BWC Retaliation Case

Creveling v. Lakepark Industries, Inc., 2021-Ohio-764

The Sixth Appellate District Court of Appeals has rendered a decision denying an employee’s claims of workers’ compensation retaliation and disability discrimination, among some other related claims.

The employee at issue was a tool and die maker.  He was injured while using a machine that had rotating parts which caught the glove he was wearing and mangled his right hand, resulting in an amputation of his middle and ring finger. The Employer contacted OSHA to begin an investigation and filed a workers’ compensation claim on the employee’s behalf.  The employee was eventually released to full duty by his doctor and the employer reinstated him as a tool and die maker.  

Employees were trained extensively not to use gloves while using rotating equipment and the employer investigated the employee’s conduct in this regard and imposed a three-day suspension without pay.  The employee admitted that he violated the policy and also executed an employee corrective action warning him that any further violations would result in his dismissal.  The first day back from the suspension, the employee was witnessed wearing gloves while operating a rotating machine.  The employee was reported to management and was terminated for violating the policy and the employee corrective action.  The employee conceded that he had violated the corrective action.

The employee sued the employer for workers’ compensation and disability discrimination as well as wrongful termination, an intentional tort related to maintenance of the equipment, and loss of consortium on behalf of his wife.

Ohio law provides that “no employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”

Workers’ compensation retaliation, like other discrimination and retaliation claims are subject to a burden-shifting analysis by the Court. The employee bears the burden to establish a “prima facie” case by showing that (1) the employee filed a workers’ compensation claim, or instituted, pursued, or testified in a workers’ compensation proceeding; (2) the employer discharged, demoted, reassigned, or took punitive action against the employer; and (3) a causal link exists between the employee’s filing or pursuit of a workers’ compensation claim and the adverse action by the employer.  

If the employee can establish a prima facie case, the employer must show a legitimate, non-discriminatory reason for its action.  If the employer meets this burden, it goes back to the employee to establish that the reasons provided by the employer are merely a pretext.  To do so, the employee must be able to shoe that the reasons given by the employer (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge.

The Court rejected the employee’s argument that because he was fired within 7 days of returning to work, it was sufficient to establish retaliatory motive.  The Court reasoned that the firing and the employer’s knowledge of the claim were not sufficiently close enough in time to establish that proximity alone constituted evidence of retaliatory intent.  Moreover, the Court found that the act of returning to work is not protected activity.  

The Court also rejected evidence that the employer had a hostile attitude towards the employee based on a couple off-color remarks that were made upon his return such as “I guess you are left-handed now.”  Such isolated comments, however, out of context, and in the absence of other evidence, are insufficient to establish a causal link between termination and the filing of a workers’ compensation claim.  

The Court also rejected the employee’s argument that because the employer had failed to discipline other employees prior to his injury for wearing gloves, that its action to do so after the injury is evidence of a retaliatory motive.  The Court found that the employee himself had not been declined for doing so prior to his injury and that he was unequivocally prohibited from doing so after his injury, before he was terminated for once again violating the policy.

The Court denied the employee’s disability discrimination law, which was made on similar factual allegations as the retaliation claim.  However, here, the Court found that the employee was unable to establish a prima facie case of discrimination because he did not have a disability due to his two fingers being amputated.  The Court found that the employee did not establish that the amputation caused him a substantial limitation of a major life activity.  The Court recognized that he had some difficulty in adjusting to writing and other tasks with his right hand after the amputation, but he was still able to perform his work as a tool and die maker and could not establish that he was substantially limited in the performance of any major life tasks as compared to most people in the general population.  

The Court also found that the employee could not have been regarded as having a disability by the employer because the employee lobbied to return to, and succeeded in securing, his former position of employment. Finally, the Court held that even if the employee could establish that he was disabled, there was insufficient evidence to find that he was terminated on account of his disability.

What this means for your District:

It is possible to terminate an employee for acts which lead to a workers’ compensation claim.  A termination does not end the claim itself, just the employment relationship.  Termination should be supported by an articulable violation of policy or directive or you may risk losing the burden shifting analysis.  Here, the employer did not have a perfect set of facts because there was a history of non-enforcement of the policy until after the injury and there were some snide remarks made to the employee about his injuries.  However, because the employer provided training, complied with its legal requirements, and kept the discipline focused on the employee’s violation of the policy and the corrective action, those little factual hiccups were not sufficient to establish a retaliatory or discriminatory motive behind the discipline action.

