2017 All-Ohio Legal Forum. What to Know About Practicing Before the Ohio Industrial Commission

Transcription

1 2017 All-Ohio Legal Forum What to Know About Practicing Before the Ohio Industrial Commission Workers Compensation Committee 1.5 General CLE Hours August 23 August 25, 2017 Cleveland

2 Speaker Biographies Thomas S. Connor, Esq. Ohio Industrial Commission Columbus, Ohio Mr. Connor received his BA from Cleveland State University and his JD from Cleveland State University Cleveland - Marshall College of Law. He is the Director of Hearing Services for the Ohio Industrial Commission. In this position, Mr. Connor championed the implementation of the Workflow and ECM applications, which have made paperless hearings possible. He is now overseeing the reduction in PTD processing timeframes, the revamping of hearing officer training, and the continued automation of the hearing process. Prior to working at the Industrial Commission, Mr. Connor worked with the Bureau of Workers Compensation, where he provided legal advice to the Administrator/CEO. He then worked in private practice until December 1994, when he accepted his current position. Rachael T. Rentas-Black, Esq. Ohio Industrial Commission Columbus, Ohio Ms. Rentas-Black received her BA from Youngstown State University and her JD from The Ohio State University Michael E. Moritz College of Law. She is currently Chief Legal Counsel of the Ohio Industrial Commission, where she oversees the Commission s Litigation Unit and Commission Level Hearings Sections. In this position, Ms. Rentas-Black manages all legal concerns regarding the agency, including contract administration, administrative rule review, employment law issues, and collective bargaining agreement enforcement. She also serves as the Commission s Chief Ethics Officer, ensuring that all Commission employees abide by Ohio s Ethics Law to provide impartial resolution of workers compensation appeals. Prior to this position, Ms. Rentas -Black began her career as a staff attorney in the Industrial Commission s Legal Services Department in She then went on to serve the Industrial Commission as a District Hearing Officer for 18 years before accepting her current position. Christopher M. Ward, Esq. OSBA Certified Specialist in Workers Compensation Law Calfee, Halter & Griswold LLP Columbus, Ohio Mr. Ward received his BA from the University of Dayton and his JD from The Ohio State University Michael E. Moritz College of Law. His professional memberships include the Ohio State Bar Association (Environmental Law Committee; Workers Compensation Law Committee) and Columbus Bar Association (Environmental Law Committee; Workers Compensation Law Committee). Mr. Ward is a senior attorney of his firm, and focuses his practice on environmental law and workers compensation law. He advocates a nd assists clients in the administrative and litigation processes before the Ohio Environmental Protection Agency, Environmental Review Appeals Commission, and the Ohio Industrial Commission. Mr. Ward also serves businesses throughout Central and Southwest Ohio in all areas of the workers compensation administration and legal processes, appearing regularly before the Ohio Industrial Commission, the BWC Adjudicating Committee, and Self-Insured Review Panel. He represents clients in workers compensation appeals in courts of common pleas and appellate courts dealing with both injury and occupational diseases, as well as matters in mandamus. In addition, Mr. Ward is an Ohio State Bar Association Certified Specialist in Workers Compensation Law. For additional information, please visit

3 Chapter 1: New at the Ohio Industrial Commission Rachel Rentas-Black, Esq. Chief Legal Counsel Thomas S. Connor, Esq. Director of Hearing Services Ohio Industrial Commission Columbus, Ohio Table of Contents I. Update on Industrial Commission Rules... 1 II. Trends in Commission Level Hearings... 1 III. Recent Industrial Commission Policy Update... 1 IV. ICON Services... 1 V. Other New Developments... 1 New at the Ohio Industrial Commission i

4 ii What to Know About Practicing Before the Ohio Industrial Commission

5 Chapter 1: New at the Ohio Industrial Commission Rachel Rentas-Black, Esq. Chief Legal Counsel Thomas S. Connor, Esq. Director of Hearing Services Ohio Industrial Commission Columbus, Ohio I. Update on Industrial Commission Rules II. III. IV. Trends in Commission Level Hearings Recent Industrial Commission Policy Update ICON Services V. Other New Developments New at the Ohio Industrial Commission 1.1

