The Three Best Pitches for Winning at
Workers’ Comp
Private Legal Briefing – Tuesday, June 16, 2015
David A. Riepenhoff
[email protected]
Frank D. Hatfield
[email protected]
ATTORNEYS AT LAW
Leaders in Employment Law and Beyond
FISHELHASS.COM
FISHEL HASS KIM ALBRECHT LLP | 400 S. FIFTH STREET, SUITE 200
COLUMBUS, OHIO 43215 | P (614) 221-1216 | F (614) 221-8769
Client Briefing – Workers Comp
June 16, 2015
Fishel Hass Kim Albrecht LLP (“FHKA”) is a mid-sized Columbus, Ohio, based
law firm. FHKA’s purpose is to provide high-quality, affordable legal services to public sector
clients. Today, FHKA represents well over two hundred public sector clients throughout the State
of Ohio. We represent municipalities, boards, commissions, agencies, and office-holders in over
sixty-five of Ohio’s eighty-eight counties. Our client base varies from large metropolitan cities to
villages, and from rural areas to the suburbs along with large and small counties. This broad
understanding of public sector law creates a more thorough and efficient representation of clients.
Our strength and continuous growth is reflected in our ability to remain on the cutting edge of our
traditional areas of practice, while expanding our services to encompass the ever-changing areas
of public sector law.
FHKA began with a pro-management philosophy; that same philosophy has carried
forward to the present. The firm’s strength and diversity stems from, and is maintained by, the
strength and diversity of our staff. Our attorneys hail from a wide variety of backgrounds, from
rural farm communities to large cities. Our perspectives and ideology are similarly varied. This
diversity is perhaps best reflected in FHKA’s community involvement.
Our attorneys serve leadership roles in, and are active members of, their churches and
temples. They volunteer in a wide variety of community activities including public and private
school programs, Children’s Hospital, assisted living communities, numerous youth activities,
humane societies, museums, art galleries, and community centers. This diversity allows us to
successfully interact with a wide range of individuals as well as to analyze and address legal
issues and problems from many perspectives.
FHKA was recognized as one of the 2015 U.S. News-Best Lawyers® in areas of
Employment Law-Management, Labor Law-Management and Litigation-Labor & Employment.
Additionally, several attorneys in the firm have been recognized by their peers as Super
Lawyers® and Best Lawyers® for their outstanding work in areas of Employment and Labor Law
and Litigation.
Firm Profile
Fishel Hass Kim Albrecht LLP
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Columbus, Ohio 43215
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Client Briefing – Workers Comp
June 16, 2015
David Riepenhoff is a partner with the Columbus law firm of Fishel
Hass Kim Albrecht LLP.
He received his law degree from Capital
University Law School in Columbus, Ohio. He received a Bachelor of
Arts from Otterbein University. He is licensed to practice law in Ohio
and South Carolina and before the U.S. Supreme Court, the U.S Sixth
Circuit Court of Appeals, and the U.S. District Courts in Ohio.
David represents public and private sector employers in Federal and
State Court litigation and administrative actions, labor and employment law, workers’
compensation, unemployment compensation, collective bargaining and other legal matters. He
also conducts training and seminars throughout Ohio on a variety of legal topics. In 2014, David
assisted the Ohio Peace Officer Training Commission Curriculum Committee in revising its
Corrections Basic Training Inmate Rights & Civil Liability lesson plan. David has been selected
in 2007, 2010-2015 as a “Rising Star” in Ohio Super Lawyers Magazine ®.
David is also an adjunct professor for the Otterbein University MBA and Business,
Accounting & Economics programs, where he has taught courses in Ethical Leadership,
Communications & Negotiations, and the Legal Environment of Business.
David has previously been elected as the President, Vice President, Treasurer and
Committee Chairperson of the Nationwide Children’s Hospital Development Board. In 2013,
David received the Otterbein University Young Alumni Award for Community Engagement. In
2014, David was nominated a Fellow of the Columbus Bar Foundation. In 2015, David became
one of the first inductees into the Sts. Peter & Paul Catholic School (Wellston, Ohio) Alumni
Hall of Fame.
Fishel Hass Kim Albrecht LLP
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Client Briefing – Workers Comp
June 16, 2015
Frank Hatfield is an Associate with the Columbus Firm of Fishel
Hass Kim Albrecht LLP. Frank graduated Order of the Curia from
Capital Law School, with a concentration in Labor and Employment
Law and a dual undergraduate degree in Human Resources
Management and Business Administration. Frank has experience
representing public and private employers in all areas of labor and
employment including contract negotiations, mediation, conflict resolution and arbitration. He
has several years of experience in Human Resources Management and extensive knowledge of
labor and employment law. Frank has represented employers before State and Federal courts
and administrative agencies pertaining to personnel matters including the Ohio Civil Rights
Commission, Unemployment Compensation Review Commission, Bureau of Workers’
Compensation, and State Personnel Board of Review.
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Client Briefing – Workers Comp
June 16, 2015
TABLE OF CONTENTS
I. STRIKE 1! - EFFECTIVE WORKPLACE INVESTIGATIONS................1
A.
Investigating the screwball. .......................................................................................................... 1
B.
Employer rights and obligations during the investigation. ........................................................... 3
C.
Utilizing private investigators....................................................................................................... 5
II. STRIKE 2! - CALLING BALLS AND STRIKES .........................................8
A.
Choosing whether to dispute an issue. .......................................................................................... 8
B.
Deciding whether to use an attorney or TPA for the hearing........................................................ 9
C.
Trending issues for TTD, PTD and intoxicated workers. ........................................................... 11
D.
Practical tips for success. ............................................................................................................ 16
E.
Employer’s role in court appeals. ............................................................................................... 17
III. STRIKE 3! - INJURED WORKER ABSENCES.........................................18
A.
Defensible light duty job offers. ................................................................................................. 18
B.
Terminating light duty. ............................................................................................................... 20
C.
ADA, FMLA, collective bargaining, and other curveballs......................................................... 21
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Client Briefing – Workers Comp
June 16, 2015
I.
STRIKE 1! - EFFECTIVE WORKPLACE INVESTIGATIONS
In investigating a workers’ compensation claim, the employer should consider the context of
the injury in the workers’ compensation system. The burden of proof is on the injured
worker to establish each essential element of the claim by a preponderance of the evidence:
1. Establishing that the applicant is one of the persons who under the act have the right to
file a claim for workers' compensation benefits;
2. That the application was filed within the time period as required by law;
3. That the alleged injury or occupational disease was sustained or contracted in the course
of and arising out of employment;
4. Any other material issue in the claim, which means a question that must be established in
order to determine claimant's right to compensation and/or benefits.
The “preponderance of the evidence” means greater weight of evidence, taking into
consideration all the evidence presented. Note that in Industrial Commission hearings,
evidence may be presented by affidavit, deposition, oral testimony, written statement,
document, or other forms. O.A.C. § 4123-3-09.
A. Investigating the screwball.
1. Why investigate the workplace injury claim?
a. To quickly find the cause of the accident/injury if unknown.
b. To identify any safety hazards/violations that may continue to exist after the
injury.
c. To quickly identify evidence before it goes “stale.”
d. To identify whether a post-accident drug test is appropriate.
e. It may yield admissions by the injured worker about the cause (if other than a
legitimate claim).
f. It will help establish the company acted reasonably and objectively.

