From the Author

Posted By on December 21, 2012

I have looked back over the history of these articles and I find that even though I have not been adding new postings a number of people have still come on the site, to read the articles.   I hope  people will continue to read these articles and take something of interest from them.  Please do not use them as some type of yardstick to determine the merits of your case or as a how-to guide to pursue any remedy.  This is not the purpose of these writings and you would be making a mistake to do so.  The law is different in many different locations and time itself may have an impact upon your rights and obligations as many areas of the law are in a state of change which requires constant vigilance by the practitioner to stay abreast of.

Our country is a diverse place to live where often the laws of one state have little in keeping with those of another.  The application of the law may differ between different portions of the same state and the interpretation may subtly differ between different courts which are located in the same locality.  Treat these articles in the spirit with which they are offered, that being, to encourage scholarly discussion and in some instances to generally awaken people and provide them with a little deeper understanding significant for raising a question rather than to answer one.    Seek counsel with an experienced attorney who can view all of the facts of your matter and provide you with a well-rounded response to your problem.  Again.  I thank you all for taking the time to read what I have written.

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A follow-up to whether Workers Compensation Permanent Partial Awards are really permanent?

Posted By on May 20, 2011

It has been some time since my February 2009 post dealing with the permanency issue in the workers compensation context and the resulting award of money associated with that permanent loss.  The following article provides a description of how this matter ended.  As you recall, the Ohio Bureau of Workers Compensation (Bureau) claimed that this individuals condition had improved such that he could no longer claim a functional loss of use (like an amputation, which has its own paragraph in the related section in the Ohio Revised Code, in effect but without the actual loss of the body part in reality) and therefore he might need to return some of the award money to the Bureau.  I provide only an abbreviated description of the matter below and ask that you go back and read the earlier post “Is a Workers Compensation Permanent Partial Award really permanent?for a more complete description if the abbreviation does not provide an adequate description of what happened prior to the Hearing.  If you are interested in reading more in regard to the permanency award then you may wish to read my article entitled: Are you leaving money on the table in your Ohio workers compensation claim?”

You can imagine the concern that an injured worker would have where they have been awarded a sum of money and then months or even years later the Bureau demanded they repay the award or a portion of it (or take some reduction in their future benefits to offset the payment).  Please keep in mind this is not a person who committed any type of fraud, misstatement or otherwise acted improperly and, in fact, the Bureau did not claim the worker did anything wrong. The injured worker had simply followed his own doctor’s orders in obtaining recommended treatment, and as a result the Bureau claimed some current improvement in his condition such that he no longer suffered from a functional loss of use. 

Again, the question here involved an alleged improvement in the current percentage of disability from that which existed at the time of the original award.    There is no question, and the Bureau makes no argument, that at the time that the award was made the Injured Worker was entitled to it.  Please note that a Permanent Partial disability compensation award is made without concern for a persons ability to work.  In the past the Injured Workers later recovery, after the Partial disability award was determined, was not an issue.  The Bureau awarded this Injured Worker a sum of money for his “functional loss of use” of a portion of his body as determined by the Bureau, or Industrial Commission if appealed, at a particular place and time after medical examination for that purpose.

Certainly, if this matter involved a determination of a Permanent disability, which made the Injured Worker unable to work, there does exist a procedure to review recurring wage type benefits where the Worker improved to the extent that he/she could re-enter the workforce.  In those type situations the treating physician is usually required to provide the Bureau with regular reports to establish an ongoing eligibility for these payments.  The matter dealt with here is not that type of benefit nor did the Bureau make these type of continuing inquiries, at least prior to seeking the overturn of the award.

Cutting to the point in this matter, at the hearing to set aside the award based upon the Bureaus claim of improved condition, the Ohio Industrial Commission, the hearing arm of the Bureau, ordered a new examination by a doctor hired by the state for that purpose to determine the injured workers current state of permanency regarding this functional loss of use.  The subsequent adoption by the Industrial Commission of the determination by this doctor that the injured worker continued with a functional loss of use effectively determined this case in favor of the injured worker.  In so doing the question as to whether this matter was properly before the Industrial Commission was never taken up into the court system to determine the propriety of bringing this type of case before the Industrial Commission for determination in the first place.  In essence: the ruling in this case might be used as some, even limited future precedent, for the Industrial Commission to exercise continuing jurisdiction in this type of case even though the final results, in this particular matter, were favorable to the injured worker.

Once the matter was resolved favorably for the Injured Worker there remains little more to do.  I do not know the current posture of the Ohio Bureau of Workers Compensation in regard to their attitude toward other such cases but they seemed serious in their attempts to set aside the award and require at least partial repayment/offset of future benefits against this Injured Worker. While this matter might seem of limited precedential importance, considering the facts of this case, I see little to distinguish the application of the arguments which were made in this case to the more general applications for Permanent Partial disability awards dealing with broken bones, sprains and the like.  On that basis we might see these arguments applied to those more general type claims by the Bureau in the future.  Your comments are requested to further develop any discussion on this matter.

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Terminating an Employee, taking the time.

Posted By on November 3, 2009

When an employer decides that it needs to terminate an employee a large number of questions arise. It is not difficult to find information, in many different forms, which describe the actions that an employer should not take when they terminate an employee. Many of the decisions and actions taken by an employer at the onset of a termination will drive a situation and quite possibly determine the final outcome where an employee claims that they have been wrongfully terminated. The time of firing an employee on the spot is well past and raises so much risk than I cannot think of a situation where it would be advisable. Even where you are certain that a firing is going to occur the employer needs to take some time to consider his or her actions and make a conscious decision not only why they are going to terminate this person but also how. When you are angry or upset because of the action, or inaction, of an employee you may not take the time to think things through to make the best possible decision for your company.  Also remember that if you are dealing with a Union there is another level to this process.