6 Christopher M. Ward, Esq. Calfee, Halter & Griswold LLP Columbus, Ohio Chapter 2: Case Law Update Table of Contents I. Permanent Total...1 A. State ex rel. McKee v. Union Metal Corp...1 B. State ex rel. Bonnlander v. Hamon...2 C. State ex rel. Manpower of Dayton, Inc. v. Industrial Comm n...2 D. State ex rel. Penske Truck Leasing Co., LP v. Industrial Comm n...3 II. Temporary Total Compensation...4 A. State ex rel. James v. Wal-Mart Stores, Inc....4 B. State ex rel. Cordell v. Pallet Companies, Inc....4 C. State ex rel. Klein v. Precision Excavating & Grading Co....5 III. Injury...6 A. Clendenin v. Girl Scouts of Western Ohio...6 B. Miller v. Horizons Health Servs., LLC...7 C. Aho v. RTI Int l Metals, Inc....8 IV. Wage Loss...8 State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Industrial Comm n...8 V. Permanent Partial...9 State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Industrial Comm n...9 VI. Fraud...10 State ex rel. Mike Coates Constr. Inc. v. Industrial Comm n...10 VII. Coming and Going...10 A. Rees v. University Hosps B. Franklin v. BHC Servs., Inc Case Law Update i

7 VIII. Death Claim/Substitution...12 Zebrasky v. Discount Drug Mart, Inc...12 ii What to Know About Practicing Before the Ohio Industrial Commission

8 Christopher M. Ward, Esq. Calfee, Halter & Griswold LLP Columbus, Ohio Chapter 2: Case Law Update I. Permanent Total A. State ex rel. McKee v. Union Metal Corp., 2017-Ohio-5541 (6/29/17). In this recent case, the Supreme Court affirmed the Tenth District s denial of the employee s request for mandamus that would compel the Commission to award him permanent total compensation. Mr. McKee was injured in 1993 in the course and scope of his employment as an auto welder with Union Metal Corporation. His claim was allowed for cervical strain, focal spinal stenosis due to marked degenerative disc bulge and spur formation, and neurotic depression. His first request for PTD in 1999 was denied based on a finding that Mr. McKee s disability was not total and he was capable of performing entry-level work. Fourteen years later he filed another PTD application. Upon consideration, the Staff Hearing Officer found no evidence that Mr. McKee had worked or even looked for work since 1998 and that he was receiving SSDI benefits. The SHO denied the PTD application finding that Mr. McKee had voluntarily abandoned the workforce and effectively retired for reasons other than the allowed conditions in the claim. The Court held that the Commission s order with the finding of voluntary abandonment was supported by some evidence in the record: (1) the Commission s 2000 finding (based on two medical reports and a vocational assessment) that Mr. McKee retained the capacity to perform remunerative employment (which Mr. McKee never appealed); and (2) the absence of evidence in the record that he had worked, had been unable to find work or had attempted vocational retraining since The Court rejected Mr. McKee s argument that he did not voluntarily abandon his employment but that he stopped working in 1998 based on the advice of his physician and psychologist, and citing to State ex rel. Kroger Co. v. Paysen, 109 Ohio St. 3d 155, 2006-Ohio- 3057, for the proposition that an injured worker has an absolute right to rely on the advice of a physician regarding his ability to engage in gainful employment. The Court stated that the medical reports filed on his behalf in the 2000 PTD application did not advise him he must stop working, and Paysen involved a PTD award after refused to accept a light-duty job (which the Court found inconsistent with allowed conditions) and was not applicable to the facts of Mr. McKee s case. Case Law Update 2.1

