employment; and
(2) arises out of the injured employee’s employment. Brown v. Lake Erie Elect. Co., 2010-Ohio-4950, ¶ 9 citing Oberhauser v. Mabe, 2009-Ohio-3680, ¶ 15. See also, R.C. 4123.01(C). However, this rule is to be liberally construed in favor of awarding benefits. Fisher v. Mayfield, 49 Ohio St.3d 275, 278, 551 N.E.2d 1271

The requirement that an injury be in the course of employment involves the time, place, and circumstances of the injury. Fisher, 49 Ohio St.3d 275, 551 N.E.2d 1271. “The phrase ‘in the course of employment’ limits compensable injuries to those sustained by an employee while performing a required duty in the employer’s service.” Brown, 2010-Ohio-4950 at ¶9.

“An injured employee does not actually have to be performing his or her duties for the injury to be in the course of employment.” Stair v. Mid–Ohio Home Health Ltd., 2011-Ohio-2351, where the court held that a workers' compensation claimant was injured in the course of her employment, when the claimant was injured when she fell in the parking lot in front of her employer’s office, while picking up her paycheck as required by employer. See also, Friebel v. Visiting Nurse Assn. of Mid Ohio, 2013 -Ohio- 1646 at ¶ 16.

But, the employee “must be engaged in a pursuit or undertaking consistent with the contract of hire which is related in some logical manner, or is incidental to, his or her employment.” Id. at ¶ 32.

“The phrase, ‘arising out of,’ refers [to] the ‘causal connection between the injury and the employment.” Id., citing Oberhauser v. Mabe, Butler App. No. CA2008-11-266, 2009-Ohio-3680, ¶ 15, quoting Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277-278.

Generally, Ohio courts use the “totality of the circumstances” test to determine whether an injury “arises out of” the employee’s employment. This test requires primary analysis of the three factors enumerated by the Ohio Supreme Court in Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444, 423 N.E.2d 96, which are:
“(1) the proximity of the scene of the accident to the place of employment,
(2) the degree of control the employer had over the scene of the accident, and
(3) the benefit the employer received from the injured employee’s presence at the scene of the accident.” These factors are commonly referred to as the Lord factors.

Engaged in the Furtherance of Employer’s Business

See the discussion in “Course of Employment”.

Not in Furtherance of Employer’s Business

See the discussion in “Course of Employment”.

Traveling Employees

See the discussion below concerning the Coming and Going rule below.

Commuting (Coming & Going Rule)

The “coming and going rule” states that “an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite causal connection between [the] injury and the employment does not exist.” Brown v. Lake Erie Elect. Co., Clermont App. No. CA 2010-04-030, 2010-Ohio-4950, ¶ 10, citing Oberhauser v. Mabe, Butler App. No. CA2008-11-266, 2009-Ohio-3680, ¶ 31. In other words, the injury did not “arise out of” the employee’s employment.

If the employee has a fixed place of employment, the employee is considered a fixed-situs employee; and if the injury occurred while the employee was traveling to or from work, the coming and going rule applies as a complete bar to workers’ compensation benefits.

Prior to 1998, the determination of whether an employee was a fixed-situs employee was relatively simple. If an employee reported to the same place each day and remained there all day, they were considered a fixed-situs employee. But, if the employee’s job site changed daily, monthly or even yearly, and/or the employee travelled from job-to-job throughout his or her work day, they were not considered a fixed-situs employee and the coming and going rule did not apply.

In 1998, however, the Ohio Supreme Court redefined the definition of a fixed-situs employee to include employees whose job site changes monthly, weekly and even daily. See Ruckman v. Cubby Drilling Inc., 81 Ohio St.3d 117, at ¶ 1 of the syllabus, 1998-Ohio-455. In this case, the Ohio Supreme Court held:
in determining whether an employee is a fixed-situs employee and therefore within the coming-and-going rule, the focus is on whether the employee commences his or her substantial employment duties only after arriving at a specific and identifiable work place designated by his employer. That focus remains the same even though the employee may be reassigned to a different work place monthly, weekly, or even daily. Despite periodic relocation of job sites, each particular job site may constitute a fixed place of employment.

Under the Ohio Supreme Court’s new definition in Ruckman, the only employees that could possibly fall outside the fixed-situs definition are those employees who are required to travel from job-to-job throughout their work day and do not remain at one spot all day, i.e., sales employees who travel to various client appointments throughout the day, or regional and district managers who travel to various company locations each day to manage stores, etc. . . .

For instance, in Werden v. Ohio Bur. Of Workers’ Comp., 151 Ohio App.3d 815, 2003-Ohio-1222 at ¶ 14, the court held that an employee may not be a fixed-situs employee if his workday was not confined to reporting to a specific job site and remaining there until the day’s end. See also, Miller v. Bur. Of Workers’ Comp., Summit App. No. 24805, 2010-Ohio-1347 at ¶ 23-25 (where the court rejected the trial court’s application of the coming and going rule to an employee who was required to perform inspections off the work site two times per day).

       

However, even for fixed-situs employees, the coming and going rule is not always a bar to workers’ compensation benefits. There are several exceptions to the coming and going rule:
(1) the special hazard exception,
(2) the zone of employment exception,
(3) the totality of the circumstances exception,
(4) the on-call employee exception and
(5), the special mission exception.

Special hazard exception
In rare circumstances, a fixed situs employee may still be entitled to workers’ compensation benefits by demonstrating the existence of a “special hazard.” See Ruckman at paragraph two of the syllabus, citing MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 69, 572 N.E.2d 661, and Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, 453 N.E.2d 570. Under the “special hazard” exception, a fixed-situs employee, injured while commuting to or from work, may demonstrate that his injuries “arose out of” his employment by showing that his travel served a function of his employer’s business and created a risk that was distinctive in nature or quantitatively greater than the risk common to the general public during commutes. Ruckman, at 124, 689 N.E.2d 917, where the court applied the special hazard exception to the coming and going rule for employees required to travel to customer locations in three different states for 3 to 10 days at a time.

See also, Siegel v. Jozac Corp., Cuyahoga App. No. 78465, 2001 WL 840375, where the court applied the special hazard exception and allowed workers’ compensation benefits for an employee who got intoxicated on the job and was involved in a car accident on the way home because the employer encouraged or condoned excessive drinking on the job and in fact profited from the employee's drinking.

But, see Barber v. Buckeye Masons & Constr. Co., Geauga App. No. 2000-G-2305, 2001-Ohio-4301 and Brown v. Lake Erie Elect. Co., Clermont App. No. CA 2010-04-030, 2010-Ohio-4950, in which the courts held that travel within one state among three counties does not create a special hazard exception to the coming and going rule.

Zone of Employment Exception
Ohio courts have defined the zone of employment as “the place of employment and the area thereabout, including the means of ingress thereto and egress therefrom, under control of the employer.” Johnston v. Case W. Reserve Univ. (2001), 145 Ohio App.3d 77, 83, 761 N.E.2d 1113, quoting Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St.2d 18, 39 O.O.2d 11, 225 N.E.2d 241.

