Employers Beware – An Award of Attorney Fees and Costs to a Successful Workers’ Compensation Appellant is Not Dependent on How Many Claimed Conditions are Approved/Denied

Late last year, in Holmes v. Crawford Machine, Inc., Slip Opinion No. 2012-Ohio-5380, the Ohio Supreme Court held that R.C. 4123.512(F) entitles a successful workers’ compensation claimant to recover all attorney fees, up to the $4,200 statutory maximum, and all costs, rather than apportioned amounts, when a trial court approves only one of the claimant’s multiple claimed medical conditions. In other words, as long as the trial court approves one claimed condition, R.C. 4123.512(F) entitles a claimant to also recover attorney fees and costs related to specifically disallowed conditions. The Court’s ruling resolved a conflict of decisions between the Third and Tenth District Courts of Appeals.

The case involved a workers’ compensation claim filed by Jeff Holmes for injuries to his hand, arm, shoulder and back that he alleged were caused when he suffered an electric shock while working for Crawford Machine, Inc. Holmes’s claim was ultimately allowed administratively for: left-shoulder strain; electrical shock; low back strain; left-rotator-cuff tear; left-posterior-shoulder dislocation; and abrasion of right fifth finger. Crawford Machine appealed the administrative order to the Crawford County Court of Common Pleas. Holmes petitioned the court for approval of all of his allowed conditions.

Following a jury trial, the court ruled that Holmes was entitled to participate in the Ohio Workers’ Compensation system for the condition of “abrasion right fifth finger” but was not entitled to participate for any of the other conditions that had been administratively allowed. Holmes then petitioned the court for recovery from Crawford Machine of the legal fees and costs he incurred during the appeal process. Crawford Machine argued that Holmes was not entitled to reimbursement of his attorney fees and costs because he had not incurred any attorney fees or costs in relation to his fifth-finger-abrasion condition. The trial court granted Holmes’s motion and ordered Crawford Machine to pay Holmes $4,200 in attorney fees and $7,551.23 in costs.

Crawford Machine appealed from the judgment granting attorney fees and costs, and Holmes appealed from the judgment allowing one, but not all, of his claimed conditions. The Third District Court of Appeals upheld the judgment allowing only one of Holmes’s claimed conditions, and reversed the judgment awarding attorney fees and costs. The Third District certified that its ruling regarding attorney fees and costs was in conflict with a Tenth District Court of Appeals decision on the same legal issue. The Ohio Supreme Court agreed to review the case to resolve the conflict.

Writing for the majority, Justice McGee Brown wrote, “The plain language of R.C. 4123.512(F) requires a trial judge to order reimbursement to a claimant for costs, including attorney fees up to $4,200, if the claimant’s right to participate in the fund is established or upheld on appeal. In this case, Holmes was adjudicated to be entitled to participate in the fund for a fifth-finger abrasion. Therefore, pursuant to R.C. 4123.512(F), the trial court was required to reimburse him for his costs, including attorney fees, associated with his appeal. Since R.C. 4123.512(F) does not require apportionment of these costs based on the outcome of Holmes’s particular conditions, the trial court did not abuse its discretion when it made no such division of costs”... Therefore, once a claimant’s right to participate in the workers’ compensation fund has been established, a trial court does not abuse its discretion under R.C. 4123.512(F) by awarding the claimant reimbursement for costs related to the conditions for which the trier of fact determined the claimant was ineligible to participate in the fund.”

This case should caution employers to choose wisely when it comes to appealing and contesting workers’ compensation claims beyond the administrative levels. As Crawford Machine found out, when multiple conditions are at issue, it may be wise to forego challenging minor cuts, scrapes, and bruises, rather than end up paying nearly $12,000 for a pinky-finger abrasion that was treated with a Band-Aid.

