Things Clients Want to Know (JULY 2011)
Question: What benefits do employers see in post-accident drug testing?
The Erosion of the Benefits of an Employer’s right to Drug testing:
I. Goodbye Post-Accident Drug Test and Voluntary Abandonment
In 2000, the Supreme Court ruled in State ex rel. Cobb v. Indus. Comm. that a claimant could voluntarily abandon his employment when he violated a company drug policy. A finding of voluntary abandonment operates as a bar to temporary total compensation. The Court specifically indicated that a termination of an employee is deemed to be voluntary if it was generated by an employee’s violation of a written work rule or policy that (1) clearly defined the prohibited conduct; (2) had been previously identified by the employer as a dischargeable offence and (3) was known or should have been known to the employee. Read More
Case Law Update (JULY 2011)
BE CAREFUL WHAT YOU WISH FOR!
State Ex rel. Paneto v. Matos, Slip Opinion No. 2011-Ohio-2587
(June 16, 2011)
Claimant Paneto applied for a scheduled loss of use of his left leg and was denied. He was later awarded permanent and total compensation and argued that this new award was a new and changed circumstance which warranted a reconsideration for total loss of use. The Commission found that the issue was “res judicata,” meaning that this matter had already been adjudicated. The Commission went on to conclude that even if it were re-opened Paneto still had some use of his left leg. Following Panetos appeal to the Supreme Court of Ohio, it was determined that he had been working full time as a home remodeler since October 2008. The Industrial Commission thereafter terminated his permanent total disability award. In trying to get a secure 200 weeks of compensation at the maximum rate for loss of use of the leg, Panetos lost his entitlement to lifetime compensation. Read More
WHAT’S NEW IN OHIO WC? (JULY 2011)
IC CHANGES RULES FOR FILING 6/22/2011
The IC has issued some new filing guidelines for document filing with both the BWC and the IC.
Contested Issues:
- It is no longer necessary to file documents with the BWC and the IC as these are exchanged between the two agencies;
- Documents for hearing review should be submitted to the IC;
- Claim number needs to be listed on the first page of each document; submitting documents already on file;
- Documents submitted one day prior to the hearing will be held for the hearing officer’s review and then imaged post-hearing;
- All continuances and cancellations should be submitted to the IC;
- IC is using automatic form recognition so use BWC/IC forms only where available;
- “Entire Document Split” means that the documents previously scanned have been scanned and indexed.
Bottom line, vigilance in maintaining copies of documents filed continues. Electronic files are only as good as your scanner and indexer. Best practice is to maintain copies of documents that you can readily supply to the hearing officers.
TRANSITIONAL LIGHT DUTY PROGRAMS – ARE YOU ADA COMPLIANT?
It’s not just injured workers that need to be accomodated in transitional duty. The EEOC filed a complaint against SUPERVALU Inc. alleging that the company violated the Americans with Disabilities Act by maintaining a policy and practice of terminating employees with disabilities at the end of medical leaves of absence rather than bringing them back to work with reasonable accomodations.
The case was thereafter resolved with SUPERVALU agreeing to provide a fund in the amount of $3.2 million dollars to provide for approximately 110 individuals and training of employees on the requirements of the ADA and on the types of accommodations that are available to return employees to the workplace.
Although this was a settlement, it does speak to how employers should be conducting their transitional
light duty programs and they should not be limited to injured workers only. From a practical standpoint, the employer can control the program by limiting the number of transitional duty positions available at any given time.
Things Clients Want to Know (APRIL 2011)
Can I terminate someone receiving temporary total compensation?
As Ohio is an at will employment state, the Employer always has the right to terminate an employee. The question becomes then, can you use that termination to prevent the injured worker from receiving ongoing compensation. As the case law currently stands, terminating someone who is receiving temporary total compensation does not operate as a bar to receiving temporary total compensation. The theory is that during the disability period, you cannot voluntarily abandon your employment. There are many perspectives that must be taken into consideration when terminating an employee, company policy, ADA, FMLA and workers’ compensation. If you are considering termination, please contact us for guidance.
Case Law Update (APRIL 2011)
Working Wage Loss Burden Placed Back on the Claimant
State ex rel. Marrero v. Indus. Comm., 126 Ohio St.3d 439, 2010-Ohio-3755
The Supreme Court has finally spoken on the claimant’s requirement to mitigate their losses in a working wage loss scenario. The Court found that where a claimant is released to a forty hour work week and is working at less than that with the employer of record, they are still required to do a good faith job search. Taking a good faith job search one step further, the Court indicated that the claimant is not limited to looking for part-time work but also full-time work, which ultimately would help the claimant secure employment which may eradicate ongoing wage loss compensation. If you have someone still receiving working wage loss compensation
and is not working 40 hours per week, please call us for a complimentary evaluation.
Surveillance Done Right
State ex rel. Rohr v. Indus. Comm., 126 Ohio St.3d 259, 2010-Ohio-3756
The Supreme Court of Ohio is notorious for not utilizing surveillance in making decisions regarding payment of compensation. However, in a recent case the Supreme Court of Ohio relied upon surveillance footage to find that the Industrial Commission did not abuse its discretion in invoking continuing jurisdiction to set a new examination on a permanent and total disability recipient. In this case, the
videotape evidenced abilities that the claimant clearly did not demonstrate throughout the processing of his application for permanent and total disability and thus, was the basis for new and changed circumstances for a medical evaluation to determine if he remained permanently and totally disabled.
Inconsistent Plaintiff’s Physician’s Report Disregarded
State ex rel. Kroger Co. v. Johnson, 128 Ohio St. 3d 243, 2011-Ohio-530.
In an interesting move, the Supreme Court has found that Plaintiff’s physician reports must be consistent. In the instant case, the claimant applied for a percentage award and his physician found a 27% impairment. He later applied for total loss of use of the hand. The Industrial Commission found that the claimant had sustained a total loss of use of the hand. The Court found that 27% impairment and the opinion that he had sustained total loss of use of the hand was inconsistent and therefore, could not be relied upon to support a total loss of use award.