Workers’ Compensation and OSHA

Calfee’s Workers’ Compensation and OSHA practice attorneys use an aggressive yet efficient approach in our representation of employers facing every conceivable workers’ compensation, OSHA and related employer liability concern.

Our attorneys counsel clients across a wide range of industries, including manufacturing, automotive dealers and parts distributors, interstate trucking, health care, warehousing and distribution, government entities, gaming, retailers, construction, food products, packaging, aerospace, and janitorial industries. Many of these companies are self-insured for workers’ compensation liability. In addition, we counsel municipalities and other public employers.

A single industrial accident may have workers’ compensation, OSHA, intentional tort/personal injury, VSSR (safety violations), 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 have developed the experience and knowledge necessary 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.

Frequently Asked Question

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 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.

Noteworthy

Chambers USA Band 4 Ranking in Labor & Employment (Ohio)

For a number of years, Calfee’s skilled Labor and Employment group has been recognized for its work by Chambers USA. Most recently, in 2021, Calfee was ranked in Band 4 for Labor & Employment in Ohio.

Chambers USA 2021 researchers note that the practice is known to be "Proficient in the handling of a wide range of labor and employment matters. Areas of strength for the firm include the representation of management in collective bargaining negotiations with unions, defending clients against claims of wrongful discharge and discrimination, and day-to-day employment counseling. Expertise also stretches to the enforcement of post-employment agreements." 

A client interviewed by Chambers USA researchers said, "The group is accessible and calls you back very quickly. [They are] a pleasure to work with and every one of them knows their stuff. [They are] spot-on technically, on top of everything and always [provide] good solid counsel." Another client reported to Chambers USA researchers, "We are extremely satisfied with the work Calfee has done for us. The group is thorough, creative and responsive."

A source interviewed by Chambers USA stated, "[The group is] very good technically, very sensitive to client needs and practical in [their] approach."

In 2020, Chambers USA researchers interviewed a client who remarked, "They are able to quickly get to the root of any issues we bring to them and consistently drive us toward concise and effective resolutions. They are very knowledgeable about our business and industries; they understand and manage risk extremely well, which in turn translates into innovative commercial advice." Additionally, a market commentator mentioned, "They have a solid team that is very responsive and consistent and has a good reputation with judges and other law firms," and a second said, "Their biggest strength is their ability to develop cost-effective defense strategies; they deliver the same results as bigger firms at a much more manageable cost." Furthermore, a client noted, "The team cares about making sure they do what you as a client need to be done, and they are personable as they do it. They're quick, give you good value for your money and get the job done in a timely way."

Labor and Employment practice Chair, John R. Cernelich, was ranked by Chambers USA 2021 in Band 4 for Labor & Employment in Ohio. Clients interviewed by Chambers USA researchers said, "[John] is thorough, knowledgeable and practical." Another comments, "I have found him to be responsive and approachable, and he understands our business."

Chambers USA 2020 researchers noted a comment made by one of John's clients: "John Cernelich is extremely professional, knowledgeable and a good resource in each and every case we pursue. He is proficient at putting together a case that is sound, logical and meets the needs of the company."

Labor and Employment practice Vice Chair, Todd F. Palmer, was ranked by Chambers USA 2021 in Band 4. Chambers USA researchers noted that Todd "is well regarded for his expertise in traditional labor issues. He also acts on behalf of employers in litigation and EEOC proceedings, as well as advising on the labor and employment aspects of corporate transactions." A client interviewed by Chambers USA researchers said, "I have the highest respect for [Todd] as a labor lawyer."

U.S. News – Best Lawyers^® “Best Law Firms” Rankings

Calfee was selected for inclusion in the 2021 "Best Law Firms" rankings by U.S. News – Best Lawyers in Workers' Compensation Law - Employers (Metropolitan Tier 1 Cleveland).

The National Workers’ Compensation Defense Network

Calfee is a charter member of The National Workers’ Compensation Defense Network, a network of independent U.S. and Canadian law firms. NWCDN provides employers and insurers access to high quality representation in workers’ compensation and related employer liability fields.

