Ohio Workers’ Compensation Decisions: 2015 Court of Appeals

Ohio Workers’ Compensation Decisions

2015 Court of Appeals

This page lists Ohio Court of Appeals workers’ compensation decisions summarized in 2015, except for decisions adopting a lower court or Magistrate decision, or which decide a case based on a previous decision.

Select the case name to read the decision on the Ohio Supreme Court’s web site. For older Court of Appeals workers’ compensation decisions see our Court of Appeals archive page or see our case index for decisions organized by topic.

December, 2015

December 10, 2015

Moore v. E.I. DuPontde Nemours Co. (12/10/15)

Trial Practice: Trial court properly granted summary judgment because although widow provided evidence of unusual workplace stress, she failed to present evidence that the unusual workplace stress was the cause of her husband’s heart attack. Affidavit from treating doctor, who was a family doctor, did not establish that doctor was qualified to give opinion on cause of heart attack.

Vote: 1-0, 2 concur in judgment only
Opinion by: Judge McFarland
Appellate District:
4

December 7, 2015

Johnson v. Jefferson Industries Corp. (12/7/15)

Trial Practice: Workers’ compensation appeal is not timely if complaint is not filed within 30 days of notice of appeal. Therefore, filing second complaint after initial complaint is dismissed requires use of savings statute, which means that third complaint cannot be filed (because savings statute can only be invoked one time).

Vote: 3-0
Opinion by: Judge Ringland
Appellate District:
 12

November, 2015

November 30, 2015

Bryant v. Gen. Motors Corp. (11/30/15)

Occupational Disease: Evidence, including testimony of co-worker regarding asbestos exposure in plant and doctor’s testimony that workplace asbestos exposure caused decedent’s lung cancer, supported decision to allow widow’s death claim based on lung cancer (even where decedent smoked one to two packs of cigarettes per day for 47 years).

Vote: 3-0
Opinion by: Judge Shaw
Appellate District:
3

November 13, 2015

Crisster v. Zimmer Surgical, Inc. (11/13/15)

Trial Practice: Doctor’s affidavit indicating that injured worker’s knee injury occurred due to his work, which was supported by attached medical records including statements from injured worker regarding history of injury was sufficiently based on “facts or data” to satisfy rules of evidence and create material issue of fact sufficient to withstand motion for summary judgment.

Vote: 3-0
Opinion by: Judge Farmer
Appellate District:
5

November 9, 2015

Elyria v. Scott (11/9/15)

Employment: Death of police officer killed while traveling on paid leave to perform union activities, as provided for by collective bargaining agreement, occurred in the course of and arising out of employment and dependents are entitled to participate in the workers’ compensation fund.

Vote: 2-1
Opinion by: Judge Carr
Appellate District:
 9

November 6, 2015

McMasters v. Kilbarger Constr., Inc. (11/6/15)

Employment: When employer hired employee knowing that employee would be required to travel to different sites requiring lengthy travel, and employer required employees to work long hours, injury which occurred due to car accident while traveling home after working sixteen hour shift is compensable because it satisfied “special hazard rule.”

Vote: 3-0
Opinion by: Judge Farmer
Appellate District:
 5

Perry v. Kilbarger Constr., Inc. (11/6/15)

Employment: When employer hired employee knowing that employee would be required to travel to different sites requiring lengthy travel, and employer required employees to work long hours, injury which occurred due to car accident while traveling home after working sixteen hour shift is compensable because it satisfied “special hazard rule.”

Vote: 3-0
Opinion by: Judge Farmer
Appellate District:
 5

Petry v. Kilbarger Constr., Inc. (11/6/15)

Employment: When employer hired employee knowing that employee would be required to travel to different sites requiring lengthy travel, and employer required employees to work long hours, injury which occurred due to car accident while traveling home after working sixteen hour shift is compensable because it satisfied “special hazard rule.”

