2011 Annual Convention Workers’ Compensation Update

Workers’ Compensation Committee

3.0 General CLE Hours

May 4-6, 2011 ♦ Columbus

CONTRIBUTORS Kevin R. Abrams Industrial Commission of Ohio Columbus, Ohio

Mr. Abrams received his B.A. from Amherst College and his J.D. from The Ohio State University Michael E. Moritz College of Law. Mr. Abrams brings a wealth of workers’ compensation experience to his role as Industrial Commissioner, including service as a staff attorney and Assistant Law Director for the Ohio Bureau of Workers’ Compensation, where he provided legal advice to the bureau in virtually all areas of workers’ compensation, but primarily in oversight of administrative and court settlement of BWC claims, self-insurance legal issues, bankruptcy and collection matters, and special projects involving claims issues. He has extensive experience with self-insuring employers, which will serve him well as Chair of the Self-Insuring Employers Evaluation Board, which is included in his responsibilities as the public member of the Industrial Commission. Mr. Abrams also served as Chair of the Self-Insured Review Panel, liaison to the Attorney General and Special Counsel for court cases, and as a frequent contact with the Industrial Commission regarding interagency issues. He addressed complicated claims issues in various areas, such as permanent total disability, disable Disabled Workers’ Relief Fund, and violations of specific safety requirements. In addition to his public service, Mr. Abrams was also in private practice, focusing on workers’ compensation matters. He is also a frequent presenter on workers’ compensation issues. For additional information, please visit www.ohioic.com.

Joanne W. Glass OSBA Certified Specialist in Workers’ Compensation Law Frost Brown Todd LLC Cincinnati, Ohio

Ms. Glass received her B.A. from Xavier University and her J.D. from Northern Kentucky University Salmon P. Chase College of Law. Her professional memberships include the Cincinnati Bar Association (Chair, Workers’ Compensation Committee; Labor and Employment Section; Community Service Committee), Kentucky Bar Association (Workers’ Compensation and Labor Section), Northern Kentucky Bar Association (Workers’ Compensation Committee), Southwest Ohio Self-Insured Association, and Ohio State Bar Association (Workers’ Compensation Committee; Labor and Employment Section). Ms. Glass is a member of her firm and practices in the areas of labor and employment and workers’ compensation, with a concentration in workers’ compensation defense. She is an OSBA Board Certified Specialist in Workers’ Compensation Law. Ms. Glass represents employers in all phases of workers’ compensation matters, including administrative hearings and judicial matters before various levels of Ohio courts. She counsels employers regarding the administration and defense of workers’ compensation claims, claims management and cost containment, accident investigation and reporting, violation of specific safety requirement claims, premium and group ratings, attaining and maintaining self-insured status, subrogation, workers’ compensation retaliation, and other related matters. Ms. Glass also defends employers in post-administrative litigation in common pleas courts throughout Ohio. She is also admitted to practice in Kentucky and has counseled Kentucky employers in the administration and defense of workers’ compensation claims and has represented employers at various administrative proceedings in Kentucky. Ms. Glass has authored a number of recent BUSINESS COURIER articles and frequently participates as a speaker in seminars for various professional groups. For additional information, please visit www.frostbrown todd.com.

Michael J. Pikosz Industrial Commission of Ohio Columbus, Ohio

Mr. Pikosz received his B.A. from Indiana University, Bloomington, and his J.D. from The Ohio State University Michael E. Moritz College of Law. He is a District Hearing Officer in the Columbus Region of the Industrial Commission of Ohio and has been with the Commission since 1997. Mr. Pikosz has been a District Hearing Officer since 1999.

Noel C. Shepard Frost Brown Todd LLC Columbus, Ohio

Ms. Shepard received her B.A. from Mount Union College and her J.D. from Capital University Law School. Her professional memberships include the Columbus Bar Association (Workers’ Compensation Committee), Ohio State Bar Association (Workers’ Compensation Committee), Ohio Chamber of Commerce (Workers’ Compensation Committee), Central Ohio Self-Insured Association, and the Builders Exchange (Safety Committee). Ms. Shepard represents a wide variety of companies in employment-related defense litigation and consulting services. Her practice focuses on defending employers of all sizes in every aspect of workers’ compensation from injury prevention to settlement. Ms. Shepard offers her clients advice regarding policy writing, accident prevention and investigation, cost containment, and defense strategy. She defends her clients against workers’ compensation claims before the Industrial Commission of Ohio, as well as in common pleas courts throughout Ohio. Ms. Shepard also has experience in more specialized areas of workers’ compensation law, including violation of specific safety requirements, handicap reimbursement hearings, and in rating matters before the Adjudicating Committee of the Bureau of Workers’ Compensation. For additional information, please visit www.frostbrowntodd.com.

Jodie M. Taylor OSBA Certified Specialist in Workers’ Compensation Law Industrial Commission of Ohio Columbus, Ohio

Ms. Taylor earned her undergraduate degree from Miami University and her juris doctorate from The University of Akron School of Law. She is a member of the Ohio State Bar Association. Ms. Taylor was appointed Chair of the Industrial Commission of Ohio in January 2011 by Governor John Kasich. She was appointed as the employer member of the Commission in July 2009. Ms. Taylor began first served as an assistant to an Industrial Commission Commissioner from 1997-2000. During this time, she performed legal and legislative research, assisted during hearings, and gianed an extensive understanding of the agency. Ms. Taylor left the Industrial Commission and served as an attorney for two Columbus law firms, where she represented state-fund and self-insured employers at all levels of Industrial Commission hearings and in court actions throughout Ohio. Ms. Taylor is an OSBA Board Certified Specialist in Workers’ Compensation Law. For additional information, please visit www.ohioic.com.

Thomas C. Tootle Law Offices of Thomas Tootle Co., LPA Columbus, Ohio

Mr. Tootle received his B.A. from The Ohio State University and his J.D. from The University of Akron School of Law. He is a sole practitioner and has been an attorney for over 18 years. Mr. Tootle focuses his practice on representing injured workers in workers’ compensation cases. His experience includes jury trials, over 50 actions before the Supreme Court of Ohio, over 150 actions before the Tenth District Court of Appeals, and weekly appearance on BWC matters before the Industrial Commission of Ohio. For additional information, please visit www.ohiobwclaw.com.

Workers’ Compensation Update Session # 706

Chapter 1 Litigation Techniques for the Difficult Workers’ Compensation Case Thomas C. Tootle Nature of Relief: Ohio Rev. Code § 4123.512 versus Mandamus ................................................... 1.1 Right to Participate (Ohio Rev. Code § 4123.512) ........................................................................... 1.2 Extent of Disability (Mandamus)...................................................................................................... 1.2 Preparation of the Case ..................................................................................................................... 1.3 Discovery ............................................................................................................................................ 1.5 Settlement Strategy—Formulating a Demand ................................................................................ 1.9 Social Security and Medicare Set-Asides ....................................................................................... 1.10 Trial Techniques .............................................................................................................................. 1.11 Exhibits ............................................................................................................................................. 1.15 Exhibits A and B ................................................................................................................. 1.17 Notice of Appeal—Workers’ Compensation ......................................................... 1.17 Petition—Workers’ Compensation—Jury Demand ............................................. 1.19 Exhibit C: Complaint in Mandamus—Oral Argument Requested .................................. 1.23 Exhibit D: Plaintiff’s First Set of Interrogatories Directed to Defendant ....................... 1.27 Exhibit E: Discovery Deposition Letter ............................................................................. 1.33 Exhibit F: Joint Stipulated Record .................................................................................... 1.35 Exhibit G: Proposed Settlement Letter ............................................................................. 1.39 Exhibit H: Present Value Factors Chart ........................................................................... 1.41 Exhibit I: Medicare Secondary Payer Statute .................................................................. 1.43 Exhibit J: Jury Selection .................................................................................................... 1.45 Chapter 2 Interplay Between Workers’ Compensation, FMLA, and ADA Joanne W. Glass Interplay Between Workers’ Compensation, FMLA, and ADA—PowerPoint Presentation ........ 2.1 Chapter 3 Industrial Commission Hearing Room Do’s and Don’ts or What Hearing Officers Like, and What They Like Even More Michael J. Pikosz Before the Hearing ............................................................................................................................. 3.1 During the Hearing ............................................................................................................................ 3.2 After the Hearing ............................................................................................................................... 3.3 Attachments ....................................................................................................................................... 3.5 Memo R2: Commission Hearings—Court Reporters .......................................................... 3.7 Memo R10: Hearing Representative Schedule Conflicts ................................................... 3.8 Chapter 4 Industrial Commission Updates Jodie M. Taylor Introduction ........................................................................................................................................ 4.1 Interpreter Language Line ................................................................................................................ 4.1 Video Hearings ................................................................................................................................... 4.1