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

Tenth Appellate District: Workers’ Compensation

Workers’ Compensation practitioners and school benefits employees alike know that temporary total disability, and particularly the concept of voluntary abandonment of employment, are difficult areas of Workers’ Compensation law in Ohio. The Tenth Appellate District could not have framed the difficulty more succinctly than it did in a recent decision wherein the Court stated the issue of the case as follows:

“Can you be accused of assaulting your boss, get fired, be convicted (by plea, no less) of the assault, be at least preliminarily barred by court order from even setting foot in that workplace, and then still gain subsequent temporary disability status under Workers’ Compensation in connection with your (former) job?

The Court’s answer: Maybe.

Temporary total disability (TTD) is a benefit provided by the Bureau of Workers’ Compensation (BWC) to compensate for wage loss due to an injury. Voluntary abandonment is a defense an employer may assert against a claim for TTD. An employee who is terminated for violation of a written work rule may be considered to have abandoned his or her employment. If the employer is successful in raising the defense, the TTD will be denied because the disability due to the workplace injury is not the sole reason the employee is unable to return to the former position of employment. The concept was first used in a case wherein an employee had voluntarily retired. The court held that “If the employee has taken action that would preclude him from returning to his former position of employment, even if medically able to do so, the employee is not entitled to continue to receive temporary total disability compensation, because it was the employee’s own action rather than the industrial injury which prevented him from returning to his former position of employment.” The concept has been applied to employees who are incarcerated as well as those that voluntarily retire.

However, not all separations from employment will constitute voluntary abandonment. Involuntary retirement due to the workplace injury will not preclude payment of TTD nor, to the surprise of many employers, getting a new job. The Ohio Supreme Court has held that the abandonment of employment defense applies only to claimants who voluntarily leave the labor market, not to claimants who quit their former position of employment. Employee discipline situations can fall both ways, which brings us to the importance of this case.

Termination from employment can be considered voluntary abandonment if the employee willingly engaged in acts that lead to the termination. The Supreme Court allowed the defense in a case involving the violation of a policy that prohibited the accumulation of three consecutive unexcused absences. If those absences had been due to the industrial injury that was the basis of the claim, the defense would not have been accepted.

Turning back to the case at hand, here, the employee got into a heated exchange with the employer which lead to a physical altercation. The employee reportedly lunged at the employer, pushing him and causing him to fall back. The employee was terminated and arrested for assault. The employer had a policy against fighting and a policy against criminal convictions other than minor traffic offenses. The employer asserted those policies as the basis for his termination and in turn, attempted to use the termination as grounds to cut off TTD benefits due to voluntary abandonment. At the first hearing, the District Hearing Officer granted TTD for the employee finding that the employer had not set forth sufficient evidence as to when or why the employee was terminated. On appeal, the staff hearing officer agreed and again, found in favor of the employee.

The employee testified that he did not assault the employer. Rather, he acted in self-defense when the employer came towards him. When the employer approached, he put his arms up to stop him and the employer said, “you just assaulted me.” The employee testified that he plead guilty to avoid excessive legal fees and jail time. The staff hearing officer rejected the employer’s position that the employee had willingly engaged in fighting. It appears the employer did not bring any additional witnesses to testify and the hearing officer found the employee to be more credible than the employer. The staff hearing officer also rejected the termination was based on a criminal conviction because it came long after the termination.

The employer appealed the matter to court but by then, it was too late to improve its case. Once on appeal, the court must accept the findings of the hearing officer unless the decision is an abuse of discretion because the hearing officer did not have “some evidence” to reach its conclusion. It is a high bar to overcome. The court noted that the hearing officer is charged with assessing the weight of evidence and the credibility of witnesses and is entitled to deference by the court. The employer lost the appeal.

The moral of the story is to never underestimate the importance of the BWC hearing. These hearings are brief and informal and it can lull an unwary employer into essentially “winging it” when they think they have a strong case. Any and all documentary evidence should be prepared and submitted, and any and all witnesses should be brought to testify. The employer has only one, perhaps two, chances to influence what goes into the record of proceedings (the hearing officer’s decision) and that record sets the basis for a court’s review in the future. Make sure that “maybe” becomes a “yes.” If you have any BWC related questions, please reach out to one of our Workers’ Compensation team members. 

