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Comp Connection Vol. 16 No. 3

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Court Of Appeals Finds R.C. 4123.57(B) Unconstitutional

 

The 8th District Court of Appeals recently found another provision of the workers compensation statute to be unconstitutional. On May 12, 2016, the Court of Appeals declared R.C. 4123.57(B) unconstitutional because the house bill upon which the law passed violates the one-subject rule in Ohio Constitution, Article II, Section 15(D).

In Kljun v. Morrison, 2016-Ohio-2939, several plaintiffs filed a declaratory judgment action against the administrator of the Ohio Bureau of Workers’ Compensation, alleging H.B. 487 violated the one-subject rule of the Ohio Constitution. In 2010, H.B. 487 amended R.C. 4123.57 (B), to the extent that scheduled loss payments would no longer be paid in a single lump sum and would be paid weekly until the injured workers’ death. The stated purpose of H.B. 487 is to “make operating and other appropriations and to provide authorization and conditions for the operation of state programs.”

In the trial court, plaintiffs and the Bureau filed motions for summary judgment. The trial court granted summary judgment in favor of the Bureau, finding that H.B. 487 complies with the one-subject rule. The court of appeals, however, reversed the trial court. The court of appeals reasoned that H.B. 487 was designed to address and modify budgets and appropriations for a number of state agencies. H.B. 487, however, fails to reflect a meaningful relationship to R.C. 4123.57(B). The court noted that neither the state fund nor self-insured employers are financed by the General Assembly. Based on testimony from bureau representatives, such as the Assistant General Counsel for the Bureau, the court concluded the primary beneficiaries of the amendment to R.C. 4123.57(B), would be self-insured employers. The court held the amendments to R.C. 4123.57(B) lack any relationship to the other wide-ranging provisions of H.B. 487.

More than likely, the Bureau will appeal the court’s decision to the Ohio Supreme Court. We will report on the progress of this case in future editions of this publication.

Medical Marijuana Law Will Not Alter Rebuttable Presumption In Comp

On May 25, 2016, House Bill 523 cleared the Ohio Senate in a bipartisan vote, capping a historic debate at the Ohio Statehouse about medical marijuana. Ohio Governor, John Kasich, has 10 days to sign the bill. If he does not sign the bill, it automatically becomes law. The law becomes effective 90 days after Kasich signs, which will be sometime in early September, 2016.  Shortly after the bill’s passage, Ohioans for Medical Marijuana announced it would halt collecting signatures to get a constitutional amendment on the November ballot.

Ohio employers may be concerned about the impact the medical marijuana law will have on employment. Under the bill’s language, employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana, which means employers may terminate and discipline employees who use medical marijuana if such conduct is in violation of the employer’s work rules.

The law also considers a discharge because of a person’s use of medical marijuana to be a discharge for just cause if the marijuana use violates an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating medical marijuana use. As such, employees who are discharged on such basis would be ineligible for unemployment compensation. Additionally, the new law maintains the rebuttable presumption that an employee is ineligible for workers’ compensation if the employee was under the influence of marijuana and being under the influence of marijuana is the proximate cause of the injured workers injury, regardless of whether the marijuana use is recommended by a physician.


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Mental/Mental Bill Brewing

State senators, Tom Patton (R-Strongsville) and Edna Brown (D-Toledo) recently introduced Senate Bill 5, which would allow emergency first responders to receive workers’ compensation benefits for posttraumatic stress disorder (PTSD) even if they do not have an accompanying physical injury. The bill would allow so-called mental/mental claims, which the Ohio Supreme Court has found impermissible under the Ohio Workers’ Compensation Statute. The bill currently is limited to peace officers, firefighters, and emergency medical workers diagnosed with PTSD. The bill is currently under review by the Senate Finance Committee.

 

Court of Appeals Rejects Unscientific Medical Opinion

               In Hill v. Pepsi, 2016-Ohio-2868, the 6th District Court of Appeals held the medical opinion of the plaintiff’s doctor was unscientific and, as such, the employer was entitled to judgment in its favor.  In Hill, the plaintiff alleged he sustained an upper respiratory condition from the inhalation of liquids and powders at work. Despite the plaintiff’s allegation, there was no medical literature supporting a causal connection between the chemicals at issue and the plaintiff’s respiratory disease.

Under the Ohio Supreme Court’s decision in Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, expert opinions on causation must have a valid scientific basis.  Prior to trial, the employer moved for summary judgment on the ground there was no valid medical evidence in support of the claim. The plaintiff’s doctor opined by way of affidavit that there was a causal connection between the chemicals and plaintiff’s respiratory disease based on temporal proximity and the doctor’s experience as a pulmonologist. Because there was no convincing evidence or medical literature that plaintiff’s respiratory disease was proximately caused by the inhalation of chemicals at work, the trial court granted the employer summary judgment. The Court of Appeals upheld the judgment.

Where appropriate, employers should challenge claims involving novel occupational diseases, as such claims may be subject to summary dismissal under Valentine.

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