The zone-of-employment exception developed to expand the “place of employment” beyond the specific office or factory where the employee performs work activities, to areas such as parking lots, and to expand the scope of activity considered incident to the employment relationship. Collins v. W.S. Life Ins. Co., Hamilton App. No. C-07-0189, 2008-Ohio-2054, citing MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 572 N.E.2d 661.

The Ohio Supreme Court has long recognized that “an employee is no longer subject to strict application of the coming-and-going rule once he reaches the premises of his employer” and that “injuries sustained while the employee is within this ‘zone of employment’ may be compensable under the act.” Collins v. W.S. Life Ins. Co., Hamilton App. No. C-07-0189, 2008-Ohio-2054.

See, e.g, Cunningham v. Lukjan Metals Prods., Inc., Ashtabula App. No. 2009-A-0033, 2010-Ohio-822, where Court applied the zone of employment exception to allow benefits for an employee who was injured in an automobile accident while on a temporary assignment for the employer out-of-state because the accident occurred in a car rented by the employer for the employee while traveling from the employer’s plant to the motel where claimant was required to stay.

See also, Taylor v. Meijer, Inc., Montgomery App. No. 23018, 2009-Ohio-1966, where the court applied the zone of employment exception to allow benefits for a Meijer employee injured when she exited the grocery store ten minutes after the end of her shift to return to her car, although she had briefly engaged in some personal shopping immediately after her shift ended and before she returned to her car.

Totality of the Circumstances Exception
As stated above, this test requires primary analysis of the Lord factors:
“(1) the proximity of the scene of the accident to the place of employment,
(2) the degree of control the employer had over the scene of the accident, and
(3) the benefit the employer received from the injured employee’s presence at the scene of the accident.” Lord v. Daugherty (1981), 66 Ohio St.2d 441, 20 O.O.3d 376, 423 N.E.2d 96; Ruckman, at 122, 689 N.E.2d 917.

See, Miller v. Bur. of Workers’ Comp., Summit App. No. 24805, 2010-Ohio-1347 at ¶ 23-25, where the court applied the totality of the circumstances exception and rejected the application of the coming and going rule to an employee who slipped and injured his back in the parking lot of a restaurant while ending one of his paid, fifteen-minute breaks. In Miller, the court clarified that although the coming and going rule applies to injuries occurring during travel to and from work for an unpaid lunch break, it does not apply to injuries that occur while traveling back to work from a paid coffee break for employees required to change work locations throughout the day.

See also, Jones v. Multicare Health & Educational Servs., Inc., 2013 -Ohio- 701, where the court applied the totality of the circumstances test when the claimant was injured in a car accident while headed to the drug store to pick up a prescription for a patient after his unpaid lunch break, and concluded that a reasonable juror could find that there is a sufficient causal connection between claimant’s injury and his employment thereby entitling him to workers’ compensation benefits.

On-Call Employee Exception
The on-call employee exception applies where an employee has no regular hours of employment but is on call and subject to recall by his employer at all hours suffers an injury. Durbin v. Ohio Bur. of Workers’ Comp., 112 Ohio App. 3d 62, 677 N.E.2d 1234 (1996), citing Indus. Comm. v. Murphy (1935), 50 Ohio App. 148, 1 O.O. 546, 197 N.E. 505.

But, see Smith v. City of Akron, 2004-Ohio-5174 where the court held that the mere fact that a city employee carried a work radio with him, and was “on call” during his unpaid lunch break, did not mean that the injuries he received, while leaving a restaurant during his lunch break, arose out of, and in course of, employment.

Special Mission Exception
The special mission exception applies if the injury is sustained by the employee while performing a special task, service, mission, or errand for his employer, even before or after customary working hours, or on a day on which he does not ordinarily work. For the exception to arise, the mission must be the major factor in the journey or movement, and not merely incidental thereto, and the mission must be a substantial one.

See, Pierce v. Keller (1966), 6 Ohio App.2d 25, where the court held that the special mission exception did not apply to an employee who died in a car accident while traveling to work in his own car, while carrying instructions for another employee at the direction of his employer. See also, Seese v. Bur. of Workers’ Comp., 2009-Ohio-6521, where the held that the special mission exception did not apply to a claimant who was injured in a traffic accident while travelling to his regular work site on a day he was not normally scheduled to work in response to his employer’s urgent request that he come to work to repair the employer’s roof after it was damaged during a storm.

But, see, Wining v. Unique Ventures Group, L.L.C., 2011 WL 2112591 where the court applied the special mission exception and allowed workers compensation death benefits to the estate of an employee who died in a fatal car accident, which occurred while the employee was returning keys to the employer’s restaurant so a manager (who lost her keys) could lock up.

Lastly, if the employee does not have a fixed place of employment, he or she is not a fixed-situs employee and the coming and going rule does not apply. So the court performs an in-depth analysis using the totality of the circumstances test and considering the Lord factors to determine whether an injury which occurred while traveling arises out of the employee’s employment.

Premises and Parking Lot Cases

Issues concerning an employee’s injury that occurred in the parking lot and/or on the employer’s premises are typically addressed using the zone of employment or totality of the circumstances exceptions to the coming and going rule as discussed above in section 5.1.4.

Typically injuries incurring on the employer’s premises and or in nearby parking lots are compensable. See, e.g., Stair v. Mid–Ohio Home Health Ltd., 2011-Ohio-2351, where the court held that a workers’ compensation claimant was injured in the course of her employment, as required for injury to be compensable, when the claimant was injured when she fell in the parking lot in front of her employer's office, while picking up her paycheck as required by employer.

Related to Employment

See the discussion in “Course of Employment”.

Intentionally Self-Inflicted Injury or Death

If the employee’s injury is intentional or self inflicted, this is a statutory defense to their ability to recover workers’ compensation benefits. This defense typically comes into play when an employee’s injury is purposeful and self inflicted i.e., illegal drug usage, prescription drug overdose, alcoholism, suicide, etc. The first statute dealing with the self-inflicted injury defense is R.C. §4123.46. Pursuant to this statute, the bureau is not authorized to disburse workers’ compensation benefits for self-inflicted injuries. However, the Ohio Supreme Court has carved-out a narrow exception for certain suicide situations. See, Borbely v. Prestole Everlock, Inc. (1991), 57 Ohio St.3d 67, 565 N.E.2d 575, in which the Ohio Supreme Court adopted a “chain-of-causation” test to determine whether a suicide was a proximate result of a work-related injury, and held in order to recover benefits for a death by suicide, the claimant must establish that:
(1) there was initially an injury received in the course of, and arising out of, the employee’s employment as defined by R.C. 4123.01(C);
(2) the work-related injury caused the employee to become dominated by a disturbance of the mind of such severity as to override normal rational judgment; and
(3) the disturbance resulted in the employee’s suicide.” Id. at syllabus.

