The Court of Appeals for the Ninth Appellate District released two opinions that were decisions from appeals filed from the Lorain County Court of Common Pleas. One decision was a criminal case and the other was a civil case.
The criminal case was State v. Seymour, 2013-Ohio-1936. Mr. Seymour raised two assignments of error. The first was that the verdict was based on insufficient evidence and the second was that the verdict was against the manifest weight of the evidence. Both assignments were rejected and the trial court was affirmed.
The civil case was Miller v. Community Health Partners, 2013-Ohio-1935. This decision concerned a employee of Community Health Partners who filed a claim for worker's compensation.
Initially Ms. Miller filed a claim for a injury to her back that she received while working. The Industrial Commission allowed the claim. Community Health Partners appealed the Commission's ruling. While the employer's appeal to the Common Pleas Court was pending, Ms. Miller filed a motion to have her back injury claim modified to include psychological issues allegedly caused by the back injury. The Industrial Commission allowed the claim for the psychological injury and Community Health Partners did not file an appeal of that decision.
Ms. Miller argued in the Common Pleas Court that since her employer did not appeal the decision allowing the psychological claim, and since that claim arose out of the back injury, the employer was now bound by the rule of res judicata regarding its appeal of her back injury claim. The Common Pleas Court agreed with her and granted summary judgment against Community Health Partners. It held that under the doctrine of res judicata Community Health Partners could not re-litigate Ms. Miller's back injury.
In its opinion the Court of Appeals pointed out that the term res judicata in Ohio includes both issue preclusion (collateral estoppal) and claim preclusion. Since the employer never had an opportunity to litigate the back injury, the doctrine of res judicata didn't apply, no matter if it was used to preclude issues or preclude claims. The Court of Appeals reversed the summary judgment in favor of Ms. Miller and remanded the case for further proceedings.
Showing posts with label workers' compensation. Show all posts
Showing posts with label workers' compensation. Show all posts
Monday, May 20, 2013
Wednesday, April 17, 2013
Ninth Appellate District Opinions for April 15, 2013
The Court of Appeals for the Ninth Appellate District released two opinions on Monday, April 15, 2013. The opinions were both civil cases. One was from Lorain County and the other was from Wayne County.
The Lorain County decision was Hart v. Ridge Tool Co., 2013-Ohio-1487. Mr. Hart filed a worker's compensation claim based on depression and opiate dependence that followed an industrial injury. Ridge Tool is a self-insured employer under the Worker's Compensation Act. The two claims eventually came to the Lorain County Common Pleas Court. At some point the parties informed the Court that they had reached an agreement. The Lorain County Common Pleas Court then entered judgment on both claims, holding that Mr. Hart could no longer pursue his claims.
Mr. Hart then filed a pro se appeal. Although the Court of Appeals conceded that his argument was not "easily discernible", Mr. Hart cited to R.C. 4123.65 (D), which, "regulates the settlement of workers’ compensation claims by providing for administrative review to protect parties against settlements that are ‘clearly unfair’ or that constitute ‘gross miscarriage[s] of justice." That section also applies to common pleas courts as well as the administrative bodies. See Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 202-203 (2000).
When there is an settlement between a worker and a self-insured employee, R.C. 4123.65 (C) mandates that each party has 30 days from the date that the settlement is signed to withdrew from the settlement. In this case the trial court entered judgment before the 30 day period expired and there was no evidence that Mr. Hart had signed the settlement agreement. The Court of Appeals reversed and remanded for further proceedings.
The Wayne County case, State v. Ross, 2013-Ohio-1488, was an appeal from the Wayne County Municipal Court which had convicted Mr. Ross of a marked lanes violation and a seatbelt violation. Originally Mr. Ross had also been charged with driving while under the influence, but those charges were dismissed and there was a bench trial on the remaining two violations.
Mr. Ross argued on appeal that the evidence was insufficient to convict him of the marked lanes violation. The opinion contains a discussion of the Ninth Appellate District's analysis of the elements of R.C. 4511.33. In that opinion the following language appears:
"Accordingly, we continue to hold that, in order to establish a violation of R.C.
4511.33, the State must present evidence “that the driver of a vehicle moving either between lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior to making the movement.” Barner, 2004-Ohio-5950, at ¶ 14. In the instant matter, the State failed to present any evidence of the foregoing."
