Ohio Supreme Court Strictly Construes Loss of Sight and Hearing and Denies Benefits to Claimant with Brainstem Injury
In State ex rel. Smith v. Indus. Comm., 2014–Ohio–513, a claimant had an allowed claim for bilateral inguinal hernia. Post-operative complications resulted in brain damage leaving the claimant in a persistent vegetative state. The claim was additionally recognized for anoxic brain damage and seizure disorder. The claimant later received a scheduled loss of use of bilateral arms and legs in 2004.
Several years thereafter, the claimant moved the Commission for a schedule loss of use of vision and hearing on the ground the brain injury caused such loss. The Commission denied the request, prompting the claimant to file a mandamus action the 10th District Court of Appeals.
The Court of appeals remanded the claim back to the Commission to conduct a further hearing to analyze the medical evidence regarding the practical application of the clinical data showing a loss of 100%. The employer appealed to the Ohio Supreme Court.
In a sharply divided decision, the Supreme Court reversed the court of appeals, holding the law does not authorize loss of vision and loss of hearing awards due to the “loss of brain-stem functioning.” The Court reasoned the evidence indicated the claimant has suffered a loss of function in the brain stem that precluded him from processing and understanding visual and auditory signals, but his eyes and hears nevertheless still had function. Because there was no test to determine whether the claimant suffered an actual loss of sight or an actual loss of hearing, the Commission did not abuse its discretion in denying the award.
Mark your calendars now for Bugbee & Conkle’s Annual Employment Law Seminar September 25, 2014 at the Hilton Garden Inn Perrysburg, OH
Wage Loss Rule Undergoes Overhaul
Effective February 13, 2014, there are a new set of rules governing wage loss compensation. Still codified at Ohio Admin. Code 4125-1-01, the new wage loss rules are organized differently and included a more complete set of definitions. The new rules set forth more rigid prerequisites for the receipt of wages loss compensation and codify concepts previously recognized by case law, and/or custom.
Some of the important changes are as follows:
- “Employer of record” and “former position of employment” have been added to the definition section. “Claimant” has been replaced with “injured worker,” although this change is more cosmetic than substantive.
- The new rule includes a rebuttable presumption that earnings from paid leave provided by the employer are included in present earnings. The new rule also includes a rebuttable presumption that injured workers engaged in self-employment have a gross income of at least 50% of the statewide AWW.
- “Retirement” and “voluntary separation from employment” collectively have been replaced by “voluntary retirement,” which encompasses a significantly abbreviated definition compared to the two previous terms.
- Under the new rule, wage loss application must be filed on the Bureau’s forms or an equivalent. Otherwise, compensation shall not be paid. An “equivalent” form is undefined by the rule.
- Injured workers now must submit job search statements every week in which non-working wage loss is sought.
- New applications for wage loss compensation must include a complete employment history, including all the jobs held by the claimant. If the claimant applies for jobs on-line, the applicant must provide a copy of the on-line posting and verification of the application submission, the results of the contact, and any other information requested by the Bureau.
- If an injured worker has permanent restrictions, the Commission will no longer require the treating physician to provide updated restrictions every 180 days unless requested by the self-insured employer or Bureau.
- The injured worker must also provide proof of registration with the Ohio Department of Job and Family Services, or if the injured worker is out of state, the out of state equivalent.
- Claimants are not required to continue a job search if they are back to work for their former employer.
- Working wage loss is payable when an injured worker misses work to obtain treatment for allowed conditions and such treatment cannot be obtained outside work hours.
- Wage loss compensation covering the same period in which an injured worker received sickness and accident benefits shall be offset, but only upon a prior order of the Bureau, the Commission or by agreement with the injured worker.
- The new wage loss rules apply to all application filed on or after February 13, 2014.
You can review the complete wage loss rule by clicking here.