Permanent total disability, remand, scope, mootness

After writ of mandamus issued to Industrial Commission to hold new hearing on whether permanent total disability claimant had abandoned workforce prior to becoming totally and permanently disabled and commission then found beneficiary able to work and denied compensation, court of appeals properly denied claimant's contempt motion against commission; court of appeals had previously vacated commission's entire original order, and once commission determined that claimant could perform sustained remunerative employment, voluntary abandonment issue became moot.

Temporary total disability, maximum medical improvement, new treatment, exacerbation,

Writ of mandamus is granted ordering Industrial Commission to hold a new hearing and issue an amended order where it had denied a new application for temporary total disability benefits because, after declaration of maximum medical improvement, new mode of treatment was discovered two years later, claimant exacerbated allowed conditions and commission failed to discuss the exacerbation; failure of commission to mention whether claimant raised the issue of exacerbation as a new and changed circumstance did not require assumption that he had not.

Voluntary abandonment, re-entry to workforce Temporary total disability,

In mandamus action by claimant to compel Industrial Commission to vacate its order denying him temporary total disability compensation, writ is denied since claimant voluntarily abandoned his employment where he injured his back on job, later voluntarily retired since his job was being phased out, was not forced out of job and did not re-enter the workforce in a position where his prior injury became the basis for a claim.

Appeal, employer, claimant's voluntary dismissal, public policy, R.C. 2305.19

In employer's appeal from staff order allowing temporary total disability compensation for additional conditions, permitting claimant's notice of voluntary dismissal without employer's consent, R.C. 4123.512(D), did not violate public policy or prejudice employer where R.C. 4123.512(H) required repayment of those benefits if employer prevailed; if claimant did not refile within one year, he would be precluded from proving entitlement to benefits, R.C. 2305.19, and employer's notice of appeal remained pending until the refiling.

Appeal, employer, claimant's voluntary dismissal, R.C. 4123.512(D), retroactivity

In employer's appeal from staff order allowing temporary total disability compensation for additional conditions, trial court denies motion to strike claimant's notice of voluntary dismissal, Civ.R. 41(A)(1)(a), where claim arose prior to amendment of R.C. 4123.512(D) that eliminated right to dismiss without employer's consent, statute was not expressly made retroactive, R.C. 1.48, but was expressly made prospective in operation, S.B. 7, Sec. 1, and general provision in S.B. 7, Sec. 3, that amendments applied to all claims filed after 1959, did not prevail over more specific S.B. 7, Sec. 1, providing that need for employer's consent was to apply prospectively only, R.C. 1.51.

Retaliatory discharge, workers' compensation, pre-Coolidge termination

In employee's workers' compensation common law and Coolidge retaliatory discharge action for being terminated after being awarded temporary total disability and being given permission for surgery, trial court did not err in instructing jury on common law claim that was not supported by public policy at the time; Coolidge could provide basis for common law wrongful discharge claim for employee terminated prior to release of decision where workers' compensation statutes embodying the public policy had been effective long before date of firing

Retaliatory discharge, workers' compensation, common law

In employee's workers' compensation common law and Coolidge retaliatory discharge action for being terminated shortly after being awarded temporary total disability and being given permission for surgery, jury verdict was proper for employee; Ohio recognizes common law claim because statutory claim itself is insufficient remedy and there is clear public policy against retaliation, statutory remedies are limited and there is no legislative intent that statutory remedies be exclusive.

Permanent total disability, some medical evidence, psychological condition, continuing jurisdiction

In employer's action for writ of mandamus to compel Industrial Commission to vacate its order granting claimant permanent total disability, writ is denied where the magistrate properly relied on one doctor's opinion that claimant suffered from “conversion disorder with anxiety symptoms” as some evidence that claimant was incapable of sustained remunerative employment, correctly relied on the Kroger decisions and noted that the employer failed to recognize that some flexibility is necessary when dealing with psychiatric conditions; magistrate also correctly denied employer's motion for the exercise of continuing jurisdiction since new conditions that claimant may suffer from are not relevant to the present finding of permanent total disability.

