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Workers’ Compensation News, Vol 13 No 2

Bugbee & Conkle Workers’ Comp Seminar

Bugbee & Conkle, LLP will host its annual Workers’ Compensation Seminar at 1:00 p.m. on March 7, 2013 at the Holiday Inn French Quarter in Perrysburg, Ohio. Seminar topics have been circulated in previous alerts and publications. If you still would like to attend the seminar or need more information, please contact our office at 419-244-6788 and ask for Shannon Abbey.

Governor Replaces Karen Gillmor with Jodi Taylor as Commission Chairperson

Effective February 13, 2013, Jodi Taylor became the Industrial Commission’s chairperson on Governor John Kasich’s appointment. Taylor was appointed as the em-ployer member of the Commission in July 2009. She previ-ously served as chairperson from January 2011 to July 2011.

Ohio Supreme Court Finds Claimant Must Produce Evidence On All Elements Of Claim To Prevail In Appeal Under R.C. 5123.512

In Bennett v. Ohio Bur. Of Work-ers’ Comp., 2012-Ohio-5639, the claimant sought to participate in the workers’ compensation fund for inju-ries sustained in a car accident on his way to work. After some litigation in the trial court and on appeal to the court of appeals, it was established the “coming and going” rule did not pre-clude the claim. The case proceeded to the trial. At trial, the claimant failed to produce evidence his medical conditions were caused by the acci-dent. The Bureau moved for directed

verdict on the ground the claimant failed to produce evidence establish-ing the causal connection between the accident and the medical conditions for which he sought benefits. The trial court granted the Bureau’s mo-tion.
On the claimant’s appeal the 6th District Court of Appeals affirmed the trial court’s judgment. The Supreme Court accepted the claimant’s appeal in its discretionary jurisdiction.

The claimant argued the claim should have been remanded to the Commission to deter-mine the extent of his participation in the fund. However, the Supreme Court disagreed. The Court explained a workers’ compensation claimant always has the burden of proving an injury occurred “in the course of” and “arising out of” work, and that a work incident proximately caused a specific medical condition. Although it was established the “coming and going” rule did not preclude the claim, this determination addressed only the “in the course of” element of the statutory definition of injury. The claimant still was required to establish the causal connection between the injury and work, and that the injury proximately caused the alleged medical conditions.

While the Court’s decision was not unanimous, it reinforces the claimant’s burden of proof. Because the definition of injury is written in the conjunctive, claimants must prove the injury occurred “in the course of” and “arose out of employment” to par-ticipate in the fund.

Court Of Appeals Finds Salmonella Poisoning Contracted At Work Is NOT Compensable

In Serraino v. Fauster-Cameron, Inc., 2013-Ohio-329, an employee contracted salmonella poisoning after eating lunch in a hospital break room. The hospital had a lunch program in which it invited caterers to sell their food in the break room. Employees were not required to participate in the program and the meals provided by the caterer were also available to the public. The hospital did not share in the proceeds of the food sales.

After developing salmonella poi-soning, the claimant filed for workers’ compensation benefits, which the Commission denied. The claimant appealed to the trial court pursuant to R.C. 4123.512. The Bureau and the hospital moved the trial court for summary judgment on the ground the claim was not “in the course of” and did not “arise out of” employment.

The trial court granted the motion.

On appeal, the 3rd District Court of Appeals upheld the trial court’s judg-ment, finding the injury did not arise out of employment. The court analyzed only the “arising out of” prong of the injury definition and concluded the claim was not compensable. Although the injury took place on the hospital’s premises, the hospital had no control over the scene of the accident. The court explained the hospital may have had control over the break room itself, but it had absolutely no control over the caterer’s activities, which exclusively gave rise to the claim-ant’s poisoning.

A claim for salmonella poisoning is unusual. Employers should scrutinize unusual claims closely, as such claims may not be compensable under the defi-nition of injury.

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