Carey v. ODW Logistics, Inc., S.D. Ohio No. C2-08-CV-0581, 2010 U.S.
Dist. Lexis 13059 (S.D. Ohio 2-16-10). After the employee established a
prima facie case of FMLA retaliation, the employer met its burden of
production by putting forth evidence that the reason for the employee’s
termination was because he violated the employer’s policies when he failed to
immediately report a workplace injury.
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Client Briefing – Workers Comp
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g. To be prepared for a hearing on a disputed claim.
2. What to investigate?
a. Who? What? When? Where? Why? How?
b. Collect the injured worker’s statement (in writing):
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What happened?
Were you injured?
If so, how were you injured?
Where did it happen?
When (date & time) did it happened?
Who was there?
Why were you there?
How did it happen?
Did you seek medical treatment? If so, where?
Were you under the influence of alcohol or illegal drugs (including nonprescribed uses of prescription drugs) at the time?
c. Collect statements from all witnesses (same information as from injured worker)
d. Take photographs of the accident scene.
e. Collect video/security camera footage of the accident.
f. Review maintenance records of the job location/machine.
g. If it was an auto accident, obtain the Ohio Uniform Traffic Crash Report from the
law enforcement agency that responded to the crash scene.
h. Review the injured worker’s personnel file to determine safety training.
i. Review the employee handbook to determine if rule was violated.
j. Conduct post-accident drug/alcohol tests, if applicable to you, a drug-free
program or if you have reasonable suspicion.
k. If/when BWC claim is filed, obtain authorization for release of medical
information.
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Client Briefing – Workers Comp
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
R.C. § 4123.651(B) and O.A.C. § 4121-17-30(L) require that upon request
from the BWC or the employer, the injured worker shall “promptly” provide a
current signed release of medical “information, records and reports.”

