by Ryan LaFlamme | Nov 26, 2013 | General, Workers’ Compensation
One of the goals of the workers’ compensation system is to get employees back to work as quickly and as safely as possible. One way that employers may be able to bring employees back quickly is by offering light duty work to the employee. In order to enable the employee to accept light duty work, it must accommodate any restrictions the employee’s physician of record may order with regard to physical activity. Simply creating busy work for an employee to return to may not always be efficient and there are some employees who may be completely disabled due to their work injury or who may have restrictions that an employer cannot accommodate. Accordingly, not all claims are open to this particular remedy.
However, where an employee has restrictions but cannot return to the former position of employment, employers should at least consider whether light duty work can be created. In addition to getting the employee acclimated to working again and perhaps hastening the time in which the employee can return to the former position of employment, offers of light duty work can also be a means to bring and end to stagnating periods of temporary total disability.
Temporary total disability is a wage substitute for claims in which the employee, due to the work related injury has suffered a disability which prevents them from returning to the former position of employment. Where the employer chooses not to provide salary continuation, the Bureau will pay wage substitute benefits to the employee. Temporary total disability benefits can only be cut off under certain circumstances:
- The employee returns to the former position of employment or any other work for any employer.
- The employee is released by the employee’s physician to return to the former position of employment.
- The employer offers the employee work within the employee’s physical capabilities.
- The employee has reached maximum medical improvement.
- The benefits have been paid due to a substantial aggravation of a preexisting injury and the injury has returned to the level it was prior to the aggravation.
Caution is advised as it is not enough to simply inform the employee that light duty work is available. The offer must identify the position offered and must include a description of the duties required of the position and clearly specify the physical demands of the job. For example, if the job will require lifting, information on the weight and frequency involved. An oral job offer is acceptable, but if the employee refuses and the employer desires to use that refusal as a basis for terminating temporary total disability benefits, the offer must be reduced to writing.
Therefore, the best practice for any light duty offer would be to make the offer in writing, by certified letter, which clearly identifies the work available, and which clearly describes the duties and physical demands. Skip the oral offer and start off with a written offer as it must be in writing to be enforceable in any case.
by Ryan LaFlamme | Jun 28, 2013 | Labor and Employment
Vance v. Ball State Univ., 11-556, 2013 WL 3155228 (U.S. June 24, 2013).
Univ. of Texas Sw. Med. Ctr. v. Nassar, 12-484, 2013 WL 3155234 (U.S. June 24, 2013).
On Monday, June 24, 2013, the U.S. Supreme Court ruled on two cases involving Title VII harassment claims. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, sex, religion, or national origin.
In the case of Vance v. Ball State University, the Court addressed the definition of a “supervisor” as it relates to Title VII harassment claims. In University of Texas Southwestern Medical Center v. Nassar, the Court addressed the appropriate standard to determine whether an employer engaged in retaliatory actions against an employee.
In Vance, an African-American employee of Ball State claimed that she had been racially harassed by a co-worker causing a hostile work environment. She claimed that the co-worker was her supervisor, and as such, the University should be held to a higher standard of liability. Under this higher standard, the University would be liable unless it could prove that (1) it used reasonable care to prevent the harassment and (2) the employee was unreasonable in not taking advantage of the opportunities provided by the employer. On the other hand, if the co-worker was not a supervisor, as argued by the University, the University would only be liable if found to be negligent.
The Court indicated that a co-worker is a supervisor under Title VII only if the co-worker is given the authority by the employer to engage in “tangible employment actions” against the employee. Tangible employment actions include actions such as hiring, firing, reassigning different responsibilities, changing employment benefits, and promoting/failing to promote. The Court indicated that the co-worker in this case was not a “supervisor” of the complainant because the co-worker did not have the authority to engage in tangible employment actions against the employee.
In Nassar, a physician of middle eastern descent claimed that the University of Texas Southwestern Medical Center violated Title VII when (1) his supervisor allegedly discharged his employment as faculty for the University due to racial and religious discrimination and then (2) another supervisor retaliated against him because of his complaint regarding the alleged discrimination by preventing him from being hired at a local hospital.
As is the test used with some types of Title VII discrimination claims, the physician argued that the motive of retaliation need only be a motivating factor of the employer’s actions, allowing for other legal factors to also play a part in the employer’s actions. The Court ruled against this argument by determining that with regard to Title VII retaliation claims, an employer’s actions must be more than partially motivated by retaliation and must meet the higher standard of “but-for” cause; “But-for” the wrongful action (retaliation), the consequence (loss of job) would not have occurred. Therefore, the retaliation must be the reason that the employer acted, rather than one factor among many.
by Ryan LaFlamme | Jun 7, 2013 | Workers’ Compensation
Armstrong v. John R. Jurgensen Co., Slip Opinion No. 2013-Ohio-2237.
