The 3rd District Court Of Appeals Rejects COVID-19 Claim

Since the COVID-19 pandemic ensued, employers have wondered whether there would be rash of compensable COVID-19 cases arising from employment. Because COVID-19 is a disease arising from the Sars-CoV-2 virus, compensability invariably depends on whether a claimant can satisfy the statutory criteria for occupational diseases under R.C. 4123.01(F), which requires proof of three things: 1) causation; 2) that the employment results in a hazard distinguishing it from employment generally; and 3) that the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.

Recently, Bugbee & Conkle had the privilege of defending a COVID-19 case in the Hancock County Court of Common Pleas, and later, before the Third District Court of Appeals in Wilhelm v. Advanced Drainage Systems, Inc., 3rd Dist. Hancock No. 5-23-16, 2024-Ohio-390, _N.E.3d_ (February 16, 2024). The common pleas court, and more importantly, the court of appeals found that the COVID-19 claim before them did not satisfy the statutory criteria.

In Wilhelm, the claimant filed a claim alleging he contracted COVID-19 from a co-worker. Both the district and staff hearing officers disallowed the claim administratively on the ground that the claimant failed to meet the statutory criteria for an occupational disease as set forth in R.C. 4123.01(F), also known as the Krise criteria. The staff hearing officer focused his reasoning on the third prong of the statutory criteria.

The claimant appealed to the Hancock County Court of Common Pleas pursuant to R.C. 4123.512. Advanced Drainage Systems conducted discovery which revealed the company followed the protocols set forth by the Ohio Department of Health regarding masking, social distancing, hand hygiene, and ventilation and that the claimant was around people other than the co-worker prior to the claimant’s contraction of COVID-19. Advanced Drainage Systems also deposed the claimant’s physician, who admitted his medical opinion on causation was not supported by science and he could not opine to a reasonable degree of medical certainty that the employment at the company resulted in a hazard distinguishing it from employment generally or that the employment at the company created a risk of contraction that was greater in degree and in a different manner than the public generally.

Advanced Drainage Systems moved for summary judgment on the following grounds: 1) the claimant could not establish causation; 2) the claimant could not establish any of the statutory prongs for occupational diseases; and 3) COVID-19 is a disease of the general public, which diseases Ohio courts have found non-compensable. The trial court granted summary judgment, relying on Ingram v. Conrad, 4th Dist. Athens No. 01CA36, 2001-Ohio-2641 and Yeager v. Arconic Inc., 11th Dist. Trumbull No. 2021-T-0052, 2022-Ohio-1997 for the proposition that Ohio does not recognize diseases of the general public as compensable workers’ compensation occupational diseases. Ingram involved pneumonia; Yeager is another COVID-19 case. The court basically found that COVID-19 is a disease of the general public. Second, the court held that the claimant failed to meet the third prong of R.C. 4123.01(F). On appeal, the Third District affirmed the trial court’s judgment based on the same reasoning.

The Third District’s decision is important because it marks the second court of appeals, which denied a COVID-19 claim. This should be reassuring to employers. As a practical matter, defending a COVID-19 case should be no different than defending any other communicable disease case, like influenza, pneumonia, or the common cold. Remember, employers are not insurers of their employees’ health. However, employers should be wary that winning a COVID-19 case is by no means a “slam dunk.” Successfully defending a COVID-19 case depends on the facts of the claim regarding the alleged mode of contraction, the facts pertaining to the work environment, and the expert evidence before the Industrial Commission and/or the court. To craft a successful defense, employers should retain counsel who can select the right IME doctor, cross examine the claimant, and make the appropriate legal arguments based on the prevailing case law.

While COVID-19 is not as prolific as it was during the height of the pandemic, the disease is here to stay and COVID-19 claims will persist. Please contact our office if you have any questions regarding the defense of a COVID-19 claim or if you have any questions about preparing a successful defense strategy.

The 10th District Court Of Appeals Finds That Trial Courts May Not Order The Industrial Commission To Take Action After An R.C. 4123.512 Appeal.

All employers should know that workers’ compensation claims do not always end in the Industrial Commission. Claimants and employers alike have a right to appeal allowance issues to Ohio’s trial courts under R.C. 4123.512. Once an appeal has been filed pursuant to this statute, the case proceeds like any civil case and the claimant always pursues the claim as a plaintiff. The employer and the Bureau of Workers’ Compensation become defendants under the statute and Ohio case law. Generally, the Industrial Commission is not a party to appeals under R.C. 4123.512.

In civil cases, plaintiffs may dismiss their case (technically their complaint) without prejudice and may refile such case within one year of dismissal in accordance with Ohio’s savings statute. This is true whether the claimant initiates the appeal to the trial court or whether the employer does. After the case is dismissed, the trial court retains jurisdiction over the case. However, it is important to note that a claimant/plaintiff can only dismiss his/her complaint in an employer appeal when the employer gives consent to the dismissal. More importantly, the employer’s consent to dismissal does not absolve the claimant of his/her duty to refile the complaint within one year of dismissal.

