Over the course of the last twenty-five years there have been numerous appellate court decisions which have denied temporary total disability compensation to clearly disabled individuals on the basis that they had been fired for violations of company work rules, and therefore were not entitled to compensation. Typically, these decisions have reasoned that when firing results from a workers’ intentional violation of work rules, it can be treated as a “voluntary abandonment” because it was the result of some intentional misconduct which the fired employee willingly undertook. I am pleased, given this background, to be able to share news of a recent Court of Appeals decision captioned State, ex rel. Cline v. Abke Trucking Co. which bucked the trend of the last several years and reversed an order in which the Industrial Commission had denied temporary total compensation on the basis of an alleged “voluntary abandonment” of employment.

Mr. Cline, was injured on the job in 2008 while working as a truck driver. His injuries temporarily prevented him from driving a truck, and he was assigned by his employer to an off-site light duty job doing office work for the local American Red Cross office. In early 2009, he was released to return to work, and contacted his employer. Before he could return to work, he received a letter from the employer terminating his employment. The employer said his employment was terminated because he had a diabetic condition which made him medically unqualified to return to work as a truck driver, and it also accused him of falsifying time cards related to his off-site light duty job. Mr. Cline quickly found a new job, but was having increasing symptoms from his work-related injury which were making it difficult for him to perform the job to his new employer’s expectations. He had an appointment to see his doctor on July 1, 2009, but a few days before that appointment, he was fired by the new employer.

Mr. Cline’s doctor and a BWC examiner agreed that he had developed recurrent symptoms from his work-related injury, and should be regarded as temporarily totally disabled due to that injury as of July 1, 2009. The Industrial Commission, however, denied temporary total compensation, ruling that Mr. Cline was ineligible for benefits because he had “voluntarily abandoned” his first job, and was no longer employed by his new employer on the date when his doctor certified him as once again disabled by his industrial injury.

The Court of Appeals made several important observations in its ruling that Mr. Cline was improperly denied temporary total disability compensation. The court held that the doctrine of voluntary abandonment could not be applied to being fired for having diabetes, as having a disease is not a voluntary act. It could not be said, therefore, that his employment was terminated because he intentionally violated a work rule.

Addressing the accusation that he falsified time cards while working off-site, the court ruled that the Industrial Commission was not permitted to rely on the employer’s mere accusation of misconduct. When an employer contests liability for temporary total disability based on voluntary abandonment, it is required to produce evidence sufficient to support an independent determination by the Industrial Commission that the claimant actually committed the act for which the employer claims he was fired. Because the employer never submitted the allegedly falsified time cards to the Commission the court found that it had failed to produce evidence to support its accusation. Without such evidence, there was no evidence in the record from which the Commission could find that the alleged misconduct took place.

Finally, the court addressed and rejected the Industrial Commission’s argument that Mr. Cline was ineligible for compensation beginning on July 1, 2009 because he had been fired from his new job shortly before that date. The court held that even though Mr. Cline’s new job did not work out, the fact that he sought out new employment and attempted to continue working after being fired by his original employer showed that he had never intended to abandon the work force. Finally, the court noted that the loss of the new job just days prior to his doctor’s renewed certification of temporary total disability compensation did not automatically eliminate his entitlement to temporary total disability compensation in the face of undisputed medical evidence showing he was once again disabled by his injury.

This decision offers several critical points to keep in mind when confronting an employer’s argument that temporary total compensation should be denied based on “voluntary abandonment” :

•  For firing to be “voluntary” it must result from intentional misconduct.
•  The Commission cannot simply accept the employer’s allegations of misconduct. The employer must offer evidence to prove its allegations.
•  Unemployment at the time a new period of medically-documented disability begins does not automatically bar payment of compensation.

There is nothing more egregious or repugnant to basic constitutional rights than a governmental agency forcing citizens to undergo treatment with a physician they do not choose. Unfortunately, recently Barbara Sears (R-46) introduced into the Ohio House of Representatives a bill that would do just that in the Ohio Workers’ Compensation system.

The passage of House bill 518 would take away an injured worker’s right to free choice of physician by requiring claimants to pick from a panel of physicians picked by the managed care organization, if still treating 45 days after the date of injury. Most likely, this “panel” would consist of occupational care physicians who are traditionally more concerned with the welfare of the employer rather than the patient.