The opinion was a 2-1 decision, with Judge Whitmore dissenting. Both the majority opinion and the dissenting opinion discuss the application of the Ohio Supreme Court decision of State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. That decision involved the constitutionality of a stop based on an observed marked lanes violation, but Judge Whitmore argued that the language of the opinion supports the view that while there are circumstances that allow a motorist to go outside the marked lane of travel, being tired is not one of them. She then goes on to state that since that was the reason given by Mr. Ross for traveling outside of marked lanes, she would affirm the conviction.
The Lorain County decision was Hart v. Ridge Tool Co., 2013-Ohio-1487. Mr. Hart filed a worker's compensation claim based on depression and opiate dependence that followed an industrial injury. Ridge Tool is a self-insured employer under the Worker's Compensation Act. The two claims eventually came to the Lorain County Common Pleas Court. At some point the parties informed the Court that they had reached an agreement. The Lorain County Common Pleas Court then entered judgment on both claims, holding that Mr. Hart could no longer pursue his claims.
Mr. Hart then filed a pro se appeal. Although the Court of Appeals conceded that his argument was not "easily discernible", Mr. Hart cited to R.C. 4123.65 (D), which, "regulates the settlement of workers’ compensation claims by providing for administrative review to protect parties against settlements that are ‘clearly unfair’ or that constitute ‘gross miscarriage[s] of justice." That section also applies to common pleas courts as well as the administrative bodies. See Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 202-203 (2000).
When there is an settlement between a worker and a self-insured employee, R.C. 4123.65 (C) mandates that each party has 30 days from the date that the settlement is signed to withdrew from the settlement. In this case the trial court entered judgment before the 30 day period expired and there was no evidence that Mr. Hart had signed the settlement agreement. The Court of Appeals reversed and remanded for further proceedings.
The Wayne County case, State v. Ross, 2013-Ohio-1488, was an appeal from the Wayne County Municipal Court which had convicted Mr. Ross of a marked lanes violation and a seatbelt violation. Originally Mr. Ross had also been charged with driving while under the influence, but those charges were dismissed and there was a bench trial on the remaining two violations.
Mr. Ross argued on appeal that the evidence was insufficient to convict him of the marked lanes violation. The opinion contains a discussion of the Ninth Appellate District's analysis of the elements of R.C. 4511.33. In that opinion the following language appears:
"Accordingly, we continue to hold that, in order to establish a violation of R.C.
4511.33, the State must present evidence “that the driver of a vehicle moving either between lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior to making the movement.” Barner, 2004-Ohio-5950, at ¶ 14. In the instant matter, the State failed to present any evidence of the foregoing."
The opinion was a 2-1 decision, with Judge Whitmore dissenting. Both the majority opinion and the dissenting opinion discuss the application of the Ohio Supreme Court decision of State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. That decision involved the constitutionality of a stop based on an observed marked lanes violation, but Judge Whitmore argued that the language of the opinion supports the view that while there are circumstances that allow a motorist to go outside the marked lane of travel, being tired is not one of them. She then goes on to state that since that was the reason given by Mr. Ross for traveling outside of marked lanes, she would affirm the conviction.
Thursday, January 06, 2011
Medina Man Loses Workers' Compensation Case
On April 1, 2007, Keith Garnes of Spencer Lake Road in Medina, Ohio was driving a truck for a company called Lucas Clark Trucking. Lucas Clark Trucking is a company located in West Salem, Ohio.
His job was to drive pallets of shingles from a warehouse at the Owens Corning plant in Medina, Ohio to another location at the plant. He was driving an 18 wheel truck and was paid by the load. He had been working for Lucas Clark Trucking for less than a week. On April 1, 2007, while at work, his ankle was run over by a tow motor operated by an employee of Lucas Clark Trucking.
That accident started a chain of events that led to a two day jury trial in Judge Kimbler's courtroom on January 4 and 5, 2010. While both Mr. Garnes and Lucas Clark Trucking agreed that Mr. Garnes was operating one of the company's trucks, they disagreed about his status on the day of the accident.
Mr. Garnes argued that he was an employee of the trucking company and therefore eligible to collect Workers' Compensation benefits. The company argued that he was an independent contractor and therefore the company did not have to cover him under Ohio's Workers' Compensation law. Complicating the case was the fact that the trucking company, which only had about three drivers, did not cover them under the Ohio's compensation program.
Under Ohio law, the job of the jury in such a case is to determine whether or not the person claiming coverage is entitled to participate in the Ohio program. The worker has the burden of showing by a preponderance of the evidence that he or she is entitled to participate.
