2014 Workers' Compensation Seminar

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What you know, can and often does, hurt you

The ADA +Workers

Compensation in Ohio

presented by Brendan Feheley | Workers’ Comp Seminar | November 13, 2014

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Agenda

ADA Refresher!

Hypothetical (or not) Workers’ Comp/ADA Claim

Light Duty

Conclusion

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You must engage in the interactive process + accommodate

disabled employees

What does the ADA require?

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Disability

physical or mental impairment that

substantially limits a major life

activity

a record of such impairment

being regarded as having such an

impairment

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In the Beginning the Living was Easy

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Pre-ADAAA Amendments

Most ADA cases decided on whether individual was actually disabled

Substantially limit a major life activity

Not whether Company had accommodated individual

General rule: Temporary conditions, those that would eventually heal, were not disabilities

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Ch… Ch… Ch… Ch… Changes

ADA Amendments Act signed September 2008

Stated goal of Act: to construe the definition of disabilityas broadly as possible under the Act

To make it easier for individuals to meet burden of proving they are disabled

How did they do it?

Changed the definition of substantially limits

Expanded the list of major life activities

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An impairment that might but does not have to prevent or severely or even

significantly restrict a major life activity

Substantially Limits =

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Major Life Activities

caring for oneself

performing manual tasks

seeing, hearing, eating,

sleeping walking, standing

lifting, bending, speaking,

breathing learning, reading

concentrating, thinking,

communicating, workingPH

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ICA

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control of immune system

normal cell growth

digestive, bowel, bladder

neurological, brain

respiratory, circulatory

endocrine

reproductive functions

INT

ER

NA

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Were the changes effective?

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I came to a Workers’ Comp. Seminar!

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Example #1

4 documents

2 Physicians report of workability

2 Medical reports

Each one has important information we need to be aware of:

Physician’s report of Workability

Can’t work for 11 months

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Is Anyone Here a Doctor?

Medical report Dated July 13

Notes problems with neck and lower back causing pain.

Depression?

Past surgeries

New claim possibility?

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A Word about “Record Of” +“Regarded As”Think about your WC file room…

How many claims are you aware of where employee was out for six months or more?

Those employees now have a “record of disability”

Timing is everything on record of claims

Regarded As claims = new standard as well

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Doctors Doctors

Medical Report August 28, 2013

Finding of clinical depression?

Notes past history of depression.

Will it be allowed in claim?

Does it matter?

Workability Report #2

Can’t work 3 months

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Identify when is the duty is triggered

Engage with the employee

Choose and maintain a reasonable

accommodation

What Do I Do?

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Types of Reasonable Accommodations

Access

Technology

Leave

Work from Home

Transfer

Light Duty

Attendance Modification

Stealing

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What if none of these work?

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Example #2

Workability Report

Restrictions Temporary

Right on six month limit

Has some ability to work

4 hours sitting

2 hours walking

2 hours standing

Disabling condition is sprain strain of knee, all other problems shoulder

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Example #2

Is employee disabled?

Can’t rely only on workability report

Date of injury 5 years ago

202 lost days, 1160 restricted days

Primary problem is shoulder not knee

Doctor wants follow up in six months

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Light Duty

Transitional Work Programs

Workers Comp only?

UPS case currently before Supreme Court

Pregnant employee requests light duty (removing lifting)

Boss says no, Company policy is light duty only for Workers Comp. and ADA

What does it mean for you?

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Light Duty Considerations

Have a formal planFollow it every time (or most of the time)

Consider how many people in your workplace may have disabilities

Are they eligible for light duty currently?

Should they be?

Could you accommodate them otherwise?

Consider the costs associated with the plan and inclusion of others in the plan

Is restructuring the plan an option?

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Takeaway Points

Most compensable comp. claims now have at least a possibility of being a substantially limiting impairment for ADA purposes

When in doubt, talk to the employee, see what, if anything can be done

Most old claims with any significance now meet “record of standard”

Documentation of what you’re doing and why you’re doing it becomes more key than ever

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More Takeaways

Take a look at your light duty and transitional work plans

You don’t want to be the test case

It is very risky to separate your comp. claims from other medical claims for purposes of accommodation

If you’re a service provider, you can add huge value to your client by remembering ADA responsibilities

The reverse is also true

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Any Questions?

Brendan Feheley, DirectorKegler Brown Hill + Ritterbfeheley@keglerbrown.comkeglerbrown.com/brendanfeheley614-462-5482

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Where Exactly Do We Stand with

“Substantial Aggravation”

presented by Dave McCarty

Workers’ Compensation Seminar

November 13, 2014

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Ackerman v. Industrial Commission (1936)

An “aggravation” of a pre-existing condition qualifies as an “injury” for purposes of compensability.