Once an injured worker “chooses” an attending physician from this panel, the claimant would be required to submit to the treatment this physician proposes. Failure to submit to such treatment would suspend compensation the injured worker may be receiving.

This country has a long history of placing legal safeguards to protect people from being forced to undergo treatment against their will. Forced treatment violates our most basic personal freedom.

Yet Representative Sears and BWC Administrator Buehrer see it fit to require injured workers to undergo treatment they may not agree with, or be comfortable with. Apparently, Ms Sears believes that forcing treatment on injured workers gets claimants back to work more quickly.

After years of this firm representing injured workers, it is our experience that that one of the biggest frustrations for our clients is the failure of the system to provide prompt, high-quality treatment after an injury. Such delays prevent their ability to get better and return to work. Forcing injured workers to undergo treatment with physicians they do not choose is the opposite of what our clients want, or deserve, and would only serve to lengthen their disability.

If Representative Sears and Administrator Buehrer believe injured workers should be back to work sooner, there are other ways to get this accomplished, such as providing incentives for employers to offer light duty positions to their injured workers. Clearly, Representative Sears and Administrator Buehrer should consider such proposals to reduce disability, rather than forcing treatment on those injured due to no fault of their own.

Here they go again.

Presently, the Ohio Workers’ Compensation laws provide medical coverage and compensation payments to any employee who has the misfortune of being injured, diseased, or disabled as a result of performing their job in Ohio. After all, that’s the intent of the law – to make certain that our workers are cared for when they are injured while doing the job they were hired to do.

On April 3, 2012, SB 323 was introduced in the Ohio Senate. The bill, sponsored by Senators Seitz, Jordan, Balderson, and Schaffer, if passed into law, would deny the Workers’ Compensation medical and compensation protections in the event that the injured worker was undocumented.

While there are plenty of laws already in place that prohibit employers from hiring undocumented workers, wouldn’t it be a better idea to enforce more strongly those laws to keep employers from hiring illegal or undocumented workers, rather than to penalize the victims of injuries who now must struggle with covering medical costs and the loss of income that results from a disabling injury or disease? One can certainly make the argument that if this bill becomes law, there would be an even greater incentive for unscrupulous employers to hire undocumented workers – because if an undocumented worker gets hurt, the employer has no financial responsibilty to care for him or her. How’s that for a just result?

We’ve had several posts recently about prudence of having the legislature focusing on safety in the workplace and preventing injuries, rather than efforts to punish workers (documented or otherwise) who get hurt while performing duties that they were hired to perform.

The easiest way to prevent injuries to undocumented workers is for employers not to hire them in the first instance. Isn’t that much more humane than punishing them when they have the misfortune of getting hurt? What do you think?

One of the biggest insurers in the nation, Liberty Mutual, recently published a safety survey establishing that the top 10 most disabling workplace injuries and illnesses from 2009 accounted for $50.1 billion in direct U.S. compensation costs. Moreover, the top 10 most disabling injuries and illnesses comprised 89.3% of the entire cost of all disabling work-related injuries in the United States. More significantly, the top five workplace injuries accounted for 71.1% of total costs, while the next five accounted for less than 5% each.

A review of the top five causes of the most disabling workplace injuries is important:

1. Overexertion (excessive lifting, pushing, pulling, holding carrying, throwing): $12.75 billion;

2. Fall on the same level: $7.94 billion;

3. Fall to lower level: $5.35 billion;

4. Bodily reaction (bending, climbing, reaching, standing, sitting, slipping or tripping without falling): $5.28 billion;

5. Struck by object (such as a tool falling on a worker from above): $4.64 billion

What is striking is that of the five most disabling injuries, three are very preventable:  a fall from the same level or lower lever, and an employee being struck by an object.   

What is further interesting to note is that while this Index looks at the cost of providing help to those who have been hurt,  where is the focus that should be on preventing these harms to workers? Couldn’t proper training, regular audits of workplace, safety initiatives and setting and publicizing attainable goals, reduce these type of injuries for employers, and cut the incidents and thus the costs associating with injury? 

The Ohio Bureau of Workers’ Compensation has programs to assist employers in accident prevention.  The results of this study, however, begs the question as to how many employers take advantage of these programs. 

The results of the investigations of the Upper Branch Mine explosion and the Deep Water Horizon disaster clearly establish that employers routinely trade profits for safety.

