Comp Connection Vol. 13, No. 4


In State ex rel. Scott v. Indus. Comm., 2013–Ohio-2445, the claimant had an allowed occupational disease claim caused by expo-sure to metal dust. The claimant filed a VSSR application, alleging the company failed to provide adequate protection to minimize his exposure to metal particles. The Commission denied the application, relying on OSHA test results, generated several months after the exposure and showing levels of metal dust particles below permissible exposure limits.

The claimant filed a mandamus action in the 10th District Court of Appeals. The court of appeals found it was permissible for the Commission to use OSHA test results and denied the writ.

The claimant appealed to the Ohio Supreme Court, arguing the OSHA documents were irrelevant and unreliable. Under the Administrative Code, respiratory protection is necessary if air contaminants are hazardous. Although the OSHA results were not contemporaneous with the exposure, the Court found the results were the only evidence regarding hazardous contaminants on file. Because the claimant failed to produce evidence of hazardous air contaminants, the Commission was within its authority to rely on the OSHA documents.


In Armstrong v. John R. Jurgensen Co., 2013-Ohio-2237, the claimant sustained strain injuries in a motor vehicle accident while operating a dump truck. The driver of the other vehicle was killed. The claimant moved the Commission to ad-ditionally allow his claim for posttraumatic-stress disorder (“PTSD”), which he allegedly sustained from witnessing the death of the other driver. The Commission allowed PTSD and the company appealed to court.

At a bench trial, the claimant’s expert opined the accident caused the PTSD and the claimant’s physical injuries were “contributing and causal” factors. By contrast, the employer’s expert opined the claimant suffered PTSD because he witnessed the accident; the claimant’s physical injuries did not cause PTSD. The trial court found PTSD was not compensable because it did not arise from the claimant’s physical injuries. The court of appeals affirmed.

The Ohio Supreme Court held a psychiatric condition must arise from a physical injury or occupational disease sustained by the claimant. Under R.C. 4123.01(C)(1), the physical condition must cause the psychological condition. The Court stressed the mere fact that the claimant sustained a psychological condition contemporaneously with the accident, will not result in a compensable claim under the statutory definition on injury.

This case appropriately limits the compensability of psychological conditions and is beneficial to Ohio employers.


In State ex. rel Kish v. Kroger Co., 135 Ohio St.3d 451, 2013-Ohio-1931, the claimant moved the Commission for authorization of treatment for her allowed conditions. In granting the motion, the Commission rejected the report of the employer’s expert, Dr. Randolph, who had misstated the allowed conditions in the claim. Thereafter, the claimant moved the Commission for loss of use of the left arm.

The employer obtained two addendum reports from Dr. Randolph, who did not conduct an additional exam before generating his addendum reports. The Commission denied the claimant’s motion, relying on the addendum reports of Dr. Randolph. The claimant filed a mandamus action in the 10th District Court of Appeals, contending Dr. Randolph’s addendum reports were not “some evidence” under the Zamora doctrine, which provides once the Commission rejects a doctor’s opinion on a particular issue, the Commission cannot rely on the same opinion if set forth in a subsequent report. Although the Commission rejected Dr. Randolph’s report on treatment, the court of appeals found the Commission previously did not reject Dr. Randolph’s opinion on the claimant’s use of his arm. Therefore, the Commission could properly rely on Randolph’s addendum reports in denying the claimant’s loss of use motion.

On appeal, the Ohio Supreme Court upheld the court of appeals’ decision and agreed with the lower court’s reasoning. The Court’s decision reaffirms that the Zamora doctrine has limitations, and under proper circumstances, employers may utilize experts whose reports were previously rejected by the Commission.

Ohio Industrial Commission Expands its Paperless System

The Industrial Commission expanded its paperless system, allowing parties and their representatives to email documents to the IC for filing. This will alleviate printing and copying charges associated with filing hard copies and dramatically improve the expeditious filing of documents. Additionally, the IC will allow unrestricted wireless internet access at the Commission to anyone who has an IC identification card.


COMP CONNECTION is not intended to provide legal advice, but is intended as a service to the clients of Bugbee & Conkle, LLP and to alert them to recent developments affecting the employment relationship, with a particular emphasis on the perspective of the employer.


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