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Comp Connection March 2023

On Behalf of | Mar 27, 2023 | Firm News

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In State of Ohio ex rel. AutoZone Stores Inc. v. Indus. Comm.10th Dist. No. 21AP-294, 2023-Ohio-633, decided on March 2, 2023 the Tenth District Court of Appeals interpreted R.C. 4123.56(F) which provides:

 If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.

In AutoZone, the injured worker was working light duty when he was terminated for his involvement in an argument with a coworker. He had surgery less than 2 months after the termination and requested temporary total disability compensation (“TTD”). The commission granted TTD from the date of surgery to the date of the SHO hearing and the employer filed a mandamus action in the 10th District Court of Appeals. The Court created a two part test to determine whether claimant is entitled to TTD under R.C. 4123.56(F): 1) whether he or she was unable to work as a direct result of an impairment arising from the injury or occupation disease, and 2) whether he or she is otherwise qualified to receive TTD. The court held there was no requirement that the commission look back to events surrounding claimant’s termination. The first prong is met by claimant’s doctor putting him off work for the allowed conditions of the claim.  There is no requirement that claimant prove he or she is unable to work solely due to the impairment arising from the claim. Because the claimant was unable to work due to the allowed conditions, TTD was payable. The court rejected the company’s arguments that claimant did not lose any wages because he was unemployed at the time of his disability.  The company argued R.C. 4123.56(F) requires claimant be “otherwise qualified” and because claimant was not employed at the time of the surgery due to the termination, he was not “otherwise qualified”. The Court disagreed holding “otherwise qualified” refers to the disqualifications set forth in R.C. 4123.56(A) regarding returning to work, maximum medical improvement, a statement from the treating physician opining claimant is capable of returning to his former position, and light duty job offers.  Under AutoZone an unemployed claimant could be entitled to TTD. We anticipate this case will be appealed to the Ohio Supreme Court and we will continue to monitor the caselaw interpreting R.C. 4123.56 as it comes out.

The Fifth District Court of Appeals Held Performing Some Incidental Work at Home and in the Car Does Not Prevent Claimant from being a Fixed Situs Employee

In Hurley v. Group Management Services, 5 Dist. No. 2022 CA 0009, 2022- Ohio-4709, claimant was injured in a car accident driving to work.  He lived in Cleveland but his work facility was in Columbus.  On Monday mornings he was not required to be at work until 10 a.m. because his commute was 125 miles from Cleveland.  During the week he would stay in Columbus in a house rented by the company.  Claimant did some work from home and was required to take work calls during the commute.  About 2 hours of work was done at home and in the car per week.  The claim was disallowed administratively, and claimant appealed to the Common Pleas court where the company’s Motion for Summary Judgment was granted finding the claim was barred by the coming and going rule. Claimant appealed to the Fifth District Court of Appeals.  On appeal, claimant argued he was not a fixed situs employee because he worked while commuting, and occasionally performed some work from home on the weekends.  The Court of Appeals disagreed, holding taking periodic phone calls and doing limited work on the weekends did not qualify as substantial employment duties.  Because his substantial duties began after arriving at his identifiable workplace designated by his employer he was a fixed situs employee and the coming and going rule prevented him from participating in workers’ compensation system for an injury incurred while driving to work.   We may see more fact patterns like this as employees continue to perform work from home and the car.