Unfortunately, there is not a day that goes by where a worker is not injured or maimed by a preventable accident.  Yet, it is abundantly clear that employers continue to fail to take the necessary steps to implement safety strategies to prevent these regrettable occurrences.  As Bill Takacs pointed in his recent blog, now is the not the time to bend to big business pressure for less governmental regulation.  Rather, more regulation is necessary to prevent these disasters from striking.

You’ve  been injured on the job.  You are off work collecting temporary total disability benefits.  You fully intend on returning to the workforce once your injuries have healed.  So, no need to bother with filing for social security disability, right?

Wrong.  It is important to know that you are eligible to apply for social security disability while collecting temporary total disability benefits as a result of a work related injury, as long as you have a disability that will last a year or longer.  Often, individuals can collect both temporary total disability benefits and social security disability, albeit perhaps at a reduced rate from social security.  However, if your social security disability is reduced as a result of collecting temporary total disability benefits under a workers’ compensation claim, once your temporary total disability benefits end, social security will reassess your case to determine if you are eligible for additional money each month.

In some instances, your temporary total disability benefits may completely offset your social security disability benefits, meaning you will not see any money from social security while collecting temporary total disability benefits.  However, the benefit to pursuing social security disability benefits even in this scenario is that, again, when your temporary total disability benefits end, social security disability will reassess your case and you will then be eligible to collect compensation.

Furthermore, even if you have every intention of returning to the workforce once your injuries have healed, you can still be eligible to collect social security disability benefits during the time you are off work recovering.  Social security does allow for individuals to collect a closed period of benefits, covering the time you are out of the workforce, and then simply ceasing upon your return to work.

In addition to the financial benefit to social security disability, there is the added benefit of Medicare, which can provide medical coverage to you for conditions that are unrelated to your workers’ compensation claim.  In many cases, this is equally as important as the compensation aspect of social security disability.  Although your workers’ compensation claim may provide coverage for medical treatment related to your work related injuries, your workers’ compensation claim will not provide medical coverage for any conditions unrelated to your workers’ compensation claim.

If you or anyone you know have questions regarding social security disability, contact Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A.  We are here to answer your questions and assist you with getting the benefits you rightfully deserve.

The first time I met Joe, the situation looked pretty grim. His workers’ compensation claim had been denied, and we were meeting to discuss whether a successful appeal to common pleas court might be possible. He told me that he hurt his neck while lifting and prying on a section of an eight inch water pipe while trying to get it in position to connect it to another pipe. While straining to force the partially buried pipe up several inches, he felt something pop in his neck. He did not have any pain at the time, so he continued with his work, and didn’t say anything about the pop in his neck to his boss or his co-workers. He finished the shift, and worked the next day.

The next evening, he began to feel numbness in his chest and side. Soon after that, his legs felt weak and he was having trouble walking. He drove himself to an emergency room, thinking he was having a stroke. When tests at the local ER ruled out a stroke, he was transferred to a hospital in Toledo. Once in Toledo, more testing and a neurological evaluation revealed that a ruptured disc in his neck was causing pressure on his spinal cord. Emergency surgery relieved the pressure on his spinal cord. At this point, the medical emergency was over, but the legal problems were only beginning.

Because Joe had no symptoms other than the pop in his neck until about 24 hours later, he had not reported the incident to his employer or his coworkers. Because he thought he was having a stroke when he went to the emergency room, he had not told the doctors about being hurt at work. As a result, his doctors had been unable to provide medical reports supporting the claim when it was before the hearing officers at the Industrial Commission. To make matters worse, Joe’s employer had not offered medical insurance, and with his workers’ compensation claim denied, he was faced with a mountain of medical bills.

Joe struck me as honest, and I recalled medical testimony in a case I had handled several years earlier that spinal cord compression does not always result in immediate symptoms, so it seemed to make sense that the symptoms which developed in the twenty four to thirty six hours after the incident at work could be connected to that incident. I believed his story and agreed to pursue his appeal, but with no accident report and no history of a work injury in the initial medical records, it was not going to be easy.

Once in court, we learned through pretrial discovery the names of workers from another company who had been on the jobsite. In depositions of the other workers we were able to confirm the basic history Joe had given me as to what he was doing and who he was working with when he felt the pop in his neck. The next problem was that Joe’s neurosurgeon had previously been unwilling to say that his injury was work-related, because the initial records did not document the history of a work-place injury. Armed with evidence to corroborate Joe’s story, however, I was able to present that evidence to the doctor, and he eventually testified that the incident at work was the cause of the ruptured disc and the spinal cord compression.