Vote: 3-0
Opinion by: Judge Farmer
Appellate District:
 5

October, 2015

October 30, 2015

Clendenin v. Girl Scouts of W. Ohio (10/30/15)

Trial Practice: Injured worker can pursue R.C. 4123.512 appeal from Commission order which terminated the right to participate for substantial aggravation of a pre-existing condition because that condition had abated even though she remained eligible to participate for other injuries arising from the accident.

Vote: 3-0
Opinion by: Judge Cunningham
Appellate District:
1

Salyers v. Buehrer (10/30/15)

Injury: Medical evidence that incident either directly injured or substantially aggravated a pre-existing injury is not sufficient to establish the injured worker’s right to participate because it does not satisfy the statutory requirement for allowance of a “substantial aggravation” and also does not establish that the injury was “more likely than not” the result of direct causation.

Vote: 2-0, 1 concurs in part and dissents in part
Opinion by: Judge DeWine
Appellate District:
1

October 29, 2015

Ferguson v. State (10/29/15)

Trial Practice: Provision of R.C. 4123.512 which prohibits an injured worker plaintiff from unilaterally dismissing their complaint seeking the right to participate in the workers’ compensation fund when the case arises from an employer appeal is unconstitutional because it violates the separation of powers, equal protection and due process.

Vote: 3-0
Opinion by: Judge Blackmon
Appellate District:
 8

October 27, 2015

Humility of Mary Health Partners, State ex rel. v. Indus. Comm. (10/27/15)

Permanent Total: When Commission awards permanent total because the allowed conditions render the injured worker incapable of working it does not need to consider disability factors and there is no need for the Commission to consider whether injured worker should have pursued vocational rehabilitation.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District:
 10

October 23, 2015

Warner v. DMAX Ltd., L.L.C. (10/23/15)

Trial Practice: Work history provided by injured worker gave treating doctor sufficient knowledge of work conditions for doctor to provide valid opinion that the work caused the injured worker to suffer a gradually developing injury.

Vote: 3-0
Opinion by: Judge Fain
Appellate District:
 2

September, 2015

September 30, 2015

Moore v. Administrator (9/30/15)

Trial Practice: Although a trier of fact is not required to adopt uncontradicted expert testimony, it cannot arbitrarily ignore it; therefore, trial court in bench trial improperly denied right to participate where evidence supported expert’s opinion that worker suffered injury due to work incident and nothing in record contradicted that opinion.

Vote: 3-0
Opinion by: Judge Cunningham
Appellate District:
 1

September 29, 2015

Sunesis Constr. Co., State ex rel. v. Indus. Comm. (9/29/15)

VSSR: SHO properly found that collapsed trench involving wet soil violated safety standard since finding that soil was wet indicated specific safety requirement applied; further, evidence in record (including photographs and testimony about likely source of collapse) supported finding that failure to properly brace or shore trench proximately caused injury.

Vote: 3-0
Opinion by: Judge Luper Schuster
Appellate District:
 10

September 24, 2015

Washington, State ex rel. v. Indus. Comm. (9/24/15)

Permanent Total: Some evidence supported Commission denial of permanent total based on finding that injured worker voluntarily abandoned her employment when she retired.

Vote: 2-1
Opinion by: Judge Klatt
Appellate District:
 10

September 3, 2015

Tolle, State ex rel. v. Spherion of Mid-Ohio, Inc. (9/3/15)

Temporary Total: Voluntary abandonment doctrine does not bar payment of temporary total when an employer decides to fire an injured worker for pre-injury violation of an employer’s policy discovered after the injury.

Vote: 3-0
Opinion by: Judge Luper Schuster
Appellate District:
 10

September 1, 2015

Helton v. Admr., Bur. of Workers’ Comp. (9/1/15)

Trial Practice: An injured worker filing an R.C. 4123.512 appeal from an Industrial Commission decision must file both a notice of appeal and a petition for the trial court to obtain jurisdiction over the appeal.

Vote: 3-0
Opinion by: Judge Luper Schuster
Appellate District:
 10

August, 2015

August 13, 2015

Johnson, State ex rel. v. OSU Cancer Research Hosp. (8/13/15)

Mandamus: Because a Commission grant of continuing jurisdiction which ultimately results in denial of the right to participate can be challenged through an R.C. 4123.512 appeal it cannot be challenged in a mandamus action.