Temporary total disability, voluntary abandonment of employment, nunc pro tunc

Nunc pro tunc opinion for case 2007-Ohio-4515 to correct a clerical error; in claimant's action for mandamus to compel the Industrial Commission to vacate its order denying him temporary total disability benefits, writ is denied because claimant voluntarily abandoned his job by failing to appear for work for five days without notifying his supervisor since failure to appear for work without notification was a violation of a written policy of attendance and was basis for him to be terminated.

Temporary total disability, suitable alternate employment, light duty, night shift, good faith

In employer's mandamus action to compel Industrial Commission to vacate award of temporary total disability, writ was improperly denied; though claimant was undisputedly unable to return to regular duties, she refused light duty work within her medical restrictions because it required her to work evenings, and commission is ordered to decide the issue of good faith offer, Ohio Adm. Code 4121-3-32(A)(6).

Medication reimbursement, brand name, right to reimbursement, retroactive application

In action for writ of mandamus to compel the Industrial Commission to authorize claimant to receive brand name medications at no greater cost than generic equivalents, writ is denied where claimant did not have a right to reimbursement for brand name medications for her 1984 injury under the law in effect at that time, and Ohio Adm. Code 4123-6-21(I) that became effective in 2005, did not retroactively deprive her of a right that she previously enjoyed.

Temporary total disability, voluntary abandonment of employment

In mandamus action by employer to compel the Industrial Commission to vacate its award of temporary total disability to claimant on the basis that claimant voluntarily abandoned employment, writ is denied where claimant was terminated for allowing unauthorized person, his son, in store, store surveillance evidence was not provided at hearing, claimant stated that he did not think allowing his son in store was a violation and the employee handbook did not indicate that the violation was the basis for immediate termination but that progressive counseling and/or termination would be considered.

Temporary total disability, burden of proof, improperly changed, claimant doesn't have the burden of proof for a negative.

• In claimant's mandamus action to compel Industrial Commission to vacate its order denying her temporary total disability, writ is granted where commission improperly changed the burden of proof and required claimant to show that a disallowed arthritis condition did not cause her disability, in essence requiring her to disprove a negative, and required her to show a change in her medical status to continue her previously approved disability beyond a certain date.

Scheduled loss, fingers amputation, some evidence, magistrate improperly reweighing

In mandamus action to compel Industrial Commission to vacate scheduled-loss award, writ is denied where magistrate improperly reweighed evidence and substituted own judgment for that of commission in determining that bone loss was insufficiently at or near joint to warrant scheduled loss of use award, R.C. 4123.57(B); commission identified correct legal standard and, based on physician's evidence of partial bone loss, commission was entitled to order award.

Temporary total disability, maximum medical improvement, subsequent post-surgical exacerbation, reinstated

In claimant's mandamus action challenging Industrial Commission's denial of temporary total disability for allowed conditions of prurigo nodularis and lichenification and later for depressive disorder for which maximum medical improvement had been attained, court of appeals erred in denying writ; after a maximum medical improvement determination, reinstatement of temporary total disability is warranted for new and changed circumstances due to postsurgical exacerbation, and commission is ordered to determine whether claimant is entitled to any temporary total disability compensation arising out of exacerbation occurring after completion of laser skin treatment.

Temporary total disability, maximum medical improvement, new treatment, exacerbation,

Writ of mandamus is granted ordering Industrial Commission to hold a new hearing and issue an amended order where it had denied a new application for temporary total disability benefits because, after declaration of maximum medical improvement, new mode of treatment was discovered two years later, claimant exacerbated allowed conditions and commission failed to discuss the exacerbation; failure of commission to mention whether claimant raised the issue of exacerbation as a new and changed circumstance did not require assumption that he had not.