Five-Year Rule ....................................................................................................................................4.2 HEARING OFFICER MANUAL Policies...................................................................................................4.2 Rep Identification Cards ....................................................................................................................4.3 MEDICAL EXAMINER MANUAL Changes for PTD Issues ....................................................................4.3 Commission Orders on Website .........................................................................................................4.3 Attachments ........................................................................................................................................4.5 Industrial Commission Online Network Representative Login .........................................4.7 News Release: Video Hearings Discontinued at Industrial Commission of Ohio .............4.9 Industrial Commission Rule 4121-4-01 Definitions ..........................................................4.11 Industrial Commission Rule 4121-4-02 Procedures for Accessing Confidential Personal Information .............................................................................................4.12 Industrial Commission Rule 4121-4-03 Valid Reasons for Accessing Confidential Personal Information .............................................................................................4.14 Industrial Commission Rule 4121-4-04 Confidentiality Statutes ....................................4.16 Industrial Commission Rule 4121-4-05 Restricting and Logging Access to Confidential Personal Information in Computerized Personal Information Systems ..............................................................................................4.17 Industrial Commission Rule 4121-3-12 Suspension of the Processing of Claims ...........4.19 Industrial Commission Rule 4121-3-31 Waiver for Recreational Activities ...................4.20 Maximum Medical Improvement Questions .....................................................................4.21 Memo E7: Processing Applications for Compensation Pursuant to Ohio Rev. Code § 4123.57(A) When Allowance Question Is in Court ..................................4.23 Memo I5: Processing Compensation and Medical Benefits Issues in Claims When an Original Allowance or Additional Allowance Issue Is in Court ..........4.24 Memo K1: Allowance—Dismissal Order versus Merits ....................................................4.25 Chapter 4a Industrial Commission Self-Insuring Employers Evaluation Board Update Kevin R. Abrams Industrial Commission .....................................................................................................................4a.1 Self-Insuring Employers Evaluation Board ...................................................................................4a.3

1 Litigation Techniques for the Difficult Workers’ Compensation Case (Or Things I Wish I Had Known When I Graduated from Law School) Thomas C. Tootle Law Offices of Thomas Tootle Co., LPA Columbus, Ohio

1 Litigation Techniques for the Difficult Workers’ Compensation Case (Or Things I Wish I Had Known When I Graduated from Law School) Thomas C. Tootle Law Offices of Thomas Tootle Co., LPA Columbus, Ohio

NATURE OF RELIEF: OHIO REV. CODE § 4123.512 VERSUS MANDAMUS Ohio Rev. Code § 4123.512 provides the only “appeal” from an adverse decision of the Industrial Commission of Ohio. This section provides for a de novo proceeding before a court of common pleas. Mandamus is an extraordinary remedy. It is “a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Ohio Rev. Code § 2731.01. Because it is an equitable remedy, it is not available if there is an adequate remedy at law (i.e., an action pursuant to Ohio Rev. Code § 4123.512). The standard of review for an appeal pursuant to Ohio Rev. Code § 4123.512 is a mere preponderance of the evidence. In a mandamus action, a litigant must demonstrate a lack of “some evidence” to support the Commission’s decision. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St. 3d. This is a very high standard. This is not the venue to reargue your case. You must show that there is either no evidence to support the IC order or that the IC abused its discretion by failing to follow its own practice or procedure. Only certain issues may be appealable pursuant to Ohio Rev. Code § 4123.512: (A) The claimant or the employer may appeal an order of the industrial commission made under division (E) of section 4123.511 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability to the court of common pleas of the county in which the injury was inflicted or in which the Litigation Techniques • 1.1

contract of employment was made if the injury occurred outside the state, or in which the contract of employment was made if the exposure occurred outside the state. If no common pleas court has jurisdiction for the purposes of an appeal by the use of the jurisdictional requirements described in this division, the appellant may use the venue provisions in the Rules of Civil Procedure to vest jurisdiction in a court. If the claim is for an occupational disease, the appeal shall be to the court of common pleas of the county in which the exposure which caused the disease occurred. Like appeal may be taken from an order of a staff hearing officer made under division (D) of section 4123.511 of the Revised Code from which the commission has refused to hear an appeal. The appellant shall file the notice of appeal with a court of common pleas within sixty days after the date of the receipt of the order appealed from or the date of receipt of the order of the commission refusing to hear an appeal of a staff hearing officer’s decision under division (D) of section 4123.511 of the Revised Code. The filing of the notice of the appeal with the court is the only act required to perfect the appeal.

RIGHT TO PARTICIPATE (OHIO REV. CODE § 4123.512) The right to participate means that a decision either grants or denies a right to benefits for an injury, occupational disease, or death. Zavatsky v. Stringer (1978), 56 Ohio St. 2d 386; Afrates v. Lorain (1992), 63 Ohio St. 3d 22. Includes: A.

Decisions to allow or disallow claim;

B.

Decisions to grant or deny additional conditions (diagnoses) to claim; and

C.

Decisions that terminate the right to participate or terminate the claim. An intervening injury that severs the claim. Flora v. Cincinnati Milacron, Inc. (Clermont, 1993), 88 Ohio App. 3d 306.

EXTENT OF DISABILITY (MANDAMUS) What is an extent of disability issue (pretty much everything else)? A.

B.

Decisions to grant or deny compensation; 1.

TT;

2.

Wage loss;

3.

PPD; or

4.

PTD;

Decisions to suspend (or not suspend) a claim;

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C.

VSSR decisions;

D.

Overpayment/fraud issues;

E.

Medical treatment; and

F.

AWW/FWW.

PREPARATION OF THE CASE A.

Why appeal? 1.

2.

Ohio Rev. Code § 4123.512. a.

To gain (or overturn) an allowance or additional allowance; or

b.

To settle.

Rule of thumb: the only good reason to file a § 4123.512 action is to settle. a.

Your case will spend at least one year at common pleas.

b.

It will spend at least six months (or longer) at the appellate level.

c.

You will spend at least six months (or longer) awaiting a decision from the Supreme Court as to whether it will assert jurisdiction.

d.

If (and when) you do win, then what have you won? The right to participate. You must still prevail before the IC.

e.

Costs.

f.

i.

Expert witness: $500-$1000 (for your expert).

ii.

Stenographer: $200-$300 (apiece).

iii.

Videographer: $200-$300 (for your expert).

iv.

Your expert witness and videographer fees are recoverable only if you win. Cave v. Conrad (2002), 94 Ohio St. 3d 299. However, your stenographic costs are recoverable even if you lose. Akers v. ServA-Portion, Inc. (1987), 31 Ohio St. 3d 78; Reed v. MTD Prods., Inc. (Huron, 1996), 111 Ohio App. 3d 451.

There is always one winner and one loser in a case that goes to trial. Litigation Techniques • 1.3

3.

Rule of thumb: know whether your case will go to trial before you file in common pleas. Some cases are not likely to settle. These include:

4.

a.

Cases where the injured worker remains employed by the defendant;

b.

Increasingly, cases where the injured worker is on Social Security disability;

c.

Employer versus independent contractor issues; and

d.

Cases with “difficult” clients.

Rule of thumb: so long as it is your time, your energy, and your money, the difficult client will always want to push his or her case as far as it will go. Mandamus.

5. B.

a.

To correct an obvious mistake of law.

b.

To settle.

Rule of thumb: a mandamus action is not an appeal hearing. Do not reargue the evidence. You will lose.

Filing your action. 1.

Ohio Rev. Code § 4123.512. Initiated by filing a notice of appeal in the county where the injury occurred. You must file the notice within 60 days of receipt of the adverse IC order and contain the following: a.

Name of claimant;

b.

Name of employer;

c.

Claim number; and

d.

Date of the order appealed from.

See Exhibit A. 2.

Rule of thumb: file your petition with the notice of appeal. See Exhibit B.

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3.

Rule of thumb: if you are pressed for time, then file with your local court of common pleas. Ohio Rev. Code § 4123.512(A): “If an action has been commenced in a court of a county other than a court of a county having jurisdiction over the action, the court, upon notice by any party or upon its own motion, shall transfer the action to a court of a county having jurisdiction….” See also Mays v. Kroger Co. (Butler, 1998), 129 Ohio App. 3d 159.

4.

Rule of thumb: if it is the employer’s appeal, then don’t ask for a jury. Mandamus. Venue lies where a public office maintains its principal office. Civ. R. 3(B)(4). Both the IC and BWC maintain their principal offices in Columbus. Therefore, venue is proper only in Franklin County. A mandamus action may be initially filed at the common pleas, appellate or Supreme Court level. Most attorneys initially file in the Franklin County Court of Appeals, as this will provide for an appeal as of right to the Supreme Court of Ohio. See Exhibit C.

