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Workers’ Compensation News, Vol 13 No 1

Bugbee & Conkle Workers’ Comp Seminar

Bugbee & Conkle, LLP will host its annual Workers’ Compensation Seminar March 7, 2013 at the Holiday Inn French Quarter in Perrysburg, Ohio. Seminar topics will be announced in a later publication. For more information, please contact our office at 419-244-6788.

Ohio Supreme Court Weighs in on Intentional Tort Statute

At the end of 2012, the Ohio Su-preme Court issued two key decisions analyzing Ohio’s Intentional Tort Statute, R.C. 2745.01. In Hewitt v. L.E. Myers Company, 2012-Ohio-5317, the Court narrowly defined an “equipment safety guard” as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” This hold-ing clarified that personal protective items, such as gloves, facemasks of sleeves are not contemplated by the statute. The Court also held an em-ployer is liable for an intentional tort only when it “deliberately” removes the equipment safety guard. In Houdek v. ThyssenKrupp Materials, 2012-Ohio-5685, the Court reiterated its holding in Hewitt that employers are only liable for claims in which there was a deliberate intent to cause injury.

One issue the Court did not ad-dress is whether an employer is liable under the statute when the employer fails to attach safety equipment. In September, 2012, before the Hewitt and Houdek decisions, the 7th District Court of Appeals held the failure to attach safety equipment provided by the manufacturer is the same as the deliberate removal of safety equip-ment. Wineberry v. Northstart Paint-ing Co., 2012-Ohio-4212. Neither party appealed Wineberry to the Ohio Supreme Court. It is unclear how the Supreme Court will construe the fail-ure to attach safety equipment, if/when the Court faces the issue.

Statutory attorneys fees and Costs payable When Claimant wins Any Condition under R.C. 4123.512

The Ohio Supreme Court has held an employer is responsible to reimburse a claimant, who wins a court appeal under R.C. 4123.512, for attorneys fees and costs incurred by the claimant. In Holmes v. Crawford Machine, Inc., 2012-Ohio-5380, the employer appealed several conditions to court. At trial, the jury found the claimant was entitled to participate in the workers’ compensation system for only one of the several conditions. The claimant sought reimbursement for attorneys fees and all costs incurred in the litigation. The employer argued the fees and costs should be limited to such fees and costs connected to the allowed condition only.

The trial court agreed with the claimant’s position; however, the court of ap-peals agreed with employer’s. The Supreme Court held R.C. 4123.512 does not require apportionment of attorneys fees and litigation costs based on the outcome of particular conditions. Once the claimant establishes the right to participate, the claimant is entitled to attorneys fees for the effort expended in the litigation and reasonable costs related to the litigation, without any limitations.

The Court’s decision highlights one of the risks of workers’ compensation liti-gation. Employers must remain mindful of the exposure to attorneys fees and costs when developing a litigation strategy. If you have questions , please contact our office at 419-244-6788.

Group Rating Case May Affect State Fund Employers If Upheld

For the last several years, San Allen, Inc. v. Ohio Bureau of Workers’ Comp., Cuyahoga Case No. CV-07-644950 has languished before the Cuyahoga County Court of Common Pleas. The case in-volves a lawsuit filed by numerous State Fund employers (eventually certified as a Class) against the Bureau seeking reim-bursement for inflated premiums due to Ohio’s group rating system. The plaintiff class challenged the constitutionality of the group rating system and alleged the Bureau violated R.C. 4123.29 and R.C. 4123.34, which statutes authorize the Bureau to establish group plans and set fixed and equitable rules governing premiums.

On August 20, 2012, the court heard the case in a bench trial. On December 28, 2012, the court issued a partial order, finding the Bureau violated R.C. 4123.29 and R.C. 4123.34, and unlawfully col-lected excessive premiums from non–
group rated employers. The Bureau’s public admissions that it overcharged non-group state fund employers led the court to rule in favor of the plaintiff class. While the plaintiff class sought restitution of over 1.3 billion dollars, the precise amount the Bu-reau overcharged the employers remains in dispute. Based on the court’s ruling, howev-er, the amount of restitution will likely be less than what the plaintiff class initially sought. A hearing on the final restitution figure is set for March 14, 2013.

If the court’s decision is upheld, there could be restitution for up to 270,000 state fund employers. However, it has been re-ported the Bureau plans to appeal the court’s decision. Until there is a final determina-tion, it is unclear what impact, if any, the San Allen case will have on state fund employers.

This publication will continue to pro-vide updates on the progress of this case as they occur.

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