Articles and News:
Understanding Temporary Total Disability,
(And Arcane Concepts Like "Full Weekly Wage,"
"Average Weekly Wage," "Statewide Average Weekly Wage"
And "Maximum Medical Improvement")
Note: This about Ohio law. Other states may differ. These general
concepts may not apply to your individual situation. For a free initial
consultation in Worthington, Ohio, please contact Paul Hemmer 614-547-0350.
Temporary Total Disability (TTD)
Temporary Total Disability (TTD) is paid as compensation for lost earnings during the period of time the work injury prevents the claimant from returning to the position of employment the claimant held at the time of injury. TTD is paid for the entire period off work if the claimant misses 15 or more days of work; for days 8 through 14 if there are 15 or less days of lost time; and no TTD payment if the claimant misses 7 days or less....
BWC Clarifies Interstate Employment
The Bureau of workers Compensation has released a memorandum of law summarizing the Bureau's position
on workers compensation coverage for employees of Ohio employers working in other states. For example, a subcontractor
may have occasional jobs accross the line in Indiana. This
memorandum explains the coverage questions.
2006 Workers Compensation Law Amendments
In March 2006 the Ohio legislature passed Senate Bill 7 which included extensive
amendments to the Ohio Workers Compensation statutes. The Bill was supported by the
Ohio Chamber of Commerce and other business groups and the changes are effective
June 27, 2006. Following is a summary of many changes affecting the Bureau of Workers
Compensation, employers and injured workers:
• R.C. 4123.01(C)(4) now requires ....
Earnings From All Jobs To Be Included In Average Weekly Wage
In State ex re1. FedEx Ground Package Sys., Inc.. v. Indus. Commn.,
126 Ohio St.3d 37, 2010-Ohio-2451, the self insured employer set the AWW and FWW based solely on part-time earnings with that employer. The Commission granted the claimant's motion to reset the average and full weekly wage based on his combined earnings from another employer. The Court rejected the employer's mandamus challenge and held that the Commission was correct in including wages from the claimant's second job in calculation of the average and full weekly wage used as the basis for determining the amount of temporary total disability payments. Further, use of the "special circumstances" provision of R.C. § 4123.61 is not necessary. R.C. § 4123.61 includes all earnings from the 52 weeks prior to injury.
Claimant May File Late Petition In Employer Court Appeal
In Wilkerson v. Internatl. Truck & Engine Corp.,
181 Ohio App.3d 303, 2009-Ohio-887, The Second District Court of Appeals reversed a Clark County decision granting
judgment in favor of an employer where the injured worker failed to file her petition within 30 days in response
to a RC 4123.512 employer appeal. Because the claimant was not represented by counsel and had been successful in
the underlying administrative proceeding before the Industrial Commission, it was an abuse of discretion for the
trial court to overrule her motion for leave to file the petition late. The court said: "She could reasonably believe
that since the employer appealed the administrative determination, the employer would be required to proceed first in
the proceedings in the Common Pleas Court with some sort of pleading in additional to the notice of appeal."
2006 Amendments Generally Prospective Only
In Thorton v. Montville Plastics & Rubber, Inc.
121 Ohio St.3d 124, 2009-Ohio-360 , the Court held that 2006 Am. Sub. S.B. No. 7 is prospective in its entirety, with the exception o
f the amendment to R.C. 4123.512 (H) (regarding effect of final court appeal of allowed claim where outcome is adverse to claimant).
The Supreme Court affirmed the judgment of the court of appeals holding that R.C. 4123.512 (D), requiring consent of an employer
before a claimant may voluntarily dismiss an employer's appeal is not retroactive. The Court further indicated that the
2006 amendments were actually effective on August 25, 2006 (when the secretary of state issued the letter certifying that
referendum petitioners had not supplied a sufficient number of valid signatures) rather than October 11, 2006 (the date the
Franklin County Court of Appeals upheld the sufficiency of the secretary of state's letter over the petitioners' challenges)
which had been broadly accepted as the effective date.
Discharge During Disability
In State ex rel.
