Tarkowsky Employment Law Bulletin: Fall 2018

Ohio Revised Code §4123.512 Revision: Court Appeal Extension:

• This statute was revised to allow the court appeal deadline of 60 days to be extended in claims that are in the process of being settled. The claimant or employer may file a “notice of intent to settle” with the BWC within 30 days after receipt of the IC order being appealed. This filing then extends the court deadline to 150 days, unless the other party files an objection within 14 days after receipt of the notice of intent to settle. This extension, from 60 days to 150 days, permits the parties additional time to negotiate a settlement prior to filing a formal court appeal and avoid litigation costs.

Ohio Administrative Code 4123-6-32: Lumbar Fusion Rule:

• The Ohio BWC recently implemented this rule to include specific requirements prior to the BWC authorizing a lumbar fusion surgery.  This rule was created, at least in part, in response to the current opiate crisis that exists in many states, including Ohio.  According to the Ohio BWC, only 32 percent of injured workers who have undergone a spinal fusion surgery are “no longer disabled” after two years.   Additionally, lumbar fusion surgeries often result in long-term opiate use, increase in disability and poor return to work status. As a result, an employee must fulfill the following requirements:
  • At least 60 days’ trial of conservative care;
  • A health and behavior assessment;
  • Review of, and signed acknowledgement of, the informed decision-making document;
  • Medical evaluation of risk factors related to the surgery;
  • Documentation of specific medical and surgical indications for the surgery.

State ex rel. Ohio Presbyterian Ret. Servs. v. Indus. Comm’n of Ohio, 151 Ohio St. 3d 92, 2017-Ohio-7577:

• The Ohio Supreme Court held that when an injured employee has previously been determined to be entitled to permanent-total-disability compensation pursuant to R.C. 4123.58, the commission does not have statutory authority to grant in the same claim a permanent-partial-disability award pursuant to R.C. 4123.57(A).

State ex rel. Demellweek v. Indus. Comm’n of Ohio, 2018-Ohio-714

• In Demellweek, the employer alleged that the claimant voluntarily abandoned his position of employment by failing to wear a harness, even though the claimant was only a few inches off the ground and not in any danger. In response, the Court held that even though the claimant technically violated a provision within the employer’s handbook, the claimant’s actions did not amount to a voluntary abandonment. “Voluntary abandonment of employment is not meant to be a vehicle which allows an employer to rid itself of injured workers for a minor violation of a work rule, written or not.”

Bureau of Workers’ Comp. v. Verlinger, 2018-Ohio-1481

• The Ohio Supreme Court clarified the rights of self-insured employers and the BWC with respect to settlements between injured workers and third parties. The Court determined that a “claimant” is anyone who is eligible to receive compensation, medical benefits, or death benefits under Ohio’s worker’s compensation laws.  Furthermore, a person is considered a “claimant” unless and until a final determination has been made denying the worker’s compensation claim and all appeals have been exhausted, or if no worker’s compensation claim was filed, until the statute of limitations has run for filing a claim.

This decision is favorable to self-insured employers and the BWC because it is now clear that they will always have a right of subrogation to any settlement between an injured worker and an at-fault third-party regardless of when the worker’s compensation claim is filed or allowed. A potential claimant cannot now avoid a BWC lien, by simply settling a claim with the at-fault third party prior to filing a workers’ compensation claim.