Appeal, voluntary dismissal, joint, failure to appeal, lack of jurisdiction

Where employer filed notice of appeal from the Industrial Commission for allowance of an additional claim, claimant filed a complaint in trial court, employer filed an answer and they both then filed a joint motion to dismiss without prejudice under Civ.R. 41(A), trial court lacked jurisdiction to rule on employer's later motion for judgment on the pleadings where employer failed to timely refile its notice of appeal under R.C. 2305.19 after the parties' joint notice of voluntary dismissal.

Appeal, voluntary dismissal, amended R.C. 4123.512(D), retroactivity

In workers' compensation appeal in which employer's motion to strike voluntary dismissal, Civ.R. 41(A)(1), was denied, though recent amendments to R.C. 4123.512(D) prohibited voluntary dismissal, amendments would not be retroactively applied to cause of action pending before their effective date; uncodified portion of Am.Sub.S.B. 7 expressly applied retroactively only to another section, expressly applied prospectively to all other sections, general, uncodified portion of Am.Sub.S.B. 545, expressly rendering certain sections retroactive to 1959, did not apply where specific Sec. 3 of Am.Sub.S.B. 7 contained express prospectivity clause, and Am.Sub.S.B. 545 applied only to occupational disease.

Subrogation, R.C. 4123.931, equal protection

In workers' compensation claimant's action to declare unconstitutional certain portion of workers' compensation subrogation statute, R.C. 4123.931, denial of partial summary judgment for claimant was proper since statute did not violate Ohio Const., Art. I, Sec. 2, equal protection, because claimants who went to trial were not deprived of options to pro rata subrogation formula that were provided to settling claimants; current version of R.C. 4123.931 abolished the distinction by providing both classes of claimants the opportunity to demonstrate duplicative portions of recovery, whether by settling parties who use an alternative, agreed on allocation or judicial factfinding or jury interrogatories at trial.

Subrogation, R.C. 4123.931, due course, takings   In workers' compensation claimant's action to declare unconstitutional certain portion of workers' compensation subrogation statute, R.C. 4123.931, denial of partial summary judgment for claimant was proper since statute did not violate Ohio Const., Art. I, Secs. 16 and 19, due course, right to remedy and takings clauses, by assuming that all workers' compensation benefits were duplicated in tort recovery regardless of whether double recovery occurred, allowing statutory subrogee's recovery of its subrogation interest from all uncompensated damages regardless of whether they matched benefits paid; statute provided three options to claimant, each with the opportunity for court hearing and subrogated only those expenses that subrogee had compensated for or will compensate in the future.

Retaliation, common law, R.C. 4123.90, exclusive remedy

Employee who was terminated from employment while receiving workers' compensation had no common law cause of action for wrongful discharge in violation of public policy since R.C. 4123.90 provided exclusive remedy for employees claiming termination in violation of rights conferred by Workers' Compensation Act; Coolidge did not create cause of action for at-will employee terminated for nonretaliatory reasons while receiving workers' compensation, legislatively created compromise of employer and employee interests reflected in workers' compensation system precluded common law claim and courts could not overrule legislature's choice of how to remedy situation where employee was absent for long period and employer needed replacement.

Course of employment, arising out of employment, physical therapy for claim

In workers' compensation appeal, there was a fact issue regarding whether neck injury nurse claimed occurred while receiving physical therapy from co-worker for prior work-related injury, was sustained in course of and arising out of employment so as to allow employer to benefit from workers' compensation immunity and co-employee to take advantage of fellow-employee immunity; though claimant was being paid at the time, was required to attend physical therapy provided by co-worker at part of her workers' compensation claim and sustained injury at her place of employment, those factors did not definitively establish her injury was related to her employment and was sustained in course of employment. 