OmniSource Corp. v. Indus. Commn.113 Ohio St.3d 303, 2007-Ohio-1951, the employer ceased payment of temporary
total benefits after discharging an employee who, after becoming disabled as a result of a work related injury,
was convicted for driving under the influence. The Court held that eligibility for temporary total benefits continues
despite discharge for reasons unrelated to disability. The Court reasoned that a claimant can voluntarily abandon
employment only if the claimant was physically able to perform the work at the time of the alleged abandonment.
No Coverage: Abandonment of Duty
State ex rel. Gross. v. Indus. Commn.
, 115 Ohio St.3d 249, 2007-Ohio-4916, reconsidering
112 Ohio St.3d 65, 2006-Ohio-6500
the Court vacated its earlier decision that repeated and willful disregard of rules and warnings constituted a
voluntary abandonment of employment, disqualifying the injured worker from receipt of temporary total compensation.
The claim involved a sixteen-year-old high school student employed at KFC who sustained serious burn injuries after
ignoring specific safety instructions, oral warnings by his co-workers and supervisors prior to and on the date of
the accident and a written warning label affixed to the equipment involved. Upon reconsideration, the Court held
that when the injured worker is terminated for willful actions which contributed to the injury he remains eligible
for temporary total compensation and has not "voluntarily abandoned" employment.
Permanent Partial Pct. Limits
In State ex rel. Van Gundy v. Indus. Comm., 111 Ohio St.3d 395, 2006-Ohio-5854, the Court held that the Commission is required to combine all permanent partial disability awards under R.C. 4123.57, including awards in expired claims, to determine when the statutory 100 percent ceiling on awards has been met.
Unauthorized Law Practice - TPA's
In Cleveland Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, the Court defined the permissible scope of representation by third-party administrators at Commission hearings. Third-party administrators may communicate the employer’s areas of factual concerns to the hearing officer but may not engage in the practice of law by examining witnesses, citing law or attempting to persuade or advocate legal positions.
VSSR: "Operating Cycle" includes Accidental
State ex re1. Advanced Metal Precision Prods. v. Indus. Commn., 111 Ohio St.3d 109,
2006-Ohio-5336, the Court overruled prior law limiting the definition of the term “operating cycle.”
The Court held that this term as used in former O.A.C. 4121:1-5-11(E) (designed to protect the hands
of a pneumatic or hydraulic press operator by requiring employers to provide a method to prevent
entering the danger zone during the operating cycle; currently O.A.C. 4123:1-5-11) now encompasses
all operator activated press activity, whether intentional or accidental. Prior law had limited the
definition only to cycling that is intentionally activated by the operator.
Medical Opinion; Abuse of Discretion
State ex rel. Crocker v. Indus. Comm., 111 Ohio St.3d 202, 2006-Ohio-5483, t
he Commission initially denied temporary total benefits, finding unpersuasive the opinion
of the attending physician that the injured worker had not reached maximum medical improvement
because he could expect “significant improvement.” A short time later, the Commission denied
R.C. 4123.57(B) scheduled benefits for loss of use based upon the opinion of the same physician,
finding that the loss of use was not yet permanent. The Court upheld the decision of the Court of
Appeals for Franklin County finding an abuse of discretion under Zamora v. Indus. Comm. (1989),
45 Ohio St.3d 17, 543 N.E.2d 87. The Court stated at page 204: “What the Commission cannot do is
accept the same doctor’s opinion on one matter that it previously rejected.”
Final Appealable Order
Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353, the Court resolved
a conflict among appellate districts by holding that an order granting a Civ. R. 35(A)
motion for physical examination in a workers’ compensation claim is not a final, a
ppealable order under R.C. 2505.02. The Court found that this type of order neither
affected a “substantial right” of the party nor was a “provisional remedy.”
State ex rel. Stevens v. Indus. Commn., 110 Ohio St.3d 32, 2006-Ohio-3456, the Court held that
the “special circumstances” provision of R.C. 4123.61 does not include a natural
increase in earnings over the course of time for an injured worker who continues
to work after injury. The court cited practical reasons and characterized earlier
controlling decisions as “confusing and unworkable,” when it specifically overruled
the holdings in State ex rel. Lemke v. Brush Wellman, Inc. (1998), 84 Ohio St. 3d 161
State ex rel. Price v. Cent. Servs., 97 Ohio St. 3d 245, 2002-Ohio-6397 which
permitted such recalculations.