DISCOVERY A.

Ohio Rev. Code § 4123.512. See Exhibit D.

B.

Rule of thumb: the failure to adequately respond to discovery will cause more stress than the actual trial itself. Disclose everything! 1.

Interrogatories. Every attorney and/or law firm has his, her, or their own standard set of interrogatories. Although these are unique to each attorney and/or firm, they are all the same. They all include—to some degree or another—the following questions. a.

List by name and full address all medical doctors, osteopathic physicians, chiropractors, or other health providers who have treated or examined you for the injury(ies) or conditions that form the basis for your complaint. Litigation Techniques • 1.5

Answer. This is the most important question in the entire set of interrogatories. Spend some time on your answer. Pull up Dolphin on your computer. Look at the medical records. List the name and address of every doctor you find in the file! But, begin your list with the following disclaimer: The information sought in this interrogatory may be ascertained from the business records of the defendant, identified in Bureau of Workers’ Compensation claim file number [claim number], which contains records of care and treatment of the occupational disease which is at issue in this claim. Pursuant to Civ. R. 33(c), plaintiff will afford defendant reasonable opportunity to examine, audit, or inspect these business records (also available by accessing http://www.ohiobwc.com), and to make copies of the records or compilations, abstracts, or summaries from the records. But see also:…

b.

State the identity by way of full name, occupation, and address of each person whom you expect to call as an expert witness at trial and state the subject matter on which the expert is expected to testify. Answer. See response to interrogatory number one. “These witnesses will testify regarding the nature and extent of plaintiff’s industrial injury and will establish a proximate and causal relationship between plaintiff’s [insert diagnosis here] and the injury that he or she sustained in the course and scope of her or his employment on [DOI].”

c.

State the identity by way of full name, occupation, and address of each person whom you expect to call as a non-expert witness at the trial and state the subject matter on which each witness is expected to testify. Answer. [List the name and addresses of the injured worker and any eye-witnesses to the accident.]

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These witnesses will testify regarding the nature and extent of plaintiff’s industrial injury and or occupational duties. Plaintiff will also call as witnesses any records custodian necessary to authenticate medical records. Plaintiff reserves the right any of the defendant’s witnesses or to supplement this list prior to trial. d.

Please list and describe all documents and objects that you will introduce into evidence at the trial of this case. Answer. Plaintiff will introduce: i.

Any medical record detailing the care and treatment plaintiff has received as a consequence of the industrial injury that is at issue in the case and/or received for complaints of [back] pain.;

ii.

Any incident/accident report generated that describes the circumstances of plaintiff’s industrial injury; and

iii.

Any document or evidence contained in BWC claim file number [claim #].

iv.

Plaintiff reserves the right to supplement this list prior to trial.

These responses will eliminate about 90 percent of your headaches in both responding to discovery and in dealing with pretrial shenanigans. A few other pointers: a.

When asked, run your client’s Social Security number through Dolphin and disclose any and all other workers’ compensation claims. Injured workers are notoriously “forgetful” about preexisting claims to the same part of the body. Don’t learn about this for the first time when they are testifying before a jury.

b.

The following response can be used in response to about 90 percent of requests for production. The information sought in this interrogatory may be ascertained from the business records of the defendant, identified in Bureau of Workers’ Compensation claim file number [claim Litigation Techniques • 1.7

number], which contains records of care and treatment of the occupational disease which is at issue in this claim. Pursuant to Civ. R. 33(c), plaintiff will afford defendant reasonable opportunity to examine, audit, or inspect these business records (also available by accessing http://www.ohiobwc.com), and to make copies of the records or compilations, abstracts, or summaries from the records.

2.

c.

When asked for a work history, simply reference a resume—if available.

d.

Be very literal. If they don’t ask for it, then don’t provide it.

Depositions. a.

b.

These are very stressful for your client. I will send my clients a standard letter (see Exhibit E) and, if possible, a copy of their interrogatory responses. I will give my clients two pieces of advice: i.

If you are not sure, then be sure to say so. Don’t guess. Nevertheless, don’t be clever. Don’t “forget” your date of birth; and

ii.

Do not volunteer information. Everything you say can and will be used against you. Do not answer any question that wasn’t asked.

Rule of thumb: you can repeat this advice to your clients 10 times, but they will all ignore it after two questions. About the only “useful” thing that you can do during a deposition is to place documents (i.e., interrogatory responses, incident reports, claim applications, medical records, etc.) in front of your clients to “refresh” their recollection. Don’t wait for them to ask for it—just do it. Mandamus. The only “discovery” in a mandamus action is the preparation of the stipulated record. This will include the record of the administrative proceeding. You should typically include: i.

All administrative orders and motions applications that lead to those orders;

ii.

All relevant evidence; and

iii.

A copy of the claim application (to give the court an idea of the underlying injury).

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or

c.

Rule of thumb: careful preparation of your stipulated record is often times more important than careful preparation of your merit brief. Remember, if you are the relator (the party who brought the action), then you know what issue you intend to argue—your opponent does not. Although it is possible to supplement the stipulated record, most attorneys skip this step. Don’t engage in overkill. You know what is important. Don’t hide the important stuff amongst a pile of irrelevant data. Keep it simple. See Exhibit F.

SETTLEMENT STRATEGY—FORMULATING A DEMAND I typically like to send a demand no later than two to three months before the scheduled trial date. I have attached a sample demand marked as Exhibit G. When writing up a demand, it is important to remember your audience. It is not your opposing counsel. It is the defendant-employer (or BWC settlement coordinator in an out of experience claim). My demands typically consist of the following: A.

An introduction to the case. A reminder of the upcoming trial and the currently allowed conditions.

B.

A brief outline of the strengths of your case. Try to avoid getting too argumentative. You don’t want the defendant to dig his or her heels into the dirt.

C.

Outline the potential exposure to the defendant. This will include: 1.

A calculation of present or future TT obligations. If the injured worker is currently on TT, you can reasonably argue that he or she will continue to receive this for at least six months (or longer) depending upon the circumstances. I do not reduce this to present value. In some circumstances, you may need to come up with a ballpark estimate of the AWW.

2.

A calculation of possible wage loss exposure. Multiply the AWW by 200. State that “it is unlikely that [injured worker] will return to the previous position of employment and will suffer a wage loss as a result. This exposure could be equal to anywhere from zero to [AWW x 200 weeks].” This will usually yield an impressive figure. Litigation Techniques • 1.9

D.

3.

A generous estimate of PPD.

4.

A statement and estimate of existing and future medical expenses.

5.

If appropriate an estimate of future PTD exposure (reduced to present value).

BWC present value chart. See Exhibit H.

SOCIAL SECURITY AND MEDICARE SET-ASIDES A.

Social Security disability. The receipt of a lump-sum workers’ compensation settlement can affect an injured worker who is receiving Social Security disability. It does not affect an injured worker who is receiving Social Security retirement. If the injured worker is under 65 (or 62 if the injured worker elects to take early retirement), then you must include the following provision to protect your client: The parties agree that this lump sum settlement in the amount of $_____ minus the amount specified in the attached addendum as relating solely to medical costs, is to be paid by the BWC as a compromise of the Claimant’s claim for past and future period benefits for temporary or permanent disability to which the Claimant might otherwise have been entitled. Claimant represents and relies upon the Life Tables of the Vital Statistics of the United States of the United States which provide that the Claimant has a life expectancy of ______months. Based on this life expectancy, the Claimant represents that the pro-rated settlement amount represents $____ per month. This amount is calculated prior to the deduction for attorney fees, expenses or any amount owing pursuant to Ohio Rev. Code § 3121.03. Also, as set forth above, the injured worker understands that any settlement amounts allocated for future medical services must be used for medical services before Medicare will consider payment for services for the conditions of the workers compensation claim.

Notwithstanding this provision and depending upon the size of the settlement, your client still may see a reduction in his or her Social Security disability benefit. The reduction, however, will be calculated based upon the prorated per month amount identified in this provision (and not based upon the assumption that the full settlement amount was received as one lump sum). 1.10 • Workers' Compensation Update

B.

Medicare. 1.

See “cheat sheet,” Exhibit I.

2.

Questions to ask: a.

Is the injured worker receiving SSD benefits at the time of settlement? (Medicare will begin no later than 24 months after commencement of SSD.)

b.

Has injured worker applied for SSD?

c.

Has the injured worker been denied SSD but anticipates appealing that decision?

d.

Is the injured worker in the process of appealing and/or refiling for SSD?

e.

Is the injured worker 62½ years old or greater at time of settlement?