9 B. State ex rel. Bonnlander v. Hamon, 2017-Ohio-4003 (5/30/17). Mr. Bonnlander was injured in a motor vehicle accident in Since the injury, Mr. Bonnlander worked various jobs in the construction industry and for the postal service. After he applied for permanent total disability, the Industrial Commission filed reports from Drs. Brannan, MD, and Sinha, PhD, which opined that Mr. Bonnlander could work part-time, up to four hours a day with limitations. Based on these reports, the Commission denied permanent total stating in its Order that Bonnlander could engage [in] sedentary employment activity which involves part-time work, up to four hours a day and also involves routine employment and minimal new learning on an ongoing basis. The sedentary work should also avoid overhead use of the right arm and avoid excessive lifting, bending and twisting. Upon appeal, the Tenth District Court of Appeals adopted the magistrate s opinion, which held that the reports of Drs. Brannan and Sinha met the standard for part-time work under prior case law. The Supreme Court affirmed the denial of Mr. Bonnlander s request for mandamus. Specifically, the Court agreed with the Commission that four hours of a work day is not a threshold requirement for part-time sustained remunerative employment and that such a bright-line rule would interfere with the commission s role as finder of fact and exclusive evaluator of disability. The question to be answered by the Commission on PTD is whether the claimant can perform sustained remunerative employment, and Bonnlander now stands for the principal that such question will be determined on a case-by-case basis, and there is no set hourly amount a claimant must be capable of working to make that determination. C. State ex rel. Manpower of Dayton, Inc. v. Industrial Comm n, 2016-Ohio (11/16/16). This case involves the evidence cited to support a Commission s finding of permanent total disability. Ms. Fox filed an application for PTD supported by the medical reports of Dr. Kenneth J. Manges, PhD. The Commission s medical examiners also found Ms. Fox to be at maximum medical improvement and incapable of sustained remunerative employment based on its medical examiners, Dr. James Lutz, MD, and Dr. Thomas Heitkemper, PhD. The Commission granted the PTD application based on all three reports, finding her medically unable of working. The order stated it was based solely on medical impairment caused by her allowed conditions, and not on any of her nonmedical disability factors. Manpower sought mandamus in the Tenth District arguing the Commission s order none of the medical evidence cited by the Commission the reports of all three medical examiners was some evidence in the record to support the grant of permanent total. First, the Court rejected Manpower s argument that Dr. Manges impairment report focused on nonmedical factors to support his position that Ms. Fox was disabled. The Court found that Dr. Manges opinion was that Ms. Fox was disabled due to the effects of her injury based on her allowed conditions, without consideration of nonmedical factors. Next, the Court rejected Manpower s argument that Dr. Lutz s opinion that Ms. Fox could not 2.2 What to Know About Practicing Before the Ohio Industrial Commission

10 work was contradicted by his description of her activities of daily living. Lastly, the Court rejected Manpower s argument challenging the evidentiary value of Dr. Heitkemper s report because of his use of the word medical in rendering his opinion to a reasonable degree of medical/psychological probability. The Court found that under Ohio Admin. Code (C)(1), a psychologist may provide medical evidence in support of an application for PTD. D. State ex rel. Penske Truck Leasing Co., LP v. Industrial Comm n, 10 Dist. No. 15AP-223, 2017-Ohio-1119 (3/28/17). Ms. Fizer sustained an injury in 2001 while employed as a driver for Penske, and subsequently a claim was assigned as No for the condition of cervical strain (the 2001 claim ). She sustained a second injury in January 2004, which was assigned claim No and allowed for the conditions of lumbar strain, left rotator cuff strain, and adhesive capsulitis of left shoulder (the 2004 claim). Finally, she sustained a third injury in June 2007 for a subsequent employer, assigned claim No and allowed for neck strain, left shoulder strain, disc bulge with compression at C5-C7 and recurrent depressive psychosis-severe (the 2007 claim ). After filing an application for permanent total disability, the Commission s medical examiner, Dr. Bond, issued a report with respect to all the allowed physical conditions in all three claims determining that Ms. Fizer had a 34 percent whole person impairment for all the allowed conditions and was capable of performing sedentary work. Dr. Chatterjee did find 19 percent whole person impairment for the allowed psychological claim in the 2007 claim. The Commission order granting PTD compensation was based on the reports of Dr. Bond and Dr. Chatterjee and allocated the award among the three claims (78 percent to 2007 claim, 13 percent to 2004 claim, and 9 percent to 2001 claim). In its request for mandamus before the Tenth District Court of Appeals, Penske argued that the report of Dr. Bond failed to separate out the claims in her impairment analysis despite an overlap between the body parts affected by the allowed conditions. Penske s argument was that the 2001 claim with the only allowed condition of cervical strain had not resulted in significant treatment while the 2007 claim, also involving a neck strain and cervical disc bulges had resulted in five surgeries. The magistrate found that the report of Dr. Bond failed to indicate the 2001 claim contributed to Ms. Fizer s permanent total disability (i.e., her ability to engage in sustained remunerative employment) and the Tenth District agreed, finding the evidence does not support the Commission s allocation of 9 percent of the PTD award to the 2001 claim. Further, the magistrate found the 13 percent allocation to the 2004 award an abuse of the Commission s discretion because Dr. Bond s report did not assign a whole person impairment rating as to each of the allowed physical conditions but instead by body part or body area. The Tenth District agreed with the magistrate, finding that while there is some evidence from Dr. Bond s report of medical impairment in the 2004 claim, the Commission s order does not adequately explain what percentage of impairment is attributable to the 2004 claim. Case Law Update 2.3