One may wonder what happens when the claimant fails to refile the complaint? The answer is the complaint is dismissed with prejudice, meaning the claim underlying the complaint effectively is disallowed. In an employer appeal, if the claimant fails to refile the complaint within the one-year timeframe, the employer may move for judgment in its favor.

Bruce v. Belucon, 10th Dist. Franklin No. 21-AP-497, 2024-Ohio-139 (January 16, 2024) involved an employer appeal, where the employer consented to dismissal without prejudice. The claimant and the employer stipulated to a dismissal of the claimant’s complaint. However, the claimant failed to refile the complaint within one year. Consequently, the employer moved the court for judgment in its favor. The Bureau responded to the motion by arguing the employer was a noncomplying state fund employer and a judgment in the employer’s favor would negatively affect the Bureau, which had paid benefits in the claim from the surplus fund. The trial court granted the employer’s motion and included a provision in the entry directing the Industrial Commission to vacate its order allowing the claim and charge all payments made in the claim to the surplus fund, as such costs were not the responsibility of the employer.

The claimant and the Bureau appealed to the Tenth District Court of Appeals. The claimant argued the employer bore the responsibility for refiling the complaint. The Bureau likely appealed on the ground that the trial court’s order exceeded the court’s jurisdiction. Interestingly, the Industrial Commission intervened in the appeal because of the provision directing the Commission to charge the claims costs to the surplus fund. The court of appeals properly rejected the claimant’s argument because it is well settled the claimant, alone, has the burden of proof and prosecution. More importantly, the court of appeals found the trial court exceeded its authority by ordering the Commission vacate its orders and charge the claims costs to the surplus fund. Under R.C. 4123.512, the trial court only has jurisdiction to determine the claimant’s right to participate in the workers’ compensation system. Moreover, the court held the court could not order the Commission to do anything because the Commission was not a party to the trial court action.

While the court of appeals’ decision may not have a far reaching effect on employer appeals, it is important to understand the scope of the court’s review in an appeal under R.C. 4123.512. Although the outcome of the case favored the employer, the trial court overreached.

Ohio Supreme Court Overrules Russell, Creating Earlier Termination Date For TTD Compensation And Possible Avenue To Recoup Overpayments

Employers are often faced with confusing rules and processes related to paying compensation to an claimant. When an claimant is unable to work as a direct result of an allowed condition, they are entitled to receive temporary total disability (TTD) compensation until they: 1) return to work; 2) their treating physician finds them capable of returning to their former position of employment; 3) work is made available within their capabilities; or 4) they have reached maximum medical improvement (MMI).

Nearly thirty years ago, in State ex. rel. Russell v. Indus. Comm, 82 Ohio St.3d 516, 696 N.E.2d 1069 (1998), the Ohio Supreme Court found that termination of TTD compensation, based on an MMI finding, occurs on the date of hearing, not the date of MMI. This creates a situation where a physician may determine MMI on a date preceding the hearing, but, the employer can not terminate TTD as of such date because the hearing on termination of TTD usually occurs well after the MMI finding. Under Russell, the employer could not recoup compensation paid between the MMI finding and the date of a hearing. Oftentimes, this would result in gamesmanship by the claimants’ bar to push these such hearings as far out as possible, thereby continuing a stream of compensation well beyond the MMI date.

On March 5, 2024, the Ohio Supreme Court overruled Russell in State ex. rel. Dillon v. Indus. Comm., 2024-Ohio-744, _N.E.3d_. In Dillon, the employer’s IME doctor found the claimant reached MMI on a date between the hearing before the District Hearing Officer (DHO) and Staff Hearing Officer (SHO). The SHO terminated TTD based on the date of the examination, not the hearing date. This, in turn, resulted in an overpayment, as the employer paid TTD compensation through the SHO hearing.

In overruling Russell, the Dillon Court reasoned that R.C. 4123.56(A) prohibits payments of TTD compensation once a claimant has reached MMI. Therefore, once a doctor deems the claimant MMI, and a hearing officer adopts the doctor’s finding, the claimant is no longer entitled to compensation. Because Dillon changes nearly 30 years of precedent, the decision may have extensive consequences. Employers should be mindful that the IME physician addressing MMI provides a specific MMI date, as the MMI date is critical to termination of TTD compensation. Additionally, because the Dillon decision was premised on the interpretation of a statute (R.C. 4123.56), it likely has a retroactive effect. This means MMI decisions rendered by the Commission based on Russell may be subject to review under the Commission’s continuing jurisdiction and could be vacated to comply with Dillon. If an employer is successful in vacating these past orders, then an overpayment would result. Employers should review their claim histories to determine whether these overpayment opportunities exist and contact legal counsel to pursue overpayment through the Commission’s hearing process. Because the Commission has followed Russell since 1998, the potential overpayments could be exceptional. If you have any questions about how to pursue an overpayment, please contact our office.