If yes, then you need to account for Medicare’s interest. The following is a provision that you can include in your settlement agreement (only so long as it is not necessary to obtain prior CMS approval). It is hereby agreed to and stipulated by the parties that they have entered into a settlement agreement dated __________ in the amount of $____________. This overall settlement agreement negotiated between the parties represents past prescription drug costs in the amount of $________, future prescription drug costs in the amount of $_________, past medical costs in the amount of ___________ , future medical costs in the amount of $___________, and indemnity payments in the amount of $_____________.

3.

Rule of thumb: distribute two checks to your Medicare clients: one for the set-aside amount and one for the remainder.

4.

Rule of thumb: the MSA is only a concern if your client anticipates future medical expenses arising from the work-related injury.

TRIAL TECHNIQUES A.

Exhibits. Always stipulate to and prepare a packet of exhibits in advance of trial with your opposing counsel. Ask the court to permit you to distribute these to the jurors in advance. Have one packet of exhibits for every juror. Make sure that you are the one who hands these to each and every juror. Let them know that you are giving them this information. Litigation Techniques • 1.11

B.

Jury selection/voir dire. 1.

Disabuse yourself of the notion that you are going to identify any jurors who are biased either for or against you. There are, however, a few exceptions. a.

b.

C.

D.

Exclude: i.

“Company” people, i.e., managers, supervisors, or people in management who address workers’ compensation claims; and

ii.

Insurance company employees (or people who deal with claims).

Include: i.

Victims of work-related injuries (or their relatives); and

ii.

People who have suffered the same or similar type of injury as your client.

2.

Use voir dire to indoctrinate the jury about the issues of your case.

3.

See Exhibit J.

Opening statement. 1.

Tell the jury what evidence you will introduce—summarize your case.

2.

Don’t read it! This isn’t rocket science. We do this every day without notes.

3.

Educate the jury about the medical condition that is at issue.

Direct exam. 1.

Of your client. a.

This is no different than what we do every day during an allowance hearing.

b.

Emphasize a point by establishing eye contact with the jury while asking a particular question.

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2.

E.

F.

Of your expert. a.

Use it to establish the textbook signs and symptoms for your injury. Show that your client demonstrated those textbook signs and symptoms.

b.

This is dull! Keep it short. Anything over 20 minutes will put the jury to sleep.

c.

The introduction of this testimony is a mere technicality, but it is an absolute necessity.

d.

Don’t feel the need to use a video. If your expert is not very attractive or well spoken, then have someone who is read their deposition into evidence at trial. This is also much less expensive.

Cross-exam. 1.

Begin by having the DME (and don’t ever call it an IME) identify the classic signs and symptoms for the condition for which you are seeking allowance.

2.

Have the DME read and acknowledge every point in the record where the injured worker reported those classic signs and symptoms.

3.

Conclude by establishing bias. Most DMEs are performed by the usual “cast of characters.” There are a number of resources available to review numerous prior depositions from your DME examiner. Be prepared to establish the DME as a paid witness.

4.

Keep it short. This is dull!

Closing. 1.

This is the fun part. This is no different than what you do each and every day in front of a DHO or SHO. The only difference is that you need to be a little bit more explicit. Don’t read your closing. Make a list of bullet points and simply reference them in a conversational style.

2.

Use and refer to your exhibits. Argue the evidence.

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Exhibits

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Exhibits A and B

IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO ) ) ) ) ) Plaintiff, ) ) vs. ) ) SUMMIT COUNTY ) 175 S. Main St., Room 103 ) Akron, OH 44308 ) ) and ) ) STEVE BUEHRER, ADMINISTRATOR, ) Bureau of Workers’ Compensation ) 30 West Spring St. ) Columbus, OH 43215 ) ) Defendants. ) ) ERIC SHANE, 889 E. Waterloo Rd. Mogadore, OH 44260

No.: Judge:

________________________________________________________________________ NOTICE OF APPEAL WORKERS’ COMPENSATION ________________________________________________________________________ Pursuant to R.C. § 4123.512, plaintiff, Eric Shane, hereby gives Notice of Appeal from the decision of the staff hearing officer of the Industrial Commission of Ohio entered on February 2, 2010, from which the Industrial Commission of Ohio refused appeal on February 25,

Litigation Techniques • 1.17

2010 in claim number 08-884831, wherein Eric Shane is the plaintiff/employee and Summit County is the defendant/employer. ________________________________________ Thomas Tootle (#0062385) Attorney for Plaintiff LAW OFFICES OF THOMAS TOOTLE CO. 85 East Gay Street, Suite 900 Columbus, Ohio 43215-3128 (614) 228-7747 INSTRUCTIONS TO THE CLERK Please mail copies of the foregoing Notice of Appeal by certified mail to the following: 1.

Summit County 175 S. Main St., Room 103 Akron, OH 44308

2.

Steve Buehrer, Administrator Bureau of Workers’ Compensation 30 West Spring St. Columbus, OH 43215

_____________________________________ Thomas Tootle (#0062385) Attorney for Plaintiff

1.18 • Workers' Compensation Update

IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO ) ERIC SHANE, ) 889 E. Waterloo Rd. ) Mogadore, OH 44260 ) ) Plaintiff, ) ) vs. ) ) SUMMIT COUNTY ) 175 S. Main St., Room 103 ) Akron, OH 44308 ) ) and ) ) STEVE BUEHRER, ADMINISTRATOR, ) Bureau of Workers’ Compensation ) 30 West Spring St. ) Columbus, OH 43215 ) ) Defendants. ) )

No.: Judge:

________________________________________________________________________ PETITION WORKERS’ COMPENSATION JURY DEMAND ________________________________________________________________________ Plaintiff for his Petition states: 1. Plaintiff alleges that at all times herein mentioned Summit County is an employer existing under the laws of the state of Ohio and that on October 7, 2008 was amenable to the Workers’ Compensation Act of Ohio.

Litigation Techniques • 1.19

2. Plaintiff further states that by virtue of Article II, section thirty-five of the Constitution of Ohio and various statutes enacted thereto, there has been created the Industrial Commission of Ohio and the Bureau of Workers’ Compensation. Plaintiff further states that said agencies are charged with the administration of the Workers’ Compensation Act. 3. Plaintiff further states that on October 7, 2008, while employed as a deputy sheriff, he was diagnosed with an occupational disease, to wit – lead poisoning. Said disease occurred within the course and scope of his employment with the Summit County Sheriff’s Department within Summit County, Ohio. 4. Plaintiff further states that he duly filed with the Administrator his claim for compensation in what is known in its files as claim number 08-884831. It was the decision of the Administrator to deny plaintiff’s claim for the diagnosis of “lead poisoning.” 5. Plaintiff filed an appeal from this decision pursuant to the provisions of R.C. § 4121.34 and 4123.511. On December 21, 2009 an Industrial Commission district hearing officer held a hearing and issued an order (attached hereto, incorporated herein and marked as “Exhibit A”) denying plaintiff’s appeal and denying his claim. 7. Thereafter, plaintiff filed an appeal to an Industrial Commission staff hearing officer pursuant to the provisions of R.C. § 4121.35(B) and 4123.511(D). On January 29, 2010 the staff hearing officer held a hearing and issued an order (attached hereto, incorporated herein and marked as “Exhibit B”) denying the appeals and affirming the district hearing officer’s decision. 7. Plaintiff then filed an appeal to the Industrial Commission of Ohio pursuant to the provisions of R.C. § 4123.511(E). On February 25, 2010 the Industrial Commission issued an order refusing to hear the appeal (a copy of this refusal is attached hereto, incorporated herein, and is marked as “Exhibit C”). 1.20 • Workers' Compensation Update

8. Plaintiff alleges that the order of the staff hearing officer was a final order denying him the right to participate in the Workers’ Compensation Act for the condition of “lead poisining.” WHEREFORE, plaintiff prays for the right to participate as provided in the Workers’ Compensation Act for the condition of “lead poisining” and to receive benefits from the state insurance fund, for costs expended herein and for reasonable attorney fees. ____________________________________ Thomas Tootle (#0062385) Attorney for Plaintiff LAW OFFICES OF THOMAS TOOTLE 85 East Gay Street, Suite 900 Columbus, Ohio 43215-3128 (614) 228-7747 JURY DEMAND Plaintiff hereby requests a jury trial. ___________________________________ Thomas Tootle (#0062385) Attorney for Plaintiff INSTRUCTIONS TO THE CLERK Please mail copies of the foregoing Petition by certified mail to the following: 1.

Summit County 175 S. Main St., Room 103 Akron, OH 44308

2.

