Workers’ Compensation and OSHA Litigation

Calfee’s Workers’ Compensation and OSHA “Tier 1” practice group uses an aggressive yet efficient approach in our representation of employers facing every conceivable workers’ compensation, OSHA and related employer liability concern.  Our attorneys counsel a wide range of industries including: banking, chemical, construction, employee leasing, food products, health and assisted living and rehabilitation care, hotel, interstate trucking, metalforming and metal finishing, packaging, restaurant, retailers, warehousing and distribution, and other manufacturing and service industries.  Many of these companies are self‑insured for workers’ compensation liability.  In addition, we counsel school districts and other public employers.

A single industrial accident may have workers’ compensation, OSHA, intentional tort/personal injury, insurance coverage, ADA, FMLA, retaliatory discharge and even crisis management implications.  Our attorneys are available 24 hours a day to counsel clients in such situations.  We also work with employers on OSHA compliance (the “accident that never happens”), workers’ compensation audits including coverage and rating options, and individual “problem” workers’ compensation claims (those involving high liability, fraud, or the need to present witnesses or legal argument).  Our attorneys pride themselves on having the experience and knowledge to have the complete picture in mind when advising employers.  The solutions we offer not only address our clients’ concerns but do so in a cost‑efficient manner.

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What is The National Workers’ Compensation Defense Network?

Calfee is a charter member of The National Workers’ Compensation Defense Network (NWCDN), a nationwide and Canadian network of independent law firms.  NWCDN provides employers and insurers access to quality representation in workers’ compensation and related employer liability fields.  (Visit www.nwcdn.com for more information.)

Do smaller and mid‑sized businesses also have workers’ compensation issues?

Yes.  Most of these businesses and their workers’ compensation claims are subject to the Ohio Bureau of Workers’ Compensation’s “MIRAII” reserving system.  Reserves affect group rating eligibility and the potential for significant premium savings.  In claims where the claimant has an attorney, or which may significantly impact premiums, employers should consider retaining outside legal representation. Employers who are in Ohio BWC’s high deductible and retrospective rating programs enjoy “semi-self insured” status and need to protect their workers’ compensation programs accordingly.

Ohio Industrial Commission                                    

  • Claim allowance, injury and occupational disease, and use of positive drug tests
  • Extent of disability, including permanent total disability
  • Termination of benefits, including ex parte
  • Ohio Workers’ Compensation jurisdictional disputes, including interstate trucking and use of C-110 and C-112 agreements
  • Safety violations (VSSRs)
  • Structured and other settlements, including Medicare Set-Asides

Ohio Bureau of Workers’ Compensation

  • Self-insured conversions and renewals
  • State buy-backs of self-insured liability
  • Self-insured complaints
  • DWRF and other assessments review
  • State-fund payroll, manual classification, and experience rating review, including deductible, group rating and retrospective rating options
  • BWC field audits and protests
  • Non-complying employer liability and settlements
  • Handicap reimbursement
  • MCO and QHP considerations
  • Self-Insured Review Panel and Self-Insuring Employers Evaluation Board representation
  • Adjudicating Committee representation

Workers’ Compensation Court Litigation

  • Jury trials on allowance issues
  • Appellate and Supreme Court practice
  • Mandamus/abuse of discretion actions
  • Declaratory judgments
  • Workers’ compensation discrimination cases (O.R.C. § 4123.90)

OSHA

  • Formal and informal complaint responses
  • Safety inspections
  • Health inspections
  • Ergonomic and related “general duty clause” inspections
  • Site-Specific Targeting (SST), National and Local Emphasis Programs (NEP and LEP), and other targeted/focused inspections
  • Inspection warrant issues, including warrant litigation
  • Preparation for inspections
  • Area Director conferences and settlements
  • Occupational Safety and Health Review Commission hearings
  • Compliance audits
  • OSHA discrimination charges (Section 11(c) and “public policy” violations)