In a decision released June 4, 2013, the Ohio Supreme Court has affirmed that in order for a mental condition to be compensable under the Ohio workers’ compensation system, a compensable physical injury sustained by the claimant must cause the mental condition.
The facts of the case are that an employee was involved in a motor-vehicle accident while operating a one-ton dump truck in the performance of his job duties. The employee’s truck was struck from behind by another vehicle resulting in the death of the driver. After being transported to the emergency room, the employee was treated for physical injuries and released. He was distressed to learn, while in the emergency room, that the other driver had died.
The employee filed a workers’ compensation claim for his physical injuries, and his claim was allowed for cervical strain, thoracic strain, and lumbar strain. He subsequently requested an additional allowance for post traumatic stress disorder (“PTSD”). A hearing officer allowed the employees additional claim, finding his PTSD compensable because it was causally related to his industrial injury and his previously recognized conditions. The employer ultimately appealed to court. The parties did not dispute that the employee actually had the condition of PTSD, the dispute was over what caused it. Injured workers have the burden of proof to show that there injuries are causally related to the performance of their work duties.
The expert for the employer opined that the employee’s PTSD was caused by “the mental observation of the severity of the injury, the fatality, [and] the fact that it could have been life threatening to him at some point.” The expert further opined that the employee would have suffered PTSD regardless of his physical injuries. The trial court as well as the appeals court sided with the employer and the employee appealed to the Ohio Supreme Court.
R.C. 4123.01(C) defines “injury” for purposes of workers’ compensation. Psychiatric conditions are excluded from the general definition of “injury,” “except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant.”
The Court recognized that no Ohio appellate court has ever recognized a workers’ compensation claim for mental injury or mental disease caused solely by job-related stress which is unaccompanied by physical injury or occupational disease. Accordingly the Court was not willing to broaden what it called unambiguous language in the statute.
Hence, for a mental injury to be compensable, it must arise from a compensable physical injury. Mental conditions, standing alone are not sufficient, nor are mental conditions which are contemporaneously incurred with a physical injury, but which are not caused by the physical injury.
by Ryan LaFlamme | Jan 10, 2013 | General
Governor John Kasich signed HB 543, also known as the “Jason Flatt Act,” into law on December 20, 2012. The bill, originally sponsored by the mother of a suicide victim, requires school districts to provide in service training in youth suicide awareness and prevention to all teachers, nurses, counselors, school psychologists and administrators. Districts may also provide training to any other personnel deemed appropriate.
Each district is required to either adopt or adapt the curriculum developed by the Department of Education or develop its own curriculum in consultation with public or private agencies or persons involved in youth suicide awareness and prevention programs. The training will count toward professional development required by districts and may be accomplished through self-review of suitable prevention materials approved by the board.
The bill is named for a Tennessee student who committed suicide in 1997. His father has championed the Jason Foundation, Inc. since his son’s death and numerous other states have adopted similar versions of HB 543 as a result of the foundation’s lobbying efforts. The law goes into effect on March 22, 2013.
The full text of the law can be viewd at: http://www.legislature.state.oh.us/bills.cfm?ID=129_HB_543
by Ryan LaFlamme | Jan 4, 2013 | General
We have recently reported on House Bill 555 which was signed into law by Governor Kasich on December 20, 2012. Certain provisions of the Bill modify the method in which the value-added progress dimension or student academic growth measure must be used to evaluate teachers.
Under continuing law, the State Board must adopt a framework for teacher evaluations which provide for multiple evaluation factors. One such factor addressed by the Bill is student academic growth. Student academic growth should for fifty percent of each evaluation. The Bill provides that when applicable to the grade level or subject area taught by a teacher, the value-added progress dimension or an alternative student academic progress measure, if adopted, shall be used in the student academic growth portion of an evaluation in proportion to the part of a teacher’s schedule of courses or subjects for which the value-added progress dimension is applicable.
The Bill further provides that if a teacher’s schedule is comprised only of courses or subjects for which the value-added progress dimension is applicable, one of the following applies:
- Beginning with the effective date of this Bill (90 days from passage) until June 30, 2014, the majority of the student academic growth factor of the evaluation shall be based on the value-added progress dimension.
- On or after July 1, 2014, the entire student academic growth factor of the evaluation shall be based on the value-added progress dimension. (In calculating student academic growth for an evaluation, a student shall not be included if the student has sixty or more unexcused absences for the school year).
The Bill also exempts substitutes and adult education instructors from the requirements of the evaluation law. We will keep you posted with any further developments. The text of the bill can be viewed at:
http://www.legislature.state.oh.us/bills.cfm?ID=129_HB_555