See also, Baker v. Ohio Bur. of Workers’ Comp. (2000), 140 Ohio App.3d 766, where the court applied the chain of causation test and held that reasonable minds could differ about whether the decedent’s suicide (performed when he was caught stealing by the police) was caused by a work related injury ten years earlier in which the claimant fell 80 to 90 feet and suffered various physical and mental conditions.

Also consider the court’s decision in Parker v. Honda of Am. Mfg., Inc.,2009 -Ohio- 6866, where the claimant suffered back injuries while employed with Honda and became addicted to pain medication and died form a drug overdose. In this case, the court held that the chain of causation test does not apply to death claims arising from purposeful self-inflicted drug overdoses, and denied the claim for workers comp. death benefits.

The second statute dealing with the self-inflicted injury defense is R.C. §4123.54. R.C. §4123.54 deals with self-inflicted injuries, the ability to recover workers’ compensation benefits while incarcerated and injuries resulting from the use of illegal drugs and/or alcohol on the job.

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

R.C. §4123.54 gives employers a “rebuttable presumption” that the injury is not compensable if the employee tested positive for alcohol within (8) eight hours of the injury, tested positive for illegal or non-prescribed drugs within (32) thirty-two hours of the injury or refused to submit to a test for drugs or alcohol (at the request of the employer, a physician and/or police officer).

But, this statute simply provides a presumption against workers’ compensation which the employee may successfully rebut by showing that their intoxication and/or illegal drug use was not the proximate cause of thir injury.

In addition, this presumption can only be used if:
(1) the employer posted written notice of this rule, which includes a warning that a positive test and/or refusal to test could result in the denial of workers’ compensation benefits;
(2) the employer has a reasonable suspicion to believe that the employee was under the influence of drugs and/or alcohol at the time the injury occurred and the drug test was requested; and
(3), if the drug test was administered by a laboratory certified by the U.S. Department of Health and Human Services (DHS) or a laboratory that meets or exceeds DHS’ standards.

Employee’s Violation of Positive Orders

Not applicable.

Personal Animosity

Not applicable.

Hostile Attacks (Fights or assaults)

Ohio courts use a two-pronged test to determine whether fights and assaults that occur in the workplace are compensable injuries. In cases involving fights and/or assaults at the place of employment, Ohio courts have consistently focused on two factors:
(1) if the origin of the assault was work-related; and
(2) if the claimant was not the instigator.
The injury is compensable only if the cause of the assault was work related and the claimant was not the instigator.

See, Foster v. Cleveland Clinic Foundation, 2004-Ohio-6863 (where the court held that an employee’s children could not recover workers’ comp. death benefits when an employee was shot at work by her husband because the shooting arose out of marital discord, the shooting was unrelated to the employee’s job duties, and the shooting occurred before the employee started her shift); Luo v. Gao, 2007-Ohio-959 (where the court allowed workers’ compensation benefits for an injured worker that got into a fight with another co-worker because he accidently spilled water on him); Masden v. CCI Supply, Inc., 2008-Ohio-4396 (where the court allowed benefits for an injured employee who was assaulted while staying in a hotel on a company business trip); Lowe v. Cox Paving, Inc., Brown App. No. No. CA2010-03-005, 2010-Ohio-3816 (where the court denied benefits to an injured worker that was determined to be the instigator of a fight with his co-worker over who should go purchase more beer.); and Stivinson v. Goodyear Tire & Rubber Co. (1997), 80 Ohio St.3d 498, 687 N.E.2d 458 (where court held that the fellow employee’s assault on the claimant, in retaliation for the claimant informing the supervisor that the fellow employee had violated work rules, was not compensable, because the assault occurred after claimant’s shift at a restaurant near the workplace.)

Retirement (voluntary abandonment defense)

Under Ohio law, a claimant is entitled to temporary total disability benefits when the work-related injury prohibits the claimant from returning to his/her former position of employment i.e., the employment position he or she held at the time the work related injury occurred. Ohio courts have held that a worker is prevented by an industrial injury from returning to his former position of employment where, but for the industrial injury, he would return to such former position of employment.

In State ex rel Jones & McLaughlin Steel Corp. v. Indus. Comm., 29 Ohio App. 3d 145(1985), the Ohio Supreme Court recognized the “voluntary abandonment defense” as a bar workers’ compensation benefits and held “if the employee has taken an action that would preclude him/her from returning to their former position of employment, even if they are medically able to do so, the employee is not entitled to TTD because it is the employee’s own voluntary actions (not the industrial injury) which precludes them from returning to their former position of employment.” This is known as the voluntary abandonment defense.

Voluntary abandonment is an affirmative defense to a claim for workers’ compensation benefits, and the employer has the burden of proving that the claimant has voluntarily abandoned his or her employment and is thereby ineligible for benefits. One of the ways an employee may be deemed to have voluntary abandoned his or her employment is if the employee voluntarily retires and removes his or herself from the entire workforce.

General Rule

The general rule is that a claimant’s “voluntary” and complete abandonment of the entire workforce with no intention to return preclude the employee from receiving temporary total disability or permanent total disability benefits. State ex rel Jones & McLaughlin Steel Corp., 29 Ohio App. 3d at 147.

A claimant’s retirement is considered voluntary if the claimant intended to retire for a reason that is not related to the workplace injury. State ex rel Hoffman v. Rexam Beverage Co., 2012-Ohio-2469; State ex rel. Black v. Indus. Comm., 2012-Ohio-258. But, when there is some evidence that the claimant retired due to the work place injury, i.e., claimant’s testimony, medical records and retirement records, the retirement is considered involuntary and is not a bar to workers’ compensation benefits. State ex rel. Rockwell International v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678.

Lastly, if it is determined that a claimant's retirement from a job was voluntary, TTD compensation can be awarded only if the claimant has re-entered the workforce and, due to the allowed conditions from the industrial injury, becomes temporarily and totally disabled while working at the new job. State ex rel. Wagers v. Indus. Comm., 93 Ohio St.3d 218 (2001); State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 776 N.E.2d 51, 2002–Ohio–5305.

BENEFITS

Calculation of Average Weekly Wage

The employee’s average weekly wage (AWW) is used as a foundation to calculate several workers’ compensation benefits available under Ohio’s Workers’ Compensation Act . The AWW is calculated by taking the employee’s earnings in the 12 months immediately prior to the workplace injury and dividing by 52. The employee’s earnings can be determined by using: paystubs, payroll reports,W-2 forms, income tax returns, C-94 forms, SSA reports, Ohio Bureau of Job & Family Services reports.

Ohio courts have carved out an exception to the formula, which allows the employee to eliminate any period of unemployment due to sickness, economic depression, strike, lockout, or other causes beyond the employee’s control. See, State ex rel. Warner v. Indus. Comm., 131 Ohio St.3d 366, 2012 -Ohio- 1084; State ex rel. Branham v. Indus. Comm., 3 Ohio App. 3d 72, 443 N.E.2d 1019(1981); R.C. 4123.61.

