Worker's Compensation
Case Law Update
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PREPARED BY:
VORYS, SATER, SEYMOUR AND PEASE LLP
Bradley K. Sinnott, Esq.
Angela J. Rapp, Esq.
www.vorys.com
DECEMBER, 2011
IRS Circular 230 Disclosure: In order to ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of (i) avoiding penalties that may be imposed under the U.S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another person, any transaction or other matter addressed herein.
OCTOBER, 2011
Ohio Bureau of Workers' Compensation v. McKinley et al., 2011 Ohio 4432,2011 Ohio LEXIS 2179 (Sept. 7, 2011).
Issue: Statute of Limitations
McKinley
was severely injured on July 13,2003, during the course of his
employment. The bureau allowed his claim for workers' compensation
benefits. He then brought a separate action against a third-party, who
owned the premises where he was injured. After notifying the bureau in
2004 that he was in settlement negotiations with the third-party,
McKinley and the third-party settled for an undisclosed amount. On
November 4, 2008, the bureau filed suit in common pleas court against
McKinley and the third-party, asserting that they were jointly and
severally liable under R.C. 4123.93 and 4123.931 for failing to honor
the bureau's subrogation lien in the settlement that had been reached.
The third-party moved to dismiss the bureau's claim, arguing that the
bureau's subrogation claim was a derivative of the defendant's right to
recover against the third-party and that the two-year statute of
limitations applicable to McKinley's personal-injury claim against the
third-party also applied to the bureau's claim. In response, the bureau
argued that R.C. 4123.931 creates an independent right of recovery for a
statutory subrogee and that the six-year statute of limitations of R.C.
2305.07 for an action on "a liability created by statute" was the one
that applies.
The Supreme Court of Ohio agreed with the bureau and
relied upon R.C. 4123.93l (A), stating that the payment of workers'
compensation benefits in and of itself "creates a right of recovery in
favor of a statutory subrogee against a third party." Accordingly, it
held that a claim brought by a statutory subrogee pursuant to R. C.
4123.931 (G) to recover its subrogation interest is a claim "upon a
liability created by statute" and is therefore subject to the six-year
statute of limitations of R.C. 2305.07.
Coleman v. City of Hamilton, 2011 Ohio 4717, 2011 Ohio App. LEXIS 3920 (12th App. Dist., Sept. 19,2011).
Issue: Allowance of a Condition -Uncontroverted Expert Opinion
The
claimant filed suit in common pleas court seeking the allowance of
additional conditions. During the bench trial, the claimant offered
deposition testimony of his treating chiropractor as expert testimony to
establish that the additional conditions were directly caused by two
work-related incidents. The claimant also offered multiple exhibits at
trial, consisting of medical records, diagnostic
test results, and
first report of injury. After the claimant rested his case, the city of
Hamilton offered no exhibits or witnesses. The common pleas court found
that claimant was not entitled to participate in the fund for the
additional conditions. The claimant appealed the common pleas court's
decision, essentially arguing that the decision was against the manifest
weight of the evidence because the expert testimony he presented went
uncontroverted. The appellate court disagreed. It recognized that the
common pleas court, as the trier of fact, had the right to accept or
reject any and all evidence, even uncontroverted evidence. The court
reasoned that there were "some reasons objectively present" supporting
the trial court's decision to give little weight to the expert's
opinion.
Weyerhaeuser Company v. The Industrial
Commission of Ohio, 2011 Ohio 4206,2011 Ohio App. LEXIS 3516 (lOth App.
Dist., Aug. 23, 2011)
Issue: Recovery for Facial Disfigurement
The
claimant suffered facial disfigurement as a result of a workplace
injury and filed for additional compensation under R.C. 4123.57(B). To
recover under this section, the appellate court recognized that there
are two requirements: (1) the claimant's injury must result in serious
head or facial disfigurement, and (2) the disfigurement must be of such a
nature that it either impairs or may in the future impair the
claimant's opportunities to secure or retain employment. Because
claimant testified that she removed herself from the workforce and began
receiving social security disability benefits, the relator contended
that she lacked any desire to work and thus, had no earning capacity.
The
appellate court disagreed, holding that R.C. 4123.57(B) does not
require proof of a current desire to work. As the statute allows
compensation for disfigurement that "may in the future impair" the
claimant's employment opportunities, the commission appropriately
analyzed the issue of whether the disfigurement may potentially impair
future employment opportunities, regardless ofher current desire to
work.
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