Workers` Compensation Seminar

Transcription

Workers’ Compensation Seminar
Savannah Center
West Chester, OH
October 5, 2012
Table of Contents
Seminar Schedule
Tab 1
Independent Medical Examinations
Tab 2
Hearing Preparation
Tab 3
View from the Industrial Commission
Tab 4
Voluntary Abandonment
Tab 5
Light Duty Job Offers
Tab 6
Case Law Update
Tab 7
Rating Issues
Tab 8
Top Ten Tips
Tab 9
Speaker Profiles
Tab 10
Workers’ Compensation Practice Group
Tab 11
About Dinsmore
Tab 12
Seminar Schedule
8:30 AM - 9:00 AM
Registration and Breakfast
9:00 AM – 9:25 AM
9:25 AM – 9:40 AM
Hearing Preparation: Demonstration of ICON and Dolphin
9:40 AM – 10:05 AM
View from the Industrial Commission: The Hearing Officer’s Perspective
10:05 AM – 10:20 AM
BREAK
10:20 AM – 10:50 AM
10:50 AM – 11:10 AM
11:10 AM – 11:35 AM
Case Law Update: “The Fastest 25 minutes in Workers’ Compensation
11:35 AM – 12:05 PM
Rating Issues (State Fund Employers)
12:05 PM – 12:15 PM
Top Ten Tips to Make Your Job Easier
12:15 PM
Adjourn
October 5, 2012
Presented By:
Michael Squillace
Joan Verchot
Independent Medical Exams:
Another Tool In The Defense Toolbox
© 2012 DINSMORE & SHOHL | LEGAL COUNSEL
| www.dinsmore.com
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Presenters
Mike Squillace, Esq.
C l b ^ 614
Columbus
614.628.6903
628 6903
mike.squillace@dinsmore.com
Joan M. Verchot, Esq.
Cincinnati ^ 513.977.8418
joan.verchot@dinslaw.com
I. Defense Medical Exams
Medical and Fact Issues
Iss es
Causation
Disability and extent of disability
Treatment
Permanent
P
t partial
ti l iimpairment
i
t
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II. Necessary or Unnecessary?
Weigh the risks
Pick the appropriate expert for the
issue
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III. Medical Review vs. Medical Exam
May be better to get a review vs
vs.
exam
- less risk Same as BWC
Use a known physician in the area
C-92 reports?
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IV. Timing of Exams
Make
M k timely
i l d
decision
i i on d
defense
f
medical
I.C. continuous policy – 14 days
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V. IME Vendor Management
 All medical records
 Correct factual background
 Other documents – safety investigation, witness
statements, incident report
Correct Questions for the Expert:
 TTD
 Treatment – Miller criteria
 Substantial aggravation and pre-injury status
 Occupational diseases
 PTD
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VI. Rehabilitating Your Expert
Ask for clarification
Ask for addendum report by the
expert
Consider a file review if necessary
and depending on cost
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VII. Practical Matters
Failure
Fail
re to attend
Suspend claim?
Too many issues?
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VII. Conclusion
It’ your IME,
It’s
IME use it wisely
i l
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Questions?
Mike Squillace, Esq.
C l b ^ 614
Columbus
614.628.6903
628 6903
Joan M. Verchot, Esq.
joan.verchot@dinslaw.com
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Hearing Preparation
October 5, 2012
Presented By:
TJ Jagoditz
Christen Hignett
BWC Website
http://www.ohiobwc.com
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Presenters
Christen Hignett, Esq.
C l b ^ 614
Columbus
614.628.6904
628 6904
christen.hignett@dinsmore.com
T. J. Jagoditz, Esq.
anthony.jagoditz@dinsmore.com
“Employer” Tab
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“Employer” Tab
Accident/Injury Info
Claim Certification
Information as to status of claim (state fund or self-insured)
Diagnosis Info
State fund: updated by BWC as allowances added
Self-insured: updated occasionally (and sometimes
inaccurately) unless formal notification is sent to the BWC as
to updated allowances
Claim Costs and Reserves
Claim and policy
Updated quarterly
Claim Info
Claim Assignment
BWC representative contact information
Settlement Research
Compensation and medical paid to date
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“Employer” Tab
Claim Reference
Claim Documents
Documentation filed by medical provider, claimant, employer
and/or representative
Transferred to ICON/ECM for review by hearing officer
Correspondence
Orders and notices issued by the BWC
Notes
State fund: look here for conversations between BWC
representative and the claimant and/or employer
Policy Management
Coverage History
Coverage Look-up
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“Employer” Tab
Forms
C55
C86
C94A
C101
C240
SI-42
FROI
R1
SI-28
U-3
C-86
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C-240 “State Fund Settlement Agreement”
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SI-42 “Self-Insured Settlement Agreement”
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“Medical Providers” Tab
Provider Look-up
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“BWC Library” Tab
“BWC Library” Tab
 BWC Publications
 Ohio Employer Publications
Brochures
Fact Sheets
Manuals
 Questions and Answers
 Basic frequently asked questions
 Policies and Procedures
 Claims Policy
 Employer Policy
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Industrial Commission Online Network
(ICON)
www.ohioic.com
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Home Page
I.
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Forms:
A.
New Forms:
1.
IC-50 (request for cancellation).
2.
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IC-GC1 (Agreement As To
Compensation For PPD).
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II.
Industrial Commission Policies:
A.
Resolutions.
B.
Industrial Commission Rules
C.
Hearing Officer Manual
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III.
The Appeals Process:
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ICON Specifics
 Only acknowledges claims with “appeals” open (aka, a claim with a
hearing scheduled within 28 days).
 Does not necessarily match Dolphin.
 Employers must have both risk number and password to log in.
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Find Claim Option
 Allows you to see all documents that are on file.
 Now, you can view all documents containing information for the
hearing on date “X” with highlighting function.
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Submit Request Option
Appeal Order.
Object to Order.
Request .522 or .52 Relief.
Request a Service
Service.
Continuance.
Interpreter.
Cancellation.
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Questions?
Christen Hignett, Esq.
Ci i
Cincinnati
ti ^ 513
513.977.8200
977 8200
T. J. Jagoditz, Esq.
Cincinnati ^ 513.977. 8374
View from the Industrial
Commission
October 5, 2012
Presented By:
Michael H. Strong, Esq.
District Hearing Officer
October 5, 2012
Presented By:
Brett Miller
Michael Williams
Voluntary Abandonment – where are we
now?
?
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Presenters
Brett L. Miller, Esq.
Columbus ^ 614.227.4261
brett.miller@dinsmore.com
Michael L. Williams, Esq.
Columbus ^ 614.227.4277
michael.williams@dinsmore.com
Voluntary Abandonment – where are we now?

The starting
Th
i point
i – State
S
ex. rel.
l
Louisiana Pacific Corp. v. Industrial
Commission (1995), 72 Ohio St.3d
401.

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“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 offense, and (c)
was known or should have been
known to the employee.”
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Whatever happened to common sense?

The chipping away begins quickly.


State
St
t ex. rel.l P
Pretty
tt Products
P d t v. Industrial
I d ti l
Commission (1996), 77 Ohio St.3d 5. Where the
infraction that precipitated discharge is potentially
due to industrial injury, further inquiry is
necessary.
Is employer abuse really that big of a threat?
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 The evolution continues….the timing of the
conduct causing termination as a key
consideration.
 State ex. rel. Gross v. Industrial Commission (2007)
115 Ohio St.3d 249. Claimant warned on numerous
occasions of work process/safety violation. Claimant
does it again and injures himself and a co-worker.
Claimant terminated. Claimant awarded temporary
total co
tota
compensation
pe sat o as act caus
causing
g te
termination
at o was
as
contemporaneous with disability.
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State ex. rel. Ohio Welded Blank v. Industrial
Commission 2009 Ohio 4646. Post accident drug test
positive and claimant terminated. Temporary total
compensation paid. Date of termination is the key not
the date of infraction. Interprets Gross as stating that
pre-injury infraction which is not discovered until post
injury is not grounds for voluntary abandonment.
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 The trend from the Courts is that pre-injury
conduct cannot be basis for voluntary
abandonment If it must be post-injury
abandonment.
post injury
conduct this means claimant must have
returned to work.
Drug testing case with contrary holding. State ex. rel.
Paysource, USA, Inc. v. Industrial Commission (2009
Ohio 1342).
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 How about the light/restricted duty claimant?
So if it must be post injury conduct, must it also be
former position of employment?
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State ex. rel. Omni Source Corp v. Industrial
Commission (2007) 113 Ohio St.3d 202. A
claimant can abandon former position of
employment only if the claimant is physically
capable of performing that job at the time of the
alleged abandonment.
Still applied by many Hearing Officers to mean that
without a full duty return to work, voluntary
abandonment is not possible.
possible
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State ex. rel. Adkins v. Industrial Commission
2008-Ohio-4260. Claimant offered restricted
duty employment with start date of 8/26.
Claimant accepts. Claimant first shows for work
on 9/3 and is terminated. Temporary total
compensation is denied.
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State ex. rel. Apostolic Christian Home, Inc. v.
Industrial Commission, 2009-Ohio-5620. Claimant
had returned to light duty job for 3 weeks.
weeks Claimant
then verbally abuses her supervisor and fails to
show for work for the following 2 days. Claimant
terminated. Industrial Commission grants temporary
total compensation citing OmniSource and full duty
language. Court reverses and denies temporary
total compensation. When a claimant is capable of
light
g duty
y jjob,, claimant can abandon employment.
p y
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So the clear trend appears to be voluntary
abandonment can occur and temporary total
compensation
ti will
ill be
b d
denied
i d even if claimant
l i
t
was working light/restricted duty job.
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 State ex rel. Akron Pain & Varnish v. Gullotta, 131
Ohio St. 3d 231. Light duty offer precludes TTD
even in claims involving new and chanted
circumstances.
Claimant refused a written good faith job offer. He
later amended his claim to include additional
diagnoses and filed for TTD. The Court decided
that while the additional diagnoses would normally
serve as new and changed circumstances to
support TTD, the claimant’s prior legal
abandonment of employment
p y
p
precluded the TTD
request.
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Bridging a prior abandonment – the Economic
Loss Theory
 Abandonment is fluid

Baker – a later return to work elsewhere can override
abandonment argument against TTD
 Issue is whether abandonment is permanent or
temporary

State ex rel. Pierson v. Indus. Comm. – Is there any return
to work force?
 What if return to work is sporadic?
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 State ex rel. Carkido v. Indus. Comm., 2011-Ohio-4051.
(pending Supreme Court appeal)
Following surgery, the claimant returned to work. Later,
claimant went off due to an unrelated motor vehicle
accident. Claimant collected SSD before temporarily
returning to work for a different employer. This return to
work was unsuccessful and claimant again began
receiving SSD. Six years later, claimant was
authorized for surgery in the claim. TTD was denied.
The court determined that if the claimant has voluntarily
abandoned the work force and has no economic loss
loss,
then the claimant is not entitled to TTD.
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 State ex rel. Howell v. Indus. Comm., 2012-Ohio-2040.
Claimant was terminated post-injury. He later worked
for other employers prior to receiving authorization for
surgery in February, 2009. The surgery was performed
in the claim in September,
p
2009. Post operative
p
TTD
was denied due to the fact that claimant was not
working for any employer when the surgery was
performed. The Court applied the economic loss theory
in finding that absent actual employment at the time of
the disability claim, claimant is ineligible for TTD.
Reconcile with Baker?
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Questions?
Brett L. Miller, Esq.
Columbus ^ 614.227.4261
Michael L. Williams, Esq.
Columbus ^ 614.227.4277
michael.williams@dinsmore.com
October 5, 2012
Presented By:
Brian Perry
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Presenter
Brian P. Perry
Ci i
Cincinnati
ti ^ 513
513.977.8107
977 8107
brian.perry@dinsmore.com
“Job offer” means a proposal, made in good faith, of
suitable
su
tab e employment
e p oy e t within
t
a reasonable
easo ab e p
proximity
o
ty
of the injured worker's residence. If the injured
worker refuses an oral job offer and the employer
intends to initiate proceedings to terminate
temporary total disability compensation, the
employer must give the injured worker a written job
offer at least forty-eight hours prior to initiating
proceedings.
di
If th
the employer
l
fil
files a motion
ti with
ith th
the
industrial commission to terminate payment of
compensation, a copy of the written offer must
accompany the employer's initial filing.
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Elements of a Valid Light Duty Offer:
(Best Practices)
 “Good Faith” Proposal;
 Of “Suitable Employment”;
 Within a “reasonable proximity” to the Injured Worker’s residence;
 IN WRITING;
 Containing, at minimum, a description of the job duties, hours, and rate of
pay;
p
y
 With a reasonable/realistic start date (if made by mail);
 And with proof that the Injured Worker received it (i.e. certified mail, or with
Employee’s signature if made in person).
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Treating Physician’s Approval:
 Where possible, it is very helpful to get the Claimant’s treating
physician (POR) to approve the job being offer. In some cases, this
will allow for a speedier termination of temporary total
compensation. However, if the POR refuses to be reasonable, it
may nevertheless be possible to get an Industrial Commission
Hearing Officer to terminate temporary total compensation based on
a light duty job offer supported by an independent medical opinion.
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Light Duty and Temporary Total:
 Ohio Revised Code § 4123.56 provides, in relevant part, that
temporary total will not be payable “when work within the physical
capabilities of the employee is made available by the employer or
another employer.”
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The Ohio Administrative Code provides:
 Temporary total disability may be terminated by a self-insured
employer or the bureau of workers' compensation in the event of
any of the following:
 The employee returns to work.
 The employee's treating physician finds that the employee is
capable of returning to his former position of employment or
other available suitable employment.
 The employee's treating physician finds the employee has
reached maximum medical improvement.
p
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The Ohio Administrative Code provides:
 Except as provided in paragraph (B)(1) of this rule, temporary total
disability compensation may be terminated after a hearing as
follows:
 Upon the finding of a district hearing officer that either the
conditions in paragraph (B)(1)(a) or (B)(1)(b) of this rule has
occurred.
 Upon the finding of a district hearing officer that the employee is
capable of returning to his/her former position of employment.
 Upon
p the finding
g of a district hearing
g officer that the employee
p y
has reached maximum medical improvement.
 Upon the finding of a district hearing officer that the employee
has received a written job offer of suitable employment.
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Light Duty and Wage Loss:
 The Industrial Commission’s wage loss rules also recognize a light duty job
offer as a defense to wage loss in certain situations, providing:
 [T]he
[T]h adjudicator
dj di t shall
h ll give
i consideration
id ti to,
t and
d base
b
the
th
determinations on, evidence in the file, or presented at the hearing,
relating to: . . .
The claimant's failure to accept a good faith offer of suitable
employment.
Offers of employment by the employer of record will not be
given consideration by the adjudicator unless they are made in
writing and contain a reasonable description of the job duties
duties,
hours, and rate of pay.
The adjudicator shall consider employment descriptions of any
jobs offered to the claimant by employers other than the
employer of record.
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Light Duty and Permanent Total:
 A valid light duty job offer can also be a defense to a PTD
application. The Industrial Commission’s PTD guidelines provide:
 If, after hearing, the adjudicator finds that the injured worker is
offered and refuses and/or fails to accept a bona fide offer of
sustained remunerative employment that is made prior to the
prehearing conference described in paragraph (C)(9) of this rule
where there is a written job offer detailing the specific
physical/mental requirements and duties of the job that are within
th physical/mental
the
h i l/
t l capabilities
biliti off th
the iinjured
j d worker,
k th
the iinjured
j d
worker shall be found not to be permanently and totally disabled.
OAC § 4121-3-34(D)(1)(e).
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Other Important “Do’s” and “Don’ts”
Relating to Light Duty Offers:
 When basing a light duty offer on an IME opinion, the IME doctor
must consider all of the allowed conditions. State, ex rel. Ganu v.
Will
Willow
Brook
B k Christian
Ch i ti C
Communities
iti (2005),
(2005) 108 Ohi
Ohio St.3d
St 3d 296.
296
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Relating to Light Duty Offers (con’t):
 Be specific: Vague promises that the job duties will be “modified to
meet any other restrictions,” etc., will not be sufficient. See Ganu,
supra. (“The
(“Th point
i t off Coxson
C
i th
is
thatt a written
itt offer
ff cannott be
b
supplemented by nonwritten promises.”)
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Relating to Light Duty Offers (con’t):
 Where a Claimant unjustifiably refused a light duty job, the
allowance of a new condition or the worsening of an existing allowed
condition
diti d
does nott amountt tto ““new and
d changed
h
d circumstances”
i
t
”
sufficient to justify the reinstatement of temporary total. State, ex rel.
Akron Paint & Varnish, Inc. v. Gullotta (2011), 131 Ohio St.3d 231.
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Questions?
Brian P. Perry
Ci i
Cincinnati
ti ^ 513
513.977.8107
977 8107
Light Duty Job Offers:
A.
Definitions:
The Ohio Administrative
total compensation:
Code contains the following
concerning temporary
1.
"Maximum
medical improvement"
is a treatment
plateau (static or wellstabilized) 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.
2.
"Physical capabilities"
3.
"Suitable employment"
capabilities.
4.
"Treating physician" means the employee's attending physician of record on the
date of the job offer, in the event of a written job offer to an employee by an
employer. If the injured worker requested a change of doctors prior to the job
offer and in the event that such request is approved, the new doctor is the
treating physician.
5.
"Work activity" means sustained remunerative
6.
"Job offer" means a proposal, made in good faith, of suitable employment within
a reasonable proximity of the injured worker's residence. If the injured worker
refuses an oral job offer and the employer intends to initiate proceedings to
terminate temporary total disability compensation, the employer must give the
injured worker a written job offer at least forty-eight hours prior to initiating
proceedings. If the employer files a motion with the industrial commission to
terminate
payment of compensation,
a copy of the written offer must
includes any psychiatric condition allowed in a claim.
means work which is within
Ohio Admin Code § 4121-3-32{A).
B.
definitions
Elements of a Valid Light Duty Offer:
(Best Practices)
1.
"Good Faith" Proposal;
2.
Of "Suitable Employment";
the employee's
physical
employment.
C.
3.
Within a "reasonable proximity"
to the Injured Worker's residence;
4.
IN WRITING;
5.
Containing, at minimum, a description of the job duties, hours, and rate of pay;
6.
With a reasonable/realistic
7.
And with proof that the Injured Worker received it (i.e. certified
Employee's signature if made in person).
start date (if made by mail);
mail, or with
Treating Physician's Approval:
Where possible, it is very helpful to get the Claimant's treating physician (PaR) to
approve the job being offer. In some cases, this will allow for a speedier termination of
temporary total compensation.
However, if the paR refuses to be reasonable, it may
nevertheless be possible to get an Industrial Commission Hearing Officer to terminate
temporary total compensation
based on a light duty job offer supported by an
independent medical opinion.
D.
Light Duty and Temporary Total:
1.
Ohio Revised Code § 4123.56 provides, in relevant part, that temporary total will
not be payable "when work within the physical capabilities of the employee is
made available by the employer or another employer."
a.
Concerning light duty, the Ohio Supreme Court has stated:
The relevant injury in this situation is why the claimant has rejected an
offer to ameliorate the amount of wages lost. This, in turn, can involve
considerations of, for example, employment suitability, the legitimacy of
the job offer, or whether the position was offered in good faith. The
causal relation question in this situation is different because it derives
from a different compensatory intent, which is to facilitate the claimant's
return to the work force. As critical as compensating injured workers and
their dependents is, it is not the only goal addressed by the workers'
compensation
system.
Assisting a claimant's
return to gainful
employment is also important,
employee, but society at large.
benefitting
not only the employer
and
Unfortunately, for many years, this latter goal was hampered by a major
shortcoming
in the temporary
total disability scheme: it did not
accommodate claimants who could not return to the former position of
employment but were medically capable of other work. Unless other
employment
at least matched a claimant's weekly temporary total
disability benefits, claimants had no incentive to return to the work force
and often remained unemployed rather than jeopardize temporary total
disability.
The General Assembly addressed this problem in 1986 with major
amendments to R.C. 4123.56. Foremost was the creation of a new form
of wage-loss compensation that encouraged return to the work force by
paying the different between a claimant's former wages and the earnings
in the new job. As a further incentive to return to the work force, R.C.
4123.56{A} was amended to provide that a claimant who was offered a
job within his or her physical capacities could not receive temporary total
disability compensation if he or she refused that job.
2.
The Ohio Administrative
a.
b.
Code provides:
Temporary total disability may be terminated by a self-insured employer
or the bureau of workers' compensation in the event of any of the
following:
{i}
The employee returns to work.
{ii}
The employee's treating physician finds that the employee is
capable of returning to his former position of employment or
other available suitable employment.
{iii}
The employee's treating physician finds
reached maximum medical improvement.
the
employee
has
Except as provided in paragraph {B}{l} of this rule, temporary total
disability compensation may be terminated after a hearing as follows:
{i}
Upon the finding of a district hearing officer that either the
conditions in paragraph {B){l}{a} or {B}{l}{b} of this rule has
occurred.
{ii}
Upon the finding of a district hearing officer that the employee is
capable of returning to his/her former position of employment.
{iii}
Upon the finding of a district hearing officer that the employee
has reached maximum medical improvement.
{iv}
Upon the finding of a district hearing officer that the employee
has received a written job offer of suitable employment.
OAC § 4121-3-32(6)
3.
Proposed Amendment:
As part of its five year review of the temporary total rule, the Industrial
Commission has proposed a revision of OAC § 4121-3-32 which requires a light
duty job offer to "identify the position offered and shall include a description of
the duties required of the position and clearly identify the physical demands of
the job." This change, if adopted, would basically track the requirements of the
Supreme Court's caselaw. State, ex reI. Coxson v. Dairy Mart Stores of Ohio, Inc.
(2000), 90 Ohio St.3d 428.
E.
Light Duty and Wage Loss:
The Industrial Commission's wage loss rules also recognize a light duty job offer as a
defense to wage loss in certain situations, providing:
[T]he adjudicator shall give consideration to, and base the determinations
on, evidence in the file, or presented at the hearing, relating to: ...
1.
The claimant's
employment.
failure to accept a good faith offer of suitable
a.
Offers of employment by the
be given consideration by the
made in writing and contain
the job duties, hours, and rate
b.
The adjudicator shall consider employment descriptions of
any jobs offered to the claimant by employers other than
the employer of record.
c.
Although the claimant's refusal to accept a good faith offer
of suitable employment
may be considered by the
adjudicator
as a reason for denying, reducing, or
eliminating wage loss compensation, the claimant shall not
be required, as a precondition to the receipt of wage loss
compensation, to accept a job offer which would require
him or her to work a greater number of hours per week
than
the
former
position
employer of record will not
adjudicator unless they are
a reasonable description of
of pay.
of
employment
provided in paragraph (D)(2)(c)(i) of this rule.
except
as
(i)
Where the claimant, in the former position of
employment, worked a variable number of hours
per week and the claimant is offered a job which
would require the claimant to work a variable
number of hours per week, the offer of variable
hour employment shall not be considered an offer
of unsuitable employment
solely because the
minimum or maximum number of hours per week
to be worked by the claimant in the position
offered is insubstantially greater or less than the
minimum or maximum number of hours per week
which the claimant worked in the former position
of employment. In determining whether, pursuant
to this paragraph, an offer of employment
is
suitable, the adjudicator shall:
(a)
Determine, for the period of fifty-two
calendar weeks preceding the date of the
industrial injury or, in occupational disease
cases, the date of disability, the maximum,
minimum, and average number of hours
per week which the claimant worked in the
former position of employment.
If the
claimant
worked
less than
fifty-two
calendar weeks in the former position of
employment,
the determination
shall be
based on the number of weeks the claimant
actually worked;
(b)
Compare the maximum
and minimum
number of hours per week which the
claimant could be required to work in the
position of employment
offered to the
claimant to the determinations
made in
paragraph (D){2){c){i){a) of this rule to assist
in determining whether the offer is one of
suitable employment.
OAC § 4125-1-01{D).
F.
Light Duty and Permanent Total:
A valid light duty job offer can also be a defense to a PTD application.
Commission's PTD guidelines provide:
The Industrial
If, after hearing, the adjudicator finds that the injured worker is offered
and refuses and/or fails to accept a bona fide offer of sustained
remunerative employment that is made prior to the prehearing conference
described in paragraph (C)(9) of this rule where there is a written job offer
detailing the specific physical/mental requirements and duties of the job
that are within the physical/mental capabilities of the injured worker, the
injured worker shall be found not to be permanently and totally disabled.
OAC § 4121-3-34(D)(l)(e).
G.
1.
Practice Tip: Do NOT wait until the PTD hearing, or just before it, to make light
duty job offer. To be safe, any light duty job offer should be made prior to the
scheduling of the Industrial Commission PTD Pre-Hearing Conference.
2.
Proposed Amendment:
As part of its five year review of the PTD rule, the
Industrial Commission has proposed changing the description of a valid light duty
job offer from a "bona fide" offer to a "good faith" offer.
3.
"Sub-Sedentary"
Other Important
Job Offers.
"Do's" and "Don'ts" Relating to Light Duty Offers:
1.
When basing a light duty offer on an IME opinion, the IME doctor must consider
all of the allowed conditions.
State, ex rei. Ganu v. Willow Brook Christian
Communities (2005), 108 Ohio St.3d 296.
2.
Be specific: Vague promises that the job duties will be "modified to meet any
other restrictions," etc., will not be sufficient. See Ganu, supra. ("The point of
Coxson is that a written
offer cannot be supplemented
by nonwritten
promises.")
3.
If the POR will not cooperate, and is being unreasonable, consider an IME, or
approval of a functional capacity evaluation (FCE). See Dayton Foods Ltd.
Partnership v. Unger (2004), 104 Ohio St.3d 299.
4.
Where a Claimant unjustifiably refused a light duty job, the allowance of a new
condition or the worsening of an existing allowed condition does not amount to
"new
and changed circumstances"
temporary total.
Ohio St.3d 231.
sufficient
to justify
the reinstatement
of
State, ex reI. Akron Paint & Varnish, Inc. v. Gullotta (2011)' 131
)hio I Industrial Commission
Rules
4121-3-32 Temporary disability
Effective: April 1, 2004
(A) The following provisions shall apply to all claims where the date of injury or the date of disability in occupational
disease claims accrued on or after August 22, 1986. The following definitions shall be applicable to this rule:
(1) "Maximum medical improvement" is a treatment plateau (static orwell-stabilized) at which no
fundamental functional or physioloqtcat change can be expected within reasonable medical probability in
spite of continuing medical or rehabilitative procedures. An injured worker may need supportive treatment to
(2) "Physical capabilities" includes any psychiatric condition allowed in a claim.
(3) "Suitable employment" means work which is within the employee's physical capabilities.
(4) "Treating physician" means the employee's attending physician of record on the date of the job offer, in
the event of a written job offer to an employee by an employer. If the injured worker requested a change of
doctors prior to the job offer and in the event that such request is approved, the new doctor is the treating
physician
(5) "Work activity" means sustained remunerative employment.
(6) "Job offer" means a proposal, made in good faith, of suitable employment within a reasonable proximity
of the injured worker's residence. If the injured worker refuses an oral job offer and the employer intends to
initiate proceedings to terminate temporary total disability compensation, the employer must give the injured
worker a written job offer at least forty-eight hours prior to initiating proceedings. If the employer files a
motion with the industrial commission to terminate payment of compensation, a copy of the written offer
must accompany the employer's initial filing.
(8)
(1) Temporary total disability may be terminated by a self-insured employer or the bureau of workers'
compensation in the event of any of the following:
(a) The employee returns to work.
(b) The employee's treating physician finds that the employee is capable of returning to his former
position of employment or other available suitable employment.
(c) The employee's treating physician finds the employee has reached maximum medical
improvement.
(2) Except as provided in paragraph (8)(1) of this rule, temporary total disability compensation may be
terminated after a hearing as follows:
(a) Upon the finding of a district hearing officer that either the conditions in paragraph (8)(1)(a) or
(8)(1 )(b) of this rule has occurred.
(b) Upon the finding of a district hearing officer that the employee is capable of returning to his/her
(c) Upon the finding of a district hearing officer that the employee has reached maximum medical
improvement.
)hio I Industrial Commission
Rules
(d) Upon the finding of a district hearing officer that the employee has received a written job offer of
If a district hearing officer determines, based upon the evidence, that as of the date of the hearing,
the injured worker is no longer justified in remaining on temporary total disability compensation, he
shall declare that no further payments may be made. If the district hearing officer determines that
the injured worker was not justified in receiving temporary total disability compensation prior to the
date of the hearing, he shall declare an overpayment from the date the injured worker was no
longer justified in remaining on temporary total disability compensation. Such payment shall be
recovered from future awards related to the claim or any other claim. The recovery order shall
provide a method for the repayment of any such overpayment as is reasonable, taking into account
such factors as the amount of money to be recouped, the length of the periodic payments to be
made under any future award, and the financial hardship that would be imposed upon the
employee by any specific schedule of repayment.
1.
You may terminate TID in the event of any of the
following:
a.
b.
c.
2.
The employee returns to work;
The employee's treating physician finds the employee is capable of returning to his former position of employment or other available suitable
employment;
The employee's treating physician finds the employee has reached maximum medical improvement (MMI).
You also may terminate TID following an Ie hearing as follows:
a.
b.
c.
d.
Upon the finding of a hearing officer that either of
the conditions in (a) or (b) above has occurred;
Upon the finding of a hearing officer that the employee is capable of returning to his or her former
position of employment;
Upon the finding of a hearing officer that the employee has reached maximum medical improvement (MMI) Resolution R98-1-04l;
Upon the finding of a hearing officer that the employee has received a written job offer of suitable
employment.
IC Rule 4121-3-32
1.
Definition
If the report indicates MMI, you may submit a copy of that
report to the physician of record to determine if he or she
agrees with the medical exam. You can also submit provide a copy to the injured worker and his 0 her authorized
representative. If the injured workers' physician agrees in
writing, you can terminate TTO benefits without a hearing.
You should pay for the cost of this exam, along with the injured worker's travel and meal expenses, if applicable. You
can document these costs on the Injured Worker Statement for Reimbursement Travel Expense (C-60).You can
find the appropriate rates on the Injured Worker Reimbursement Rates for Travel Expense (C-60-A).You are also to compensate the employee for any loss of wages incurred due to the exam (See ORC 4121.43 (F)).