State ex rel. Welsh Ents., Inc. v. Indus. Comm., 2020-Ohio-2801

Unemployment Claims and “Independent Contractors”

Generally, employees in Ohio are eligible to receive unemployment benefits if they are laid off from their place of employment. However, under Ohio law, if you are an “independent contractor,” you are precluded from receiving those benefits. The Eleventh District Court of Appeals recently held that a truck driver was an independent contractor as opposed to an employee and therefore, was not entitled to unemployment compensation.

In Marcus Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv., 2019-Ohio-5414, a truck driver claimed that he was an employee and entitled to receive unemployment benefits. The Ohio Department of Job & Family Services (“ODJFS”) initially issued a determination allowing him to receive benefits, which the employer appealed to the court.

At issue in the appeal was whether the truck driver was really an independent contractor, rather than an “employee” separated from his job due to a lack of work. In making the determination of employee versus independent contractor, the Unemployment Review Commission will generally look to the list of twenty factors outlined in Ohio Adm. Code 4141-3-05(B). Though these factors may be used by the Commission, they are not necessarily determinative of whether the individual was or was not “subject to direction and control” over their services — the primary metric in the analysis of deciding independent contractor status.

In this case, the truck driver’s agreement actually stated that he was an independent contractor and not an employee of the company. Though this fact supports a finding that he was an independent contractor, the court looked to the totality of the circumstances in order to determine whether the employer actually had the right to control the driver’s work. 

ODJFS argued that “control” existed because the employer paid the driver weekly, approved his time-off requests, owned the delivery truck and paid for its repairs, required him to turn in logbooks, and continued a working relationship with the individual for eight years.

The court, however, noted that the driver was paid based on how many loads he accepted as opposed to the number of hours he worked. Additionally, the claimant was able to decide which routes he wanted and was able to set his own schedule, all of which led the court to conclude that the company did not exercise nor retain a right to control the individual’s work. Therefore, the driver was considered to be an independent contractor and was not eligible to receive unemployment benefits.

This case should remind us that in the service-oriented nature of public education, there are limited opportunities to truly employ “independent contractors” for daily operations of districts.  In teaching, feeding, counseling, transporting, and operating buildings, districts maintain control of personnel in the delivery of those services — and for good reason. The factors for establishing a true independent contractor are important to know, particularly when attempting to defeat a claim for unemployment.  While this case is instructive, should you want to question a request for unemployment compensation on this basis, it is advisable to contact an Ennis Britton attorney to review your realistic options.

Medical Marijuana in Ohio

In 2016, Ohio became the twenty-sixth state to legalize the use of marijuana for certain specified medical conditions. Medical marijuana facilities and patient registries are expected to be fully operational in the near future. School districts should be aware of how the medical marijuana law might impact current policy and operations.

Overview of State Law

Under state law, individuals who suffer from any of twenty-one identified medical conditions (listed below) may register with the state to use medical marijuana. In addition to these twenty-one conditions, the state medical board may be petitioned to add other conditions to this list.

Qualifying Medical Conditions

AIDS Inflammatory bowel disease
Alzheimer’s disease Multiple sclerosis
ALS (“Lou Gehrig’s disease”) Pain that is chronic, severe, or intractable
Cancer Parkinson’s disease
Chronic traumatic encephalopathy Posttraumatic stress disorder
Crohn’s disease Sickle cell anemia
Epilepsy or seizure disorder Spinal cord disease or injury
Fibromyalgia Tourette’s syndrome
Glaucoma Traumatic brain injury
Hepatitis C Ulcerative colitis
HIV

When registering with the state, an individual’s application must be accompanied by a licensed physician’s recommendation. Caregivers of medical marijuana users must also register with the state to avoid criminal prosecution for possession of medical marijuana and to assist registered patients. Medical marijuana may be used in oils, tinctures, plant material, edibles, patches, and vaporizers; however, smoking marijuana is prohibited.

Federal Laws and Regulations

Regardless of Ohio’s legalization of marijuana for medical purposes, marijuana is still a prohibited substance under federal law. The Americans with Disabilities Act requires that employers provide reasonable accommodations to employees with certain disabilities so that they may perform the requirements of their job; however, the ADA does not require employers to permit the use of medical marijuana as a reasonable accommodation. Similarly, the Family Medical Leave Act does not require employers to grant leave for employees so that they may obtain medical marijuana treatments for a serious health condition. Federal law does not interfere with an employer’s right to maintain a drug-free workplace, to implement a zero-tolerance drug policy, or to subject an employee to a drug test. Currently, pending federal legislation to enact the STATES Act would give states the freedom to decide how to legalize or regulate marijuana.