Take the time to determine whether some immediate action must be taken and then take only that action.  It is important that you keep all, or at least most, of your options open at this time.  If you must remove an employee from the work area immediately because of some employment related reason, such as safety, security or confidentiality, then you may wish to look at a suspension of the person, whether paid or unpaid, to give yourself the time to cool down, review all of the facts and make a business decision which is devoid of emotion. I prefer a paid suspension since it does not have a readily apparent economic impact upon the employee and it gives management and incentive to pursue further investigation as a priority.  The good side to a suspension is that it can be used in situations where some form of harassment has been alleged against an employee and you really do not have the option of separating this employee from the immediate workplace.  Keep in mind that if you’re going to set a practice where you suspend an individual prior to termination you should, in most instances, make this procedure standard throughout your organization to avoid any future appearance of discriminatory action. Even if you suspend someone for a few days to give yourself time to review the full matter and give it due consideration the cost to you of a few days pay could save you a great deal of time, trouble and other costs in the long run.

Take the time to fully and carefully consider the action which you are going to take so that you can look further than just your knee jerk reaction to fire someone. This will give you the opportunity to look over the full situation and determine all of the ramifications of the action which you are considering. By careful consideration you will have a better chance to avoid making a mistake in the manner or reason for the termination. With the large number of rules, regulations and employment laws which are on the books you cannot afford to make a spur of the moment decision which has permanent ramifications without due consideration.  It is advisable to have the experienced advice of another person to whom you may confide all of the facts surrounding the matter.  This person should have the strength of character to make up their own mind based upon the facts which you present to them and give you their opinion of what they believe should be the action taken in the situation.  Please be sure to provide the facts in a neutral fashion without leaning to the left or the right in their presentation to limit the bias of the neutral opinion which you are seeking.  Also remember that unless you are speaking to an attorney who is acting in the course of his or her representation your discussion might be subject to disclosure in any future discovery taken in the event a lawsuit is filed.  Of course the other side of the coin is that if you decide not to follow the neutral advice you have obtained, unless it is from the attorney who is representing you and your company, then this neutral opinion could very well turn into a piece of evidence used against you by the disgruntled prior employee.  While this probably does not need said, do not get this opinion from someone in the workforce no matter how much you respect them.

Take the time before you take action to carefully review and consider the entire situation and then make a decision based upon good and sound business practices. Emotions such as anger, contempt, feelings of betrayal and even compassion do not have a place in making this decision.  Remember that the decision which you are making for this one individual is setting a precedent which may very well impact your dealings with all of your other employees whether they are employees who provide great value to the Company or other services or whether they do not.  Future actions which you take may and probably will be measured against those past actions which you have taken.  I have prepared many employer sided Position Statements to be provided to the Investigator in the course of EEOC or OCRC investigations and anyone who has participated in one of these investigations will agree that a major focus of the Investigator is upon past practice.  Therefore take care as to what precedents you set and be sure that the you and your company can live with them in the future. 

Take the time to decide whether you are setting up a precedent that you really want to use in future employment decisions.  When an employer approaches me for advice concerning the termination of an employee one of the first questions which I ask is whether the employer considers that employee an asset or liability to the Company.  If the answer is a liability then I ask the employer if this individual were your best employee would you be willing to terminate them based upon the facts in this case?  If the employer would not be willing to terminate their best employee based upon these facts, and assuming there are no additional facts which might be used to distinguish this matter from another, then I usually recommend to the employer that they use another form of discipline that they would be willing to use against that good employee under the same fact pattern.  Again, do not tie yourself to a precedent that you cannot live with. 

Most managers risen to a higher level in the Company have shown that they have the ability to make reasonable employment decisions.  Taking the time to make a good decision and getting good advice to support it only makes good business sense.  Slow things down, take necessary action but only that, take the time to think things through, get imput from a trusted source and establish only those precedents in policy that you can live with.  It is very difficult, and sometimes impossible, to un-ring a bell.

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Job Loss and Unlawful Termination

Posted By on July 16, 2009

Unless you can look at the particular circumstances and clearly understand the reasons for your termination you are probably wondering why you lost your job. In many instances your job and what you do helped to define you as they make up a substantial amount of your life and the job provides you a means to survive.  I provide my observations in this Article and the others which I write to describe some of the processes which might go on in the background at the time of a Termination and make a person more aware of their circumstances.  It is not offered as legal advice and I recommend that individuals seek legal counsel where they suspect their termination might violate Federal or State Law.  These matters are so fact specific that any action which you take without the specific advice of an attorney which you personally hire to represent you are taken at your own peril.  However, with that warning in place I would see little harm in preserving all of the evidence in the best form possible.

Whatever the employer’s reason for terminating you it is important that you get that reason or reasons right at the time of the first notice of the separation, and get it in writing if at all possible, so that you may attempt to tie the employer’s hands and establish the reason(s) when all of the circumstances are fresh. While this appears to be common sense it is often difficult for an employee to ask for this type of complete confirmation at the time of the termination because so much is going on. You are hurt, frightened and many times feel betrayed by the employer and this situation is one where you probably wish to get away from it as soon as possible. You may wish to take the time to get this information for a number of reasons, immediately, so that you or anyone else may review the situation when it first occurred.

If you wait until later and ask this question then you are inviting the employer to obtain the counsel of many other people before making the response to you. What you are looking for is a written reason, at or prior to the time of the termination, from the person who is actually terminating you as to why you are being terminated so that you do not receive a later response, which could be written by the employer’s attorney, as to the reason for termination which may include all potential reasons for the separation instead of just the real reason(s) which formed the basis for the termination. If you give the employer the opportunity to set up all defenses to a termination you might never get the one real reason that you are actually looking for. There is no benefit to you and you will find it very difficult justifying in your mind how you lost a job where every possible reason for your separation is set out in front of you.  Further, when you look for new employment it would be best to know exactly why you were separated so that when a new prospective employer looks at your prior work record you may accurately describe the reason for the termination and are not faced with explaining a reason for prior separation which is provided by your prior employer which does not match the reason you thought existed and which may impact your ability to obtain a new job. Secondly, by obtaining the employer’s reasoning at an early date it may make it easier for you to have your attorney review your separation to determine if you were misused in violation of any of the employment laws. Additionally, you may find it necessary to apply for unemployment where if the Employer can establish “just cause”, in many States,  for your termination you might find yourself ineligible to draw the benefit. Remember, part of the reason for your termination might be cost savings and any benefit which you may draw will in all probability cost the Employer more money by increased unemployment premium.

