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 disability
as 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, working
PHYSICAL
control of immune system
normal cell growth
digestive, bowel, bladder
neurological, brain
respiratory, circulatory
endocrine
reproductive functions
INTERNAL

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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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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 plan
Follow 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, Director
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482

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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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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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Such a substantial aggravation
must be documented by
objective diagnostic findings,
objective clinical findings, or
objective test results.

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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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What We Do Know:
One fear not realized
It’s not business as usual
for 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 considerable
and 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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IMPORTANT
It’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, Director
dmccarty@keglerbrown.com
keglerbrown.com/mccarty
614-462-5469

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Wage Loss
presented by Katja Garvey
November 13, 2014

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protected
Non-working wage loss
compensation
attorneysdisablility
enable
Working wage loss
employers
injured
circumstances
temporary
coverage
granted

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Treatment plateau in the healing process
Full Recovery
Stabilized +
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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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 treatment
that 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 period
subsequent 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 be
futile 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, Associate
kgarvey@keglerbrown.com
keglerbrown.com/garvey
614-462-5490

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HELP!I’ve Fallen + I Can’t Get Comp
presented by Randall W. Mikes
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. Nelson
127 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. Nelson
127 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. Comm
146 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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Waller v. Mayfield
37 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. Mayfield
37 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. Mayfield
37 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 Counsel
rmikes@keglerbrown.com
keglerbrown.com/mikes
614-462-5414

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UPDATEpresented by Tony Fiore
November 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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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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131st
General Assembly
130th
General Assembly

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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 Counsel
afiore@keglerbrown.com
keglerbrown.com/fiore
614.462.5428
@anthoniofiore

2014 Workers' Compensation Seminar

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2014 Workers' Compensation Seminar