If there is conflicting medical evidence, you should file a
motion with the IC to request a finding of MMI. no payments must continue as long as medical evidence from
the provider of record supports disability related to the allowed condition(s) in the claim.
3.
When the provider of record or the IC determines MMI, you
terminate no benefits. However,the injured worker may be
entitled to other benefits, which you should explain.
a.
Wage loss compensation - If the provider of record
provides medical evidence that the injured worker
has physical restrictions as a result of the work-related injury, and he or she returns to employment at
a lesser rate of payor less hours as a direct result of
the restrictions, he or she may be entitled to wage
loss compensation. In addition, if you cannot provide
a job within those restrictions or if the injured worker
cannot find employment within their restrictions, he
or she may be entitled to non-working wage loss (See
BWC policies).
b.
Percentage of permanent partial disability award If there is a residual disability resulting from the work
related injury that is permanent and partial in nature,
BWC and/or the IC determines entitlement.
c.
Permanent total disability - When an injured worker
cannot return to any form of employment because of
the industrial injury. The IC has jurisdiction to determine entitlement.
d.
Rehabilitation -The injured worker may participate in
an approved rehabilitation plan to facilitate returning
to employment.
e.
Full and final settlement - The injured worker and
MMI indicates the allowed condition has stabilized and
further functional improvement is unlikely, despite continued medical treatment or physical rehabilitation. MMI refers to the allowed medical condition and not the ability to
return to work.
Ohio workers' compensation law states that once an injured worker reaches MMI, TTO compensation is not payable- However, medical treatment can continue to maintain stability of the condition. You can reinstate no in the
future if the injured worker proves new or changed circumstances causing him or her to become temporarily
and totally disabled.
MMI can only be determined by the physician of record
(POR)or by an IC hearing officer.
2.
Independent medical examination
An employer can require an independent medical exam
(IME) be performed by a physician of his or her choice,
to determine continued entitlement to TTO benefits. You
should notify the injured worker, his or her authorized representative, and the BWC or the IC of the exam and the
purpose of the exam.
Other benefits available
25
the employer may reach an agreement to a final lump
sum payment for the claim. You must file the settlement forms with the IC for review within five days of
signing. If the IC denies the settlement, notice will be
mailed to all parties. No settlement agreed to you and
your employee can take effect until 30 days after you
and your employee sign the final settlement agreement and filed it with the IC. (ORC 4123.65).
This manual's Section IV explains in detail these additional
types of compensation.
pensation) for a person who is supporting a family,
plus an additional 5 percent for any arrearages;
2.
60 percent of the disposable income (wages or compensation) for a person who does not support another
family, plus an additional 5 percent for any arrearages.
If the injured worker desires to have the support payments reduced while receiving compensation, he or she
must contact the appropriate support enforcement agency for assistance.
You must maintain a copy of the court order in the claim file,
along with verification of the support payments made.
Workers' compensation benefits are exempt from attachment according to ORC 4123.6"Z However, ORC 3121.03
allows support deductions from a worker's benefits. If an
employee pays child/family support through regular payroll deductions, those payments should continue while
the employee receives workers' compensation benefits.
Family support enforcement agencies receive support
payments, including arrearages, directly from the selfinsuring employer. That agency, in turn, distributes the
amount paid to the family. You must give notice to the
appropriate support enforcement agency for lump sum
awards exceeding $149.99. If the injured worker is in arrears, the support enforcement agency can use100 percent of the lump sum award to clear the arrearage.
For injuries on or after June 30, 2006, this section of the
law permits you to deduct attorney's fees from a lump
sum payment of child support prior to paying the family
support agency. The attorney of record should complete
the Affidavit for Attorney Fees (IC-32 A or C-255), and submit to you.
The following types of compensation are considered
lump sum awards: accrued portion of percentage of permanent partial; initial accrued permanent partial (amputation); lump sum settlements; facial disfigurement; initial
accrued temporary partial and lump sum advancements,
except hose awarded for attorney fees.
Temporary total; wage loss; living maintenance; living
maintenance wage loss; permanent total disability and violation of specific safety requirement are weekly awards
of compensation
Under the Federal Consumer Credit Protection Act, the
federal government has issued the following guidelines to
determine the maximum amount a support enforcement
agency can be deduct from an injured worker's earnings
for family support:
1.
26
50 percent of the disposable income (wages or com-
For a listing of county child support offices and contacts, see
the Ohio Department of Job and Family Services.
You can establish light-duty or transitional-duty programs
that provide jobs for injured workers who cannot physically return to their former positions of employment, but who
are capable of doing some remunerative work.
You should have written job descriptions so you can provide the physician of record with them. He or she will determine if a position is within the injured worker's physical
capabilities. The MEDCO-14 should clearly document the
injured worker's restrictions, or written out in detail by the
medical provider. If the doctor believes the injured worker
can return to work in a light-duty position, a medical release is given.
If you are the employer of record, you must make any offers of employment in writing. The offer must contain a
description of the job duties, hours and rate of pay. The
light-duty job should meet all of the physical restrictions
outlined by the physician of record - i.e. No lifting over 10
pounds, able to stand or sit as needed, etc., (See sample
letter on this page).
Once the injured worker returns to work in this light-duty
position, TTD benefits stop. If the injured worker receives
his or her regular rate of pay and has no reduction in hours,
then there is no additional compensation due. However, if
the injured worker is suffering an impairment of earnings
due to a lesser rate of pay, and/or is working fewer hours
and/or earning less money, then the injured worker may
be entitled to working wage loss compensation.
The employer is obligated to assist the injured worker in
obtaining benefits to which he or she may be entitled and
in providing the necessary forms. This would include providing wages earned while working light duty to aTPA for
the calculation of the wage loss compensation.
According to ORC 4123.56, if the injured worker is capable of work activity, but the employer is unable to offer
the injured worker any employment, the injured worker
will register with the ODJFS. ODJFS will assist the injured
worker in finding suitable employment.
For a listing of county offices and contacts, please see the
ODJFS Web site, http://jfs.ohio.gov/county/cntydir.stm.
You should include all correspondence and/or notes related to the claim in the file - i.e. e-mail messages, fax
cover sheets, call-in sheets, etc. In addition, include the
following information in lost-time files:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Incident report;
Doctors' diagnostic statements that give estimated
return to work dates (C-84);
Completed FROI-1, along with your determination on
the claim, and the allowed condition(s);
Wages for the year prior to the date of injury;
FWW and AWW, along with calculations done to obtain those figures;
Working wages and worksheets used to calculate
wage loss compensation;
Service provider fee bills stamped with the date you
received them;
Explanation of benefits if medical fees were reduced
per BWC guidelines;
Copy of notification to the injured worker, service provider, and BWC/IC if, and why you denied or delayed
a medical payment;
Copies of all narrative medical reports;
Copies of all C-9s, physician's reports/treatment plans,
along with documentationshowing your response;
Medical documents to show physical restrictions
placed on the injured worker by the physician of record (MEDCO-14);
Verification for all compensation and medical payments made (this must include the check number,
the date issued, the amount, the period covered and
the payee);
Copies of transfers made from one account to another regarding payments resulting from industrial injuries, such as group insurance (or sick pay paid pending allowance of a claim;
Change of physician notifications and employers' responses;
Copies of applications for benefits, motions, notices
of hearings, orders, appeals and continuances and reconsiderations;
Copy of family support court orders;
Copies of all correspondence to or from the BWC;
sample letter
June 14, 200X
Dear Jane:
Your doctor has released you for light-duty employment.
Since you have not yet reached maximum medical improvement and cannot return full time to your former position, we would like to include you in our transitional-duty
program. Please consider this a formal offer of employment at the ABC Nursing Home. We will place you In a
nursing position, but will only expect you to work from 7
to 11 a.m., four hours per day, and five days per week. We
will modify the duties of the job to be consistent with the
restrictions imposed by Dr. Robert Spine.
Your job responsibilities will be checking patient's blood
pressure and temperature, and making chart notations;
dispensing medication and giving injections, and making
appropriate chart notations. In addition, you will answer
phones, send and receive faxes, and use the computer for
scheduling, sending and receiving work-related e-rnails.
We will prohibit you from moving or lifting patients. You
cannot lift or work above shoulder level.
The position is available as of July 1, 200X, and you will
receive your normal rate of pay. Since this is less than
the regular number of working hours, wage loss will supplement your wages through our workers' compensation
program. Please sign the bottom of this sheet to acknowledge your acceptance of this position.
If you have any questions, you can reach me at 123-8889999 or via e-mail atwgreen@abc.com.
Sincerely,
W~GVe0Y\.!
William Green, WC. Administrator
ABC Nursing Home
Emergency Drive
Anytown, OH 99988
I accept the position and terms as described above.
Signed,
J CVY\£/ S JIlIli;(jv
6-14-0X
27
•
•
Authorization for the release of medical information
(Optional);
Written job offer made to the injured worker if a transitional/light duty position is necessary and available.
This same information is required if you maintain the claim
files on a paperless system.
_Written
job offers for light duty.
_ Include written communications to the injured worker, authorized representatives and providers in the electronic claim file.
_ Make available hard copies of any or all claims information on the day of an audit upon request.
_ Implement policies to ensure the security of injured
workers claims information.
This check list provides information to self-insuring employers and/or their TPAs regarding the administration,
and audit of paperless workers' compensation files. We
do not intent it to be all-inclusive.
_
All scanned information must be legible.
_The
paperless file must contain all claims information
presently maintained in a hard copy workers' compensation claim file. Examples include FROI-1, accident report,
C-84, medical bills, C-86, hearing orders, ages, C9, payment verification for compensation and medical bills, payroll records used to establish the full and average weekly
wage along with all related correspondence.
_ Injured worker should be able to review his/her workers' compensation claim file within 72 hours of their request.
_Your date stamp should be visible on all documents in
the electronic claim file (includes fax or scan dates).
_
Correspondence to request additional information
from a provider or injured worker, upon receipt date
stamp it and include it in the electronic claim file.
_Verification
_
of medical payments to a specific fee bill.
Office notes to a specific fee bill.
_ Explanation of benefits or reimbursement to providers
=EOB/EOR for each medical bill.
_ Provide access to terminals/computers to accommodate BWC's audit team.
_ Provide written instructions on accessing the electronic
claims system, including codes and definitions to BWC Auditors, injured workers and or their representatives.
_
If the TPA controls the system, have procedures in
place to transfer information should you change to a differentTPA.
28
***Proposed Amendment
4121-3-32
***
Temporary disability.
(A) The following provisions shall apply to all claims where the date of injury or the date of disability in
occupational disease claims accrued on or after August 22, 1986. The following definitions shall be
applicable to this rule:
(1) "Maximum medical improvement" is 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.
(2) "Physical capabilities" includes any psychiatric condition allowed in a claim.
(3) "Suitable employment" means work which is within the employee's physical capabilities.
(4) "Treating physician" means the employee's attending physician of record on the date of the job offer, in
the event of a written job offer to an employee by an employer. If the injured worker requested a change
of doctors prior to the job offer and in the event that such request is approved, the new doctor is the
treating physician.
(5) "Work activity" means sustained remunerative employment.
(6) "Job offer" means a proposal, made in good faith, of suitable employment within a reasonable proximity
of the injured worker's residence. If the injured worker refuses an oral job offer and the employer intends
to initiate proceedings to terminate temporary total disability compensation, the employer must give the
injured worker a written job offer at least forty-eight hours prior to initiating proceedings. The written
job offer shall identify the position offered and shall include a description of the duties required of the
position and clearly specify the physical demands of the job. If the employer files a motion with the
industrial commission to terminate payment of compensation, a copy of the written offer must
(B)
(1) Temporary total disability may be terminated by a self-insured employer or the bureau of workers'
compensation in the event of any of the following:
(a) The employee returns to work.
(b) The employee's treating physician finds that the employee is capable of returning to his former
position of employment or other available suitable employment.
(c) The employee's treating physician finds the employee has reached maximum medical improvement.
(2) Except as provided in paragraph (B)(I) of this rule, temporary total disability compensation may be
terminated after a hearing as follows:
(a) Upon the finding of a district hearing officer that either the conditions in paragraph (B)(l)(a) or
(B)(l)(b) of this rule has occurred.
(b) Upon the finding of a district hearing officer that the employee is capable of returning to his/her
***Proposed Amendment ***
(c) Upon the finding of a district hearing officer that the employee has reached maximum medical
improvement.
(d) Upon the finding of a district hearing officer that the employee has received a written job offer of
If a district hearing officer determines, based upon the evidence, that as of the date of the hearing,
the injured worker is no longer justified in remaining on temporary total disability compensation, he
shall declare that no further payments may be made. If the district hearing officer determines that
the injured worker was not justified in receiving temporary total disability compensation prior to the
date of the hearing, he shall declare an overpayment from the date the injured worker was no longer
justified in remaining on temporary total disability compensation. Such payment shall be recovered
from future awards related to the claim or any other claim. The recovery order shall provide a
method for the repayment of any such overpayment as is reasonable, taking into account such
factors as the amount of money to be recouped, the length of the periodic payments to be made
under any future award, and the financial hardship that would be imposed upon the employee by any
specific schedule of repayment.
(C) Where the bureau of workers' compensation schedules the injured worker for a medical examination under
section 4123.53 of the Revised Code and where the report of the medical examination opines that the
medical impairment resulting from the allowed conditions in the claim permanently prohibits the injured
worker from performing sustained remunerative employment the claim shall be referred to the hearing_
administrator to schedule a pre-hearing conference under Rule 4121-3-34(C)(7) to determine if the claim
should be referred for consideration of a tentative order under Rule 4121-3-34(C)(6)(a).
Ohio I Industrial Commission
Rules
4125-1-01 Compensation for wage losses
Effective: May 15, 1997
(A) The following definitions shall apply to the adjudication of applications for wage loss compensation:
(1) "Claimant," for purposes of wage loss compensation, means an employee as defined in division (A) of
section 4121.01 and division (A)(1) of section 4123.01 of the Revised Code, who asserts a right, demand, or
claim for benefits pursuant to division (8) of section 4123.56 of the Revised Code.
(2) "Employment" means work performed or to be performed pursuant to a contract of hire between an
employee and an employer as those terms are defined in divisions (A) and (8) of section 4123.01 of the
Revised Code. "Employment" also includes work performed or to be performed as self-employment.
(3) "Former position of employment" means the employment engaged in by the claimant, including job
duties, hours and rate of pay, at the time of the industrial injury allowed in the claim or on the date of
disability, in an occupational disease claim allowed under Chapter 4123. of the Revised Code.
(4) "Employer of record" means the employer with whom the claimant was employed at the time of the
injury.
(5) "Restriction" means any physical and/or psychiatric limitation caused by the impairments causally related
to the allowed conditions in the claim.
(6) "Physical capabilities" means the claimant's physical and/or psychiatric abilities as diminished solely by
the restrictions caused by the impairments resulting from the allowed conditions in the claim. In no case will
the claimant's "physical capabilities" be reduced by any impairment of the claimant's physical and/or
psychiatric abilities, which arises subsequent to the injury or, in occupational disease claims, the date of
disability, unless that impairment results from an allowed condition in the claim.
(7) "Suitable employment" means work which is within the claimant's physical capabilities, and which may be
performed by the claimant subject to all physical, psychiatric, mental, and vocational limitations to which the
claimant is subject at the time of the injury which resulted in the allowed conditions in the claim or, in
occupational disease claims, on the date of the disability which resulted from the allowed conditions in the
claim.
(8) "Comparably paying work" means suitable employment in which the claimant's weekly rate of pay is
equal to or greater than the average weekly wage received by the claimant in his or her former position of
employment.
(9) "Working wage loss" means the dollar amount of the diminishment in wages sustained by a claimant who
has returnedto employment which is not his or her former position of employment. However, the extentof the
diminishment must be the direct result of physical and/or psychiatric restriction(s) caused by the impairment
that is causally related to an industrial injury or occupational disease in a claim allowed under Chapter 4123.
of the Revised Code.
(10) "Non-working wage loss" means the dollar amount of the diminishment in wages sustained by a
claimant who has not returned to work because he or she has been unable to find suitable employment.
However, the extent of the diminishment must be the direct result of physical and/or psychiatric restrictions
caused by the impairment that is causally related to an industrial injury or occupational disease in a claim
allowed under Chapter 4123. of the Revised Code.
(11) "Claimant's weekly wage loss" means his or her working wage loss or non-working wage loss during a
calendar week ending at midnight Saturday.
Indu~',trialCommission olOhio
An oqutlf opportunity
Dnd se-rvico proviricL
Rules
(12) "Retirement" means voluntary termination of employment by a claimant such that the claimant is
completely removed from the active work force.
(13) "Voluntary separation from employment" means separation from employment by the claimant when:
(a)There exists no valid medical reason for the separation;
(b) The separation is not precipitated by a violation(s) of local, state, or federal law by the employer
which has a direct, substantial, and adverse impact on the claimant in his or her employment;
(c) The termination is not the result of the claimant's retirement;
(d) The separation is not precipitated by a breach of a collective bargaining agreement as a result
of action of the employer; and
(e) The separation is not precipitated by a breach of the contract of hire, as defined in section
4123.01 of the Revised Code, as a result of actions of the employer or conduct of the employer that
a reasonable person should have known would be interpreted as a breach of the contract of hire.
(14) "Discharge for just cause" means:
(a) Termination of employment by the employer generated by the claimant's violation of a work rule
or policy which clearly defined the prohibited conduct, had previously been identified by the
employer as a dischargeable offense, and was known or should have been known to the employee;
or
(b) In instances where there is no work rule or policy, "discharge for just cause" shall mean
discharge as a direct result of conduct by the claimant that a reasonable person should have
known would result in a discharge from employment.
(15) "Adjudicator" means the administrator of the bureau of workers' compensation, a district hearing officer,
a staff hearing officer, or the industrial commission. However, in the case of a wage loss application filed
with a self-insuring employer, the self-insuring employer shall make the initial determination as provided in
paragraph (G) of this rule.
(16) "Present earnings" means the claimant's actual weekly earnings which are generated by gainful
employment unless the claimant has substantial variations in earnings. Where the claimant has substantial
variations in earnings, the adjudicator shall apportion the earnings over such period of time that reasonably
reflects the claimant's efforts to earn such an amount. Earnings generated from commission sales, bonuses,
gratuities, and all other forms of compensation for personal services customarily received by a claimant in
the course of his or her employment and accounted for by the claimant to his or her employer will be
included in present earnings for the purposes of computing the wage loss award. In instances where sales
commission, bonuses, gratuities, or other compensation are not paid on a weekly or biweekly basis, their
receipt will be apportioned prospectively over the number of weeks it is determined were required to initiate
and consummate the sale or earn the bonus, gratuity, or other compensation. In the case of a claimant
engaged in self-employment, "present earnings" means gross income minus expenses. For purposes of
calculating present earnings, there shall be a rebuttable presumption that a claimant engaged in selfemployment has a gross income of at least one hundred dollars per week or such other compensation that
the bureau of workers' compensation shall impute to self-employed persons for purposes of determining
premium payments. Income derived from self-employment shall be reported onat least a quarterly basis.
(17) "Principal income source employment" means any employment from which the claimant has
derivedtwenty-five per cent or more of hisor her individual gross income for any period of six months or
more, during the past ten years.
(18) "Statewide average weekly wage" has the same meaning as set forth in division (C) of section 4123.62
of the Revised Code.
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(19) "Wages" means the amount upon which the claimant's average weekly wage is calculated pursuant to
section 4123.61 of the Revised Code.
(8) A claimant who has a working wage loss or a non-working wage loss shall receive compensation at sixty-six and
two thirds per cent of the claimant's weekly wage loss, not to exceed the statewide average weekly wage, for no
longer than the time period authorized by division (8) of section 4123.56 of the Revised Code.
(C) Applications for compensation for wage losses shall be filed with the bureau of workers' compensation on forms
provided by the bureau. In cases involving self-insured employers, a copy of the application shall be filed with the
self-insured employer. Failure to file the request on the appropriate form shall not result in the dismissal of said
request, but shall result in the suspension of the application until the appropriate form is filed.
(1) The claimant must certify that all the information that is provided in the application is true and accurate to
the best of his or her knowledge and further certify that he or she served a copy of the application, with
copies of supporting documents, on the employer of record.
(2) A medical report shall accompany the application. The report shall contain:
(a) A list of all restrictions;
(b) An opinion on whether the restrictions are permanent or temporary;
(c) When the restrictions are temporary, an opinion as to the expected duration of the restrictions;
(d) The date of the last medical examination;
(e) The date of thereport;
(f) The name of the physician who authored the report; and
(g) The physician's signature.
(3) Supplemental medical reports regarding the ongoing status of the medical restrictions causally related to
the allowed conditions in the claim must be submitted to the bureau of workers' compensation or the
selfinsured employer in self-insured claims once during every ninety day period after the initial application, if
the restrictions are temporary, or once during every one hundred eighty day period after the initial
application, if the medical restrictions are permanent. The supplemental report shall comply with paragraph
(C)(2) of this rule.
(4) The application shall contain an employment history. The employment history shall include a reasonably
detailed description of each position which was principal income source employment held by the claimant.
(5) All claimants seeking or receiving working or non-working wage loss payments shall supplement their
wage loss application with wage loss statements, describing the search for suitable employment, as
provided herein. The claimant's failure to submit wage loss statements in accordance with this rule shall not
result in the dismissal of the wage loss application, but shall result in the suspension of wage loss payments
until the wage loss statements are submitted in accordance with this rule.
(a) A claimant seeking or receiving wage loss compensation shall complete a wage loss
statement(s) for every week during which wage loss compensation is sought.
(b) A claimant seeking wage loss compensation shall submit the completed wage loss statements
with the wage loss application and/or any subsequent request for wage loss compensation in the
same claim.
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(c) A claimant who receives wage loss compensation for periods after the filing of the wage loss
application and/or any subsequent request for wage loss compensation in the same claim shall
submit the wage loss statements completed pursuant to paragraphs (C)(5)(a), (C)(5)(d) and
(C)(5)(e) of this rule every four weeks to the bureau of workers' compensation or the self-insured
employer during the period when wage loss compensation is received.
(d) Wage loss statements shall include the address of each employer contacted, the employer's
telephone number, the position sought, a reasonable identification by name or position of the
person contacted, the method of contact, and the result of the contact.
(e) Wage loss statements shall be submitted on forms provided by the bureau of workers'
compensation.
(0) The claimant is solely responsible for and bears the burden of producing evidence regarding his or her
entitlement to wage loss compensation. Unless the claimant meets this burden, wage loss compensation shall be
denied. A party who asserts, as a defense to the payment of wage loss compensation, that the claimant has failed to
meet his burden of producing evidence regarding his or her entitlement to wage loss compensation is not required to
produce evidence to support that assertion. However, any party asserting other defenses to the payment of wage
loss compensation, through motion, appeal, or otherwise is solely responsible for and bears the burden of producing
evidence to support those defenses. If there is insufficient evidence to support a defense to the payment of wage loss
compensation, that defense shall not be used as a grounds to deny such compensation. In no case shall this rule be
construed as placing on the industrial commission any burden to produce evidence. In considering a claimant's
eligibility for compensation for wage loss, the adjudicator shall give consideration to, and base the determinations on,
evidence in the file, or presented at hearing, relating to:
(1) The claimant's search for suitable employment.
(a) As a prerequisite to receiving wage loss compensation for any period during which such
compensation is requested, the claimant shall demonstrate that he or she has:
(i) Complied with paragraph (C)(2) of this rule and, if applicable, with paragraph (C)(3) of
this rule;
(ii) Sought suitable employment with the employer of record at the onset of the first period
for which wage loss compensation is requested. The claimant shall also seek suitable
employment with the employer of record where there has been an interruption in wage
loss compensation benefits for a period of three months or more; and
(iii) Registered with the ohio bureau of employment services and begun or continued a job
search if no suitable employment is available with the employer of record.
(b) A claimant may first search for suitable employment which is within his or her skills, prior
employment history, and educational background. If within sixty days from the commencement of
the claimant's job search, he or she is unable to find such employment, the claimant shall expand
his or her job search to include entry level and/or unskilled employment opportunities.
(c) A good faith effort to search for suitable employment which is comparably paying work is
required of those seeking non-working wage loss and of those seeking working-wage loss who
have not returned to suitable employment which is comparably paying work, except for those
claimants who are receiving public relief and are defined as work relief employees in Chapter 4127.
of the Revised Code. A good faith effort necessitates the claimant's consistent, sincere, and best
attempts to obtain suitable employment that will eliminate the wage loss. In evaluating whether the
claimant has made a good faith effort, attention will be given to the evidence regarding all relevant
factors including, but not limited to:
(i) The claimant's skills, prior employment history, and educational background;
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(ii) The number, quality (e.g., in-person, telephone, mail, with resume), and regularity of
contacts made by the claimant with prospective employers, public and private employment
services;
(iii) Except as provided in paragraph (0)(1 )(c)(v) of this rule, for a claimant seeking any
amount of nonworking wage loss, the amount of time devoted to making prospective
employer contacts during the period for which non-working wage loss is sought as
compared with the time spent working at the former position of employment; while the
adjudicator shall consider this comparison in reaching a determination of whether there
was a good faith job search, the fact that a claimant did not search for work for as many
hours as were worked in the former position of employment shall not necessarily be
dispositive;
(iv) Except as provided in paragraph (0)(1 )(c)(v) of this rule, for a claimant seeking any
amount of working wage loss, the amount of time devoted to making prospective employer
contacts during the period for which working wage loss is sought as well as the number of
hours spent working; while the adjudicator shall consider this comparison in reaching a
determination of whether there was a good faith job search, the fact that the sum of the
hours the claimant spent searching for work and working is not as many hours as were
worked in the former position of employment shall not necessarily be dispositive;
(v) Where the claimant, in the former position of employment, worked a variable number of
hours per week, the adjudicator shall determine, with respect to the former position of
employment, for the period of fifty-two calendar weeks preceding the injury, or in
occupational disease cases, the date of disability, the minimum, maximum, and average
number of hours per week the claimant worked. If the claimant worked less than fifty-two
calendar weeks in the former position of employment, the determination shall be based on
the number of weeks the claimant actually worked. The adjudicator shall consider these
determinations in relation to:
(a) The amount of time devoted to making prospective employer contacts during
the period for which working wage loss is sought as well as the number of hours
spent working, for a claimant seeking any amount of working wage loss; and
(b) The amount of time devoted to making prospective employer contacts during
the period for which non-working wage loss is sought as compared with the time
spent working at the former position of employment, for a claimant seeking nonworking wage loss; while the adjudicator shall consider the determinations
arrived at pursuant to paragraph (0)(1 )(c)(v) of this rule in reaching a conclusion
as to whether there was a good faith job search, no number of hours per week, in
and of itself, shall necessarily be dispositive.
(vi) Any refusal by the claimant to accept assistance from the bureau of workers'
compensation in finding employment;
(vii) Any refusal by the claimant to accept the assistance, where such assistance is
rendered free of charge to the claimant, of any public or private employment agency or the
assistance of the employer of record in finding employment;
(viii) Labor market conditions including, but not limited to, the numbers and types of
employers located in the geographical area surrounding the claimant's place of residence;
(ix) The claimant's physical capabilities;
(x) Any recent activity on the part of the claimant to change his or her place of residence
and the impact such a change, if made, would have on the reasonable probability of
success in the search for employment;
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(xi) The claimant's economic status as it impacts on his or her ability to search for
employment including, but not limited to, such things as access to public and private
transportation and telephone service and other means of communications;
(xii) The self-employed claimant's documentation of efforts undertaken on a weekly basis
to produce self-employment income;
(xiii) Any part-time employment engaged in by the claimant and whether that employment
constitutes a voluntary limitation on the claimant's present earnings; and
(xiv) Whether the claimant restricts his or her search to employment that would require
him or her to work fewer hours per week than he or she worked in the former position of
employment. However, the claimant shall not be required to seek employment which
would require him or her to work a greater number of hours per week than he or she
worked in the former position of employment; and
(xv) Whether, as a result of the restrictions arising from the allowed conditions in the
claim, the claimant is enrolled in a rehabilitation program with the bureau of vocational
rehabilitation whereby the claimant attends an educational institution approved by the
bureau of vocational rehabilitation.
(2) The claimant's failure to accept a good faith offer of suitable employment.
(a) Offers of employment by the employer of record will not be given consideration by the
adjudicator unless they are made in writing and contain a reasonable description of the job duties,
hours, and rate of pay.
(b) The adjudicator shall consider employment descriptions of any jobs offered to the claimant by
employers other than the employer of record.
(c) Although the claimant's refusal to accept a good faith offer of suitable employment may be
considered by the adjudicator as a reason for denying, reducing, or eliminating wage loss
compensation, the claimant shall not be required, as a precondition to the receipt of wage loss
compensation, to accept a job offer which would require him or her to work a greater number of
hours per week than the former position of employment except as provided in paragraph (D)(2)(c)(i)
of this rule.
(i) Where the claimant, in the former position of employment, worked a variable number of
hours per week and the claimant is offered a job which would require the claimant to work
a variable number of hours per week, the offer of variable hour employment shall not be
considered an offer of unsuitable employment solely because the minimum or maximum
number of hours per week to be worked by the claimant in the position offered is
insubstantially greater or less than the minimum or maximum number of hours per week
which the claimant worked in the former position of employment. In determining whether,
pursuant to this paragraph, an offer of employment is suitable, the adjudicator shall:
(a) Determine, for the period of fifty-two calendar weeks preceding the date of the
industrial injury or, in occupational disease cases, the date of disability, the
maximum, minimum, and average number of hours per week which the claimant
worked in the former position of employment. If the claimant worked less than
fifty-two calendar weeks in the former position of employment, the determination
shall be based on the number of weeks the claimant actually worked;
(b) Compare the maximum and minimum number of hours per week which the
claimant could be required to work in the position of employment offered to the
claimant to the determinations made in paragraph (D)(2)(c)(i)(a) of this rule to
assist in determining whether the offer is one of suitable employment.
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(3) Other actions of the claimant that constitute voluntarily limiting income from employment including, but
not limited to, discharges for just cause which result in a wage loss not causally related to the allowed
conditions in the claim, retirement, and voluntary separation from employment.
(a) A claimant's discharge for just cause from any position of employment shall not be considered
by the adjudicator in determining a claim for wage loss compensation where the medical evidence
shows that, as a result of the restrictions, the claimant is unable to return to the position of
employment from which he or she was discharged.
