2002 Ohio Supreme Court Workers' Compensation Decisions
This page lists Ohio Supreme Court workers' compensation decisions from
2002. Decisions which adopt the decision of a lower court or
Magistrate, or which decide a case based on a previous decision, are
excluded. Click on the case name to read the decision on the
Ohio Supreme Court's web site.
December 2002
December 24
VSSR:
Court does not require direct evidence of VSSR and, in making its
decision, the Commission is permitted to rely on its common sense and
draw reasonable inferences.
Vote: 6-0, 1 concurs in judgment only
Opinion by: Justice Resnick
December 20
Temporary
Total: Minimal activities (signing checks for employees) relating to
business owned by injured worker which only secondarily produced income
do not bar temporary total.
Vote: 7-0
Opinion by: Per Curiam
Continuing
Jurisdiction: Commission failure to act within reasonable time meant
that there was no basis for Commission to exercise continuing
jurisdiction.
Vote: 7-0
Opinion by: Per Curiam
December 18
Injury:
Suspicionless drug/alcohol testing of injured workers violates
constitutional right to be free from unreasonable searches.
Vote: 4-3
Opinion by: Justice Pfeifer
December 13
Permanent
Total: Evidence supported Commission finding that worker who had
engaged in work activity while receiving permanent total disability was
not entitled to permanent total received and had committed fraud.
Vote: 7-0
Opinion by: Per Curiam
Amputation/Loss
of Use: Worker injured before 11/16/73 can receive both amputation/loss
of use award and permanent total award in same claim.
Vote: 7-0
Opinion by: Per Curiam
December 4
Permanent Total: Commission properly determined permanent total start date.
Vote: 7-0
Opinion by: Per Curiam
Temporary
Total: Because there was no medical evidence relating inability to work
to allowed condition, claimant was not entitled to temporary total.
Vote: 6-1
Opinion by: Per Curiam
Amputation/Loss
of Use: Ankylosis is not only condition which will entitle claimant to
compensation for loss of use; any condition which results in total loss
of use justifies loss of use award.
Vote: 7-0
Opinion by: Per Curiam
Permanent
Total: Special circumstances of case involving worker with 1969 injury
who worked until 1997 justified applying permanent total maximum rate
in effect in 1997 to determine permanent total award, rather than
permanent total maximum rate in effect in 1969.
Vote: 4-3
Opinion by: Justice Resnick
November 2002
November 13
Permanent
Total: Evidence that claimant engaged in work activity justified
Commission exercise of continuing jurisdiction to terminate
permanent total and declare overpayment of permanent total previously
paid.
Vote: 7-0
Opinion by: Per Curiam
November 6
Temporary
Total: Finding of MMI at one time does not prevent later finding that
injured worker is entitled to temporary total if allowed condition(s)
worsen and evidence indicates that condition(s) may subsequently
improve.
Vote: 7-0
Opinion by: Per Curiam
Permanent Partial: Commission properly awarded increase in permanent partial award.
Vote: 7-0
Opinion by: Per Curiam
October 2002
October 23
Permanent
Total: Commission properly denied claimant's request to depose doctor.
Disagreement between doctors about claimant's ability to work could be
resolved through hearing.
Vote: 5-2
Opinion by: Per Curiam
Temporary
Total: Report from doctor who did not believe allowed condition existed
does not support finding MMI because doctor gave opinion about
status of a different condition.
Vote: 7-0
Opinion by: Per Curiam
October 16
Temporary
Total: Substantial inconsistencies between two C-84 reports resulting
from same examination mean that C-84 reports are not "some evidence" to
support temporary total award. Where temporary total compensation
payments are not ongoing, provision requiring payment of ongoing
compensation until hearing does not apply.
Vote: 5-2
Opinion by: Per Curiam
Temporary
Total: Employee remains eligible for temporary total after they
voluntarily abandon employment they were doing when injured if they
re-enter the work force and their allowed condition causes them to be
temporary total.
Vote: 7-0
Opinion by: Justice Resnick
Employer:
Bureau's classification of employer's business (for premium
determination) was not unreasonable and was supported by "some
evidence."
Vote: 7-0
Opinion by: Per Curiam
Temporary
Total: Commission must reconsider denial of temporary total and
determine whether injured worker abandoned job market, in light of
Supreme Court decision that temporary total is denied because of
leaving employment only where worker abandons job market.
Vote: 5-0, 2 concur in judgment only
Opinion by: Per Curiam
Permanent
Total: Loss of arm entails loss of both hand and arm. Therefore,
claimant is entitled to award of statutory permanent total (based on
loss of two or more specified body parts, including hands and arms).
Vote: 4-3
Opinion by: Per Curiam
September 2002
September 25
Death:
Administrative delay in processing claim for malignant mesothelioma
resulting from work exposure to asbestos meant that Commission
improperly abated claim upon death of claimant and widow was entitled
to receive compensation owed to deceased worker.
