State ex rel. Auto Zone Stores, Inc. v. Indus. Com., 2023-Ohio-633
This decision published by the 10th District Court of Appeals brings new challenges for Employers as if 56(F) which superseded all voluntary abandonment case law wasn’t challenging enough. While the decision is consistent with the application of the law, (i.e. a claimant who was terminated for cause and later had surgery was entitled to temporary total compensation from the date of surgery forward because under the statute the allowed conditions were the disabling cause) the dicta is troubling to say the least. Specifically, the Court discusses termination for cause and did the claimant receive unemployment compensation. At the hearing table, Hearing Officers have been asking what was the reason for the termination, whether the employer contested those payments and whether the claimant ultimately received unemployment compensation. There is nothing in the statute that would allow this line of inquiry nor is it relevant. However, it will be helpful to have this information at hearing. Unfortunately, for any of us who have dealt with unemployment compensation, we are well aware that in only a few limited circumstances are claimants denied unemployment even after it has been contested.
This Court seems to want it both ways, not applying that portion of the statute that addresses whether the claimant was working prior to the disabling event and then wanting to address the appropriateness of a termination for cause. Their analysis does not apply the second portion of 4123.56(F) which states: “If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.”
Additionally, from a practical standpoint the argument that had they not been terminated we would have had them return to light duty is a difficult argument to make when a legitimate light duty job offer is not proffered to claimant prior to the termination.
While the Tenth District is not the final word, it will be interesting as to how this will play out in the hearing room. It will be important for employers to provide all documentation for termination/retirement as well as information regarding their dispute of any unemployment compensation to move to apply that second portion of 4123.56(F).
Self-Insured Complaints
Are you being plagued with Self-Insured Complaints? You are not alone, Self-Insured Complaints in 2022 have significantly increased and accordingly the number of complaints found valid has risen as well, with almost 40% of them being found valid.
If you would like to know more about the most common self-insured complaints and what you can do to avoid them, please contact Lisa for a review of your self-insured program.
New BWC Rules pending at JCarr
Self-Insured Employers be aware that new rules are pending with JCarr that would codify that if a C9 is not responded to in 10 days, it cannot be denied and the time frame for payment of compensation is being shortened to two weeks.
15th Anniversary
Happy 2023! This year marks the 15th year of LL Patterson LLC, and it is with humbled heart that I thank each and every one of you for trust in representing you over the last fifteen years.
Giving Back to the next Generation of Lawyers!
I had the honor of serving as a Judge for the ABA Online Regional Negotiation Competition on Saturday, November 5, alongside Attorney Thomas Letson, and University of Dayton Law School Professor, Andrea Seilstad.
The Negotiation Competition, in existence since 1984, promotes greater interest among law students in legal negotiation and provides a means for them to practice and improve their negotiating skills. The competition simulates legal negotiations in which law students, acting as lawyers, negotiate a series of legal problems. The problems consist of a common set of facts known by all participants and confidential information known only to the participants representing a particular side. All of the problems deal with the same general topic, but the negotiation situation varies with each round and level of the competition. The participants for this competition were law students from all over the country.
Negotiation is clearly a skill required in all aspects of the practice of law and with the preparation, creativity and excellent presentation exhibited, I think we are in good hands with this next generation of lawyers!