(b) The claimant's failure to seek suitable employment which would require him or her to work a
greater number of hours than the former position of employment shall not be considered a
voluntary limitation on income from employment.
(c) The claimant's failure to work a greater number of hours per week than he or she worked in his
or her former position of employment shall not be considered a voluntary limitation on from
employment.
(d) If the claimant voluntarily works less than the number of hours per week he or she worked in the
former position of employment, and this results in a wage loss, the claimant shall be considered to
have voluntarily limited his present earnings, and the claimant's wage loss compensation shall be
reduced pursuant to paragraph (F)(3) of this rule.
(4) The claimant shall not be entitled to wage loss if the claimant has received a full release to return to his
or her former position of employment.
(E) The industrial commission and its hearing officers in issuing orders granting or denying compensation for wage
losses shall comply with the requirements of division (8) of section 4121.36 of the Revised Code. To comply with
division (8)(2) of said section, the commission and/or hearing officer shall recite in those orders that they have
considered and weighed the evidence, as required by paragraph (D) of this rule.
(1) In the event of a denial of compensation for a week or period of weeks for which an application has been
made, the commission or hearing officer shall recite in the order that the claimant has not met his or her
burden of proving compliance with this rule for that week or period of weeks and shall state the evidence
relied upon to support the denial of wage loss for that week or period of weeks.
(2) If the commission or hearing officer grants any amount of wage loss compensation for a week or period
of weeks for which an application has been made, the commission or hearing officer must find and recite in
the order that:
(a) The claimant's present earnings are less than the claimant's wages;
(b) The difference between the claimant's wages and present earnings is the result of a medical
impairment that is causally related to an industrial injury or an occupational disease allowed in a
claim which was filed under Chapter 4123. of the Revised Code and in which wage loss is
requested;
(c) The claimant has made a good faith effort to search for suitable employment which is
comparably paying work but has not returned to suitable employment which is comparably paying
work; and
(d) The claimant has otherwise complied with the requirements of this rule.
(F) Computation of wage loss
(1) Unless otherwise provided in paragraph (H)(3) of this rule, diminishment of wages shall be calculated
based on the:
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(a) Claimant's average weekly wage at the time of the injury or at the time of the disability due to
occupational disease in accordance with the provisions of section 4123.61 of the Revised Code;
and
(b) The claimant's present earnings.
(2) If a claimant applies for wage loss compensation for a period during which he received amounts from a
wage replacement program fully funded by the employer, such amounts shall be considered as present
earnings for purposes of wage loss calculation.
(3)
(a) The wage loss compensation to be paid to a claimant who voluntarily fails to accept a good faith
offer of suitable employment or of suitable employment which is comparably paying work shall be
calculated as sixty-six and two-thirds percent of the difference between the claimant's average
weekly wage in the former position of employment and the weekly wage the claimant would have
earned in the employment he or she refused to accept.
(b) If the adjudicator finds that the claimant has returned to employment but has voluntarily limited
the number of hours which he is working, and that the claimant is nonetheless entitled to wage loss
compensation, the adjudicator, for each week of wage loss compensation requested by the
claimant, shall determine: The number of hours worked by theclaimant in the employment position
to which he has returned, and the hourly wage earned by the claimant in the employment position
to which he has returned. In such a case, the adjudicator shall order wage loss compensation to be
paid at a rate of sixty-six and two-thirds percent of the difference between:
(i) The weekly wage the claimant would have earned in the former position of employment
if the claimant had worked only the number of hours the claimant actually worked each
week in the employment position to which the claimant returned; and
(ii) The weekly amount the claimant actually earned in the employment position to which
he returned.
(iii) Insituations where the adjudicator finds that the claimant has returned to employment
and has voluntarily limited the number of hours which he is working, and that the claimant
is nonetheless entitled to wage loss compensation, but that paragraphs (F)(3)(b)(i) and
(F)(3)(b)(ii) of this rule are not directly applicable, the djudicator shall have the discretion
to establish a number of hours to be utilized in the calculation of wage loss compensation
that is not unreasonable, unconscionable or arbitrary.
(4) A claimant's wage loss compensation shall not be reduced by any amounts the claimant receives from
unemployment compensation, social security disability benefits, or public or private retirement plans. The
wage loss compensation of a claimant who is receiving public relief shall not be reduced by any monies
received by the claimant from work relief.
(5) Regardless of whether a claimant is otherwise qualified to receive wage loss benefits during any period
of time, a claimant shall not be awarded wage loss benefits for any period before the date on which he or
she complies with paragraph (D)(1 )(a) of this rule. Wage loss benefits may only be awarded for periods after
the claimant's compliance with said paragraph.
(G) Where the employer of record is a self-insuring employer it shall:
(1) Adjudicate the initial application for wage loss compensation and inform the claimant of its decision no
later than thirty days after a request for wage loss compensation is received;
(2) Adjudicate all issues which arise with respect to the claimant's ongoing entitlement to wage loss
compensation and inform the claimant of its decision in no later than thirty days after the issue arises; and
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(3) Ensure that a copy of any decision described in paragraphs (G)(1) and (G)(2) of this rule is filed with
either the bureau of workers' compensation or the industrial commission for placement in the claim file.
(H) Prospective application
(1) This rule shall apply to the adjudication of entitlement to wage loss compensation for period(s) on or after
the effective date of this rule, unless otherwise provided in paragraph (H)(3) of this rule.
(2) This rule shall not apply to the adjudication of entitlement to wage loss compensation for any period(s)
before the effective date of this rule.
(3) Notwithstanding paragraph (H)(1) of this rule, if a claimant files an application for wage loss
compensation in a claim in which the injury occurred or the date of disability arose before the effective date
of this rule, the wage loss compensation paid shall be calculated based on the greater of the full weekly
wage or the average weekly wage
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4121-3-34 Permanent total disability
Effective: June 1, 2008
(A) Purpose
The purpose of this rule is to ensure that applications for compensation for permanent total disability are processed
and adjudicated in a fair and timely manner. This rule applies to the adjudication of all applications for compensation
for permanent and total disability filed on or after the effective date of this rule.
(8) Definitions
The following definitions shall apply to the adjudication of all applications for permanent and total disability:
(1) "Permanent total disability" means the inability to perform sustained remunerative employment due to the
allowed conditions in the claim.
The purpose of permanent and total disability benefits is to compensate an injured worker for impairment of
earning capacity.
The term "permanent" as applied to disability under the workers' compensation law does not mean that such
disability must necessarily continue for the life of the injured worker but that it will, within reasonable
probability, continue for an indefinite period of time without any present indication of recovery therefrom.
(2) Classification of physical demands of work:
(a) "Sedentary work" means exerting up to ten pounds of force occasionally (occasionally: activity
or condition exists up to one-third of the time) and/or a negligible amount of force frequently
(frequently: activity or condition exists from one-third to two-thirds of the time) to lift, carry, push,
pull, or otherwise move objects. Sedentary work involves sitting most of the time, but may involve
walking or standing for brief periods of time. Jobs are sedentary if walking and standing are
required only occasionally and all other sedentary criteria are met.
(b) "Light work" means exerting up to twenty pounds of force occasionally, and/or up to ten pounds
of force frequently, and/or a negligible amount of force constantly (constantly: activity or condition
exists two-thirds or more of the time) to move objects. Physical demand may be only a negligible
amount, a job should be rated light work: (1) when it requires walking or standing to a significant
degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling or arm or
leg controls; and/or (3) when the job requires working at a production rate pace entailing the
constant pushing and/or pulling of materials even though the weight of those materials is negligible.
(c) "Medium work" means exerting twenty to fifty pounds of force occasionally, and/or ten to twentyfive pounds of force frequently, and/or greater than negligible up to ten pounds of force constantly
to move objects. Physical demand requirements are in excess of those for light work.
(d) "Heavy work" means exerting fifty to one hundred pounds of force occasionally, and/or twenty to
fifty pounds of force frequently and/or ten to twenty pounds of force constantly to move objects.
Physical demand requirements are in excess of those for medium work.
(e) "Very heavy work" means exerting in excess of one hundred pounds of force occasionally,
and/or in excess of fifty pounds of force frequently, and/or in excess of twenty pounds of force
constantly to move objects. Physical demand requirements are in excess of those for heavy work.
(3) Vocational factors:
(a) "Age" shall be determined at time of the adjudication of the application for permanent and total
disability. In general, age refers to one's chronological age and the extent to which one's age
affects the ability to adapt to a new work situation and to do work in competition with others.
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(b) "Education" is primarily used to mean formal schooling or other training which contributes to the
ability to meet vocational requirements. The numerical grade level may not represent one's actual
educational abilities. If there is no other evidence to contradict it, the numerical grade level will be
used to determine educational abilities.
(i) "Illiteracy" is the inability to read or write. An injured worker is considered illiterate if
the injured worker can not read or write a simple message, such as instructions or an
inventory list, even though the person can sign his or her name.
(ii) "Marginal education" means sixth grade level or less. An injured worker will have
ability in reasoning, arithmetic, and language skills which are needed to do simple
unskilled types of work. Generally, formal schooling at sixth grade level or less is marginal
education.
(iii) "Limited education" means seventh grade level through eleventh grade level. Limited
education means ability in reasoning, arithmetic and language skills but not enough to
allow an injured worker with these educational qualifications to do most of the more
complex job duties needed in semi-skilled or skilled jobs. Generally, seventh grade
through eleventh grade formal education is limited education.
(iv) "High school education or above" means twelfth grade level or above. The G.E.D. is
equivalent to high school education. High school education or above means ability in
reasoning, arithmetic, and language skills acquired through formal schooling at twelfth
grade education or above. Generally an individual with these educational abilities can
perform semi-skilled through skilled work.
(c) "Work experience":
(i) "Unskilled work" is work which needs little or no judgment to do simple duties that can
be learned on the job in a short period of time. The job mayor may not require
considerable strength. Jobs are unskilled if the primary work duties are handling, feeding,
and off bearing (placing or removing materials from machines which are automatic or
operated by others), or machine tending and a person can usually learn to do the job in
thirty days and little specific vocational preparation and judgment are needed.
(ii) "Semi-skilled work" is work which needs some skills but does not require doing the
more complex work duties. Semi-skilled jobs may require close attention to watching
machine processes or inspecting, testing, or otherwise looking for irregularities or tending
or guarding equipment, property, material, or persons against loss, damage, or injury and
other types of activities which are similarly less complex than skilled work but more
complex than unskilled work. A job may be classified as semi-skilled where coordination
and dexterity are necessary, as when hands or feet must be moved quickly in a repetitive
task.
(iii) "Skilled work" is work which requires qualifications in which a person uses judgment or
involves dealing with people, factors or figures or substantial ideas at a high level of
complexity. Skilled work may require qualifications in which a person uses judgment to
determine the machine and manual operations to be performed in order to obtain the
proper form, quality, or quantity to be produced. Skilled work may require laying out work,
estimating quality, determine the suitability and needed quantities of materials, making
precise measurements, reading blue prints or other specifications, or making necessary
computations or mechanical adjustments or control or regulate the work.
(iv) "Transferability of skills" are skills which can be used in other work activities.
Transferability will depend upon the Similarity of occupational work activities that have
been performed by the injured worker. Skills which an individual has obtained through
working at past relevant work may qualify individuals for some other type of employment.
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(v) "Previous work experience" is to include the injured worker's usual occupation, other
past occupations, and the skills and abilities acquired through past employment which
demonstrate the type of work the injured worker may be able to perform. Evidence may
show that an injured worker has the training or past work experience which enables the
injured worker to engage in sustained remunerative employment in another occupation.
The relevance and transferability of previous work skills are to be addressed by the
adjudicator.
(4) "Residual functional capacity" means the maximum degree to which the injured worker has the capacity
for sustained performance of the physical-mental requirements of jobs as these relate to the allowed
conditions in the claim(s).
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
(C) Processing of applications for permanent total disability
The following procedures shall apply to applications for permanent total disability that are filed on or after the effective
date of this rule.
(1) Each application for permanent total disability shall be accompanied by medical evidence from a
physician, or a psychologist or a psychiatric specialist in a claim that has been allowed for a psychiatric or
psychological condition, that supports an application for permanent and total disability compensation. The
medical examination upon which the report is based must be performed within twenty-four months prior to
the date of filing of the application for permanent and total disability compensation. The medical evidence
used to support an application for permanent total disability compensation is to provide an opinion that
addresses the injured worker's physical and/or mental limitations resulting from the allowed conditions in the
claim(s). Medical evidence which provides an opinion addressing such limitations, but which also contains a
conclusion as to whether an injured worker is permanently and totally disabled, may be considered by a
hearing officer. A vocational expert's opinion, by itself, is insufficient to support an application for permanent
total disability compensation. If the application for permanent total disability is filed without the required
medical evidence, it shall be dismissed without hearing.
(2) At the time the application for permanent total disability compensation is filed with the industrial
commission, the industrial commission shall serve a copy of the application together with copies of
supporting documents to the employer's representative (if the employer is represented), or to the employer
(if the employer is not represented) along with a letter acknowledging the receipt of the permanent total
disability application.
(3) A claims examiner shall initially review the application for permanent and total disability.
(a) If it is determined there is a written agreement to award permanent total disability compensation
entered into between the injured worker, the employer, and the administrator in claims involving
state fund employers, the application shall be adjudicated, and an order issued, without a hearing.
(b) If it is determined that the injured worker is requesting a finding of permanent total disability
compensation under division (C) of section 4123.58 of the Revised Code (statutory permanent and
total disability), the application shall be adjudicated in accordance with paragraph (E) of this rule.
(c) If a motion requesting recognition of additional conditions is filed on or prior to the date of filing
for permanent total disability compensation, such motion(s) shall be processed prior to the
processing of the application for permanent total disability compensation. However, if a motion for
recognition of an additional condition is filed subsequent to the date of filing of the application of
permanent total disability, the motions shall be processed subsequent to the determination of the
application for permanent total disability compensation.
(4)
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(a) The injured worker shall ensure that copies of medical records, information, and reports that
the injured worker intends to introduce and rely on that are relevant to the adjudication of the
application for permanent total disability compensation from physicians who treated or consulted
the injured worker, that mayor may not have been previously filed in the workers' compensation
claim files, are contained within the file at the time of filing an application for permanent total
disability.
(b) The employer shall be provided fourteen days after the date of the industrial commission
acknowledgment letter provided for in paragraph (C)(2) of this rule to notify the commission if the
employer intends to submit medical evidence relating to the issue of permanent total disability
compensation to the commission. Should the employer make such written notification the
employer shall submit such medical evidence to the commission within sixty days after the date of
the commission acknowledgment letter unless relief is provided to the employer under paragraph
(C)(4)(d) of this rule. Should the employer fail to make such written notification within fourteen days
after the date of the commission acknowledgment letter, the employer shall be provided Sixty days
after the date of the commission acknowledgement letter to submit medical evidence relating to the
issue of permanent total disability compensation to the commission, but the scheduling of the
injured worker for appropriate medical examinations by physicians selected by the commission
under paragraph (C)(5)(a)(iii) of this rule will proceed without delay.
(c) If the injured worker or the employer has made a good faith effort to obtain medical evidence
described in paragraph (C)(4 )(a) or (C)(4 )(b) of this rule and has been unable to obtain such
evidence, the injured worker or the employer may request that the hearing administrator issue a
subpoena to obtain such evidence. Prior to the issuance of a subpoena, the hearing administrator
shall review the evidence submitted by the injured worker or the employer that demonstrates the
good faith effort to obtain medical evidence. Should a subpoena be issued, it shall be served by
the party requesting the issuance of a subpoena.
(d) Upon the request of either the injured worker or the employer and upon good cause shown, the
hearing administrator may provide an extension of time, to obtain the medical evidence described
in paragraphs (C)(4 )(a) and (C)(4 )(b) of this rule. Thereafter, no further medical evidence will be
admissible other than additional medical evidence approved by a hearing administrator that is
found to be newly discovered medical evidence that is relevant to the issue of permanent total
disability and which, by due diligence, could not have been obtained under paragraph (C)(4)(a) or
(C)(4 )(b) of this rule.
(5)
(a) Following the date of filing of the permanent and total disability application, the claims examiner
shall perform the following activities:
(i) Obtain all the claim files identified by the injured worker on the permanent total
disability application and any additional claim files involving the same body part(s) as
those claims identified on the permanent total disability application.
(ii) Copy all relevant documents as deemed pertinent by the Commission including
evidence provided under paragraphs (C)(1) and (C)(4) of this rule and submit the same to
an examining physician to be selected by the claims examiner.
(iii) Schedule appropriate medical examination(s) by physician(s) to be selected by the
commission provided that the scheduling of said exams shall not be delayed where the
employer fails to notify the commission within fourteen days after the date of the
commission acknowledgment letter that it intends to submit medical evidence to the
commission relating to the issue of permanent total disability compensation.
(iv) Prepare a statement of facts. A copy of the statement of facts shall be mailed to the
parties and their representatives by the commission.
(6)
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(a) After the reports of the commission medical examinations have been received, the hearing
administrator may refer the claim to an adjudicator to consider the issuance of a tentative order,
without a hearing.
(i) Within fourteen days of the receipt of the tentative order adjudicating the merits of an
application for compensation for permanent and total disability, a party may file a written
objection to the order. Unless the party notifies the commission in writing of the objection
to the tentative order within fourteen days after the date of receipt of notice of the findings
of the tentative order, the tentative order shall become final.
(ii) In the event a party makes written notification to the industrial commission of an
objection within fourteen days of the date of the receipt of the notice of findings of the
tentative order, the application for compensation for permanent and total disability shall be
set for hearing and adjudicated on its merits.
(b) If the hearing administrator determines that the case should not be referred for consideration of
issuance of a tentative order by an adjudicator, the hearing administrator shall notify the parties to
the claim that a party has fourteen days from the date that copies of reports of the commission
medical examinations are submitted to the parties within which to make written notification to the
commission of a party's intent to submit additional vocational information to the commission that is
relevant to the adjudication of the application for permanent total disability compensation.
(i) Unless a party notifies the commission within the aforementioned fourteen-day period
of the party's intent to submit additional vocational information to the commission, a party
will be deemed to have waived its ability to submit additional vocational information to the
commission that is relevant to the adjudication of the application for permanent total
disability.
(ii) Should a party provide timely notification to the commission of its intent to submit
additional vocational information, the additional vocational information shall be submitted
to the commission within forty-five days from the date the copies of the reports of
commission medical examinations are submitted to the parties. Upon expiration of the
forty-five day period no further vocational information will be accepted without prior
approval from the hearing administrator.
(7) If the employer or the injured worker request, for good cause shown, that a pre-hearing conference be
scheduled, a pre-hearing conference shall be set. The request for a pre-hearing conference shall include
the identification of the issues that the requesting party desires to be considered at the pre-hearing
conference. The hearing administrator may also schedule a pre-hearing conference when deemed
necessary on any matter concerning the processing of an application for permanent and total disability,
including but not limited to, motions that are filed subsequent to the filing of the application for permanent
and total disability. -.-.-.Notice of a pre-hearing conference is to be provided to the parties and their
representatives no less than fourteen days prior to the pre-hearing conference. The pre-hearing conference
may be by telephone conference call, or in-person at the discretion of the hearing administrator and is to be
conducted by a hearing administrator. -.-.The failure of a party to request a pre-hearing conference or to raise
an issue at a pre-hearing conference held under paragraph (C)(8) of this rule, does not act to waive any
assertion, argument, or defense that may be raised at a hearing held under paragraphs (0) and (E) of this
rule.
(8) Should a pre-hearing conference be held, the hearing administrator is not limited to the consideration of
the issues set forth in paragraphs (C)(8)(a) to (C)(8)(i) of this rule, but may also address any other matter
concerning the processing of an application for permanent total disability. At a pre-hearing conference the
parties should be prepared to discuss the following issues:
(a) Evidence of retirement issues.
(b) Evidence of refusal to work or evidence of refusal or failure to respond to written job offers of
sustained remunerative employment.
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(c) Evidence of job description.
(d) Evidence of rehabilitation efforts.
(e) Exchange of accurate medical history, including surgical history.
(f) Agreement as to allowed condition(s) in the claim.
(g) Scheduling of additional medical examinations, if necessary.
(h) Ensure that deposition requests that have been granted pursuant to industrial commission rules
are completed and transcripts submitted.
(i) Settlement status.
(9) At the conclusion of the pre-hearing conference, a date for hearing before a staff hearing officer shall be
scheduled no earlier than fourteen days subsequent to the date of a pre-hearing conference. After the prehearing conference, unless authorized by the hearing administrator, no additional evidence on the issue of
permanent and total disability shall be submitted to the claim file. If the parties attempt to submit additional
evidence on the issue of permanent and total disability, the evidence will not be admissible on the
adjudication of permanent total disability compensation.
(10) The time frames established herein in paragraph (C) of this rule can be waived by mutual agreement of
the parties by motion to a hearing administrator, except where otherwise specified.
(11) The applicant may dismiss the application for permanent and total disability any time up to the
determination of the hearing on the merits of the application. Should a party dismiss an application prior to
its adjudication, the commission's medical evidence obtained will be valid twenty-four months from the date
of dismissal.
(D) Guidelines for adjudication of applications for permanent total disability
The following guidelines shall be followed by the adjudicator in the sequential evaluation of applications for
permanent total disability compensation:
(1)
(a) If the adjudicator finds that the injured worker meets the definition of statutory permanent and
total disability pursuant to division (C) of section 4123.58 of the Revised Code, due to the loss or
loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof,
the injured worker shall be found permanently and totally disabled, and a tentative order shall be
issued. ","'Should an objection be filed from a tentative order, a hearing shall be scheduled.
(Reference paragraph (E) of this rule).
(b) If, after hearing, the adjudicator finds that the injured worker is engaged in sustained
remunerative employment, the injured worker's application for permanent and total disability shall
be denied, unless an injured worker qualifies for an award under division (C) of section 4123.58 of
the Revised Code.
(c) If, after hearing, the adjudicator finds that the injured worker is medically able to return to the
former position of employment, the injured worker shall be found not to be permanently and totally
disabled.
(d) If, after hearing, the adjudicator finds that the injured worker voluntarily removed himself from
the work force, the injured worker shall be found not to be permanently and totally disabled. If
evidence of voluntary removal or retirement is brought into issue, the adjudicator shall consider
evidence that is submitted of the injured worker's medical condition at or near the time of
removal/retirement.
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(e) If, after hearing, the adjudicator finds that the injured worker is offered and refuses and/or fails
to accept a bona fide offer of sustained remunerative employment that is made prior to the prehearing conference described in paragraph (C)(9) of this rule where there is a written job offer
detailing the specific physical/mental requirements and duties of the job that are within the
physical/mental capabilities of the injured worker, the injured worker shall be found not to be
permanently and totally disabled.
(f) If, after hearing, the adjudicator finds that the injured worker's allowed medical condition(s) is
temporary and has not reached maximum medical improvement, the injured worker shall be found
not to be permanently and totally disabled because the condition remains temporary. In claims
involving state fund employers, the claim shall be referred to the administrator to consider the
issuance of an order on the question of entitlement to temporary total disability compensation. In
claims involving self-insured employers, the self-insured employer shall be notified to consider the
question of the injured worker's entitlement to temporary total disability compensation.
(g) If, after hearing, the adjudicator determines that there is appropriate evidence which indicates
the injured worker's age is the sole cause or primary obstacle which serves as a significant
impediment to reemployment, permanent total disability compensation shall be denied. However, a
decision based upon age must always involve a case-by-case analysis. The injured worker's age
should also be considered in conjunction with other relevant and appropriate aspects of the injured
worker's nonmedical profile.
(h) If, after hearing, the adjudicator finds that the allowed condition(s) is the proximate cause of the
injured worker's inability to perform sustained remunerative employment, the adjudicator is to
proceed in the sequential evaluation of the application for permanent and total disability
compensation in accordance with the provisions of paragraph (0) of this rule. However, should the
adjudicator finds that non-allowed conditions are the proximate cause of the injured worker's
inability to perform sustained remunerative employment, the injured worker shall be found not to
be permanently and totally disabled.
(i) If, after hearing, the adjudicator finds that injured worker's inability to perform sustained
remunerative employment is the result of a pre-existing condition(s) allowed by aggravation, the
adjudicator is to continue in the sequential evaluation of the application for permanent total
disability compensation in accordance with the provisions of paragraph (0) of this rule. However,
should the adjudicator find that the non-allowed pre-existing condition(s) are the proximate cause of
the injured worker's inability to perform sustained remunerative employment, the injured worker
shall be found not to be permanently and totally disabled.
(2)
(a) If, after hearing, the adjudicator finds that the medical impairment resulting from the allowed
condition(s) in the claim(s) prohibits the injured worker's return to the former position of
employment as well as prohibits the injured worker from performing any sustained remunerative
employment, the injured worker shall be found to be permanently and totally disabled, without
reference to the vocational factors listed in paragraph (8)(3) of this rule.
(b) If, after hearing, the adjudicator finds that the injured worker, based on the medical impairment
resulting from the allowed conditions is unable to return to the former position of employment but
may be able to engage in sustained remunerative employment, the non-medical factors shall be
considered by the adjudicator.
The non-medical factors that are to be reviewed are the injured worker's age, education, work
record, and all other factors, such as physical, psychological, and sociological, that are contained
within the record that might be important to the determination as to whether the injured worker may
return to the job market by using past employment skills or those skills which may be reasonably
developed. (Vocational factors are defined in paragraph (8) of this rule).
(c) If, after hearing and review of relevant vocational evidence and non-medical disability factors, as
described in paragraph (0)(2)(b) of this rule the adjudicator finds that the injured worker can return
industria! Commission of Ohio
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to sustained remunerative employment by using past employment skills or those skills which may
be reasonably developed through retraining or through rehabilitation, the injured worker shall be
found not to be permanently and totally disabled.
(3) Factors considered in the adjudication of all applications for permanent and total disability:
(a) The burden of proof shall be on the injured worker to establish a case of permanent and total
disability. The burden of proof is by preponderance of the evidence. The injured worker must
establish that the disability is permanent and that the inability to work is causally related to the
allowed conditions.
(b) In adjudicating an application for permanent and total disability, the adjudicator must determine
that the disability is permanent, the inability to work is due to the allowed conditions in the claim,
and the injured worker is not capable of sustained remunerative employment.
(c) The industrial commission has the exclusive authority to determine disputed facts, the weight of
the evidence, and credibility.
(d) All medical evidence of impairment shall be based on objective findings reasonably
demonstrable and medical reports that are submitted shall be in conformity with the industrial
commission medical examination manual.
(e) If the adjudicator concludes from evidence that there is no proximate causal relationship
between the industrial injury and the inability to work, the order shall clearly explain the reasoning
and basis for the decision.
(f) The adjudicator shall not consider the injured worker's percentage of permanent partial
impairment as the sole basis for adjudicating an application for permanent and total disability.
(g) The adjudicator is to review all relevant factors in the record that may affect the injured worker's
ability to work.
(h) The adjudicator shall prepare orders on a case by case basis which are fact specific and which
contain the reasons explaining the decision. The orders must specifically state what evidence has
been relied upon in reaching the conclusion and explain the basis for the decision. In orders that
are issued under paragraphs (D)(2)(b) and (D)(2)(c) of this rule the adjudicator is to specifically list
the non-medical disability factors within the order and state how such factors interact with the
medical impairment resulting from the allowed injuries in the claim in reaching the decision.
(i) In claims in which a psychiatric condition has been allowed and the injured worker retains the
physical ability to engage in some sustained remunerative employment, the adjudicator shall
consider whether the allowed psychiatric condition in combination with the allowed physical
condition prevents the injured worker from engaging in sustained remunerative employment.
(E) Statutory permanent total disability
Division (C) of section 4123.58 of the Revised Code provides that the loss or loss of use of both hands or both arms,
or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent disability.
(1) In all claims where the evidence on file clearly demonstrates actual physical loss, or the permanent and
total loss of use occurring at the time of injury secondary to a traumatic spinal cord injury or head injury, of
both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the claim shall be
referred to be reviewed by a staff hearing officer of the commission. Subsequent to review, the staff hearing
officer shall, without hearing, enter a tentative order finding the injured worker to be entitled to compensation
for permanent and total disability under division (C) of section 4123.58 of the Revised Code. If an objection
is made, the claim shall be scheduled for hearing.
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(a) Within thirty days of the receipt of the tentative order adjudicating the merits of an application for
compensation for permanent and total disability, a party may file a written objection to the order.
Unless the party notifies the industrial commission in writing of the objection to the tentative order
within thirty days after the date of receipt of notice of the findings of the tentative order, the tentative
order shall become final.
(b) In the event a party makes written notification to the industrial commission of an objection within
thirty days of the date of the receipt of the notice of findings of the tentative order, the application
for compensation for permanent and total disability shall be set for hearing and adjudicated on its
merits.
(2) In all other cases filed under division (C) of section 4123.58 of the Revised Code, if the staff hearing
officer finds that the injured worker meets the definition of statutory permanent and total disability pursuant
to division (C) of section 4123.58 of the Revised Code, due to the loss of use of both hands or both arms, or
both feet or both legs, or both eyes, or any two thereof, the staff hearing officer, without a hearing, is to issue
a tentative order finding the injured worker to be permanently and totally disabled under division (C) of
section 4123.58 of the Revised Code. An objection to the tentative order may be made pursuant to
paragraphs (E)(1 )(a) and (E)(1 )(b) of this rule.
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Permanent total disability.
(A) Purpose
The purpose of this rule is to ensure that applications for compensation for permanent total disability are
processed and adjudicated in a fair and timely manner. This rule applies to the adjudication of all
applications for compensation for permanent and total disability filed on or after the effective date of this
rule.
(B) Definitions
The following definitions shall apply to the adjudication of all applications for permanent and total
disability:
(1) "Permanent total disability" means the inability to perform sustained remunerative
allowed conditions in the claim.
employment due to the
The purpose of permanent and total disability benefits is to compensate an injured worker for
impairment of earning capacity.
The term "permanent" as applied to disability under the workers' compensation law does not mean that
such disability must necessarily continue for the life of the injured worker but that it will, within
reasonable probability, continue for an indefinite period of time without any present indication of
recovery therefrom.