School District Employees

Ohio employers are not required to permit their employees to use medical marijuana at work and may continue to take adverse employment action against employees for their use of medical marijuana – even if the employee has a recommendation from a doctor for use and uses the marijuana outside of work hours. School districts may elect to make accommodations and modify policies to allow employees to use medical marijuana in some circumstances, although employees must continue to comply with state and federal regulations that prohibit use of drugs in safety-sensitive positions. School districts should be clear that employees may not be under the influence of marijuana when they are responsible for the safety or supervision of students and staff.

For workers’ compensation purposes, if an injury occurs at the workplace and the employee tests positive for marijuana, a rebuttable presumption arises that the use of marijuana was the cause of the injury, even if the employee has a recommendation for use from a doctor. To overcome this presumption, the employee must then demonstrate that the marijuana use did not factor into the cause of the injury. If unsuccessful, the employee would not be eligible to receive workers’ compensation benefits. Similarly, with unemployment compensation, an employee’s use of medical marijuana is just cause for termination, and no benefits would be provided to an employee in this scenario.

Ohio’s law does not prohibit an employer’s right to refuse to hire a job applicant because of use, possession, or distribution of medical marijuana.

Patient Protections

A very small section of the Revised Code delineates the rights of patients who are registered with the state to use medical marijuana. Patient rights include the right to use and possess medical marijuana, up to a maximum of a 90-day supply; to possess any paraphernalia or accessories for the use of medical marijuana; and to avoid arrest or criminal prosecution for obtaining, using, or possessing medical marijuana and the necessary paraphernalia and accessories. Registered caregivers have the same rights to possess medical marijuana, paraphernalia, and accessories, but do not have the right to use medical marijuana. Operating a vehicle is prohibited while under the influence of medical marijuana. No minimum age is specified for patients to use medical marijuana.

Activities Prohibited Near Schools

No medical marijuana cultivator, processor, retail dispensary, or testing laboratory may be located within five hundred feet of a school, except for academic research institutes.

Workers’ Compensation Legislation in the Works

The General Assembly is currently considering three different Workers’ Compensation bills that may affect schools. These bills will most likely undergo changes during the deliberation process. The summary below describes the provisions of each of these bills as initially introduced. As of November 29, each bill has had two hearings in the House Insurance Committee. Stay tuned to Ennis Britton for updates on this and other legislation. Contact an Ennis Britton attorney if you have any questions regarding how these may affect your school district.

HB 268

Requires the Administrator of Workers’ Compensation to waive a requirement that an employer have sufficient assets located in Ohio to qualify for self-insuring status if the employer holds a rating of B3 or higher according to Moody’s or a comparable rating from a similar agency. An employer that is granted self-insuring status through the waiver is subject to the same requirements that self-insuring employers are subject to under current law. This includes requirements to pay assessments based on the amount of the employer’s paid compensation as defined in continuing law and to provide a surety bond sufficient to pay claims, except that the employer must contribute to the Self-Insuring Employers’ Guaranty B Fund created under the bill (discussed below) instead of the Self-Insuring Employers’ Guaranty Fund (SIEGF) under current law.

Allows all self-insuring employers to purchase private workers’ compensation insurance to cover any workers’ compensation claim from an insurer that has an A.M. Best Financial Strength Rating of A or higher. Current law voids most contracts or agreements that indemnify or insure an employer against workers’ compensation claims. A self-insuring employer may, however, purchase an insurance policy that indemnifies against all or part of the employer’s loss in excess of $50,000 from a single disaster or event arising out of the employer’s workers’ compensation liability. But the insurer cannot, directly or indirectly, represent the employer in any settlement, adjudication, determination, allowance, or payment of workers’ compensation claims. The bill eliminates this prohibition.

Creates the Self-Insuring Employers’ Guaranty B Fund, which consists of contributions and other payments made by employers granted self-insuring status as a result of the waiver. The fund created under the bill secures compensation and benefits for employees of a self-insuring employer who is granted the waiver but who defaults on the obligation to make direct payments. The Administrator of the Bureau of Workers’ Compensation must establish a contribution amount each year and require every employer that is granted self-insuring status through the waiver to pay the established contribution to the fund. Contribution rates are to be as low as possible but must be sufficient to ensure enough money in the fund to guarantee the payment of any claims against the fund.