The injured worker must execute an authorization of medical information
before medical providers may release medical information. Once the
employer has a release, the employer should send the executed medical
release to all medical providers, along with a request for medical
documentation.
l. Continue to investigate after the claim is filed.
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Watch for activity inconsistent with the injured worker’s medical restrictions.
Observations at work.
Statements by others about what the injured worker is doing outside of work.
Social Media --- CAVEAT! There are restrictions on what an employer may
access directly or indirectly on another’s social media.
3. Case Example. Your employee was employed by to provide services to home health
care clients. Nearly every workday, the employee traveled in her personal vehicle
from her house to the patient’s home. She calls and tells you she was in an auto
accident on the way to a client’s house. What steps do you take to investigate?
a. Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion No. 2014 Ohio 4531.
When an employee is injured while traveling for both business and personal
purposes some states recognize a dual-purpose or dual-intent doctrine. The Ohio
Supreme Court recently addressed the issue of whether the dual-purpose doctrine
is applicable when determining eligibility for workers’ compensation in Ohio.
The Court held that the dual-purpose doctrine does not apply in Ohio.
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Employed as an in-home nurse.
Traveled in personal vehicle.
Traveled from her home to the patient’s home every day.
DOI – transported her children to the mall on the way to patient’s home.
MVA at a traffic stop.
The Ohio Supreme Court ruled that an employee’s subjective intent regarding her
dual purposes is not relevant over an objective review of the employee’s actions
and nature of employment.
B. Employer rights and obligations during the investigation.
1. Obligation to file report of claim: Employers are required to keep a record of all
claims resulting in “seven days or more” of lost time and must file a report of all
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claims resulting in “seven or more days” of lost time within one week after acquiring
knowledge of the claim. R.C. § 4123.28, O.A.C. § 4123-3-03
a. Failure to file a report extends the two-year statute of limitations up to an
additional two years for filing a claim.
b. Employers are also required to record and/or report “medical only claims” (AKA
“no compensable lost time claims”) if there are exactly seven days of lost time.
2. Obligation to accept or deny initial claim filing: Within seven days of the receipt of a
claim, the BWC notifies the claimant and employer of the fact of receipt and
allegations of the claim. The Employer will be asked to accept or deny the validity of
the claim on the provided form and return the form to the BWC. R.C. § 4123.511(A);
O.A.C. § 4123-3-08(B).
a. Reasons for denial must be stated.
b. The employer’s certification of the claim is not determinative of compensability
of the claim. O.A.C. § 4123-3-08(B)(2)-(3). The BWC will still conduct an
administrative review the claim to determine whether to allow the claim.
c. If the employer refuses or fails to complete the claim form, it may be filed without
the employer’s portion being completed.
3. Obligation not to retaliate against the injured worker or others participating in the
filing of the claim. R.C. § 4123.90.
4. Obligation to observe Federal and State Employer Law Rights:
a. Employee Right to Privacy. (This includes social media).
b. American’s with Disabilities Act (ADA).
c. Family Medical Leave Act (FMLA).
5. Right to investigate the injury and collecting documentation that is relevant to the
issue.
6. Right to demand that the injured worker sign a medical release: R.C. § 4123.651(B)
and O.A.C. § 4121-17-30(L) require that the IW sign a medical release authorizing
the employer to access medical records.
7. Right to request medical examinations of the injured worker.
a. The employer may require that the injured worker be examined by a physician of
the employer's choice one time upon any issue asserted by the employee or a
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physician of the employee's choice or which is to be considered by the
commission. R.C. § 4123.651(A).
b. The employer shall promptly inform the bureau or the commission, as well as the
claimant's representative, as to the time and place of the examination, and the
questions and information provided to the doctor. A copy of the examination
report shall be submitted to the bureau or commission and to the claimant's
representative upon the employer's receipt of the report from the doctor. O.A.C. §
4123-3-09.
c. Emergency treatment does not constitute an examination by the employer for the
purposes of this rule. O.A.C. § 4123-3-09.
d. Treatment by a company doctor as the treating physician constitutes an
examination for the purposes of this rule. O.A.C. § 4123-3-09.
e. All reasonable expenses incurred by the injured worker in submitting to such
examination, including any travel expense that the claimant may properly incur,
shall be paid by the employer immediately upon receipt of the billing. Payment
for traveling expenses shall not require an order of the BWC or IC, unless there is
a dispute. The employer shall provide the injured worker with a proper form to be
completed by the injured worker for reimbursement for traveling expenses. In
addition, if the injured worker sustains lost wages as a result of such examination,
the employer shall reimburse the injured worker for such lost wages within three
weeks from the date of examination. Expenses incurred by the injured worker and
wages lost by reason of attending such examination are not to be paid in the
claim. O.A.C. § 4123-3-09.
8. Right to send the injured worker to a post-accident drug test consistent with the
employer’s policies. (Public sector employers may face additional restrictions).
9. Right to pay continuation of wages (salary continuation) or offer light duty consistent
with the injured worker’s restrictions.
a. May have to have the injured worker sign a BWC C-55 agreement every 45 days.
C. Utilizing private investigators.
1. Employers may either report employee fraud to the BWC or investigate fraud itself,
or both.
a. Examples of claimant fraud include: working while receiving disability benefits
or “double dipping”, reporting false claims, exaggerating the extent of injuries
and/or misrepresenting the status of physical recovery and ability to return to
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work, forgery, falsifying eligibility for death benefits, drug deception, drug
diversion or doctor shopping.
2. The BWC publishes a number of “red flags” of injured worker fraud:
a. Number of days worked and amount of salary inconsistent with occupation;
b. Injured worker disputes average weekly wage due to additional income (i.e., per
diem and/or 1099 income);
c. Cross-outs, white-outs and erasures on documents;
d. Injured worker files for benefits in a state other than principle location of the
alleged industrial injury or occupational disease;
e. Injured worker-listed occupation is inconsistent with employer’s stated business;
f. Injured worker address is different than principle location of employer other than
border states;
g. Injured worker cannot be reached because he or she is never home or is reportedly
sleeping and cannot be disturbed;
h. Injured worker is seen with calluses on hands, grease under fingernails;
i. Injured worker moves out of state or country shortly after filing claim;
j. Accident/incident occurs immediately prior to strike, layoff, plant closing, job
termination or job completion;
k. Injured worker is in line for early retirement;
l. Injured worker refuses (or delays multiple times) diagnostic procedures to
confirm injury;
m. Conflicting descriptions of the accident/incident between employer’s report and
initial medical evaluation;
n. Injury is not consistent with nature of business;
o. Date, time and place of accident is unknown;
p. Injured worker cannot recall specific details about the injury
q. Report of injury not timely and immediate;
r. No witnesses to accident;
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s. Tips from coworkers.
3. Employers who suspect injured worker or physician fraud may make a referral to the
BWC’s special investigations department (“SID”). A report of fraud can be made to
the BWC through the following contact information:
https://ohiobwcfraud.wordpress.com
http://bit.ly/reportfraud
1-800-OHIOBWC, select Option “0”, then Option “4”.
BWC Special Investigations Department
ATTN: Fraud Hotline
30 W. Spring St.
Columbus, OH 43215
4. Employers may also use their own private investigators. Reasons to use your own
private investigator include:
a. The need for immediate surveillance to capture the wrongdoing.
b. Where the injured worker’s activities will be relevant to a hearing that is already
scheduled or soon to be scheduled (e.g. TTD/termination of TTD).
c. The rest of the workforce is aware that the injured worker is “taking advantage”.
d. Other reasons.
5. Tips for using private investigators:
a. Be clear about the objectives of the surveillance.
b. Prepare enough information to give the investigator proper guidance about what is
being investigated.
c. Time the surveillance around a disputed statement by the injured worker about
his/her physical condition (IME, internal investigation, hearing, deposition, etc.)
d. Coincide the surveillance with other events (injured worker sick leave, vacation,
other events).
e. Warn the investigator not to violate the employee’s right of privacy.
f. Understand that the communications with the investigator hired by the employer
are not privileged.
g. Select an investigator who will be able to testify.
h. The investigator’s factual findings should be coupled with a physician’s opinion
about the medical significance of the injured worker’s activities.
6. Industrial Commission fraud hearings:
a. A finding of fraud must be supported by reliable, probative and substantial
evidence. IC Hearing Officer Memo S2.
b. The evidence should demonstrate that the individual knowingly used deception to
obtain the overpayment.
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c. The elements of fraud which must be established are: (1) a representation, or
where there is a duty to disclose, concealment of fact; (2) which is material to the
transaction at hand; (3) made falsely, with the knowledge of its falsity, or with
such utter disregard and recklessness as to whether it is true or false that
knowledge may be inferred; (4) with the intent of misleading another into relying
upon it; (5) justifiable reliance upon the representation or concealment; and (6) a
resulting injury proximately caused by the reliance. All of the elements must be
proven by a preponderance of the evidence and all evidence establishing fraud
shall be specifically cited in the order.
d. The Hearing Officer shall declare that the fraudulent overpayment be collected
pursuant to the fraud provisions of O.R.C. 4123.511(K).
II.
STRIKE 2! - CALLING BALLS AND STRIKES
A. Choosing whether to dispute an issue.
1. Is this a “legitimate” claim?
2. What is the expected life of this claim?
3. What is the cost/benefit of disputing the claim?
a. Premium impact (state fund).
b. Costs of the claim versus resources to dispute it.
c. Injured worker’s intentions.
4. If the Claim is Questionable:
a. Probability of success in the claim.
b. Efforts required to prevail.
c. IW morale if the claim is disputed.
d. Co-Worker morale if questionable claims are not disputed.
e. Length of the process.
f. Cost of the claim & employer’s eligibility for group rating, etc.
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B. Deciding whether to use an attorney or TPA for the hearing.
1. Both Employers and Injured Workers must be careful when asking a TPA to perform
tasks on their behalf that may violate Ohio’s laws on the unauthorized practice of law.
Depending on the issue at hearing, there are situations in which a TPA can effectively
handle the hearing; however, there are other hearings when it is necessary to have an
attorney present to handle legal matters or examine witnesses.
a. Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d 168 (2004):
“Nonlawyers who appear and practice in a representative capacity before the IC
and the BWC in conformity to IC Resolution No. R04-1-01 are not engaged in the
unauthorized practice of law.”
b. Industrial Commission R04-1-01 sets forth the standards of conduct for third
party administrators, union representatives, or employees of employers who
appear before the IC and BWC in a representative capacity. See also ICR04-1-03.
2. What can a TPA or other non-attorney third party do?
a. Assist employers in investigating the facts with respect to any claim, including
discussing the facts and their relationship to the claim with employers, witnesses,
and others, preparing and securing statements, and preparing and obtaining
reports regarding the facts.
b. Assist employers in the administration and filing of claims and appeals without
making any legal determination respecting such claims or appeals.
c. Attend hearings before the IC for the purposes of recording and reporting any
action taken at such hearing, reporting the factual results of any claim
investigation, notifying hearing officers of documents in file or missing
documents, including medical reports, request continuances and discuss matters
within the independent knowledge of the representative.
d. Complete and submit records and reports with the BWC or the IC regarding the
employer, including the forms provided by the BWC and IC.
e. Complete and submit reports dealing with job classifications pertinent to premium
rates and other BWC premium programs.
f. Prepare reports to employers dealing with the status of risks, status of reserves
and actuarial analysis of claim.
g. Advise employers to seek legal representation.
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3. What Can a TPA NOT do?
a. Examine or cross-examine the claimant or any witness, directly or indirectly.
b. Cite, file or interpret statutory or administrative provisions, administrative rulings
or case law.
c. Make and give legal interpretations with respect to testimony, affidavits, medical
evidence in the form or reports or testimony, or file any brief, memorandum,
reconsideration or other pleading beyond the forms provided by the BWC or IC.
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Comment upon give opinions with respect to the evidence, credibility of
witnesses, the nature and weight of the evidence, or the legal significance of
the contents of the claim file.
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Provide legal advice to injured workers and employers.
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Give or render legal opinions, or cite case law or statutes to injured workers
and employers before, at, or after the time when claims are initially certified
or denied certification as valid claims by the employer upon the presentation
of claim applications by the employees.
d. Provide stand-alone representation at hearing by charging a fee specifically
associated with such hearing representation without providing other services.
4. Practical Considerations.
5. Examples. Do you ask your attorney or your TPA to attend the hearing?
a. Initial allowance/additional allowance issues?
b. Temporary Total Disability (“TTD”)?
c. Wage Loss?
d. Permanent Partial Disability (“PPD”)?
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Note the Industrial Commission’s Policy is not to adjudicated PPD
applications where the underlying condition is in dispute in Court. Memo E7
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State ex rel. Montello v. Industrial Commission, (1986), 25 Ohio St.3d 239
(“By the clear and unambiguous requirements of R.C. 4123.57(B), it is
incumbent upon a party seeking an increase in his percentage of permanent
partial disability to present ‘substantial evidence of new and changed
circumstances developing since the time of the hearing on the …last
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determination.’ In spite of this requirement, the medical report submitted by
appellant was devoid of any reference whatsoever that the medical conditions
described therein represented new or changed conditions which developed
since the date of the commission’s prior determination in May 1982.”
e. PTD?
f. VSSR?
C. Trending issues for TTD, PTD and intoxicated workers.
1. Temporary Total Disability (“TTD”).
a. TTD is a substitute for wages to compensate the injured worker for loss of
earnings caused by the injury. R.C. § 4123.56(A).
b. TTD is payable if the work injury prevents the IW from returning to his former
position of employment (the position the employee held at the time of the injury).
c. To receive TTD, the injured worker must not be working, under the care of a
physician, have the certification of a treating physician that the IW is not able to
return to the job duties performed at the time of the injury.
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TIP: Demand current MEDCO-14 forms from the injured worker. Review
closely to determine if the restrictions have changed, and for any
inconsistencies.
d. Termination of TTD. TTD payment shall not be made for the period when any
employee has returned to work, when an employee's treating physician has made
a written statement that the employee is capable of returning to the employee's
former position of employment, when work within the physical capabilities of the
employee is made available by the employer or another employer, or when the
employee has reached the maximum medical improvement. O.R.C. § 4123.56.
i. Return to work.
ii. Maximum medical improvement/permanency.
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TTD is not payable if the IW’s treating doctor finds MMI or a
determination is made at a hearing that the IW’s condition has reached
MMI, “a treatment plateau (static or well-stabilized) at which no
fundamental functional or physiological change can be expected within
reasonable medical probability in spite of continuing medical or
rehabilitative procedures.”
iii. No contemporaneous medical or psychological treatment.
iv. Activity inconsistent with TTD status.
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v. Light Duty Job Offers.
e. Employer Defense - Voluntary abandonment. Employees who leave work due to
reasons unrelated to the workplace injury are not entitled to TTD.
i. Voluntary Quit/Retirement.
An employee is not entitled to TTD
compensation when he quits for reasons unrelated to his injury.