(2) Classification
of physical demands of work:
(a) "Sedentary work" means exerting up to ten pounds of force occasionally (occasionally: activity or
condition exists up to one-third of the time) and/or a negligible amount of force frequently
(frequently: activity or condition exists from one-third to two-thirds of the time) to lift, carry, push,
pull, or otherwise move objects. Sedentary work involves sitting most of the time, but may involve
walking or standing for brief periods of time. Jobs are sedentary if walking and standing are
required only occasionally and all other sedentary criteria are met.
(b) "Light work" means exerting up to twenty pounds of force occasionally, and/or up to ten pounds of
force frequently, and/or a negligible amount of force constantly (constantly: activity or condition
exists two-thirds or more of the time) to move objects. Physical demand may be only a negligible
amount, a job should be rated light work: (1) when it requires walking or standing to a significant
degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling or arm or
leg controls; and/or (3) when the job requires working at a production rate pace entailing the
constant pushing and/or pulling of materials even though the weight of those materials is negligible.
(c) "Medium work" means exerting twenty to fifty pounds of force occasionally, and/or ten to twenty-five
pounds of force frequently, and/or greater than negligible up to ten pounds of force constantly to
move objects. Physical demand requirements are in excess of those for light work.
(d) "Heavy work" means exerting fifty to one hundred pounds of force occasionally, and/or twenty to
fifty pounds of force frequently and/or ten to twenty pounds of force constantly to move objects.
Physical demand requirements are in excess of those for medium work.
(e) "Very heavy work" means exerting in excess of one hundred pounds of force occasionally, and/or in
excess of fifty pounds of force frequently, andlor in excess of twenty pounds of force constantly to
move objects. Physical demand requirements are in excess of those for heavy work.
(3) Vocational factors:
(a) "Age" shall be determined at time of the adjudication of the application for permanent and total
disability. In general, age refers to one's chronological age and the extent to which one's age affects
the ability to adapt to a new work situation and to do work in competition with others.
(b) "Education" is primarily used to mean formal schooling or other training which contributes to the
ability to meet vocational requirements. The numerical grade level may not represent one's actual
educational abilities. If there is no other evidence to contradict it, the numerical grade level will be
used to determine educational abilities.
(i) "Illiteracy" is the inability to read or write. An injured worker is considered illiterate if the injured
worker can not read or write a simple message, such as instructions or an inventory list, even
though the person can sign his or her name.
(ii) "Marginal education" means sixth grade level or less. An injured worker will have ability in
reasoning, arithmetic, and language skills which are needed to do simple unskilled types of
work. Generally, formal schooling at sixth grade level or less is marginal education.
(iii) "Limited education" means seventh grade level through eleventh grade level. Limited education
means ability in reasoning, arithmetic and language skills but not enough to allow an injured
worker with these educational qualifications to do most of the more complex job duties needed
in semi-skilled or skilled jobs. Generally, seventh grade through eleventh grade formal
education is limited education.
(iv) "High school education or above" means twelfth grade level or above. The G.E.D. is equivalent
to high school education. High school education or above means ability in reasoning, arithmetic,
and language skills acquired through formal schooling at twelfth grade education or above.
Generally an individual with these educational abilities can perform semi-skilled through skilled
work.
(c) "Work experience":
(i) "Unskilled work" is work which needs little or no judgment to do simple duties that can be learned
on the job in a short period of time. The job mayor may not require considerable strength. Jobs
are unskilled if the primary work duties are handling, feeding, and off bearing (placing or
removing materials from machines which are automatic or operated by others), or machine
tending and a person can usually learn to do the job in thirty days and little specific vocational
preparation and judgment are needed.
(ii) "Semi-skilled work" is work which needs some skills but does not require doing the more
complex work duties. Semi-skilled jobs may require close attention to watching machine
processes or inspecting, testing, or otherwise looking for irregularities or tending or guarding
equipment, property, material, or persons against loss, damage, or injury and other types of
activities which are similarly less complex than skilled work but more complex than unskilled
work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as
when hands or feet must be moved quickly in a repetitive task.
(iii) "Skilled work" is work which requires qualifications in which a person uses judgment or
involves dealing with people, factors or figures or substantial ideas at a high level of
complexity. Skilled work may require qualifications in which a person uses judgment to
determine the machine and manual operations to be performed in order to obtain the proper
form, quality, or quantity to be produced. Skilled work may require laying out work, estimating
quality, determine the suitability and needed quantities of materials, making precise
measurements, reading blue prints or other specifications, or making necessary computations or
mechanical adjustments or control or regulate the work.
(iv) "Transferability of skills" are skills which can be used in other work activities. Transferability
will depend upon the similarity of occupational work activities that have been performed by the
injured worker. Skills which an individual has obtained through working at past relevant work
may qualify individuals for some other type of employment.
(v) "Previous work experience" is to include the injured worker's usual occupation, other past
occupations, and the skills and abilities acquired through past employment which demonstrate
the type of work the injured worker may be able to perform. Evidence may show that an injured
worker has the training or past work experience which enables the injured worker to engage in
sustained remunerative employment in another occupation. The relevance and transferability of
previous work skills are to be addressed by the adjudicator.
(4) "Residual functional capacity" means the maximum degree to which the injured worker has the capacity
for sustained performance of the physical-mental requirements of jobs as these relate to the allowed
conditions in the claim(s).
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.
(C) Processing of applications
for permanent total disability
The following procedures shall apply to applications for permanent total disability that are filed on or after
the effective date of this rule.
(1) Each application for permanent total disability shall be accompanied by medical evidence from a
physician, or a psychologist or a psychiatric specialist in a claim that has been allowed for a psychiatric
or psychological condition, that supports an application for permanent and total disability compensation.
The medical examination upon which the report is based must be performed within twenty-four months
prior to the date of filing of the application for permanent and total disability compensation. The medical
evidence used to support an application for permanent total disability compensation is to provide an
opinion that addresses the injured worker's physical and/or mental limitations resulting from the allowed
conditions in the claim(s). Medical evidence which provides an opinion addressing such limitations, but
which also contains a conclusion as to whether an injured worker is permanently
and totally disabled,
may be considered by a hearing officer. A vocational expert's opinion, by itself, is insufficient to support
an application for permanent total disability compensation.
If the application for permanent total
disability is filed without the required medical evidence, it shall be dismissed without hearing. Where it
is determined at the time the application for pem1anent total disability compensation
is filed that the
claim file contains the required medical evidence, the application for permanent total disability shall be
adjudicated on its merits as provided in this rule absent withdrawal of the application for permanent total
disaiblity compensation.
(2) At the time the application for permanent total disability compensation is filed with the industrial
commission, the industrial commission shall serve a copy of the application together with copies of
supporting documents to the employer's representative (if the employer is represented), or to the
employer (if the employer is not represented) along with a letter acknowledging the receipt of the
permanent total disability application.
(3) A claims examiner shall initially review the application for permanent and total disability.
(a) Ifit is determined there is a written agreement to award permanent total disability compensation
entered into between the injured worker, the employer, and the administrator in claims involving
state fund employers, the application shall be adjudicated, and an order issued, without a hearing.
(b) If it is determined that the injured worker is requesting a finding of permanent total disability
compensation under division (C) of section 4123.58 of the Revised Code (statutory permanent and
total disability), the application shall be adjudicated in accordance with paragraph (E) of this rule.
(c) If a motion requesting recognition of additional conditions is filed on or prior to the date of filing for
permanent total disability compensation, such motion(s) shall be processed prior to the processing of
the application for permanent total disability compensation. However, if a motion for recognition of
an additional condition is filed subsequent to the date of filing of the application of permanent total
disability, the motions shall be processed subsequent to the determination of the application for
permanent total disability compensation.
(4)
(a) The injured worker shall ensure that copies of medical records, information, and reports that the
injured worker intends to introduce and rely on that are relevant to the adjudication of the
application for permanent total disability compensation from physicians who treated or consulted
the injured worker that mayor may not have been previously filed in the workers' compensation
claim files, are contained within the file at the time of filing an application for permanent total
disability.
(b) The employer shall be provided fourteen days after the date of the industrial commission
acknowledgment letter provided for in paragraph (C)(2) of this rule to notify the commission if the
employer intends to submit medical evidence relating to the issue of permanent total disability
compensation to the commission. Should the employer make such written notification the employer
shall submit such medical evidence to the commission within sixty days after the date of the
commission acknowledgment letter unless relief is provided to the employer under paragraph
(C)(4)(d) of this rule. Should the employer fail to make such written notification within fourteen
days after the date of the commission acknowledgment letter, the employer shall be provided sixty
days after the date of the commission acknowledgement letter to submit medical evidence relating to
the issue of permanent total disability compensation to the commission, but the scheduling of the
injured worker for appropriate medical examinations by physicians selected by the commission
under paragraph (C)(5)(a)(iii) of this rule will proceed without delay.
(c) If the injured worker or the employer has made a good faith effort to obtain medical evidence
described in paragraph (C)(4)(a) or (C)(4)(b) of this rule and has been unable to obtain such
evidence, the injured worker or the employer may request that the hearing administrator issue a
subpoena to obtain such evidence. Prior to the issuance of a subpoena, the hearing administrator
shall review the evidence submitted by the injured worker or the employer that demonstrates the
good faith effort to obtain medical evidence. Should a subpoena be issued, it shall be served by the
party requesting the issuance of a subpoena.
(d) Upon the request of either the injured worker or the employer and upon good cause shown, the
hearing administrator may provide an extension of time, to obtain the medical evidence described in
paragraphs (C)(4)(a) and (C)(4)(b) of this rule. Thereafter, no further medical evidence will be
admissible other than additional medical evidence approved by a hearing administrator that is found
to be newly discovered medical evidence that is relevant to the issue of permanent total disability
and which, by due diligence, could not have been obtained under paragraph (C)(4)(a) or (C)(4)(b) of
this rule.
(5)
(a)
Following the date of filing of the permanent and total disability application, the claims examiner
shall perform the following activities:
(i) Obtain all the claim files identified by the injured worker on the permanent total disability
application and any additional claim files involving the same body partes) as those claims
identified on the permanent total disability application.
(ii) Copy all relevant documents as deemed pertinent by the commission including evidence provided
under paragraphs (C)(1) and (C)(4) of this rule and submit the same to an examining physician
to be selected by the claims examiner.
(iii) Schedule appropriate medical examination(s) by physician(s) to be selected by the commission
provided that the scheduling of said exams shall not be delayed where the employer fails to
notify the commission within fourteen days after the date of the commission acknowledgment
letter that it intends to submit medical evidence to the commission relating to the issue of
permanent total disability compensation.
(iv) Prepare a statement of facts. A copy of the statement of facts shall be mailed to the parties and
their representatives by the commission.
(6)
(a) After the reports of the commission medical examinations
have been received, or subsequent to a
prehearing conference held pursuant to a referral to the hearing administrator under rule
4121-3-32(C),
the hearing administrator may refer the claim to an adjudicator to consider the
issuance of a tentative order, without a hearing.
(i) Within fourteen days of the receipt of the tentative order adjudicating the merits of an application
for compensation for permanent and total disability, a party may file a written objection to the
order. Unless the party notifies the commission in writing of the objection to the tentative order
within fourteen days after the date of receipt of notice of the findings of the tentative order, the
tentative order shall become final.
***
(ii) In the event a party makes written notification to the industrial commission of an objection within
fourteen days of the date of the receipt of the notice of findings of the tentative order, the
application for compensation for permanent and total disability shall be set for hearing and
adjudicated on its merits.
(b) If the hearing administrator determines that the case should not be referred for consideration of
issuance of a tentative order by an adjudicator, the hearing administrator shall notify the parties to
the claim that a party has fourteen days from the date that copies of reports of the commission
medical examinations are submitted to the parties within which to make written notification to the
commission of a party's intent to submit additional vocational information to the commission that is
relevant to the adjudication of the application for permanent total disability compensation.
(i) Unless a party notifies the commission within the aforementioned fourteen-day period of the
party's intent to submit additional vocational information to the commission, a party will be
deemed to have waived its ability to submit additional vocational information to the commission
that is relevant to the adjudication of the application for permanent total disability.
(ii) Should a party provide timely notification to the commission of its intent to submit additional
vocational information, the additional vocational information shall be submitted to the
commission within forty-five days from the date the copies of the reports of commission
medical examinations are submitted to the parties. Upon expiration of the forty-five day period
no further vocational information will be accepted without prior approval from the hearing
administrator.
(7) If the employer or the injured worker request, for good cause shown, that a pre-hearing conference be
scheduled, or upon refeITal to a hearing administrator
under 4121-3-32CC), a pre-hearing conference
shall be set. The request for a pre-hearing conference shall include the identification
of the issues that
the requesting party desires to be considered at the pre-hearing conference. The hearing administrator
may also schedule a pre-hearing conference when deemed necessary on any matter concerning the
processing of an application for permanent and total disability, including but not limited to, motions that
are filed subsequent to the filing of the application for permanent and total disability.
Notice of a pre-hearing conference is to be provided to the parties and their representatives no less than
fourteen days prior to the pre-hearing conference. The pre-hearing conference may be by telephone
conference call, or in-person at the discretion of the hearing administrator and is to be conducted by a
hearing administrator.
The failure of a party to request a pre-hearing conference or to raise an issue at a pre-hearing conference
held under paragraph (C)(8) of this rule, does not act to waive any assertion, argument, or defense that
may be raised at a hearing held under paragraphs (D) and (E) of this rule.
(8) Should a pre-hearing conference be held, the hearing administrator is not limited to the consideration of
the issues set forth in paragraphs (C)(8)(a) to (C)(8)(i) of this rule, but may also address any other matter
concerning the processing of an application for permanent total disability. At a pre-hearing conference
the parties should be prepared to discuss the following issues:
(a) Evidence of retirement issues.
(b) Evidence of refusal to work or evidence of refusal or failure to respond to written job offers of
sustained remunerative
employment.
(c) Evidence of job description.
(d) Evidence of rehabilitation
efforts.
(e) Exchange of accurate medical history, including surgical history.
(f) Agreement as to allowed condition(s) in the claim.
(g) Scheduling of additional medical examinations,
if necessary.
(h) Ensure that deposition requests that have been granted pursuant to industrial commission rules are
completed and transcripts submitted.
(i) Settlement status.
(9) At the conclusion of the pre-hearing conference, a date for hearing before a staff hearing officer shall be
scheduled no earlier than fourteen days subsequent to the date of a pre-hearing conference. After the
pre-hearing conference, unless authorized by the hearing administrator, no additional evidence on the
issue of permanent and total disability shall be submitted to the claim file. If the parties attempt to
submit additional evidence on the issue of permanent and total disability, the evidence will not be
admissible on the adjudication of permanent total disability compensation.
(10) The time frames established herein in paragraph (C) of this rule can be waived by mutual agreement of
the parties by motion to a hearing administrator, except where otherwise specified.
(11) The applicant may dismiss the application for permanent and total disability any time up to the
determination of the hearing on the merits of the application. Should a party dismiss an application prior
to its adjudication, the commission's medical evidence obtained will be valid twenty-four months from
the date of dismissal.
(D) Guidelines for adjudication of applications for permanent total disability
The following guidelines shall be followed by the adjudicator in the sequential evaluation of applications for
permanent total disability compensation:
(1)
(a) If the adjudicator finds that the injured worker meets the definition of statutory permanent and total
disability pursuant to division (C) of section 4123.58 of the Revised Code, due to the loss or loss of
use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the
injured worker shall be found permanently and totally disabled, and a tentative order shall be issued.
Should an objection be filed from a tentative order, a hearing shall be scheduled. (Reference
paragraph (E) of this rule).
(b) If, after hearing, the adjudicator finds that the injured worker is engaged in sustained remunerative
employment, the injured worker's application for permanent and total disability shall be denied,
unless an injured worker qualifies for an award under division (C) of section 4123.58 of the Revised
Code.
(c) If, after hearing, the adjudicator finds that the injured worker is medically able to return to the former
position of employment, the injured worker shall be found not to be permanently and totally
disabled.
(d) If, after hearing, the adjudicator finds that the injured worker voluntarily removed himself from the
work force, the injured worker shall be found not to be permanently and totally disabled. If evidence
of voluntary removal or retirement is brought into issue, the adjudicator shall consider evidence that
is submitted of the injured worker's medical condition at or near the time of removal/retirement.
(e) If, after hearing, the adjudicator finds that the injured worker is offered and refuses and/or fails to
accept a h':YHa~~Hdegood faithoffer of sustained remunerative
employment that is made prior to the
pre-hearing conference described in paragraph (C)(9) of this rule where there is a written job offer
detailing the specific physical/mental
physical/mental
permanently
requirements
and duties of the job that are within the
capabilities of the injured worker, the injured worker shall be found not to be
and totally disabled.
(f) If, after hearing, the adjudicator finds that the injured worker's allowed medical condition(s) is
temporary and has not reached maximum medical improvement, the injured worker shall be found
not to be permanently and totally disabled because the condition remains temporary. In claims
involving state fund employers, the claim shall be referred to the administrator to consider the
issuance of an order on the question of entitlement to temporary total disability compensation. In
claims involving self-insured employers, the self-insured employer shall be notified to consider the
question of the injured worker's entitlement to temporary total disability compensation.
(g) If, after hearing, the adjudicator determines that there is appropriate evidence which indicates the
injured worker's age is the sole cause or primary obstacle which serves as a significant impediment
to reemployment, permanent total disability compensation shall be denied. However, a decision
based upon age must always involve a case-by-case analysis. The injured worker's age should also
be considered in conjunction with other relevant and appropriate aspects of the injured worker's
nonmedical profile.
(h) If, after hearing, the adjudicator finds that the allowed condition(s) is the proximate cause of the
injured worker's inability to perform sustained remunerative employment, the adjudicator is to
proceed in the sequential evaluation of the application for permanent and total disability
compensation in accordance with the provisions of paragraph (D) of this rule. However, should the
adjudicator finds that non-allowed conditions are the proximate cause of the injured worker's
inability to perform sustained remunerative employment, the injured worker shall be found not to be
(i) If, after hearing, the adjudicator finds that injured worker's inability to perform sustained remunerative
employment is the result of a pre-existing condition(s) allowed by aggravation, the adjudicator is to
continue in the sequential evaluation of the application for permanent total disability compensation
in accordance with the provisions of paragraph (D) of this rule. However, should the adjudicator
find that the non-allowed pre-existing condition(s) are the proximate cause of the injured worker's
inability to perform sustained remunerative employment, the injured worker shall be found not to be
(2)
(a) If, after hearing, the adjudicator finds that the medical impairment resulting from the allowed
condition(s) in the claim(s) prohibits the injured worker's return to the former position of
employment as well as prohibits the injured worker from performing any sustained remunerative
employment, the injured worker shall be found to be permanently and totally disabled, without
reference to the vocational factors listed in paragraph (B)(3) of this rule.
(b) If, after hearing, the adjudicator finds that the injured worker, based on the medical impairment
resulting from the allowed conditions is unable to return to the former position of employment but
may be able to engage in sustained remunerative employment, the non-medical factors shall be
considered by the adjudicator.
The non-medical factors that are to be reviewed are the injured worker's age, education, work
record, and all other factors, such as physical, psychological, and sociological, that are contained
within the record that might be important to the determination as to whether the injured worker may
return to the job market by using past employment skills or those skills which may be reasonably
developed. (Vocational factors are defined in paragraph (B) of this rule).
(c) If, after hearing and review of relevant vocational evidence and non-medical disability factors, as
described in paragraph (D)(2)(b) of this rule the adjudicator finds that the injured worker can return
to sustained remunerative employment by using past employment skills or those skills which may be
reasonably developed through retraining or through rehabilitation, the injured worker shall be found
not to be permanently and totally disabled.
(3) Factors considered in the adjudication of all applications for permanent and total disability:
(a) The burden of proof shall be on the injured worker to establish a case of permanent and total
disability. The burden of proof is by preponderance of the evidence. The injured worker must
establish that the disability is permanent and that the inability to work is causally related to the
allowed conditions.
(b) In adjudicating an application for permanent and total disability, the adjudicator must determine that
the disability is permanent, the inability to work is due to the allowed conditions in the claim, and
the injured worker is not capable of sustained remunerative employment.
(c) The industrial commission has the exclusive authority to determine disputed facts, the weight of the
evidence, and credibility.
(d) All medical evidence of impairment shall be based on objective findings reasonably demonstrable and
medical reports that are submitted shall be in conformity with the industrial commission medical
examination manual.
(e) If the adjudicator concludes from evidence that there is no proximate causal relationship between the
industrial injury and the inability to work, the order shall clearly explain the reasoning and basis for
the decision.
(f) The adjudicator shall not consider the injured worker's percentage of permanent partial impairment as
the sole basis for adjudicating an application for permanent and total disability.
(g) The adjudicator is to review all relevant factors in the record that may affect the injured worker's
ability to work.
***
(h) The adjudicator shall prepare orders on a case by case basis which are fact specific and which contain
the reasons explaining the decision. The orders must specifically state what evidence has been relied
upon in reaching the conclusion and explain the basis for the decision. In orders that are issued
under paragraphs (D)(2)(b) and (D)(2)( c) of this rule the adjudicator is to specifically list the
non-medical disability factors within the order and state how such factors interact with the medical
impairment resulting from the allowed injuries in the claim in reaching the decision.
(i) In claims in which a psychiatric condition has been allowed and the injured worker retains the physical
ability to engage in some sustained remunerative employment, the adjudicator shall consider
whether the allowed psychiatric condition in combination with the allowed physical condition
prevents the injured worker from engaging in sustained remunerative employment.
(E) Statutory permanent total disability
Division (C) of section 4123.58 of the Revised Code provides that the loss or loss of use of both hands or
both arms, or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent
disability.
(1) In all claims where the evidence on file clearly demonstrates actual physical loss, or the permanent and
total loss of use occurring at the time of injury secondary to a traumatic spinal cord injury or head injury,
of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the claim shall be
referred to be reviewed by a staff hearing officer of the commission. Subsequent to review, the staff
hearing officer shall, without hearing, enter a tentative order finding the injured worker to be entitled to
compensation for permanent and total disability under division (C) of section 4123.58 of the Revised
Code. If an objection is made, the claim shall be scheduled for hearing.
(a) Within thirty days of the receipt of the tentative order adjudicating the merits of an application for
compensation for permanent and total disability, a party may file a written objection to the order.
Unless the party notifies the industrial commission in writing of the objection to the tentative order
within thirty days after the date of receipt of notice of the findings of the tentative order, the
tentative order shall become final.
(b) In the event a party makes written notification to the industrial commission of an objection within
thirty days of the date of the receipt of the notice of findings of the tentative order, the application
for compensation for permanent and total disability shall be set for hearing and adjudicated on its
merits.
(2) In all other cases filed under division (C) of section 4123.58 of the Revised Code, if the staff hearing
officer finds that the injured worker meets the definition of statutory permanent and total disability
pursuant to division (C) of section 4123.58 of the Revised Code, due to the loss of use of both hands or
both arms, or both feet or both legs, or both eyes, or any two thereof, the staff hearing officer, without a
hearing, is to issue a tentative order finding the injured worker to be permanently and totally disabled
under division (C) of section 4123.58 of the Revised Code. An objection to the tentative order may be
made pursuant to paragraphs (E)(l)(a) and (E)(l)(b) of this rule.
State ex rei. Coxson v. Dairy Mart Stores of Ohio, Inc.
light-duty work, on the condition that she not be required
to perform repetitive bending, stooping, or kneeling, or to
lift over twenty-five pounds. He defined" repetitive" as
" more than once every ten or so minutes."
1999-0532
On December 15,1993, DM sent this letter to
claimant:
OHSC
90 Ohio St.3d 428
" GOOD NEWS! Your physician-of-record, Dr.
John Steele has released you to return to work on a
light-duty basis.
12/27/2000
" Your restrictions are:
" 1. no lifting over 25 lbs.
The State ex reI. Coxson et aI., Appellees, v. Dairy Mart
Stores of Ohio, Inc., Appellant.
[Cite as State ex rei. Coxson v. Dairy Mart Stores of
Ohio, Inc. (2000), 90 Ohio St.3d 428.]
Workers' compensation -Termination of temporary total
disability benefits -Court
of appeals' grant of writ of
mandamus ordering Industrial Commission to vacate its
order refusing to reinstate temporary total disability
benefits to claimant and order to commission for further
consideration and a new order affirmed.
(No. 99-532 -Submitted
December 27,2000.)
August 22, 2000 -Decided
Appeal from the Court of Appeals for Franklin County,
No. 97APDI1-1473.
In 1992, appellee-claimant, Marlyne Coxson, was
an assistant manager for appellant Dairy Mart Stores of
Ohio, Inc. (" DM"). On September 26, 1992, she was
seriously hurt in a work-related motor vehicle accident.
DM, a self-insured employer, began paying temporary
total disability compensation (" TTC" ) thereafter.
On October 12, 1993, claimant's attending
physician, Dr. John F. Steele, certified her as temporarily
totally disabled through early the next year. On
December 7, 1993, DM's counsel deposed Dr. Steele.
During the deposition, this exchange occurred:
"Q. [DM counsel]: And you've always responded
that she was 100 percent totally disabled from her former
position of employment. Are you now * * * retracting
that statement to a degree?
" A [Doctor]: No, but if they would change her
type of employment like a light-duty type thing, she
could perform that. But for her regular job, she was 100
percent temporarily disabled."
Dr. Steele
authorized
claimant's
return
to
" 2. no repetitive bending, stooping, or kneeling
('repetitive' is considered seven to eight times in an
instance).
"3. Please call Ward Miller, your Human
Resources Director, on or before, noon on Monday,
December 27, 1993. He will assign you to a store. * *
*"
A second letter was sent on January 11, 1994, that
read:
" After being informed of your release to return to
work on a light-duty basis, I have spoken with [your]
Supervisor, Cindy Dunn, to locate a store to
accommodate your return.
"Ms. Dunn has informed me that we have an
opening at [a] store [in Hubbard, Ohio]. Please contact
Ms. Dunn no later than Friday, January 14, 1994 to
confirm your retum to work at that location and to
establish your work schedule. Ms. Dunn can be reached
* * * at [phone number]. If she is not available when you
call that store, please leave her a message with your
phone number and she will contact you directly.
" Please contact me [Ward Miller] if you have
any questions or if you have not been able to reach Ms.
Dunn by January 14, 1994."
The evidence conflicts as to whether claimant
attempted to contact DM. In any event, on January 24,
1994, DM stopped paying TTC based on claimant's
failure to report to her new position.
On May 3, 1994, for reasons unknown, DM sent a
one-line letter to claimant, which stated:
" Attached is a copy of the physical job demands
for sales assistants and assistant managers under the
Dairy Mart Rehabilitation program."
Attached was a sheet entitled" PHYSICAL JOB
DEMANDS
FOR
SALES
ASSISTANTS
REHABILITATION."
It consisted of a list of job
requirements, including:
"2. Required to lift boxes in the stockroom and
to transfer them to the sales floor. The height would vary
from ankle to shoulder level. * * *
"3. Occasional bending, kneeling preferred.
"4. Occasionally required to climb and stand on
a ladder and safety stepstool to fix or replace window
signs, to stock shelves, and to perform simple
maintenance chores.
"5.
Required to bend over to check in
merchandise arriving from warehouse. Deliveries vary
from once a week to once every two weeks.
"6. Perform various cleaning and scrubbing
assignments.
" ***
" 8. Occasionally required to carry out trash and
place in an outdoor dumpster. Maximum weight: no
more than ten pounds.
"9. Required to sweep and mop the sales floor,
required to lift, in addition to sweeping the parking lot,
during appropriate weather.
" ***
" 12. [R]equired
surfaces.
to wash windows and shine
" 13. DAIRY MART WILL WORK WITH THE
PHYSICIAN TO MODIFY JOBS WITHIN GIVEN
RESTRICTIONS OR LIMITATIONS."
Claiming an inability to perform the duties
offered, claimant petitioned the commission for an order
reinstating TTC. She submitted C-84 physician's
supplemental reports that ultimately certified her as
temporarily totally disabled through July 25, 1995.
A district hearing officer (" DIl0" ) for appellee
Industrial Commission of Ohio denied compensation,
writing:
"[C]laimant's
request for temporary total
compensation from 1128/94 through 4/17/95, inclusive, is
denied as this request for payment of temporary total
compensation was not submitted to the claim file within
two years.
" ***
"Temporary total compensation from 4/18/95
through 6113/97, inclusive, is denied. The District
Hearing Officer finds and orders that claimant has failed
to submit any medical evidence to substantiate
requested period of disability.
this
" The District Hearing Officer notes that the latest
C-84 report of Dr. Steele dated 8/11/94 estimated a return
to work date of 11/30/94, and there are no subsequent
C-84 reports contained within the State Claim file.
" Furthermore, the District Hearing Officer finds
and orders that the self-insured employer made a
legitimate good faith job offer to claimant on two
occasions by certified letters dated 12/15/93 and 1/11194.
The District Hearing Officer further finds that claimant
acknowledged receipt of the letters at hearing and
understood the content of the letters.
" The District Hearing Officer notes that claimant
disputed the existence of [a] light duty job at Dairy Mart
based upon her experience there. However, the District
Hearing Officer finds that no written evidence was
presented to dispute the fact that this claimant was given
a light duty job offer within her physical capabilities on
or about 12/15/93 and 1111194. Accordingly, the District
Hearing Officer finds that claimant failed to accept the
legitimate light duty job offer and temporary total
compensation is denied for the requested period for the
reasons set forth above."
A staff hearing officer modified the DHO's order,
finding:
"Claimant did request payment of temporary
total compensation [from] 1128/94 through 4117/95, in a
timely manner. Therefore, the Staff Hearing Officer
concludes that the Industrial Commission of Ohio does
have jurisdiction to consider authorization for payment of
temporary total compensation for the above-stated period.
"The Staff Hearing Officer denies temporary
total compensation from 1128/94 through 4/17/95, for the
reason that claimant refused a legitimate light duty offer
of employment, on or about 12/15/93, then refused
another offer on 1111/94 and again on 5/3/94.
" In making this finding, the Staff Hearing Officer
has relied upon claimant's testimony at this hearing,
which establishes that claimant refused said offers as she
'thought there was no light duty work available' with this
employer.
" This was also reflected in claimant's testimony
as contained in the transcription of testimony from the
District Hearing Officer hearing of 8/22/97.
" Finally, the Staff Hearing Officer relies upon
Dr. Steele's testimony contained in his 12/7/93
Deposition, indicating claimant was capable of light duty
work.