HB 269

Requires employees who receive Temporary Total Disability (TTD) benefits to comply with a return-to-work plan. TTD is a wage loss benefit designed to compensate employees who are temporarily unable to perform the functions of their jobs due to a workplace injury. Employees receiving TTD essentially get two-thirds of their wages tax-free. This bill will require the BWC administrator to develop a return-to-work plan for each employee receiving TTD. The plan will have the goal of returning the employee fully to the former position of employment, to return the employee to the former position of employment on a part-time basis or on a full-time basis with modified duties, or retraining the employee to work in another position. The employees’ progress with the plan will be evaluated every 90 days. Evaluations will also determine whether the plan needs revision. If the administrator determines that the plan does not need to be revised and that the employee is not complying, TTD benefits may be suspended.

Employees in compliance with the plan will continue to receive TTD benefits until such benefits are terminated in accordance with law.

Incentivizes employers for participation in safety consultations and loss prevention programs. This provision will modify and enhance the incentives for employers to participate in safety and loss prevention training, including premium discounts and other measures.

Makes changes to Permanent Total Disability (PTD) and death benefits. PTD is a benefit designed to compensate employees who are totally disabled from working, on a permanent basis, due to a workplace injury. PTD benefits are paid for life to employees who cannot engage in any form of sustained remunerative employment using the employment skills that the employee has or may reasonably be expected to develop, and to employees who have lost multiple body parts or the use of multiple body parts.

Pursuant to the bill, employees who receive PTD benefits and who reach full retirement age will have their PTD replaced with Extended Benefit (EB) compensation. “Full retirement age” is defined as the age at which an employee is eligible for unreduced retirement benefit from a state retirement system (PERS, STRS, SERS, OPERS, etc.), or the age at which an employee reaches full retirement age for purposes of the Social Security Act. Employees who are at or within one year of full retirement age will receive PTD for two years before the benefit is converted to EB.

EB is paid as a percentage of the PTD benefit that the injured worker received prior to reaching full retirement age. For example, at least one year but less than two years of PTD will convert to an EB of 10 percent, whereas an employee with ten years or more of PTD will receive 100 percent. PTD is calculated by a formula that essentially works out to two-thirds of an employee’s wages, subject to certain caps and other rules. Employees who receive EB compensation will receive an annual 2 percent increase.

Additional death benefits are provided by the bill. In addition to the benefits under current law, the bill adds a $35,000 lump sum payment to be apportioned among dependents if there are more than one. The bill also provides for a $5,000 scholarship payable to dependents annually for up to four years. Dependents cannot receive the scholarship until they receive a high school diploma or GED.

HB 380

Prohibits illegal and unauthorized aliens from receiving compensation and certain benefits. This bill adds to the definition of “employee” for purpose of workers’ compensation law. Under current law, employee is defined broadly as “every person in the service of any person, firm, or private corporation, including any public service corporation, that employs one or more persons regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens.” This bill qualifies that definition to include only aliens authorized to work by the U.S. Department of Homeland Security.

Under the bill, “illegal alien” means an alien who is deportable if apprehended because of one of the following: (1) The alien entered the United States illegally without the proper authorization and documents. (2) The alien once entered the United States legally and has since violated the terms of the status under which the alien entered the United States, making that alien an “out of status” alien. (3) The alien once entered the United States legally but has overstayed the time limits of the original legal status.

The bill defines “unauthorized alien” as an alien who is not authorized to be employed as determined in accordance with the Immigration Reform and Control Act.

Update

On November 29, the House Insurance Committee adopted an omnibus amendment from the sponsor of HB 380 and then voted to accept the bill.

The amendment eases some of the policies that were controversial and contentious for opponents of the bill, such as employee advocates. One of the main provisions in the amendment allows a U.S. citizen who is a dependent of an undocumented worker to receive a death benefit in the event of the worker’s death, equal to the amount entitled to the dependent of a U.S. citizen.

The amendment also adds language that creates a rebuttable presumption that a worker was hired with legal working status.

Next, the bill will go before the full House for a vote and is expected to pass with ease.