Steve Buehrer, Administrator Bureau of Workers’ Compensation 30 West Spring St. Columbus, OH 43266-0581 ____________________________________ Thomas Tootle Attorney for Plaintiff Litigation Techniques • 1.21

1.22 • Workers' Compensation Update

Exhibit C

IN THE COURT OF APPEALS TENTH APPELLATE DISTRICT FRANKLIN COUNTY, OHIO ) ) ) ) ) ) Relator, ) ) vs. ) ) INDUSTRIAL COMMISSION OF OHIO, ) 30 West Spring St. ) Columbus, OH 43215 ) ) and ) ) ROBERT LEE BROWN, INC., ) 435 Elm St. ) Cincinnati, OH 45202-2643 ) ) Respondents. ) ) STATE OF OHIO ex rel., RALPH W. WOLFE, P.O. Box 27 Grove City, OH 43123

Case No. COMPLAINT IN MANDAMUS ORAL ARGUMENT REQUESTED

Now comes the Relator, Ralph W. Wolfe, by and through counsel, and for his complaint states: 1.

The Relator Ralph W. Wolfe is the applicant in a workers’ compensation claim known as

claim number 08-835484. This claim arose out of an industrial injury that occurred on June 4, 2008 while in the course and scope of his employment with Respondent-Employer Robert Lee Brown, Inc., also known as CBS Personnel Service. 2.

The Respondent-Employer Robert Lee Brown, Inc. was the employer at the time of this

injury. Furthermore, Robert Lee Brown, Inc. was an amenable and complying employer of the Workers’ Compensation Act and was acting as a self-insuring employer. Litigation Techniques • 1.23

3.

The Respondent Industrial Commission of Ohio (hereinafter also referred to as the

“Commission”) is an administrative agency of the State of Ohio with responsibility for the administration and adjudication of Workers’ Compensation claims. 4.

On or about April 21, 2009, Respondent-Employer filed a motion with the administrator

of the Bureau of Workers’ Compensation seeking to terminate the payment to Relator of temporary total disability compensation pursuant to R.C. § 4123.56. On April 22, 2009 it was the decision of the Administrator to refer this matter to the Industrial Commission of Ohio to consider the merits of the Respondent-Employer’s motion. 5.

On May 19, 2009 a district hearing officer of the Industrial Commission of Ohio

held a hearing pursuant to the provisions of R.C. § 4121.34 and 4123.511. On June 2, 2009 the district hearing officer issued an order granting the Respondent-Employer’s motion. A copy of this order is attached hereto, marked as “Exhibit A,” and incorporated herein. 6.

Relator and Respondent-Employer then filed appeals to a staff hearing officer of the

Industrial Commission of Ohio pursuant to the provisions of R.C. § 4121.35(B) and § 4123.511(D). On July 8, 2009 the staff hearing officer held a hearing and issued an order affirming the district hearing officer’s decision. A copy of this order is attached hereto, marked as “Exhibit B,” and incorporated herein. 7.

Relator filed an appeal of this decision to the Industrial Commission of Ohio pursuant to

the provisions of R.C. § 4123.511(E). On August 4, 2009 the Industrial Commission issued an order that refused to hear this appeal. A copy of this order is attached hereto, marked as “Exhibit C,” and incorporated herein.

1.24 • Workers' Compensation Update

8.

On August 13, 2009 Relator filed a Request for Reconsideration pursuant to I.C.

resolution R08-1-01. On September 21, 2009 the Industrial Commission of Ohio issued an order that denied this Request. A copy of this order is attached hereto, marked a “Exhibit D,” and incorporated herein. 9.

Relator states that some evidence does not exist to support the Industrial Commission’s

finding that Relator reached a state of maximum medical improvement effective May 19, 2009, thereby terminating his temporary total disability compensation. Therefore, the decision of the Commission is arbitrary and capricious and constitutes a gross abuse of discretion. 10.

Relator asserts that he has exhausted all administrative remedies and has no other

adequate legal remedy in the ordinary course of the law. WHEREFORE, Relator prays that a writ of mandamus be issued either compelling the Industrial Commission to specifically state the evidence upon which it relied or ordering the Industrial Commission to issue an order revoking its finding of maximum medical improvement and reinstating the payment of temporary total disability pursuant to R.C. § 4123.56 from May 19, 2009 forward. Respectfully submitted,

______________________________ Thomas Tootle (#0062385) Attorney for Relator, Ralph W. Wolfe LAW OFFICES OF THOMAS TOOTLE CO., L.P.A. 85 East Gay St., Suite 900 Columbus, OH 43215 (614) 228-7747 [email protected]

Litigation Techniques • 1.25

REQUEST FOR ORAL ARGUMENT Relator hereby requests the opportunity to present oral argument in this matter.

______________________________ Thomas Tootle Attorney for Relator

INSTRUCTIONS TO THE CLERK Please serve a copy of this Complaint in Mandamus to each of the above named respondents.

______________________________ Thomas Tootle Attorney for Relator

1.26 • Workers' Compensation Update

Exhibit D IN THE COURT OF COMMON PLEAS «County» COUNTY, OHIO «FirstName» «LastName»

) ) Case No. «Case_Num» Plaintiff ) ) Judge «Judge» vs. ) ) «Employer», et al., ) ) Defendants. ) ) ) ______________________________________________________________________ PLAINTIFF’S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT, «Employer» ______________________________________________________________________ Pursuant to rule 33 of the Ohio Rules of Civil Procedure, Plaintiff, «FirstName»«LastName», demands the Defendant, «Employer», to answer the following interrogatories in writing, under oath and within twenty-eight (28) days after service. INSTRUCTIONS 1.

You are required to choose one or more of your proper employees, offices, or

agents to answer the interrogatories. The employee, officer or agent shall furnish such information as is known or available to the organization. 2.

Pursuant to Rule 33 (c) of the Ohio Rules of Civil Procedure, a question that

seeks information contained in, or information about, or identification of any documents may be answered by providing a copy of such documents for inspection.

Litigation Techniques • 1.27

INTERROGATORIES 1.

State the full name(s) and address(es) of the person(s) answering these

interrogatories. If more than one person answers, each answerer should be identified by name to each question(s) he or she answers. If the answer was the combined response of more than one person, the answer should specify what information each answerer identified or contributed to the answer. ANSWER: 2.

State the date the Plaintiff entered the employment of «Employer». ANSWER:

3.

State the job classification held by plaintiff during her employment with

«Employer» and set out a description of the duties involved in this position as well as the salary or wages per month or week. ANSWER:

4.

List the name and address of the supervisor(s) on duty on «Date». ANSWER:

5.

Set forth the name, occupation, address, and telephone number(s) of each

employee on duty at the time of plaintiff’s injury on «Date». ANSWER: 6.

State how «Employer» received notice of the injury that plaintiff sustained on

«Date». ANSWER: 1.28 • Workers' Compensation Update

7.

Identify each and every person whom you expect to call as an expert witness at

trial, and state the subject matter on which the expert will testify. ANSWER: 8.

Identify all exhibits or demonstrative evidence you intend to present at the trial

of this matter. This request includes, but is not limited to, medical reports, diagnostic reports, hospital records, office notes, employment records, diagrams, photographs, videotapes, etc. ANSWER: 9.

List the names and current addresses of any witnesses you intend to call in the

trial of this case. Include the expected subject matter and the substance of each witness’s anticipated testimony in your answer. ANSWER: 10.

Did «Employer» conduct or cause to be conducted any investigation of the

plaintiff’s injury? If so, explain what type of investigation (i.e., video, audio, oral, etc.) was conducted. Also include the following: a. State who conducted the investigation (give names and addresses); b. State who was interviewed as part of the investigation (give names and addresses); c. State whether any of the interviewed individuals were asked to submit a report or statement and describe the substance of the statements as well as who provided such statement: and, d. State the outcome of the investigation. ANSWER:

Litigation Techniques • 1.29

11.

If «Employer» has possession or access to any information or records regarding

the health, emotional condition, or abilities of the plaintiff prior to «Date», please provide a complete description of all such information, the location of the information, and the name of the party who maintains custody or control over the materials. In the alternative, please attach a copy of this information. ANSWER: Respectfully submitted, ___________________________ Thomas Tootle (#0062385) Attorney for Plaintiff LAW OFFICES OF THOMAS TOOTLE CO., LPA 85 East Gay Street, Suite 900 Columbus, Ohio 4215-3118 (614) 228-7747 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiff’s First Set of Interrogatories Directed to Defendant, «Employer» have been mailed this April 11, 2011 to: «Attorney», attorney for defendant «Employer», at «Firm», «AttorneysAddress», «AttorneysCity», «AttorneysState», 43215, and, to «AG_Name», Assistant Attorney General, 150 East Gay St., 22nd Floor, «AGSCity», «AGSState» 43215.