1111/94
"Lastly, the employer's letters of 12/15/93,
and 5/3/94, offering claimant light duty work,
were relied upon.
" Dr. Steele's other C-84 reports were reviewed
but not found persuasive, in light of his opinion as
contained in said Deposition.
"The
respects."
prior order is affirmed in all other
Further hearing was denied.
Claimant filed a complaint in mandamus in the
Court of Appeals for Franklin County, alleging that the
commission abused its discretion in refusing to reinstate
TTC. The court of appeals granted the writ and ordered
the commission to vacate its order. It reasoned that the
commission order did not address what the court
perceived to be DM's misstatement of Dr. Steele's
restrictions, and thus ordered further consideration and a
new order.
This cause is now before this court upon an
appeal as of right.
Podol' & Associates, Kenneth C. Podol' and
Daniel J. Gibbons, for appellee Coxson.
Buckingham, Doolittle & Burroughs, Richard A.
Hernandez, Timothy C. Campbell and Lori A. Fricke, for
appellant.
Per Curiam. R.C.4123.56(A) identifies
circumstances under which TIC can be terminated:
four
"In the case of a self-insuring employer,
payments shall be for a duration based upon the medical
reports of the attending physician. If the employer
disputes the attending physician's report, payments may
be terminated only upon application and hearing by a
district hearing officer * * *. Payments shall continue
pending the determination of the matter, however
payment shall not be made for the period [I] when any
employee has returned to work, [2] when an employee's
treating physician has made a written statement that the
employee is capable of returning to the employee's
former position of employment, [3] when work within the
physical capabilities of the employee is made available
by the employer or another employer, or [4] when the
employee has reached the maximum medical
improvement."
For reasons unknown, the parties concentrate on
the second criterion, including a vigorous debate over
whether a release that is not in writing can satisfy the
statute. The parties proceed, unquestionably, under the
premise that claimant was released to her former position
of employment. This is not the case. Dr. Steele never
released claimant to return to her former job. He said she
could do light-duty work, and DM, in turn, offered
claimant a job purportedly within those restrictions.
Claimant's compensation was, therefore, stopped
pursuant to the third criterion, not the second, rendering
much of the litigants' discussion misplaced. The statute
requires a written release only when the release is to the
Eventually, the parties refocus their arguments on
Dr. Steele's restrictions and whether the commission
properly considered them in denying TTC from January
24 through July 24, 1995. Two reasons were stated for
denial: (I) claimant's rejection ofDM's job offer, and (2)
lack of persuasive evidence of temporary total disability.
The commission's analysis of both is flawed.
In determining that DM's job was within
claimant's medical capabilities, the DHO relied
exclusively on DM's December 15, 1993 and January 14,
1994 letters. This is problematic for two reasons. First,
since these letters do not identify the position offered or
describe its duties, it is questionable whether they can be
considered offers of suitable employment.
Second, and even more important, the December
letter, in acknowledging Dr. Steele's prohibition against
repetitive bending, stooping and kneeling, defined
" repetitive' as seven to eight times in an "instance" an obviously subjective and highly ambiguous time
frame. Thus, what DM considered to be non-repetitive
could easily exceed Dr. Steele's limitation of six times per
hour.
The problem continues into the May 3, 1994 letter
and job description. Its reference to "occasional"
bending and kneeling is, again, too vague, and leaves the
door open to duties that exceed Dr. Steele's restrictions.
DM defends its offer by stressing that any
deficiency is cured by the May 3, 1994 promise to " work
with the physician to modify jobs within given
restrictions or limitations." The difficulty with accepting
this argument is that it essentially legitimizes any job
offer - no matter how inappropriate - under the guide of
later modification. As noted previously, if a job offer is
to be sufficient to stop TTC, it must be clear that the job
is indeed within claimant's restrictions.
The court of appeals sought clarity in returning
the cause to the commission for further consideration,
and we agree with this ruling. Neither the DHO (who
ignored the May 3, 1994 job description) nor the staff
hearing officer (who mentioned it only in passing)
addressed the two key questions posed by the job
description: (I) What is DM's definition of" occasional"
bending and kneeling? and (2) Does that definition
comport with Dr. Steele's restrictions? As the court of
appeals found, there are serious unanswered questions
here.
The second flaw in the commission's order is in
its rejection of Steele's C-84s as unpersuasive. The
commission based this conclusion on Dr. Steele's
deposition testimony, presumably believing that he had
repudiated his earlier C-84 declaration of an inability to
return to the former position of employment. Dr. Steele,
however, never testified that claimant could return to her
former job. He said only that claimant could return to
modified light duty, and actually reaffirmed that claimant
could not resume her previous duties.
Accordingly, the judgment of the court of appeals
is affirmed.
Judgment affirmed.
Douglas, Resnick, F.E. Sweeney, Pfeifer and
Lundberg Stratton, JJ., concur.
Moyer, C.J., and Cook, J., concur in part and
dissent in part.
Cook, J., concurring in part and dissenting in
part. I agree with the majority's affirmance of the
appellate court's decision, but with one modification. The
commission's denial ofTTC for the period beyond July
24, 1995, ought not be reconsidered. The commission
denied TTC for that period not for lack of persuasive
evidence, but for lack of any evidence of temporary total
disability. That denial should remain intact, since Dr.
Steele did not certify temporary total disability beyond
July 24, 1995. Accordingly, I would return this cause to
the commission for reconsideration of the period of
January 24, 1994 to July 24, 1995, only.
Moyer, C.J., concurs in the foregoing opinion.
salary."
Page 224
115 Ohio St.3d 224 (Ohio 2007)
874 N.E.2d 780, 2007-0hio-4920
The STATE ex rei. ELLIS SUPER VALU, INC.,
Appellant,
v.
INDUSTRIAL COMMISSION
Appellees.
OF OHIO et al.,
No. 2006-1414.
Supreme Court of Ohio
Sept. 27, 2007
Submitted May 24, 2007.
Appeal from the Court of Appeals for Franklin
County, No. 05AP-531, 2006-0hio-3014.
Beirne & Wirthlin Co., L.P.A.,
[874 N.E.2d 781)
Michael J. Schutte, and J. Stephen Wirthlin, Cincinnati,
for appellant.
Casper & Casper and Douglas W.
Middletown, for appellee Susan B. Hudgel.
Casper,
Marc Dann, Attorney General, and Eric C. Harrell
and Sue A. Wetzel, Assistant Attorneys General, for
appellee Industrial Commission.
PER CURIAM.
Page 225
{~ I} No one disputes appellee Susan B. Hudgel's
inability to return to her former position of employment.
Her employer, appellant Ellis Super Valu, Inc. ("ESV"),
offered her a light-duty position consistent with her
medical restrictions, but Hudgel declined because the
position required her to work evenings. We must
determine whether her refusal bars temporary total
disability compensation under R.C. 4123.56(A).
{~r 2} Hudgel industrially injured her right shoulder
on August 20, 2004, and a workers' compensation claim
was allowed. She was unable to return to her former
position of employment through September 22, 2004, but
was able to do light-duty work. On September 13, 2004,
ESV offered her a position within her medical
restrictions. Her work schedule would be from 3:00 p.m.
to 9:00 p.m. six days per week, which "would allow you
to work your normal number of hours at your current
{~ 3} Hudgelnormally worked the day shift five
days per week, beginning at 6 a.m. Hudgel informed ESV
on September 23 that she could not work the proposed
schedule. She later explained that the night shift was
unacceptable because she had two teenage children that
would be home alone on the nights that her husband
worked. She asked ESV whether she could work three
days and two nights instead, but received no reply.
{~ 4} On November 8, 2004, in response to
Hudgel's request for temporary total disability
compensation, a district hearing officer for appellee
Industrial Commission of Ohio ordered compensation
from August 23, 2004, through September 23, 2004, but
denied it after that date, finding that Hudgel's refusal of
ESV's light-duty offer constituted a voluntary
abandonment of employment. A staff hearing officer
reversed, finding that Hudgel had a valid reason for
refusal and, hence, did not abandon her former position
of employment. Further appeal was denied.
{~ 5} ESV filed a complaint in mandamus in the
Court of Appeals for Franklin County, alleging that the
commission had abused its discretion in awarding
temporary total disability compensation despite Hudgel's
"voluntary abandonment." The court of appeals disagreed
and denied the writ, resulting in ESV's appeal to this
court as of right.
{~r
6} We clarify at the outset that this is not a case
of voluntary abandonment. Rather, the facts of this case
raise the possibility of a different defense: refusal of
Page 226
suitable alternate employment. R.C. 4123.56(A)
prohibits the payment of temporary total disability
compensation "when work within the physical
capabilities of the employee is made available by [an]
employer." Both defenses affect a claimant's eligibility
for temporary total disability compensation, but they
derive from different compensatory theories and involve
distinct analyses.
{~ 7} Fundamental to receipt of any workers'
compensation benefits is a causal relationship between
injury and disability. Temporary total disability
compensation is no exception and is designed [874
N.E.2d 782) to compensate for the temporary loss of
earnings sustained while the claimant is unable to return
to the former position of employment due to injury. State
ex. rei. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d
42, 517 N.E.2d 533. For many years, there were three
main defenses to the payment of temporary total
disability compensation: (I) the claimant is medically
able to return to the former position, (2) the claimant's
condition is no longer temporary, and (3) the claimant's
inability to retum to the former position of employment is
not due to injury. See State ex ref. Ramirez v. Indus.
Camm.(1982), 69 Ohio St.2d 630, 632, 23 O.O.3d 518,
433 N.E.2d 586; Ashcraft.
{' 8} The defense of voluntary abandonment
derives from the last of the three. In a case of voluntary
abandonment, the claimant's inability to return to the
former position of employment is never in dispute. What
is instead always at issue is the reason for that inability.
Common to every voluntary-abandonment controversy is
the existence of two independent reasons for the
claimant's inability to return to the former position of
employment. One is medical and one is not, with the two
most common nonmedical reasons being an employment
termination or a voluntary refusal to return. The issue in
every voluntary -abandonment case is which cause was
primary and which was secondary.
{, 9} That is not the case with the defense of refusal
of suitable alternate employment. This defense does not
ask why the claimant has not returned to his former
position of employment, because the answer is inherent
in the mere fact of a job offer. There is no need to
propose alternate employment if the claimant's inability
to return to the former position is attributable to anything
other than the injury. Instead, the relevant inquiry in this
situation is why the claimant has rejected an offer to
ameliorate the amount of wages lost. This, in tum, can
involve considerations of, for example, employment
suitability, the legitimacy of the job offer, or whether the
position was offered in good faith. The causal -relation
question in this situation is different because it derives
from a different compensatory intent, which is to
facilitate the claimant's return to the work force. As
critical as compensating injured workers and their
dependents is, it is not the only goal addressed by the
workers' compensations system. Assisting a claimant's
return to gainful employment is also important, benefiting
not only the employer and employee, but society at large.
Page 227
{, lO} Unfortunately, for many years, this latter goal
was hampered by a major shortcoming in the temporary
total disability scheme: it did not accommodate claimants
who could not return to the former position of
employment but were medically capable of other work.
Unless other employment at least matched a claimant's
weekly temporary total disability benefits, claimants had
no incentive to return to the work force and often
remained unemployed rather than jeopardize temporary
total disability.
{, II} The General Assembly addressed this
problem in 1986 with major amendments to RC.
4123.56. Foremost was the creation of a new form of
wage-loss compensation that encouraged return to the
work force by paying the difference between a claimant's
former wages and the earnings in the new job. RC.
4123.56(B), now (B)(I), 141 Ohio Laws, Part I, 767. As a
further incentive to return to the work force, R.C.
4123.56(A) was amended to provide that a claimant who
was offered a job within his or her physical capacities
could not receive temporary total disability [874 N.E.2d
783) compensation ifhe or she refused that job. 141 Ohio
Laws, Part 1,766.
{,12} Given these distinct inquiries, a finding that
a claimant has unjustifiably refused an offer of suitable
alternate employment does not translate into a finding
that the claimant voluntarily abandoned the former
position of employment. In fact, they are mutually
exclusive. An offer of alternate employment would occur
only when a claimant is medically unable to return to the
former position of employment. In such a case, a finding
of voluntary abandonment could not be sustained, since a
claimant cannot voluntarily abandon a position that he or
she is medically incapable of performing. State ex ref.
OmniSaurce Carp. v. Indus. Comm.. I 13 Ohio St.3d 303,
2007-0hio-195 I, 865 N.E.2d 41.
{~r 13} In this case, all agree that the light-duty job
offered was within Hudgel's medieal ability. This is all
that R.C. 4123.56(A) expressly requires, but the statute
must be read in pari materia with the Ohio Administrative
Code provision that supplements it. Ohio Adm.Code
4l21-3-32(A)(6) defines 'Job offer" in this context as a
proposal "made in good faith." The parties debate
whether good faith existed, but contrary to their
suggestion, the commission has not addressed this issue.
Whether Hudgel exercised good faith in refusing the job
offer does not answer whether ESV exercised good faith
in extending it, which must be addressed. If ESV
consciously crafted a job offer with work shifts that it
knew Hudgel could not cover - -as Hudgel alleges and
ESV denies - -then good faith may not exist. That,
however, is a factual determination for the commission.
{, l4} The judgment of the court of appeals is
reversed, and the commission is ordered to further
consider the claim and issue an amended order.
Judgment reversed and writ granted.
MOYER, C.J., and PFEIFER, LUNDBERG
STRATTON, O'CONNOR, O'DONNELL, and CUPP,
JJ., concur.
LANZINGER, J., concurs in judgment only.
Page 297
sprain. When asked to list any medical restrictions on
Ganu's ability to work, he wrote:
Page 296
108 Ohio St.3d 296 (Ohio 2006)
843 N.E.2d 182, 2006-0hio-907
The STATE ex rei. GANU et al., Appellees,
v,
WILLOW BROOK CHRISTIAN
Appellant.
COMMUNITIES,
No. 2005-1116.
March 15,2006
Submitted Nov. 29, 2005.
Heinzerling & Goodman, L.L.C., and Jonathan H.
Goodman, for appellee Gracie Ganu.
Gibson & Robbins-Penniman and .T.Miles Gibson,
for appellant.
.TimPetro, Attomey General, and Dennis H. Behm,
Assistant Attomey General, for appellee Industrial
Commission of Ohio.
{~ 4} "I do not believe that the condition of
sprained left hip and thigh should be allowed. Therefore
based on this condition, there are no restrictions on Ms.
Ganu retuming to employment.
{~5} "Based on conditions that are not the subject
of this examination[,] I do feel that Ms. Ganu can retum
to a light duty type of employment that would be mainly
desk type ofwork[,] answering phones, etc. She would be
limited to sitting for one hour at a time and also limited to
no more than 15 minutes of standing at one time. Clearly,
she could not retum to her prior position as a nurse's aide
which would require lifting, twisting, squatting, etc. that
she is clearly unable to perform at this point. These
limitations are not however the result of the allowed
conditions of this claim."
{~ 6} Dr. Anne
physician, certified
continued to certify
Ganu was unable to
employment.
Marie Beinecke, Ganu's attending
on November 17, 2003, and
during the relevant periods, that
retum to her former position of
{~7} On February 12, 2004, Willow Brook offered
Ganu a light-duty job based on Dr. Holzaepfel's
restrictions. Its proposed "Agreement for Temporary
Light Duty Program Classification" stated:
PER CURIAM.
{~ I} This is an appeal from the grant of a writ of
mandamus ordering the Industrial Commission of Ohio to
vacate an order terminating temporary total disability
compensation. We affirm.
[843 N.E.2d 183)
{~ 2} On October 23, 2003,
appellee Gracie Ganu was injured while lifting a patient
at an extended-care facility operated by appellant,
Willow Brook Christian Communities. A workers'
compensation claim was allowed for "sprain hip and
thigh, left." Ganu then requested temporary total
disability compensation, and Willow Brook responded by
continuing wages in lieu of compensation, which is
statutorily acceptable.
{~ 3} On December 18, 2003, the Industrial
Commission of Ohio ordered that Ganu's claim be
amended to include "left hip sprain and lumbar sprain."
Approximately one month later, Ganu was examined at
Willow Brook's request by Dr. Christopher Holzaepfel.
Dr. Holzaepfel did not accept the allowance of "left hip
sprain" and opined that Ganu did not sustain such an
injury as a result of the October 23, 2003 accident. His
report also did not refer to the allowed lumbar
{~ 8} "In accordance with the restrictions and
limitations provided by your treating physician as a result
of your work-related injury, we are offering you a
position under the Light Duty Program (LDP). Your
duties will include those detailed on the attached Job
Description. Please be reminded that your physician does
not want you to:
{~9} "Lift more than 10 pounds
{~ 10} "Stoop
{~ II} "Bend
{~ 12} "Stand for a prolonged period of time
{~ 13} "Sit for a prolonged period of time.
{~ 14} "
***
{~ 15} "This agreement shall be in effect until such
time as the physician feels that you are physically capable
of resuming your regular work, and for a period not to
exceed 30 days from the date of this agreement."
{~ 16} The accompanying job description, titled
"LPD Job Description and Release," listed only Ganu's
lifting restriction. It specified her new duties as:
listed restrictions and claimant's refusal to accept [the]
offer precludes temporary total benefits as of 02117/2004.
{~17} "I) Feed breakfast and lunch in AC dining
{~ 34} "The claimant stated [that] her physician
reviewed the job offer and told her she couldn't do this
job. However, the claimant did not submit documentation
of that opinion[;] therefore, there is no independent
verification that claimant's doctor stated this job offer was
beyond claimant's capacity."
room
{~ 18} "2) Fill out AC dining room meal intake
book
[843 N.E.2d 184[
{~ 19} "3) Stock hall linens cart
{~35} Further appeal was refused.
{~20} "4) Stuff medical charts with forms
{~21} "5) File lab work
{~ 22} "6) Check resident Identification Bands to
ensure that all residents have one on
{~23} "7) Stock shower rooms
{~24} "8) Nail care for all residents
{~ 25} "9) Check sharp containers in men's room
and each shower room
{~r26} "10) Tidy wheelchair bay area--place soiled
linens in appropriate bins
{~27} "II) Clean wheelchairs
{~ 36} Ganu filed a complaint for a writ of
mandamus in the Court of Appeals for Franklin County.
The eourt of appeals, through its magistrate, found that
the commission abused its discretion in terminating
compensation. It found that Dr. Holzaepfel's report could
not properly form the basis of a good-faith job offer
because he did not consider all allowed conditions. It also
held that the enumerated job duties did not meet the
speeificity requirements of State ex reI. Coxson v. Daily
Mart Stores of Ohio, Inc. (2000), 90 Ohio St.3d 428, 739
N.E.2d 324. Accordingly, the court of appeals issued the
writ of mandamus, ordering the commission to vacate its
order terminating Ganu's temporary total disability
compensation.
{~ 37} This cause is now Before this court on
appeal as of right.
{~28} "12) Clean residents['] closets
{~ 29} "13) Stock resident rooms with personal
items."
{~30} Ganu refused to accept this offer, prompting
Willow Brook to seek termination of compensation under
R.C.4123.56(A). A commission staff hearing offieer
found in Willow Brook's favor:
{~ 31} "[T]he employer submitted a written light
duty job offer to the claimant that was to begin on
02/17/2004.
The claimant never responded to this job
offer. The job offer was based on the work restrietions
reeommended by an independent physician evaluation
performed on 01114/2004.
{~ 32} "After reviewing the job offer, its
restrictions, and the duties of the job offer, the Staff
Hearing Officer finds that this was a good faith job offer
within the restrictions recommended by the 01114/2004
evaluation and claimant's refusal to accept this job offer
bars her entitlement to temporary total benefits from
02117/2004 forward.
{~ 33} "Claimant's counsel raised concerns that
some of the job duties were beyond claimant's
restrictions. However, based on testimony of Ms. Frey,
on behalf of the employer, that modification would be
made to specify job duties such that all job duties would
be in accordance with all restrictions, the Staff Hearing
Officer is satisfied that this job offer did comply with the
{~ 38} R.C.4123.56(A)
and Ohio Adm.Code
4121-3-32 prohibit the payment of temporary total
disability compensation after a claimant has refused a
good-faith written offer of suitable employment, i.e.,
work within claimant's medical capacities. Ganu did not
accept Willow Brook's light[843 N.E.2d 185] duty job offer. Thus, the legitimacy of
this job offer will determine whether the commission
abused its discretion in denying temporary total disability
compensation. The court of appeals found that the job
offer was unacceptable, and we affirm its judgment.
{~39} Willow Brook's job offer was based on the
report of Dr. Holzaepfel, who examined Ganu on Willow
Brook's behalf. Dr. Holzaepfel did not consider Ganu's
allowed lumbar sprain in addressing her physical
restrictions. This omission is fatal pursuant to State ex
reI. Richardson v. Quarto Mining Co. (1995), 73 Ohio
St.3d 358, 652 N.E.2d 1027, which declared that a
doctor's report that did not consider all allowed
conditions could not support the grant or denial of
temporary total disability compensation. It follows,
therefore, that such a report cannot support a job offer
upon which eligibility for such compensation hinges. A
report that cannot directly support compensation denial
should not be permitted to do so indirectly.
{~ 40} Moreover, Dr. Holzaepfel opined that the
allowed conditions of "sprain left hip and thigh" had
never occurred. This, too, is a fatal flaw. Certainly, a
physician is not required to affirm the continued
existence of an allowed condition that, in the doctor's
opinion, has medically resolved. State ex rei. Domjancic
v. Indus. Comm. (1994),69 Ohio St.3d 693, 635 N.E.2d
372. A physician, however, must accept that an allowed
condition once existed and not disavow its initial
allowance as Dr. Holzaepfel did here. State ex rei.
Middlesworth v. Regal Ware, Inc. (2001), 93 Ohio St.3d
214,754 N.E.2d 774.
{"II41 } The court of appeals further found that the
job offer did not satisfy the requirements established in
Coxson. Coxson held that a written offer of suitable
employment must clearly identify the physical demands
of the job and, moreover, that an offer lacking the
requisite clarity could not be rehabilitated by an
employer's verbal assurances that the claimant's
limitations would be honored.
{"II42}In his report, Dr. Holzaepfel recommended
limiting Ganu to essentially desk work with prohibitions
on twisting, squatting, stooping, and bending. Lifting was
limited to no more than ten pounds. Sitting and standing
were restricted to an hour and a quarter hour,
respectively. In the "Agreement for Temporary Light
Duty Program Classification," Willow Brook loosely
described these latter restrictions as prohibitions against
"prolonged" sitting and standing.
{"II
43 } This is problematic under Coxson, where the
court was troubled by similarly ambiguous terms in a job
offer:
{"II44} "[T]he December letter, in acknowledging
Dr. Steele's prohibition against repetitive bending,
stooping and kneeling, defined 'repetitive' as seven to
eight times in an 'instance--an obviously subjective and
highly ambiguous time frame. Thus, what [Dairy Mart]
considered to be non-repetitive could easily exceed Dr.
Steele's limitation of six times per hour.
{"II45} "The problem continues into the May 3,
1994 letter and job description. Its reference to
'occasional' bending and kneeling is, again, too vague,
and leaves the door open to duties that exceed Dr. Steele's
restrictions." Id., 90 Ohio St.3d at 432-433,739 N.E.2d
324.
{"II46} The same problem exists here.
Brook's reference to "prolonged" sitting and
produces comparable concern that Willow
subjective definition of "prolonged" may not
with the actual limitations placed on Ganu.
Willow
standing
Brook's
comport
{"II47} The job duties listed on the "LDP Job
Description and Release" also invite [843 N.E.2d 186)
scrutiny. The duties to be performed by Ganu were
varied. Some of them raise questions, particularly the
stocking and cleaning responsibilities. Because only the
lifting restriction was listed on the form, the prohibitions
against stooping, bending, and standing listed on the
light-duty agreement and the ban on twisting and
squatting made by Dr. Holzaepfel may not have been
considered.
{"II48} Willow Brook maintains that any doubts
about these duties were addressed by it at the hearing.
Coxson, however, prohibits verbal qualification, and it is
immaterial that the hearing officer was persuaded by
Willow Brook's assurances. The point of COXSOIl is that a
written offer cannot be supplemented by nonwritten
promises.
{,r 49}
Thejudgment
of the court of appeals is
affirmed.
Judgment affirmed.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG
STRATTON,
O'CONNOR,
O'DONNELL
and
LANZINGER, JJ., concur.
Page 299
104 Ohio St.3d 299 (Ohio 2004)
819 N.E.2d 662, 2004-0hio-6556
The STATE ex reI. DAYTON FOODS LIMITED
PARTNERSHIP, Appellant,
v,
UNGER et al., Appellees.
No. 2004-0290.
December 15,2004.
Submitted Oct. 12,2004
[819 N.E.2d 663)
Pickrel, Schaeffer & Ebeling,
David C. Korte, Michelle D. Bach, and Salvatore A.
Gilene, Dayton, for appellant.
Jim Petro, Attorney General, and Erica L. Bass,
Assistant Attorney General, for appellee Industrial
Commission.
Casper & Casper and Megan Richards, Middletown,
for appellee Unger.
PER CURIAM.
{~I I} Appellee-claimant, Joseph Unger, was the
bakery manager for a store owned by appellant, Dayton
Foods Limited Partnership, a self-insured employer. He
was hurt on June 7, 2000, when a cabinet weighing over
100 pounds fell on him. Dayton Foods unsuccessfully
contested the resulting workers' compensation claim,
which was ultimately allowed for "left shoulder/arm
sprain, left shoulder AC arthralgia with evidence of
rotator cuff tendonitis and impingement
Page 300
syndrome." Since that time, Dayton Foods has contested
surgical treatment and temporary total disability
compensation ("TCC") at almost every turn. Facts
relating to Unger's attempts to get surgical treatment and
TCC overlap, making a strictly chronological recitation
of the facts impractical. Instead, we will set forth the facts
relating to each issue separately, bringing them together
[819 N.E.2d 664) only as they merge administratively
and judicially.
Surgical- Treatment Authorization
{~2} On December 7, 2000, Unger was examined,
at Dayton Foods' request, by Dr. Jose Chavez. Confining
his exam to what was then the only allowed
condition=left shoulder/arm sprain--Dr. Chavez did not
comment on Unger's rotator cuff. He felt that Unger's
allowed condition had reached maximum medical
improvement ("MMI") and attributed Unger's continuing
left-ann difficulties to a cervical disc condition.
{~ 3} Dr. Chavez's determination that Unger's left
shoulder sprain had reached MMI was apparently the
impetus for Dayton Foods' refusal thereafter to authorize
further treatment. From at least February 2001, Unger's
physician, Dr. Kevin Paley, suspected that Unger's rotator
cuffhad also been injured and made repeated requests for
authorization of an MRI. Dayton Foods denied those
requests.
{~4} On June 19,2001, Unger was examined by Dr.
Wayne C. Woodard. Dr. Woodard also suspeeted a
rotator-cuff injury and recommended an MRI. He also
believed that Unger had not reached MMI.
{~ 5} On June 28, 2001, appellee Industrial
Commission of Ohio held a hearing. Authorization for an
MRI followed those proceedings, and the procedure was
performed on August 14,2001. The administering doctor
concluded:
{~ 6} "A small subchondral cyst is seen in the
pos terior humeral head. No bone marrow edema is seen
to suggest bone contusion or fracture. No significant joint
effusion is noted. A type I acromion process is present.
No significant left acromioclavicular joint hypertrophy is
seen. The tendon of the long head of the biceps muscle is
in its expected location, in the bicipital groove. The
glenoid labrum is grossly intact. No rotator cuff tear is
identified. There is a 9.0 X 7.0 X 5.0 millimeter object
noted along the anterior aspect of the humeral head, the
signal characteristics of which follow those of bone,
possibly representing a loose body."
{~7} On October 18, 200 I, the administering doctor
submitted this addendum to the MRI report:
{~8) "I have been asked by Dr. Paley to review this
examination with specific attention to the possibility of
rotator cuff tendonitis rather than a tear. On further
review of the examination, there is some minimal
low-grade signal abnormality[104 Ohio St.3d 301] seen
in the mid-fibers of the supraspinatus tendon consistent
with tendonosis. This could represent mild tendonitis or
tendon degeneration."
{~9) This addendum later triggered Dayton Foods'
assertion that Dr. Paley had pressured the MRI
radiologist into finding some evidence of rotator-cuff
injury,
{~ 10} Dr. Paley's office notes from autumn 2001
recommend an arthroscopic evaluation of the shoulder, a
surgical decompression, and removal of the loose body
shown on the MRI. On October 29,2001, Dr. Paley asked
Dayton Foods to authorize these procedures.
{~ II} In response, Dayton Foods had Unger
examined by Dr. Steven Wunder on November 6,2001.
Dr. Wunder believed that surgery was unnecessary,
writing:
{~12} "It is my understanding this claim has been
recognized and allowed for a left shoulder strain, left
shoulder rotator cuff tendonitis, and left shoulder rotator
cuff tear. I believe these conditions from the industrial
injury have resolved. The MRI scan was unremarkable
for a rotator cuff tear. There was no evidence of
impingement on the MRI, and there was a type I
acromion and no AC joint hypertrophy.
[819 N.E.2d 665)
Furthermore, I do not believe that
the loose body was related to the industrial injury. Quite
clearly, there was no evidence of a bone contusion,
fracture or joint effusion to suggest trauma as the cause of
the loose body."
{~ 13} From that point, dueling medical reports
came to the forefront. On December 21, Dr. Paley
responded to Dr. Wunder's report:
{~ 14} "In reviewing Dr. Wunder's medical report, I
do not follow his line of reasoning. Dr. Wunder
accurately describes the history of the injury as well as
the subsequent care. On the evaluation by Dr. Wunder,
Mr. Unger clearly continues to be quite symptomatic.
According to Dr. Wunder's physical examination, Mr.
Unger has rotator cuff impingement signs. He also has
painful range of motion of the left shoulder. Dr. Wunder
does not adequately assess the integrity of the rotator cuff
with resisted testing.
{~ 15} "It is obvious based on the examination by
Dr. Wunder that Mr. Unger continues to be quite
symptomatic with evidence clinically of rotator cuff
tendonitis. This corresponds well with the MRI findings
that were previously obtained on Mr. Unger's left
shoulder. His examination also corresponds well with
multiple other physical examinations including that of
myself and Dr. Woodard who like myself is a Board
Certified Orthopedic Surgeon with great expertise in the
examination of shoulder injuries. I do not understand how
Dr. Wunder can state that Mr. Unger's conditions from
the industrial injury have resolved when
Page 302
he has such continued clinical findings ofleft shoulder
pain, weakness, and impingement signs.