Death award, fall, seizure as idiopathic cause

In employer's workers' compensation appeal of award of death claim, arising from fall through roof at high school construction project, judgment for worker's estate was not against manifest weight of evidence; claimant had head trauma, coroner was only given two options in police report, i.e., that claimant had walked off roof or fallen from standing position and chose latter, when informed that claimant could have fallen through hole in roof, coroner changed opinion to this cause, opining that claimant struck his head on roof while falling through hole and other idiopathic cause, i.e., a seizure, as testified to by employer's experts, was eliminated where claimant was in excellent health with no history of seizures, his organs were in excellent shape and were donated and employer's experts could not say with a reasonable degree of medical certainty that seizure had caused the fall.

Permanent total disability, sustained remunerative work, vocational report, voluntary retirement

In worker's mandamus action to compel Industrial Commission to vacate its order denying him permanent total disability, writ is denied where no objections were filed to magistrate's report, vocational professional determined that worker was capable of some sustained remunerative employment and listed 20 possible jobs, the commission conducted its own analysis and reached a similar conclusion and commission also found that worker's retirement was voluntary rather than related to his allowed condition.

Temporary total disability, employer's administrative appeal, substantial compliance, R.C. 4123.511(F)

In claimant's appeal of court of appeals' grant of a writ in employer's mandamus action to compel hearing of award of temporary total disability compensation, appeal is denied because employer's notice of appeal substantially complied with R.C. 4123.511(F), though it mistakenly referred to Industrial Commission order that had been vacated and readopted two days later, since it would be illogical to appeal a vacated order, contents of vacated order were incorporated fully into subsequent order and reference to either order would put claimant on notice that claim was contested.

Scheduled loss, eye, loss of lens, legal blindness, some evidence

In employer's mandamus action to compel vacation of scheduled loss of eye award for total loss of vision in claimant's left eye, court of appeals properly denied writ since Industrial Commission did not abuse its discretion because the opinions of two physicians that claimant was legally blind, i.e., 20/200 with correction, R.C. 3304.28(B)(1), arising out of the loss of a lens, R.C. 4123.57(B), constituted some evidence in support of award.

Subrogation, R.C. 4123.93, R.C. 4123.931, constitutionality

In employee's action for employer intentional tort in which employer counterclaimed for workers' compensation subrogation concerning employee's products liability claims against machinery manufacturers, on certified questions from federal district court, R.C. 4123.93 and 4123.931 are held not to violate takings clause, Ohio Const., Art. I, Sec. 19, due process and remedies clauses, Ohio Const., Art. I, Sec. 16, or equal protection clause, Ohio Const., Art. I, Sec. 2, and are facially constitutional.

State ex rel. Airborne Freight Corp. v. Indus. Comm., 117 Ohio St.3d 369, 2008-Ohio-1116

Temporary total disability, maximum medical improvement, order, some evidence

In allowance of temporary total disability compensation, Industrial Commission did not rely totally on conditions that had reached maximum medical improvement; some evidence supported commission's decision where commission found in its order that only 'lumbar disc' condition had reached maximum medical improvement, and commission's award was based on physician's C–84s, that attributed claimant's temporary total disability to three conditions, L4–5 disc protrusion, right foraminal stenosis L4–5, and degenerative disc disease L4–S1, all of which were allowed conditions.

Temporary total disability, employer's administrative appeal, substantial compliance, R.C. 4123.511(F)

In claimant's appeal of court of appeals' grant of a writ in employer's mandamus action to compel hearing of award of temporary total disability compensation, appeal is denied because employer's notice of appeal substantially complied with R.C. 4123.511(F), though it mistakenly referred to Industrial Commission order that had been vacated and readopted two days later, since it would be illogical to appeal a vacated order, contents of vacated order were incorporated fully into subsequent order and reference to either order would put claimant on notice that claim was contested.

Wage-replacement program, taxes offset, mandamus

In mandamus action by self-insured employer, writ was properly granted in wage-replacement program case to effect offset for taxes withheld, R.C. 4123.56(A), where employer paid claimant the difference between temporary total disability benefits owed and wages replaced, including taxes withheld; petition sought to compel positive action, R.C. 4123.56(A) provides for offset only on Industrial Commission's order and that relief was refused, declaratory judgment would provide insufficient relief, prohibitory injunction would be useless and thus mandamus was only adequate remedy and writ was properly granted.