In the Garnes case, the jury determined that he was not entitled to participate. In reaching that decision, the jury had to consider 28 factors that Ohio law uses to determine whether a person is an employee or an independent contractor. Although Judge Kimbler has had other workers' compensation trials, this was the first one in which the issue of employee versus independent contractor had to be determined by a jury.
His job was to drive pallets of shingles from a warehouse at the Owens Corning plant in Medina, Ohio to another location at the plant. He was driving an 18 wheel truck and was paid by the load. He had been working for Lucas Clark Trucking for less than a week. On April 1, 2007, while at work, his ankle was run over by a tow motor operated by an employee of Lucas Clark Trucking.
That accident started a chain of events that led to a two day jury trial in Judge Kimbler's courtroom on January 4 and 5, 2010. While both Mr. Garnes and Lucas Clark Trucking agreed that Mr. Garnes was operating one of the company's trucks, they disagreed about his status on the day of the accident.
Mr. Garnes argued that he was an employee of the trucking company and therefore eligible to collect Workers' Compensation benefits. The company argued that he was an independent contractor and therefore the company did not have to cover him under Ohio's Workers' Compensation law. Complicating the case was the fact that the trucking company, which only had about three drivers, did not cover them under the Ohio's compensation program.
Under Ohio law, the job of the jury in such a case is to determine whether or not the person claiming coverage is entitled to participate in the Ohio program. The worker has the burden of showing by a preponderance of the evidence that he or she is entitled to participate.
In the Garnes case, the jury determined that he was not entitled to participate. In reaching that decision, the jury had to consider 28 factors that Ohio law uses to determine whether a person is an employee or an independent contractor. Although Judge Kimbler has had other workers' compensation trials, this was the first one in which the issue of employee versus independent contractor had to be determined by a jury.
Monday, August 30, 2010
Judge Kimbler Decision on Survival of Workers' Compensation Claim
Below is an opinion that I recently filed in a civil case. Please note that the opinion is subject to an appeal.
Ms. Tracy Lytle filed an appeal from a decision of the Industrial Commission disallowing her claim for Workers’ Compensation benefits. Prior to a determination by this Court as to whether she was entitled to such benefits, she died. The Estate then filed a motion to substitute itself as a party pursuant to Civ. R. 25 (A). The Court granted that motion. The State then filed a motion to dismiss this action. The motion alleged that the cause of action for benefits abated with Ms. Lytle’s death. Therefore, the State alleged that there was no longer a viable cause of action for benefits.
In Melton v. Fisher Body Elyria, 1987 Ohio App. LEXIS 9408, the Court of Appeals for the Ninth Appellate District, sitting as the Lorain County Court of Appeals, held that the death of a worker extinguished the claim for workers’ compensation benefits. The Court wrote the following:
“Ohio workers compensation law creates two separate and distinct categories of individuals entitled to benefits: living employees and their dependents after death. Ratliff v. Flowers (1970), 25 Ohio App. 2d 113; Bozzelli v. Indus. Comm. (1930), 122 Ohio St. 201.
An injured employee's cause of action accrues at the time he receives an injury in the course of his employment. A dependent's cause of action, accrues at the time of the death of the employee from an injury received in the course of his employment. Indus. Comm. v. Kamidth (1928), 118 Ohio St. 1, paragraph three and four of the syllabus approved and followed in Indus. Comm. v. Davis (1933), 126 Ohio 593, paragraph one and two of the syllabus. Therefore, such causes of action are separate and not dependent.
Before his death the claimant had filed a motion for further allowance with the Industrial Commission. This claim was not ruled on before his death. When a claimant dies, action on any claim pending before the bureau or industrial commission, it abated by the claimant's death. Ohio Administrative Code Section 4123-5-21; Ratliff, supra. Therefore claimant's motion for further allowance was abated. However, since appellant's claim for death benefits, pursuant to R.C. 4123.59, is a separate cause of action, claimant's death did not abate it.
The law recognizes the right of dependents to recover under a separate action for death benefits as long as it is shown that the cause of death was the direct and proximate result of the industrial injury. Oswald v. Connor, (1985), 16 Ohio St. 3d 38. Therefore, the trial court erred in not affording the dependents a trial and by granting judgment to the appellees on the basis that the claim was abated.”