11 II. Temporary Total Compensation A. State ex rel. James v. Wal-Mart Stores, Inc., 2017-Ohio-1426 (4/20/17). This case involves eligibility for temporary total compensation in the context of the voluntary abandonment doctrine. Mr. James was injured in the course of his employment with Wal-Mart in After being released by his doctor with no restrictions the following year, he returned to work for Wal-Mart. He quit his job in April 2007 and then subsequently worked for Petco and then a company called Casper Transport. Casper terminated Mr. James in 2007 for excessive absenteeism. He has not worked since that termination and filed a motion seeking temporary total benefits in The Commission denied his request for TTD finding that he had voluntarily abandoned his employment. On mandamus before the Tenth District, a limited writ was issued ordering the Commission to consider whether State ex rel. Estes Express Lines v. Industrial Comm n, 10th Dist. No. 08AP-569, 2009-Ohio-2148 applied. In Estes, the Tenth District found the injured worker to be eligible for TTD when he was laid off because the worker had submitted medical evidence substantiating that his disability existed at the time of his layoff. The Court reversed the Tenth District and denied the limited writ. As prior court doctrine has borne out, an injured worker loses TTD eligibility when he or she voluntarily abandons his or her employment. If one returns to the workforce after abandoning the employment, eligibility for TTD is regained. However, such an injured worker will be eligible for TTD, if, due to the original industrial injury the claimant becomes temporarily and totally disabled at the new job. Here, the Court characterized the status of Mr. James departure from Wal-Mart and subsequent employment as follows: Mr. James quit his job at Wal-Mart to seek other employment and his departure was therefore voluntary ; his departure from his employment from the original injury was not due to the allowed conditions in the workers compensation claim; and his subsequent departure from the job at Casper was not due to the allowed conditions in the claim either. Because the record indicates Mr. James was fired due to absenteeism and no evidence was offered showing those absences were due to his prior workplace injury, he was not eligible for temporary total benefits. B. State ex rel. Cordell v. Pallet Companies, Inc., 149 Ohio St. 3d 483, Ohio-8446 (12/29/16). The Cordell case is important for understanding the current status of the voluntary abandonment doctrine in the context of a positive post-injury drug test. Here the Supreme Court narrowed the circumstances that would make an injured worker ineligible to collect temporary total under the voluntary abandonment doctrine. The employer, Pallet, had a typical drug-free-workplace policy which prohibited the use of illegal substances at any time whether on or off duty. Mr. Cordell broke his leg in the course and scope of his employment at Pallet and subsequently failed a routine post-accident drug screen which was positive for marijuana. Mr. Cordell was terminated immediately after Pallet became away of the positive drug screen. 2.4 What to Know About Practicing Before the Ohio Industrial Commission

12 At the Industrial Commission, Pallet did not contest the allowance of the claim itself, conceding that the drug use had not caused the accident itself (it was due to a fall off a towmotor that occurred when a truck pulled away from a loading dock too quickly). The Commission denied TTD to Mr. Cordell finding that he had voluntarily abandoned his employment. In a divided panel decision by the Commission, it was found that the Staff Hearing Officer had failed to apply State ex rel. PaySource USA, Inc. v. Industrial Comm n, 10th Dist. Franklin No. 08AP-677 (June 30, 2009), wherein the Tenth District had found the injured worker abandoned his employment when he used drugs prior to the injury, which severed any connection between the workplace injury and the loss of wages. The panel found that Mr. Cordell sustained an injury in the course of and arising out of his employment on 2/16/12, but he voluntarily abandoned his employment by use of marijuana prior to the industrial injury making him ineligible for TTD. The dissenting commissioner argued that PaySource had been discredited and urged granting the award of TTD under the decision of State ex rel. Gross v. Industrial Comm n, 115 Ohio St. 3d 249 (2007) ( Gross II ). The Tenth District agreed with the dissenting commissioner and granted Mr. Cordell s writ. The Ohio Supreme Court affirmed and its decision has narrowing consequences on eligibility for TTD after a post-accident drug test. The Court held that an injured worker fired after their injury for conduct prior to and unrelated to the injury does not lose eligibility for TTD if (1) the discovery of the dischargeable offense occurred because of the injury; and (2) at the time of the termination, the employee was incapable of returning to work as a result of the allowed conditions in the claim. Therefore, in practice, the Court has extended the Gross II rationale to pre-injury conduct, holding that the fact that Pallet had the right to fire Mr. Cordell does not change the fact that Mr. Cordell was injured in the course and scope of his employment and that at the time of his termination, he was temporarily and totally disabled. C. State ex rel. Klein v. Precision Excavating & Grading Co., 10th Dist. No. 15AP-908, 2017-Ohio-1020 (3/21/17). Mr. Klein was injured on November 5, 2014, while working for Precision Excavating and Grading Co. (Precision). In a follow-up appointment with Dr. Robert Marley, a MEDCO-14 was completed, which indicated that Mr. Klein was temporarily and totally disabled and unable to work from 11/5/14 to 1/5/15. Mr. Klein never returned to his employment after the date of injury. The record before the Commission contained evidence that Mr. Klein had planned to quit his job and move to Florida before the date of injury. A witness testified at the hearing that Mr. Klein called her on October 31 (before the injury) stating he was moving to Florida and asked the procedure for quitting the job at Precision. Further evidence showed Mr. Klein indicated to another employee on November 3rd his intent to give his two-week notice and go to work in Florida. Finally, the MCO s notes in the record show Mr. Klein s indications of a plan to move to Florida on November 20th and a note that he had so moved by November 24th. Mr. Klein applied for TTD and the Commission granted benefits for a closed period of November 6th through November 19th (finding benefits after 11/19 to be barred for voluntary abandonment of his employment.) Case Law Update 2.5