Eighteen months after he got hurt, and a year after I first met him, a jury was unanimous in finding that Joe had sustained a cervical disc herniation in the course of and arising out of his employment, and that he was entitled to benefits under the workers’ compensation act. As a result of that verdict, there is no more mountain of medical bills, Joe has been compensated for his lost wages, and he is now pursuing vocational rehabilitation services, hoping to return to work.

There is no doubt that valid claims are sometimes denied by BWC and the Industrial Commission. It is important to remember that the denial of a claim by the Industrial Commission is not always the end of the matter. In many instances you have the right to have your case decided by a jury, and that can make all the difference.

As I prepared for my most recent hearing on Wage loss compensation, I was again struck by the cumbersome and unfair rules that apply to receiving this compensation.  While the Ohio Revised Code provides for wage loss compensation when an injured worker is unable to find employment consistent with his disability resulting from an injury or occupational disease, the Code is fairly silent on the requirements to get that compensation.  However, the Ohio Administrative Code has extensive rules that govern the payment of wage loss compensation and these rules make the receipt of the benefit incredibly difficult for many, if not most injured workers.

The injured workers must file the appropriate forms, properly completed not only by the injured worker but also the Dr. who must follow strict requirements to detail the restrictions in place and the length of those restrictions. The Dr. must continue to complete forms either every 90 or every 180 days depending on whether the restrictions are temporary or permanent.    Then, the injured work must first look for “comparably paying work” equal or greater in pay then his former job.  Anyone who has represented an injured work knows there is no comparably paying work particularly if the injured worker was a long term employee! 

The employee is required to engage in a “good faith” search for comparably paying work and that search requires a “consistent, sincere and best attempt(s)” to obtain suitable employment that will eliminate the wage loss.  The Industrial Commission is given extensive criteria by which to judge the job search.  For instance, the injured worker must seek employment with the employer of record even if that employer refused to provide him/her with light duty work ever or whether that employer terminated the injured worker for being off work for too long.  Additionally, the employee must register with the Ohio Bureau of Employment Services even if they do not qualify for unemployment or have never qualified for that benefit. 

Additionally, the Code tells us that the injured worker is to find full time employment and if not then the injured worker is to continue searching for jobs to mitigate his/her wage loss in any hours when the work is less than full-time. 

The extensive rules are simply too great for most injured workers particular if not represented by an attorney.  One minor mistake on the application or in the paperwork will lead to a denial of wage loss.  Additionally, most injured workers have no idea that these extensive rules exist and are often on the losing end even if they did their best to try to find work or have found work making less money.

Employers are allowed to terminate injured workers if they can’t return to the work they were performing at the time of their injury.  Employers are not required to provide light duty work for any injured employee.  Yet, injured workers are denied wage loss compensation most times in these situations.  It’s just not fair.

Recently, I received an unsolicited message from an anonymous source suggesting that there isn’t as much need for Workers’ Compensation today as there was a century ago because employers are more safety conscious today than they were back then. Hmmm, I thought.

Tell that to our client who we will simply refer to as “JK” to protect his confidentiality. In August, 2011, 31 year old JK was in training at a factory in northwest Ohio, a position he had held for approximately one month. He was training to operate a large press that his coworkers referred to as “The Hammer”. The press was set up so that it was supposed to be activated only with the use of a foot peddle. It had a large die inside in it that needed periodically to be aligned.

On one occasion JK reached inside of the press to align the die as he had been trained. He did not touch the foot peddle. Unfortunately, the press activated on its own and as a result the press came down with great force and operating at temperatures approaching 2000 degrees onto JK’s right arm and left hand and wrist. He suffered an amputation of his right arm above his elbow and an amputation of his left hand above his wrist. And yes, he is lucky to be alive today. He is still receiving rehabiliation services which may very well be a lifetime requirement.

His Workers’ Compensation claim was approved without difficulty. The medical bills are being paid and he is being compensated. But unfortunately, Workers’ Compensation never replaces 100% of what is lost. Imagine his quality of life today. Imagine the emotional consequences he has had to endure. What about future lost earnings that would contemplate increases in his wages as he gained experience and tenure on the job? What about pain and suffering? Sadly, Workers’ Compensation will not pay him for that.

While no amount of money will ever approach making JK whole for the losses he has sustained, he does have additional legal remedies that are being explored beyond Workers’ Compensation including an award for Violation of a Specific Safety Requirement as well as law suits against the employer and the manufacturer of the press that was responsible for this horrendous injury.

