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Surviving Challenges of Medical Bills
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The Workers’ Comp Section is here to help you steer your clients through the hearing process and ultimately receive the benefits they deserve.  You can get your questions answered by your fellow members on the list serve, expand your knowledge at CLE seminars and keep up-to-date on the latest rule change or legislation being proposed.  The newly installed regional leadership for the WC Section reports regularly to members and invites your input about concerns you want to see addressed by the BWC.

Click here to view Compensation Rate Chart.

Section Chair Nicole R. Myers White | Myers White, LLC


Workers’ Compensation Happenings
By: Nicole Myers White, Esq
I am pleased to serve as the Workers’ Compensation Chair this year. We have had a busy year to date legislatively. If you have not followed the listserv of late, this article will provide you with updates on recent activity in the “world of comp.” 

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Help!  My Employer is Stalking me on Facebook!  Privacy in the Social Media Age.
By: Ed Forman, Esq.
To a certain extent, employers have always tried to monitor their employees’ conduct outside of the workplace.  Many employers require employees to disclose criminal charges or convictions.  Further, employees are often required to refrain from conduct such as drug or alcohol abuse, or any other off-work conduct which might embarrass the company.    
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Ohio Presbyterian: A Decision Worth Reconsidering
By: Jon H. Goodman, Esq.
On December 8, 2016, the Supreme Court of Ohio rendered its decision in State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., __ Ohio St.3d __, 2016-Ohio-8024.  In a per curiam decision, the Court held that an injured worker who has been granted permanent total disability compensation (PTD) under R.C. 4123.58 for psychological conditions cannot later receive permanent partial disability compensation under R.C. 4123.57(A) (PPD%) for the allowed physical conditions in the same claim.
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Once, Twice, Three Times A Dismissal
By: Katherine E. Ivan Esq., and Frederic A. Portman Esq.
Ohio workers’ compensation attorneys who practice litigation have likely stipulated to dismiss an Employer Notice of Appeal case and later re-filed, perhaps even several times on the same case. A careful review of the Ohio “savings statute” and case law interpreting the statute shows that this can be risky for the injured worker at times. Under the “savings statute”, a plaintiff may re-file an action one year from the date a dismissal occurs otherwise than upon the merits. Additionally, the Civil Rules allow a plaintiff to dismiss all claims asserted by the plaintiff against a defendant by filing a stipulation of dismissal signed by all parties who have appeared in the action. 

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High Hopes for Injured Workers
By: Carol Herman, Esq.
On June 8, 2016, Governor John Kasich signed House Bill 523 into law, making Ohio the 26th state to allow medical marijuana use. The law went into effect on September 8, 2016, but many questions remain regarding the implementation and effects of the new law. With regard to the area of workers’ compensation, questions remain as to whether injured workers can expect prescribed medical marijuana to be covered under their workers’ compensation claims. 

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Firefighters Still Fighting for Their Lives and Still Waiting for the Presumptive Cancer Bill to Pass
By: Karen Turano, Esq.
Recently, the Ohio Senate overwhelmingly passed S.B. 27. Sadly, this decisive action by the Senate does not make the presumptive law any more attainable for these men and women firefighters serving the public at the present time. The bill is now in the House which will not reconvene until November 2016, after the election. The House is where the Bill will be met with considerable opposition. 
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Lump Sum Advancements
By: Ben Wiborg, Esq.
Effective November 13, 2015, the law on lump sum advancements has changed. As will be discussed in more detail below, the new law has significantly increased the amount of compensation available to an injured worker, however, it has drastically reduced the ability of a dependent to obtain a lump sum advancement. 
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Workers’ Compensation Appeals and Ohio Civ.R. 41(A): Will the Privileges of a Claimant’s Plaintiff Status be Restored with Ferguson v. State? i
By: Chelsea Fulton Rubin, Esq.
Workers’ compensation appeals into courts of common pleas are unique in a number of ways. They must concern the right to participate in the fund (rather than the extent of one’s disability);ii they are initiated by filing a notice of appeal pursuant to the requirements under R.C. 4123.512; the trial is de novo; iii and claimants always carry the burden of proof and the burden of going forward—regardless if they won administratively.iv 

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The Shrinking Remedy of Workers' Compensation

