Ohio Workers’ Compensation Decisions: 2017 Court of Appeals

Ohio Workers’ Compensation Decisions

2017 Court of Appeals

This page lists Ohio Court of Appeals workers’ compensation decisions summarized in 2017, 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.

2017

December 2017

Osten v. Bureau of Workers’ Compensation (12/29/17)

Injury: Travelling employee who was injured while on personal errand is not entitled to participate.

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

Green v. Marc Glassman, Inc. (12/29/17)

Injury: Fixed situs employee not entitled to participate for injury while traveling home from work.

Vote: 3-0
Opinion by: Grendall
Appellate District:
 11

Pacheco, State ex rel. v. Indus. Comm. (12/12/17)

Temporary Total: Job offer of work at desk job in lunch room is not objectively a “good faith” job offer which would bar temporary total when there is no evidence that the work can be performed in the lunch room.

Vote: 2-1
Opinion by: Brunner
Appellate District:
 10

Navistar Inc., State ex rel. v. Indus. Comm. (12/12/17)

Permanent Total: Where the record does not demonstrate that the employer raised the issue of voluntary abandonment before the Commission, there is no abuse of discretion in the Commission’s failure to consider voluntary abandonment.

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

November 2017

Harmon v. Cuyahoga County, 2017-Ohio-8662 (11/22/17)

Trial Practice: Attorney who successfully filed motion to set aside settlement agreement, which caused previously allowed claim to remain open, entitled to attorney fees since the result permitted claimant to continue to participate in the fund.

Vote: 3-0
Opinion by: Celebrezze
Appellate District:
 8

Rusin v. Buehrer, 2017-Ohio-8411 (11/3/17)

Occupational Disease: Trial court did not err in determining that fire fighter had not established that workplace exposure to toxic substances caused his ALS.

Vote: 3-0
Opinion by: Zayas
Appellate District:
1

Young, State ex rel. v. Indus. Comm., 2017-Ohio-8547 (11/2/17)

Mandamus: Where final decision in R.C. 4123.512 action determined that proper course of remedy is mandamus, injured worker can pursue mandamus action even though case would normally not be appropriate for mandamus because it involved the right to participate.

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

October 2017

White v. Buehrer, 2017-Ohio-8254 (10/20/17)

Trial Practice: Factual issues regarding cause of injury precluded summary judgment.

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

Hinds v. Muskingum County, 2017-Ohio-8212 (10/13/17)

Settlement: Trial court cannot enforce settlement agreement which was not agreed to by all the parties.

Vote: 3-0
Opinion by: Hoffman
Appellate District:
5

DPWN Holdings (USA) Inc., State ex rel. v. Indus. Comm., 2017-Ohio-8148 (10/10/17)

AWW:Some evidence supported Commission decision that special circumstances justified excluding period of unemployment from AWW calculation.

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

September 2017

Keener v. Buehrer, 2017-Ohio-7749 (9/22/17)

Trial Practice: Trial court erred in refusing to award successful injured worker the cost of a videotaped doctor’s deposition since that cost was a reasonable and necessary litigation expense.

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

Williams v. Chrysler First Financial Services Co., 2017-Ohio-7778 (9/22/17)

Injury: Medical evidence did not support jury instruction on dual causation.

Vote: 3-0
Opinion by: Mayle
Appellate District:
 6

August 2017

Smith v. Soci Petroleum, Inc. (8/16/17)

Trial Practice: Trial court did not err in dismissing pro se injured worker’s claim where he failed to file complaint or take any action to prosecute his case.

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

Leasure v. UVMC (8/11/17)

Trial Practice: Trial court’s decision after bench trial to deny request for additional allowance was not against the manifest weight of the evidence.

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

Taylor v. ProMedica Memorial Hospital (8/4/17)

Injury: Going and coming rule does not apply to injury which occurred while employee was on employer’s premises walking from parking lot to building where she worked; injury occurred in the zone of employment and was compensable under the totality of the circumstances test.

