Authorization of Diagnostic Testing Does Not Support the Continued Payment of Temporary Total Disability Compensation

In State ex rel. Huffman v. Industrial Commission, 2012-Ohio-1609, the claimant argued that he was entitled to the extension of temporary total disability (TTD) compensation based upon the authorization by the Industrial Commission of Ohio of diagnostic testing recommended by the claimant’s physicians to further medically treat him for an injury in an allowed claim. At the time of this authorization, the Ohio Bureau of Workers’ Compensation (BWC) was requesting that the claimant be declared to have reached maximum medical improvement under the allowed conditions at that time. The claimant argued that termination of TTD compensation would be premature in light of this authorization,  and that he was entitled to continued TTD compensation during the course of this testing.

The Tenth District Court of Appeals disagreed with the claimant’s rationale, citing State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., 2003-Ohio-2259, where the claimant was entitled  to the continued payment of TTD compensation only if the claimant’s allowed conditions had not reached maximum medical improvement. The Tenth District Court of Appeals relied upon the Industrial Commission’s finding that the claimant in this case had reached maximum improvement for the allowed conditions. State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm. does not support the continued payment of TTD compensation under these circumstances. Also, the court held that if the testing showed the existence of new medical conditions, the payment of TTD compensation during the process of the testing to determine these conditions would not be permitted as these conditions would not yet be allowed in the claim.

It has been the common practice before the Industrial Commission of Ohio that if any additional medical treatment is authorized  the termination of TTD is not indicated. State ex rel. Jackson Tube Servs., v. Indus. Comm. instructs the Ohio BWC and Industrial Commission of Ohio that only treatment of the allowed conditions supports the payment of TTD so long as the claimant has not been declared to have reached maximum medical improvement for these conditions.

Contact: Brian A. Tarian


A Cautionary Note to All Employers: Be Sure to Pay Your Workers' Compensation Premiums

A judge in Cuyahoga County, Ohio recently ordered Gray Container, a 55-gallon drum manufacturer, to discontinue its operations for repeatedly refusing to maintain workers' compensation coverage. The injunction against Gray Container, requested by the Ohio Bureau of Workers' Compensation (BWC), was filed to protect the company's current employees. Gray Container has appealed the ruling to the Eighth District Court of Appeals.

"This case is ultimately about fairness – fairness to the employees who deserve protection in the case of workplace injury and fairness to the 250,000 other Ohio businesses who have to pick up the tab when a worker for an uninsured company is injured," said BWC Administrator/CEO Steve Buehrer. "In this instance, Gray Container ignored repeated efforts by our staff to find a workable solution, even as multiple claims were filed by its workers."

According to the BWC, Gray Container allowed its policy to lapse in September 2006 and, despite repeated attempts by the BWC to assist the company to maintain coverage, it failed to protect its employees. During that time, 22 claims, one of which was a death claim, were filed, and Gray Container now owes the BWC almost $700,000. Ohio law ensures benefits for the injured workers even if the employer is without coverage.

The company's owner, Anthony Gray, previously pled no contest to felony failure to comply with workers' compensation laws. Gray was sentenced to one year of probation, 80 hours of community service, and a 90-day suspended jail sentence. He further agreed to make a lump sum payment, make monthly payments, and continue to report payroll and pay premiums in a timely manner. Gray failed to meet any of these arrangements.

This is a situation rarely seen since the overwhelming majority of employers pay their workers' compensation premiums on time as required. Hats off to the Ohio BWC for pursuing this entirely warranted action against a company that clearly put its own interests ahead of both its employees and its responsibility to other employers in Ohio that participate in the state fund.
As developments arise regarding this case, Roetzel & Andress will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.