By: Jay Causey article provided by WILG
In March, the shockingly decrepit state of workers’ compensation systems across the land received significant national media exposure in a series of three articles by ProPublica, an independent, non-profit newsroom producing public interest investigative journalism. Articles written by journalists Michael Grabell of ProPublica and Howard Berkes of NPR shined a light on the ugly condition of the most important safety net for US workers. The full series of articles can be found at http://www.propublica.org/series/workers-compensation.  Source material and references for these articles were in substantial measure contributed by WI LG. The principal article, entitled “The Demolition of Workers’ Compensation,” reveals how, under the banner of reforming a system described as suffering “out of control costs,” the allied forces have drastically reduced coverage for injured workers over the past ten years, and have shifted the cost of workplace accident and illness from the responsible businesses and industries and on to the American taxpayer through Social Security disability insurance, Medicare and Medicaid, systems now under extreme pressure themselves.

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Utilizing motions in limine in a workers' compensation trial
By: Stacy Callen, Esq.
A majority of trial work is done prior to the first day of trial. For trial lawyers, preparation involves utilizing motions in limine. Counsel may seek an advance advisory opinion about the presumptive admissibility of anticipated prejudicial evidence with a motion in limine. Motions in limine are an effective way to preview evidence and secure a ruling before trial. It apprises parties of inadmissible evidence before trial with an added benefit of the trial running more smoothly. A favorable ruling can exclude prejudicial information or evidence crucial to your opponent’s case. This can prevent opposing counsel from muddying the waters, which allows the jury to focus on the real issues.

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Workers' Compensation Settlements - Drafting agreements that minimize or eliminate social security disability offsets
By: Jerry Schneiberg    
In some cases, the hard fought efforts at negotiating a favorable workers’ compensation settlement is only the beginning of the battle.  Having negotiated a good settlement, the last thing a workers’ compensation practitioner wants is an angry client, frustrated that his or her workers’ compensation settlement results in a substantial reduction in his or her client’s Social Security Insurance disability benefits (DIB).  If a client is receiving DIB,  or maybe eligible in future for this benefit, thoughtful efforts must be put into drafting an agreement to ensure the injured worker’s  DIB potential offset is minimized or eliminated.

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Turning two of the losing scenarios of workers' compensation into wins
By: Kurt Young, Esq.
If you’ve had the chance to practice in Ohio’s Workers’ Compensation system you know that helping out injured workers and making a living are not always easily compatible.  There are times helping out those in need & making money to pay good staff & yourself is next to impossible. That being said, there are some short cuts to help you do both. First, let me give you some sage advice from the hearing officers I have spoken with, which is to remember that this is an assembly line of justice. They are going to be dealing with perhaps somewhere near 75-100  hearings per week.  So, start off by explaining to the hearing officer what you are there for and why your client should get it.

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2014 Case Law Update
By: Jon Goodman, Esq., Worthington, OH
This case law update was originally prepared and presented at the OAJ Annual Convention on May 9, 2014. I hope that you find it useful and informative. State ex rel. Roxbury v. Indus. Comm.: Claimant sustained a low back injury in 2004 and received temporary total until early 2006. Claimant did not pursue vocational rehab or return to the workforce. In 2007, claimant filed a motion seeking to add a psychological condition to her claim and for temporary total based on the psychological condition. The BWC obtained a report that supported the additional allowance of the psychological condition, but not the temporary total. Compensation was denied based on the BWC report. 

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Impact Of Affordable Health Care Act On Workers’ Compensation Systems Is Speculative At Best At This Point In Time

By: Chuck Davoli, WILG President
Representatives of WILG (the Workers’ Injury Law & Advocacy Group) recently attended two conferences on behalf of workers’ comp claimant’s attorneys, primarily for the purpose of assessing the potential impact of the new National Affordable Health Care Act’s (AHCA) impact on state and federal workers’ compensation systems. At both the Boston WCRI (Workers’ Compensation Research Institute), March 12-13, and the ABA Mid-Winter Employment Law- Workers’ Compensation Conference, March 13-15, despite an abundance of rhetoric and opinions from a variety of economists, medical providers, insurance executives, academic scholars, and an assortment of legal practitioners, the impact of the AHCA on workers’ compensation systems is speculative at best at this point in time in its implementation.