_________________________ 1.30 • Workers' Compensation Update

Thomas Tootle Attorney for Plaintiff STATE OF OHIO COUNTY OF «County»

: SS :

VERIFICATION

________________________________________________ being first duly sworn deposes and says that he/she has furnished the answers to these Interrogatories and the answers are true.

__________________________________

SWORN AND SUBSCRIBED before me a notary public this _________day of _____________, 20____.

__________________________________

Litigation Techniques • 1.31

1.32 • Workers' Compensation Update

Exhibit E

April 11, 2011 «FirstName» «LastName» «Address» «City», «State» «Zip» RE:

«LastName» v. «Employer», et al. «County» County case no. «Case#»

Dear «Dear», Please be advised that the «Scheduler» has scheduled a discovery deposition for «Depo Date:Sunday, June 3, 1990» at «Hearing Time» at the office of «Depo Location». A discovery deposition is your oral testimony taken under oath before the trial of your case. The questions that you will be asked will pertain to information that is relevant to your case or will aim to discover a relevant fact. This deposition will be done in private. I will be present while the other side is asking you questions. There will be a court reporter present taking down everything you say. Therefore, everything said must be accurate and truthful. Do not volunteer answers to questions not asked. Provide any of the information requested. Anything you say may be held against you. You should remember that this is possibly the first opportunity that the opposing counsel has to meet you. You will be judged by opposing counsel on such things as your honesty, frankness and possible jury appeal. It is, therefore, important that you make a good impression on opposing counsel. You should appear at your deposition dressed as you would expect to dress if you were actually going to court to appear before the jury. Please appear for your deposition approximately fifteen minutes early. As always, please feel free to contact me if you should have any questions. For more information, log on to our website at www.ohiobwclaw.com under the section “For Clients” and “Deposition Information.” Very truly yours,

Thomas Tootle TT/ss Litigation Techniques • 1.33

1.34 • Workers' Compensation Update

Exhibit F IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT STATE OF OHIO, ex rel., WANDA SEARLES, Relator, vs. INDUSTRIAL COMMISSION OF OHIO, et al., Respondents.

) ) ) ) ) ) ) ) ) ) ) ) )

No. 01APD08-0970 Magistrate Macke

______________________________________________________________________________ JOINT STIPULATED RECORD ______________________________________________________________________________ Now comes Relator, Wanda Searles, and Respondents, the Industrial Commission of Ohio and Olan Plastics, Inc., and pursuant to the Magistrate's Order filed September 27, 2001, hereby stipulate that the following shall be the evidence in the above entitled action. The parties agree that the documents attached hereto and identified below are true and accurate copies of the documents in the Ohio Bureau of Workers' Compensation claim file number 92-84699 and that they constitute the record for the Court's consideration in this case. The parties reserve the right to supplement this stipulation with additional documents from the claim file upon agreement of the parties, submission of certified copies, or by leave of court.

Litigation Techniques • 1.35

Evidence specifically relied upon and attached hereto is as follows: Industrial Commission Documents Finding of Fact and Order of the Commission, February 2, 1998………………………...1

4.

2.

Statement of Facts, October 10, 2000……………………………………………………..3

3.

Application for Compensation for Permanent Total Disability, July 6, 2000….…………6

Finding of Fact and Order of the Commission, March 13, 2001………………………...14 Medical and Vocational Reports 6.

C-84, January 19, 1993……………………………………………………………….…19

C-84, April 29, 1993………………………………………………………………….….20 C-84, June 3, 1993……………………………………………………………………….21 Examination Report, Dr. Gordon Zellers, January 17, 1994…………………………….22 Rehabilitation Letter, Jeffrey J. Buffer, M.A., March 14, 1994………………………….29 Rehabilitation Letter, Jeffrey J. Buffer, M.A., March 29, 1994………………………….30 Dr. John Wolfe, October 17, 1997……………………………………………………….31 Dr. Lee Howard, October 20, 1997................................................................................................34 14.

Dr. Meleesa A. Hunt, September 13, 2000 ........................................................................48

15.

Dr. Earl F. Greer, November 30, 2000 ..............................................................................51

16.

Dr. James Rutherford, December 8, 2000..........................................................................56

17.

John P. Kilcher, M.A., January 20, 2001 ...........................................................................60

18.

Julie Morrissey, M.A., January 22, 2001 ...........................................................................69

1.36 • Workers' Compensation Update

____________________________________ Thomas Tootle (#0062385) Attorney for Relator Wanda Searles

___________________________________ Phil Wright, Jr. (#0072005) Attorney for Respondent Industrial Commission of Ohio

LAW OFFICE OF THOMAS TOOTLE 85 East Gay Street, Suite 900 Columbus, Ohio 43215-3118 (614) 228-7747

ASSISTANT ATTORNEY GENERAL 140 East Town Street, 15th Floor Columbus, Ohio 43215-6001 (614) 466-6696

CERTIFICATE OF SERVICE I certify that a copy of the foregoing Joint Stipulated Record was served upon Phil Wright, Jr., attorney for Respondent, Industrial Commission of Ohio, at 140 East Town Street, 15th Floor, Columbus, Ohio 43215-6001 on April 11, 2011.

______________________________________ Thomas Tootle Attorney for Relator

Litigation Techniques • 1.37

1.38 • Workers' Compensation Update

Exhibit G

March 17, 2010 Via Facsimile & Regular Mail Andrew S. Adams Earl, Warburton, Adams & Davis 136 W. Mound St. Columbus, OH 43215 RE:

Margaret Knisley v. Tigerpoly Manufacturing, Inc., et al.

Dear Andy, This letter is a follow up to yesterday’s telephone message. As you are already aware, this matter is scheduled for trial next Monday, March 22, 2010 before the honorable Judge Bender. With that in mind, I would like to propose the following full and final settlement of claim number 08-817234 which is currently recognized for a diagnosis of “right knee sprain strain.” We are currently in court as the result of our appeal from the decision of the Industrial Commission to deny our request to additionally allow Ms. Knisley’s claim for the conditions of “right medial meniscus tear and chondromalacia right patella.” You will recall that the Commission denied this request due to the fact that Ms. Knisley’s April 22, 2008 MRI stated: “…[w]hile not definitive by strict MRI criteria, there are findings that are suspicious for tear to the posterior horn of the medial meniscus…” Based upon that uncertainty, the Commission denied Ms. Knisley’s request. By now, you should have had the opportunity to review Ms. Knisley’s operative report from the arthroscopic surgery performed on February 22, 2010. I will draw your attention to the postoperative diagnosis: “right knee medial meniscus tear…” I am sure, therefore, that you will now agree with me that any suspicions have been resolved in Ms. Knisley’s favor. At the time of her injury, Ms. Knisley was employed by Tigerpoly as a production associate earning an estimated $11.50 per hour. Based upon a forty hour workweek, this would equate to a weekly benefit rate of $306.66. The Industrial Commission terminated Ms. Knisley’s temporary total disability compensation effective September 18, 2008. Thereafter, she commenced a good faith effort to locate suitable employment within her limited capability. After searching for thirty weeks and 3 days, she located work at Wal-Mart paying $8.25 per hour. Based upon the foregoing, she is eligible to apply for non-working wage loss (30.42857 weeks at $306.66 per week) totaling $9,331.33, and working wage loss (169.57143 at $86.40 per week) totaling $14,650.97. Litigation Techniques • 1.39

Ms. Knisley has been released from work from the date of her surgery through April 6, 2010. Six weeks at $306.66 per week is equal to $1,839.98. If Ms. Knisley were ultimately granted an award of permanent partial disability of only fifteen percent (15%) this would be equal to $7,509.90. Both Ms. Knisley and I are in possession of unpaid medical bills from both WorkHealth ($216) and London Family Medical ($192). Based upon the foregoing, as well as the cost of past and future medical treatment (including her February 22, 2010 surgery) I am authorized to extend an initial, negotiable demand of $60,000 to fully and finally resolve this matter. Could you please contact me at your earliest convenience so that we may discuss the best way to proceed in light of Monday’s trial date? Very truly yours,