Contact: Alex Kipp


Supreme Court to Decide Whether Mixed Motive Is Applicable to Retaliation Claims

We are barely into the New Year and the U.S. Supreme Court already has a significant employment law case on its docket. The Court agreed to hear Nassar v. University of Texas Southwestern Medical Center (No. 12-484). In Nassar, the Court will decide whether an employee can assert retaliation claims under Title VII if discrimination was simply one of the reasons the employer took adverse action. The Court’s decision will finally provide guidance on whether employees may proceed under a “mixed motive” theory or whether they must proceed under a “but for” theory. In “mixed motive” cases, the employee may prove discrimination even if the employer possessed a legitimate, nondiscriminatory reason for taking adverse action against the employee. In these cases, the employee need only demonstrate that discrimination was one of the motives for the adverse action. In contrast, if employees are required to meet the “but for” standard then they must demonstrate the adverse action would not have occurred but for the employer’s discriminatory motive.

In Nassar, the plaintiff was a physician and faculty member at the University of Texas Southwestern Medical Center. He alleged he was constructively terminated based upon his supervisor’s harassment. Nassar alleged the harassment was the result of his Middle Eastern descent. He further alleged retaliation because after he resigned from his position, his employer prevented him from obtaining subsequent employment at a clinic affiliated with the University. There was evidence that Nassar’s supervisor monitored his performance and productivity more closely than other physicians. The jury found in favor of Nassar and awarded him in excess of $436,000(1) in back pay, over $3 million in compensatory damages, and $489,927 in attorney’s fees and costs.

On appeal, the University argued that it denied Nassar’s subsequent employment in accordance with an affiliation agreement between the University and the clinic. The director of the clinic testified at trial that Nassar’s supervisor informed him that Nassar’s complaints of harassment were the reason he objected to Nassar’s employment at the clinic. In effect, a legitimate, nondiscriminatory reason existed for denying Nassar’s employment at the clinic, but there was also evidence that discrimination played a role — the classic mixed motive case.

The Supreme Court’s resolution of this case has broad implications. The Supreme Court will consider not only whether Title VII’s retaliation provisions requires “but for” causation, but also whether other similarly worded employment statutes require the same level of proof. The “but for” standard is employer-friendly as it requires a plaintiff to demonstrate that discrimination was the reason for the adverse action. Under a mixed motive theory an employee need only demonstrate discrimination was one of the reasons. The mixed motive theory is legislatively created. The legislature’s action in specifically permitting mixed motive under Title VII discrimination claims (not retaliation) will be pitted against the Supreme Court’s prior decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179-80 (2009). In Gross, the Supreme Court held that the mixed motive theory did not apply to claims under the Age Discrimination in Employment Act. The Supreme Court determined that Congress limited the application of the mixed motive theory to Title VII. Currently, the federal courts in Ohio interpret Gross to mean that the mixed motive theory is only available in Title VII discrimination cases and not available under other employment law statutes. In contrast, the federal courts in Florida interpret Gross to apply only to age discrimination claims; therefore, in Florida the mixed motive theory is available under other employment law statutes.

(1) This amount was reduced to $300,000 in accordance with Title VII’s statutory cap on compensatory damages.
Contact: Jon Secrest


Permanent Partial Compensation – Statute of Limitations

In Perez v. Univ. Hosp. Sys. (2012 – Ohio 5896), a dispute arose over the extension of the statute of limitations in a prior claim for a low back injury. Here the claimant had first suffered an injury to his low back in 2001. The self-insured employer accepted this claim and paid for medical treatment through November 13, 2003. Then on September 13, 2008 the claimant experienced an injury to his mid and low back. Initially, the employer certified this incident as being a recurring injury under the 2001 claim. The employer initially paid for all medical services for the 2008 incident under the 2001 claim. The claimant successfully argued before the Industrial Commission that the 2008 incident was a new injury. Thereafter, the employer transferred the payments that had been initially paid under the 2001 claim to the 2008 claim.

The claimant filed an application for permanent partial compensation in the 2001 claim on April 19, 2010 and this filing was over six years after the last payment of the medical services under the 2001 claim. The employer objected to this application under this claim as it had statutorily expired per ORC 4123.52. The claimant’s application was granted by both a District Hearing Officer and Staff Hearing Officer in spite of the employer’s argument. The employer filed a request for reconsideration that was accepted by the full Industrial Commission. After hearing, the Industrial Commission ruled that the application under the 2001 claim could not be considered as this claim had lapsed by statute.