You probably got a feeling from the reason given for your termination as to whether the employer is being completely truthful with you. You have the best chance at determining the truth right at the time of termination and get it from the mouth of the person who is actually terminating you, again, in writing if at all possible. If there is going to be any question regarding your termination then it is important to get an attorney involved early on and in fact prior to your actual termination. Many of the mistakes which come back later to haunt someone who was wrongfully terminated occur at the early stages before an attorney becomes involved. If you can obtain a complete copy of your employment file it would be best to do so now so that you can pretty much freeze it’s contents. You really do not want the Employer to add additional documentation to your file later even if they are doing so in good faith. The documents used in determining your termination should exist at the time of the termination as they form the basis for the Employer’s decision. It is much harder for an Employer to defend the basis for a termination where everything is word of mouth and some Employer’s may decide to only set the reasoning to writing when they see a problem has arisen. While this type of documentation makes sense when a problem arises it should be treated as that, not as something created at the time of the termination.  This is not to say that all Employer’s take this type of action, but rather, why take the chance.

Many times an Employer will wish to have an exit interview before you leave. In many instances it might be best if you do not become angry and refuse the interview.  You may use the exit interview to cooly and calmly get all of the facts of the matter including the basis for the termination as well as the name of the person who has directed your termination. Take careful notes and include all people who were present at this interview as well as what was said. Weigh everything that you are going to say as if it were something which someday might be repeated to support the Employer’s decision. Be very careful about signing anything especially at these last stages and an attorney’s advice could be valuable in this regard. If a personal contract or a Union is involved make sure all terms of the Agreement are met, by both sides, and demand that the Union defend you and your rights. Have a Union representative present at all meetings with the Company including the exit interview. It could make it simpler for a Union to disregard a member if you are not vocal with them in demanding their help. Remember that if you do not follow all of the requirements under either your personal contract or the Union contract you might have substantial difficulty in pursuing any future remedy. If Administrative remedies exist many Courts wish to see you fully exhaust them before you seek help from them and may bar you from seeking relief if you do not. States differ in their requirements under the law so it is best if you know early on what they are and remember there are Federal Employment Laws which might be applicable. You are in a much better position where you require compliance, and do so yourself, than if you are silent and complain later.  Again, the need for competent legal counsel to advise you could work in your best interests and is highly advisable.

Yes, economic times are hard and a lot of people are losing their jobs but this fact alone does not mean the reason for your job loss was proper under the law. Take the time and maintain your composure at this most painful time so that any damage which might occur to you is limited to the loss of the job itself and does impact other benefits and did not arise from an unlawful termination.  The best time for legal advice is prior to entering the final stages of a termination, not after it’s occurence, as the Attorney may be able to diffuse the entire situation depending upon all of the circumstances rather than just review the circumstances and documents after it has occured.  Even if the attorney cannot diffuse the situation you can obtain that specific advice that only an attorney who you personally hire can provide.

Categories: Employment and Labor Law.
Tags: administrative remedy, discrimination, exit interview, labor laws, prospective employer, reason for

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A Hybrid of Worker’s Compensation and Personal Injury.

Posted By on May 9, 2009

     A few weeks ago I wrote an article in which I spoke about the specialization as well as the general practice of law and a second article concerning worker’s compensation subrogation.  There are many instances where knowledge of more than one area of the law is necessary in order to manage all areas of the case.  Since I have been in practice there have been a number of times when I represented an individual who had both a workers compensation claim as well as an actionable personal injury claim.  In its simplest form the situation occurs when a person is injured in a motor vehicle accident while they are in the course and scope of employment.  I have had the opportunity to be involved in a substantial number of  these hybrid type of cases and in so doing I have dealt with multiple versions of the Ohio worker’s compensation subrogation statute over the years.  It seems that over the past few years that I have been dealing with more and more instances where the Tortfeasor is carrying a low limits policy and my clients Underinsured Motorist coverage is less than desirable in its limits.  As our current economic crisis continues the luxury of higher limits policies seems to be falling off with more and more drivers opting to keep State minimum coverage in place.  These “low limit” type cases are the main focus of this Article.

     When an attorney handles a personal injury case they must always be mindful of the bottom line since no matter how well the case is handled and the recovery is maximized what usually matters to the client is what they walk away from when the matter is finally brought to conclusion.  People have a lot of common sense and you cannot explain to them that while you were able to recover a sum of money which is substantially greater than the normal recovery in that type of case the bottom-line recovery for the client might only be a few dollars.  If you are working on one of these hybrid cases you must have a thorough understanding of now the Ohio worker’s compensation subrogation statute works.  You will need to deal with the Bureau of worker’s compensation not only in regard to the actual payments which they have made for medical expenses but also a future projection as to what additional medical expenses will be incurred during the life of the claim, after the personal injury settlement, as well as a projection of what you might be able to recover in other ways including in a future percentage of permanent partial claim which you, or another attorney, might be making long after the personal injury case is settled.

     Damages in a personal injury case are predominantly made up of:
     1.  Present medical expenses.
     2.  Future medical expenses.
     3.  Permanency of the injury.
     4.  Present pain and suffering.
     5.  Future pain and suffering.
     6.  Reduction in Quality of Life.
     7.  The impact of the injury upon some third person (Consortium).
     8.  Wage loss both past and future.
     9.  Other forms and types of damages specific to the facts and applicable law in the case.