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

Rowland v. Buehrer (8/4/17)

Injury: Doctor’s testimony, including objective range of motion tests and MRI, provided sufficient evidence of substantial aggravation to withstand summary judgment motion.

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

Natal v. U.S. Cotton, L.L.C. (8/3/17)

Settlement: Trial court lacked jurisdiction to enforce settlement agreement because dismissal entry did not include the terms of the settlement agreement and did not indicate that the trial court retained jurisdiction to enforce the settlement agreement.

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

July 2017

Hornschemeier v. Buehrer (7/31/17)

Injury: Trial court properly denied injured worker’s claim for allowance of chondromalacia of left knee where worker was participating for osteoarthritis of right knee and the only medical testimony indicated that osteoarthritis and chondromalacia were the “same thing.”

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

Cook v. Administrator (7/17/17)

Injury: Because date of injury is not a material fact of a workers’ compensation claim, failure to establish injury happened on a specific date does not require ruling against an injured worker if the worker can establish that the injury occurred at work.

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

Demore v. Cuyahoga County (7/13/17)

Trial Practice: Civil rules require use of general verdict, therefore trial court improperly entered judgment based solely on jury’s responses to interrogatories.

Vote: 2-0, 1 concurs with separate opinion
Opinion by: Judge Mays
Appellate District:
 8

Hoelscher v. KBO, Inc. (7/7/17)

Trial Practice: Trial court improperly granted summary judgment for employer when injured worker had presented psychiatric testimony that flow-through psychiatric condition had been caused by allowed physical injury.

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

Ellis v. Buehrer (6/28/17)

Death: Collateral estoppel bars deceased worker’s spouse from establishing that death was caused by effects of work injury when a previous court challenge to the coroner’s death certificate had found otherwise.

Vote: 1-0, 1 concurs in judgment only, 1 concurs separately
Opinion by: Judge Zayas
Appellate District:
1

June 2017

Paul v. I-Force, LLC (6/23/17)

Trial Practice: Because savings statute can only be used to once to refile case, employer was entitled to judgment on the pleadings on its R.C. 4123.512 appeal after second dismissal of complaint.

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

Zebrasky v. Discount Drug Mart, Inc. (6/22/17)

Trial Practice: Trial court properly dismissed employee’s R.C. 4123.512 appeal upon her death because her claim abated upon her death.

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

Woods v. Onesource Employee Management, LLC (6/20/17)

Injury: Evidence supported trial court’s decision that injury occurred outside the scope of employment.

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

Antoun v. The Shelly Co. (6/16/17)

Trial Practice: Injured worker cannot unilaterally dismiss complaint in an employer appeal.

Vote: 2-1
Opinion by: Judge DeGenaro
Appellate District:
 7

Johnson v. Cuyahoga County (6/15/17)

Trial Practice: Injured worker can unilaterally dismiss complaint in an employer appeal.

Vote: 2-1
Opinion by: Judge Jones, Sr.
Appellate District:
 8

May 2017

McKinney v. Omni Die Casting, Inc. (5/22/17)

Trial Practice: Trial court erred in failing to allow BWC to intervene in intentional tort suit because BWC had subrogation right since employer fits within the subrogation statute’s definition of “third party.”

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

Aho v. RTI International Metals, Inc. (5/15/17)

Injury: Trial court improperly awarded summary judgment against worker injured while climbing stairs at work; because employer did not argue idiopathic cause of injury, worker had no burden to provide evidence contradicting idiopathic cause and inference is that injury was caused by unidentified risk at work.

Vote: 3-0
Opinion by: Judge Cannon
Appellate District:
11

Draper v. North American Science Associates, Inc. (5/12/17)

Trial Practice: Trial court lacks jurisdiction over appeal from Commission order refusing to exercise continuing jurisdiction to modify previous order denying claim.

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

April 2017

McKenzie v. Meijer, Inc. (4/24/17)

Trial Practice: Trial court lacks jurisdiction over attempted R.C. 4123.512 appeal involving denial of chiropractic services which did not result in termination of right to participate.