Scheduled Loss Payments
Estate of McKenney v. Indus. Commn., 110 Ohio St.3d 54, 2006-Ohio-3562, the
injured employee died six weeks after he had started receiving payments on awards for
permanent total disability and 850 weeks of scheduled loss compensation for
quadriplegia under R.C. 4123.57. Shortly after applying for a lump sum payment
of the remaining 844 weeks of scheduled loss compensation, the widow died. The Court
held that an injured worker’s dependent’s estate cannot collect compensation payments
unaccrued at the date of death. No further compensation was payable because no
additional sums had accrued prior to the death of the dependent widow and there were
no additional eligible dependents to whom a further award could be made.
Ohio Savings Statute
Fowee v. Wesley Hall, Inc. 108 Ohio St.3d 533, 2006-Ohio-1712, the
Ohio Supreme Court reversed a court of appeals decision that the Ohio saving statute,
R.C. 2305.19 applies only to the party that commences the court action by filing a
notice of appeal. The employer filed an appeal to the common pleas court (pursuant
to R.C. 4123.512) of an Industrial Commission order granting a claimant’s request to
allow an additional medical condition. The claimant filed a timely petition in the
common pleas court but voluntarily dismissed it pursuant to Civ. R 41. After the claimant
failed to refile the petition within the one-year period prescribed by the saving
statute, the trial court granted the employer’s motion for judgment on the pleadings.
The Supreme Court reasoned that to hold otherwise would permit a claimant to
“interminably prolong the proceedings.”
Choice of Law
Interstate Ins. Co. v. G & H Serv. Ctr., Inc., 165 Ohio App.3d 104, 2005-Ohio-5753,
the Third District Court of Appeals held that Louisiana substantive law
applied to a subrogation claim and that the Louisiana workers’ compensation
subrogation statute was not unconstitutional. The claimant, a resident of
Louisiana and employed by a trucking company incorporated in Louisiana, was
injured by a third party in Ohio. Following the accident the claimant received
benefits from the employer’s insurer under the Louisiana workers compensation system.
The insurer filed a subrogation action in Ohio against the alleged Ohio
tortfeasor. The Court found that, even though the Louisiana statute was
similar to an Ohio statute earlier declared unconstitutional by the Ohio
Supreme Court, choice of law rules required application of Louisiana law where
here was no similar case holding the Louisiana statute unconstitutional.
State ex rel. Coffman v. Indus, Com., 109 Ohio St.3d 298, 2006-Ohio-2421,
the Supreme Court found the “unilateral-negligence” doctrine inapplicable
to a violation of a specific safety requirement (“VSSR”) award. Then applicable
Ohio Adm. Code Section 4121:1-5-23(A) required employers to provide approved
protective equipment unless the electrical conductors were isolated from all
possible sources of voltage. The employee was electrocuted after he failed to
follow instructions to first turn off power to the electrical conductors. The
employer argued that the injury was caused by the unilateral negligence of the
employee who failed to shut down the power, contrary to instructions. The
Court held that because the employer had failed to provide protective equipment
in violation of the specific safety requirement, the employee’s negligent
conduct was inconsequential.
Ohio Supreme Court Case:
Injuries Caused by Drug Use
State ex rel. Danstar Builders, Inc. v. Indus. Comm., 108 Ohio St.3d 315, 2006-Ohio-1060,
the Ohio Supreme Court denied an employer's appeal from a workers' compensation
death claim penal award for violation of a specific safety requirement (VSSR). The
employer argued that the employee was high on marijuana when he slipped on ice on a roof
under construction and therefore was solely responsible for his own injury. The
court agreed with the Industrial Commission that the employer was responsible for a VSSR
penalty, thus increasing the award. The court rejected
a public policy argument that the award effectively rewards employee drug use.
The employer also argued that the decedent was a subcontractor not an employee.
The Supreme Court affirmed because the employer had never appealed the initial death claim finding the
decedent to be an employee and because temporary employer can be the responsible employer
for workers' compensation purposes.
Ucker & Hemmer LLC represents employees in workers compensation
and Federal Employers Liability Act claims.
Paul K. Hemmer handles this work in the Columbus,
Nonprofit & Charitable Solicitation Law
Personal Injury Law
Workers' Compensation Law
Ohio Workers' Compensation
Drug Free Workplace
Federal Employers' Liability Act