Vote: 3-0
Opinion by: Judge Horton
Appellate District:
 10

August 7, 2015

Luettke v. Autoneum N. Am., Inc. (8/7/15)

Injury: A worker who suffers a work-related injury can participate in the workers’ compensation system for their injury even if they suffered from a health condition which made them more susceptible to injury than a worker whose health was normal.

Vote: 3-0
Opinion by: Judge Pietrykowski
Appellate District:
 6

August 4, 2015

Barcus v. Buehrer (8/4/15)

Employment: Evidence of relationship between company and truck driver supported finding as a matter of law that truck driver was independent contractor, not employee, and therefore not entitled to workers’ compensation benefits.

Vote: 3-0
Opinion by: Judge Klatt
Appellate District:
 10

July, 2015

<< No Decisions Indexed >>

June, 2015

June 30, 2015

Whitt
v. Wolfinger
(6/30/15)

Employment: Evidence of relationship between company and individual who delivered newspapers and serviced newspaper vending machines supported finding as a matter of law that truck driver was independent contractor, not employee, and therefore not entitled to workers’ compensation benefits.

Vote: 3-0
Opinion by: Judge Harsha
Appellate District:
4

June 25, 2015

Cakic v. Ridge Pleasant Valley, Inc. (6/25/15)

Trial Practice: When injured worker pursues multiple conditions, trial court is not required to breakdown time spent on successful versus unsuccessful claim when determining statutory award of attorney fees; however, record must contain evidence of effort expended by attorney to support award of attorney fees.

Vote: 3-0
Opinion by: Judge Gallagher
Appellate District:
 8

June 19, 2015

Lafon v. Iron Tiger Logistics (6/19/15)

Employment: Employee is not entitled to participate in the workers’ compensation system for an injury which occurred when he tripped over his untied shoelaces because the injury did not “arise out of” his employment.

Vote: 3-0
Opinion by: Judge Welbaum
Appellate District:
 2

June 11, 2015

Holbrook v. OhioHealth Corp. (6/11/15)

Injury: Res judicata bars second claim for an additional allowance which had previously been denied even though second claim argued that a surgery (which had occurred before the filing of the first claim), rather than the initial injury, caused the second condition.

Vote: 2-0, 1 concurs in judgment only
Opinion by: Judge Sadler
Appellate District:
 10

Stringer v. Dept. of Health-Ohio (6/11/15)

Settlement:30 day period for withdrawal from a settlement agreement does not apply to settlements of state fund claims during an R.C. 4123.512 court appeal.

Vote: 2-1
Opinion by: Judge Gallagher
Appellate District:
 8

June 9, 2015

BF Goodrich Co., State ex rel. v. Indus. Comm. (6/9/15)

Wage Loss:Injured worker entitled to wage loss compensation for lost overtime when their allowed condition limits them to restricted duty and collective bargaining agreement makes workers on restricted duty ineligible to work overtime.

Vote: 3-0
Opinion by: Judge Dorrian
Appellate District:
 10

June 4, 2015

Cleveland, State ex rel. v. Indus. Comm. (6/4/15)

Wage Loss: Injured worker entitled to wage loss compensation for lost overtime when their allowed condition limits them to restricted duty and employer’s policy makes workers on restricted duty ineligible to work overtime.

Vote: 3-0
Opinion by: Judge Dorrian
Appellate District:
10

May, 2015

May 13, 2015

Alexander v. Boston (5/13/15)

Injury: Trial court improperly found fellow servant rule applied based solely on plaintiff’s receipt of workers’ compensation benefits because issue exists regarding whether defendant’s actions occurred “in the course of, and arising out of” his employment.

