2008 Ohio Supreme Court Decisions This page lists the workers' compensation decisions made by the Ohio Supreme Court in 2008.  To see the full text of a case on the Ohio Supreme Court's web site, click on the case name. December 2008 December 3 Jordan, State ex rel. v. Indus. Comm. (12/3/08) Medical: Injured worker does not have vested right to full payment for name brand medicine.  Vote: 7-0 Opinion by: Per Curiam November 2008 << No decisions indexed >> October 2008 October 21 Schlegel, State ex rel. v. Stykemain Pontiac Buick GMC, Ltd. (10/21/08) Administrative Practice: Because the Industrial Commission has discretion whether to hear an appeal from the Staff Hearing Officer, the Industrial Commission is not required to consider evidence which existed at time of the Staff Hearing Officer hearing, but which was not submitted until the discretionary appeal to the 3 member Industrial Commission. Vote: 7-0 Opinion by: Per Curiam October 15 AT&T, Inc., State ex rel. v. McGraw (10/15/08) Permanent Total: An injured worker who was receiving permanent total was not ineligible for permanent total based on activities in shop owned by wife when those activities were not "remunerated" or inconsistent with the injured worker's physical limitations; additionally, even if the activities were considered to be employment, they would not bar permanent total because there was no evidence that the injured worker was capable of performing them on a "sustained" basis. Vote: 7-0 Opinion by: Per Curiam Pierron, State ex rel. v. Indus. Comm. (10/15/08) Temporary Total: Worker who retired for reasons unrelated to the industrial injury and did not then seek further employment is barred from temporary total compensation. Vote: 5-1, 1 concurs in judgment only Opinion by: Per Curiam September 2008 September 11 Internatl Truck & Engine Corp., State ex rel. v. Indus. Comm. (9/11/08) Continuing Jurisdiction: Commission must explicitly state basis of exercise of continuing jurisdiction and cannot "informally" or "silently" exercise continuing jurisdiction. Vote: 5-2 Opinion by: Per Curiam August 2008 August 13 Bercaw, State ex rel. v. Sunnybreeze Health Care Corp. (8/13/08) Temporary Total: Commission did not abuse its discretion in relying on report of reviewing doctor (who did not examine injured worker) over the report of the examining doctor when it determined to deny temporary total. Vote: 7-0 Opinion by: Per Curiam August 12 Scouler, State ex rel. v. Indus. Comm. (8/12/08) Temporary Total: Order which states that it considered "all relevant evidence", but does not discuss relevant evidence contained in the record, is not a valid order. Vote: 7-0 Opinion by: Per Curiam July 2008 << No decisions indexed >> June 2008 June 12 Valley Interior Systems, Inc., State ex rel. v. Indus. Comm. (6/12/08) Temporary Total: Termination of employment only constitutes a "voluntary abandonment" which bars temporary total if injured worker knew or should have known that termination was a possible consequence of worker's actions. Vote: 7-0 Opinion by: Per Curiam May 2008 May 15 McDaniel, State ex rel. v. Indus. Comm. (5/15/08) Permanent Total: Commission did not abuse its discretion in determining that individual who was paid for activities done to promote business was engaged in sustained remunerative employment. Vote: 7-0 Opinion by: Per Curiam April 2008 April 30 Ohio State Univ. Hosp., State ex rel. v. Indus. Comm. (4/30/08) AWW: Commission properly applied "special circumstances" provision of R.C. 4123.61 to recalculate average weekly wage of worker who was injured shortly after she began working full-time. Vote: 7-0 Opinion by: Lanzinger April 16 Ross, State ex rel. v. Indus. Comm. (4/16/08) Permanent Partial: When injured worker's condition had apparently resolved after injury, and injured worker was not receiving treatment due to injury, medical report which merely indicated percentage of permanent partial impairment without explanation of any change in condition was not "new and changed circumstances" to support a new permanent partial award.  Vote: 7-0 Opinion by: Per Curiam Wise, State ex rel. v. Ryan (4/16/08) Settlement: Settlement application which does not comply with the statutory requirement that it set forth the reason why the settlement is desirable is invalid. Vote: 6-0, 1 concurs in judgment only Opinion by: Per Curiam April 9 Gen. Motors Corp., State ex rel. v. Indus. Comm. (4/9/08) Temporary Total: Employer which pays wage replacement instead of temporary total compensation is not required to pay injured worker amount equal to entire amount of temorary total due because it is entitled to an offset for taxes withheld. Vote: 6-1 Opinion by: O'Connor April 3 Pilkington N. Am., Inc., State ex rel. v. Indus. Comm. (4/3/08) Occupational Disease: When determining which employer is charged with responsibility for occupational disease involving long latency period, the "last injurious exposure" rule applies. Vote: 7-0 Opinion by: Per Curiam April 2 L.P. Cavett Co., State ex rel. v. Indus. Comm. (4/2/08) Temporary Total: Doctor's opinion that injured worker was temporary total based on allowed psychological condition of "depressive disorder" was some evidence to support temporary total award even though doctor had previously indicated disability was due to a "major depression" because doctor consistently indicated disability due to a depressive condition, and the only difference between the two conditions was the severity of the depression. Vote: 7-0 Opinion by: Per Curiam March 2008 March 19 Airborne Freight Corp., State ex rel. v. Indus. Comm. (3/19/08) Temporary Total: Commission's order continuing temporary total supported by "some evidence." Vote: 7-0 Opinion by: Per Curiam March 13 Talik v. Fed. Marine Terminals Inc. (3/13/08) Intentional Tort: U.S. Longshore and Harbor Workers' Compensation Act pre-empts state law claim for intentional tort. Vote: 5-0, 2 concur in part and dissent in part Opinion by: Lanzinger March 5 Lapp Roofing & Sheet Metal Co., Inc., State ex rel. v. Indus. Comm. (3/5/08) Administrative Practice: Notice of appeal from BWC order which listed wrong date for order "substantially complied" with requirements of R.C. 4123.511. Vote: 7-0 Opinion by: Per Curiam February 2008 February 21 Autozone, Inc., State ex rel. v. Indus. Comm. (2/21/08) Amputation/Loss of Use: Doctor's opinion that claimant is "legally blind" is evidence to support award for loss of sight in eye. Vote: 4-3 Opinion by: Pfeifer Groch v. Gen. Motors Corp. (2/21/08) Trial Practice: Workers' compensation subrogation statute does not violate the Ohio Constitution's takings clause (Art. I, Sec. 19), due process and remedies clause  (Art. I, Sec. 16), or equal protection clause  (Art. I, Sec. 2). Vote: 4-0, 1 concurs in answers to certified questions only, 1 concurs in answers to certified questions and concurs in opinion in part, 1 concurs in part and dissents in part Opinion by: O'Connor February 13 Reitter Stucco, Inc., State ex rel. v. Indus. Comm. (2/13/08) Temporary Total: Injured worker who voluntarily abandoned their employment does not lose eligibility for temporary total if they were medically incapable of returning to their former position of employment when they voluntarily abandoned their employment. Vote: 7-0 Opinion by: Per Curiam