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Comp Connection Vol.14, No. 1

 

COURT OF APPEALS UPHOLDS SUBSTANTIAL AGGRAVATION DECISION

In  Harrison v. Panera, 2013-Ohio-5338, the 2nd District Court of Appeals upheld the trial court’s decision, granting a claimant the right to participate in Ohio’s workers’ compensation law for a substantial aggravation claim.

The claimant suffered a shoulder sprain, which the employer certified.  The claimant later moved the Commission to additionally allow substantial aggravation of preexisting arthritis and impingement syndrome, which conditions the Commission denied administratively.  The claimant appealed to court pursuant to R.C. 4123.512.  The court held a bench trial, allowing both conditions.  In reviewing the evidence, the trial court considered medical testimony of the claimant’s and employer’s experts.  Ultimately, the court relied on the claimant’s expert in allowing the conditions.

The employer appealed to the court of appeals, arguing the claimant failed to present objective evidence of a substantial aggravation of a preexisting condition.  The court acknowledged there must be evidence of objective diagnostic findings, clinical findings or test results, which may be coupled with subjective complaints of pain.  The claimant’s expert testified the objective evidence demonstrating a substantial aggravation was the claimant’s objective  range of motion tests, physical findings of stiffness, and comparison of pre-injury and post-injury X-rays.  The court of appeals found there was evidence upon which the trial court could reasonably reach its conclusion and affirmed the trial court decision.

The November, 2013 Comp Connection reported Lake v. Ann Grady Corp, a case in which the 6th District Court of Appeals ruled against a claimant on a substantial aggravation claim.  The 6th District found the claimant’s expert failed to identify the objective evidence he relied upon for his opinion.  Consequently, the court was not persuaded there was objective evidence to support a finding of substantial aggravation.  Since R.C. 4123.01(C) was amended, numerous cases have been decided in the appellate courts. From those decisions, it appears the analysis of substantial aggravation centers on the sufficiency of  evidence at trial, rather than the meaning of the statutory language.  Until the Ohio Supreme Court reviews the statutory language, there may not be a clear direction in the substantial aggravation claims.

 

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THE STATEMENTS OF COUNSEL ARE NOT EVIDENCE

It is well settled law that Industrial Commission decisions must be based on evidence.  However, the line between evidence and argument is often blurred in hearings before the Commission.

In State ex rel. Augustin v. Tepe, 2013-Ohio-5600, the 10th District Court of Appeals examined whether the Commission legally could rely on the representations of counsel to support an order denying an award of permanent and total disability.  During the PTD hearing, the employer’s counsel apparently made a statement about the claimant’s lack of desire to obtain a work visa, which suggested the claimant was not making  a sincere effort to engage in vocational rehabilitation.  Referring to the statement of counsel  as testimony, the staff hearing officer denied the PTD application.

Because the hearing was not transcribed, it was unclear whether the employer’s counsel actually testified.  The court of appeals concluded the hearing officer must have misstated this fact in the order.  Because it was clear counsel made a statement upon which the hearing officer relied as a fact, the court of appeals held the Commission abused its discretion since statements of counsel are not evidence.

  

COURT OF APPEALS FINDS WORKERS ARE EMPLOYEES NOT INDEPENDENT CONTRACTORS

In WFAL Construction v. Buerher, 2013-Ohio-5700, the Bureau performed an audit to determine whether the company had employees as opposed to independent contractors.   R.C. 4123.01(A)(1)(c) sets forth 20 criteria to determine independent contractor status of construction workers.   Based on the criteria set forth in the statute, the Bureau found the company had employees because at least 10 of the 20 criteria in the statute were met.  WFAL filed a protest to the audit, which ultimately was denied.  The company filed a petition for writ of mandamus in the 10th District Court of Appeals.

The court of appeals denied the writ, finding there was some evidence to support the Bureau’s decision.  Some of the important facts found by the Bureau were: the company directed the manner and means of the work, the work was to be done personally by the subcontractors involved, and workers were paid by the hour based on time sheets.

Independent contractor status is an important issue to Ohio employers.  How employees are classified will impact an employer’s premiums (if state funded) or the compensability of a claim.   However, workers’ compensation is only one aspect of an employer’s business and there is no universal test for independent contractor status.  Other laws affecting employers, such as labor and employment, tax, insurance, and the new healthcare law utilize similar but distinct tests to determine independent contractor status.

If you have any questions about how the various laws on independent contractor status affect your business, please contact us.

 

 

 

 

 

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