13 Mr. Klein filed in a mandamus petition in the Tenth District Court of Appeals requesting an order vacating the Commission s denial of TTD benefits from November 20th onward. In granting a limited writ, the Court of Appeals looked to the prior case law including State ex rel. Reitter Stucco, Inc. v. Industrial Comm n, 117 Ohio St. 3d 71, 2008-Ohio-499. In Reitter, the Court found that Mr. Mayle, who was fired while on TTD, did not lose eligibility for TTD even if the requirements under State ex rel. Louisiana Pacific Corp. v. Industrial Comm n, 72 Ohio St. 3d 401 (1995), were met. The Court stated that eligibility for temporary total compensation remains if the claimant was still disabled at the time the discharge occurred. In the Klein opinion, the Tenth District discusses the voluntary abandonment doctrine at length, citing to both the Pretty Products, Hildebrand and Cordell cases and trying to compare and distinguish the facts before them. In the end, the Court of Appeals found that the key issue was whether Mr. Klein was medically disabled beginning of November 20th. Unlike in Hildrebrand, the facts in Klein did not show a release by his doctor to return to light duty which, coupled with a concurrent resignation by the worker broke the nexus between the injury and the employment. Therefore, the Tenth District found that, like in Cordell, if the injured worker is medically incapable of returning to work at the time of the departure from the employment, eligibility for TTD remains. III. Injury A. Clendenin v. Girl Scouts of Western Ohio, 2017-Ohio-2830 (5/18/17). In this case, Ms. Clendenin was injured in 2008 in the course of her employment with the Girl Scouts and her claim was allowed for various conditions, including substantial aggravation of preexisting dermatomyositis. In 2013, the BWC moved to terminate Ms. Clendenin s benefits and compensation arguing that the condition of dermatomyositis had returned to its baseline, pre-injury status. The Commission evaluated the BWC s medical report on the issue and agreed. Ms. Clendenin filed an appeal in the Hamilton County Court of Common Pleas arguing that the condition had not returned to pre-injury status and that the order should be vacated. The BWC sought dismissal of the case arguing that the issue was one of extent of disability and not a right to participate case and therefore the appeal to the common pleas court was improper. The Hamilton County Court agreed with the BWC and dismissed the appeal. On mandamus before the First District, that order was reversed. The First District Court of Appeals opined that when the BWC decides the condition is no longer impacted by the workplace injury, then the BWC is in effect terminating the injured worker s right to participate for that condition in the workers compensation system. Therefore, the First District held, such an appeal would be properly in the common pleas court. The Ohio Supreme Court, however, reversed the First District s decision. The Court held that an Industrial Commission s decision that a preexisting condition substantially aggravated by an injury at work which has returned to pre-injury 2.6 What to Know About Practicing Before the Ohio Industrial Commission