State ex rel. Hildebrand v. Wingate Transport Inc. et al., 141 Ohio St.3d
533 (Jan. 22 2015). Mr. Hildebrand quit his job on the same day he
reported to work with a note from his doctor restricting him to modified
duty. Mr. Hildebrand was a mechanic who sustained a back injury on the
job. A week after sustaining the injury Mr. Hildebrand returned to work
with restrictions. Shortly after he arrived, the owner of Wingate
Transportation requested that Mr. Hildebrand return the key to a Jeep that
he loaned Mr. Hildebrand for the previous six months. Mr. Hildebrand
became agitated and asked if he was being fired. The owner said he was
not being fired, but it was time to stop using the Jeep. Mr. Hildebrand left
the premises. A week later, Mr. Hildebrand filed for unemployment
compensation. The Department of Job and Family Services denied the
application finding that he quit his job without just cause. Mr. Hildebrand
argued that he was entitled to TTD compensation because he was
receiving TTD compensation at the time his employment terminated. He
further argued that it is irrelevant whether he quit or was fired. The
Industrial Commission, and ultimately the Ohio Supreme Court disagreed,
finding that an employee who quits for reasons unrelated to his injuries
voluntarily abandons his job and is preclude from receiving TTD
compensation. After all, an employee receiving TTD compensation has
little incentive to quit.
ii. Violation of Employer Workplace Rules. State ex rel. Louisiana-Pacific
Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995). The Court stated, “we find
it difficult to characterize as “involuntary” a termination generated by the
claimant’s violation of a written work rule or policy that (1) clearly defined
the prohibited conduct, (2) had been previously identified by the employer as
a dischargeable offense, and (3) was known or should have been known to the
employee.”

State ex rel. Pretty Products v. Indus. Comm., 77 Ohio St.3d 5 (1996): The
IW injured her lower back in a workplace accident, resulting in a period of
absence from work. After returning to work, the IW began having back
pain. The IW was absent for three days and did not provide any excuse
slip that extended her disability. Accordingly, the IW was terminated
under a provision of the collective bargaining agreement. The Court
reasoned that an employee cannot abandon a former position of
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employment or remove himself from the work force if he does not have
the physical capacity to perform the job duties at the time of termination.

State ex rel., Gross v. Indus. Comm., 115 Ohio St.3d 249 (2007): The IW
was injured when he violated a workplace safety rule and repeated verbal
warnings. The Employer terminated the IW’s employment due to the
violations. The IC terminated the IW’s TTD benefits on the basis that he
had voluntarily abandoned his employment. The Court of appeals
reinstated the TTD benefits, and the Supreme Court affirmed that decision,
because the IW’s termination was causally related to his injury.
iii. Voluntarily Abandoning Light Duty. Injured workers can be deemed to have
voluntarily abandon their light duty assignments when they violated the
employer’s work rules while performing light duty.

State ex rel. Jacobs v. Industrial Commission of Ohio, 139 Ohio St.3d 86
(2014). In Jacobs, an injured worker’s doctor wrote her back to work light
duty. The employer offered her light duty, which she accepted and
returned to work. An hour after returning to work, she left, complaining
of pain and her inability to continue work. She told her employer that she
intended to follow-up with her doctor. The employer later confirmed that
the injured worker did not follow-up with her doctor. The injured worker
never returned to work and did not comply with the employer’s
absenteeism policy. The employer notified her that she was AWOL and
that if she did not contact her employer by a certain date, her employment
would be terminated. She did not contact her employer, and she was
terminated. The injured worker sought TTD benefits claiming that she
was too injured to return to work. The employer argued that she
voluntarily abandoned her work when she refused to contact her employer
about her job. The Industrial Commission, Court of Appeals and Supreme
Court all sided with the employer. The injured worker never provided her
employer with medical evidence that the light duty position was beyond
her capability.