R.C. §4123.61 also permits Bureau to use any method of calculating the AWW that will afford substantial justice to the claimant if special circumstances arise.

Calculation of Full Weekly Wage

During the first 12 weeks of an employee’s temporary total disability, their compensation is calculated by using 72% of the employee’s full weekly wage (FWW). R.C. §4123.61. For claimant’s who were continuously employed for the 6 weeks before the injury or who’ve worked at least 7 days before the injury, their FWW is the highest amount of either:
(1) the employee’s gross wages for the six weeks prior to the injury divided by six (including overtime pay); or
(2), the employee’s gross wages earned for the seven days prior to the injury (excluding overtime pay). Industrial Commission Joint Resolution R80-7-48.

For employee’s who were not continuously employed for six weeks prior to the injury or who have not worked at least 7 days prior to the injury, their FWW is calculated by multiplying the employee’s hourly rate by the number of hours the employee was scheduled to work for the week in which the injury occurred. Id.

Total Disability

Permanent Total Disability (PTD)

Permanent Total Disability (PTD) compensation is applicable when the employee’s injuries have made them incapable of working and their inability to work is permanent. R.C. §4123.58.

Specifically, “[a]n Injured Worker is considered permanently and totally disabled if the evidence shows that he is unable to engage in any sustained remunerative employment.” State ex rel. Grossenbacher v. Indus Comm., 2010-Ohio-4265, ¶ 19, citing State ex rel. Stephenson v. Indus. Comm., 31 Ohio State 3rd 167(1987).

“The relevant inquiry in a determination of permanent total disability is [the] claimant’s ability to do any sustained remunerative employment. State ex rel. Tope v. Manheim Auctions, Inc., Franklin App. No. 09AP-779, 2010-Ohio-4265, ¶ 19, citing State ex rel. Domjancic v. Indus. Comm. (1994), 69 Ohio St.3d 693, 635 N.E.2d 372.

“Generally, in making this determination, the commission must consider not only medical impairments but also the claimant’s age, education, work record and other relevant nonmedical factors.” Id. at ¶ 19, citing State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 509 N.E.2d 946. These factors are known as the Stephenson factors. “Thus, a claimant’s medical capacity to work is not dispositive if the claimant's nonmedical factors foreclose employability.” Id., citing State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666.

Ohio courts have also held that “engaging in activities that are ongoing even if no payment is involved shows that an Injured Worker is capable of performing those same activities for pay and such activity bars the receipt of permanent total disability benefits. Sustained remunerative employment includes work that was done even on an irregular basis.” State ex rel. Shultz v. Indus. Comm. (2002) 96 Ohio State 3rd 27.

Temporary Total Disability

Temporary Total Disability (TTD) compensation is awarded pursuant to R.C. §4123.56 and “has been defined as compensation for wages lost where a claimant’s injury prevents a return to the former position of employment.” State ex rel. Corman v. Allied Holdings, Inc., Franklin App. No. 10AP-38, 2010-Ohio-5153, ¶ 45. It is well-established that TTD compensation is intended to compensate an injured worker for the loss of earnings incurred while the industrial injury heals. Id. at ¶ 4, citing State ex rel. Pierron v. Indus. Comm., 120 Ohio St.3d 40, 2008-Ohio-5245, ¶ 9, citing State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44.

An injured worker must experience two continuous weeks of disability before he/she is eligible for TTD benefits. There is no compensation for the first week of disability until the claimant suffers two weeks of continuous disability. At that point, the first week of TTD benefits will be paid. See R.C. §4123.55

In general, TTD compensation shall be paid to a claimant until one of four events occur:
(1) the claimant has returned to work;
(2) the claimant’s treating physician has made a written statement that the claimant is able to return to the former position of employment;
(3) when work within the physical capabilities of the claimant is made available by the employer or another employer; or
(4) the claimant has reached Maximum Medical Improvement. Id. at ¶ 42 citing R.C. §4123.56(A); State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630.

Maximum Medical Improvement

Ohio Administrative Code §4123-3-32 defines maximum medical improvement as “a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. An injured worker may need supportive treatment to maintain this level of function.”

“When this stabilization has been reached and no further improvement is probable, then the condition is permanent and claimant can seek compensation for types of permanent disability, namely, permanent partial disability compensation for partial impairment of earning capacity, and permanent total disability compensation for total impairment of earning capacity.” State ex rel. Heffman v. Melrose Capital LLC, Franklin App. No. 06AP-1135, 2007-Ohio-6532, ¶ 63, citing State ex rel. Matlack, Inc. v. Indus. Comm. (1991), 73 Ohio App.3d 648,654-655, 598 N.E.2d 121.

Voluntary Abandonment

As discussed above, in some cases, “a claimant’s own actions, rather than the work-related injury, may result in the claimant’s inability to return to the former position of employment.” State ex rel. Corman, 2010-Ohio-5153, at ¶ 45.

There are several situations in which the claimant has been denied continued TTD compensation based upon their voluntary abandonment of the former position of employment. Id. at ¶ 47, citing State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, (where the court found that the voluntarily retired and had no intention of ever returning to his former position of employment).

See also, State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42 (where an incarcerated claimant was precluded from receiving TTD compensation because he was presumed to have tacitly accepted the consequences of his voluntary acts leading to his incarceration and was deemed therefore to have voluntarily abandoned his former position of employment); State ex rel. McGraw v. Indus. Comm. (1990), 56 Ohio St.3d 137 (claimant who voluntarily abandoned his former position of employment by quitting his job for reasons unrelated to his injury was precluded from receiving TTD compensation); State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 1995-Ohio-153 (claimant voluntarily abandoned his former position of employment when he was terminated for failing to report to work for three consecutive days); and State ex rel. Cobb v. Indus. Comm., 88 Ohio St.3d 54, 2000-Ohio-273 (claimant voluntarily abandoned his former position of employment when he was terminated for testing positive for drugs in violation of a written company policy).

One of the most common scenarios of voluntary abandonment occurs when the employee is terminated for violating an employer’s written work rule:

In order for a termination of employment, based upon the alleged violation of a work rule, to be classified as a voluntary abandonment of employment by an employee, it must be established that the rule which was violated clearly defined the prohibited conduct, that it was previously identified by the Employer as a dischargeable offense, and that it was known or should have been known to the employee that violating it would result in the termination of his employment.

State ex rel. Haid v. Indus. Comm., Franklin Ap. No. 09AP-656, 2010-Ohio-5205, ¶ 26, citing State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401.

See, also, State ex rel. Wilkes v. Indus. Comm. of Ohio & Warren Tube Co., Franklin App. No. 09AP-216, 2010-Ohio-1648, (where the court found that the employee did not voluntarily abandon his employment, thereby ending his right to TTD benefits by failing to submit to a drug and alcohol test because employer’s written rules failed to clearly define the conduct for which the claimant was discharged.)

