Light-duty Work as a Defense to Temporary Total Compensation

Under ORC 4123.56 and OAC 4121-3-32, if a claimant refuses to accept work that is within the physical capabilities provided by the claimant's attending physician, temporary total compensation is not payable. This legal principle was reinforced in State ex rel. Akron Paint & Varnish, Inc. v. Gullotta, showing that light duty work can be both a cost reducer in a claim and an effective defense to the payment of temporary total compensation.

In Akron Paint & Varnish the claimant was offered two suitable jobs by his employer and he refused both of them. The claimant then attempted to seek the award of temporary total compensation, a request that was initially denied by the Industrial Commission. Later, the claimant added a new medical condition to his claim. Under the principle of "continuing jurisdiction" the claimant sought payment for the period of temporary total compensation that was previously denied. A Staff Hearing Officer of the Industrial Commission granted this request based on this new medical condition.

The Supreme Court of Ohio, in agreeing with the Court of Appeals, ruled that this award was improper in light of the claimant's refusal to accept the two job offers from his employer:

Although the worsening of an existing medical condition or a newly allowed medical condition often serves as new and changed circumstances justifying the exercise of continuing jurisdiction to modify a previous order, ... in this case, the previous order denying TTD was not based on medical evidence but rather on the statutory bar of compensation when a claimant unjustifiably refuses light-duty work made available by the employer.

It is imperative that employers provide the light-duty job offer in writing and in great detail so that there is little question that the offer of work is consistent with the medical restrictions of the attending physician. Without this detail, the Industrial Commission can state that the offer is not sufficient and proceed to award temporary total compensation.



Ohio Bureau of Workers' Compensation Begins Accepting Applications for Workplace Wellness Grant Program

The Ohio Bureau of Workers' Compensation (BWC) is now accepting applications for its new Workplace Wellness Grant Program. The BWC created the program to help Ohio employers improve the overall health of their workforce and reduce injuries by adding a wellness component to their safety programs that addresses health risk factors specific to their workplaces.
According to the BWC, employers participating in the program will be awarded up to $15,000 over a four-year period to implement wellness programs addressing health risk factors such as obesity and chronic disease. The BWC will gather data from participating employers to determine the effectiveness of the program in reducing claims frequency and costs, improving return-to-work rates, and reducing health care costs for employers.
State fund employers without existing wellness programs who are current on all premiums and other costs are eligible to apply to the BWC for a grant. The BWC is awarding grants on a first-come, first-served basis, based on the availability of funds, and it expects that over 600 businesses will apply.
Once the BWC accepts an employer into the program, the employer is required to submit biannual and annual reporting to the BWC for four years following the implementation of the wellness program and enter into a written agreement with the BWC. Further, the employer is required to implement the wellness program within three months of receiving the grant funds. Employers will be eligible to renew their participation in the program on a yearly basis. An employer will be disqualified from the program, and could face civil or criminal sanctions, if the BWC determines that the employer knowingly misrepresented information on the initial grant application, violated any laws pertaining to confidential personal health information, and/or coerced employees to participate in the workplace wellness program.
Applications for the BWC wellness grant program are available at www.ohiobwc.com.   Employers should call 1-800-OHIOBWC (1-800-644-6292) to verify eligibility before submitting the application.
Roetzel & Andress will continue to provide further information and guidance on this issue to assist you as developments arise. If you should have any questions, please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.



Federal Court Rules Obesity is a Disability under the ADA

A federal district court recently held that severe obesity is a disability under the Americans with Disabilities Act (ADA). In EEOC v. Resources for Human Development, Inc., No. 10-3322 (E.D.La. Dec. 7, 2011), the employee weighed over 500 pounds at the time of her termination. The EEOC brought suit on the employee’s behalf, alleging that the employer violated the ADA by terminating her.