     Commonly, damages in a workers compensation case are somewhat different as they do not include pain and suffering, reduction in the quality of life or consortium.  This distinction is fundamental since the method of arguing the Personal Injury side of the case can have great impact upon the bottom line recovery which is had by the client.  When arguing the Personal Injury case it is important that you understand that any focus which is made on other than Pain and Suffering, Reduction in Quality of Life or Consortium may impair your ability to argue reduction in the amount of the Worker’s Compensation subrogation claim.  A Doctor who cannot provide a prognosis in a case or phrases his opinion as guarded leaves room for the Attorney to argue a poor future for the Injured party so while the absence of the prognosis does not necessarily damage the personal injury case, and a guarded prognosis might in fact help it, the opinion or lack may cause the claim for Worker’s Compensation to increase.  A Doctor who provides a good prognosis injures the value of the Personal Injury part of the case but leaves room for the Attorney to argue for a reduction in the subrogation claim as far as future expenses and permanent disability is concerned.  

     If you are dealing with a low limits policy, where the potential for actual recovery is limited by the collectibility of any judgment,  it is important the Attorney knowingly make a decision as to whether he should tactically avoid focusing the damage argument on other than Pain and Suffering , Consortium and Lost Quality of Life since a damages allocation to matters which are subject to Worker’s Compensation subrogation only operate to increase that claim by limiting your argument toward reduction.  In situations where the potential for recovery is not limited, except by all of the actual damages suffered by the Injured party, there is no real reason, of significant import, to limit the direction of argument for any viable claim.  In many instances the BWC Actuarial calculation setting value for a future Permanent partial award or future medical expense appears to be very reasonable but keep an eye on it as that could change at any time.  The focus in those situations should not necessary be on limiting reasonable subrogation since you really will be hard pressed to argue a particular form of damage and then deny a subrogation claim for that same damage.  In some instances the Attorney does not have the opportunity to be selective in the argument as the severity of the injuries themselves make the argument without the Attorney’s direction.  In these instances the Attorney might look toward a fairness type of argument pointing toward the Injured Parties failure to make a full recovery to attempt a reduction in the subrogation claim.  I do not wish to over simplify this matter I simply wish to point out that you may need to provide the person who is handling the BWC Subrogation claim all of part of your Settlement Package to the Liability Carrier in order to support your argument and obtain any substantial reduction in the BWC Subrogation claim.  I am a firm believer that you can and should fully maximize your clients Net recovery while at all times avoiding any type of fraud or misrepresentation to any other party or entity involved in the process.  Read the subrogation statute carefully when handling one of these hybrid cases and let it guide you as it has a specific method to be used where subrogation is concerned and I did not approach this Article to dissect its terms.  Further, the question of employer intentional tort or other cause of action may be involved which should also be part of any case review and those topics also exceed the scope of this Article.

     It is important that we keep in mind that the true value of a hybrid type case may lie in the Worker’s Compensation claim itself so that while we may make a tactical decision to avoid an argument favoring certain types of damages we must be careful that we do not damage the Worker’s Compensation case in any zeal to increase the recovery in the Personal Injury case by limiting the Worker’s Compensation subrogation claim.  It is a sometimes difficult balance the practitioner must be particularly aware of in order to represent a client to the best of our ability.  Often, a decision needs to be made, of course avoiding fraud or misrepresentation in all instances,  as to which claim provides the most benefit to the Client.  The caution is that a practitioner must keep themselves fully aware of all elements of an injury claim and not just with the part they are most familiar with.  There are a number of other instances where Worker’s Compensation and other causes are mixed together to make these hybrid forms and I would appreciate it if anyone could briefly share their experience or advice for the benefit of all.  It seems to me that subrogation has become an important if not major portion of many types of personal injury cases no matter how it is formed.  This area can be a real hot bed of opinion and I invite all comments.

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What should an Employer do in the Labor Law minefield?

Posted By on April 12, 2009

     If you are an employer then every day it seems like there is a new warning on what you should and should not do to avoid running afoul of the myriad labor laws which regulate the way that you do business.  It seems like every time that you turn around there is a new law or a new interpretation of an old law which makes it more and more difficult for you to run your business without incurring liability for the way that you run it.  You think that you are treating your employees fairly and as a business person you realize your employees are the life’s blood of your business.  These employees can make or break you even outside of their making labor law violation claims against you so you have an incentive to maintain a good relationship with them.  In these economic times you need to have some flexibility in the way that you do business and handle your workforce in order to survive.  Each way that you turn it appears that the government is attempting to hamstring you and interfere with the way that you run your business and handle your employees.  Common sense often seems to be thrown out of the window and it appears that whatever you do it may violate someones rights or cause you some form of exposure to liability.  The deeper your understanding becomes the more you realize that your understanding of how to handle your workforce is imperfect.  If you are a large size employer with your own Human Relations department you have an edge over the smaller employers who do not have this benefit.  You often cannot afford to spend the time , as a small business owner, to bring and keep yourself up to speed in your intimate knowledge of the labor laws and as an informed business owner you realize that you also cannot afford to not do so.  I think all of us in this field recognize that things are not going to get simpler in the near future with the legislative and executive branch taking an active role in the entry of new labor legislation and their evidenced willingness to impose new constructions and actual modifications of even those labor laws which have judicial interpretation and a history of application already in place.

     As an employer you are simply going to have to realize that while common sense and fair dealing with your employees is extremely important it is not the sole answer to labor related questions.  The time of using an evenhanded approach with all employees and then adding an additional level of review when you are dealing with an employee in a protected class is simply not enough.  If you are fortunate enough to have an in-house general counsel then in the past that attorney would advise you, almost as an aside, regarding labor questions.  While it is better to have an attorney, even one not specifically skilled in labor and employment law, review your employment related actions as things currently exist that itself can be a recipe for disaster.  It is simply unsafe to rely upon the advice of attorneys who are trained to handle your contract and other business related matters unless they have  specialized training in the field of labor and employment.  Your labor and employment law advisor needs to have the time and focus to keep themselves updated in this regularly changing area on almost a daily basis so that you are not simply obtaining the black letter interpretation of the law today but also you must be able to make an informed projection as to where the law will be tomorrow.  It is going to be difficult to spend assets which are greatly needed elsewhere in growing and maintaining your business in the sales and manufacturing end by reallocating these funds to areas which do not in themselves produce.  However, those expenses which in themselves do not generate income are not something which is new.  For years you have used outside tax preparers and accountants to assist you in areas outside of your practical ability to perform and knowledge.  It is my opinion that the expenses which you incur in the proactive avoidance of employment difficulties is money much better spent than just reacting to a problem which has already occurred.