Partial Disability (Permanent Partial Disability)

Permanent Partial Disability (PPD) compensation “is more akin to a personal injury award designed to compensate for a permanent impairment that affects not only the claimant’s working life but also his life outside the workplace. It is separate and distinct from any total income loss occasioned by a temporary inability to return to work.” State ex rel. Advantage v. Indus. Comm., Franklin App. No. 03AP-584, 2004-Ohio-3384. Thus, a PPD award is often characterized as a pain and suffering benefit equivalent to a pain and suffering claim in a personal injury lawsuit.

Pursuant to R.C. §4123.57:

• * * * the employee may file an application with the bureau of workers’ compensation for the determination of the percentage of the employee’s permanent partial disability resulting from an injury or occupational disease. * * * . A) The district hearing officer, upon the application, shall determine the percentage of the employee’s permanent disability * * * based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable. The employee shall receive sixty-six and two-thirds per cent of the employee’s average weekly wage, but not more than a maximum of thirty-three and one-third per cent of the statewide average weekly wage * * * for the number of weeks which equals the percentage of two hundred weeks.

  The “permanency” requirement for purposes of PPD relates to the fact that the claimant is physically changed and impaired in some permanent way, notwithstanding his ability or inability to return to work at the time Advantage, 2004-Ohio-3384, at ¶ 7. In essence, this award is based on a premise that once an employee suffers a work place injury, their body is permanently affected and will never be the same, even if the injury completely heals.

  The weekly benefit amount is determined by taking the percent of impairment rating and multiplying it by 2. So, for example, if it is determined that as a result of a workplace injury and/or occupational disease, a claimant has suffered a permanent impairment of 5%, the employee would be entitled to a 10 weeks of PPD compensation (i.e., two weeks for every percentage of impairment) at the rate of sixty-six and two thirds percent of their average weekly wage, not to exceed the statewide average weekly wage.

  Wage Loss Benefits
  Wage loss benefits are applicable when an employee suffers a workplace injury that prohibits them from returning to their former position of employment thereby causing the employee to suffer lost wages. There are two distinct types of wage loss benefits: working wage loss and non-working wage loss. Wage loss typically becomes an issue when an employee is reduced to part-time work because of their injuries and/or cannot find a job that accommodates their medical restrictions.

  Pursuant to R.C. §4123.56, “an employee with an allowed workers’ compensation claim who “suffers a wage loss as a result of returning to employment other than the employee’s former position of employment due to an injury or occupational disease” shall receive wage-loss compensation for up to 200 weeks. State ex rel Marrero v. Indus. Comm., 126 Ohio St. 3d 439, 2010-Ohio-3755, ¶ 15. An award of wage-loss compensation thus requires a causal relationship between the wage loss and the allowed injury. Id.

  Wage loss benefits are calculated using the method prescribed in R.C. §4123.56(B)(1). The biggest distinction between working and non-working wage loss is the amount of weeks a claimant is eligible to receive the benefit, which is up to 200 weeks for working wage loss and up to 52 weeks for non-working wage loss; and no more than 226 weeks combined. R.C. §4123.56(B)(3).

  Working wage loss

  Working wage-loss compensation pursuant to R.C. §4123.56(B)(1) “is intended for claimants who are medically unable to return to their former positions of employment but who can do other work.” Id. at ¶ 5, citing State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, ¶ 11. “It encourages a return to the workforce by paying a percentage of the difference between preinjury and postinjury wages in the event that the claimant’s postinjury earnings are less than before due to the injury.” Id.

  Under Ohio Adm. Code §4125-1-01(D)(1)(c), “claimants who are seeking working-wage-loss compensation must show proof of a good-faith search for work within his or her medical and vocational capabilities that has pay comparable to that of the former position of employment.” Id. See also, State ex rel Marrero v. Indus. Comm., 126 Ohio St.3d 439, 2010-Ohio-3755, ¶ 15 in which the Ohio Supreme Court held that a claimant seeking working wage loss claimant is required to show that she had made a good-faith effort to obtain work before she could be eligible for working wage loss compensation.

  Ohio Adm. Code §4125-1-01(D)(1)(c) provides certain relevant factors to be considered in evaluating whether a claimant has made a good-faith effort. See also, State ex rel Whirlpool Corp. v. Indus. Comm., Franklin App. No. 09AP-380, 2010-Ohio-255, ¶ 28.

  Non-working wage loss
  

  Non-working wage loss benefits are authorized by R.C. §4123.56(B)(2), and apply when an employee suffers a wage loss as a result of being unable to find employment consistent with the employee's disability resulting from the employee's injury or occupational disease. Nonworking wage loss benefits are calculated by the method prescribed in R.C. §4123.56(B)(2).

  The standard for working wage loss and non-working wage loss is relatively the same. In order to recover for both types of wage loss, the claimant must show a reduction in wages and a causal relationship between the allowed condition and the wage loss. State ex rel. Martishuus v. Indus. Comm., Franklin App. No. 06AP-581, 2007-Ohio-3551, ¶ 22, citing State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118.

  In addition, the Ohio Supreme Court has held that a claimant is required to demonstrate a good-faith effort to search for suitable employment which is comparably paying work before claimant is entitled to both nonworking wage loss and working wage loss compensation. Id. at ¶ 23, citing State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210; State ex rel. Reamer v. Indus. Comm. (1997), 77 Ohio St.3d 450; and State ex rel. Rizer v. Indus. Comm. (2000), 88 Ohio St.3d 1. A good-faith effort necessitates claimant’s consistent, sincere, and best attempt to obtain suitable employment that will eliminate the wage loss. Id.

Amputation or Loss of Use

A Loss of Use award is a permanent partial award; however, it applies when the injured worker has actually loses their hearing, sight, use of a limb or become disfugred. In these situations, there is no need for a determination of the employee’s impairment percentage and/or a calculation of the amount of weeks the employee is entitled to receive PPD compensation. Instead, the percent of impairment is irrelevant and the amount of benefit weeks is predetermined based on the schedule found in R.C. §4123.57(B). So for example, if the injured worker loses the use of their first finger, they are automatically entitled to 60 weeks of PPD compensation per the benefit weeks listed in R.C. 4123.57(B). The complete loss of use schedule, is listed in R.C. §4123.57.

Originally, the schedule for a loss of use award only applied if the finger and/or limb was amputated. However, the Ohio Supreme Court has rejected such a literal interpretation of R.C. §4123.57 and held: “[w]hen a claimant seeks a scheduled loss award, the proper inquiry is whether, taking into account both medical findings and real functional capacity, the body part for which the scheduled loss award is sought is, for all practical purposes, unusable to the same extent as if it had been amputated or otherwise physically removed.” State ex rel Kearns v. Indus Comm., 2010-Ohio-1993, ¶ 29, citing State ex rel. Richardson v. Indus. Comm., 2005-Ohio-2388, ¶ 7. See also, State ex rel. Alcoa Bldg. Products v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, ¶ 10.