{~16} "***
{~ 17} "I also take exception with Dr. Wunder's
assessment that the MRI does not show any evidence of a
bone contusion, joint effusion, or evidence of acute
trauma. The MRI was obtained on August 14, 2001,
which is approximately 14 months after the injury.
Anybody with any reasonable medical training should
know that an MRI obtained 14 months after an acute
injury will not show acute evidence of an injury to the
bone such as a bone contusion, fracture, or joint effusion.
Mr. Unger was found to have a large loose body within
the shoulder joint on the MRI of August 14, 2001.
Individuals do not just have loose bodies within the
shoulder. A specific injury must occur to cause a loose
body to form. Mr. Unger has no past history of problems
with the left shoulder prior to the accident of June 7,
2000. The mechanism of injury of a large shipping
cabinet falling on him could, in my opinion, be the source
of this loose body in addition to the injury to the rotator
cuff.
{~ IS} "I am quite concerned, having reviewed
many of Dr. Wunder's independent medical examinations
over the year, about the accuracy of his assessment with
regard to the injured worker. I have not had the pleasure
of reviewing an independent medical examination by Dr.
Wunder where he does not come to the conclusion where
the patient has reached maximum medical improvement.
Mr. Unger categorically has not reached maximum
medical improvement because he continues to be quite
symptomatic and has not completed care. He has failed
extensive conservative treatment and requires a surgical
procedure in order to be maximally medically improved.
Dr. Wunder's own physical examination findings support
this conclusion."
{~ 19} Dr. Wunder answered on February 5,2002:
{~ 20} "Dr. Paley appears to express hostility
towards anyone that disagrees with his opinions. Relative
to Mr. Unger [819 N.E.2d 666) or any other workers'
compensation claimant that I see, we try to follow
evidence-based medicine. The physicians that saw him at
or near the time of injury felt that his condition was
coming from the cervical spine. There was no rotator cuff
tear noted on his MRI. Dr. Paley apparently requested the
radiologist to re-read the MRI and they [sicIindicated
that there was only a minimum low-grade signal
abnormality in the mid fibers of the supraspinatus tendon
compatible with tendinosis or degeneration. This is not an
unusual finding in a 47-year-old male and would not be
considered traumatic. His MRI scan showed no evidence
of impingement nor did it document a rotator cuff tear.
{~ 21} "My opinion is unchanged after reviewing
Dr. Paley's December 21, 2001, report. The rotator cuff
was intact with resisted testing. Dr. Paley
Page 303
obviously did not read my report as I noted normal
strength around the shoulder girdle region on several
occasions. He indicated surgery was needed so that he
could return to work and be a productive member of
society. He has been able to continue to work. In fact he
worked for a year until he saw Dr. Paley.
{~ 22} "I don't believe an arthroscopic exploration
would be indicated or necessary for the patient's
industrial injury. A subacrominal decompression would
not be indicated or necessary for the allowed conditions
or his industrial injury."
{~23} On March 8, 2002, Dr. Paley followed up:
{~ 24} "I have reviewed for a second time Dr.
Wunder's physical examination and conclusions on Mr.
Unger dated November 6, 2001. Within his physical
examination Dr. Wunder does indicate that there are
impingement signs about Mr. Unger's left shoulder. He
also states that he has pain with resisted strength testing
about the left shoulder. Both of these are indicative of an
injury to the rotator cuff. I do not see how Dr. Wunder
can, therefore, conclude that the patient has a normal
rotator cuff.
{~ 25} "It is still my opinion as a Board certified
orthopedic surgeon with Fellowship training in shoulder
surgery that Mr. Unger has an injury to the rotator cuff
consisting of left shoulder rotator cuff tendonitis. This
was seen on the MRI. This should not be considered
age-related changes as discussed in Dr. Wunder's letter.
Certainly MRI findings in conjunction with clinical
findings seen on Mr. Unger's examination should lead to
the conclusion that Mr. Unger has sustained an injury to
the rotator cuff and requires the previously-requested
surgery.
{~ 26} "I would like you to know that I have no
hostility towards Dr. Wunder as alluded to in his letter. I
am, however, obligated to be my patient's advocate; and I
do not appreciate the significant delay in treatment for
Mr. Unger based on what I feel are inaccurate
conclusions by Dr. Wunder."
{~ 27} Dayton Foods had by this time denied
surgical-treatment authorization, prompting Unger to
move the commission for a hearing. The procedural
course Before the commission and court of appeals wiJI
be set forth shortly.
The TTC Controversy
{~ 28} While Dr. Paley was attempting to secure
approval for an MRI, Unger was receiving TTC. On
April 26, 2001, Unger submitted a C-84 form on which
Dr. Paley had certified that Unger's temporary total
disability would last through June 26, 2001. The next
day, Dayton Foods faxed a letter to the doctor:
{~ 29} "This letter is in response to the disability
slip that Joseph Unger submitted on April 26, 2001.
[819 N.E.2d 667]
Page 304
{~30} "We have an aggressive return to work policy and
actively attempt to return individuals to work within the
work restrictions placed upon them. It is our belief that
this policy is in the best interest of the employee as it
allows them to return to work that is within their
restrictions without losing any compensation.
{~ 31} "As such, we are requesting that you
complete and return the attached Attending Physician
Report as soon as possible.
{~ 32} "I believe we have a great opportunity to
return Joseph to work, when considering he is in a
manager's position and we have many options to consider
in adapting any restrictions."
{~ 33} Just seven days later, on May 3, 2001,
Dayton Foods sent a second fax:
{~34} "I am sending you this letter to once again
request that you complete the Attending Physician Report
for Joseph Unger that was faxed to you on April 27, 2001
* * *. Your delay in responding to this request is directly
impacting Mr. Unger's compensation.
(~35} "I want to again emphasize that we have an
aggressive return to work policy and actively attempt to
return individuals to work within the work restrictions
placed upon them. It is our belief that this policy is in the
best interest of the employee as it allows them to return to
work that is within their restrictions without losing any
compensation.
{~ 36} "When you take into consideration that his
allowed condition and/or your request for additional
conditions, all involve his left shoulder, 1 am certain that
Mr. Unger can return to work as a manager with
restrictions that allow for these conditions."
{~ 37} On May 7, 2001, Dr. Paley faxed two
documents to Dayton Foods. The first was a copy of
Dayton Foods' May 3rd fax, upon which Dr. Paley had
written the following:
(~38} "You are the one delaying compensation and
treatment for Mr. Unger--NOT ME. Kindly approve the
previously requested treatment plan. Mr. Unger probably
would have returned to work by now if you would
approve treatment." (Emphasis sic.)
{~ 39} The second document was the completed
"Attending Physician'S Report of Injury/Status" that
Dayton Foods had requested. It restricted Unger to
sedentary work but also contained the notation "off work
through 6126 until treatment approved."
{~40} Dayton Foods responded the next day:
{~41} "This letter is in response to your fax of May
7,2001.
Page 305
{~ 42} " First, we are not denying treatment to Mr.
Unger. The treatment that you are referring to can
proceed and be submitted for approval through our
medical insurance plan, Anthem.
proceed with appropriate treatment for the patient. The
patient cannot work at this time due to his symptoms and
I will extend his disability through June 26, 2001. I am
quite frustrated with the delay inappropriate [sic]
treatment for this patient. The patient could have
return[edJ to work at this time ifhis treatment had been
approved [in] a timely fashion. I will reassess the patient
in three weeks time."
{~ 55} That same day, Dr. Paley wrote to Dayton
Foods:
{~I43} "At this time, further treatment under the
workers' compensation claim cannot be approved. This is
based on the determination that Mr. Unger was at
maximum medical improvement as of the independent
medical examination of December 7,2000.
{~ 56} "I've had the pleasure of evaluating Mr.
Joseph Unger for his injured left shoulder. He continues
to be symptomatic and requires an arthroscopic
{~44} "Second, Mr. Unger can return to work as
the Bakery Manager under the restrictions you placed on
the Attending Physician's Report, faxed on May 7, 2001.
subacromial decompression of the shoulder. As you
know, numerous attempts have been made to proceed
with an MRI of the shoulder in order to amend his claim
to the correct diagnosis of left shoulder rotator cuff
tendinitis [sic). To date, all request[s] have been denied.
Until appropriate treatment is allowed for Mr. Unger I
will keep him off work. He is not able to perform
light-duty of any kind. Kindly approv[ e) treatment for
Mr. Unger. As I previously discussed with you, Mr.
Unger could have retum[ed] to work full duty if his
treatment plan had not unnecessarily been delayed."
{~ 45} "This work would require him to sit at his
desk working with his computer. His job duties while at
his desk would consist of:
{~ 46} "1. Completion of the action plan projects
given to him on April 26, 200 I.
[819 N.E.2d 668]
{~ 47} "2. He would also be
responsible for completing the weekly work schedules of
all the bakery employees.
{~ 48} "3. He would also be responsible for
scheduling all store orders in the production schedule per
order delivery requirements.
{~49} "He would also need to attend management
meetings as scheduled.
{~50} "These job requirements comply with all the
restrictions that you indicated on the 517/0 I report. The
company will comply and will require Mr. Unger to
comply with the restrictions contained within the 517/01
report.
{~I51} "Please respond back to me by Friday, May
II, 2001, indicating your acceptance of the job
modifications as outlined above." (Emphasis sic.)
{~ 52} There is no evidence that Dr. Paley
responded to this letter.
{~53} Unger saw Dr. Paley on May 24. Dr. Paley'S
notes from that visit indicate the following:
{~ 54} "The patient continues to require an
arthroscopic subacromial decompression. The patient's
caseworker refuses to allow an MRI of the shoulder. I
will submit another request for the arthroscopic
subacromial decompression and hopefully with the
independent medical examination findings we can
Page 306
{~57} Despite Dr. Paley's indication that he would
not release Unger to work until an MRI and other
treatment was authorized, Dayton Foods focused on Dr.
Paley's April 26, 2001 C-84 form that listed an estimated
retum-to-work date of June 26,2001. Unger--following
Dr. Paley's instructions--did not return to work on that
date, and Dayton Foods sent the following letter to him
the next day:
{~ 58} "This letter is to notify you that you have
failed to return to work after a leave of absence (return to
work date of June 27, 200 I).
{~59} "Company policy states that failure to return
to work after a leave of absence is considered a voluntary
quit.
{~ 60} "Also, company policy states that being
absent without reporting for three (3) consecutive
workdays is considered an automatic quit.
{~ 6l} "You must contact me by 8 AM, Eastern
Standard Time, Friday, June 29th, 2001, or you will be
subject to these policies."
[819 N.E.2d 669]
{~62} Unger was not terminated
on the 29th. Perhaps this is because a commission hearing
was held the previous day, at which an MRI was
authorized based on Dr. Paley's reports and reports by Dr.
Woodard, who concurred in Dr. Paley's findings.
{~63} On July 6, 200l--Before Unger had had an
MRI--a Dayton Foods representative sent another letter to
Dr. Paley:
{~64} "I am sending you this letter per the results of
the hearing of June 28,2001.
{~65} " First, the request for the MRI is approved.
***
{~ 66} " Second, the offer to return Mr. Unger to
work as the Bakery Manager per the restrictions you
placed on the Attending Physician's Report, faxed on
May 7, 200 I is still available.
{~67} "Again, this work would require him to sit at
his desk working with his computer. His job duties while
at his desk would consist of:
{~ 68} "I. Completion of the action plan projects
given to him on April 24, 2001.
Page 307
{~69} "2. He would also be responsible for completing
the weekly work schedules of all of the bakery
employees.
{~ 70} "3. He would also be responsible for
scheduling all store orders in the production schedule per
order delivery requirements.
{~71} "He would also need to attend management
meetings as scheduled.
{~72} "These job requirements comply with all of
the restrictions that you indicated on the 517/01 report.
The company will comply and will require Mr. Unger to
comply with the restrictions contained within the 517/01
report.
{~ 73} "If Mr. Unger's restrictions have changed,
please forward the new restrictions to me as soon as
possible. I have attached a new Attending Physician's
Report for your convenience if it is needed.
{~74} "I want to again emphasize that we have an
aggressive return to work policy and actively attempt to
return individuals to work within the work restrictions
placed upon them.
{~ 75} "Your help in this matter is deeply
appreciated. Please respond by Friday, July 13,2001."
(Emphasis sic.)
{~ 76} It is unclear whether Unger was receiving
TTC at the time Dayton Foods sent this letter, and it is
also unclear whether Unger knew that he stiJI had a job to
return to after Dayton Foods' June 29, 2001 deadline had
passed. In any event, by July II, 2001, he was living in
another state. On July 11,2001, he reported to Dr. Paley
for reevaluation. Office notes from that visit reflect the
following:
{~ 77} "HISTORY OF PRESENT ILLNESS:
Joseph is here for evaluation of his left shoulder. He has
been approved for a left shoulder MRI. He is currently
living in St. Louis, Missouri due to his financial situation.
He continues to be symptomatic with complaints ofleft
shoulder pain. He is unable to relocate back to Dayton at
this time because of his financial situation. He is
currently living with family. He has not received any
disability or back pay.
{~78} "PHYSICAL EXAMINATION: Examination
shows good shoulder range of motion but pain at the
extremes. He has positive impingement signs. He has
moderate rotator cuff weakness. He is neurologically
intact in the upper extremity and cervical neck
examination was unremarkable. He has no instability
about the shoulder. There is no evidence of infection.
There is no tenderness about the acromioclavicular joint
biceps tendon.
{~79} "* * *
{~80} "DISPOSITION AND PLAN: I would like to
proceed with MRI of the left [819 N.E.2d 670) shoulder.
At this time Joseph is unable to return to work at his
former place of employment in Dayton, Ohio due to his
financial situation. Iwould like to
Page 308
reassess the patient in three weeks time after the MRI
when he will be back in town."
{~81} Dayton Foods apparently read those notes to
mean that Dr. Paley was attributing Unger's inability to
work to Unger's relocation, rather than his injury. Dayton
Foods sent claimant this letter:
{~82} "Based upon Dr. Paley'S office notes ofJuly
II th, 200 I, you are required to report to work and
perform the duties of Bakery Director.
{~83} "It is clear from Dr. Paley's office notes that
you are now physically able to perform the duties of
Bakery Director, as outlined in the May 8,2001 letter to
yourself and Dr. Paley.
{~84} "Joe, if you do not return to work by 8 AM
on Monday, August 6th, 2001, then it shall be determined
that you voluntarily quit your position and your
employment will be terminated."
{~ 85} Unger did not respond, and on August 8,
Dayton Foods made good on its threat to terminate his
employment.
Commission
and Court of Appeals Proceedings
{~86} On July 23,2001, Dayton Foods moved to
terminate TTC "due to the treating physician's failure to
respond to light duty job offer." A district hearing officer
("DHO") denied Dayton Foods' motion on October 10,
2001:
{~ 87} "The employer argued that temporary total
disability compensation should be terminated because the
physician of record had not responded to the employer's
request to certify light duty employment. The employer
further argued that the claimant voluntarily terminated his
employment on 08/06/2001
and that the claimant is
currently receiving treatment for unallowed conditions.
{~ 88} "The physician of record's failure to
adequately respond to the self-insured employer does not
constitute a basis to terminate temporary total disability
compensation. The District Hearing Officer notes that Dr.
Paley, the physician of record, stated that claimant could
not perform any work until an MRI is performed. An
MRI was not obtained until08114/2001.
The District
Hearing Officer further notes that on C-84s dated
06114/2001
and 08/12/2001
Dr. Paley indicated that
claimant could not perform any light duty employment.
Thus, even though the employer may be able to adhere to
any medical restrictions, there is simply no evidence from
a medical provider that the claimant can return to such
work.
{~89} "Next, the employer argued that they offered
employment to the claimant on 07/26/2001
and that
claimant's failure to respond resulted in his voluntary
termination on 08/06/2001. The District Hearing Officer
disagrees. Again, the medical documentation does not
indicate that the claimant can return to
Page 309
restricted work. As such, the claimant's absence from the
work force is not voluntary, but due to the allowed
conditions in the claim.
{~90} "Finally, the employer argued that claimant
is receiving treatment for conditions not allowed in the
claim. The medical documentation that the employer
apparently relies upon was not supplied to the claim. The
District Hearing Officer has no medical documentation to
make such a conclusion. Neither the 08/1412001 MRI nor
any office notes from Dr. Paley beyond 0711112001 are
on file.
{~ 91} "Accordingly, the District Hearing Officer
orders the continued payment of temporary total
disability compensation upon the further submission of
appropriate medical evidence."
[819 N.E.2d 671)
{~ 92} A staff hearing officer
("SHO") affirmed the DHO's ruling after a November 30,
2001 hearing, with the following entry:
{~ 93} "The employer's C-86 filed 07125/200 I is
denied. It is the finding of the Staff Hearing Officer that
[Dr. Paley's] failure to respond to the employer's light
duty job offer does not constitute a basis for termination
of the claimant's temporary total disability compensation
benefits, especially when medical evidence on file
continues to clearly document the continued temporary
disability of the claimant due to the 06/0712000 industrial
injury.
{~94} "This order is based upon the medical reports
of Dr. Paley 0412612001, 0711112001, 06/14/2001,
081121200 I, and the evidence adduced at the hearing."
{~ 95} Dayton Foods appealed. While that matter
was pending, two more motions were filed: Unger moved
for surgical-treatment authorization, and Dayton Foods
filed another motion to terminate TCC, this time asserting
MMI. This motion to terminate was based on the
November 6, 2001 report by Dr. Wunder discussed
earlier.
{~ 96} On January 25, 2002, the commission
refused to consider Dayton Foods' appeal of the SHO
order denying Dayton Foods' first motion to terminate.
On April 19, a DHO ruled on Unger's motion for
authorization of surgery and Dayton Foods' motion to
terminate TCC based on MMI. Relying on Dr. Wunder's
February 5, 2002 and November 6, 2001 reports,
respectively, the DHO denied surgical-treatment
authorization and granted Dayton Foods' motion to
terminate TTC.
{~97} An SHO reversed both findings, relying on
Dr. Paley's findings:
{~98} "It is the finding of the Staff Hearing Officer
that the claimant's request for authorization for further
treatment with Dr. Paley and for orthoscopic [sic] surgery
is granted. The Staff Hearing Officer finds the reports of
Dr. Paley, dated 12/21101 and 318/02 to be persuasive in
both the claimant's need for surgery and its causal
relationship to the 6/7/00 industrial injury.
Page 310
{~ 99} "Temporary total disability compensation is to
continue from the date oflast payment to 7/4102, based
on the C-84 from Dr. Paley dated 2/11102 and 4/30102."
{~IOO} Dayton Foods' appeal of the SHO's order
was refused, and Dayton Foods initiated an action in
mandamus in the Court of Appeals for Franklin County.
The court of appeals held that Dr. Paley's December 21,
2001 report was "some evidence" relating the loose body
in Unger's shoulder to his industrial injury and that the
commission, therefore, did not abuse its discretion in
authorizing the operation.
{~ 101} Addressing TTC, the court relied on R.C.
4123.56(A) and Ohio Adm.Code 4121-3-32(A) and
stressed that it is a claimant's refusal of an offer of
suitable employment, not a doctor's, that is needed to
satisfy the statute's termination criteria. It also rejected
Dayton Foods' assertion that Dr. Paley's C-84 forms were
flawed because they prospectively certified temporary
total disability.
{~ 102} This cause is now Before this court on an
appeal as of right.
{~ 103} Dayton Foods' objection to surgery has been
the same throughout--lack of causal relationship between
the need for surgery and the industrial injury. Its
challenge to TTC, on the other hand, has alternated
between three different theories. The court of appeals,
through its magistrate, has done an exemplary job
assembling the relevant facts and addressing the
arguments accurately and succinctly. We affirm its
judgment.
[819 N.E.2d 672)
{~104} On the issue of surgery,
Dayton Foods implies that Dr. Paley is being deceptive. It
accuses the doctor of requesting surgery for an allowed
condition--tendonitis--when he really seeks to repair a
nonallowed condition--a loose body in Unger's shoulder.
This argument ignores the SHO's conclusion that the need
for surgery--even if a loose body is involved--is related to
the industrial injury. Dr. Paley's December 21, 2001
report states:
{~ 105} "Mr. Unger was found to have a large loose
body within the shoulder joint on the MRI of August 14,
2001. Individuals do not just have loose bodies within the
shoulder. A specific injury must occur to cause a loose
body to form. Mr. Unger has no past history of problems
with the left shoulder prior to the accident of June 7,
2000. The mechanism of injury of a large shipping
cabinet falling on him could, in my opinion, be the source
of this loose body in addition to the injury to the rotator
cuff."
{~ 106} This contradicts Dayton Foods' assertion
that there is no evidence causally relating the loose body
to the industrial injury. Accordingly, its argument is
rejected.
Page 311
{~ 107} Turning to TTC, Dayton Foods accuses Dr.
Paley of being uncooperative in Dayton Foods' efforts to
return Unger to light-duty work, and claims that under
R.C. 4123.56(A) this warrants termination ofTCC. This
proposition fails.
{~ 108} R.C. 4123.56(A) provides that TTC
payments "shall not be made for the period when any
employee has returned to work, when an employee's
treating physician has made a written statement that the
employee is capable of returning to the employee's
former position of employment, when work within the
physical capabilities of the employee is made available
by the employer or another employer, or when the
employee has reached the maximum
medical
improvement. "
{~ 109} Ohio Adm.Code 4l21-3-32(B) (2) (d)
supplements the statute, allowing termination "[u]pon the
finding of a district hearing officer that the employee has
received a written job offer of suitable employment."
"Suitable employment" is "work which is within the
employee's physical capabilities." Ohio Adm.Code
4121-3-32(A) (3). "Job offer" is a "proposal, made in
good faith, of suitable employment within a reasonable
proximity of the injured worker's residence." Ohio
Adm.Code 4121-3-32(A) (6).
{~ IIO} Dayton Foods never extended a light-duty
job offer to Unger, nor did it seek termination for his
failure to accept such an offer, rendering Ohio Adm.Code
4121-3-32(B) (2) (d) inapplicable. It instead maintains
that it was foreclosed from extending ajob offer by Dr.
Paley's failure to respond to its proposed light-duty
position. This assertion has three flaws.
{~ III} First, neither the Revised Code nor the
Administrative Code lists a doctor's
response to a
proposed job offer as a termination criterion. Second,
Dayton Foods' description of Dr. Paley as unresponsive is
tenuous. On April 26, 2001, Unger submitted to Dayton
Foods a C-84 form in which Dr. Paley prohibited Unger
from working through June 26. Dayton Foods refused to
accept that medical opinion and instead faxed Dr. Paley a
form asking him to list Unger's medical restrictions.
When Dr. Paley did not respond within one week, Dayton
Foods again faxed the request. This time, Dr. Paley
indicated that Unger could do sedentary work but also
wrote that Unger was "off work through 6/26 until
treatment approved."
{~ 112} Dayton Foods seized upon the possibility of
sedentary work and immediately [819 N.E.2d 673) wrote
to the doctor and informed him that in the opinion of the
Human Resources Director, Unger was medically capable
of the light-duty job that Dayton Foods had proposed.
Notwithstanding Dr. Paley's C-84 form and the
handwritten notation, Dayton Foods requested that Dr.
Paley--within the next three days--accept the Human
Resources Director's medical assessment and release
Unger to the light-duty job. Dr. Paley, understandably,
did not answer.
Page 312
{~ 113} Contrary to Dayton Foods'representation, Dr.
Paley answered Dayton Foods'requests promptly. He
simply refused to allow himself to be bullied into forcing
Unger back to work prematurely. Again, Dr. Paley had
stated from the beginning that Unger was medically
incapable of any work through June 26. The alleged
factual basis for Dayton Foods' legal position does not,
therefore, withstand scrutiny.
{~ l14} Third, Dayton Foods' position would
penalize Unger, by terminating his TTC, for a dispute
over which he has no control. The quarrel here is between
Dr. Paley and Dayton Foods. Unger should not be put in
the crossfire merely because he heeded his doctor's
instructions.
{~ liS} Lastly, Dayton Foods mounts a technical
challenge to Dr. Paley's C-S4 forms, criticizing his
prospective certification of disability. C-S4 forms, of
course, are designed to accommodate prospective
certification and are often used this way, particularly
where TTC is ongoing.
{~ 116} Dayton Foods' complaint appears to be with
Dr. Paley's practice of certifying disability for a
two-month period, with a doctor's examination scheduled
in the middle. For example, Dr. Paley saw Unger on
April 16, 2001. He prepared the C-S4 form on April 26,
reporting that Unger was unable to work from that date
through June 26. The C-S4 form also indicated that
Unger's next scheduled appointment was May 16. Dayton
Foods apparently believes that the disability should only
have been certified through May IS with any disability
finding thereafter contingent on the results of the May 16
visit.
{~ 117} Dayton Foods' plan, however, could
interrupt what should be continuous compensation. Using
the dates in the example, Dayton Foods' proposed method
would allow Dr. Paley to verify disability only through
May 15. Then, presumably after the May 16 exam, the
doctor--if Unger was still disabled--would file a new
C-S4 form extending the date of disability. Unfortunately,
this scheme does not factor in form preparation and
processing time, which could result in a break in
compensation. This explains why many doctors do
exactly as Dr. Paley does: estimate a period of disability
and schedule an interim visit to estimate further
extension. Dayton Foods has cited no legal authority to
support changing this traditional method of completing
C-S4 forms. We, therefore, decline Dayton Foods'
invitation to change it.
{~ liS} We affirm the judgment
appeals.
of the court of
Judgment affirmed.
MOYER,
C.J.,
RESNICK,
FRANCIS
SWEENEY,
SR.,
PFEIFER,
O'CONNOR
O'DONNELL, J1., concur.
E.
and
LUNDBERG STRATTON, J., concurs in judgment
only.
{~ 3} In January
while working
Page 231
(" APV"
131 Ohio St.3d 231 (Ohio 2012)
weeks before retuming
sprain,
2007, Gullotta
). His industrial
injured
claim was allowed
and he received
his back
Akron Paint & Vamish,
for appellee,
TTD compensation
to light-duty
Inc.
for lumbar
for several
work consistent
with
his doctor's medical restrictions.
963 N.E.2d
1266, 2012-0hio-542
The STATE
ex rei. AKRON
Page 232
& VARNISH,
PAINT
INC., Appellee,
{~ 4} On March
physician,
v,
14, 2007,
Dr. Stephen
physical capabilities
GULLOTT
restrictions.
A et aI., Appellants.
then treating
found
had improved
Based
that Gullotta's
and reduced his work
on the new, lesser restrictions,
began to increase
APV
Gullotta's job duties. Gullotta saw Dr.
Lohr again on April
No. 2010-0636.
Gullotta's
A. Lohr,
11,2007,
but his work restrictions
remained the same.
Supreme
Court
of Ohio.
{~5} Gullotta complained
February
15,2012
Summers,
Submitted
Richard
to his employer about his
job duties, and on April 16,2007,
Nov. 15,2011.
L. WiIliger
Co., L.P.A.,
and Richard
a vice president
another
position
Gullotta
told Summers
also
he met with Michael
at APV. Summers offered him
within
his physical limitations.
that he did not want
L.
either, and he immediately
R. Fulton, and
request to the commission
that job
resigned and left the premises.
WiIliger, Akron, for appellee.
{~6} Four months later, Gullotta submitted
Philip
Philip
J.
J. Fulton
Fulton,
Law Office, Ross
Columbus,
for
appellant
Guiseppe
Gullotta.
period
April 24 through
hearing
officer
November
denied
the
Gullotta had voluntarily
Michael DeWine,
Waterman
for appellant Industrial
[963 N.E.2d
General, and Gerald H.
Commission
1267]
{~ I}
Industrial
Attorney
and Elise Porter, Assistant
Attorneys
of Ohio.
LUNDBERG
Appellants,
Commission
Guiseppe
Gullotta
of right from ajudgment
of Appeals ordering
vacate
its order
compensation
of July
16, 2008,
for temporary
The court of appeals determined
abused its discretion
based
on
new
commission's
the
of the Franklin
awarding
to
Gullotta
(" TTD" ).
that the commission
had
when it awarded TTD compensation
and
changed circumstances
previous
order of November
from
the
Gullotta
did
the reasons
not
present
commission's
exercise
R.C. 4123.52
and that Gullotta
TTD compensation
set forth,
evidence
of continuing
we hold
to
was ineligible
for the period requested
that
justify
jurisdiction
the
under
to receive
because
his
injury was not the reason that he could not return to his
former position
of appeals
of employment.
correctly
abused its discretion
concluded
Consequently,
the court
that the commission
when it awarded TTD to Gullotta.
Facts and Procedural
History
a
different
for the
A district
concluding
that
his employment
from
the
and
workforce.
On
the staff hearing officer vacated that
his industrial
return
had
reason.
The
staff
hearing
officer
that the period of disability for which Gullotta
was requesting
compensation
to his light-duty
alternative
was not causally related to
injury, but rather was due to his refusal
job
employment
The staff hearing
was medically
employment
or to accept
unable
to retum
noted
by APV.
that Gullotta
to his former position
at the time he quit, so his resignation
not be termed a voluntary
abandonment.
29,2007
{~ 7}
In
March
2008,
of
could
Gullotta did not
order became final.
Gullotta's
hypertrophy.
As a result, Gullotta filed a new motion for
physician,
along
with
a report
Dr. Brent A. Ungar.
of
was
allowed
benefits
aggravation
claim
additionally
TTD
for
to
the suitable
that had been offered
officer expressly
appeal, and the November
29, 2007, that
denied TTD benefits.
{~ 2} For
request,
abandoned
himself
29,2007,
determined
), have
the commission
total disability
removed
November
for
J.
and
of Ohio (" commission"
filed an appeal
thereby
4,2007.
order and entered a new order, still denying benefits, but
STRATTON,
County
Court
General,
another
for TTD compensation
from
preexisting
his treating
A district hearing officer
denied the request on the basis that Gullotta had refused a
light-duty
job
offer and that he had failed
evidence that his additionally
to present
allowed medical condition
resulted in any different work restrictions.