     Unless you are fortunate enough to have an attorney on your general counsel staff who has the specialized training in labor and employment law you are going to need to arrange for the services of an attorney whose focus is in that field.  You really need to have a relationship with an employment attorney where you can, at a minimum, pick up a phone and call them with your employment related questions as they arise and without substantial delay.  Little is accomplished where you have positioned yourself to make a very lucrative business deal and then lose the profit, or your business itself, due to a labor related suit by a disgruntled employee.  As a business owner you should realize first the need and then make the decision of how to fill it.  Your workforce may be substantial enough and your problems with them of such volume that you may wish to hire an in-house attorney who has the special knowledge in the field of labor and employment to advise you accurately in order to avoid the many pitfalls.  In many instances the employer will not have the size or a volume of problems in this area which is significant enough to warrant the hiring of an attorney specialist to work in-house to simply service this area.  Then you will have a couple of choices to make.  One would be to attempt to hire an attorney who has the capability to act as your general counsel in those matters which are business related including labor and employment.  This will be a challenging position to fill and you must accept that this attorney will be spending a substantial amount of time each day in order to maintain their knowledge of this area of law as well as those other areas where you are seeking assistance.  Another choice would be to put a labor and employment attorney into an outside general counsel position where you recognize that your work will only take up a portion of the attorney’s time.  In so doing you can leave the attorney free to seek out other business relationships to fill up their workweek.  In that vein you may wish to put the labor attorney on a monthly retainer or choose to pay them by the hour worked.    There is  give and take in whatever the method that you choose to incorporate a labor attorney into your business process.  Where you hire a labor attorney in-house then you will gain the opportunity to step across the hall and immediately ask your question which will limit the inherent delay in the business decision process.  Again, you may wish to pay for services as they are provided on an hourly basis.   The downside to this type of arrangement is the natural inclination to avoid making the call or setting the office meeting and incurring the expense in many instances where you do not realize the potential exposure which may be incurred due to your action or inaction.  As I stated above, another possible means of dealing with outside general counsel would be to pay them on a monthly retainer basis where you have a large number of quickly answered questions which require their expertise but your requests do not close down their practice for large portions of the labor attorney’s day.  Where an arrangement is made for a set fee each month the labor attorney has an incentive to average out the services provided and will recognize the benefit of a steady source of income whether they act or not.  The employer is much more likely to use the attorney’s services and avoid problems at the outset where the attorney’s retainer must be paid whether they are used or not.  This steady payment of monthly retainer has seemed to me to provide the most value for the employer and attorney alike.  Of course, if the average use of the attorney becomes substantially higher on a regular basis then he will seek to renegotiate the retainer amount.  There may be other ways to structure attorney’s fees which are limited only by the imagination of the parties.

     What ever your decision I would suggest to you a decision should be made before the problem arises.  An employer needs access to current and accurate information regarding these labor and employment situations and actions in order to make the correct decision.  The cost associated with the defense of these matters not to mention any costs involved in an adverse finding is hard to determine so that they may be taken into account in any business plan.  A business plan which incorporates the proactive use of the attorney’s services is something which can be planned.  Avoiding the problem is always the best choice since the costs associated with defending these matters can be tremendous as not only do damages, your own attorney’s fees and court costs come into play but you also may have exposure for the Plaintiff’s attorney fees, punitive damages and other costs depending upon the source of the dispute.

    The time is past where an employer can simply treat his employees fairly and expect to have few, if any, labor problems with them.  Cookie cutter approaches are of questionable value where these matters are each driven individually by the specific facts of the case.  A proactive approach to labor and employment matters, which incorporates an ongoing plan of action and a quick response to individual complaints, would seem to me to make the most long term business sense.   Mistakes will undoubtably happen and you must be in the best position to limit damages in their wake and delay in taking action or making a decision can be the difference between just correcting the error at a minimum cost and facing a full-blown legal action.  The Internet is available to almost everyone and Employees are, for the most part, extremely well educated in their rights.  Your business is too important to base its continued existence upon a roll of the dice.

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Are you leaving money on the table in your Ohio workers compensation claim?

Posted By on April 6, 2009

     It is sometimes more interesting  to discuss theory instead of fact.  Attorneys are versed in many areas of the law and we sometimes make the mistake of assuming that everyone knows about areas of the law that are clear to us.    There is also a desire by many of us not to appear to be blatantly advertising for clients which is hard to avoid when you describe a situation and then tell people to hire an attorney to deal with it.  I believe it is important that people be as fully informed as possible and then make up their own minds.  In this day and age many people probably understand they may be entitled to some additional compensation for any permanent injury which they suffered at the work place.  I feel that  it would be better that I discuss it briefly here than make that assumption.

     If you were injured in a work related accident in Ohio and you had no problems with your workers compensation claim you may not have become aware of the fact that you are entitled to payment for any permanent injury which you sustained related to the allowed conditions in your claim.  There are few employers who will take the time to advise their employees that if they file an application for permanent partial disability they may be entitled to a payment of compensation.       We must remember that this is a cost associated with the claim that goes into the calculation of the amount of insurance premiums which the employer will pay each year.  Therefore there is no incentive for an employer to speak to the employee about these matters.

     A benefit that a “good employer” gets from treating his employees well shows up when the injured do not feel the need to seek out an attorney to advise them in regard to their workers compensation case.  If the employer sees that temporary total disability and medical expenses are paid to the injured worker then the employee is many times satisfied and does not look further unless they have information they might be due additional compensation.  Further, in many cases, the employee feels they are being disloyal to the employer by filing the claim or seeking any additional compensation.  I do not see where loyalty would be involved as it appears to me to be more of a business decision than one of loyalty but again it is a personal choice.

