Tenth District Court of Appeals Rules that Employee’s Good Faith Reason for Rejecting Light Duty Offer does not Preclude Termination of Temporary Total Disability Benefits

Temporary total disability (TTD) is a wage replacement benefit provided by the Bureau of Workers’ Compensation (BWC) to employees who are temporarily unable to perform the duties of their job due to a work place injury that has been recognized (“allowed”) by BWC.

TTD benefits increase the costs of the claim for the employer by increasing the reserve taken out to cover potential costs and by the corresponding impact of costs of the claim on the employer’s premiums. Accordingly, it is in the employer’s interest to reduce the period that an employee qualifies for TTD benefits in order to reduce overall BWC costs.

TTD benefits can be terminated for several reasons.  The focus of this most recent Court of Appeals case is refusal of an offer of suitable work.  TTD benefits may be terminated if an employee refuses a good faith offer of suitable alternative employment.  Suitable employment is work that is in the employee’s physical abilities, taking into account any restrictions for lifting, pushing, pulling or other physical activities that may be required for the work. For many employers, this may be a light duty position.  Employers are not under any obligation to provide light duty work, but it may make financial sense to do so in some cases, particularly in the context of a workers’ compensation claim.  

In order for a good faith offer of suitable work to be a basis for terminating TTD, it must be in writing, it must describe the duties that the employee will be required to perform with enough specificity that the employee and his or her treating physician can determine whether or not the job offer meets the employee’s physical limitations. A good faith offer is one that is clearly within the employee’s limitations. At least 48 hours should be granted for the acceptance or rejection of the offer.  It would be best if a job description specifying the duties is provided with the offer for the physician’s review.

The question in this case is whether it matters if the employee has a good faith reason to reject the offer.  In other words, can an employee, with good reason, reject an employer’s job offer and still retain TTD benefits?  The answer, is no.

Here, it was not in dispute that the offer was suitable and was made in good faith by the employer.  It was therefore, a qualifying job offer sufficient to serve as a basis for terminating TTD if rejected.  However, the magistrate to whom the case was assigned found that because the employee likewise had a good faith reason for rejecting the offer, the employee could retain the TTD benefits.

The Court of Appeals reversed.  Whether the employee had a good faith reason to reject an offer would only be relevant to considering whether the employer’s offer was made in good faith. If the Employer makes a suitable offer in good faith, the only relevant inquiry is whether the employee is capable of doing the job.  If the employee is capable, a rejection of the offer can be a basis for terminating TTD benefits.  The Court reasoned that law governing TTD follows the principle that there must be a causal relationship between the work-related injury and the claimant’s inability to return to work to support an award of TTD compensation.  That requirement would not exist if the claimant could reject an offer on grounds other than the inability to perform the work, even for reasons that are understandable and based in good faith.

If you have an employee who qualifies for TTD consider whether there is alternative suitable employment or light duty work available that could be offered to the employee.  If so, you will want to ensure that you make a qualifying offer in writing. Contact one of the Ennis Britton Workers Compensation team members for assistance.  We can help provide a qualifying offer and advise on filing a motion to terminate TTD when appropriate.

State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 2020-Ohio-5197

Ohio Supreme Court Affirms Decision That The Ohio Student Privacy Act Forbids Release of Student Records of Deceased Student

In January 2020, we reported to you that the Second Appellate District Court in Ohio ruled that the death of a student does not remove the legal protections of the confidentiality of student records. Find more details from the January 2020 report here. State ex. rel CNN, Inc. v. Bellbrook-Sugarcreek Local School Dist., 2019-Ohio-4187.

This case was appealed to the Ohio Supreme Court, who issued a decision on November 5, 2020. In brief summary, CNN and other local and national media organizations sought student records regarding a deceased adult former student who killed nine people and injured 27 others in a mass shooting in Dayton, Ohio on August 4, 2019. The Ohio Supreme Court specifically found that school districts are “prohibited from releasing any personally identifying information about [a student] without … consent.” The Court determined that there was no exception provided for in Ohio’s Student Privacy Act, R.C. 3319.321, to permit the release of personally identifiable information when the student is deceased. While the Court mentioned the Family Educational Rights and Privacy Act (FERPA), it found that it did not need to consider the federal law as state law prohibited the disclosure of the requested record.

As a result, the Second Appellate District Court’s decision was affirmed, through the Court’s finding that the Ohio Student Privacy Act “unambiguously forbids disclosure of the requested records.”

State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools, 2020-Ohio-5149 (Nov. 5, 2020)

Connect with EB at Capital Conference! #OSBACC

Connect with EB at Capital Conference! #OSBACC

The pandemic has presented many challenges for all of us this year, including that we will not have the opportunity to gather in person for the Ohio School Board Association’s Capital Conference. In spite of these challenges, the conference will still give us all “virtual” opportunities for connection, learning and conversation. Ennis Britton is proud to be a Gold Sponsor of the 2020 OSBA Capital Conference. We will be there with you virtually, and you will be able to see and interact with our team of attorneys and firm logo in many different places.

Take a look below at our list of our presentations and events, and find out how you can connect with us through our virtual booth at the Trade Show.

This is the first time we have participated in the Trade Show. Stop by and chat or leave a message for us. We would enjoy “seeing” you visit our booth, which will be staffed by our Columbus legal assistant Hannah Reichle. She can tell you about all of the exciting opportunities we have in the upcoming year, and can help you connect with a member of our team.

This year, Ennis Britton will also host a Coffee Chat on Monday morning, Nov. 9, where Ryan LaFlamme, Pam Leist, Bob McBride and Hollie Reedy will review 2020 Legal Lessons Learned. The spotlight session takes place from 9:30 a.m. to 10:00 a.m.

Finally, make sure you join our attorneys presenting at Capital Conference this year for exciting, informative (and entertaining!) track sessions. Here is when and where you can hear from us:

Monday, Nov. 9th

9:30-10:00 a.m. Coffee Chat: Thanks for the Memories: Legal Lessons Learned…Presented by Ryan LaFlamme, Pamela Leist, Robert McBride and Hollie Reedy

2:15 p.m.-3:15 p.m. Addressing Employee Absenteeism
Presented by John Britton

11:00 a.m.-12:00 p.m. Developing threat assessment teams for schools…Presented by Erin Wessendorf-Wortman

Tuesday, November 10th

2:15 p.m. Remote Control-Professionalism in the Digital Age…Presented by Jeremy Neff and Giselle Spencer

We will certainly miss hosting you at Ennis Britton’s Capital Conference reception this year. Stay tuned for next year, when we hope to gather in person and continue building the community of relationships we value now more than ever. Our reservation is already made.

We are proud to support OSBA as a Gold Sponsor, especially this year. We hope to connect with you next week!