Voluntary abandonment, inefficiency of manager, theft

Discharged employee was entitled to writ of mandamus compelling vacation of order that he voluntarily abandoned employment and was not entitled to temporary total disability compensation since inefficiency of employee was mischaracterized as dishonesty; it was never explained how inconsistencies in customer invoices proved theft, termination letter did not mention theft, but "gross" incompetence, and 'honesty' was not defined in employee handbook and was a vague term that did not support voluntary abandonment.

Appeal, voluntary dismissal, former R.C. 4123.512(D)

In workers' compensation appeal, striking of claimant's Civ.R. 41(A)(1) voluntary dismissal was error since action accrued prior to effective date of amended R.C. 4123.512(D) that applied prospectively only.

Average weekly wage, special circumstances, substantial justice

Industrial Commission properly considered special circumstances requiring alternative calculation of average weekly wage to effect substantial justice for claimant whose industrial injury prevented her return to work as a radiology technician, R.C. 4123.61; prior to her injury, claimant was not working because she was in school or was working part time, her injury followed closely to her entry into full-time workforce after she completed her education, she had been employed as a radiology technician only eight weeks prior to injury and, though Bureau of Workers' Compensation used her wages during that time, it incorrectly used full year's previous wages that included her lower-paying part-time employment in a field unrelated to her current profession, which had a higher rate of pay for her specialized education, with enhanced income and career potential.

Occupational disease, last-injurious-exposure rule, successor self-insured employer

In successor employer's mandamus action challenging asbestosis occupational disease award, court of appeals erred in granting writ since Industrial Commission properly assigned award to successor as amenable self-insured employer under last-injurious-exposure rule, rather than to state fund, even though predecessor employer was an insured under the state fund during part of claimant's employment, and despite successor's claim that commission should have deducted the average latency period from the year of diagnosis and assigned liability to the employer who corresponded to that year; Supreme Court of Ohio declines to adopt the effective first-injurious-exposure rule.

Temporary total disability, voluntary abandonment, mandamus

In mandamus action by employer to compel Industrial Commission to vacate its award of temporary total disability to claimant, writ is denied where commission did not abuse its discretion in awarding compensation based on forms C-84 and claimant's testimony that his work-related injury was the reason that he never returned to work; physician stated in both forms that claimant, at that time, was not a vocational rehabilitation candidate due to severity of back condition, case law does not require objective, corroborating evidence of motivation for abandonment of employment, employer bore burden of proof of voluntary abandonment and physicians' reports indicated claimant reported severe, constant back pain since date of injury.

Temporary total disability, depressive disorder

In employer's mandamus action to vacate temporary total disability award, arising from subsequent depressive disorder after maximal medical improvement of allowed back injury had been attained, writ was properly denied since physician's report attributing psychological condition to industrial accident was sufficient evidence, despite physician's earlier labeling of condition as post-traumatic stress disorder and major depression; physician was not precluded from re-evaluating his position in light of new evidence, and employer's argument would require physician's attribution of every request for compensation or treatment to post-traumatic stress disorder or major depression, thereby invalidating every request because those conditions were not allowed in the claim.

Permanent total disability, termination, remunerative employment, Lawson construed - Operating a lawn care business while on PTD

In workers' compensation claimant's mandamus action seeking vacation of Industrial Commission's termination of permanent total disability benefits due to claimant's engagement in sustained remunerative employment as sole proprietor and operator who cut a few dozen lawns, court of appeals grant of writ was an abuse of discretion, Lawson construed; claimant's activities, in connection with a business enterprise he hoped to nurture and expand, were appropriate for commission's consideration, and commission provided a lengthy, well-reasoned decision that supports its conclusion that claimant was engaged in sustained remunerative work and committed fraud.