     That is not to say that in each and every case an individual may be entitled to additional compensation beyond a wage loss type reimbursement and their actual medical expenses, but how will you know unless you ask?  Some employers go so far as to advise their employees that they will take care of them and there is no real need to have anyone else involved in their claim.  Let us give them the benefit of the doubt and say that their intent is pure and they really do simply wish to help their employees.  The employer will often pay their fair share of the costs associated with the claim and then hopefully get the employee back to work as soon as possible and as cheaply as possible.  The employer may see the entry of your attorney in the matter as a complication which they would rather avoid.  Keep in mind the employer probably has an attorney to advise them.  While the people in charge of the Workers Compensation system will provide you with some information they are limited in what they can do for you.  They are not attorneys and are not permitted to provide you with legal advice.

      Undoubtably, there are some employers out there who actively seek to disuade their employees from seeking the advice of an attorney for reasons other than increasing any complexity in the workers compensation claim.   After all, there is more than just an indirect benefit to the employer when the employee does not increase the cost of the claim by filing for additional compensation.  Further, the facts surrounding the claim may merit other forms of compensation and/or benefits which both the employer and the employee might not be aware of.  Remember, the employer does not have an obligation to the employee to fully educate them in the Workers Compensation process or the benefits to which they are entitled.  Employees are, in many instances, familiar with Health Insurance where they are provided with a booklet which simply and clearly describes the obligations of the carrier.  In Workers Compensation there are pamphlets available but you usually need to know what to ask for in order to obtain them.

     If you have a permanent disability, in any measurable amount, you may be entitled to an additional amount of compensation due to this permanent disability.  You do not need to be impaired to the point that you are unable to work and in some instances the permanent disability which you suffer from may be something that is barely noticeable to you if at all.  Often an inury will limit the range of motion of say your arm or your spine.  Once you become accustomed to this loss you may think little of it.  This loss could very well be compensable to you.   Take note that it is not mandatory that you have an attorney in order to file this application but it is advisable to have one since they understand the process.  The workers compensation fund is established for the benefit of the worker but you will be paid nothing more than what you are due and in many instances you must actually apply for a particular benefit.  If  you are dealing with a “good employer” then they will not begrudge you making an application for permanent partial disability for the permanent loss which you sustained in the course and scope of your employment with them.  The work which you provided caused the disability which you sustained.   You performed the work for the employer’s benefit so you are not seeking anything for which value has not been given.

    Some workers have the misconception that if they file for permanent partial disability they will be settling their claim and they do not wish to do that.  However, this is not the case and the claim will will remain, at least for a period in time as stated in the law, open unless you take steps to actually settle it.

     If you have any question please seek counsel from an attorney competent in this field to obtain any additional compensation to which you might be due.  Many attorneys will waive any initial consultation fee in these cases since most take a fee contingent upon recovery.    Remember,  you are the one who will live with any lingering after effects of this accident.

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Specialization, can we see the forest for the trees?

Posted By on March 29, 2009

If you have read very many of my postings you probably notice that my emphasis is on labor, employment and workers compensation with my specialization being in Labor and Employment Law.  However, it has always been important to me to try to keep some diversity in my practice.  In this era of specialization I believe that the general practice of law is falling by the wayside and I do not necessarily agree with its demise.  I think this is going to be a major problem in the future because there are no bright lines which distinguish one practice area from another.  The work which you do in one area often has ramifications and its “effect spills over” into other areas.  The purpose of this writing is to emphasize the importance of understanding the “rippling effect” which an attorney’s efforts may have when we act in one niche area of the law.  While my practice is centered in labor, employment and workers compensation I have also always kept cases in personal injury, business law and usually some other  matter in with my daily work.

It requires that you stay current in areas additional to your area of specialization but the rewards which you get from doing these other cases  is well worth the additional work.  Please don’t get me wrong,  it is important that we have specialists and chances are if I had started  my practice with a large firm where my only focus and training was limited to one small area I would probably not think the way that I do.  But that was not the case when I first started practice about 19 years ago and I worked in many diverse areas and took the opportunity to educate myself in that area even if I only did one case there.  Those days are past as there are not enough hours in the day to just take  cases because they are interesting since I have more case files to service than just the few that I had when I first started practice.

With just a few exceptions, most notably Admiralty Law, the  license which an attorney earns is a general license to practice.  The only limits on this license are what the attorney himself or herself puts upon it.  Yes, I am an attorney who has been certified by the State Bar Association as a specialist in Labor and Employment law but that does not mean that the only area where I should practice is my specialty.  I believe we take a lot out of our own experience, understanding and ability in this practice by limiting the area where we practice to one small niche.  I also believe that unless we also maintain a wider perspective that we can lose sight of the bigger picture which we are dealing with in any case.  That is not to say that just because I can I am going to start taking on class actions in banking law or become involved with securities but I do believe that it is helpful to both myself and my clients if I have more than a casual understanding of the relationship between labor and employment law and say worker’s compensation or personal injury and business.  There are a lot of cases out there that only require a slight amount of extra effort to bring yourself up to speed in that area so that you may handle it and handle it at a high level of expertise. 

Some of this desire to specialize has been backfiring on attorneys of late.  Attorneys who specialized, especially in a larger firms, in complex real estate transactions are seeing that work drop off dramatically and many now need to reinvent themselves from scratch.  If, even on a small scale, those attorneys have been able to keep their hands in other areas of practice then they not only make themselves more marketable, since after all this is a business too, they bring more value to their clients when they address the matters which they are retained to do. 

Anytime that you take the opportunity to step outside of your area of specialization you take some risk but with some additional effort any such risk can be reduced to little more that the ordinary.  By making the choice to work a little harder to take on these “different” cases you are taking steps to add value to the quality of your services in those other cases which you are working on.  It is my belief that taking this extra effort to more closely understand the ramifications of the work which we do can do nothing but increase the value of the services which we provide to others.