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Trying Our Sanity: Supreme Court Ruling Narrows Grounds For Psychiatric Conditions in Workers’ Comp Claims
By: Doug Koppel, Esq.
As any plaintiff attorney knows, physical injuries seldom come without psychological repercussions.  This is particularly true in the world of workers’ compensation.  Many workers draw a sense of self-worth from their ability to provide for their families and from contributing to society through vocational productivity.  When an injury takes work away, people often find themselves with less self-esteem and too much idle time, which they often fill with thoughts of what they cannot do because of their injuries.  When you add in some (often well-founded) feelings of paranoia that employers are surveilling them to allege fraud, and throw in some frustration caused by a slow-moving state agency that often keeps treatment from proceeding efficiently, you can begin to see why so many claimants end up with psychiatric allowances.  And while state law has always made sure the bar is a bit high when adding a psychiatric condition to a claim, the recent Ohio Supreme Court decision Armstrong v. John R. Jurgensen Co. may have turned it into a pole vault.

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Expanding presumptive cancer laws for firefighters
By: Karen Turano, Esq., Columbus, OH
Firefighters put their lives and personal safety on the line each and every time they walk through the firehouse doors. The job of a firefighter is widely respected for the selfless sacrifice firefighters make when they dedicate their life to the service of their community. There are approximately 1.1 million career and voluntary firefighters in the U.S. and almost 20,000 serving the state of Ohio.
However, the danger looming in their occupation is far more insidious than the dangers portended by the firehouse alarm bells. The real and subtle danger affecting firefighters may not be diagnosed for even years after the performance of their regular job duties. This growing health risk and concern is supported by the undeniable medical data which links multiple types of cancer to the toxic smoke and fumes to which firefighters are regularly exposed during and after a fire run. Firefighters not only inhale toxic substances during and after a fire, but the carcinogens remain on the firefighters’ bodies, skin and clothing/turnout gear after the immediate fire/smoke exposure subsides. These carcinogens, for example, include: polycyclic aromatic hydrocarbons (PAHs), formaldehyde, benzene, 1,3-butaddiene, asbestos and arsenic.

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Cost Saving Or Cost-Prohibitive? The Push To Expel Undocumented Aliens From Receiving Workers’ Compensation Benefits Could Have A Harmful Impact On Employers
By: Doug Malek, Esq., Columbus, OH
In reading the proposed language of S.B. 176, which is currently being sponsored by Senator Bill Seitz, a Republican out of the 8th District, I become particularly troubled by the word “knowing”. This proposed legislation is not the first attempt that Mr. Seitz has made at passing such a bill, and likely, depending upon the outcome of this current rendition of his attempt at preventing a significant portion of the Ohio labor force from participating in the state workers’ compensation fund for what are often some of the most horrific work-related injuries, it will not be his last attempt; his last, before this current version, having come in the form of S.B. 323, which never advanced beyond Committee last fall. Mr. Seitz does have his supporters out there, American citizens that are concerned that only those who are legally in this country should be permitted to partake of the safety net available to injured workers, the Ohio state workers’ compensation fund, one of the few remaining monopolistic state insurance funds, and that somehow by preventing illegal or unauthorized aliens from participating in the fund, may make it more likely that American citizens are provided this work for these employers which are paying into the fund, and will lead to cost-savings for these employers. However, many legitimate concerns arise in the face of this newly proposed legislation, and employers that want a fair and level playing field deserve an explanation as to how this legislation will benefit them financially, and why this legislation is needed at this time.

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Trying Our Sanity: Supreme Court Ruling Narrows Grounds For Psychiatric Conditions in Workers’ Comp Claims
As any plaintiff attorney knows, physical injuries seldom come without psychological repercussions.  This is particularly true in the world of workers’ compensation.  Many workers draw a sense of self-worth from their ability to provide for their families and from contributing to society through vocational productivity.  When an injury takes work away, people often find themselves with less self-esteem and too much idle time, which they often fill with thoughts of what they cannot do because of their injuries.  When you add in some (often well-founded) feelings of paranoia that employers are surveilling them to allege fraud, and throw in some frustration caused by a slow-moving state agency that often keeps treatment from proceeding efficiently, you can begin to see why so many claimants end up with psychiatric allowances.  And while state law has always made sure the bar is a bit high when adding a psychiatric condition to a claim, the recent Ohio Supreme Court decision Armstrong v. John R. Jurgensen Co. may have turned it into a pole vault.
Click here to continue reading article

 

 

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