Thomas Tootle

1.40 • Workers' Compensation Update

Exhibit H

Litigation Techniques • 1.41

1.42 • Workers' Compensation Update

Exhibit I

Litigation Techniques • 1.43

1.44 • Workers' Compensation Update

Exhibit J JURY SELECTION Introduce myself I can understand how this process might be unsettling for few minutes – sitting in jury box w/ room full of strangers. (unsettling to me too). I am going to ask a few questions just to get information about them. Give you example. When I was in college, one of my good friends was involved in a car accident caused by a drunk driver. For that reason, it might be difficult for me personally to be an open-minded juror in a drunk driving case. It would distract me from paying attention to the evidence and be a disservice to both sides. ON that type of case, I would want to be excused from serving on a jury. I want to give you all an opportunity to tell me anything that they think might interfere with their ability to hear this case. How many ever been through jury selection process? (Remember who has raised hand for PREPONDERANCE!!!) How many not been through jury selection? (Make sure everyone has raised hand) This case is a workers compensation case. IN particular, my client asserts that he injured his back on a couple of occasions while lifting some things at work. WC CLAIMS If you sustained an injury on the job, and you believed that you had the right to file a WC claim, would you? Anyone who would not? ** ASK PANEL ** Why not? Have you, a family member or close friend ever filed a WC claim? ** ASK PANEL ** Particulars Describe the obligations an employer owes to an employee Maintain WC insurance? What is purpose of that insurance? Claim regardless of fault? In a WC claim, plaintiff needs to show an on the job injury to participate. Not necessary to show fault. Is it unfair that an employer would face a claim even without fault? NECK OR BACK INJURIES Have you, a family member or close friend ever had a sprain? Of what? Did you/they seek medical attention? How soon after? Do X-ray? Any other tests? Did you feel justified in seeking medical attention even though tests showed no fracture? Next juror:

Litigation Techniques • 1.45

Lots of people, including my own father, think that if there is no fracture, then the person is okay – that there is nothing wrong. Other people might think that a strain can be very painful, even without evidence of fracture. What have you seen or heard that would make you feel one way or the other? CHIROPRACTIC TX Anyone received tx from a chiro? How beneficial was tx? OCCUPATION What is occupation/who is employer? Full/Part Time What is the principal activity of the company where you work? Any management or supervisory responsibilities? Now or in the past? ** ASK ENTIRE PANEL ** Ever owned own business? PRIOR LAWSUITS Have you ever considered bringing a lawsuit or claim, or felt like you had a reason to sue, but decided not to? ** ASK ENTIRE PANEL ** A) Why not? B) How do you feel about individuals who bring lawsuits for personal injuries? C) Are there any types of lawsuits you feel are unfair and unjust and should not be brought to court? A) Have you, any members of your family, or close friends ever filed lawsuit (or been sued)? ** ASK ENTIRE PANEL ** What was it about? How was it resolved? What were your feelings about the process at the conclusion? B)

Ever been sued? Who filed lawsuit What was it about How was it resolved? What were your feelings about the process at the conclusion?

PREPONDERANCE Mr./Mrs. ____, you raised your hand earlier when I asked who’d served on a jury before. Was that a civil or criminal case? Anyone been on criminal jury? Do you remember that in a criminal case the prosecution had to present proof beyond a reasonable doubt? 1.46 • Workers' Compensation Update

In a civil case the plaintiff must prove case by a preponderance of evidence. That means a plaintiff must only prove their case by the greater weight of the evidence? That means if you lean one way or the other than you should decide the case on the basis of which way you are leaning. We’ll prove our case beyond a reasonable doubt. But even if only 51% of the evidence weighs for us then the law says we win. We have far more than that, but I need to ask about it simply because that’s the law. Do you think that that makes it too easy for a plaintiff in a civil case to win?

Litigation Techniques • 1.47

2 Interplay Between Workers’ Compensation, FMLA, and ADA Joanne W. Glass Frost Brown Todd LLC Cincinnati, Ohio

Interplay Between Workers' Compensation • 2.1

2.2 • Workers' Compensation Update

Interplay Between Workers' Compensation • 2.3

2.4 • Workers' Compensation Update

Interplay Between Workers' Compensation • 2.5

2.6 • Workers' Compensation Update

Interplay Between Workers' Compensation • 2.7

2.8 • Workers' Compensation Update

Interplay Between Workers' Compensation • 2.9

2.10 • Workers' Compensation Update

Interplay Between Workers' Compensation • 2.11

2.12 • Workers' Compensation Update

Interplay Between Workers' Compensation • 2.13

2.14 • Workers' Compensation Update

3 Industrial Commission Hearing Room Do’s and Don’ts or What Hearing Officers Like, and What They Like Even More Michael J. Pikosz Industrial Commission of Ohio Columbus, Ohio

3 Industrial Commission Hearing Room Do’s and Don’ts or What Hearing Officers Like, and What They Like Even More Michael J. Pikosz Industrial Commission of Ohio Columbus, Ohio

BEFORE THE HEARING A.

B.

Like: motions that say more than “see evidence in file.” 1.

Leaves out “guesswork” during file review.

2.

Indexing labels may not be specific enough.

3.

Documents relied upon may not be in close proximity to motion filed.

Like: doing the math on AWW/FWW requests. 1.

Provides starting point for parties to argue.

2.

Helps reduce risk of “math by lawyer.”

C.

Like: going through hearing administrator to have reference claims attached.

D.

Like: filing documents sent to IME doctor and employee handbooks/ disciplinary materials when relevant. Like even more: filing these documents as early as possible. Like even more than that: making sure documents included claim numbers and are date-stamped.

E.

Like: call if you’re running late. Industrial Commission Hearing Room • 3.1

F.

Like: letting us know when you’re in multiple rooms during an hour. Like even more: letting us know where you are in the hearing order and whether other hearing(s) may run longer than normal.

G.

1.

Allow us to rearrange hearing order for hour.

2.

Helps avoid Policy Memo R10 issues.

Like: signing in everyone who will be appearing/testifying at hearing. Like even more: explaining to “first timers” what our hearings are like.

H.

I.

1.

Speed and relevant informality quite different from popular conception/media portrayal of “court.”

2.

C-92’s unique.

Like: always being prepared to go forward. 1.

Continuance may automatically be granted.

2.

Reduces risk of client not being present when hearing goes forward.

Like: speaking with other side prehearing to make sure all sides have relevant documentation or to narrow/focus issue(s) when possible. Like even more: when the above is done away from the hearing room door.

DURING THE HEARING A.

Like: keeping reading to a minimum.

B.

Like: knowing what’s in the file. Like even more: knowing where documents are by online document date and by page number in document bunch. 1.

Allows us to go quickly and directly to what you’re referencing.

2.

Reduces uncertainty as to the answer to the question, “Is [blank] in the file?” a.

Yes;

b.

No; or

c.

?

3.2 • Workers' Compensation Update

C.

Like: if citing law/policy, having a citation and/or specific policy number. Like even more: filing a copy of the relevant policy or case.

D.

Like: if bringing a court reporter, following the first paragraph of Policy Memo R2. Like even more: not having court reporter present to conduct “discovery deposition.”

E.

Like: “knowing when to hold, knowing when to fold.”

F.

Like: leave interrepresentative personal conflicts outside of the hearing room.

AFTER THE HEARING A.

Like: leaving when hearing is concluded.

B.

Like: not sending claim documents directly to our attention after the hearing is concluded/decision is written unless specific provision is made to do so.

Industrial Commission Hearing Room • 3.3

3.4 • Workers' Compensation Update

Attachments

Industrial Commission Hearing Room • 3.5

3.6 • Workers' Compensation Update

Industrial Commission Hearing Room • 3.7

3.8 • Workers' Compensation Update

4 Industrial Commission Updates Jodie M. Taylor Industrial Commission of Ohio Columbus, Ohio

4 Industrial Commission Updates Jodie M. Taylor Industrial Commission of Ohio Columbus, Ohio

INTRODUCTION A.

B.

Personnel changes. 1.

Appointed Chairperson effective January 14, 2011. Appointed employer member of the Commission in July 2009.

2.

Tim Adams returns as Executive Director, effective January 18, 2011. Between 1994 and 2008, Mr. Adams served the Commission in many roles, including Legislative Liaison, Manager of Customer Service, Acting Communications Manager, Director of Non-Adjudicatory Operations, and Executive Director.

3.

John Tornes joined the Commission as the Human Resources Director, effective March 2, 2011.

4.

Kerry Mackin joined the Commission as the Hearing Officer Trainer, effective March 7, 2011.

Goals and direction of agency.

INTERPRETER LANGUAGE LINE See attachments.

VIDEO HEARINGS A.

See attachments.

B.

Times when equipment is to be used for hearings.

C.

Other uses of video equipment. Industrial Commission Updates • 4.1

FIVE-YEAR RULE A.

B.

Ohio Rev. Code § 1347.15, enacted by House Bill No. 648, requires all state agencies and boards to adopt rules to regulate access to confidential personal information maintained by the agency. Effective October 1, 2010, the Industrial Commission adopted the following rules: 1.

4121-4-01 Definitions;

2.

4121-4-02 Procedures information;

3.

4121-4-03 Valid reasons for accessing confidential personal information;

4.

4121-4-04 Confidentiality statutes; and

5.

4121-4-05 Restricting and logging access to confidential personal information in computerized personal information system.

for

accessing

confidential

personal

Ohio Rev. Code § 119.032 requires agencies to review rules adopted by the agency every five years. After review, the Commission notified the Joint Committee on Agency Rule Review that the following rules would be continued without change: 1.