Related Issues

  • Workers’ compensation, unemployment compensation, OSHA, and related considerations in corporate merger, acquisition and lending transactions
  • Employee vs. employer intentional tort litigation (and insurance coverage analysis)
  • Subrogation and third party claims
  • “Dual capacity” claims
  • Self-insured excess carrier issues
  • Non-Ohio workers’ compensation matters (NCCI and other states)
  • Unemployment compensation rate and claim disputes
  • Transitional duty/alternate duty and other return to work programs (absence management)
  • Interplay of workers’ compensation and the ADA, FMLA, OSHA and collective bargaining agreements

 Representative Projects

Workers’ Compensation ¾ Industrial Commission

  • Aggressive representation of employers at every Industrial Commission hearing level, including successful arguments before the full Commission on drug testing, occupational disease, work place violence, wage loss, interstate trucking and permanent total disability matters.
  • “Re-opened” unfavorable Industrial Commission decisions in previously allowed claims for lodging, nursing home and trucking clients.
  • Obtained fraud finding from full Industrial Commission for heating equipment distributor.
  • Successfully utilized surveillance to demonstrate lodging employee was not suffering from reflex sympathetic dystrophy.
  • Reversal of Industrial Commission award of statutory PTD and award for loss of use of all four limbs upon showing of claimant fraud.
  • Reversal of initial Industrial Commission finding that asbestos death claim should be charged to employer’s self-insured risk number instead of prior State fund number which, along with negotiation with claimant’s counsel allowing for non-payment of lump sum death benefits otherwise due, led to a several hundred thousand dollar savings for the client.
  • Successfully opposed application for lump sum advancement and adult dependency in PTD claim, thereby saving self-insured employer in excess of one million dollars.
  • Obtained and preserved group rating eligibility for state fund employers in construction, lodging, manufacturing, nursing home, and trucking industries through aggressive hearing representation and strategic settlement analysis utilizing and understanding reserving mechanisms.
  • Obtained BWC Adjudicating Committee order preventing experience re-rating which would have cost group-rating plan participants hundreds of thousands of dollars.

 

 Workers’ Compensation ¾ Bureau of Workers’ Compensation

  • Reversals of BWC field audit findings as to proper manual classification, officer excess, employee versus independent contractor, and other issues at BWC Adjudicating Committee hearings leading to hundreds of thousands of dollars in annual premiums savings for firm clients.
  • Obtained BWC Adjudicating Committee order preventing experience re-rating which would have cost group-rating plan participants hundreds of thousands of dollars.
  • Realization of two million dollars in self-insured “buy out” savings for major client by working with the BWC legal staff to amend the BWC’s buy out regulations, with the change leading to the current “zero” buyout charge for self-insured conversion.
  • Settlements of non-complying employer liability at fraction of claims costs and back premiums allegedly owed to the BWC.
  • Achievement of 90 percent reduction in workers’ compensation claim costs for major self-insured client with two year program of aggressive claims management.
  • Aggressive use of self-insured regulations to terminate benefits ex parte along with judicious use of surveillance operatives to confirm workers’ compensation fraud.
  • Achieved multi-million dollar savings for bottling company through years of aggressive claims management in retrospective rating plan.

 Workers’ Compensation ¾ Court Litigation

  • Favorable jury verdicts in heart attack, carpal tunnel, slip and fall, degenerative back and neck conditions, tendonitis/“over use” syndrome, employee versus independent contractor, and other injury and occupational disease cases.
  • Reversal of Industrial Commission permanent total disability awards in appellate court and Ohio Supreme Court.
  • Structured settlement of amputation claim whereby claimant conceded employer right to reimbursement of entire settlement amount from proceeds of pending medical malpractice action.
  • Obtain favorable ruling from Ohio Supreme Court reversing trend of claimant-friendly decisions in “voluntary abandonment” cases and applying the doctrine in a claim with multiple years of temporary total compensation at issue.
  • Succeeded in obtaining court order (Writ of Mandamus) preventing BWC from compelling trucking company to report payroll of interstate drivers to Ohio BWC for workers’ compensation premium calculation purposes in light of use of valid C-112 Agreements.
  • Reduction in BWC premium billings from over $3M to $300K through a combination of patient litigation and negotiation, focusing on the legal definition of “successor in interest” and risk transfer/risk combination issues.
  • Disposal of negligence claim against non-complying (lapsed coverage) employer for work place injury by successful dismissal motion.
  • Summary judgments and other court dismissals in 4123.90 and “violation of public policy” workers’ compensation discrimination cases.