Disfigurement/Scarring

Pursuant to R.C. §4123.57(B), “in case an injury or occupational disease results in serious facial or head disfigurement which either impairs or may in the future impair the opportunities to secure or retain employment, the administrator shall make an award of compensation as it deems proper and equitable, in view of the nature of the disfigurement, and not to exceed the sum of ten thousand dollars. For the purpose of making the award, it is not material whether the employee is gainfully employed in any occupation or trade at the time of the administrator's determination.

Loss of Sight

See schedule loss of use award in R.C. §4123.57, discussed above.

Loss of Hearing

See schedule loss of use award in R.C. §4123.57 ,discussed above.

Penalties (VSSR Awards)

Pursuant to Article II, Section 35 of the Ohio Constitution, an employer can be required to pay a penalty in an amount ranging from 15% to 50% of the normal amount of workers’ compensation benefits awarded to a claimant if the injury was caused by the employer’s violation of a specific safety requirement.

The ability of an injured worker to receive an additional monetary award due to an employer’s “violation of a specific safety requirement” is known as a VSSR claim. In order to assert a VSSR claim, a claimant must establish that “the employer’s violation of a specific safety requirement proximately caused his or her injury.” State ex rel. Bayless v. Indus. Comm. (1990), 50 Ohio St.3d 148, 149, 552 N.E.2d 939, citing State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 58 O.O.2d 70, 278 N.E.2d 24.

Ohio courts have provided a three-part test for recovery that requires the claimant to prove that:
(1) there exists an applicable and specific safety requirement in effect at the time of the injury;
(2) the employer failed to comply with the requirements; and
(3) the failure to comply was the proximate cause of the injury in question. State ex rel Ruscilli v. Indus. Comm., 2010-Ohio-4126, citing State ex rel. Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257.

However, the safety requirement must be one created by the Ohio legislature and/or an Order of the Industrial Commission of Ohio; and federal safety regulations (i.e., OSHA regulations) are irrelevant. See, State ex rel Roberts v. Indus. Comm. (1984), 10 Ohio St.3d 1, 3, 460 n.E.2d 251, quoting State, ex rel. Trydle, v. Indus. Comm. (1972), 32 Ohio St.2d 257, 291 N.E.2d 748.

The Ohio Bureau of Workers’ Compensation has developed several safety regulations that serve as the basis for a VSSR claim. These safety regulations are found in the Ohio Administrative Code and are organized in the following chapters:
Ch. 4123-1-1 (Elevators);
Ch. 4123-1-5 (Workshops and Factories);
Ch. 4123-1-7 (Metal Casting);
Ch. 4123-1-9(Steal making, manufacturing and fabricating);
Ch. 4123-1-11 (Laundering and Dry Cleaning);
Ch. 4123-1-13 (Rubber and Plastic industries);
Ch. 4123-1-17 (Window Cleaning); and
Ch.4123-1-21 (Firefighting) .

Interest

Not applicable.

Costs

When a claimant appeals a workers’ compensation claim into an Ohio Court of Common Pleas pursuant to R.C. §4123.512, the claimant is entitled to reimbursement for court reporting fees for the claimant’s expert deposition and the cost of obtaining a copy of the expert’s deposition transcript if the claimant prevails pursuant to R.C. §4123.512(D). If the Claimant’s appeal is successful, the claimant may recover the costs of litigation at the discretion of the trial court.

Counsel Fees

The Ohio Industrial Commission requires all fee agreements with claimant’s attorney’s fees to be in writing. IC Resolution R89-1-008. In Addition, IC Joint Resolution R07-1-01 provides detailed”Attorney Fee Guidelines” for attorneys representing injured workers and states that “no authorization will be honored on the ongoing payment of attorneys’ fees for permanent and total disability benefits received by an injured worker. In summary the attorney may only collect an initial fee for securing these benefits for a claimant.

Ohio Admin. Code § 4121-3-24 allows the Ohio Industrial Commission to inquire about the amount of fees charged by attorneys, agents or representatives and to protect parties against unfair charges. This provision also lists the factors in which the attorney’s fees must be based. This regulation also allows the Industrial Commission to resolve attorneys fee disputes through fee dispute hearings.

Lastly, when a claimant appeals a workers’ compensation claim into an Ohio Court of Common Pleas pursuant to R.C. §4123.512, and is successful. The court may order the payment of attorney’s fees based upon the effort expended by the attorney; however, this fee shall not exceed forty-two hundred dollars, pursuant to R.C. §4123.512(F). An employer may not recover attorney’s fees even if the claimant’s appeal was unsuccessful.

Death Benefits

If an employee dies because of a work related injury, the employee’s “dependants” may be entitled to death benefits. The Ohio Supreme Court has held that “payment of death benefits from the Workers’ Compensation Fund is allowed where the injury directly causes the death, or where an injury is the proximate cause of the acceleration of death.” Ochs v. Bur. of Workers’ Comp., Cuyahoga App. No. 93824, 2010-Ohio-2103, ¶ 14, citing Oswald v. Connor (1985), 16 Ohio St.3d 38, 40, 476 N.E.2d 658; Weaver v. Indus. Comm. (1932), 125 Ohio St. 465, 181 N.E. 894.

Pursuant to R.C. §4123.59 and R.C. §4123.60, only a statutorily defined “dependent” may claim an allowance for death benefits. In short, R.C. 4123.59 defines a dependant as a surviving spouse; minor child under 18 (or under 25 if living with the deceased employee at the time of death); a mentally disabled child; a parent of the deceased employee’s children (married or unmarried) if he or she was living with the deceased employee at the time of death; and any other family member can establish that they were a dependant of the deceased employee, and that they are a surviving spouse, lineal descendant, ancestor, brother or sister of the deceased employee.

Death benefits payable to a dependant are separate and distinct from “accrued benefits.” Accrued benefits are benefits that were awarded to the employee before the employee’s death, but were not yet paid as of the date the employee died. In these situations, the estate can file a claim to collect these unpaid benefits regardless of any “dependant” status. See, State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 2000-Ohio-73, where the Ohio Supreme Court allowed the brother of a deceased worker to obtain accrued but unpaid permanent partial and permanent total disability benefits under R.C. 4123.60 in his capacity as executor of his brother’s estate.

In addition, R.C. §4123.57 allows the Bureau to pay accrued permanent partial awards to the surviving spouse and/or dependants of the deceased employee.

Medical Benefits

R.C. §4123.54 provides that every employee who is injured is entitled to receive such medical, nursing and hospital services as authorized under the Ohio’s Workers’ Compensation Act. On October 20, 1993, the Bureau introduced a managed care organization system for the payment of medical bills and authorization for medical treatment, which is codified in R.C. §4121.44 through §4121.442. The Bureau has also adopted administrative rules concerning the authorization of medical treatment and payment of medical bills in chapter 4123-6 of the Ohio Administrative Code. In addition, R.C. §4123.66 authorizes the Bureau to pay medical expenses.