Of course, the condition must be proven to pre-exist in order for it to be aggravated.

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McKee v. Electric Auto-Lite (1958)Swanton v. Stringer (1975)

Acceleration of an occupational disease must be “substantial” to be compensable under Ohio workers’ compensation law.

A claim of acceleration of a disabling condition requires proof that the disability or death was "accelerated by a substantial period of time" as a result of the injury.

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Ohio Jury Instructions (Sept. 2014)

Substantial is defined as “considerable, major, or

significant, not trifling or small.”

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Schell v. Globe Trucking (1990)

Ohio Supreme Court rejects employers’ argument that, like with acceleration in occupational diseases, an aggravation of an injury also must be substantial in order to be compensable.

Definition of “injury” in the statute, coupled with liberal construction mandate (4123.95), compels conclusion that any injury, no matter how trifling or small, is compensable.

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Supreme Court pooh-poohs the employers’ warning that claimants would then be entitled to payments based on the full extent of disability, including not only the component of disability corresponding to the work-related aggravation, but also the component corresponding to the pre-existing condition.

Court says a legislative fix – a change to the statutory language – is the only way to address the issue.

Schell v. Globe Trucking (1990)

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We all know what happened next…

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The dreaded “Symptomatic Aggravation”

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Not only “now it hurts +it didn’t before”

Also, “it did hurt before…and now it hurts worse”

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Of course, the employer pays for everything, not just treatment/

compensation attributable to the aggravation as opposed to the underlying

and pre-existing condition itself.

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The dreaded “Straw that Broke the Camel’s Back”

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And then…

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Senate Bill 7

Applies to all claims with date of injury on or after 8/25/06

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Ohio Revised Code 4123.01(C)(4)

“Injury” does not include a condition that pre-existed an injury unless that pre-existing

condition is substantially aggravated by the injury.

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Ohio Revised Code 4123.01(C)(4)

Such a substantial aggravation must be documented by

objective diagnostic findings, objective clinical findings, or

objective test results.

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Ohio Revised Code 4123.01(C)(4)

Subjective complaints may be evidence of a substantial aggravation.

However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.

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Ohio Revised Code 4123.54(G)

If a condition that pre-existed an injury is substantially aggravated by the injury, and that injury is documented by objective diagnostic findings, objective clinical findings, or objective test results, no compensation or benefits are payable because of the pre-existing condition once that condition has returned to a level that would have existed without the injury.

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Hearing Officer Manual Memo A5

When allowing a claim, the hearing officer must cite in the order the evidence which documents the substantial aggravation by objective diagnostic findings, objective clinical findings, or objective test results.

The determination as to whether a “substantial aggravation’ has occurred is a legal determination rather than a medical determination. Therefore, while it is necessary that a hearing officer rely on medical evidence which provides the necessary documentation pursuant to the statute, it is not necessary that the relied upon medical evidence contain an opinion as to substantial aggravation.

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So…what have we learned in 8 years?

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Still Unanswered

QUESTIONS

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What We Do Know:

One fear not realized

It’s not business as usualfor the most part

Need objective evidence to prove a substantial aggravation

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Pflanz v. Pilkington LOF (2011) First District Ct. of Appeals

Aggravation of a pre-existing condition must be substantial both in the sense of being considerableand in the sense of being firmly

established through the presentation of objective evidence.

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Smith v. Lucas County (2011)Sixth District Court of Appeals

(First reported decision post- SB 7)

Briggs v. Franklin Pre-Release Ctr. (2014)Twelfth District Ct. of Appeals

The condition that supposedly has been aggravated must first be

proven to have pre-existed the date of injury... DUH

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Gardi v. Lakewood Sch. Dist. Bd. of Education (2013)

Eighth District Ct. of Appeals

However, it is not essential that there always be pre-injury

documentation of the condition.

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Lake v. Anne Grady Corp. (2013)Sixth District Ct. of Appeals

It’s not enough for a doctor to submit an affidavit or report saying substantial aggravation has been proven by repeated x-rays, clinical findings and subjective complaints…if the doctor doesn’t specify exactly what x-rays, clinical findings and subjective complaints he/she is referring to!

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Before + after x-rays, MRIs and other diagnostic tests can be enough to prove substantial

aggravation, but they shouldn’t always be enough.

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Brate v. Rolls-Royce Energy Sys. (2012)Coler v. Anchor Acquisition (2014)

Fifth District Ct. of Appeals

Before + after diagnostics, along with objective clinical test

results, will usually be enough.

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IMPORTANTIt’s not enough – or shouldn’t

be enough – that the file contains objective evidence of a

substantial aggravation.

We still need a doctor to provide a causal link between the injury and the pre-existing

condition.