[963 N.E.2d
hearing
determined
condition
1268]
officer
that
was
{~8} On July 16,2008,
reversed.
The
staff
Gullotta's
newly
evidence
of
new
hearing
a staff
officer
allowed
medical
and
changed
circumstances. The hearing officer determined that
Gullotta's medical condition had worsened and that this
change warranted payment ofTTD compensation for the
period November 5,2007, through May 16,2008. The
staff hearing officer emphasized that the commission's
previous order of November 29,2007, had determined
that Gullotta's resignation in April 2007 was not a
voluntary abandonment of employment that would
preclude future TTD benefits, since he was unable to
return to his former position at the time.
{~ 9} APV filed a complaint in mandamus in the
court of appeals, alleging that the conunission had abused
its discretion. The matter was referred to a
Page 233
magistrate, who agreed that the commission had abused
its discretion when it relied on the additionally allowed
medical condition as a new and changed circumstance
since the previous order of November 29, 2007. Instead,
the magistrate concluded that Gullotta had not submitted
evidence that would justify renewed TTD in light of his
previous refusal of the work made available by APV
within his physical capabilities. The magistrate further
concluded that even if there were medical evidence that
Gullotta's condition had worsened since his resignation,
he " has lost no wages during the period of claimed
disability for which he can be compensated."
{~ 10} The court of appeals adopted the magistrate's
findings. The appellate court issued a writ of mandamus
ordering the commission to vacate the July 16, 2008
order and to enter an order denying TTD compensation.
Standard of Review
{~ II} " For mandamus to issue, it must be
demonstrated that: (I) the relator has a clear legal right to
the relief requested; (2) respondents are under a clear
legal duty to perform the acts requested; and (3) relator
has no plain and adequate remedy at law." State ex rei.
Stafford v. Indus. Comm., 47 Ohio St.3d 76, 77-78, 547
N.E.2d 1171 (1989). The relator has the burden to show
that the commission abused its discretion by entering an
order that is not supported by any evidence in the record.
State ex rei. Bradley v. Indus. Comm., 77 Ohio St.3d
239,242,673 N.E.2d 1275 (1997); State ex rei. Hutton v.
Indus. Comm., 29 Ohio St.2d 9, 278 N.E.2d 34 (1972).
Legal Analysis
{~ 12} " A temporary total disability is one that
prevents a return to the former position of employment."
State ex reI. Johnson v. Rawac Plating Co., 61 Ohio St.3d
599,600,575 N.E.2d 837 (1991). Compensation for TTD
terminates when the employee returns to work, is
medically capable of returning to work, or has reached
maximum medical improvement. R.c. 4123.56(A).
Compensation for TTD is also barred when" work within
the physical capabilities of the employee is made
available by the employer or another employer." Id.
{~ 13} If an employee's TTD compensation is
terminated,
the employee
may seek renewed
compensation if the employee again becomes temporarily
totally disabled. Id. In such a case, the commission may
exercise continuing jurisdiction and may modify or
change its former findings or orders when justified. R.C.
4123.52(A). That is, the conunission may reopen the [963
N.E.2d 1269] issue of eligibility for TTD compensation
if there are new and changed circumstances.[l]
Page 234
{~ 14} At issue here is the commission's July 16, 2008
order, in which a staff hearing officer granted Gullotta
TTD compensation for a period of time after he left APV.
We review the appellate court's decision that the
commission improperly exercised continuing jurisdiction
in light of its prior order on November 29,2007.
{~15} In the July 16,2008 order, the staff hearing
officer expressly relied on Gullotta's additionally allowed
medical condition as evidence of new and changed
circumstances justifying the exercise of continuing
jurisdiction. The hearing officer stated that this change
was a worsening of Gullotta's medical condition that
warranted the payment ofTTD compensation. Regarding
the commission's prior order of November 29, 2007, the
staff hearing officer stated that Gullotta had quit a
light-duty job that had been within his medical
restrictions, but that this resignation did not amount to a
voluntary abandonment, because he had been unable to
return to his former position at the time he resigned.
{~ 16} The court of appeals agreed with the
magistrate's conclusion that Gullotta had not presented
evidence of new and changed circumstances from the
November 29, 2007 order denying TTD compensation.
The magistrate further concluded that even if the medical
evidence submitted showed new and changed
circumstances for the purpose of continuing jurisdiction,
it " cannot alter the previously determined fact that
claimant has no job to retum to" as a result of Gullotta's
unjustified refusal to accept the other light-duty work
offered.
{~ 17} We agree. Although the worsening of an
existing medical condition or a newly allowed medical
condition often serves as new and changed circumstances
justifying the exercise of continuing jurisdiction to
modify a previous order, seeState ex rei. Bing v. Indus.
Comm., 61 Ohio St.3d 424, 427,575 N.E.2d 177 (1991);
State ex rei. Josephson v. Indus. Comm., 101 Ohio St.3d
195,2004-0hio-737, 803 N.E.2d 799, in this case, the
previous order denying TTD was not based on medical
evidence but rather on the statutory bar of compensation
when a claimant unjustifiably refuses light-duty work
made available by the employer.
{~ 18} Here, Gullotta presented no evidence that his
employment situation had changed. With no loss of
wages, an award ofTTD compensation is not warranted.
State ex rei. Glenn v. Indus. Comm., 122 Ohio St.3d 483,
2009-0hio-3627, 912 N.E.2d 592, ~ 7 (the purpose of
TTD benefits is to compensate for loss of earnings).
Thus, the commission abused its discretion when it
exercised continuing jurisdiction and ordered TTD
compensation.
{~ 19} Gullotta admits that his prior request for
TTD benefits was barred by his refusal to accept a
suitable job. Nevertheless, he argues that the additionally
allowed medical condition presented new physical
restrictions and that APY did not offer alternative
employment consistent with his new physical restrictions.
He contends that APY must make a new good-faith offer
of employment taking
Page 235
into account his new work restrictions caused by the new
condition— one that was recognized after he no
longer worked at APY.
{~ 20} When Gullotta resigned from APY, his
employer had placed him in a [963 N.E.2d 1270)
light-duty posiuon consistent with his medical
restrictions. When he complained about those duties,
APY made available another light-duty position similarly
consistent with his medical restrictions as they then
existed. Gullotta refused both positions. The additionally
allowed medical condition, recognized since his
resignation, does not change the fact that Gullotta
unjustifiably refused light-duty work in April 2007.
{~21} Thus, we agree with the court of appeals that
the commission abused its discretion when it determined
that there was evidence to support a finding of new and
changed circumstances since the November 2007 order.
Nothing had changed that would affect the finding in that
order that Gullotta had unjustifiably refused to do his
light-duty job and also refused his employer's offer of an
alternative light-duty position. He presented no evidenee
of circumstances, new or changed, that would
demonstrate a loss of wages as a result of TTD. The
commission abused its discretion when it exercised
continuing jurisdiction. Thus, we affirm the judgment of
the court of appeals.
Judgment affirmed.
O'CONNOR, C.I., and PFEIFER, O'DONNELL,
LANZINGER, CUPP, and McGEE BROWN, JI., concur.
Notes:
[1] The other prerequisites for exercismg continuing
jurisdiction are fraud, clear mistake of fact, clear mistake
of law, and error by an inferior tribunal. State ex rei.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459, 692
N.E.2d 188 (1998).
Case Law Update
October 5, 2012
Presented By:
Jay Sallee
Chris Benintendi
Case Law Update: “The Fastest
25 Minutes in Workers’ Compensation”
| www.dinsmore.com
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Presenters
Christopher A. Benintendi, Esq.
Ci i
Cincinnati
ti ^ 513
513.977.8157
977 8157
chris.benintendi@dinsmore.com
Jay L. Sallee, Esq.
jay.sallee@dinsmore.com
What is Work?
State, ex rel. McBee v. Indus. Comm. (Supreme Court)
Facts:
The claimant received TT from October 30, 2004 –
March 9, 2006.
During this time, the claimant helped his wife with
her business but he was not “paid.”
IC found that claimant’s activities constituted “work”
and TT should not have been paid.
IC also found that claimant committed fraud by
submitting C-84s during this time.
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Holding
“Work” is generally considered to be labor
exchanged for pay
pay.
Exception: unpaid activities that directly
generate income for a separate entity can be
considered work for TT eligibility purposes.
Fraud requires a knowing misrepresentation of a
material fact.
Court found overpayment but no fraud since
claimant was unaware that his unpaid activities
could be considered work.
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What is Sustained Remunerative
Employment?
State ex rel. v. McNea v. Indus. Comm. (Supreme Court)
Facts:
 Claimant, a cop, was awarded PTD benefits as of August
25, 2004.
 Claimant was being investigated for illegal sale of
narcotics.
 Between October 1, 2005 – December 23, 2005, the
claimant made four sales to informants, netting $6,200.
 Claimant pled guilty and was incarcerated on September
4, 2007.
 BWC requested termination of PTD benefits and
overpayment.
| www.dinsmore.com
Holding
PTD not eligible for incarcerated claimant.
C t ffound
Court
d an overpaymentt because
b
claimant
l i
t
was engaged in “sustained remunerative
employment” as far back as October 1, 2005.
Remunerative because the claimant was well
compensated.
Court
C t found
f
d that
th t any “ongoing
“
i pattern”
tt ” off activity
ti it
can be categorized as sustained activity.
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What is Cause of Psych Condition?
Armstrong v. John R. Jurgensen Co. (Court of Appeals)
Facts:
 A van traveling at high rate of speed struck claimant’s
fully-loaded dump truck from the rear.
 Claimant sustained physical injuries and the van driver
died.
 The claim was allowed for the physical injuries and later
amended for PTSD.
 Employer appealed to court arguing that PTSD did not
arise from his physical injury as required by R.C.
4123.01(C)(1).
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Holding
The trial court found that the claimant’s physical
injuries were not the cause of the PTSD but the
event itself caused the condition.
The court rejected the claimant’s argument that
a psychiatric condition need only to be
contemporaneous with a physical injury.
Ohio Supreme Court has accepted appeal.
appeal
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Does Toe to Thumb Equal Scheduled Loss?
State ex rel. Mast v. Indus. Comm. (Court of Appeals)
Facts:
 Claimant sustained traumatic amputation to left thumb,
left index finger and left long finger.
 Claimant was awarded a scheduled loss of left hand
since she lost “two or more digits” on the same hand.
 Claimant underwent left-great-toe-to-left-hand transplant
which was successful.
 Claimant requested loss of use of left great toe.
 IC denied finding that there was the loss of only one of
these digits due to transplant.
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Holding
The Appellate Court held that claimant was
entitled to loss of great left toe
toe.
Court distinguished other cases that supported
denial.
Court noted that claimant was not compensated
for loss of thumb because she had also lost
another two fingers.
fingers In other words
words, she would
have been entitled to loss of hand award even if
thumb not injured.
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Going and Coming
Gregory Woodard v. Cassens Transport (Decided September 4, 2012, 3rd App. Dist)
Facts:
 Woodard worked as a car hauler for Cassens. Home terminal is in Marysville, Ohio.
 5-6 days a week, on road delivering new cars to dealerships throughout Midwest, Eastern
and Southern part of country.
 Paid mileage and for time loading and unloading the truck.
 Traveled approximately 100,000 miles/year.
 Cassens required by union agreement to furnish lodging when drivers need to rest (per
Federal law).
 Cassens also pays for gas – but does not pay for food, drink, entertainment or other
expenses
expenses.
 Woodard takes mandatory rest time in Lafayette, Indiana per instructions from Cassens.
 Around 2:00 a.m., Woodard wakes up to use bathroom and slips and falls injuring his left
knee (acute left knee sprain).
 Woodard files workers’ compensation claim alleging he was in course and scope of
employment at time of injury.
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Holding




DHO: Allowed claim – In course and scope
SHO: Allowed claim – In course and scope
Court of Common Pleas: Allowed claim – In course and scope
A
Appeals
l C
Court:
t T
Two Part
P t Test
T t
 In course of employment = performing a required duty at the time – activity
consistent with contract of hire and logically related to the employer’s
business
 Arising out of employment = a causal connection to the employment
considering (1) proximity of the scene of the accident to the place of
employment; (2) degree of control the employer had over the scene; and,
(3) the benefit the employer receives from injured worker being at the
scene.
 Woodard slipped and fell in the bathroom of the hotel while he was
off-duty
ff d
and
d engaged
d iin a “hi
“highly
hl personall act,”” not iincident
id
to hi
his
employment.
 Woodard was on a personal mission not arising out of his employment and
not covered by workers’ compensation.
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Price v. Goodwill (Decided February 18, 2011, 5th App. Dist)
Facts:
 Price injured while traveling from her home to a training
facility in Akron.
 Price’s usual place of employment was in Mansfield.
 Made the trip for training 2-4 times per year.
 Left her home and proceeded directly toward Akron on
St t Route
State
R t 30 when
h she
h was struck
t kb
by a ttractor
t trailer
t il
and injured.
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Holding
 DHO: Allowed claim.
 SHO: Allowed claim.
 IC Hearing: Denied claim – Fixed situs employee subject
to the going and coming rule.
 Court of Common Pleas: Denied claim - Fixed situs
employee subject to the going and coming rule.
 Appeals Court:
 Fixed situs employee is one whose substantial employment
duties commence only after arriving at a specific and identifiable
work place designated by her employer.
 Can
C b
be assigned
i
d tto diff
differentt work
k sites
it weekly,
kl monthly
thl or even
daily.
 Employee not on a “special mission” for training that would make
her travel an exception to the going and coming rule.
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Wage Calculations
State, ex rel. Warner v. Indus. Comm. (Decided March 22, 2012, Ohio
Supreme Court)
Facts:
 For 52 week prior to injury, Warner had worked for 30 weeks and
unemployed for 22 weeks due to seasonal layoff.
 Warner proposed 2 methods to calculate AWW:
(1)
Exclude the 22 weeks unemployed and divide previous 52
weeks of wages by 30; or
(2)
Include the amount received in unemployment in the
previous 52 weeks of wages.
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Holding
 SHO rejected both proposals (22 weeks of seasonal
unemployment were a lifestyle choice and should not be
excluded and unemployment benefits were not “wages” to be
included in calculation)
calculation).
 Court of Appeals (Mandamus) – should include the amount of
the unemployment compensation received because it is
taxable income.
 Ohio Supreme Court: Weeks can only be excluded if the
unemployment was beyond Warner’s control
 Remanded to determine whether he was searching for work during
period of unemployment and whether the unemployment was
beyond his control.
 Reversed Court of Appeals and determined that the amount of
unemployment compensation received should never be included
(i.e. even if taxable, unemployment is not wages).
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Substantial Aggravation
Smith v. Lucas County (Decided March 31, 2012, 6th App. Dist)
Facts:
 December of 2006, Smith slipped and fell on wet floor resulting in
allowed conditions of contusions to various body parts and sprains
of thoracic and lumbar regions.
 February of 2007, Smith moves to add “aggravation of pre-existing
variant of Chiari malformation” to her claim.
 Chiari condition discovered by an MRI performed after surgery.
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Holding
DHO – Denied the requested condition.
SHO – Denied the requested condition stating that
the Chiari malformation was just an incidental
finding on the MRI and not related to the injury.
Court of Common Pleas – Denied Smith’s appeal.
Court of Appeals – Denied Smith’s appeal.
There was no testing or diagnostic procedure to document
the condition prior to the injury.
Objective evidence of substantial aggravation must be
presented on a “before-and-after
before and after basis.
basis ”
Ms. Smith failed to provide any records or a statement
from her prior treating physician establishing her condition
before the injury.
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Questions?
Christopher A. Benintendi, Esq.
Ci i
Cincinnati
ti ^ 513
513.977.8157
977 8157
Jay L. Sallee, Esq.
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2012 Ohio Workers’ Compensation Case Law Update
I. Permanent Total Disability (PTD)
A. State ex rel. Radko v. Indus. Comm. (10/18/11), 2011-Ohio-5363
Claimant was injured in 2006 and claim was allowed for numerous conditions including
aggravation of pre-existing disc displacement at L4-5, L5-S1 and major depression, severe. In
2009, the claimant filed an application for PTD. At that time he was 62, had an 11th grade
education in Russia, did not have a GED, could read and write, but not well, and could perform
basic math. He had also been granted SSD. His application was supported by his treating
physician who opined he was permanently disabled.
The IC examining doctor found the claimant capable of sedentary work. A second report,
presumably obtained by the employer, placed various restrictions on claimant but assessed only
an 8% PPI. Dr. Howard examined the claimant on his psych condition who found he could
perform work at the low to moderate stress range. Dr. Tosi also examined claimant and
concluded he had an 18% PPI for the psych condition, but could work with no limitations.
A vocational evaluation from Dr. Beal Lowe noted the claimant could not read or write
English, and that he was able to function at the job with the employer of record as a line operator
only because he got help from several Russian speaking co-workers and supervisors. The
vocational expert concluded the claimant was precluded from successful vocational or
educational rehabilitation and was PTD.
A second VE named William Darling opined that his age (62) would not be an asset to
reemployment, but noted there were employers specifically looking to hire employees in this age
group. He also concluded his education would not be a barrier to reemployment as he should
retain the ability to perform entry level unskilled and semi-skilled tasks. Even though his
relevant past work was only with the employer of record as a line operator, Dr. Darling felt he
might need a period of adjustment or on the job training for any new position.
The PTD application was denied. The SHO found he was capable of sedentary work, and
based on Dr. Howard and Tosi, he was capable of sustained remunerative employment. The
SHO addressed the non-medical disability factors noting the equivalent of a high school
education in a foreign country, recent work of a semi-skilled nature which he can no longer
physically perform and with do not provide transferable skills. His age is a slightly negative
factor as it would, to a minor degree, interfere with his ability to acquire new skills. His prior
work experience shows he had an excellent attendance record, but he cannot do the job he was
doing, so this is a neutral factor in evaluating re-employment potential.
As for his potential language barrier, the SHO noted that both Dr. Howard and Dr. Tosi
commented that he was not fluent in English. The SHO said at the hearing the claimant thought
he was more fluent in English when he successfully sought citizenship, but that it had gotten
worse in recent years. The SHO thought it might be significant that he had suffered a stroke in
2007, and noted that no physician had commented on that with respect to his psychological status
or cognitive function.
The SHO found that there are a number of jobs within his physical, psychological, and
intellectual capacities, but for his lack of facility with English. But, he has not demonstrated that
he cannot learn to use the English language successfully, and indeed had successfully functioned
in an English speaking city for 10 years. So, his lack of facility of the English language is not a
2
bar to his re-employment potential. He could perform entry level clerical positions, lot attendant
positions, self-service cashier positions, and generally other sedentary entry level work.
On the claimant’s application for reconsideration, the Commission corrected the SHO’s
erroneous finding that he claimant had performed semi-skilled work, noting that he had been
employed as an unskilled line operator. But the Commission went on to find that at age 62, he
has a number of potential work years available to him, but his age might be a negative factor in
learning new work skills and adapting to new work environments. But, of course, age alone is
not a basis to award PTD. The Commission found that his education in a foreign country
provided the same capacity to acquire skills as a high school education obtained in this country,
and the claimant is limited only by his lack of proficiency in the English language. But, since the
claimant had not undergone any vocational retraining or educational training to enhance his
ability to learn English, he has not met his obligation to improve his employment potential. So,
PTD is denied.
B. State ex rel. Cinergy Corp. v. Heber (10/4/11), 2011-Ohio-5027.
Claimant was injured in 1970 while working for Cinergy/Duke Energy. He retired from
there in 1989, and did not work after that. In 2008 he filed for PTD. The issue of his retirement
was raised at the PTD hearing and the SHO noted that the Claimant testified he retired because
of his injury. However, in granting the PTD, the SHO made no determination whether the
retirement was voluntary or involuntary.
Cinergy filed a mandamus action, arguing the Commission abused its discretion by
granting PTD without first ruling on the voluntariness of the Claimant’s decision to retire. The
3
Court of Appeals granted a limited writ vacating the Commission decision and ordering the
Commission to reconsider the matter. The Claimant appealed to the Supreme Court.
The Court held that the character of a claimant’s retirement is critical to a PTD analysis.
The Court rejected the Claimant’s argument that the SHO did consider it by her reference to the
retirement and the Claimant’s testimony that he retired because of his injury. The Court found
that did not constitute an affirmative determination on the character of the retirement, and that
the Court of Appeals was correct to order the Commission to further consider the matter.
Of interest is the Court’s discussion of an implication in the Court of Appeals decision
that the only way a claimant could prove the retirement was injury induced was by submitting
medical evidence of his condition contemporaneous with the time of retirement, citing OAC
4121-3-34(D)(1)(d). The Supreme Court rejected that interpretation of the code, saying that the
code section only says if such medical evidence is submitted, it must be considered. But, the
Court noted that there may be other evidence that substantiates the connection between the injury
and the decision to retire.
State ex rel. Franklin Cty. Bd. Of Commrs. v. Indus. Comm. (1/26/12), 2012 –Ohio-279
Franklin App. No. 10AP-1016.
Claimant filed for PTD. One of the physician reports stated that surgery could improve
claimant’s condition, but that claimant declined surgery based on her medical history and age.
The IC granted PTD and the employer filed a mandamus action.
The employer argued that the claimant’s refusal to undergo surgery that could have
improved her condition precluded PTD. They compared it to refusal to engage in vocational
rehabilitation, arguing that the claimant was not taking advantage of all avenues of medical
4
recovery. The employer also argued that the failure to have the surgery was the reason the
claimant could not engage in vocational rehabilitation.
The Court rejected that argument, pointing out that OAC 4121-3-34(D) sets forth the
grounds for denying PTD and refusing surgery was not one of them. The Court noted that even
if the surgery improved claimant’s condition, it does not mean the claimant would then be
capable of working. Finally, the Court recognized that the decision to undergo surgery is a
“uniquely personal” decision that requires the claimant to weigh the risks of surgery against the
possible benefits.
State ex rel McNea v. Indus. Comm.(3/29/12) 131 Ohio St.3d 408, 2012-Ohio-1296.
Claimant was granted PTD in 2004. He was later arrested for selling narcotics after
selling to informants four times between October 1, 2005 and December 23, 20005. He was sent
to prison on September 5, 2007.
The IC found all PTD paid after the first sale was an overpayment because the sale of
drugs, even though illegal, constituted sustained remunerative employment. Further, the IC
terminated PTD.
Claimant appealed and argued his illegal conduct was not sustained or remunerative. The
Supreme Court stated that illegal activities can be sustained remunerative employment, and in
this case it was clearly remunerative. As for sustained, the Court held the activity does not have
to occur regularly nor does there have to be an ongoing pattern of activity to be sustained.
State ex rel. Whitt v. Indus. Comm. (5/24/12), 2010-Ohio-2322 Franklin App. No.
11AP-448.
Claimant filed an application for PTD supported by a report from Dr. Kovach who
limited claimant to lifting or carrying no more than 3lbs. The IC had claimant examined by Dr.
5
Keith, who opined claimant could perform sedentary work using only her left hand. Claimant
was also evaluated by Mr. Kijewski, a vocational evaluator, who ultimately concluded she was
not a candidate for vocational rehabilitation and was not capable of sustained remunerative
employment. Mr. Kijewski acknowledged that her lack of a GED posed a barrier to entrance
into formal academic training programs to acquire new skills with which she could re-enter the
work force. Mr. Kijewski further stated that she has “limited fine finger dexterity in both hands
which would eliminate sedentary assembly work . . . and would also indicate she does not have
the capability of acquiring competitive keyboarding skills needed for entry level clerical work .”
The record also included a vocational rehabilitation closure report based on the fact that
she was limited to sedentary jobs with little use of the right hand, limited finger dexterity in both
hands ruled out assembly and clerical jobs, and the lack of GED would pose a barrier to entrance
into training programs to acquire new skills.
At the hearing, Mr. Kijewski was apparently called to testify. He admitted there were no
factors preventing claimant from obtaining her GED, and if she obtained her GED, she would
qualify for additional training and vocational rehabilitation.
Despite all of the evidence
discussed above, the SHO found claimant capable of performing sedentary work with her left
hand only, and that she would have a better chance of making the vocational transition to one
handed sedentary work if she had a GED. Because Mr. Kijewski noted no reason why she could
not get a GED, the SHO concluded that it was premature to grant PTD now because there were
vocational opportunities she had not yet pursued.
On appeal, the claimant argued that the IC ignored vocational testimony that said she
was unemployable and not a candidate for vocational rehabilitation, and instead speculated as to
what effect having her GED would have on her employability. However, the Court held that the
6
IC properly relied on the opinion of Mr. Kijewski, and that provided some evidence to support
the SHO order denying PTD.
State ex rel. Billy G. Black v. Indus. Comm. (6/12/12), 2012-Ohio-2589 Franklin Co.
App. No.10AP-1168.
Claimant filed for PTD. Employer argued claimant voluntarily retired, so PTD not
appropriate. IC agreed and denied the PTD. Claimant filed mandamus action. The Court of
Appeals granted a limited writ ordering the Commission to vacate the SHO order and to properly
determine the Claimant’s eligibility for PTD.
The relevant facts regarding the retirement issue are as follows. Claimant injured his back
in Oct. 2000. He returned on light duty, but continued to have back pain. On Nov. 15, 2000 he
saw an orthopedic surgeon, who noted complaints of back pain and leg weakness. The
orthopedist recommended that he not work. Approximately a month later the claimant gave
notice of his intent to retire effective February 28, 2001.
In August, 2009 claimant filed his application for PTD. In the interim, the claim had been
additionally allowed for aggravation of lumbar DDD and spondylolisthesis at L5-S1, and a major
depressive disorder. The SHO granted PTD based on the reports of three physicians who opined
that claimant could not perform sustained remunerative employment.
The employer filed for reconsideration, which was heard by another SHO. Upon
questioning from that SHO, the claimant testified that he retired because he was in too much pain
to perform his work duties. The SHO issued an order denying PTD, finding he voluntarily
retired because there was no medical evidence that any of his physicians advised him to retire,
there was no payment of TT after he stopped working, and he never looked for work after he
retired.
7
The Court of Appeals noted that because voluntary abandonment is an affirmative
defense, the burden of proof is on the employer to prove that the abandonment was voluntary.
The Court also indicated that the SHO apparently erroneously believed that the claimant had to
provide evidence the he was advised to retire by a physician, thus wrongly shifting the burden of
proof from the employer to the claimant.
Even if the burden was on the claimant, the Court found medical evidence to support the
claimant’s testimony in the orthopedic surgeon’s office note of 12/11/00 in which the doctor
stated claimant he was in too much back pain to perform his job duties. The Court said this was
some evidence that the claimant did not voluntarily retire.
II. Temporary Total Disability (TT)/ AWW
State ex rel. Goedel v. Indus. Comm. (11/3/11), 2011-Ohio-5657(10th Dist.).
Claimant was injured in 2002 and the claim was allowed for various conditions including
cervical strain. In 2007, the claimant had surgery for disc problems in his neck, and the doctor at
that time indicated the conditions were related to the 2002 injury. For some reason, the claimant
did not file to add the conditions to the claim until July, 2009.
After the claim was amended, the claimant sought TT for the period 3/5/07 to 4/8/07.
The request was denied as not being filed within two years as required by R.C. 4123.52.
Claimant filed a mandamus action. Claimant’s counsel argued he could not have filed a C84
based on the additional conditions until they were allowed in the claim.
The Court rejected the claimant’ s argument, indicating that he had ample opportunity to
request the additional conditions and TT within the two years since the surgery was performed.
The Court also discussed case law that holds that an application for an additional condition can,
8
in some circumstances, be construed as an application for compensation. But, in this case, even
the motion to amend the claim was also filed outside the two years.
State ex rel. Warner v. Indus. Comm. (3/22/12) 131 Ohio St.3d 366, 2012-Ohio-1084.
Claimant was a construction worker and usually has a seasonal layoff during which he
drew unemployment. The IC calculated the AWW by dividing earnings by 52 weeks with no
exclusion for the 22 weeks of unemployment, nor did the Commission include the
unemployment compensation the Claimant received.
The Claimant filed a mandamus. The court of appeals granted a writ of mandamus
ordering the IC to recalculate the average weekly wage. The Commission and employer
appealed, arguing that the period of unemployment was “not beyond the employee’s control”
because he chose to work in an industry where seasonal unemployment was expected.
The Supreme Court affirmed the court of appeals, rejecting the argument that the
unemployment was not beyond the employee’s control. The Court stated that “forseeability of
job loss does not necessarily render seasonal unemployment voluntary.” The Court also noted
that if the claimant chooses to remain unemployed during the seasonal lay off rather than seeking
a job, then it could be argued that the unemployment may be a “lifestyle choice.” But, as the
Court recognized, it is very difficult to find a job for a short period of time.
The Court also discussed the claimant’s argument that he had to do a job search to get
unemployment, so if he got the unemployment compensation, he must have made an effort to
find employment.
The Court stated that the Commission must review the job search to
determine whether it was adequate.
Also, it should be noted that the Court found no basis for including the amount of
unemployment in the calculation of earnings for the year prior to injury.
9
State ex rel. Howell v. Indus. Comm. (5/8/12), 2012-Ohio-2040 Franklin App.
No.11AP-370.
Claimant injured his shoulder in 1989, later left that employer for reasons unrelated to his
injury and worked for three years for another employer. He left that employer and worked during
the summer months for another employer from 2006 thru 2008.
In September, 2009 he had surgery for the allowed conditions in the claim. He was
unable to work for several months and filed for TT. The request was denied because he had
voluntarily left employment with the employer of record and was not working at the time of his
surgery.
The claimant had submitted a letter to the file from an assistant manager at a country club
that indicated he had offered him a job in the summer of 2009, but the claimant turned it down
because the problems he was having with his shoulder would not permit him to perform the job,
and that he was awaiting surgery. Therefore, the claimant was unable to accept the position at
that time.
On appeal the claimant argued the letter was evidence that but for the shoulder injury and
pending surgery, he would have been working, and thus would have suffered a loss of wages.
The Court acknowledged that is one way the letter could be interpreted, but it could also be
interpreted as the claimant choosing not to be employed during the summer of 2009. Because the
evidence could be interpreted either way, the Court held the IC did not abuse its discretion in
denying TT.
10
State ex rel. The Tamarkin Company v. Indus. Comm. (6/26/12), 2012-Ohio-2866
Franklin App. No.11AP-625.
Claimant suffered an injury in July, 1990 that caused him to be off work for three years.