Vote: 7-0
Opinion by: Per Curiam
Amputation
Award: Claimant who has finger amputated and surgically reattached at a
different location to replace finger amputated due to work injury is
not entitled to second amputation award.
Vote: 7-0
Opinion by: Per Curiam
Employer:
Bureau is required to refund assessments improperly collected from
employer; provision limiting refund of premiums improperly collected
does not apply because assessments and premiums are different things.
Vote: 7-0
Opinion by: Per Curiam
August 2002
<< No decisions indexed >>
July 2002
July 31
Loss
of Use: Where none of the medical reports found total stiffness of
thumb, Commission improperly made award for loss of use of thumb based
on ankylosis.
Vote: 7-0
Opinion by: Per Curiam
Loss
of Use: Doctor's report which found much wrong with foot, but not total
loss, was "some evidence" to support Commission denial of award for
loss of use of foot.
Vote: 6-1
Opinion by: Per Curiam
July 24
Continuing
Jurisdiction: Compensation can only be awarded for two years before the
application; a request for allowance of an additional condition is not
an application for compensation.
Vote: 7-0
Opinion by: Per Curiam
July 10
Permanent
Total: Where claimant is actively doing work for which she could be
paid, Commission properly terminated permanent total even in the
absence of medical evidence indicating that she had ability to work.
Vote: 7-0
Opinion by: Per Curiam
Wage
Loss: Non-allowed conditions are irrelevant, if allowed conditions are
disabling. Therefore doctor's report, on form provided by Bureau,
which indicated inability to work was due to allowed conditions
supported wage loss even if report made reference to disabilities in
additional parts of the body (which was information requested by
Bureau). Doctor's report was not inconsistent where doctor in
narrative limited claimant to lifting 15 pounds, and checked on Bureau
form that claimant could never lift 10-20 pounds, because answers were
consistent.
Vote: 7-0
Opinion by: Per Curiam
June 2002
June 12
Misc:
Premium reduction credit given by Bureau of Workers' Compensation to
employers in 1999 (giving credit for past premiums) was improper
because Bureau did not follow statutory requirement that only permits
it to reduce future premiums; credit was also improper because Bureau
failed to adopt rule providing for reduction of premiums as required by
statute.
Vote: 4-3, 1 concurs in syllabus and judgment only
Opinion by: Justice Douglas
May 2002
May 29
Permanent
Total: Commission properly denied claimant's request to depose doctor.
"Substantial disparity" between doctors' reports did not exist because
even though there was a substantial difference between the disability
percentages assigned by the doctors, both doctors agreed that claimant
was capable of working and claimant had opportunity to contest alleged
flaws in the report by presentation at hearing.
Vote: 7-0
Opinion by: Per Curiam
Temporary
Total: Order denying temporary total, which stated it was based on "all
proof in file" does not satisfy the requirement that an order state the
evidence relied on and the reasoning for the decision. Order was also
invalid because (1) denial of temporary total conflicts with statement
in order that employer's appeal was denied and (2) order did not
explain how employer's firing claimant satisfied requirements for a
discharge to bar receipt of temporary total.
Vote: 7-0
Opinion by: Per Curiam
Temporary
Total: The purpose of temporary total compensation is to compensate an
injured worker for lost earnings. Therefore, a claimant who is
receiving temporary total and performs activities in a workplace
environment is not barred from receipt of temporary total if (1) the
claimant is not paid for the activities, and (2) the activities are not
inconsistent with the claim that the claimant is incapable of
performing their prior work activities.
Vote: 7-0
Opinion by: Per Curiam
May 8
Intentional
Tort: Evidence that employer's actions and policies required employee
to engage in dangerous task satisfies third requirement of three-part
intentional tort test, and is sufficient to withstand a directed
verdict motion. The employee is not required to show that employer
expressly ordered employee to perform the dangerous task.
Vote: 5-2
Opinion by: Justice Douglas
Intentional
Tort: Statute of limitations in intentional tort begins to run when
employee discovers (or should have discovered) both that injury
occurred and that injury resulted from wrongful actions of employer.
Vote: 4-3
Opinion by: Justice Sweeney
Wage
Loss: In some situations, Commission can require a claimant who is
working full time to engage in a job search to be eligible for wage
loss.
Vote: 4-0, 2 concur in part and dissent in part
Opinion by: Per Curiam
May 1
VSSR:
If a safety code does not define a term, the Commission can determine
the meaning of the term; safety code provision which sets forth
acceptable changes to equipment puts employer on notice that changes
which are not listed are unacceptable; and where driver testified that
added equipment caused him to lose sight of decedent, Commission
properly makes inference that driver would have tried to avoid decedent
if he had seen decedent.
Vote: 7-0
Opinion by: Per Curiam
April 2002
April 24
Wage
Loss: Wage loss denied where there was no evidence that claimant who
was working at much lower paying job than job of injury had conducted a
good faith job search.