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What About Range of Motion?

Cassens Transport v. Bohl (2012)

Third District Ct. of Appeals

Harrison v. Panera (2013)

Second District Ct. of Appeals

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What About “Flare Ups”?

Swiczkowski v. Senior Care Mgmt. (2006)

Sixth District Ct. of Appeals

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Return to Pre-Injury Baseline

When?

How?

What does it mean?

Appealable into court?

C-92?

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Post-Armstrong case, is an aggravation of pre-existing

psychological condition even compensable?

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Any Questions?

Dave McCarty, DirectorKegler Brown Hill + Ritterdmccarty@keglerbrown.comkeglerbrown.com/mccarty614-462-5469

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Wage Loss

presented by Katja GarveyWorkers’ Compensation Seminar

November 13, 2014

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protectedNon-working wage loss

compensationattorneysdisablility

enableWorking wage loss

employers

injured

circumstances

temporarycoverage

granted

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Treatment plateau in the healing process

Full RecoveryStabilized +

Improvement Not Expected

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Working wage loss

Non-working wage loss

Maximum aggregate

max

weeks

max

weeks

weeks

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ORC 4123.56(B)(1)

“66.67% of the difference between the employee’s AWW and the

employee’s present earnings, not to exceed the statewide AWW.”

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1997

Calculate AWW at time of injury

Greater of AWW or FWW at time of injury

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Application + Job Search Statement

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C-140

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C-94A

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C-141

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Under certain circumstances, job search statements for working wage loss are not

necessary anymore

OAC 4125-1-01(D)

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SI employer, IC or BWC can excuse

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Return to alternative employment with same employer

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IW must miss work to get treatmentthat cannot be obtained outside of work hours

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Online Job Search Requirements

Copy of the online posting

Verification of the application submission

Result of the contact

Any other information required by the BWC job search statement

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completely removed from the active work force

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Important for SI Employers

Adjudicate initial and subsequent requests for wage loss compensation within 30 days after receiving the requests

Make sure to file copies of your decisions with the BWC or IC

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Permanent Restrictions

OAC 4125-1-01(B)(3)

BWC or SI employer MAY request a supplemental medical report once during every 180 day periodsubsequent to the filing of the initial application

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Good Faith Job Search

Consistent, sincere and best attempts to obtain suitable employment that will eliminate wage loss

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Suitable Employment:

Within the injured worker's restrictions

With the employer of record

Unless the injured worker establishes that it would befutile to seek suitable employment with the employer of record. For Example:

Discharged

Employer of record is out of business

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Tips for Employers

Supplemental medical reports

Wage loss statements for job search

SI employers have 30 days to adjudicate requests and file copies

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Any Questions?

Katja Garvey, AssociateKegler Brown Hill + Ritterkgarvey@keglerbrown.comkeglerbrown.com/garvey614-462-5490

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HELP! I’ve Fallen + I Can’t Get Comp

presented by Randall W. Mikes

Workers’ Compensation Seminar

November 13, 2014

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Types of Falls at Work

Falls Due to the Condition of Employment

+ Almost always compensable

Falls Due to the Condition the Claimant

+ These are not compensable unless a condition of employment caused the injury or made it worse

Unexplained Falls

+ Claimant has burden to eliminate idiopathic causes for the fall+ If claimant does so, then fall presumed to be caused by

condition of employment even if unidentified

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Indus. Comm. v. Nelson127 Ohio St. 41 (1933)

Claimant has epileptic fit and falls

Head strikes corner of a spot welding machine

Injury sustained from fall due to idiopathic cause compensable “whenever the conditions attached to the place of employment are factors in causing injury to a workman.”

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Indus. Comm. v. Nelson127 Ohio St. 41 (1933)

“If the injured workman fell from the scaffold or ladder or stair, or in the hold of the ship, even

though the fall was induced by a fit or seizure or other idiopathic condition of the workman, there is

practical accord upon the proposition that the resulting injury arose out of the employment.”

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Stanfield v. Indus. Comm146 Ohio St. 3d 583 (1946)

Claimant had heart attack and fell backward striking head on concrete floor

Fall held not compensable

“In the instant case the floor was in no sense an added risk or hazard incident to the employment. The decedent’s head simply struck the common surface upon which he was walking – an experience that could have occurred to him in any building or on the street irrespective of his employment.”