D.C. Circuit Rules Statute of Limitations is Six Months for OSHA Recordkeeping Violations

On April 6, 2012, the D.C. Circuit Court of Appeals reversed a longstanding precedent regarding the statute of limitations for violating the Occupational Safety and Health Administration’s (OSHA) recordkeeping requirements. In AKM LLC v. Secretary of Labor, 2012 WL 1142273 (D.C. Cir. Apr. 6, 2012), the court ruled that the statute of limitations for such violations is six months rather than five years.
OSHA requires employers to record information about employees’ work-related injuries in three ways. Employers must (1) prepare an incident report and a separate injury log within seven days of learning that an injury occurred; (2) prepare a year-end summary report, certified by a company executive, of all recordable injuries during the calendar year; and (3) save all of these documents for five years.
In AKM LLC v. Secretary of Labor, OSHA inspected the employer and discovered that it failed to diligently record work-related injuries between 2002 and early 2006. On November 8, 2006, OSHA cited the employer because its incident report forms were incomplete, injuries were not entered in the injury log and year-end reviews were not conducted. The improperly recorded injuries occurred between January 11, 2002 and April 22, 2006.
Because the statute of limitations for an OSHA citation is six months after the occurrence of a violation and the injuries giving rise to the recording failures took place more than six months before OSHA issued the citations, the employer moved to dismiss the citations as untimely. However, the Secretary of Labor argued that the violations were “continuing violations” that prevented the statute of limitations from expiring until the end of the five-year record retention period. All of the employer's recording violations, stretching back to 2002, were therefore still occurring when OSHA’s inspection began on May 10, 2006. The Secretary argued the citations were timely because OSHA issued them two days shy of six months after the inspection date.
The court sided with the employer. It held that the employer's failure to make and review records and the workplace injuries that gave rise to those unmet recording duties were “incidents” and “events” which “occurred.” The six-month statute of limitations for OSHA to cite the employer for not properly recording workplace injuries began to run at that time, not at the end of the five-year record retention period. Therefore, OSHA’s citations were untimely, and the court vacated them.
This decision is a rare piece of good news for the business community in a time where each passing week brings news of increased OSHA enforcement. The court’s decision reverses a longstanding OSHA precedent and is a significant victory for employers.



Drugs, a Rogue Police Officer, and … Permanent Total Disability Compensation

It almost sounds like the plot to a new, hip, cinematic thriller. Possibly Oliver Stone's comeback movie or Quentin Tarantino's long-awaited sequel to "Pulp Fiction." Okay, not quite. But those of us in the workers' compensation field can dream, can't we?

The muse for my blog comes from the hallowed halls of the Ohio Supreme Court. In perusing recent decisions, I came across the case of State ex rel. McNea v. Indus. Comm., Slip Opinion No. 2012-Ohio-1296 (Decided March 29, 2012). If you consider the "raw" facts, it has the true makings of a summer blockbuster. Donald F. McNea, Jr. was a police officer for the city of Parma and was awarded permanent total disability (PTD) compensation in 2004 for injuries that he claimed to have sustained in that capacity. Unbeknownst to the parties involved with this determination, Officer McNea had been under investigation by his own department for selling prescription medications. Of note, he was recorded as having made four sales to confidential informants in 2005, netting $6,200. He was later arrested, indicted, and sentenced to three years in prison after having pled guilty to four felony charges.

Here's the best part: In 2007, the Bureau of Workers' Compensation moved the Industrial Commission (IC) to both terminate further PTD compensation and to declare past PTD compensation overpaid as of August 25, 2004, when payments began(!). (Wow! Who saw that coming? Actually, we all did, but I digress.) The end result of the administrative process was that the IC terminated Mr. McNea's PTD compensation after finding that he had engaged in sustained remunerative employment while receiving those benefits. McNea then filed a complaint in mandamus in the Court of Appeals for Franklin County. From there the case ended up in front of the Ohio Supreme Court.

The question for the court was whether McNea had engaged in "sustained remunerative employment" as the result of his illegal activities, and the court ruled that he had. The court stated that the IC had properly relied on the court's prior decision in State ex rel. Lynch v. Indus. Comm., 116 Ohio St.3d 342, 2007-Ohio-6668, which declared that the illicit sale of drugs could constitute sustained remunerative employment sufficient to terminate PTD. Though the injured worker in Lynch was not a police officer, the basic facts are just as compelling. Mr. Lynch was described in the court's decision as having operated an "ongoing crack-cocaine enterprise" out of his home. With facts like these, it has "prequel" written all over it.