Collectively, these statutes and regulations empower the Ohio Industrial Commission and the Bureau to oversee health care treatment and expenditures.

Generally, a claimant must seek prior authorization for medical treatment and satisfy a three-pronged test for the authorization of medical services and payment of medical bills. This test was first articulated in Campbell and asks three questions:
(1) are the medical services "reasonably related to the industrial injury, that is the allowed conditions"?
(2) are the services "reasonably necessary for treatment of the industrial injury"? and
(3) is "the cost of such service medically reasonable?”
Campbell, 28 Ohio St.2d 154 (1971) State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 249 (1994), citing State ex rel. Campbell v. Indus. Comm. (1971), 28 Ohio St.2d 154, 57 O.O.2d 397, 277 N.E.2d 219; State ex rel. Noland v. Indus. Comm. (Aug. 27, 1987), Franklin App. No. 86AP-594, unreported, 1987 WL 16171. See also, Ohio Admin. Code. § 4123-6-12.

Lastly, pursuant to Ohio Admin. Code § 4123-6-26, medical providers must submit medical bills for payment within two years of the date of treatment, and any bills not submitted within this time frame are forever barred.

Refusal of Medical Treatment

Ohio law does not have a specific statute that forfeits workers’ compensation benefits if a claimant refuses medical treatment. However, if a claimant is receiving TTD compensation and refuses medical treatment that can improve his or her injuries, this may be a basis for a determination that the claimant has reached maximum medical improvement and result in a termination of TTD compensation. In addition, if a claimant is eligible for vocational rehabilitation services but refuses to participate in the program, this may serve as a basis to deny permanent total disability benefits and terminate any living maintenance award. See State ex rel Gonzales v. Morgan, 131 Ohio St. 3d 62, 2011-Ohio-6047 and Ohio Admin. Code § 4123-18-04(C).

SUBROGATION OR CREDIT

General Rule

R.C. §§4123.93 and 4123.931 recognize that the Bureau or self insuring employer has an automatic right of subrogation in past payments of compensation and medical benefits as well as future estimated values of compensation and benefits against all “third parties” (defined as “an individual, private insurer, public or private entity, or public or private program that is or may be liable to make payments to a person” R.C. §4123.93(C). The right is “automatic” meaning that the subrogation applies whether or not a suit is filed or pending and regardless of whether or not the statutory subrogee is joined as a party in an action by a claimant against a third party. The entire amount of any settlement or compromise of an action or claim is subject to the subrogation right of the statutory subrogee regardless of how the settlement is characterized. R.C. §4123.931(D) No settlement or compromise shall be final unless the claimant provides the subrogee with notice; if notice is not provided, then the third party and the claimant are jointly and severally liable to pay the statutory subrogee the full amount of the subrogated interest. R.C. §4123.931(B).

Unless the claimant and statutory subrogee agree otherwise, the statutory subrogee and the claimant may recover from any damages verdict awarded, any settlement or attempted settlement received, the following amounts: claimant shall receive an amount equal to the uncompensated damages divided by the sum of the subrogation interest plus the uncompensated damages, multiplied by the net amount revered, and the statutory subrogee shall receive an amount equal the subrogation interest divided by the sum of the subrogation interest plus the uncompensated damages, multiplied by the net amount recovered. R.C. §4123.931(B).

Attorney’s Fee

Attorney fees and costs associated with securing an award or settlement are excluded from the subrogation interest and punitive damages are excluded from the net amount recovered by the claimant. R.C. §4123.93(E).

Motor Vehicle Accidents

Not applicable. No special rules involved or implicated for automobile accidents.

Health Benefits

While medical insurance carriers are not statutory subrogees under R.C. §§4123.93 and 4123.931, they nevertheless may have contractual rights to receive reimbursement for medical care costs they may have paid in a work-related injury. Careful examination of the policy or contract of insurance should be undertaken in these instances.

Credits

ATTORNEYS

Certifying Organization

The Ohio Supreme Court recognizes the Ohio State Bar Association as a certifying organization in the area of workers’ compensation law. Certification as a “specialist” in the practice of workers’ compensation law requires the attorney to take an pass a written examination, demonstrate a high level of substantial involvement in the specialty area, fulfill ongoing continuing education requirements and be favorably evaluated by other attorneys and judges familiar with their work.

Required Documentation

An applicant for certification as a specialist in the field of Ohio workers’ compensation law must be an attorney licensed to practice law in the State of Ohio and in good standing and, in addition, must meet the following mandatory requirements as of the date of the filing of the application:
(1) Substantial involvement - The applicant must aver by affidavit, or, as part of the application form as may be applicable, that he or she has engaged in a minimum of 2,250 hours in the practice of law in the field of Ohio Workers’ Compensation law in the most recent five (5) year period preceding the application for specialist certification and, in addition, has a minimum of 4,500 lifetime hours of practice in the field of Ohio Workers’ Compensation law, and has been licensed to practice law in the State of Ohio for at least the five years preceding the date of the filing of the application: The applicant must also aver that at least twenty-five percent (25%), (defined as at least 520 hours per year) of a normal full-time practice in each of the three-year period preceding the application is devoted to workers’ compensation law. An applicant is required to submit specific information as to the substantial involvement requirement, such as a list of representative cases, examples of work product, etc., as may aid the Specialty Board in its review of a given applicant’s claim of substantial involvement;

(2) Peer Review/Recommendations: Submit the names of seven individual references, none of whom may be related to or associated with the applicant in the practice of law by way of partnership or any other professional association. The OSBA will then forward the appropriate recommendation forms to the seven references. A minimum of five completed reference forms must be returned to the OSBA for the application to be considered complete. If more than five references are returned to the OSBA, the board may consider all of the references completed and returned. Persons recommending applicants for specialty certification must themselves demonstrate a familiarity with the competence of the applicant in the field workers’ compensation law. Said references must come from sitting judges, current Industrial Commission hearing officers, attorneys already certified as specialists in the field of Ohio Workers’ Compensation law or from an attorney who meets the “substantial involvement” criteria in the field of Ohio Workers’ Compensation law as previously set forth herein. Applicants are discouraged from submitting references from individuals who are themselves applying for certification during the same year as the applicant;

(3) Written examination: The lawyer seeking certification must pass a written examination covering claim filing, handling, and processing (administrative level); Appellate practice and procedure (court practice, including jury appeals and mandamus actions); Applicable Statutes of Limitation; Professional responsibility and ethics; Compensability of claims; Occupational disease claims; Benefits; VSSR (safety violation) applications; Employer coverage under the Workers’ Compensation Act (state fund vs. self-insured); Settlements; Issue spotting as to rights and liabilities potentially arising as a result of an industrial injury;