14 status involves extent of disability. Therefore, an appeal under Ohio Rev. Code (i.e., a right to participate appeal ) was not proper, but instead must be challenged by mandamus. Simply put, the Court found that since the dermatomyositis was already an allowed condition it was not a right to participate issue. The real matter was one of the amount of compensation and benefits to be paid for such condition, and that called for a challenge in mandamus and the Hamilton County Court of Common Pleas was not permitted to hear the matter. B. Miller v. Horizons Health Servs., LLC, 8th Dist. No , 2017-Ohio-465 (2/9/17). This case emerging from the Eighth District Court of Appeals deals with idiopathic injuries. Ms. Miller worked for Horizons as a nurse and her position requires her to travel to the residences of her clients. On December 17, 2014, Ms. Miller was driving to a client s residence when she lost consciousness at a stop light, her vehicle crashed into a light pole and she suffered injuries to her left tibia and left fibula. Upon visit to the emergency room she was diagnosed as having had a syncopal episode (syncope causes dizziness, fainting and temporary loss of consciousness due to low blood pressure). In proceedings before the Industrial Commission, Ms. Miller s claims were denied for her inability to eliminate idiopathic causes for her losing consciousness, which caused her to strike the pole that caused her injury. Evidence at the hearings included her ongoing treatment for low blood pressure with medication and also diabetes. In the trial court, the BWC filed a motion for summary judgment arguing that Ms. Miller suffered an idiopathic injury and therefore her injury did not arise out of her employment; and further that she did not face any employment duty or hazard that increased her risk of injury. The trial court agreed. On appeal before the Eighth District, Ms. Miller did not contest whether her injury was idiopathic in nature. Instead her main argument was that driving part of her employment duties as a home health nurse contributed to her risk of injury. In affirming the trial court s dismissal of Ms. Miller s appeal, the Court cited Waller v. Mayfield, 37 Ohio St. 3d 118 (1988), where the Ohio Supreme Court ruled that when an unexplained injury happens, the claimant has the burden of eliminating idiopathic causes. If there is an idiopathic cause of an injury, the Court opined, the employee must demonstrate that although the workplace conditions or environment did not cause the injury, the conditions or environment caused the employee to suffer worse injuries in order to participate in the workers compensation system (emphasis added). In this case, the Eighth District rejected her argument that her driving contributed to her risk of injury and ruled that her injury occurred irrespective of her employment explaining that the light pole was not attendant to her employment and there was no evidence that the roadway was unsafe. Case Law Update 2.7

15 C. Aho v. RTI Int l Metals, Inc., 11th Dist. Nos T-80, 2016-T-82, 2017-Ohio (5/15/17). This case out of the Eleventh District Court of Appeals also deals with the issue of the nature of an injury in the workers compensation system. Mr. Aho was injured at work when he was climbing the stairs on the premises of his employer, RTI International Metals, Inc. The Industrial Commission allowed his claim for right knee sprain and right knee medial meniscus tear. On appeal before the Trumbull County Court of Common Pleas, the trial court found that Mr. Aho s injury did not arise out of his employment with RTI and reversed the Commission. Essentially, the trial court held that there was no causal connection between the injury and the work. The Eleventh District was faced with the issue of whether an injury resulting from normal activity can be compensable. Starting with the definition of injury in (C), the Court of Appeals found no dispute that the injury occurred in the course of Mr. Aho s employment. Instead, the analysis centered on whether it arose out of his employment. Citing the Bralley v. Daugherty, 61 Ohio St. 2d 302 (1980) case, the court indicated the test is, whether a causal connection existed between the employee s injury and his employment either through the activities, the conditions or the environment of the employment the totality of the circumstances test. The trial court had found Mr. Aho s climbing of the stairs to be a normal activity of daily life. However, the Eleventh District found that climbing this particular unlit staircase is only associated with Mr. Aho performing a necessary function of his job duties. The court distinguished Mr. Aho s situation from other cases where a claim was denied for involving a normal movement that could easily have occurred at home or any other place. Here, because Mr. Aho, in his testimony, could not identify the origin of the knee injury, other than his foot hit the stair tread awkwardly, an inference arises that it is traceable to some ordinary, yet unidentified risk to which Mr. Aho was exposed to on RTI s premises. Notably, given the discussion of idiopathic injuries about in the Miller case, here RTI did not argue in its trial court motion for summary judgment that Mr. Aho s injury was idiopathic, and therefore the Eleventh District did not opine on that issue. IV. Wage Loss State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Industrial Comm n, Ohio-7988 (12/6/16). Ms. Earles was injured in 2011 in the course and scope of her employment. She returned to work subsequently with temporary restrictions on climbing, pushing, lifting, and carrying. There were no restrictions on the number of hours she could work. Ms. Earles was placed in Goodrich s light duty/restricted duty program, the conditions of which were set forth in the collective bargaining agreement between Ms. Earles union and her employer. The CBA provided that employees on light-duty outside their own job 2.8 What to Know About Practicing Before the Ohio Industrial Commission