Vote: 4-3
Opinion by: Per Curiam
Continuing
Jurisdiction: Continuing jurisdiction improperly applied where order
merely found "possibility of error." Neither identification of error in
later order nor the motion for reconsideration setting forth the reason
the challenging party thought reconsideration was justified justifies
reconsideration in such a situation.
Vote: 7-0
Opinion by: Per Curiam
April 10
VSSR:
(1) Workshop and factory safety code can apply to injury which occurred
in fenced-in yard; (2) "construction" industry safety code does not
apply to "maintenance work" performed for employer not in construction
industry; (3) amendment which raises new claim cannot be made once time
limit for filing VSSR has passed.
Vote: 7-0
Opinion by: Per Curiam
Medical:
Medical evidence supported Commission's decision to order surgery to
relieve pain. Doctor's pessimistic statements about result does not
contradict recommendation of surgery, but indicates doctor was
reluctant to guarantee success.
Vote: 7-0
Opinion by: Per Curiam
April 3
AWW: Average weekly wage for injured worker is properly based on the wages for the year before injury.
Vote: 7-0
Opinion by: Per Curiam
Permanent Total: Commission properly terminated permanent total award where claimant was working as a minister.
Vote: 7-0
Opinion by: Per Curiam
March 2002
March 27
Misc: Decisions of Self-Insuring Employers Evaluation Board cannot be appealed to court under R.C. 119.12.
Vote: 6-1
Opinion by: Justice Resnick
Permanent
Total: Permanent total cannot be denied because claimant refused a
"bona fide job offer" where job offer was not within claimant's
restrictions as found by attending physician.
Vote: 4-3
Opinion by: Justice Pfeifer
March 6
Temporary Total: Claimant who leaves job to take another job does not forfeit eligibility for future temporary total.
Vote: 7-0
Opinion by: Per Curiam
VSSR:
"Operating cycle" for purposes of determining whether the employer
committed a VSSR by violating O.A.C. 4121:1-5-11(E) refers to a cycle
that is operator-intended.
Vote: 4-3
Opinion by: Per Curiam
Temporary
Total: Where there was no valid evidence supporting temporary total
claim, Commission properly denied temporary total and properly ordered
recoupment of temporary total improperly paid.
Vote: 6-0
Opinion by: Per Curiam
Permanent
Partial: Provision of R.C. 4123.68(W) which prevents fire fighter with
an R.C. 4123.68(W) occupational disease from receipt of a permanent
partial award does not violate equal protection.
Vote: 7-0
Opinion by: Per Curiam
February 2002
February 27
Trial
Practice: Claimant who wins workers' compensation appeal entitled to
payment of reasonable deposition expenses as costs of case under R.C.
4123.512(F).
Vote: 6-0
Opinion by: Justice Douglas
February 6
Misc:
Two and one-half year delay in seeking reconsideration of Commission
order justified Commission's denial of reconsideration as untimely.
Vote: 7-0
Opinion by: Per Curiam
Amputation
Award: Claimant suffered ankylosis (total stiffness) of the tip of his
right ring finger. Under R.C. 4123.57(B), Commission properly made
award for loss of use of one-third of finger, statute did not require
award for loss of use of two-thirds of finger.
Vote: 7-0
Opinion by: Per Curiam
January 2002
January 30
VSSR:
Commission did not abuse its discretion by determining that a closed
skylight was not an "opening" for purposes of VSSR decision.
Vote: 7-0
Opinion by: Per Curiam
Misc:
Former pro football player's challenge to provisions of R.C. 4123.56(C)
should be brought in declaratory judgment, not mandamus.
Vote: 7-0
Opinion by: Per Curiam
Wage
Loss: Claimant doctor's failure to provide any information about job or
job search supported Commission decision denying wage loss for failure
to engage in good faith job search.
Vote: 7-0
Opinion by: Per Curiam
January 16
VSSR:
Where there is no evidence that complying with safety requirement would
have prevented accident, or lessened severity of accident, VSSR
application properly denied.
Vote: 6-1
Opinion by: Per Curiam
Misc:
Ohio public policy favors workplace safety. A cause of action for
wrongful discharge based on violation of this public policy has a four
year statute of limitations.
Vote: 4-1, 2 concur in judgment only
Opinion by: Justice Douglas
January 9
AWW:
Where claimant files motion to correct average weekly wage calculation,
readjustment should be applied to compensation paid for two years prior
to date of motion, but not for compensation paid more than two years
prior to date of motion.
Vote: 5-2
Opinion by: Per Curiam
Injured at Work?
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are entitled to. We are based in Columbus and represent
injured
workers throughout Ohio before the BWC, Industrial Commission
and
in court.
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disability claims or who have a disability claim before another state
administrative agency (PERS, STRS, SERS or police and fire fighters
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free. If you are interested in talking with us about a
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