State ex rel. Robinson v Indus. Comm., 138 Ohio St. 3d 471 (2014).
Shelby Robinson was employed as a licensed practical nurse by
Progressive Parma Care Center. When hired, she was given a written job
description and employee manual. In her first decade of employment she
was disciplined for violation of several work rules and notified that
continued violations may result in termination of employment. On April
10, 2008, she was injured at work, filed a workers’ compensation claim
which was allowed. As a result, she was provided light duty within her
medical restrictions. On April 15, 2008, a state surveyor notified
Progressive Parma Care that Ms. Robinson had failed to communicate a
patient’s dietary needs. A supervisor unsuccessfully attempted to review
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the situation with Ms. Robinson. On April 21, 2008, Ms. Robinson’s
physician rendered an opinion that she was completely incapable of
working effective April 10, 2008, and she applied for temporary total
disability compensation (“TTD”). On April 30, 2008, Progressive Parma
Care terminated Ms. Robinson’s employment for violation of work rules.
The Ohio Supreme Court ultimately upheld the denial of TTD agreeing
that Robinson’s termination was due to her own misconduct. This case
illustrates the importance of having written work rules and appropriately
managing employment situations despite involving an employee with an
approved workers’ compensation claim.
f. Employer Defense - Activity inconsistent with the receipt of TTD.
i. State ex rel. McBee v. Indus. Comm, 132 Ohio St.3d 209, 2012-Ohio-2678:
The IW received TTD from October 2004-March 2006. During this time, the
IW helped his wife with her business, engaging in activities that “directly
generated income” but was not paid. The activities were ongoing and
occurring consistently. The BWC sought an overpayment and finding of
fraud and the IC granted both. The IW sought a writ of mandamus and the
10th District Court of Appeals affirmed the overpayment but vacated the
fraud. The 10th District held that the IW’s activities assisting his wife’s
business did constitute work as to preclude him from receiving TTD.
However, the Court vacated the fraud finding because the evidence did not
prove the IW knew that his unpaid activities constituted work for purposes of
TTD eligibility. The Supreme Court of Ohio affirmed.
ii. Goodwin v. Industrial Commission, 124 Ohio St. 3d 334 (2010): While on
TTD benefits, the IW worked 33 hours in one week, and BWC sought
overpayment for this time period, and also all TTD paid, subsequent to closed
period of employment. Supreme Court sided with IW, holding that there was
no material misrepresentation and/or fraud, because the IW had only worked
one week, and no evidence that IW had engaged in activities inconsistent with
medical restrictions. Supreme Court also held that IW cannot receive wages
and TTD benefits for the period, regardless of the timing of issuance of the
TTD check.
iii. Walters v. WEK Acquisition Corp., 2010-Ohio-3520 (10th Dist.): The IW
received temporary total disability (TTD) compensation for workplace injuries
and IC later terminated benefits, after determining maximum medical
improvement. BWC Special Investigations found that IW worked as psychic
& tarot card reader during the period of TTD compensation. Appellate court
found ample evidence to support BWC’s determination that IW committed
fraud by working while drawing TTD benefits. Although the IW’s selfemployment as a psychic/tarot card reader was sporadic, evidence
demonstrated that she was paid for her fortune-telling services, and even part-
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time self-employment for low wages was legally sufficient to constitute
earnings.
2. Permanent Total Disability.
a. Permanent and total disability is defined as the “inability to perform sustained
remunerative employment due to the allowed conditions in the claim.” O.A.C. §
4121-3-34(B)(1).
b. “Permanent” means that the disability will, within reasonable probability,
continue for an indefinite period of time without present indication of recovery,
but does not mean that the disability must continue for the duration of the life of
the claimant.
c. PTD award compensates an IW for impairment in earning capacity.
d. New PTD Rule effective December 15, 2014.

http://www.ic.ohio.gov/policies/rules_pdfs/4121_3_34.pdf
e. State ex rel. Bailey v. I.C., 139 Ohio St. 3d 295 (2014). The IW was denied PTD
in 2009 based on psychological and physical exam findings. The examining
physician was the late Dr. Howard. He found the IW had no work limitations due
to the psychological conditions. IW was awarded a PPD increase for the allowed
psychological conditions due to a separate 2005 report. Additional psychological
treatment was authorized. The IW reapplied for PTD. In 2010 the IC denied
PTD again based, in part, on Dr. Howard’s 2009 report. The Ohio Supreme Court
affirmed the decision to deny the claim. There were no new and changed
circumstances since the initial PTD application was denied. Further, Dr.
Howard’s 2009 report was still evidence upon which the IC could rely in denying
the new PTD application.
3. Intoxication.
a. O.R.C. 4123.54. Injured worker is not entitled to compensation if the injury was
caused by the employee being intoxicated or under the influence of a controlled
substances not prescribed by a physician.
b. Phelps v. Positive Action Tool Co., 26 Ohio St. 3d. 142 (1986). An employee
who drinks intoxicating liquor to such an extent that he can no longer engage in
his employment abandons his job and, when injured in that condition, his injury
does not arise out of his employment

State ex rel. PaySource USA, Inc. v. Indus. Comm'n of Ohio, No. 08-AP-677,
2009 WL 3246775 (Ohio Ct. App. June 30, 2009). Injured worker voluntarily
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abandoned his employment, precluding award of TTD benefits, by ingesting
cocaine in violation of drug-free workplace policy prior to industrial accident.

State ex rel. Cordell v. Indus. Comm., 2014-Ohio-5561, ¶ 2 (Ohio Ct. App.
Dec. 18, 2014). Calls into question PaySource USA when infraction of
workplace rule was undetected until after the workplace injury.
c. Rebuttable Presumption. If the employer has posted notice, and the employee
fails or refuses the test, there is a rebuttable presumption that the employee was
intoxicated and that the intoxication was the proximate cause of the injury.
O.R.C. 4123.54.



Qualifying chemical test.
Test for alcohol within eight (8) hours of the injury.
Test for drugs within thirty-two (32) hours of the injury.
d. Evidence to Support Rebuttable Presumption.