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

Cuckler v. Admr. Bur. of Workers’ Comp. (4/19/17)

Trial Practice: Expert opinion that worker suffered injury based on subjective complaints and objective evidence was sufficient to withstand summary judgment.

Vote: 2-1
Opinion by: Judge Hoover
Appellate District:
 4

Schramm v. Appvion, Inc. (4/14/17)

Trial Practice: Trial court properly granted summary judgment to dismiss refiled complaint which was filed more than one year after the previous case had been dismissed.

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

Rees v. Univ. Hosps. (4/13/17)

Injury: Nurse, injured while returning to CPR class required by her employer from trip to car to get required materials was injured in the course of, and arising out of, her employment under the “special mission” exception to the going and coming rule.

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

Penske Truck Leasing Co., L.P., State ex rel. v. Indus. Comm. (3/28/17)

Permanent Total: Commission allocation of portion of permanent total award to 2001 claim was improper when medical evidence relied on did not indicate that the 2001 claim contributed to the permanent total disability suffered by the injured worker.

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

Burke v. Wal-Mart Stores, Inc. (3/27/17)

Settlement: Confidential settlement agreement became effective under R.C. 4123.65(C) even though  self-insured employer submitted trial court’s agreed judgment entry terminating claim, instead of the confidential settlement agreement.

Vote: 2-1
Opinion by: Judge Cannon
Appellate District:
 11

March 2017

Klein, State ex rel. v. Precision Excavating & Grading Co. (3/21/17)

Temporary Total: Commission cannot find injured worker voluntarily abandoned his employment when he quit work and moved to a different state if the medical evidence establishes that he remained medically  incapable of returning to his former employment at the time he quit his job.

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

Cleveland Browns Football Co. LLC, State ex rel. v. Indus. Comm. (3/9/17)

Continuing Jurisdiction: When football team paid salary to injured player who could not play in games, salary constituted “wages in lieu of [temporary total] compensation” which made the claim  a lost time claim subject to the ten year statute of limitations provdided for by former R.C. 4123.52.

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

Hulbert v. Buehrer (3/9/17)

Trial Practice: Trial court lacked jurisdiction to hear R.C. 4123.512 appeal from Commission decision seeking modification of order setting hourly rate of pay for LPN caregiver.

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

February 2017

Franklin v. BHC Servs., Inc. (2/23/17)

Injury: Trial court improperly granted summary judgment based on the going and coming rule against home health aide injured while traveling from one client’s site to another because genuine issues of material fact exist regarding whether she was a fixed situs employee and, if so, whether an exception to the going and coming rule applies.

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

Molton v. Kroger Co. (2/17/17)

Injury: Going and coming rule bars compensation to dependant of worker killed when hit by a vehicle  as she was walking in a public street from her place of employment to a bus stop.

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

Witt, State ex rel. v. Indus. Comm. (2/16/17)

AWW: BWC has continuing jurisdiction to correct an error in the AWW (and FWW) calculation, and is not required to file a motion to have the Industrial Commission correct the error.

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

Miller v. Horizons Health Servs., L.L.C. (2/9/17)

Injury: Trial court properly granted summary judgment against worker who suffered idiopathic injury because worker did not provide facts to establish that a specific risk/hazard of her employment contributted to her injury.

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

Nelson v. Colossal Constr. Co., Inc. (2/3/17)

Trial Practice: When no objections were filed to magistrate’s decision at trial court, Court of Appeals review is limited to situations where a “plain error” occurred.

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

Samuel v. Progressive Cas. Ins. Co. (2/2/17)

Injury: Where no evidence indicated that employer required worker to submit documentation related to leave in person, injury which occurred when worker went to employer’s location solely for the purpose of dropping off documentation did not occur in the course of employment.

Vote: 2-0, 1 concurs in judgment only
Opinion by: Judge Mays
Appellate District:
 8

January 2017

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