In this case, however, the claim is not for death benefits, but for benefits for the injury that the Estate claims that Ms. Lytle was due at the time of her death. Therefore, even though the language quoted above is dicta as far as the issue of whether a cause of action for benefits that allegedly accrued to the employee at the time of her death abates, this Court finds that the Melton decision is persuasive and therefore, this Court will follow it.
This position has also been adopted by other appellate courts in Ohio. See, for example, Hook v. City of Springfield (2000), 141 Ohio App. 3d 260 and Hlatky v. Asplundh Tree Expert Co., 1993 Ohio App. LEXIS 4009.
Therefore, this Court grants the motion to dismiss. Court costs over and above any deposit filed with the Clerk of Courts are hereby waived.
SO ORDERED, ADJUDGED, and DECREED.
Ms. Tracy Lytle filed an appeal from a decision of the Industrial Commission disallowing her claim for Workers’ Compensation benefits. Prior to a determination by this Court as to whether she was entitled to such benefits, she died. The Estate then filed a motion to substitute itself as a party pursuant to Civ. R. 25 (A). The Court granted that motion. The State then filed a motion to dismiss this action. The motion alleged that the cause of action for benefits abated with Ms. Lytle’s death. Therefore, the State alleged that there was no longer a viable cause of action for benefits.
In Melton v. Fisher Body Elyria, 1987 Ohio App. LEXIS 9408, the Court of Appeals for the Ninth Appellate District, sitting as the Lorain County Court of Appeals, held that the death of a worker extinguished the claim for workers’ compensation benefits. The Court wrote the following:
“Ohio workers compensation law creates two separate and distinct categories of individuals entitled to benefits: living employees and their dependents after death. Ratliff v. Flowers (1970), 25 Ohio App. 2d 113; Bozzelli v. Indus. Comm. (1930), 122 Ohio St. 201.
An injured employee's cause of action accrues at the time he receives an injury in the course of his employment. A dependent's cause of action, accrues at the time of the death of the employee from an injury received in the course of his employment. Indus. Comm. v. Kamidth (1928), 118 Ohio St. 1, paragraph three and four of the syllabus approved and followed in Indus. Comm. v. Davis (1933), 126 Ohio 593, paragraph one and two of the syllabus. Therefore, such causes of action are separate and not dependent.
Before his death the claimant had filed a motion for further allowance with the Industrial Commission. This claim was not ruled on before his death. When a claimant dies, action on any claim pending before the bureau or industrial commission, it abated by the claimant's death. Ohio Administrative Code Section 4123-5-21; Ratliff, supra. Therefore claimant's motion for further allowance was abated. However, since appellant's claim for death benefits, pursuant to R.C. 4123.59, is a separate cause of action, claimant's death did not abate it.
The law recognizes the right of dependents to recover under a separate action for death benefits as long as it is shown that the cause of death was the direct and proximate result of the industrial injury. Oswald v. Connor, (1985), 16 Ohio St. 3d 38. Therefore, the trial court erred in not affording the dependents a trial and by granting judgment to the appellees on the basis that the claim was abated.”
In this case, however, the claim is not for death benefits, but for benefits for the injury that the Estate claims that Ms. Lytle was due at the time of her death. Therefore, even though the language quoted above is dicta as far as the issue of whether a cause of action for benefits that allegedly accrued to the employee at the time of her death abates, this Court finds that the Melton decision is persuasive and therefore, this Court will follow it.
This position has also been adopted by other appellate courts in Ohio. See, for example, Hook v. City of Springfield (2000), 141 Ohio App. 3d 260 and Hlatky v. Asplundh Tree Expert Co., 1993 Ohio App. LEXIS 4009.
Therefore, this Court grants the motion to dismiss. Court costs over and above any deposit filed with the Clerk of Courts are hereby waived.
SO ORDERED, ADJUDGED, and DECREED.
Thursday, June 10, 2010
Calculation of Temporary Total Disability Compensation Can Include Wages from Second Job
State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., Slip Opinion No. 2010-Ohio-2451.
Franklin App. No. 07AP-959, 182 Ohio App.3d 152, 2009-Ohio-1708. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Brown, C.J., and Lanzinger, J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2451.pdf
(June 8, 2010) The Supreme Court of Ohio today ruled that the Industrial Commission of Ohio did not abuse its discretion in including wages from a second job to calculate an injured worker’s average and full weekly wages in determining temporary total disability compensation for an injury he sustained on the first job.