 Occupational Safety and Health

  • Representation of numerous employers in administrative inspections and enforcement proceedings brought by federal OSHA and its state counterparts, including representation of major industrial employer throughout OSHA investigation of three fatalities in the workplace resulting in no citations by OSHA, and representation of major bedding industry client in challenging legitimacy and scope of state OSHA ergonomic inspection.
  • Litigation before the Occupational Safety and Health Review Commission (OSHRC) of willful citation for alleged violations of personal protective equipment standard by major steel industry employer leading to dismissal of government’s complaint.
  • Representation of major national retailer in systemic recordkeeping citations defense, leading to vacation of almost all citations by the Area Director shortly after filing a Notice of Contest.
  • Successful litigation before OSHRC Administrative Law Judges of “general duty clause” citations based on workplace fatalities, one involving a “crushed by” fatality (delivery truck liftgate), and the other a “fall from ladder” fatality (maintenance man). Both citations were ordered vacated by the Review Commission ALJ.
  • Representation of an above-ground mine operator in litigation before MSHA following a fatal fall by a temporary employee and MSHA’s issuance of a citation related to improper fall protection. Successful negotiation leading to a favorable settlement.
  • Representation of a construction contractor before the Regional Director in relation to OSHA’s issuance of a citation alleging that the company had exposed its employees to a guardrail hazard by sending them to work at a third-party job site that contained a wire guardrail that, although strung at an appropriate height, could be manually depressed to a height below the minimum standard. Successful negotiation leading to the complete vacation of the citation, without penalty, by OSHA.
  • Frequent consultations with OSHA area directors to re-classify/de-classify and otherwise settle citations without litigation (including substantial reduction in penalties and agreed changes to abatement methods and deadlines).
  • Development of OSHA compliance programs for major publicly and privately held companies and assistance in implementing a nationwide program of OSHA compliance auditing.

Related Legal Concerns

  • Review of workers’ compensation, unemployment compensation, and OSHA liabilities and responsibilities in corporate transactions and drafting and negotiating of related warranties and indemnities.
  • Successful defense of employers in employee vs. employer intentional tort cases involving death and serious bodily injuries.
  • Obtained full indemnification from employers’ insurers for defense of intentional tort claims as well as reimbursement of attorney fees already expended together with significant settlement contribution after insurer was brought into employment intentional tort lawsuit by employer.
  • Recoupment of workers’ compensation claim costs caused by the negligence or other fault of third parties.

 Representative Clients

  • Advocare, Inc.
  • Associated Estates
  • Atrium Centers LLC
  • Automated Packaging Systems
  • Benjamin Rose Institute
  • Black Horse Carriers
  • Bridges Rehabilitation Services
  • CEVA Freight, LLC
  • City of Cleveland
  • Dr Pepper Snapple Bottling Group
  • Enprotech Steel Company
  • Falcon Transport
  • Famous Industries
  • Farber Specialty Vehicles
  • Ferrotherm
  • Howard Concrete Pumping
  • Insperity
  • Jo-Ann Stores
  • McMaster-Carr Supply Company
  • Mike Coates Construction
  • Panther Expedited Services (Panther II)
  • Perfection Associates (Aunt Millie’s)
  • Precision Environmental Company
  • Premier Courier/Premier Delivery
  • Salsbury Industries
  • State Group Industrial
  • Tim Lally Chevrolet
  • UTC Aerospace Systems (Goodrich)
  • Vacano America
  • Willoway Nurseries
  • Worldwide Industries Corp.
  • Yardmaster