16 classification would not be eligible for overtime. Ms. Earles filed an application for working wage loss based on her reduction in earnings attributed to lack of overtime in her light-duty position. The district hearing officer denied her application and mailed the order on November 23, Her union representative filed an appeal of the DHO order 20 days later. At the subsequent hearing the staff hearing officer refused the appeal for lack of jurisdiction because of the untimely appeal. The Commission later allowed the appeal based on an affidavit of the union representative claiming he did not receive the order until November 29th and therefore the appeal was timely. The Commission then allowed the wage loss application on the merits. Goodrich filed a mandamus action before the Tenth District Court of Appeals. The writ was denied and the Ohio Supreme Court affirmed the denial. The primary issue before the Court was whether Ms. Earles met the requirement under Ohio Admin. Code (A)(15) that her wage loss be the direct result of physical and psychiatric restrictions caused by the impairment that is causally related to the allowed conditions. Goodrich argued that since Ms. Earles had no restrictions on the number of hours she could work, her ability to work overtime was not causally related to her allowed conditions, but due to the CBA restrictions. The Court disagreed and ruled that the evidence showed Ms. Earles to have been placed in the light-duty program because of her medical restrictions causally related to the allowed conditions in her claim. The Court further ruled that the appeal of the DHO order was timely and rejected the employer s argument that the Commission abused its discretion in not applying the mailbox rule to calculate the appeal time. Without any analysis on the mailbox rule case law, the Court, like the Commission and Tenth District, relied upon the affidavit of the union representative that he did not receive the appeal for six days after mailing. V. Permanent Partial State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Industrial Comm n, 2016-Ohio-8024 (12/8/16). Ms. Redwine was granted permanent total compensation based on the Commission s finding that her psychological condition prevented her from performing sustained remunerative employment. She subsequently filed for an award of permanent partial impairment, but based solely on her physical allowances, not her psychological. The Commission granted Ms. Redwine a PPD award. The employer appealed the Commission s ruling in mandamus and the Court of Appeals denied the writ. On appeal before the Ohio Supreme Court, the court of appeals decision was reversed. The Court engaged in an analysis of statutory authority for concurrent awards of PPD and PTD. The Court noted statutory authority for payment of concurrent awards in other limited instances (i.e. PPD and TTD; PTD and scheduled loss), but noted that neither Ohio Rev. Code or Ohio Rev. Code expressly authorize concurrent payment of PPD and PTD compensation. The Court viewed this conspicuous absence as a sign of legislative intent to prohibit the simultaneous receipt of these benefits. In its review of prior case law to determine if there were other circumstances where PPD and PTD were award simultaneously, the Court made a bright line distinction between such awards being sought by the same claimant in different claims as opposed to the same claimant seeking both awards in the same claim. Case Law Update 2.9

17 VI. Fraud State ex rel. Mike Coates Constr. Inc. v. Industrial Comm n, 10th Dist. No. 16AP-114, 2017-Ohio-718 (2/28/17). Mr. Van Buskirk sought treatment on September 4, 2002, regarding a back injury that had allegedly occurred the day before. His claim was allowed for several conditions and he began receiving temporary total compensation from September 5, 2002, onward. Several years later, the BWC s Special Investigations Department received information that Mr. Van Buskirk had been working during the period he was receiving temporary total. The BWC moved for a declaration of overpayment for TTD benefits paid from 11/20/02 through the present. After a hearing, the District Hearing Officer ruled Mr. Van Buskirk had committed fraud and ordered almost twelve years of overpayment for TTD benefits. In July 2015, the employer filed a motion invoking continuing jurisdiction under Ohio Rev. Code to disallow the entire industrial claim based on the DHO Order that determined the compensation was fraudulently obtained. After administrative hearings on the employer s motion, which included record evidence in the form of affidavits of coworkers stating they did not witness the alleged Van Buskirk injury, the motion was denied and the employer filed a mandamus action. The Tenth District Court of Appeals denied the employer s request for a writ, finding the Commission did not abuse its discretion. The court opined that the employer here was looking for an inference from the SID report and the prior DHO order finding Mr. Van Buskirk had fraudulently obtained compensation that he also fraudulently obtained the claim allowance. The court indicated it was not required to accept such inference and would not do so here. Essentially, while noting the Commission s ability to draw reasonable inferences, the Court of Appeals ruled that concluding that the perpetration of a fraud in obtained TTD compensation does not necessarily mean that the September 3, 2002, injury did not occur, and the SHO simply relied on his own common sense in evaluating the evidence. VII. Coming and Going A. Rees v. University Hosps., 8th Dist. No , 2017-Ohio-1372 (4/13/17). In Rees, the Eighth District Court of Appeals dealt with the issue of whether an employee on route to a required training class was in the course and scope of her duties as a nurse. On January 29, 2015, Ms. Rees was scheduled to participate in a CPR training class which was required for her continued employment with University Hospital (UH) and which was offered by UH at its main campus. Ms. Rees, like other UH employees, was paid her normal wage to attend the class and was registered for her class by her supervisor. Ms. Rees fell on the street adjacent to the parking lot at UH s main campus walking into the training room and sustained several injuries. Her claim for workers compensation benefits was denied at all levels of the Industrial Commission. Her appeal into the common pleas court went through to a trial on the merits where the trial court reversed and granted her right to participate What to Know About Practicing Before the Ohio Industrial Commission