The claim was allowed for injuries to his right foot as well as reflex sympathetic dystrophy
(RSD). After returning to work, the claimant worked without restrictions until December, 2010,
shortly before his retirement.
He completed the paperwork for retirement in July, 2010
indicating he would retire at the end of the year.
Office notes from his treating physician from November 11, 2009 thru December 7, 2010
document complaints of constant pain, swelling, and numbness in his foot and toes. Pain
complaints were often listed as 10 out of 10. There were clinical findings that his foot was cool
and pale, and that he was having tremors in his toes. In the November 11 office note, the
claimant advised his doctor that he was filing for disability. In the December office note, he told
his doctor that the pain was severe and that he was having difficulty working.
On December 9, 2010, the claimant filed a motion for TT with a C84 dated December 7,
2010 and requested approval of additional therapy and a pain management consult. The motion
was denied by a DHO who found that the claimant had voluntarily abandoned his employment
when he chose to file for retirement in July, 2010. On appeal, the SHO reversed the DHO and
awarded TT. The SHO relied on the medical records and the holding in State ex rel. Pretty
Products v. Indus. Comm. (1996), 77 Ohio St.3d 5, in which the Court held that an injured
worker cannot voluntarily abandon a job that he was not physically able to do at the time of the
alleged abandonment. The SHO found that in this case the medical evidence established that the
claimant was TT at the time his retirement went into effect on January 1, 2011.
11
The employer filed a mandamus action arguing that the IC abused its discretion in
granting the award of TT and in not finding that the claimant had voluntarily abandoned his job
when he retired. In denying the employer’s appeal, the Court noted that there was a substantial
amount of medical evidence prior to the time the claimant completed the paperwork for
retirement that he was having difficulty performing his job and that the claimant testified that he
submitted the retirement papers because of the pain he was having.
The Court also rejected the employer’s argument that the IC erred by considering the
medical evidence at the time the claimant retired instead of at the time he filed for retirement six
months earlier. The Court stated that the commission is not bound by the medical evidence
existing at the time the claimant filed for retirement to determine the voluntary nature of the
departure.
State ex rel. Honda of America, Inc. v. Indus. Comm. (7/24/12), 2012-Ohio-3335
Franklin App. No.11AP-528
Claimant was injured in 2003 and received various periods of TT until he was found to
have reached MMI on February 29, 2008. The employer advised claimant that his employment
would end on 12/31/08 with the termination of his medically inactive transition program. The
claimant elected to retire.
In 2009, claimant requested approval for surgery for the allowed conditions in the claim.
The request was approved and surgery was done in December, 2009. Claimant requested
payment of TT beginning with the date of surgery. The request was granted by a DHO, SHO,
and by the three member Commission.
The employer filed a mandamus action arguing that the claimant has to suffer an actual
loss of earnings to be entitled to TT. The employer conceded the involuntary nature of the
12
retirement and did not contest that the allowed conditions in the claim rendered him temporarily
totally disabled. Because the claimant suffered no loss of earnings, the employer argued he was
not entitled to TT.
The magistrate rejected that argument, noting that there is a two prong test to determine
whether a claimant is entitled to TT. The first part focuses on the disabling aspects of the injury,
which in this case was not contested. The second determines if there are any factors other than
the injury that would prevent the claimant from returning to his former position of employment,
such as a voluntary abandonment, which also was not alleged in this claim. Because both prongs
of the test indicate that the claimant was entitled to TT, the Court held that the IC did not abuse
its discretion in awarding TT.
III. Claim Allowance
Armstrong v. John R. Jurgensen Co. (12/23/11), 2011-Ohio-6708 Clark App. No. 2011
Court of Appeals-6.
Claimant was a freeway construction worker injured when a van hit his dump truck. The
Claimant saw the van go under his truck, and saw that the driver was seriously injured. The
claim was allowed for his physical injuries. But the claimant started to have nightmares, panic
attacks, and other psychological symptoms. The claimant sought treatment from a psychologist
who diagnosed PTSD. The IC granted claimant’s motion to amend the claim for PTSD. The
employer appealed to court.
Claimant’s treating psychologist testified that the physical injuries “contributed to and
were causal factors” in developing the PTSD. The employer’s expert witness testified that the
physical injuries were not the cause of the PTSD, rather it was from witnessing the accident and
the serious injuries suffered by the other driver. The trial court found that because the PTSD did
not “arise out of the physical injuries”, the claimant was not entitled to participate for the PTSD.
Claimant appealed.
13
The court of appeals affirmed, finding that R.C. 4123.01(C)(1) requires the psychiatric
condition to “have arisen from an injury . . . sustained by that claimant.” The court held that the
psychiatric condition “must have been started by and therefore result from a physical injury or
occupational disease.”
IV. Permanent Partial Disability/ Scheduled Loss
State ex rel. Smith v. Indus. Comm. (3/13/12), 2012-Ohio-1011 Franklin App. No.
11AP-61
Claimant suffered serious injuries that left him in a persistent vegetative state. Claimant
requested compensation for total loss of vision and hearing. Two doctors examined claimant and
both opined that claimant suffered from total visual and hearing loss. Both found that his pupils
reacted to light, but there was no response to external stimuli. However, the doctors stated there
was no physical test or exam that could determine what hearing or vision loss claimant suffered
because of his “inability to respond to external stimuli.”
The IC denied the motion because it was “not supported by any specific objective hearing
or visual testing.” Claimant filed mandamus action and noted that the proof required to prove
total loss of hearing or vision is “somewhat flexible.” The Court concluded that neither doctor
could support the decision of the Commission. The Court noted that one doctor’s opinion that
Smith lacked the ability to effectively see or hear would support an award for total loss. Despite
that, the Court remanded the case to the Commission for further consideration.
V. Trial Practice
Spencer v. Freight Handlers, Inc. (3/8/12), 131 Ohio St.3d 316 , 2012-Ohio-880.
The Claimant filed an appeal into court challenging the denial of his claim. In the notice
of appeal, the Claimant included the name of the employer, but did not name the administrator or
BWC as a party. Spencer also did not serve the notice of appeal on the administrator. He did the
same on the complaint.
The employer filed a motion to dismiss the appeal for failure to join a necessary party
based on the second paragraph of R.C. 4123.512 (B).
That paragraph requires that the
administrator of workers’ compensation to be a party to the appeal, and also requires the party
14
filing the appeal to serve a copy of the notice of appeal on the administrator at the central office
of the BWC in Columbus. The court granted the employer’s motion to dismiss.
Spencer appealed and the court of appeals reversed. The employer appealed to the
Supreme Court, which affirmed the court of appeals. The Court looked at the first paragraph of
R.C 4123.512(B), which spells out what has to be on the Notice of Appeal, which is the names of
the claimant and employer, claim number, date of the order being appealed, and the fact that the
appellant appeals from that order. It says nothing about naming the administrator on the notice of
appeal. The Court says that is all that is necessary for the notice of appeal to be valid.
VI. Substantial Aggravation
Smith v. Lucas County, et al. (3/31/11), 2011-Ohio- 1548 Lucas County APP.No.
L-10-1200
Smith slipped and fell in December of 2006. Her claim was allowed for the conditions of
scalp contusion; sprains of the thoracic region, lumbar region, left wrist and left hand; and
contusion right elbow. In February of 2007, she moved to add “aggravation of pre-existing
variant of Chiari malformation” to her claim. The Chiari condition was discovered by an MRI
performed after her injury. The requested additional condition was denied administratively and
Smith appealed to the Lucas County Court.
Based on requirements of the substantial aggravation standard, the Court concluded that
because there was no testing or diagnostic procedure to document the condition prior to the
accident, Appellant failed to provide the statutorily mandated objective findings or results.
Objective evidence of the substantial aggravation “must be presented on a before-and-after
basis.” Here Ms. Smith failed to provide any records or a statement from her prior treating
physician establishing her before injury condition.
2239765v1
15
Rating Issues
October 5, 2012
Presented By:
George Wilkinson
State Employer Update
| www.dinsmore.com
| www.dinsmore.com
Presenter
George Wilkinson, Esq.
Ci i
Cincinnati
ti ^ 513.977.8316
513 977 8316
george.wilkinson@dinsmore.com
OVERVIEW
I.
San Allen Case
II. BWC Rates for 2012
III. MIRA Reserving
IV. Employer Premium Options
| www.dinsmore.com
SAN ALLEN CASE
Pending in Cuyahoga County
Class action by Non-Group rated employers
Case tried to Judge McMonagle last month
Case briefed – decision pending
| www.dinsmore.com
SAN ALLEN CASE
ISSUE: Whether The Group Rating Formula
Adopted by the BWC Causes Non-Group
Non Group Rated
Employers to pay Higher Premiums
Judge McMonagle previously issued a ruling
ordering the BWC to change its formula
Many commentators feel the decision will go
against the BWC and it is only a matter of “how
much”
| www.dinsmore.com
Others feel the BWC may win on the liability issue
Most employers were in group during some years and
out during others
Will it raise all employers’ premiums?
| www.dinsmore.com
2012 STATE FUND RATES
Rates to remain same in 2012
“Maintaining last year’s 4% average rate reduction”
Extends last year’s $65 million in rate cuts
New credits also extended
| www.dinsmore.com
MIRA UPDATE
Today All Claims Are Reserved, Including Medical
Only
No reserves set on claims in $15,000 medical-only
program until costs exceed that
Salary Continuation – Now eligible for claim reserve.
Where only indemnity payment, a reserve is unlikely
Where TT paid later, credit given for salary continuation
Living maintenance reserve 100%
| www.dinsmore.com
MIRA “STOP” LOGIC
Reserves will evaporate
Typically indemnity reserve will go to zero before
medical reserves
Medical reserves also go down, but slower
| www.dinsmore.com
Relative Cost Table for Most Common ICD9
Codes
 The list below contains the most common ICD-9 codes in the
Ohio data along with the relative low/high costs in the data
used for the BWC MIRA II models. The list is for the most
common ICD-9 codes, not necessarily the most costly ICD-9
codes. The ICD9 relative cost tables are meant to give
interested parties an idea of how certain ICD9 codes will
affect MIRA predictions.
The numbers should not be
interpreted as the definitive value at which MIRA will predict
cost given an ICD9. Rather, the numbers are better used in
comparison to each other across ICD9's to understand that a
dislocated knee (836) is likely many times more expensive
than a burn of wrist and hand (944). Other factors can play
into whether or not the injury will be more or less costly and
the High and Low values are provided to allow one to see that
such factors can affect the numbers significantly.
| www.dinsmore.com
Codes
ICD9
LowCost HighCost
ICD9 Description
604
681
$210
$210
$1,030
$1,650
682
692
$220
$100
$2,010
$620
717
$1,100
$7,250
718
719
$190
$270
$9,370
$1,920
ORCHITIS AND EPIDIDYMITIS
CELLULITIS & ABSCESS OF
FINGER & TOE
OTHER CELLULITIS AND ABSCESS
CONTACT DERMATITIS AND
OTHER ECZEMA
INTERNAL DERANGEMENT OF
KNEE
OTHER DERANGEMENT OF JOINT
OTHER & UNSPECIFIED
DISORDERS JOINT
| www.dinsmore.com
Codes
ICD9
LowCost HighCost
ICD9 Description
604
681
$210
$210
$1,030
$1,650
682
692
$220
$100
$2,010
$620
717
$1,100
$7,250
718
719
$190
$270
$9,370
$1,920
ORCHITIS AND EPIDIDYMITIS
CELLULITIS & ABSCESS OF
FINGER & TOE
OTHER CELLULITIS AND ABSCESS
CONTACT DERMATITIS AND
OTHER ECZEMA
INTERNAL DERANGEMENT OF
KNEE
OTHER DERANGEMENT OF JOINT
OTHER & UNSPECIFIED
DISORDERS JOINT
| www.dinsmore.com
Codes
ICD9 LowCost HighCost
722
$2,910
$25,270
723
$890
$7,380
724
$590
$6,050
726
$360
$5,140
727
728
$270
$300
$2,270
$2,150
ICD9 Description
INTERVERTEBRAL DISC
DISORDERS
OTHER DISORDERS OF
CERVICAL REGION
OTHER & UNSPECIFIED
DISORDERS OF BACK
PERI PH ENTHESOPATHIES
& ALLIED SYNDS OTH
DISORDERS SYNOVIUM
TENDON&BURSA
DISORDERS OF MUSCLE
LIGAMENT&FASCIA
| www.dinsmore.com
Codes
722
$2,910
$25,270
723
$890
$7,380
724
$590
$6,050
726
$360
$5,140
727
728
$270
$300
$2,270
$2,150
ICD9 Description
INTERVERTEBRAL DISC
DISORDERS
OTHER DISORDERS OF
CERVICAL REGION
OTHER & UNSPECIFIED
DISORDERS OF BACK
& ALLIED SYNDS OTH
DISORDERS SYNOVIUM
TENDON&BURSA
DISORDERS OF MUSCLE
LIGAMENT&FASCIA
| www.dinsmore.com
Codes
722
$2,910
$25,270
723
$890
$7,380
724
$590
$6,050
726
$360
$5,140
727
728
$270
$300
$2,270
$2,150
ICD9 Description
INTERVERTEBRAL DISC
DISORDERS
OTHER DISORDERS OF
CERVICAL REGION
OTHER & UNSPECIFIED
DISORDERS OF BACK
& ALLIED SYNDS OTH
DISORDERS SYNOVIUM
TENDON&BURSA
DISORDERS OF MUSCLE
LIGAMENT&FASCIA
| www.dinsmore.com
ALTERNATIVE EMPLOYER RATING
PROGRAMS
Group
Group Retro
Statutory Deductible
Deductibles
Retrospective
Self-Insurance
| www.dinsmore.com
DESTINATION : EXCELLENCE
 Industry Specific
3%
 Transitional Work
10%
[Plus Grants]
 Drug-Free
4%
 Safety Council
2% + 2%
 Go-Green
1%
 Lapse Free
1%
| www.dinsmore.com
| www.dinsmore.com
Questions?
George Wilkinson, Esq.
Ci i
Cincinnati
ti ^ 513.977.8316
513 977 8316
Top Ten Tips
October 5, 2012
Presented By:
Entire Panel
Speaker Profiles
George B. Wilkinson
Education
Partner
Law Center, (1981)
Cincinnati
B.A., University of Virginia, (with
P: (513) 977-8316
F: (513) 977-8442
distinction, 1974)
J.D., Georgetown University
Bar Admissions
Ohio
Court Admissions
George Wilkinson serves as Chair of the firm's Workers' Compensation Practice Group. George
Southern District of Ohio
counsels clients on workers’ compensation law issues throughout Ohio and represents numerous
clients across a wide range of industries. George has been named a Fellow of the College of
Related Services
Workers' Compensation Lawyers. He is one of only a handful of workers' compensation attorneys to
Workers' Compensation
have earned this prestigious honor, and the only attorney in Cincinnati, OH to be inducted.
Litigation
Memberships & Affiliations
Columbus Bar Association
Cincinnati Bar Association, former Chairman, Workers' Compensation Committee
Ohio State Bar Association; former Chairman, Specialization Board; former Chairman, Workers'
Compensation Committee; Member
Ohio Manufacturer's Association, Workers' Compensation Committee
American Law Firm Association International, former Chairman, Workers' Compensation
Committee
Distinctions
Peer Review Rated AV in Martindale-Hubbell
Listed in The Best Lawyers in America®
Selected for the Ohio Super Lawyers® List
Michael L. Squillace
Education
Partner
College of Law, (cum laude,
Columbus
1980)
P: (614) 628-6903
F: (614) 628-6890
B.A., University of Notre Dame,
J.D., University of Toledo
(1977)
Bar Admissions
Ohio
Mike Squillace is a Partner in the Litigation Department. Mike handles all aspects of workers'
Court Admissions
compensation law on behalf of Ohio employers, including administrative hearings, court appeals,
and mandamus actions. He has handled claims in every Industrial Commission district, has had
Northern District of Ohio
cases in most Ohio counties, and has tried several cases before the Ohio Supreme Court. Prior to
Sixth Circuit Court of Appeals
joining the firm in 1991, he worked for the Ohio Attorney General, serving as chief of the Workers'
Compensation and Transportation sections. He also handles a wide variety of litigation and
Related Services
appellate matters.
Litigation
Employment Discrimination
Columbus Bar Association, Workers' Compensation Admissions Committee
Litigation
Ohio State Bar Association, Workers' Compensation Committee, Specialization Committee
Appellate Practice -
Certified Specialist, Workers' Compensation
Employment
Wage/Hour Law
Distinctions
Wrongful Discharge
Audits, Counseling & Training
Joan M. Verchot
Education
Partner
of Law, (1986)
Cincinnati
B.A., University of Maryland,
P: (513) 977-8418
F: (513) 977-8442
joan.verchot@dinsmore.com
(1983)
J.D., Capital University School
Bar Admissions
Ohio
Court Admissions
Joan Verchot practices in the area of litigation and workers' compensation, concentrating on litigation
at the administrative and trial court levels. She is Board Certified in workers' compensation law by
U.S. Supreme Court
the Ohio State Bar Association Workers' Compensation Specialty Board. She advises clients on all
aspects of workers' compensation law. Joan has had articles published in The Workers'
Related Services
Compensation Journal of Ohio, Ohio Lawyer, and the Business Courier. She is a frequent speaker
on workers' compensation issues.
Litigation
Ohio State Bar Association; Workers' Compensation Committee past Chairperson; Judicial
Candidates Commission
Ohio Joint Task Force on Gender Fairness
Ohio Supreme Court Commission on Certification of Attorneys as Specialists
Cincinnati Bar Association, Workers' Compensation Committee past Chairperson
Cincinnati Academy of Leadership for Lawyers
Capital University Law School, Alumni Governing Board past Chairperson
Ohio Chamber of Commerce, Labor Advisory Committee
Southwest Ohio Self-Insurers Association
Distinctions
Board Certified in Workers' Compensation law by the Ohio State Bar Association Workers'
Compensation Specialty Board
Named one of the Top 50 Women Lawyers in Ohio by Law & Politics
Recipient of 1999 service award from Capital University Law Alumni Association
Anthony "T.J." Jagoditz
Education
Associate
University, Chase College of
Cincinnati
Law, (cum laude; Northern
P: (513) 977-8374
F: (513) 977-8141
Kentucky Law Review, Lead
J.D., Northern Kentucky
Articles Editor; Moot Court,
2008)
B.A., Xavier University, (cum
laude, 2003)
T.J. Jagoditz is a member of the firm's Litigation Department. T.J. focuses his practice on general
litigation and workers' compensation law.
Bashful Ostrich 5K, Board of Directors
Bar Admissions
Ohio
Court Admissions
Related Services
Litigation
Christen S. Hignett
Education
Associate
of Law, (Order of the Curia,
Columbus
summa cum laude, CALI award
P: (614) 628-6904
F: (614) 628-6890
recipient; Capital University Law
J.D., Capital University School
Review, Executive Articles
Editor, 2005)
B.A., Miami University, (magna
cum laude, 2001)
Christen Hignett is a member of the Litigation Department. Her practice is focused on defending
employers in workers' compensation matters, both in administrative hearings and in court
proceedings. Christen previously participated in an externship for the Hon. John D. Holschuh, District
Judge for the U.S. District Court for the Southern District of Ohio.
Bar Admissions
Ohio
Related Services
Litigation
Ohio State Bar Association
MICHAEL H. STRONG, ESQ.
District Hearing Officer for the Industrial Commission of Ohio
Education:
The Ohio State University, graduated in 1987 with BS in Education;
Toledo College of Law, graduated in 1992, JD, magna cum laude.
Post Education:
Mr. Strong worked as an attorney for fourteen years representing employers and injured
workers in workers' compensation matters. Initially, Mr. Strong worked with Dinsmore &
Shohl, the largest law firm in Cincinnati, in the workers' compensation department.
During this time, he represented employers (both state fund and self-insuring)
administratively before the Industrial Commission as well as in the Court of Common
Pleas. After leaving Dinsmore & Shohl, Mr. Strong started and was managing partner in
a small law firm for over ten years. During this time, Mr. Strong expanded his workers'
compensation practice to represent both employers and injured workers. Mr. Strong
represented employers and injured workers both administratively before the Industrial
Commission as well as in numerous Courts of Common Pleas and Court of Appeals.
Mr. Strong has also had extensive litigation experience outside of workers'
compensation. Mr. Strong had an extensive criminal defense practice for a number of
years, handling everything from traffic tickets up to and including aggravated murder
cases. Mr. Strong was certified by the Supreme Court of Ohio to defend Capital Murder
(death penalty) cases in Ohio. Mr. Strong accepted a position with the Industrial
Commission in 2006 and has been a District Hearing Officer in the Cincinnati Regional
Office for the past six years.
Brett L. Miller
Education
Partner
Moritz College of Law, (1981)
Columbus, OH
A.B., Miami University, (1978)
P: (614) 227-4261
F: (614) 221-8590
Bar Admissions
J.D., The Ohio State University
Ohio
Court Admissions
Northern District of Ohio
Brett Miller is a Partner in the Litigation Department. Brett represents major manufacturing
companies, interstate trucking companies, food processing, retail and institutional clients. He has
been named a Certified Workers' Compensation Specialist by the Ohio State Bar Association under
Related Services
the guidelines of the Supreme Court.
Litigation
Prior to joining the firm, Brett served as Vice President of Buckingham, Doolittle and Burroughs Board
of Managers. Earlier in his career, Brett worked for two years as a staff attorney for the Ohio Bureau of
Workers' Compensation.
American Bar Association
Columbus Bar Association
Builders Exchange of Central Ohio, Workers' Compensation Trustee
Stefanie's Champions, Steering Committee
Distinctions
Listed in The Best Lawyers in America® since 1995
Selected for the Ohio Super Lawyers® List since 2004
Named “Lawyer of the Year” in Columbus for Workers' Compensation Law - Employers by The
Best Lawyers in America®, 2013
Michael L. Williams
Education
Partner
Moritz College of Law, (1992)
Columbus
B.A., Capital University, (magna
P: (614) 227-4277
F: (614) 221-8590
mike.williams@dinsmore.com
cum laude, 1989)
J.D., The Ohio State University
Bar Admissions
Federal
Ohio
Mike Williams is a Partner in the Litigation Department. Mike represents state-funded and self-
Related Services
insured employers before the Bureau of Workers’ Compensation, the Industrial Commission, the
Court of Common Pleas, the Court of Appeals and the Supreme Court of Ohio. He also handles the
Litigation
defense of specific safety regulations (VSSR) and premium disputes. Mike assists in administrative
matters involving self-insurance. Mike has been named a Certified Workers' Compensation
Specialist by the Ohio State Bar Association under the guidelines of the Supreme Court.
Earlier in his career, Mike served for two years as a staff attorney with the Ohio Bureau of Workers'
Compensation, directing the Attorney General's office concerning the litigation and settlement of
claims and managing the Bureau's subrogation and fraud efforts.
Ohio State Bar Association, Workers' Compensation Specialist
Columbus Bar Association, Workers' Compensation Section
Central Ohio Self-Insurers Association
Ohio Trucking Association
Distinctions
Selected for the Ohio Super Lawyers® List since 2004
Brian P. Perry
Education
Partner
College of Law, (1993)
Cincinnati
B.A., University of Cincinnati,
P: (513) 977-8107
F: (513) 977-8141
(magna cum laude with high
J.D., University of Cincinnati
departmental honors, 1990)
Bar Admissions
Ohio
Brian Perry is a Partner in the Litigation Department. Brian practices in the area of Ohio workers'
Court Admissions
compensation, representing employers in matters before the Ohio Bureau of Workers'
Compensation, the Industrial Commission of Ohio, and Ohio courts. This representation includes
administrative hearings and Common Pleas court appeals. In addition, Brian represents employers
Related Services
in appellate actions before Ohio Courts of Appeals and the Ohio Supreme Court. He also advises
employers on workers' compensation rating issues.
Litigation
Cincinnati Bar Association; Chairman, Workers' Compensation Committee
St. Nicholas Academy; Board of Directors, Steering Committee (2006-2007)
Distinctions
Joseph "Jay" L. Sallee, Jr.
Education
Partner
University, Chase College of
Cincinnati, OH
Law, (1985)
P: (513) 977-8473
F: (513) 977-8141
B.A., University of Kentucky,
J.D., Northern Kentucky
(1977)
Bar Admissions
Ohio
Joseph "Jay" L. Sallee, Jr. is a Partner in the Litigation Department. Jay's practice encompasses
Kentucky
Kentucky and Ohio Workers' Compensation, Occupational Health and Safety issues, product liability,
Related Services
and general litigation. This includes hearings before Administrative Law Judges in the
Litigation
Commonwealth of Kentucky's Department of Workers' Claims, administrative hearings before
hearing officers in the Industrial Commission of Ohio, litigation in various Ohio and Kentucky Courts,
Workplace Safety
and appellate proceedings before Ohio and Kentucky Courts of Appeals and the Supreme Courts. In
Occupational Safety & Health
Ohio, his practice includes advice to State Fund employers with respect to premium rates, group
Administration
rating, and related issues.
Products Liability
Kentucky Bar Association
Cincinnati Bar Association, Workers' Compensation Section, Tort and Insurance Committee
Northern Kentucky Bar Association, Workers' Compensation Section
Distinctions
Named “Lawyer of the Year” in Cincinnati for Workers' Compensation Law-Employers by The Best
Lawyers in America®, 2012
Christopher A. Benintendi
Education
Partner
of Law, (cum laude, 1990)
Cincinnati
B.A., Wittenberg University,
P: (513) 977-8157
F: (513) 744-3187
(1987)
J.D., University of Dayton School
Bar Admissions
Ohio
Court Admissions
Chris Benintendi is a member of the Litigation Department. Chris is certified in workers'
compensation law by the Ohio State Bar Association Workers' Compensation Specialty Board. He
Sixth Circuit Court of Appeals
counsels clients on workers' compensation law, Violation of Specific Safety Requirements (VSSR)
claims, and intentional tort claims. Chris is a frequent speaker at advanced, intermediate, and basic
Related Services
workers' compensation seminars.
Litigation
Cincinnati Bar Association, Workers' Compensation Committee
Distinctions
Selected for the Ohio Super Lawyers® List since 2004 in the area of Workers' Compensation
Was a member of the regional and national moot court teams at the University of Dayton School of
Law
Selected as a national member of the Order of the Barristers for excellence in courtroom advocacy
Workers’ Compensation
Practice Group
Workers’ Compensation
Ranked #1 in the US in Workers' Compensation Law
by The Best Lawyers in America® 2011
Experienced, Responsive Claims Counsel
Workers' Compensation is, for many companies, a major driver of costs. Companies regularly face the loss
of employees to a job-related injury or disease, some of which are questionable or may be less severe than
the employee and his doctor lead the employer to believe. Each state requires the employer to cover the
workers' compensation claims be paid lost-time. And while most of these claims are valid, ineffective claims
management and occasionally outright fraud can cost employers tens of millions of dollars annually.
Since 1913, when the Ohio Constitution was amended to require a mandatory program to compensate
injured workers, Dinsmore has counseled and defended employers on a broad spectrum of legal issues
related to workers' compensation claims. Our practice has grown over the years to include companies
across the region. Our clients include Ohio state-funded and self-insured companies in matters pertaining to
premium rates, non-compliance or transferring risk experience. Our firm frequently renders assistance in
maintaining self-insured privileges under Ohio's workers’ compensation laws. We also provide the same
services in Kentucky. Our attorneys understand that workers' compensation claims impact our clients’
businesses through lost employee productivity, the cost of claims and the risk of litigation. We work
strategically to reduce those costs.
Administrative Practice
Since a workers’ compensation claim often begins before an application is initially filed, the firm counsels
clients on investigation of claims, response to workplace hazards, as well as the administration of contested
and non-contested claims to reduce workers’ compensation costs. We advise and counsel our clients on
safety standards and violations, inspections by the Bureau when a violation of a safety standard is alleged,
and compliance with state workers' compensation rules and regulations.
When claims are filed, we advise our clients on length-of-disability, return-to-work issues and vocational
benefits. We also coordinate with outside experts to research medical issues and pre-existing conditions
related to individual claims. We advise our clients on preventative measures or best practices to avoid
claims and provide onsite training when needed.
Civil Litigation
When matters need to go hearing or to trial, Dinsmore defends employers at the administrative level, the trial
court, the appellate level and before the Ohio Supreme Court. In matters of policy, our attorneys are active
in statewide and local bar associations and trade groups. Our attorneys also collaborate with legislators and
and government agencies in proposed legislation and agency regulations.
About Dinsmore
About Dinsmore
For more than a century, Dinsmore has been providing quality legal counsel to our clients. Today’s full-service
practice with more than 475 attorneys continues to live up to the ideals established in 1908 by Frank F.
Dinsmore and Walter M. Shohl: efficient, cost-effective and comprehensive solutions for every client.
Our Clients
Dinsmore clients include leading businesses and individuals, operating internationally, across the nation,
throughout the region and locally. We offer legal services in a broad range of industries including chemicals,
communications, construction, education, energy, financial services, government, healthcare, hospitality,
insurance, life sciences, manufacturing, media, natural resources, pharmaceuticals, real estate, retail,
technology, and transportation.
Our Reputation
Dinsmore is recognized among the top firms in the nation, ranking on both the AmLaw 200 and NLJ 250 lists.
One hundred forty-seven (147) of our attorneys are named in The Best Lawyers in America® (2012) with
Dinsmore “Top Listed” in more than 40 practice areas. Dinsmore was also selected as a "Go-To Law Firm" by
Corporate Counsel Magazine based on surveys of Fortune 500 companies. We have also received accolades
®
from Chambers USA Guide to America's Leading Business Lawyers, The Legal 500 United States,
Martindale-Hubbell, Corporate Board Member Magazine and many other business and legal industry
organizations.
Our Value
We understand that service begins with accessibility and ends with fulfilled expectations. To establish client
relationships based on communication and responsiveness, we have dedicated ourselves to helping our
clients succeed. We work to establish mutually rewarding relationships based on value, accountability and
responsiveness. We strive to provide continuity of service through strong client team leadership and retention.
We are continuously deploying the next generation of legal-specific technologies to manage costs, reduce risk
and more closely align ourselves with client needs. We continually seek to better understand our clients'
business – industry, operations, processes, and people – so that we may provide insightful, practical counsel.

Workers` Compensation Seminar

Transcription

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