Drug-Free Workplace Posting
Drug-Free Workplace Policy
Employee Acknowledgment of Workplace Policies.
FROI (shows date/time of injury).
Evidence of what was tested.
Laboratory Results (shows date/time of test).
D. Practical tips for success.
NOTE: If your hearing requires arguments that constitute the practice of law, your
attorney must present those arguments, including cross-examination of witnesses.
1. Conduct a prompt thorough workplace investigation.
2. Conduct a thorough pre-hearing investigation on the disputed issue.
3. Obtain and file with the BWC/IC all relevant medical information.
4. Be diligent in preparing for the hearing.
a. IC Memo R7 – Use of Audiovisual Evidence.
b. Hearing Administrator.
c. Number of Witnesses.
5. At the hearing, be concise and focused on your theory.
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a. Hearing time is very limited.
b. Present a logical, sequential case.
c. Focus on the key issues and key documentation in the case.
6. If you are surprised by the injured worker with documentation at the hearing for the
first time, request a continuance to review and research the documentation.
7. Be respectful of the hearing officer’s time.
E. Employer’s role in court appeals.
1. “Right to Participate” appeals under 4123.512.
a. Applies to initial and additional allowance claims.
b. Must be filed within 60 days of the party’s receipt of the last IC order.
c. Initiated by a Notice of Appeal.
d. Three parties:
(Defendant).
Injured Worker (Plaintiff), Employer (Defendant), BWC
e. BWC is represented by the Ohio Attorney General’s Office
f. Follows normal litigation process:
Trial.
Complaint, Answer, Discovery, Pre-Trial,
g. Issue for the Jury: “Is the injured worker entitled to participate in the Ohio
Workers’ Compensation Fund for the condition of ________________.”
h. Statutory attorney fees.
i. Mediation/Settlement Conferences.
2. Failing to Participate in a 4123.512 appeal.
a. The BWC does not represent the Employer’s Interests.
b. Failing to become involved in the claim may have an adverse impact on the
employer’s premiums.
3. Mandamus Claims.
4. Settlements.
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III.
STRIKE 3! - INJURED WORKER ABSENCES.
A. Defensible light duty job offers.
1. Why offer light duty: Injured workers have the potential to be off-work for a long
period of time, even permanently, depending on the severity of the injury. During the
time the employee is off-work due to the injury, he or she is entitled to reimbursement
for medical expenses, as well as compensation for the lost wages or compensation he
or she would have received if not precluded from working due to the injury.
Consequently, if an employer has a light-duty assignment available for the employee
that is consistent with medical restrictions, the employee has the opportunity to work
while the injury heals, reducing the amount of lost compensation. The employer
benefits from the productive work of the employee during this time.
2. When to offer light duty: Employers should consider offering light duty as soon as
practicable. The sooner an employee begins light duty work, the less lost
compensation the employer will be liable to pay in the event the employee is awarded
lost compensation benefits. However, employer’s need to keep in mind that the light
duty position must be consistent with the employee’s medical restrictions.
3. Elements: TTD may be terminated upon the DHO’s finding that the employee
received a good faith written light duty job offer. O.A.C. 4123-3-32. The work must
be within the employee’s physical capabilities. To be valid, the written offer must:
a. Be written;
b. For work within a reasonable proximity of the injured worker’s residence;
c. Identify the position offered (title, location, start date, wage, days and hours);
d. Include a description of the duties of the position;
e. Cleary specify the physical demands of the job;
f. Be made at least 48 hours before filing a motion to terminated TTD.
4. Practice TIPS:
a. Send the letter by certified mail/return receipt or by hand delivery,
b. Copy the physician of record,
c. Make a specific list of the physical demands of the work. Avoid using subjective
terms such as “infrequent” or “occasional”. Compare the duties with the injured
worker’s medical records (e.g. MEDCO-14) to assure the position is compatible
with his medical restrictions,
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d. Include an order that the injured worker is required to confine his activities to the
work described and not to violate his medical restrictions,
e. Include a disclaimer that the employer reserves the right to discontinue the light
duty assignment at any time.
f. Provide the employee a specific amount of time to accept the offer.
g. Include an order that the injured worker must immediately report any change in
his medical restrictions to his manager.
5. Case Example. State ex rel. Akron Paint & Varnish, Inc. v. Gullota, 131 Ohio St.2d
231, 2012-Ohio-542: Following a workplace injury, the IW was awarded TTD. The
employer offered the IW a light duty position in which the IW worked for several
months. Following several months of working in a light duty capacity, the IW’s
physician reduced his restrictions and the employer increased the IW’s job duties.
The IW was unable to perform the increased physical duties, informed the employer
and resigned. The IW did not seek work elsewhere. Four months after resigning, the
IW sought TTD from the time of resignation to the present. The IC denied the TTD
because the employer had provided a valid, light duty position within the IW’s
restrictions and the IW refused the position offered. An additional four months later,
the claim was allowed for an additional condition. The IW sought a new period of
TTD, which the IC granted. The employer sought a writ of mandamus and it was
granted. The 10th District Court of Appeals held that the IC abused its discretion by
invoking continuing jurisdiction with respect to the TTD award because the newly
allowed condition did not change the legal finding that the IW had refused a valid,
light duty job offer. In affirming the decision, the Supreme Court held that while the
addition or worsening of a condition can constitute new and changed circumstances
for TTD, the prior denial of TTD was based on a legal finding. Since nothing had
changed with respect to the IW’s work situation, there were no new or changed
circumstances that claimant could reinstate his TTD eligibility.
6. Caution: Courts are picky about what constitutes a sufficient offer of light duty. A
written offer lacking the required specificity cannot be cured by the employer’s verbal
assurance that restrictions will be honored.
a. For example, it has been held that it is insufficient to simply offer a “left-handed
position” to an employee with an injured right hand.
b. There may also be issues if an employer offers light duty on a different shift. In
one case, the Supreme Court found an issue of fact as to whether the employer
offered the different shift in good faith.
7. Light Duty for another employer.
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B. Terminating light duty.
1. How long to offer light duty: While light duty positions can be beneficial to help an
employee heal while working in the short-term, employers should be careful not to
inadvertently establish a permanent light-duty position if such a position would be
unduly disruptive to the employer’s operations.
a. It may be argued that indefinite light duty have changed the essential functions of
the position.
b. Employers should consult with an attorney prior to establishing a long-term or
permanent light duty positions.
2. When to terminate light duty.
a. When no light duty is available.
b. New MEDCO-14.
c. Employee capable of returning to work.
d. When light duty lasts beyond the employer’s policy.
e. Employee violates work rule while working light duty and would otherwise have
been terminated if not an injured worker.
f. Example. Drummond v. Paccar, Inc., Ross App. Dist. Ohio No. 11CA3226, 2011
-Ohio- 6249, 2011 WL 6091762 (Ohio Ct. App. Nov. 30, 2011).The injured
worker was terminated for engaging in activities that violated the medical
restrictions imposed on him when he returned to work. The injured worker had
not filed a workers’ compensation claim. This constituted sufficient evidentiary
materials for the employer to satisfy its initial burden on summary judgment.
Accordingly, the burden shifted to the injured worker to provide rebuttal materials
to show that genuine issues of material fact do, in fact, exist that negate summary
judgment and require a trial. The injured worker did not offer anything in his
affidavit to refute the explanation that a legitimate reason supported his discharge.
“We note that RC 4123.90 does not prohibit a termination that an employee may
personally perceive as unfair; rather, the statute prohibits a termination in
retaliation for filing a workers' compensation claim.”
3. How to Terminate Light Duty.
a. Explanation to injured worker.
b. Consider FMLA rights.
c. Observe ADA reasonable accommodation accommodations.
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d. Observe collective bargaining rights.
4. Involuntary Disability Separation.
a. O.A.C. 123:1-30-01.
b. An involuntary disability separation of a public employee is not, itself, a violation
of the Ohio Workers’ Compensation Act. But, an involuntary disability
separation could be illegal if the employer used it to retaliate against an employee
for asserting his/her rights under the Act. Cordial v. Ohio Dep’t of Rehab. &
Corr., Franklin App. Dist. No. 05-AP-473, 2006 Ohio 2533 (Ohio Ct. App. 2006).
C. ADA, FMLA, collective bargaining, and other curveballs.
Managing an Injured Worker’s claim and leave can involve the interaction between the
following laws and employment contracts, among others: Ohio Workers’ Compensation,
ADA (Americans with Disabilities Act), FMLA (Family Medical Leave Act), Collective
Bargaining Act (NLRA/Ohio Collective Bargaining Act), union/employment contracts.
1. ADA. The Americans with Disabilities Act applies to employers who employ 15 or
more employees for each working day in each of at least 20 weeks in the preceding
year. 42 USC 12101; 29 CFR 1630.2(e). In order to prevail on a disability
discrimination claim, the employee or former employee must be able to demonstrate
(1) that she is disabled, (2) that she is otherwise qualified for the position and can
perform the essential functions of the job, with or without reasonable
accommodation, (3) that she suffered an adverse employment action, (4) that the
employer knew or had reason to know of her disability, and (5) that the position
remained open while the employer sought other applicants or the disabled individual
was replaced. White v. Standard Ins. Co., et al., 6th Circuit Case No. 12-1287 (June
28, 2013).
a. Interplay with Workers’ Comp. A workplace injury or occupational disease may
or may not qualify as a disability under the ADA.
b. Disability. The ADA defines a "disability" as (A) a physical or mental
impairment that substantially limits one or more of the major life activities of
such an individual; (B) a record of such impairment; or (C) being regarded as
having such an impairment. 42 U. S. C. 12102(2)(A)-(C).
c. ADAA. The “ADA Amendments Act of 2008” (“ADAA”) revises the definition
of “disability” to more broadly encompass impairments that substantially limit a
major life activity. The amended language also states that mitigating measures,
including assistive devices, auxiliary aids, accommodations, medical therapies
and supplies (other than eyeglasses and contact lenses) have no bearing in
determining whether a disability qualifies under the law. Changes also clarify
coverage of impairments that are episodic or in remission that substantially limit a
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major life activity when active, such as epilepsy or post traumatic stress disorder.
The amendments took effect January 1, 2009.
d. Major Life Activities. The ADAA, among other things, greatly expanded the
definition of “Major Life Activities” under the ADA to include:





Eating;

Thinking;
Sleeping;

Communicating
Reading;

Operation of the immune system;
Concentrating;

Normal cell growth;
Digestive, bowel, bladder, brain, neurological, respiratory, circulatory,
reproductive functions.
“Major Life Activities” are defined in the EEOC’s regulations as “those activities
that the average person in the general population can perform with little or no
difficulty.” 29 C.F.R. Part 1630 Appendix. The regulations provide these further
examples of “Major Life Activities”:













Hearing;
Learning;
Seeing;
Working;
Speaking;
Concentrating;
Breathing;
Paying attention;
Performing manual tasks;
Exercising judgment;
Walking;
Interacting with others;
Caring for oneself.
e. Regarded as Disabled. The regarded-as-disabled prong of the ADA protects
employees who are perfectly able to perform a job but are rejected because of
myths, fears and stereotypes associated with disabilities. Individuals may be
regarded as disabled when: (1) an employer mistakenly believes that [an
employee] has a physical impairment that substantially limits one or more major
life activities, or (2) an employer mistakenly believes that an actual, non-limiting
impairment substantially limits one or more of an employee's major life activities.
In either case, it is necessary to show that the employer entertains misperceptions
about the employee. Daugherty v. Sajar Plastics, 544 F. 3d 696, 702-703 (6th Cir.
2008). Under the ADAA, employees can establish that the employer regarded
them as disabled “whether or not the impairment limits or is perceived to limit a
major life activity.”

There mere fact that an employer recognizes an employee's impairment and
provides the employee with requested accommodation does not indicate that
the employee is regarded as disabled. See Plant v. Morton Intern., Inc. 212
F.3d 929 (6th Cir. 2000) (finding that a plaintiff could not show that he was
regarded as disabled through evidence that his supervisor was aware of his
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medical restrictions and modified the plaintiff's responsibilities based on those
restrictions)
f. Accommodating Disabilities. The ADA defines the term "qualified individual
with a disability" to mean "an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." 42 U. S. C. 12111(8).
Short-term unpaid absences may be considered a reasonable accommodation.
g. Interactive Process. The ADA's implementing regulations provide, “it may be
necessary for [an employer] to initiate an informal, interactive process” to
determine an appropriate reasonable accommodation. 29 CFR 1630.2(o)(3). That
process “requires communication and good-faith exploration of possible
accommodations.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862 (6th Cir.
2007).
h. A reasonable accommodation is any change or adjustment to a job or work
environment that permits a qualified applicant or employee with a disability to
participate in the job application process, to perform the essential functions of the
job, or to enjoy the benefits and privileges of employment equal to those enjoyed
by employees without disabilities. Examples of reasonable accommodations:



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


The acquisition or modification of equipment or devices;
Job restructuring;
Part-time or modified work schedules;
Reassignment to a vacant position;
Adjusting or modifying examinations, training materials or policies;
Providing readers and interpreters; and
Making the workplace readily accessible to and usable by people with
disabilities.
i. The ADA requires that the employer make reasonable accommodations for known
physical or mental limitations of an otherwise qualified employee or applicant
with a disability. 42 U.S.C. § 12112(b)(5)(A) (1994). However, the employer
need not make the requested accommodation if it would result in further harm to
the employee or applicant. Chevron, U.S.A., Inc. v. Echazabal, 122 S. Ct. 2045
(2002).
j. Undue Hardship. An employer must accommodate an employee, so long as there
is no undue hardship placed upon the employer. The presence of an undue
hardship is most often determined by the difficulty or expense placed upon the
employer in accommodating the employee. Factors will vary from employer to
employer, but common factors include the size of the employer, the costs of the
accommodation, the job, and the employee’s disability. See 29 CFR 1630(p). As
with the FMLA, an employee can use accrued paid leave while on ADA
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disability, however, if no paid leave is available to the employee, the employer
should grant unpaid leave and continue to provide insurance if it is part of the
employer’s policy.
k. No Duty to Create New Position. An employer does not have a duty to create a
position that does not exist to accommodate an injured employee. Hoskins v.
Oakland County Sheriff, 227 F.3d 719 (6th Cir. 2000). Nor does the ADA require
an employer to allow a disabled employee to “bump” another employee from his
or her position.

Horn v. Knight Facilities Mgmt, 556 Fed App’x 452 (6th Cir. 2014). Knight
Facilities Management employed Horn as a janitor. Janitorial duties included
cleaning the restrooms, conference rooms, floors, counters, windows, and
refrigerators among other tasks. Horn used a Lemon-scented chemical to clean
the various assigned areas. After nearly two years of employment, Horn
visited her doctor complaining of burning in her lungs and chest. Her doctor
wrote a note indicating Horn had developed sensitivity to the cleaning
chemicals used and that she should restrict her exposure to those chemicals
while in the restrooms to two hours per day and that the restrooms should be
well ventilated. Horn’s symptoms returned and after a second visit to the
doctor, Horn’s doctor recommended that she has no exposure to the cleaning
solutions at all. Knight Facilities Management indicated there was no work
available based on her restriction. Horn brought suit alleging that her
employer failed to provide a reasonable accommodation.
The employee proposed either reassignment to another position or to wear a
respirator while using the cleaning products. Knight Facilities refused both
recommendations. She was not eligible to move to a different position based
on her seniority, and using a respirator still did not meet the doctor
recommended restriction of no exposure. The court found that neither the
proposed accommodations were objectively reasonable because they both
failed to comply with the physician-mandated restriction of ‘no exposure to
cleaning solutions.’ Eliminating the bathrooms on Horn’s route or assigning
her to a new route without bathrooms are not reasonable accommodations
because Horn’s job still would have involved exposure to cleaning chemicals.
Likewise, there is no evidence that working with a respirator could have
eliminated or significantly reduced her respiratory exposure. The janitor’s
personal belief that she could handle cleaning solutions as long as she was
wearing a respirator was irrelevant.
l. Full-Time to Part-Time. The Sixth Circuit Court of Appeals has held that an
employee in a full-time position with a disability cannot reasonably request that
her position be converted into a part-time position. An employer is able to
establishing that full-time work is an essential function of a position by showing
that it never employed individuals in that position on a part-time basis, the job
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description for the position indicated full-time status, and the employee
acknowledges that she is unable to complete the requirements for the position
within part-time hours. A request to continue working part-time when an
employee had been unable to perform the essential functions of the position while
working part-time for weeks was not a request for a reasonable accommodation.
m. Working Remotely. E.E.O.C. v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015)
(en banc) (all judges). Jane Harris was a resale steel buyer at Ford from 2003 until
termination of her employment in September, 2009. The essence of her job was
group problem-solving, which requires being available to interact with
employees, suppliers and others in the supply chain. A resale buyer is required to
perform ten essential job functions. Ms. Harris admitted that she could only
perform four of ten telecommuting from home. Ms. Harris suffered from irritable
bowel syndrome (“IBS”). Throughout her employment Ford permitted Ms. Harris
to frequently work from home on an “informal basis” to keep up with her work. In
February 2009, Ms. Harris formally requested to telecommute up to four days per
week to accommodate her IBS. Ford utilized a telecommuting policy, but denied
Ms. Harris’ request claiming that resale steel buyers can only telecommute one
day per week due to site visits and team meetings. Ford offered to move Ms.
Harris cubicle closer to the restroom among other accommodations. Ms. Harris
rejected these options. Ms. Harris alleged disability discrimination and
retaliation. Regular, predictable on-site attendance is an essential function of the
job. The employer was not required to provide the requested accommodation.
n. It may be a reasonable accommodation to provide an additional leave of absence
to the injured worker.
o. Refusal to Accept Accommodation. If an employee refuses to accept a reasonable
accommodation, the individual may be considered non-qualified. Further, an
employee cannot compel his or her employer to provide a specific
accommodation if another reasonable accommodation is available. Hankins v.
The Gap, 84 F.3d 797 (6th Cir. 1996).
p. Return to “full duty”. The employer must discuss a reasonable accommodation to
a qualified individual with a disability. The EEOC takes the position that the
employer cannot require an injured worker to be able to return to “full duty”,
since “full duty” may include marginal as well as essential job functions or may
mean performing job functions without an accommodation.
2. FMLA. The Family Medical Leave Act applies to employers who employ 50 or more
employees within a seventy-five mile radius, and to public employers. 29 USC 2615.
To be eligible for leave under the FMLA, an employee must meet the following
conditions: (1) The employee must have worked for the employer for at least twelve
(12) months, or fifty-two (52) weeks (which need not be consecutive); and, (2) The
employee must have worked at least 1,250 hours during the twelve (12) month period
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immediately prior to the date when the FMLA leave is scheduled to begin. The
employee must have a qualifying reason for the leave.
a. Qualifying Reason. A serious health condition is defined as any illness, injury,
impairment, or physical or mental condition that involves: 1) inpatient care, or 2)
any period of incapacity of more than three calendar days that also involves: a)
two or more treatments by a health care provider, or b) treatment by a health care
provider on one occasion that results in a regimen of continuing treatment under
the supervision of a health care provider.

