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Comp Connection December 2022

On Behalf of | Mar 3, 2023 | Comp Connection

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Bugbee & Conkle, LLP congratulates April Renner on her promotion to Staff Hearing Officer for the Industrial Commission.  Ms. Renner recently began taking hearings as an SHO in Toledo.  There has been no announcement on whether a new District Hearing Officer will be appointed for the Toledo office.

The Tenth District Court of Appeals holds file reviews are “some evidence” and can be relied upon to award permanent partial disability.

In State ex rel Justin M. Wisner, Relator v. Industrial Commission of Ohio, 10th Dist. No. 21AP-494, decided September 29, 2022 claimant argued the Commission abused its discretion for failing to explain why the Commission found a file review more persuasive than an examining physician’s report in an SHO Order. In Wisner, the claimant was injured at work when he was hammering a piece of plastic, and a piece of plastic detached, and struck his left eye. Claimant filed a C-86 motion requesting a loss of vision of 90% of his left eye, partially relying on the report completed by Dr. Wang, an examining physician. Dr. Ravin then completed a file review on behalf of the Bureau finding claimant is only entitled to a loss of vision of 60% of the left eye. The commission granted a 60% award relying on Dr. Ravin’s report. Claimant filed a mandamus action with the Tenth District Court of Appeals requesting that the court order the Commission to vacate the SHO order and grant a 90% loss of vision, left eye. Claimant questioned why the file review was given more weight than Dr. Wang’s report when Dr. Wang actually examined the claimant. Claimant argued the commission did not adequately explain its reasoning. The Tenth District found the SHO did not abuse its discretion and denied the writ of mandamus. The court found the SHO was under no obligation to discuss Dr. Wang’s report in any further detail or explain why it found Dr. Ravin’s file review more persuasive than Dr. Wang’s report.While we believe an examination report is often more persuasive, the Wisner court made it clear the Commission can choose to give more weight to a file review than an examination report.

The Fourth District Court of Appeals discusses parking lot injuries in a recent case.

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In Hinerman v. Savant Systems, 4th Dist. No. 21CA14, 2022-Ohio-2857, decided August 16, 2022, claimant filed a claim after closing her truck door on her finger while in one of two of her employer owned and controlled parking lots. The lots were the only place employees could park and provided the only means of ingress and egress to the factory. Claimant drove her truck into the parking lot before her shift and parked and exited her truck. Claimant began talking to a coworker and accidentally closed her truck door on her right pinky finger causing an injury to her finger. The claim was disallowed administratively, and she appealed to the Common Pleas Court, which granted her motion for summary judgement finding claimant was in the zone of employment because she was in the parking lot owned and controlled by the employer. She was about to start her shift and acting for the benefit of the company because she arrived for the purpose of work. On appeal, the 4th District Court of Appeals reversed the trial court decision and rejected arguments that the coming and going rule barred her claim and found claimant was in the zone of employment which included the ingress and egress to the factory under the control of the employer. However, the court emphasized she was not injured walking through the parking lot, she was injured closing the door of her truck. Even though closing the door of her truck is typical of employees who elect to drive their vehicle to work, it is not a necessary part of an employee’s workday. Even though claimant was in the zone of employment and her injury occurred in the course of her employment, it did not arise out of her employment. The court distinguished other parking lot cases where injuries were caused by ice or other hazards on the ground or motor vehicle accidents, finding those injuries were caused by traveling in the parking lot to get to work. The Court found the trial court erred when it granted claimant summary judgment and overruled summary judgment motions from the Bureau and employer. The matter was remanded back to the trial court to enter summary judgment in favor of the employer and the Bureau and find the claim was not compensable.

The take away here is parking lot injuries are very fact specific and employers should consult with counsel before deciding whether to certify or reject a workers’ compensation claim when an employee is injured in a parking lot.