The employer filed a motion for summary judgment on the grounds that obesity did not qualify as a disability under the ADA. The court denied the motion. The ADA does not specifically address obesity, so the court relied on the language in the EEOC’s ADA compliance manual, which states: “being overweight, in and of itself, is not generally an impairment...On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.”

The court also held that there is no requirement that an employee’s obesity be based on a physiological impairment, such as a dysfunction of the metabolic system. A disabled employee is generally not required to prove the underlying basis for his or her impairment. “Voluntariness” is also irrelevant when determining whether a condition is an impairment. For example, the ADA applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, diabetes, and cancer from cigarette smoking.

Other courts have reached different conclusions regarding whether obesity is a disability. One of these courts includes the Sixth Circuit, which governs Ohio. But many of these decisions occurred prior to 2008, when the ADA Amendments Act expanded the definition of a disability. Courts holding that obesity is not a disability may choose to revisit their earlier decisions in light of the recent amendments.

Bottom line for employers: Play it safe. If you want to keep the EEOC at bay, consider obese employees to be protected by the ADA. 



Self-insured Claim Certification and “Continuing Jurisdiction”

For self-insured employers, the decision to reject a claim will lead to a hearing with the Industrial Commission of Ohio, but the decision to certify a claim is seemingly absolute. Thankfully, though, a mechanism does exist for a self-insured employer to dispute a claim post-certification where certain grounds exist. A recent Ohio appellate decision, Lane v. Bur. of Workers’ Comp., 2012-Ohio-209, (2nd Dist. C.A. Jan. 20, 2012), does a good job of reviewing the grounds for “continuing jurisdiction.” 
The Lane case involved an injured worker who, on a Saturday, was arrested for a license suspension and, at the time of his arrest, complained of a left shoulder injury. On the subsequent Monday, the injured worker allegedly injured his left shoulder while pushing a vegetable bin at work. Although this was an unwitnessed incident, the injured worker immediately sought initial treatment and was diagnosed with a shoulder strain, and upon receipt of the initial treatment record, the employer certified the claim for left shoulder strain based on the available information. It should be noted, though, that claim certification was done without knowledge of the arrest that had occurred two days prior. Subsequent to the claim certification, the employer became aware of the arrest and the injured worker’s disclosure of his prior left shoulder injury. The employer filed a motion, alleging that the Industrial Commission had jurisdiction under O.R.C. 4123.52 to “correct a potential fraud and/or mistake of fact” regarding the certification of the claim. The Industrial Commission ruled in the employer’s favor on the basis that discovery of the arrest records constituted “new and changed circumstances” allowing for the exercise of continuing jurisdiction. The claim was denied in its entirety at a Staff Hearing.
Having exhausted his administrative remedies, the injured worker appealed the denied claim in common pleas court, and the trial court, following a bench trial, ruled in favor of the employer. In deciding that the injured worker was not entitled to participate in the workers’ compensation system, the trial court noted that the employer’s prior claim certification as a self-insured employer was no longer in effect after the Industrial Commission assumed jurisdiction, and concluded that the injured workers’ alleged injury was not in the course of, and arising from, his employment. An appeal to the court of appeals was then undertaken by the injured worker.
In its decision to affirm the judgment of the trial court, the appeals court cited O.R.C. 4123.52 and State ex rel. Baker Material Handling Corp. v. Indus. Comm., 69 Ohio St.3d 202, 1994-Ohio-437, regarding continuing jurisdiction. In Baker, the Ohio Supreme Court referenced the statutory provisions of O.R.C. 4123.52 and held that where there were instances of new and changed conditions, fraud, or clerical error, the Industrial Commission had jurisdiction to modify a certified claim. The appeals court also stated that subsequent cases have further expanded the grounds for continuing jurisdiction to include new and changed circumstances, mistakes of fact and law, and “error by an inferior tribunal.”  It is this comprehensive list of “exceptions” that a self-insured employer should be mindful of when managing its claims, as more often than not, new information is discovered post-certification.