Note: DOL Regulations clarify that the two treatments by a health care
provider must occur within 30 days of the period of initial incapacity (absent
extenuating circumstances) under the first part of this definition and the
“continuing regimen” section of the definition requires a first visit to a health
care provider within 7 days of the initial incapacity.
b. Qualifying Reason. Chronic Serious Health Condition: a) requires periodic visits
for treatment to a health care provider; b) continues over an extended period of
time, and c) may be periodic rather than a continuing incapacity.

Note: DOL Regulations clarify that “periodic visits” means at least 2 visits per
year.
c. Qualifying Reason. Absence for restorative surgery after an accident/injury or for
a condition that would likely result in an absence of more than three days at a later
date without medical intervention at the present time.
d. Concurrent Use of Paid Leave. Employers may require that employees substitute
accrued but unused vacation, personal, family, or sick leave for unpaid FMLA
leave. An employee may elect to substitute appropriate accrued paid leave for any
period of unpaid leave.

Light Duty: Employers are prohibited from counting an employee’s time
worked during a temporary light-duty assignment (typically pursuant to a
workers compensation injury) against the employee’s twelve-week FMLA
allotment.
e. Intermittent Leave. In medically necessary situations, the FMLA allows
employees who take FMLA leave because of their own serious health condition to
take leave on an intermittent or reduced schedule basis (i.e. work fewer hours per
day or per week).

Intermittent or reduced scheduled leave may be taken by the employee in any
size increments, and employers may only charge intermittent or reduced
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schedule leave against the employee’s 12 week total by the smallest increment
of time that the employer’s payroll system will accommodate.

Employees taking intermittent or reduced schedule leave must attempt to
schedule leave so that it does not interfere with or disrupt the employer’s
operations.

The Employer has a right to temporarily transfer an employee taking
intermittent leave or reduced schedule leave to a position with equivalent pay
and benefits.
f. Periodic Status Reports. The employer may require the employee to report
periodically during leave regarding the status and intention to return to work, but
no more frequently than every thirty (30) days.
3. Collective Bargaining.
4. Comparison.
Purpose
Provides wage replacement benefits
WC
and payment or reimbursement of
related medical expenses for
individuals with work-related injuries.
FMLA Provides 12 weeks of unpaid leave a
year, continuously or intermittently,
for a qualifying event; or up to 26
weeks to care for a “covered service
member” suffering from a “serious
injury or illness” received in the line
of duty.
Prohibits discrimination against
ADA
applicants and employees who are
“qualified individuals with a
disability.”
Which Employees Are Covered?
Which Employers Are Covered?
Applies to most employers, even small
employers, although some state laws exclude
self-employed individuals, domestic workers,
etc.
Employers with 50 or employees for at least
20 weeks in the current or preceding calendar
year.
Public employers are covered too, but public
employees may not be eligible unless the
employer has at least 50 employees.
Employers with 15 or more employees.
What Type Of Injuries And Illnesses Are
Covered?
Injuries or illness that occurred within the
course and scope of employment
Employees with injuries occurring
within the course and scope of
employment, with some exceptions
for willful disregard of safety rules,
or intoxication from alcohol or illegal
drugs.
FMLA Employees who have been employed Upon birth of child and in order to care for
WC
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for at least 12 months at a site with
50 or more employees within a 75
mile radius of larger site, and have
worked at least 1250 hours during
the 12 months prior to the leave
request.
ADA
Employees (or applicants) who are
disabled under the ADA, are
qualified for the position and can
perform the essential functions of the
position with or without a reasonable
accommodation.
the child; Upon adopting a child; To care for
immediate family member who has a
“serious health condition”; to care for
employee’s own “serious health condition”;
To care for “next of kin” who is a military
service member suffering from a “serious
illness” received in the line of duty; For a
“qualifying exigency” related to an
immediate family member’s call to active
duty in the military.
The illness or injury must substantially limit
one or more major life activities.
Required To Offer Restricted Or
Certification To Return To Work
Light Duty?
No, many employees offer light duty
May be required.
WC
(“transitional work duty”) if available.
Can only be required under a policy or
FMLA Cannot be required.
practice that requires employees who have
been on a similar type of leave of absence.
Required to be offered if it is a
Certification is permitted so long as the
ADA
reasonable accommodation that does
medical examination and inquiry is related and
not create an undue hardship on the
necessary to determine whether the employee
employer.
can perform the essential functions of the job.
Benefits While on Leave
Not
required
to be continued unless
WC
employee’s workers’ compensation
leave is exhausted concurrently with
FMLA leave.
FMLA Health coverage must be continued at
same level as prior to the leave.
Employer cannot discriminate and
ADA
must provide same benefits to those
provided to employees on non-ADA
leave of absence.
Reinstatement
No reinstatement right, except employer may
not retaliate against employee for filing a
workers’ comp claim.
Reinstatement is required to the same or
equivalent job.
Reinstatement to the previously held job is
required unless doing so would create an
undue hardship on the employer.
Presentations/fhka client briefings/2015/workers-comp/Outline
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