Benchmark Litigation Rankings

Calfee was selected for inclusion by Benchmark Litigation as a "Highly Recommended" litigation firm in Ohio in the area of Dispute Resolution. Additionally, several of Calfee's Litigation attorneys have been ranked by Benchmark Litigation as "Local Litigation Stars – Ohio" and as “40 & Under Hot List Honorees – Midwest.”

Professionals

Experience

Workers’ Compensation 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.
• Successfully utilized surveillance to demonstrate lodging and retail employees were not suffering from Complex Regional Pain  Syndrome (reflex sympathetic dystrophy).
• Reversal of Industrial Commission award of statutory PTD and award for Loss of Use of all four limbs leading to current Industrial Commission policy that Loss of Use awards are not payable in brain stem injury cases absent specific and separate injury to body parts in question.
• 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 allowing for non-payment of lump sum death benefits otherwise due; led to a several-hundred-thousand-dollar savings for the client.

Workers’ Compensation 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 $2 million in self-insured “buy out” savings for major client by working to amend the BWC’s buyout regulations leading to the current “zero” buyout charge for self-insured conversion.

• Prevented BWC from trying to recoup Ohio benefits already paid in multi-jurisdictional dispute including private insurer.

• Successfully represented major regional staffing company in successorship dispute before Ohio BWC Adjudicating Committee and Administrator’s Designee forums leading to $10M in savings by effectuating a three-year delay in EMR change date, thereby preserving new employer EMR (1.0) and group rating status.

• After years of allegedly fraudulent non-payment of trucking industry premiums in Ohio, negotiated settlement with Ohio BWC Fraud Unit with a waiver of all interest and penalties for payment of past due premiums.

• 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.

Workers’ Compensation 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.

• Appellate courts affirmed trial court determination using right to control test that independent contractor was not an employee.

• Succeeded in obtaining court order\preventing BWC from compelling trucking company to report payroll of interstate drivers to Ohio BWC for workers’ compensation premium calculation purposes in light of valid Ohio Choice of Law Agreement.

• Reduction in BWC premium billings from over $3 million to $300,000 through a combination of patient litigation and negotiation, focusing on the legal definition of “successor in interest” and risk transfer/risk combination issues.

• Dismissal 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” 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 reclassify/declassify 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 public 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.

Services

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 issues of voluntary abandonment
• Ohio Workers’ Compensation jurisdictional disputes, including interstate trucking and use of C-110 and C-112 agreements governing choice of jurisdictions
• Safety violations (VSSRs)
• Structured and other settlements, including Medicare Set-Asides

Ohio Bureau of Workers’ Compensation

• Self-insured applications and renewals
• Self-insured complaints
• DWRF and other assessments review
• 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
• Workers’ compensation discrimination cases (O.R.C. § 4123.90)

OSHA

• Formal and informal complaint responses
• Safety inspections
• Health inspections

• Recordkeeping Inspections and related recordkeeping issues, including post-accident drug testing and safety incentive programs

• 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

• 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 Clients

• Atrium Centers Inc.
• Automated Packaging Systems
• Belterra Park Gaming & Entertainment Center
• Benjamin Rose Institute
• Black Horse Carriers
• Blair Rubber Company
• Bridges Rehabilitation Services
• CEVA Logistics
• City of Cleveland
• Clark-Reliance Corporation
• Cleveland Marble Mosaic Company
• Dana Transport
• Falcon Transport
• Famous Industries
• Ferrotherm
• GCA Services Group, Inc.
• Jack Entertainment LLC
• Jo-Ann Stores Inc.
• Liquid Transport Corp
• McMaster-Carr Supply Company
• Mike Coates Construction
• Otis Elevator Co.
• Perfection Associates (Aunt Millie’s)
• Precision Environmental Company
• Talecris Plasma Resources/Grifols Plasma Operations
• UTC Aerospace Systems (BF Goodrich)
• Willoway Nurseries
• Worldwide Industries Corp.
• Yardmaster