(4) Certificates of Good Standing & Liability Coverage: The applicant seeking certification shall furnish satisfactory evidence that:
    a. The lawyer is active and in good standing pursuant to Gov. R. VI of the Supreme Court of Ohio, and the lawyer’s fitness to practice is not in question by virtue of disciplinary action in Ohio or in another state;
    b. Coverage by professional liability insurance continually maintained through a reputable company in an amount not less than Five Hundred Thousand Dollars ($500,000) per loss;
    c. The lawyer has demonstrated the ability to pay all claims that fall within the deductible amount selected by the attorney under the insurance policy.
Professional liability insurance will not be required of those lawyers who can demonstrate to the OSBA’s satisfaction that the lawyer’s practice relationship with the lawyer’s clients will fully cover any professional liability claim made against the lawyer in an amount not less than five hundred thousand dollars ($500,000) per loss. The lawyer shall notify the OSBA immediately of any cancellation or change in coverage. Continuing Legal Education: An applicant shall have completed thirty-six (36) hours of continuing legal education in the three (3) year period preceding the lawyer’s application for certification that are in the field of Ohio workers’ compensation law. Applicant must include a copy of their CLE transcript with their application for certification, and must include proof of attendance of all courses not listed on the transcript.

Additional Information

The certification period under these Standards is a period of four years. Any additional information may be obtained at the Ohio State Bar Association website using the following link:

www.ohiobar.org

CLAIMS PROFESSIONALS

Claims professionals are not required to be licensed in Ohio in order to manage and adjust workers compensation claims. There is no licensing or continuing education requirement. However, there are standards of conduct of non-attorneys before the Industrial Commission and Bureau spelled out in Industrial Commission Resolution R-04-1-01. Essentially, non-lawyers, in a workers’ compensation proceeding, may not: examine witnesses; make or give any legal interpretation about evidence; comment or give an opinion regarding evidence or credibility of a witness; note legal significance of a claim; provide legal advice to anyone; give legal opinions; or provide representation at a hearing for a fee without also providing other services. For workers’ compensation claims that involve significant issues, witnesses or legal argument, an employer should retain the services of an attorney to protect and defend their interests, due to the limitations placed on non-lawyers and their ability to effectively represent an employer’s interests.

LITIGATION AND APPEAL

Ohio’s workers’ compensation appeal process is a three part system. Claims are initially adjudicated before the Ohio Industrial Commission before District hearing officer, then staff hearing officers and in rare instances, the Commissioners.

If a party is dissatisfied with the claim after exhausting administrative options with the Ohio Industrial Commission, a party may file an appeal in one of two courts depending on the issue involved.

R.C. §4123.512, allows either party, to file an appeal in an Ohio court of common pleas in the county in which the party resides for issues concerning the right to participate in the worker’ compensation fund. The party may also request a trial by jury. This appeal must be filed within 60 days following the party’s receipt of the final decision from the Ohio industrial Commission. The right to participate includes issues such as whether the claimant contracted an injury and/or occupational disease in the course of and arising out of his employment, whether an injured workers is an employee or independent contractor, etc….

If the either party is dissatisfied with the outcome at the trial court level, they may file an appeal as of right in the appellate court within their applicable district. The can then file a discretionary appeal to the Ohio Supreme Court.

For issues concerning the extent of an injured workers’ disability, a party may file an action requesting a writ of mandamus in the Franklin County Court of Appeals, or directly to the Ohio Supreme Court after the party has exhausted all of their administrative remedies with the Industrial Commission. There is no statutory time frame for filing a County Court of Appeals; they may then file an appeal as of right to the Ohio Supreme Court.

Extent of disability matters include issues concerning an injured workers’ entitlement to specific workers’ compensation benefits i.e., temporary total compensation, permanent partial award, and permanent total disability awards, and authorization of medical treatment, etc.

SETTLEMENT

R.C. §4233.65 governs workers’ compensation settlements.The Administrator of the Ohio Bureau of Workers’ Compensation must approve all settlements involving state funded employers; and this approval process is initiated by the filing of an application by the claimant, their attorney or the state-fund employer.

No settlement may take effect until thirty days after the Bureau approves the settlement, for settlements of claims with state funded employers. Likewise for claims involving self-insured employers, no settlement may take effect until at least 30 days after the employee signs the settlement agreement.

During the thirty-day period, all parties may withdraw consent to the settlement by providing written notice. In addition, if an employee dies during the thirty-day waiting period following the approval of a settlement, the settlement can be voided by any party for good cause shown.

INSURANCE

General Rule

Every employer meeting the statutory definition of an “employer” is subject to the requirements of the workers’ compensation statutes found in R.C. §4123.01 et seq. and must obtain workers’ compensation coverage for “employees.” Unless granted the privilege of being a self insured employer, an employer must pay premiums into the state insurance fund. There is no private or commercial insurance available in Ohio to insure against workers’ compensation risks. As such, Ohio is a “monopoly” system.

Particular Requirements

R.C. §4123.01(B)(2) provides that “Every person, firm, professional employer organization as defined in section 4125.01 of the Revised Code, and private corporation, including any public service corporation, that (a) has in services one or more employees or shared employees regularly in the same business or in or about the same establishment under any contact of hire, express or implied, oral or written, or (b) is bound by any such contract of hire or by any other written contract, to pay into the insurance fund the premiums provided by this chapter.”

General Rule Where Employer is Uninsured

An employer amenable to Ohio’s workers’ compensation laws who fails to comply with instituting or maintaining coverage or self insurance requirements as well as members of a firm, officers, general managers or managing agents who cause such failure, are subject to monetary fines and misdemeanor penalties. 4123.50 and 4123.99. Where there is an intent to defraud the Bureau, failure to secure or maintain coverage can be a felony. R.C. §2913.48.

Damages by Action at Law Where Employer is Uninsured

A worker suffering a workplace injury as an employee of a noncomplying employer may (a.) file a workers’ compensation claim against a noncomplying employer under oath and/or (b.) file an action for damages for personal injury. If the employee’s workers’ compensation claim is allowed, benefits are paid from the statutory surplus fund and must be repaid to the fund by the employee if he obtains a recovery in the personal injury action. R.C. §4123.75. Noncomplying employers may not raise defenses of the fellow servant rule, assumption of risk, or contributory negligence in an action for damages filed by the employee. R.C. §4123.77.

Uninsured Employers Guaranty Fund

Not applicable. Ohio does however have a surplus fund out of which benefits and compensation may be paid to an injured employee in a claim involving a noncomplying employer. In such a situation, the state has remedies against the noncomplying employer to recover premium due or the amount of an assessment if the employer does not pay the premium. An assessment acts like a tax judgment with accumulation of interest and is a non-dischargeable debt in bankruptcy. R.C. §4123.37; Ohio Admin. Code R.C. §4123-1-04.