The case centers on an injury sustained by Christopher Roper while employed by FedEx Ground Package System, Inc., where he had worked part-time since 2004. Roper took a second job in April 2006 with Integrated Pest Control that paid considerably more.
On Oct. 24, 2006, Roper was injured at FedEx, and subsequently applied for workers’ compensation benefits. As a self-insured employer, FedEx set Roper’s average weekly wage at $160.45 and his full weekly wage at $250.80, based solely on his earnings at FedEx. Roper asked the Industrial Commission to reset his average and fully weekly wages based on his combined earnings from FedEx and Integrated Pest Control. A district hearing officer, citing the “special circumstances” provision of R.C. 4123.61, granted Roper’s motion and reset his AWW at $417.05, and FWW at $457.36, based on income from both jobs. That order was administratively affirmed.
FedEx filed a mandamus action in the 10th District Court of Appeals seeking reversal of the Industrial Commission’s award of increased benefits based on Roper’s earnings from Integrated Pest Control. The appeals court denied the mandamus complaint. FedEx exercised its right to appeal the 10th District’s decision to the Supreme Court.
In today’s 5-0 per curiam opinion, which affirmed the court of appeals judgment, the Supreme Court found FedEx’s arguments unpersuasive by noting that state law does not bar the inclusion of concurrent wages in the calculation of a worker’s disability benefits; relevant case law does not limit the inclusion of concurrent wages to jobs involving ‘similar’ employment; the inclusion of concurrent wages will not discourage employment; and the inclusion of concurrent wages is not inherently unfair.
The Court found that “our review supports these calculations” and noted that “we have consistently recognized and generally deferred to the commission’s expertise in areas falling under the agency’s jurisdiction.”
The Court’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Chief Justice Eric Brown and Judith Ann Lanzinger did not participate in the Court’s deliberations or decision in the case.
Contacts
John T. Landwehr, 419.241.6000, for FedEx.
Gerald H. Waterman, 614.466.6696, for the Industrial Commission.
Theodore A. Bowman, 419.843.2001, for Christopher Roper.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Franklin App. No. 07AP-959, 182 Ohio App.3d 152, 2009-Ohio-1708. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Brown, C.J., and Lanzinger, J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2451.pdf
(June 8, 2010) The Supreme Court of Ohio today ruled that the Industrial Commission of Ohio did not abuse its discretion in including wages from a second job to calculate an injured worker’s average and full weekly wages in determining temporary total disability compensation for an injury he sustained on the first job.
The case centers on an injury sustained by Christopher Roper while employed by FedEx Ground Package System, Inc., where he had worked part-time since 2004. Roper took a second job in April 2006 with Integrated Pest Control that paid considerably more.
On Oct. 24, 2006, Roper was injured at FedEx, and subsequently applied for workers’ compensation benefits. As a self-insured employer, FedEx set Roper’s average weekly wage at $160.45 and his full weekly wage at $250.80, based solely on his earnings at FedEx. Roper asked the Industrial Commission to reset his average and fully weekly wages based on his combined earnings from FedEx and Integrated Pest Control. A district hearing officer, citing the “special circumstances” provision of R.C. 4123.61, granted Roper’s motion and reset his AWW at $417.05, and FWW at $457.36, based on income from both jobs. That order was administratively affirmed.
FedEx filed a mandamus action in the 10th District Court of Appeals seeking reversal of the Industrial Commission’s award of increased benefits based on Roper’s earnings from Integrated Pest Control. The appeals court denied the mandamus complaint. FedEx exercised its right to appeal the 10th District’s decision to the Supreme Court.
In today’s 5-0 per curiam opinion, which affirmed the court of appeals judgment, the Supreme Court found FedEx’s arguments unpersuasive by noting that state law does not bar the inclusion of concurrent wages in the calculation of a worker’s disability benefits; relevant case law does not limit the inclusion of concurrent wages to jobs involving ‘similar’ employment; the inclusion of concurrent wages will not discourage employment; and the inclusion of concurrent wages is not inherently unfair.
The Court found that “our review supports these calculations” and noted that “we have consistently recognized and generally deferred to the commission’s expertise in areas falling under the agency’s jurisdiction.”
The Court’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Chief Justice Eric Brown and Judith Ann Lanzinger did not participate in the Court’s deliberations or decision in the case.
Contacts
John T. Landwehr, 419.241.6000, for FedEx.
Gerald H. Waterman, 614.466.6696, for the Industrial Commission.
Theodore A. Bowman, 419.843.2001, for Christopher Roper.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
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