The claimant appealed the decision of the Industrial Commission to Common Pleas Court. After ruling on cross-motions for summary judgment the trial court held that that the 2001 claim had lapsed by statute and agreed with the reasoning of the Industrial Commission. The claimant’s argument was simple. Payment had been made under the 2001 claim after shortly after the 2008 incident and these payments were within the six-year statute of limitations thus extending the life of the 2001 claim. The employer’s argument was that these payments were transferred to the 2008 claim as the Industrial Commission had ruled it to be a new claim and these payments should only apply to the 2008 claim. The Court of Appeals agreed with the employer’s position. This court ruled that the last payment of medical services as a result of the 2001 injury was on November 13, 2003. Thus, the 2001 claim had lapsed by statute and there could be no further activity under this claim.

As one can see, the application of the statute of limitations can become complicated - even in the processing of an application for permanent partial compensation - normally a straightforward process.

Contact: Brian Tarian


Email Inquiry Not Deemed Fair Notice of Complaint Under FLSA

On March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) took effect. Among other things, the PPACA amended Section 7 of the Fair Labor Standards Act (FLSA) so as to require Employers to provide (i) “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk”; and (ii) “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” On December 26, 2012, the Court of Appeals for the Eleventh Circuit in Miller v. Roche Surety and Casualty Co., Inc. (Case No. 12-10259) addressed whether a female employee had a viable FLSA retaliation claim when she was terminated after sending an email to her supervisor asking about locations to express milk at work. More specifically, Danielle Miller sent an email to the president of the company, Shannon Roche, wherein she inquired as to a location where she could use her breast pump while she was working at the bail office (not her normal work location). The email read:
Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.
Shortly after sending this email, Miller was terminated. Affirming judgment as a matter of law for Roche, the Eleventh Circuit held that the email sent by Miller could not reasonably be construed as an FLSA complaint so as to form the basis of a retaliation claim. More specifically, relying heavily on the Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), this Court noted:
Although the filing of a complaint under Section 215(a)(3) need not be in the form of an official complaint, or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance. This “notice requirement” is essential because ‘an employer who does not (or should not) know an employee made a complaint could not discriminate because of that complaint.’ In keeping with this idea, the complaint must be sufficiently clear and detailed so that a reasonable employer, considering the context and content, can understand that an employee is asserting rights provided by the FLSA and calling for the protection of those rights.
Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism . . . .
As such, the Eleventh Circuit held that Miller’s email would not have put a reasonable employer on notice that a complaint had been filed and, therefore, could not form the basis of an FLSA retaliation claim, particularly when Miller exercised her rights under the FLSA prior to sending this email without reprisal.

Contact: Jaime Maurer


Facebook Password Privacy Laws Take Effect in Six States in 2013

Facebook remains a murky area for employers and employees alike, as both try to understand the shifting boundaries regarding freedom of speech and personal privacy online.

Employers in six states will no longer be able to require that their employees hand over personal Facebook account passwords thanks to new laws taking effect this year. Beginning on January 1, 2013, new laws that took effect prohibit employers in California and Illinois from demanding passwords of employees’ social media accounts. These laws also make it illegal for employers to request social networking passwords or non-public online account information from job applicants as well. Other states in which similar laws will take effect in 2013 are New Jersey, Delaware, Michigan, and Maryland.

While Facebook itself has stressed that demanding one's password is a violation of its terms of service and suggested that it could begin legal action against employers or individuals who do so, it has not actively intervened in the ongoing privacy debate. However, employers asking for passwords to Twitter or Facebook overstepped the boundaries of personal privacy. Therefore, it took legislative action to clarify the boundaries between an employer’s desire to know and an employee’s right to privacy.

Employees and job seekers in all states will still need to be careful what they post online. Employers will continue to utilize publicly available social networking information. However, these new laws continue to underscore the fact that all employers must remain vigilant about their obligations in the evolving world of social media.