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Retaliation in Ohio Worker’s Compensation

Posted By on March 21, 2009

Over the past  month I have spoken to two separate individuals in regard to a problem which they were having with their Worker’s Compensation Claim and their Employer.  In each instance the individuals claimed that because they had filed a Worker’s Compensation claim their Employer had treated them differently and in each instance over 90 days had passed from the time that the act occurred which the employee is complaining of.  I have practiced in this area for over 18 years now and it seems that these problems most often arise when you are dealing with one of the smaller sized employers.  That is not to say that a larger employer will not take this type of action but that it appears training is better and of course many have their own Human Resources departments which are usually well aware of the law in Ohio.  Employers are looking a lot closer at workers compensation claims since the costs of premium have in many situations quadrupled over the past few years.

In Ohio it as a violation of the law for an employer to discharge, demote or take punitive action against you just because you filed a Worker’s Compensation claim. (ORC 4123.90)  However if an employer takes this type of action against you the time is very short for you to act or you will be unable to make your claim because you ran out of time.  You only have 90 days from the date when the action was taken to send the Employer written notice which specifically describes the action which you are complaining about.  This may not be a great problem where an employer terminates you because you filed a workers compensation claim and then you go right to a attorney who is trained in this area and you have explained the situation to them.  Hopefully, the attorney that you speak with has enough experience in the area to recognize that the termination date started the 90 day clock running and they may act upon it immediately to preserve your claim.  But it is often the case where an individual is  mistreated during the course of their employment and they keep trying to work through the situation until finally they become so disgusted with it that they quit their employment.  Then the question arises whether the discriminatory act which occurred started on the date of the quit or the actual date when the action which caused the quit occurred.  You really did not want to be in that situation since there is a very good chance that any court or agency that looks at this will look back at the first action, where there is not an ongoing series of actions, and say that is the date when the 90 day period started.

Under this statute, assuming that you met the 90 day requirement, then you have a total of 180 days within which any action must be commenced.  You can see by the short time periods that if you believe that you have been treated in a wrongful manner by your employer because you filed a workers compensation claim you need to see an attorney immediately to find out what your rights really are.  With economic times as they are many employees try to overlook the employers misdeeds because they fear for their job.  This situation makes it a lot easier for an employer to string the problem along and an employee not to wish to make waves.  This is truly a situation where you have to make your mind up at an early time and act immediately.

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ADA Compliance in Employment. When is there not a disability?

Posted By on March 18, 2009

Our Federal Government has changed the rules under which employers have been operating when dealing with questions involving the Americans with Disabilities Act.  The Americans with Disabilities Act was first enacted in order to provide protection to those employees and individuals who were disabled in our society.  The Federal Court’s helped to clarify the definition of the word disabled, by interpreting the EEOC guidelines,  which required the existence of a very serious and life altering handicap/disability to exist in order for an individual to be treated as disabled and covered under the act.  Congress in 2008 determined that the definition was too strict (as well as making other determinations which we are not going into here today) and loosened up the definition so that it would cover more individuals.  By taking this action a great deal of case law, which had been established since the original ADA was passed, has been made obsolete and we may expect to see a series of new determinations as the Court’s interpret future EEOC guidelines put in use to establish a skeleton for applying the new definition.  Some rules will remain the same but be subject to a new interpretation most notably the definition of  the word “disability” itself.  Employers need to move very carefully now,where they meet the ADA requirements for application of the statute to them, so that they stay well within the bounds of this new amendment since new guidelines and interpretations of the old will be put in place by the EEOC.  It is regrettable that this is happening at a point in time when the economy is in such a state of flux that businesses are fighting to keep their heads above water.  Not only has the definition been changed, in both practice and application, but business must be able to use two different definitions one for the federal government and one for the State, depending upon their number of employees.

This matter has been dissected by the legal minds of our age at length so I am not going to go into that with you here today. Let us look at the practical implications of the 2008 amendments in regard to the definition of disability. What I have been trying to do is establish in my own mind a general rule to use when I first pick a matter up.

Prior to the 2008 amendments if a question under the ADA arose one way in which I might have looked at it is:

I would concentrate on the facts to determine if the alleged disability is sufficient to make the ADA applicable where it is not obvious that a disability exists sufficient to bring the matter under the act.  I would also advise the Employer to enter into a meaningful discussion with the employee giving the employee ample opportunity to show they are disabled to the extent necessary to be covered by the Americans with Disabilities Act and then determine reasonable accommodation where indicated.

After the 2008 amendments I might, in certain circumstances, address the question as:

In most instances, where it is reasonable to do so, I will start with a presumption that a qualifying disability exists and advise the Employer to enter into a meaningful discussion with the employee.  The element of a meaningful discussion runs through both models and is very important not only for purposes of determining a qualifying disability but it serves to help support a defense, in certain instances, to employee allegations regarding a failure to accommodate later on.  Throughout my evaluation recall that I now expect to find a disability.  For purposes of my investigation this means that I am assuming the burden is upon the employer to disapprove any alleged disability even though the Act does not actually impose this burden.   I will still need to make a determination  whether the employee is disabled, as it remains an element required for eligibility,  to the extent necessary to trigger the statute but now many more opportunities exist for such a disability to be found.  If the employee’s situation warrants it I will then review the Employer’s proposal for reasonable accommodation.   I still retain those tools necessary to obtain the medical evidence which might be necessary to make a final recommendation to the Employer as to both disability and the reasonableness of the Employer’s proposed accommodation.  I would expect that these changes to the ADA will cause Employers to make many more “reasonable accomodations” than in the past.  The amendments do not shift the burden of proof to the Employer, in the actual wording of the Act, but by lowering the threshold as to what is considered a disability the amendments come very close to doing so.  The legislature has clearly indicated a shift in their view of the importance of the disability element and I believe the only really safe way to handle these matters, until we have some case law to help us, is to follow their intent.