At a time when big business is calling for less government regulation, I will always think of JK’s experience and wonder if maybe, just maybe, this all could have been avoided if there had been more regulation in place. In the twenty-first century, tragedies like this can be avoided and the real priority should be on the value and quality of human life – and not on corporate profits.

Ohio law provides for the payment of lost wages, or “temporary total disability” where an injury prevents the worker from returning to his/her former position of employment.  Unscrupulous employers attempt to avoid the payment of temporary total by terminating the injured worker’s employment with the company. Unfortunately, the Ohio Supreme Court, in State ex rel. Louisiana Pacific, determined that in certain circumstances, termination can block the payment of temporary total. The Court determined that termination is a proper defense to the payment of temporary total where the termination was in violation of clearly defined written work rule, that had been previously identified as a dischargeable offense, and the employee knew or should have known the conduct would result in termination.

Since the Louisiana Pacific case, employers have sought to defend against the payment of temporary total disability by seeking to discharge the injured worker. Over the years, the Supreme Court has narrowed the circumstances in which the defense applies. Moreover, the Court determined that the defense does not apply where an injured workers is physically unable to return to the job they were doing at the time of injury. Consequently, injured workers were able to receive temporary total disability even if terminated so long as their physical restrictions prevented them from returning to their original job.

However, two recent court cases give cause for concern. In both State ex rel. Apostolic and State ex rel. Adkins, the injured workers were unable to return to their original job, but were provided light duty work assignments by their employer. However, both employees were terminated while on a light duty assignment. The Court determined that so long has the requirements of Lousiana Pacific were met, a termination could stand in the way of the payment of temporary total disabilty, even though neither worker could physicially perform their regular job.

The holdings in Apostolic and Adkins are cause for concern as employers have now been given incentive to provide light duty work assignments to their injured workers, then seek to find a way to terminate their employment thereby preventing these injured workers from receiving lost wage compensation. 

So many of our clients already feel threatened and intimidated by their employers for filing legitimate workers’ compensation claims. In many circumstances, injured workers forego reporting and filing a claims so as to avoid ultimately getting terminated from their job. These recent court holdings serve to further create a climate hostile to injured workers within plants, hospitals, schools and all other places of employment all across Ohio. Given the attack on workers’ rights by the attempted passage of Senate Bill 5, it is safe to assume that the current administration in Columbus will do nothing to prevent this hostility towards injured workers.

During my last semester of law school, I completed a research paper on the national trend of state legislatures imposing limits on employer workers’ compensation liability.  Unfortunately, this trend is continuing in Michigan, where House Bill 5002 is working its way through the state legislature.

House Bill 5002 seeks to reduce the cost of workers’ compensation on the state budget.  This reduction, however, comes at a steep price for injured workers.  For example, the bill would require an injured worker who cannot perform the position in which he or she was injured to look for other work within “his or her qualifications, training and transferable skills.”  If an injured worker cannot find such work, their benefits may nonetheless be reduced by wages of positions he or she could perform.  As a result, “workers’ comp benefits could be reduced based on theoretical wages….”

Similarly, if an injured worker is eligible for a pension, but has not elected to take it, at the time of injury, House Bill 5002 would allow for the reduction of benefits based on the amount the injured worker could have been collecting had they chosen to retire.  Thus, an injured worker “‘could see their worker compensation benefit greatly reduced or wiped out altogether to offset a pension they don’t receive.”

The other main anti-worker component to House Bill 5002 would expand a Michigan employer’s ability to control an injured worker’s treatment from ten (10) days to forty-five (45) days (in Ohio, injured workers have the freedom to select a provider of their choice at anytime during their treatment, so long as the physician is BWC certified).

So, what does this mean for Ohio?  The current administration in Columbus has made no secret about its desire to reform Ohio’s workers’ compensation system.  Shortly after winning the gubernatorial election in November 2010, John Kasich appointed Steve Bueher as the Administrator of the Bureau of Workers’ Compensation.  In so doing, Governor Kasich stated that, in his opinion, the workers’ compensation system in Ohio “is a mess of red tape and anti-business processes,” spurring the need for reform.  Further, the state legislature is set to discuss workers’ compensation reform in the new year.  Let’s just hope it does not adopt any of the anti-worker ideas currently making the rounds just across the border.