Vote: 3-0
Opinion by: Judge Moore
Appellate District:
 9

April, 2015

April 30, 2015

Sears Roebuck & Co., State ex rel. v. Indus. Comm. (4/30/15)

Temporary Total: Commission entitled to rely on injured worker’s testimony in determining that injured worker retired due to effects of their injury and, as a result, did not voluntarily abandon the workforce.

Vote: 3-0
Opinion by: Judge Luper Schuster
Appellate District:
 10

April 21, 2015

Krogman, State ex rel. v. B&B Ents. Napco Flooring, L.L.C. (4/21/15)

Temporary Total: Injured worker’s abandonment of workforce can occur over period of years and Commission is not required to identify a specific date on which abandonment occurred to find abandonment which bars temporary total.

Vote: 3-0
Opinion by: Judge Horton
Appellate District:
10

April 16, 2015

Kilbane v. Lutheran Hosp.-Cleveland Clinic (4/16/15)

Injury: Injury to nurse walking to parking lot while carrying bag containing clothing and shoes required for her employment, which was caused by wind pulling bag and causing her to fall, occurred in the course of, and arising out of, employment.

Vote: 3-0
Opinion by: Judge Mays
Appellate District:
8

March 2015

March 31, 2015

Vaught, State ex rel. v. Indus. Comm. (3/31/15)

Temporary Total: Commission improperly applied abandonment doctrine to deny temporary total compensation where there was no evidence in the record that the work rule which the employer allegedly fired the injured worker for violating was a written work rule.

Vote: 3-0
Opinion by: Judge Brunner
Appellate District:
 10

Power v. Bay Park Community Hosp. (3/31/15)

Injury: Injury which occurred when hospital worker was picking up friend from emergency room did not occur in the course of, or arising out of, employment because the worker was picking up the friend after her work had ended and in a different area than where she worked.

Vote: 3-0
Opinion by: Judge Pietrykowski
Appellate District:
 6

March 23, 2015

Trent v. Stark Metal Sales, Inc. (3/23/15)

Injury: Trial court did not abuse discretion when denying employer ability to present testimony about injured worker’s use of marijuana because such testimony would only be relevant if drug use proximately caused the injury, and proffered evidence did not indicate that injured worker was under the influence of marijuana when the injury occurred.

Vote: 3-0
Opinion by: Judge Baldwin
Appellate District:
 5

March 19, 2015

Bur. of Workers’ Comp. v. Mal-Sarkar (3/19/15)

Trial Practice: Probate court, not common pleas court, has jurisdiction over BWC’s claim for subrogation resulting from a wrongful death settlement involving a minor beneficiary.

Vote: 2-1
Opinion by: Judge Gallagher
Appellate District:
 8

February 2015

February 19, 2015

Perez, State ex rel. v. Indus. Comm. (2/19/15)

Fraud: Although evidence supported finding that injured worker was not entitled to receipt of temporary total compensation, evidence did not support the Commission’s finding that injured worker who had never misled BWC, and who had disclosed existence of business to BWC multiple times, committed fraud.

Vote: 3-0
Opinion by: Judge Tyack
Appellate District:
 10

February 10, 2015

Coastal Pet Prods., Inc., State ex rel. v. Indus. Comm. (2/10/15)

Administrative Practice: Previous denial of workers’ compensation claim filed by employer, without injured worker’s signature or consent, did not bar injured worker from filing later claim for the injury because first claim did not constitute a valid application for workers’ compensation.

Vote: 3-0
Opinion by: Judge Sadler
Appellate District:
10

January 2015

January 23, 2015

Little v. Dayton Pub. Schools (1/23/15)

Injury: Doctor’s opinion of substantial aggravation based only on injured worker’s description of her history did not satisfy statutory requirement of objective evidence necessary to participate for substantial aggravation claim.

Vote: 3-0
Opinion by: Judge Donovan
Appellate District:
 2

Cranford v. Buehrer (1/23/15)

Trial Practice: Trial court did not err by excluding sworn statement of doctor, taken without providing opportunity for employer to cross-examination, even though doctor had died before trial.

Vote: 3-0
Opinion by: Judge Froelich
Appellate District:
 2