It is pretty clear the 2008 amendments have changed the way I look at these cases.  By loosening up the standard and providing the much more expansive definition for disability, and by specifically discounting the importance of it, Congress has pretty much moved the question of disability, except for the most obvious cases, from the employee who was required to establish his disability to the employer who is now defending against it.  Of course, in cases where I am dealing solely with the Ohio statute pertaining to disability, I would retain a modified version of the pre-2008 amendments model where a more flexible approach to the term disability would now be applied.  Without additional guidance we could maintain the old standard for Ohio cases where the Federal law would not be applicable but I am concerned over where the future lies under the State statute.

I am sure the employers reading this article recognize the tremendous burden which has been imposed upon the employer by these amendments to the ADA.

 I would now like to go into a little more discussion in regard to this matter. 

The Americans with Disabilities Act is a Federal Statute which applies to the workplace, by application of Federal Law under the following circumstances:

  • In order to be an Employer under the act you must have 15 employees for each working day in 20 or more calendar weeks.

That is all that is required to bring an Employer under the coverage of the act for ADA coverage.  However, let us step a little farther along this line and look at ORC 4112.01(A) which brings to bear ADA type rules under the law of the State of Ohio.

  • In order to be an Employer under Ohio law you need only have 4 employees again for each working day in 20 or more calendar weeks.

An employee has rights under the ADA which boil down to requiring an Employer to provide reasonable accommodation for any Employee whose disability meets the requirements under the Act where the reasonable accommodation will enable the employee to perform the essential (core) functions of his job with this accommodation.  When dealing with any statute it is important to determine whether the person is really covered under the act.  Until recent times and the 2008 amendments to the ADA the question of whether a person is disabled under the act was often the stopping point of the inquiry.  Prior to the above Amendments the United States Supreme Court viewed the question of whether a person was disabled as a question of paramount importance.  The earlier definition of disability was so stringent that in order to meet it a person would have to be disabled to the point that the ordinary everyday tasks which are important to life itself would need to be impaired not just some impairment that made doing their job difficult or even impossible without reasonable accommodation.

It might be best to use our national legislature’s own wording in order to describe the intent which goes along with this current amendment.  Congress said     (5) to convey congressional intent that the standard created by the Supreme Court in the case  Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the  have complied with their obligations, and to convey that the question ofwhether an individual’s impairment is a disability under the ADA should not demand extensive analysis;of

In the 2008 Amendments the US Congress changed the old definition, which the courts had clarified, of the word disability by looking at the definition of the word disability much more expansively and making it much more likely that the employee could be considered as disabled under the ADA requirements.  Since Ohio law, in addition to Ohio case law,  has borrowed the definitions and interpretation from Federal Case Law we might be waiting for the next Ohio case to go through the Court system to see if the Ohio courts back away from the stricter definition of the word disability as was determined in prior case law under the Ohio statute. Of course, as the Ohio statute still stands it closely mirrors the ADA statute which existed prior to the 2008 amendments.  That interpretation of the word disability in the statute remains subject to some level of review by the Ohio courts but the Courts will be hard pressed to move totally into the camp of the amendments without ohio legislation to support it.  With the laxness of the current federal statute and its lack of reliance upon the importance of disability in the application of the statute I would not be surprised if  Ohio courts might also become more lax in the application.   I, for one, will be looking even more closely at the facts when I am solely applying the Ohio definition in those circumstances where federal application is not triggered.    I feel this would be the safest way for the employer to treat this until we can see where the Ohio  Supreme Court or Appellate Court(s) go with this.  Of course if we get some additional guidance from the Ohio legislature the question will be answered for us.  That is not to say that the new standard, because it is federal law, becomes the law for the State of Ohio in the non-federal realm but rather for anyone who is advising employers it would be best to err on the side of additional caution in making the determination of whether the individual actually is disabled according to the definition imposed upon the employer by the federal or state statute.  It is a very regrettable situation where you have a state law which is much more restrictive of a right which is given under a federal statute especially where the class of people who are limited by the state statute are only determined by their number in the workplace.

Part of the problem in using a more stringent standard for the determination of disability, which is more favorable to the employee, is that for most intents and purposes when an individual employee is treated as if he were disabled then the protections of the statute could come into play.  The inquiry as to whether disability exists will now become much more frequent.  I believe that it is very important for the employer to early on enter into a meaningful dialogue with the employee as soon as it becomes apparent, through communication with the employee or from direct observation by the employer, that the employee is an individual who may be an individual with a disability which meets the definition under the statute.  As always, great care is going to be necessary in the training of any supervisor or other investigator who might be dealing with this matter so they do not inadvertently indicate to the employee that they are considered as being disabled.  By inquiring fully and meaningfully without labeling the employee as disabled the employer will maintain the most flexibility in dealing with the situation.  Rather than clarifying the matter and making the application of the statute easier for the employer the 2008 amendments to the ADA have made it even more imperative that the employer carefully make their way through this minefield which has been created for them.

For the future I would expect that the focus by the Employer in these instances is going to be directed much more toward providing a “reasonable accomodation” which is carefully limited in scope to provide no more than is required under the circumstances at the least cost.  Defenses focusing on the absence of a “disability” will be, except in the most obvious cases, falling by the wayside.

I  handled a number of these matters where the definition of disability was the deciding factor in obtaining a no probable cause finding at the administrative level before the Ohio Civil Rights Commission/EEOC.  The absence of a qualifying disability became a very powerful tool in the employer’s arsenal.  While under the statute a finding that a disability exists still remains necessary the importance of it as a pivotal factor in determining whether the Act applies has been severely discounted.  Further, the definition of disability has become so watered-down that I believe there will be few instances where it cannot be deemed that an employee is disabled for purposes of coverage under the Federal Act.  The employer’s tool, if you will, became so powerful that the Congress pretty much removed it from the quiver at least on the federal level.  As noted earlier it still remains to be seen what the State of Ohio will do with the situation.

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