Case Law Update (NOVEMBER 2011)
Guess my theory of Causation?
Improvise, Adapt and Overcome
Starkey v. Builders FirstSource Ohio Valley, LLC, Slip Opinion No. 2011-Ohio-1571.
Starkey injured his left hip and requested that his claim be allowed for “degenerative osteoarthritis of the left hip.” The condition was granted and the Employer appealed to the Common Pleas Court. Both experts agreed that “arthritis” was present in the hip prior to the accident, but the accident aggravated the condition. The Employer argued that the Claimant can only seek to participate in the workers’ compensation fund only for those conditions addressed in the administrative order and since “aggravation of degenerative osteoarthritis of the left hip” was not advanced administratively it could not be raised on appeal. The Court specifically held “…that a claimant is not required to advance a specific theory of causation at the administrative level if he or she wishes to use that theory in the trial court.”
This encourages Claimants to submit motions with the bare minimum amount of evidentiary support at the administrative level, knowing that they can have two bites at the same condition on appeal. The only way we can adapt to this is to make sure that our IME physicians are asked both a direct and proximate cause and substantial aggravation question so that, they are prepared for alternative theories at trial. This also makes it imperative that all documentation is gathered including SOAP notes, narrative reports and Leave of Absence paperwork which may be completed by the physician of record, so you can establish the presence of the condition and its etiology based upon these records. Hearing Officer Memorandum S11 already instructs hearing officers to address the origin of the condition under both theories of causation. Ultimately, while this seems to make a huge change, the effects of this case have already been absorbed in the normal course of defense.
Burden of Proof: Plaintiffs may allege/Defendants must prove
State ex rel. Cinergy Corp./Duke Energy v. Heber, Slip Opinion No. 2011-Ohio-5027.
Heber sustained an injury in 1970. Nineteen years later he retired from Cinergy and never returned to work. In 2008, Heber applied for permanent total disability compensation. The issue was raised at hearing and Heber alleged that he retired because of the injury. No finding was made in the order regarding the retirement. No evidence was submitted in support of the allegation.
While Defendant’s argued that Plaintiff must “submit medical evidence of his condition prepared at the time of the retirement. ” The Court disagreed finding that medical evidence is not the only way a claimant can establish that retirement was involuntary. Relying upon the fact that the IC is the “exclusive evaluator of the weight and credibility of the evidence presented,” the Court found that it has “substantial leeway to draw inferences.”
Recognizing the problem with the order, the Supreme Court affirmed the Court of Appeals ruling to vacate the order and have the case remanded back to the Industrial Commission to reconsider the matter and issue an amended order.
If you are going to use retirement as a defense, preserve the testimony and issue on appeal with a court reporter and the Defendant should have evidence which supports that the retirement was not related to the instant injury to combat allegations made by plaintiff.
Subrogation Statute of Limitations: Six Years
Ohio Bureau of Workers’ Comp. v. McKinley, Slip Opinion No. 2011-Ohio-4432.
McKinley was injured in 2003. He filed an action against his employer and a third party, tortfeasor. In 2004, he provided notice to the BWC and Ohio Attorney General that he was in settlement negotiations and he later settled for an undisclosed amount. Four years later, in 2008 the BWC filed suit in Columbiana Common Pleas Court requesting an order finding McKinley and the third party tortfeasor jointly and severally liable for failing to honor the BWC’s subrogation lien.
Claimant and the third party tortfeasor asked for dismissal based upon the fact that this action was brought more than two years after the date of injury. The BWC asserted that it had paid more than $460,00.00 in medical bills and compensation. The Supreme Court of Ohio ruled that because claims brought under O.R.C. 4123.931(G) have a six year statute of limitations as set forth in R.C. 2305.07, the suit was allowed to proceed.