4121-3-31 Waiver for recreational activity;

2.

4121-3-12 Suspension of the processing of claims;

3.

4125-1-02 Electronic submission of documents; and

4.

4125-1-01 Wage loss compensation. The Rules Advisory Group continues to meet to discuss wage loss compensation issues.

HEARING OFFICER MANUAL POLICIES A.

Memo E7—processing applications for compensation pursuant to Ohio Rev. Code § 4123.57(A) when allowance question is in court, effective August 2, 2010.

B.

Memo 15—processing compensation and medical benefits issues in claims when an original allowance or additional allowance issues is in court, effective August 2, 2010.

C.

Memo K1—allowance—dismissal versus merits, effective August 2, 1010.

4.2 • Workers' Compensation Update

REP IDENTIFICATION CARDS Regular visitors may now opt to have a security ID badge issued to them for expedited electronic check-in.

MEDICAL EXAMINER MANUAL CHANGES FOR PTD ISSUES COMMISSION ORDERS ON WEBSITE Commission member hearing orders are now available online at www .ohioic.com. A “Commission Member Orders” quick link is located on the right side of the homepage.

Industrial Commission Updates • 4.3

4.4 • Workers' Compensation Update

Attachments

Industrial Commission Updates • 4.5

4.6 • Workers' Compensation Update

Industrial Commission Updates • 4.7

4.8 • Workers' Compensation Update

Industrial Commission Updates • 4.9

4.10 • Workers' Compensation Update

Industrial Commission Updates • 4.11

4.12 • Workers' Compensation Update

Industrial Commission Updates • 4.13

4.14 • Workers' Compensation Update

Industrial Commission Updates • 4.15

4.16 • Workers' Compensation Update

Industrial Commission Updates • 4.17

4.18 • Workers' Compensation Update

Industrial Commission Updates • 4.19

4.20 • Workers' Compensation Update

Industrial Commission Updates • 4.21

4.22 • Workers' Compensation Update

Industrial Commission Updates • 4.23

4.24 • Workers' Compensation Update

Industrial Commission Updates • 4.25

4a Industrial Commission Self-Insuring Employers Evaluation Board Update Kevin R. Abrams Industrial Commission of Ohio Columbus, Ohio

4a Industrial Commission Self-Insuring Employers Evaluation Board Update Kevin R. Abrams Industrial Commission of Ohio Columbus, Ohio

INDUSTRIAL COMMISSION A.

Unauthorized practice of law. Memorandum dated October 28, 2010, provided further guidance on the unauthorized practice of law as to the limitations of non-attorneys when conducting postinjury accident investigations. Available at www.ohioic .com, IC Policies Tab, Guidelines for Nonattorney Representatives Link.

B.

Current hearing issues. 1.

C-84 request for temporary total compensation. Nonallowed conditions and maximum medical improvement. a.

Clear indication on C-84 that allowed conditions are independently disabling. TT can never be based, even in part, on non-allowed conditions. State ex rel. Jackson Tube Serv. Inc. v. Industrial Comm’n (2003), 99 Ohio St. 3d 1, citing State ex rel. Waddle v. Industrial Comm’n (1993), 67 Ohio St. 3d 452: “The mere presence of non-allowed disabling conditions does not automatically foreclose a finding of permanent total disability.”

b.

The mere presence of a non-allowed condition in a claim for TTD does not in itself destroy the compensability of the claim, but the claimant must meet his or her burden of showing that an allowed condition independently caused the disability. The allowed condition cannot combine with a non-allowed medical condition to produce TTD. State ex rel. Bradley v. Industrial Comm’n (1977), 77 Ohio St. 3d 239.

Industrial Commission Self-Insuring Employers • 4a.1

2.

3.

c.

Medical reports must be consistent with office notes. State ex rel. Genuine Parts Co. v. Industrial Comm’n (2005), 160 Ohio App. 3d 99.

d.

Where a physician renders an ambiguous opinion regarding a claimant’s medical condition but thereafter clarifies the ambiguity, the Industrial Commission may not revive the ambiguity as a basis for rejecting the physician’s opinion. State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St. 3d 649.

Rejected medical reports. a.

The Commission cannot reject a medical report at one level, for whatever reason, and rely on it at another. State ex rel. Zamora v. Industrial Comm’n (1989), 45 Ohio St. 3d 17.

b.

Court finds that recited history portion of a medical report is, “in a sense,” severable from the impairment assessment in the report. “However, even if the recitedhistory element of the report was somehow preservable under an exception to Zamora, it would be insufficient to sustain the commission’s decision.” State ex rel. Verbanek v. Industrial Comm’n (1995), 73 Ohio St. 3d 562.

c.

“However, despite the rule in Zamora, opinions expressed in medical reports may be severable.” State ex rel. Rutherford v. Industrial Comm’n, Franklin Cty. Ct. App. Case No. 05AP-986, decided January 4, 2007. (Citing Verbanek.)

Refusal of light duty job offer and abandonment. a.

“[A] finding that a claimant has unjustifiably refused an offer of suitable alternative employment does not translate into a finding that the claimant voluntarily abandoned the former position of employment.” State ex rel. Ellis Super Valu, Inc. v. Industrial Comm’n, 115 Ohio St. 3d 224, 2007-Ohio-4920.

b.

Commission order denying temporary total disability based on a refusal to accept an offer of light duty work “remains controlling unless [injured worker] establishes a basis for the commission to exercise continuing jurisdiction.” State of Ohio ex rel. Jeffery Ready v. Industrial Comm’n, 2009-Ohio-6271.

c.

Despite Commission’s finding of “new and changed circumstances” based on injured worker’s worsening condition, Commission improperly invoked continuing

4a.2 • Workers' Compensation Update

jurisdiction when there was “no claimant would have been prevented light duty work previously offered State of Ohio ex rel. Akron Paint Industrial Comm’n, 2010-Ohio-1321. 4.

evidence that the from performing the by [the employer].” & Varnish, Inc. v.

C-9 physician’s request for medical service or recommendation for additional conditions for industrial injury or occupational disease. Note issues presented when time frame for adjudication extends beyond date for requested treatment.

SELF-INSURING EMPLOYERS EVALUATION BOARD A.

B.

History, composition, and purpose. 1.

Labor Representative—Gary Lucas, AFL-CIO. OSIA Representative—Chris Royer, Timken. IC Public Member as Chairman—Kevin Abrams.

2.

SIEEB to address complaints against self-insuring employers and order corrective action, including revocation of self-insured status; civil penalty not to exceed $10,000.

3.

SIEEB will not adjudicate disputed claims issues that should have been addressed by a hearing officer.

4.

SIEEB will not act as a “super hearing officer” or claims adjudicator on matters involving unclear orders.

5.

Hearings are not “guaranteed,” but are set at the discretion of SIEEB.

Recent decisions. 1.

Invalid complaint. Approval for chiropractic treatment to have been rendered from September through December 2006 is not tantamount to approval for chiropractic treatment actually rendered in February and March 2008.

2.

Valid complaint. The employer’s termination of temporary total without a hearing and without a written offer of light duty employment, based only on the physician of record’s release to return to work with restrictions, constitutes a valid complaint. Industrial Commission Self-Insuring Employers • 4a.3

3.

Valid complaint. A self-insuring employer may not terminate PTD compensation despite receipt of a favorable limited writ of mandamus from the court of appeals, when the injured worker’s appeal to the Ohio Supreme Court remains pending.

4.

Invalid complaint. The Board will not find a valid complaint for untimely payment of a settlement on 2/2/2009 for a settlement agreement filed with BWC on 12/5/2008, when the matter was not reviewed by an SHO until 1/27/2009.

5.

Valid complaint. A notation of permanent restrictions by the physician of record is not tantamount to a statement that the injured worker has reached maximum medical improvement and therefore not a circumstance under which a self-insuring employer may terminate temporary total disability compensation without a hearing.

C.

Observations and “pleadings.” 1.

Likelihood of filing a complaint and the finding of a valid complaint increases as the distance between the employer and the workers’ compensation decision-maker increases.

2.

Minimizing opportunity for complaints requires extensive coordination of self-insuring employer, attorney, TPA, pharmacy benefits manager, and any other representatives.

3.

Communication is a virtue.

4.

a.

Note to injured worker representatives: please call the self-insuring employer’s attorney before filing a self-insured complaint.

b.

Note to self-insuring employer attorneys: do not ignore the phone call from the injured worker’s representative concerning a self-insuring complaint.

A telephone call between attorneys willing to compromise on difficult issues will accomplish far more than a decision by SIEEB.

4a.4 • Workers' Compensation Update