2004 Ohio Supreme Court Workers' Compensation Decisions
This page lists Ohio Supreme Court workers' compensation decisions from
2004. 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 2004
December 22
Permanent Total: Back award of statutory permanent total cannot be made more than 2 years before date of motion requesting payment.
Vote: 4-3
Opinion by: Justice Moyer
Employer:
BWC cannot charge employer's risk with cost of medical payments made
while appeal is pending, until final decision is reached on appeal.
Vote: 5-2
Opinion by: Justice Pfeifer
Occupational Disease:
Different standard applies to first 30 weeks of change of occupation
award than later 100 weeks. First 30 weeks do not require job
search, but later 100 weeks do.
Vote: 7-0
Opinion by: Per Curiam
December 15
Administrative Practice:
Non-attorney representation before the Commission and BWC is permitted
as long as it is consistent with Industrial Commission Resolution
R04-1-01.
Vote: 4-2, 1 concur in judgment
Opinion by: Justice Resnick
Temporary Total:
Dispute between employer and treating doctor would not justify
termination of temporary total; C-84s were valid evidence of temporary
total, doctor is allowed to anticipate return to work date after
scheduled appointment and is not required to fill out a new form to
extend the anticipated work date after the appointment.
Vote: 6-1, 1 concur in judgment
Opinion by: Per Curiam
December 1
Permanent Total: Evidence
of claimant's activities must be viewed in context, permanent total
claimants are not required to remain housebound. Evidence of
claimant's activities did not demonstrate ability to perform activities
on sustained basis sufficient to find that claimant was not entitled to
continued receipt of permanent total.
Vote: 5-2
Opinion by: Per Curiam
November 2004
November 24
Continuing Jurisdiction/Permanent Total:
Disagreement over interpretation of facts does not justify exercise of
continuing jurisdiction to review order. Permanent total
compensation is awarded when an individual cannot perform sustained
remunerative employment; isolated and brief work activities do not
establish ability to perform sustained remunerative employment.
Vote: 6-1
Opinion by: Per Curiam
November 3
Amputation/Loss of Use:
Worker who receives corneal lens implants remains entitled to award for
total loss of vision because award for loss of vision is based on
uncorrected vision.
Vote: 6-0
Opinion by: Per Curiam
October 2004
<< No decisions indexed >>
September 2004
September 22
Trial Practice:
Claimant who wins right to participate at trial is entitled to
reimbursement for cost of fee charged by expert witness for live
testimony, if trial court determines that fee is reasonable.
Vote: 7-0
Opinion by: Justice Sweeney
August 2004
<< No decisions indexed >>
July 2004
July 28
Employer: Self-insurer
is entitled to reimbursement from surplus fund after Commission
exercises continuing jurisdiction to deny previously allowed claim
because of fraud.
Vote: 7-0
Opinion by: Per Curiam
July 7
Amputation/Loss of Use:
Commission properly granted amputation award for left arm which could
not be used except to push open a car door or tuck a piece of paper
under because arm was useless for "all practical intents and purpose."
Vote: 7-0
Opinion by: Per Curiam
June 2004
June 23
Temporary Total:
Doctor's finding that claimant's condition had reached MMI, but that
claimant's symptoms would gradually dissipate, was inconsistent and
therefore not valid evidence of MMI.
Vote: 7-0
Opinion by: Per Curiam
June 9
Amputation/Loss of Use:
Commission order granting award for loss of use of hand must consider
evidence of post-injury activities in determining whether award is
appropriate.
Vote: 7-0
Opinion by: Per Curiam
May 2004
May 26
Trial Practice: Former subrogation statute (R.C. 4123.93) is unconstitutional.
Vote: 3-2, 2 concur in judgment
Opinion by: Justice Resnick
May 19
Fraud:
Evidence supported finding that claimant who lied about income
while receiving living maintanence wage loss committed fraud; evidence
that claimant could physically perform previous work also supported
finding of overpayment.
Vote: 7-0
Opinion by: Per Curiam
May 12
Average Weekly Wage:
Commission must consider intent of worker in determining whether to
exclude seasonal unemployment from average weekly wage calculation. AWW
is adjusted for periods of unemployment beyond a claimant's control but
is not adjusted if seasonal unemployment exists because claimant made
lifestyle choice.
Vote: 7-0
Opinion by: Per Curiam
Wage Loss: Lack of overtime can be basis of wage loss claim if lack of overtime is causally related to injury.
Vote: 7-0
Opinion by: Per Curiam
Trial Practice:
If right to participate in the workers' compensation system has already
been determined, a decision that the claimant can no longer participate
can be appealed under R.C. 4123.512.
Vote: 6-1
Opinion by: Pfeifer
April 2004
April 28
Continuing Jurisdiction:
Letter notifying Commission that attorney was acting as employer's
representative was sufficient notice to justify R.C. 4123.522 relief
when Commission failed to provide representative with notice of order.
Vote: 7-0
Opinion by: Per Curiam
April 14
Wage Loss:
Even if wage loss claimant voluntarily limited herself to part-time
work, O.A.C. 4125-1-01(F)(3)(b) requires Commission to consider wage
loss for the number of hours worked. Requirement of 90 day
updates of medical reports does not apply to a retroactive claim for
wage loss compensation.
Vote: 7-0
Opinion by: Per Curiam
Temporary Total:
Self-insured employer cannot terminate temporary total compensation
when treating doctor indicates that the injured worker is capable of
doing limited work (but is incapable of doing the duties required by
the job she had been doing when injured); the restrictions support
continued temporary total eligibility even though the injured worker
might also qualify for wage loss.
Vote: 6-0
Opinion by: Per Curiam
Temporary Total: Where injured worker had previously been found to have voluntarily abandoned her employment, and had not returned to work, res judicata applies and injured worker is not eligible for additional temporary total.
Vote: 7-0
Opinion by: Per Curiam
March 2004
March 3
Impairment of Earning Capacity:
Evidence which did not indicate how injury limited claimant's
ability to work did not support impairment of earning capacity award.
Vote: 4-3
Opinion by: Per Curiam
Temporary Total:
Improvement of non-allowed condition which permitted claimant to
undergo rehabilitation did not constitute "new and changed
circumstances" sufficient to reinstate temporary total.
Vote: 5-2
Opinion by: Per Curiam
VSSR:
Safety code provision which did not define type of saw involved in
accident and which refers to equipment that is not part of the saw
cannot be used as basis of VSSR award.
Vote: 5-2
Opinion by: Per Curiam
VSSR:
Common sense must be used in interpreting provisions of safety code;
safety code cannot be interpreted in a way which would lead to an
illogical result.
Vote: 7-0
Opinion by: Per Curiam
February 2004
February 11
Administrative Practice:
The Commission was not required to follow the provisions of R.C.
Chapter 119 (relating to administrative rule-making) in adopting
Hearing Officer Memo E.7 because Memo E.7 is an interpretation of
statutory and case law, not an expansion of authority.
Vote: 7-0
Opinion by: Per Curiam
January 2004
January 21
VSSR:
Commission did not abuse its discretion when it found that employer
committed VSSR because provision of safety code which covered
"construction equipment" applied to scaffolding.
Vote: 7-0
Opinion by: Justice Resnick
Injured at Work?
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Associates can help you receive the workers’ compensation
benefits you
are entitled to. We are based in Columbus and represent
injured
workers throughout Ohio before the BWC, Industrial Commission
and
in court.
We also represent people who have social security
disability claims or who have a disability claim before another state
administrative agency (PERS, STRS, SERS or police and fire fighters
disability).
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free. If you are interested in talking with us about a
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