18 On appeal before the Eighth District, the Court of Appeals agreed with the trial court and ruled that it did not err in ruling that Ms. Rees was injured within the course of and arising out of her employment with UH. The court first dealt with whether Ms. Rees had demonstrated that her injury occurred in the course of employment. The Eighth District cited prior case law holding that in the course of employment limits compensable injuries to those sustained while performing a required duty in the employer s service and is compensable if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer s business. Applying to the facts here, Ms. Rees demonstrated that she was instructed to perform this task by her supervisor, also an employee of UH and was within the scope of her employment. Next the court looked at the causal connection between the injury and employment to determine whether Ms. Rees had demonstrated that the injury arose out of the course of the employment relationship. The court found that the area where the accident occurred was in a public street adjacent to the UH parking lot and while UH did not maintain control over that street, such factor was not dispositive. Here, the court cited the Ohio Supreme Court decision in Baughman v. Eaton Corp., 62 Ohio St. 2d 62 (1980), where benefits were granted to an employee when he was injured after he fell in a public street walking from the employer s parking lot to the employer s factory. The court also found that UH received a benefit from Ms. Rees presence at the class. The court distinguished the Rees case from others with very similar facts by focusing on her presence within the zone of employment. B. Franklin v. BHC Servs., Inc., 8th Dist. No , 2017-Ohio-655 (2/23/17). The compensability of an injury for a home health nurse travelling between clients raised itself again in the Franklin case before the Eighth District. Ms. Franklin had to travel between the homes of her employer s clients to do her work as a home health aide. While the job required visits to multiple clients during a given day, the employer only paid employees like Franklin for the time spent at a client s home (but did reimburse for mileage). Franklin was injured in a car accident driving from one client s home to another. She filed a workers compensation claim which was denied by the Commission. The trial court granted summary judgment in favor of the employer and ruled that as a home health aide, Plaintiff is a fixed-situs employee. Her injury did not arise out of her employment and the coming-and-going rule bars her claim. No exceptions apply. The Eighth District Court of Appeals reversed the trial court. First, in considering whether Ms. Franklin was indeed a fixed-situs employee the court found a split among the districts: some holding home health aides to be fixed-situs (Fourth, Fifth, and Ninth) and some finding home health aides to not be fixed-situs (Fifth and Twelfth). Two prior decisions in the Eighth District also were split. The court ultimately found that there are genuine issues of materials fact as to whether Franklin was a fixed-situs employee, making summary judgment improper. Case Law Update 2.11

19 The court then looked to the potential exceptions to the coming and going rule, and applied the totality of the circumstances test. The ruling was that the totality of the circumstances surrounding the accident created a causal connection between the injury and the employment for Ms. Franklin, and again, therefore summary judgment was improper. Notably, the factors deemed significant by the court included that it was unclear who owned the car, whether Franklin was proceeding directly to the next patient s house, the proximity of the accident to the second patient, the logically related of the travel to her business and the benefit the employer received from her presence at the scene of the accident. VIII. Death Claim/Substitution Zebrasky v. Discount Drug Mart, Inc., 8th Dist. No , 2017-Ohio-4446 (6/22/17). Ms. Zebrasky filed a.512 appeal in court from the administrative denial of her claim. She died while the claim was pending in court. The employer filed a motion to dismiss, claiming the workers compensation claim had abated when she died. Her counsel argued that Ohio Rev. Code applied and Mr. Zebrasky could stand in her shoes and pursue her appeal as a dependent. Section provides that if a decedent would have been lawfully entitled to have applied for an award at the time of his death then the BWC may make a compensation award. The Court of Appeals ruled that although a deceased claimant s dependents may pursue their own claims under predicated upon the injury to the claimant, the surviving spouse of a deceased claimant cannot simply step into the shoes of the deceased claimant and continue to pursue the deceased claimant s appeal of his or her workers compensation claim after the claimant s death What to Know About Practicing Before the Ohio Industrial Commission