Tarkowsky Law Employment Bulletin: Summer 2014

San Allen, Inc. v. Stephen Buehrer, ect., 2014 Ohio 2071 (decided May 15, 2014)

  • The Eight District Court of Appeals held that the Cuyahoga County Common Pleas Court correctly determined that the BWC was responsible for developing and maintaining an unlawful rating system under which excessive premium discounts were given to group-rated employers at the expense of nongroup-rated employers. As such, the BWC will be Ordered, through its restitution award, to refund the premium overcharges the BWC unlawfully and unjustly collected from nongroup-rated employers, which could amount to $859 million.

State ex rel. Smith v. Indus. Comm’n, 138 Ohio St. 3d 312 (decided February 18, 2014)

  • The Supreme Court held that the claimant’s requested loss of use award for vision and hearing loss was properly denied after the claimant suffered brain damage and was in a vegetative state. The claimant suffered from a loss of brain-stem functioning, a loss that the General Assembly has not included in the schedule for compensation set forth in R.C. 4123.57. Although R.C. 4123.57 provides for compensation for the loss of sight and vision, it does not provide for compensation for a loss of brain-stem functioning that precludes the claimant from processing and understanding the visual and auditory stimuli that are received by functioning eyes and ears.

State ex rel. Richmond v. Indus. Comm’n, 2014 Ohio 1604 (decided April 17, 2014)

  • The Supreme Court determined that in an application for a violation of a specific safety requirement (VSSR), the Industrial Commission may not specifically adopt external standards as the sole basis for a VSSR award, but it may look to those standards as relevant factors to inform its interpretation of a SSR and its determination whether the employer violated that SSR.

State ex rel. Martin v. Springfield Twp., 2014 Ohio 1186 (decided March 25, 2014)

  • The Commission erred when it denied the employee’s permanent total disability (PTD) application simply because some of the allowed conditions had not reached maximum medical improvement and the employee was receiving temporary total disability compensation.  The Commission must still consider the employee’s PTD application based solely upon his allowed conditions which had reached maximum medical improvement.

O.A.C. 4125-1-01: Wage Loss Compensation

  • Effective February 13, 2014, the Industrial Commission and BWC updated the wage loss statute concerning the processing and adjudication of requests for wage loss compensation. Notably, the updated rule includes provisions for online job searches, by requiring employees to submit online job postings, verification of the application submission, and the result of the contact. Additionally, self-insured employers are now required to adjudicate the initial application for wage loss compensation and inform the injured worker of its decision no later than thirty days after a request for wage loss compensation is received.

The National Labor Relations Board and Employer Social Media Policies In a variety of recent decisions, the National Labor Relations Board (NLRB) has found numerous violations contained within common clauses utilized in employer company handbooks. Furthermore, employers have been found to have been in violation of the NLRA by disciplining employees for actions taken on social media websites. Generally, employers may not utilize company rules which could interfere or obstruct employees’ rights to act together informally to address the terms and conditions of their employment.