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Compensability of Idiopathic Falls

Fall to floor: not compensable

Fall into machine, desk, table, or anything that distinguishes the fall at work from one that could have occurred somewhere else: compensable

However, fall from a forklift onto the concrete floor: held that issue of fact existed whether falling from forklift worsened the injury

Fall from seizure into public road: held issue of fact whether requirement that claimant sweep the public sidewalk next to busy road created an added risk

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FALLSUNEXPLAINED

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Waller v. Mayfield37 Ohio St. 3d 118 (1988)

Claimant fell down stairs at his place of employment

No hazard causing fall could be identified

Held that in cases involving unexplained falls, claimant has the initial burden to eliminate idiopathic causes

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Waller v. Mayfield37 Ohio St. 3d 118 (1988)

“The term ‘idiopathic’ is defined as ‘peculiar to the individual.’ Webster’s Third New International

Dictionary (1986) 1123. For workers’ compensation purposes, idiopathic refers to an employee’s pre-

existing physical weakness or disease that contributes to the accident. “Larson, The Law of Workman’s

Compensation (1985) 3-308, Section 12.00.”

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Waller v. Mayfield37 Ohio St. 3d 118 (1988)

“In a workers’ compensation case where idiopathic causes for an unexplained fall have been eliminated, an inference arises that the fall is traceable to some ordinary risk, albeit

unidentified, to which the employee was exposed on the employment premises.”

Conclusion: unexplained falls are compensable

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Evidence Sufficient to Eliminate Idiopathic Causes

Simple: claimant testifies that he/she was not lightheaded, dizzy, faint or prone to falling and was not taking any medications that would cause dizziness, etc.

Expert testimony not necessary to eliminate pre-existing medical conditions as an idiopathic cause

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Falls in Stairways

Nelson included “stairs” with scaffolds and ladders as hazards of employment

Waller was a stair case; required claimant to eliminate idiopathic causes.

Employer: you must prove that the cause was idiopathic

Case example #1: Pre-existing physical condition causes fall

Case example #2: Distraction due to the use of cell phone causes fall

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Parking Lots + Public Places

Issue is employer’s degree of control

Fall from condition of lot controlled by employer is compensable

Fall from condition of lot not controlled by employer is generally not compensable

Foster v. Bureau of Workers’ Comp. (2nd Dist.), 2013-Ohio-4075

Thephasith v. Automotive Specialty Co. (10th Dist.), 2000-Ohio App Lexis 5300

Common areas in shopping malls and office buildings

Control of the claimant in public space may be compensable

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Traveling Employees

Motel parking lot: compensable

Hotel bathroom: not compensable

Issue: typically comes down to control by and benefit to the employer

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Strategies for Defense of Fall Cases

Claim Investigation

Witness Statements

Preserve Video

Preserve Evidence(regarding condition of place of fall)

Obtain Medical Records(reflecting prior medical history)

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Any Questions?

Randy Mikes, Of CounselKegler Brown Hill + Ritterrmikes@keglerbrown.comkeglerbrown.com/mikes614-462-5414

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UPDATEpresented by Tony Fiore

Workers’ Compensation SeminarNovember 13, 2014

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BURNING QUESTION

Why don’t we privatize Ohio’s workers’

compensation system?

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What was your cut? Another Billion Back

Provides a one-time rebate of $1 billion for private employers and public-taxing districts.

Increases BWC’s commitment to safety by up to $35 million over the next two years.

Creates several new safety initiatives that leverage BWC’s occupational health and safety expertise to create innovative solutions for improving the safety, health and wellness of Ohio’s workforce.

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Recent Employer Cost Savings

Private Employers

Reduced private employer average base rates, bringing combined collections over the last four years down by $409 million

Public Employers

Reduced average rates for public employers to their lowest level in more than 30 years.

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Prospective Billing

A switch to a prospective billing system will provide the following benefits to Ohio employers:

Overall base rate reduction of 2 percent for private employers and 4 percent for public employers

Opportunities for more flexible payment options (up to 12 installments)

Better opportunities for BWC to provide quotes online or via the phone

Increased ability for BWC to detect employer non-compliance and fraud

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Important Dates

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F CUSEmployers’

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BWC Focus

1. Expansion of the Safety Council Program to incorporate health and wellness

2. Safety Intervention Grant Program

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2013-14 Legislation

HB 34

HB 143

HB 338

HB 431

HB 493

HB 539

SB 176

SB 252

SB 368

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HB 493

MBR Workers’ Compensation

Eff. 9/17/14 (and 7/1/2015)

Prospective billing/Rate reduction/Transition Credit

All-states coverage options

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CHANGES2015 WC

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131st

General Assembly130th

General Assembly

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WHAT’S NEXT

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Business Community Reforms Still on the Table

“No show, no doe”

3rd Party tortfeasor – defer experience rating

Independent contractor versus employee

Lingering interstate jurisdiction issues

What else needs addressed in the system?

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Thank You!

Tony Fiore, Of CounselKegler Brown Hill + Ritterafiore@keglerbrown.comkeglerbrown.com/fiore614.462.5428

@anthoniofiore

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