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Eligibility Under Workers’ Comp and the Social Security Disability Insurance Program

Posted on Wednesday, November 8th, 2017 at 3:00 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

A disabling injury or medical condition can strike anyone at any time. While rehabilitation and regaining one’s health is limited by the realities of modern medical science, maintaining economic security during these trying times is possible. Depending upon one’s personal circumstances, eligibility under a state’s workers’ compensation program or the federal government’s Social Security Disability Insurance program may provide the financial security blanket needed to guarantee one’s solvency, allowing one to remain focused on what matters most: healing.

Requirements for Eligibility Under Workers’ Comp Programs

Since workers’ compensation programs are administered by individual states, the specific requirements that must be fulfilled in order to be eligible for benefits of the program vary. As a general proposition, any injury or illness for which one seeks workers’ compensation must have been sustained on the job, or must have arisen out of work-related activities.

Additionally, an individual attempting to obtain workers’ compensation benefits must be classified as an “employee.” Some states also distinguish eligibility based upon the type of work that an employee performs. Finally, one’s employer must carry workers’ compensation insurance, or, alternatively, be required to do so by law.

As alluded to earlier, the above requirements are not universal, and may differ from state by state. Generally speaking, however, these requirements are common throughout the United States. It is important to note that there is a laundry list of exceptions to the general rules that may render an otherwise eligible “employee” ineligible. In order to get a better sense of individual states’ quirks, a brief review of some of the eligibility requirements of Kentucky and Ohio follow.

According to the National Federation of Independent Business (“NFIB”), in Kentucky, all employers that (employ one or more employees are required to carry workers’ compensation insurance. That said, sole proprietors, “qualified” partners of a partnership, and “qualified” members of a limited liability companies are excluded from workers’ compensation coverage. Officers of corporations, on the other hand, are considered “employees” by statute, and, thus, workers’ compensation insurance is required for such individuals.

Like Kentucky, Ohio requires all employers with one or more employees to carry workers’ compensation insurance coverage, according to the NFIB. Under Ohio workers’ compensation law, workers’ compensation coverage for sole proprietors, partners of a partnership, individuals that have incorporated themselves as a corporation, and others, is optional. In addition, and unlike Kentucky, the only option for most employers to obtain workers’ compensation coverage in Ohio is via Ohio state’s own program (as opposed to obtaining or maintaining coverage through a private or commercial insurer).

Clearly, the state-administered workers’ compensation programs are unique and can differ greatly between states. While the eligibility requirements and laws governing workers’ compensation can vary wildly throughout the nation, the federally administered Social Security Disability Insurance program applies universally. A brief overview of the eligibility requirements of the Social Security Disability Program follows.

Requirements for Eligibility Under the Social Security Disability Program

So long as the basic requirements are met, employees are eligible for workers’ compensation from their very first day of employment. While not a requirement per se, it is nevertheless important to note that, unlike workers’ compensation programs, Social Security Disability benefits are only available to those that have worked for a longer period of time. As a general rule, in order to qualify for Social Security Disability, one must have accumulated forty “credits,” twenty of which were earned in the past ten years. The number of credits required is determined by the claimant’s age at the time of disability. A younger individual will require less work credits than an older individual. One “credit,” according to the Social Security Administration, is earned for every $1,300 of wages an employee earns. An employee may earn only four credits per year; thus, once an individual earns $5,200 for the year, that individual has earned their maximum four credits for that year.

In addition to earning the requisite number of credits, a person must meet the Social Security Administration’s definition of “disabled” in order to qualify for disability benefits. “Disability” means that a person “cannot do work that [they] did before,” one’s “disability has lasted or is expected to last for at least a year or to result in death,” and the Social Security Administration determines that the one seeking benefits “cannot adjust to other work because of [their] medical condition(s).” If these three definitional elements are met by an applicant, they will be considered disabled, and will thus have satisfied one of the requirements to be eligible for disability benefits.

In addition to the above requirements, one must have “worked in jobs covered by social security.” The individual’s affliction must result in “long-term impairment” that “preclude[s] any gainful work.” Finally, the affliction must be so severe that the social security disability applicant is unable to perform their previous work; further, the applicant must be unable to engage in “any other type of substantial gainful work.”

While the above list of requirements is by no means exhaustive, it is illustrative of what an applicant would be required to do and show in order to qualify for Social Security Disability benefits. Clearly, the eligibility criteria for workers’ compensation programs differ substantially from disability benefits. Nonetheless, under some circumstances, one may qualify for both workers’ compensation benefits and Social Security Disability benefits. When such a situation arises, the issue of offsetting becomes a concern.

The Offsetting Effect of Workers’ Compensation on Social Security Disability Insurance

The Social Security Disability Insurance program requires that, when an individual is eligible for both workers’ compensation benefits and disability benefits, said individual’s disability benefits be reduced. This reduction must result in the combined benefits from the two separate programs being less than or equal to eighty percent of the individual’s “average current earnings.” “Average current earnings,” according to the Social Security Administration’s website, is defined as “the highest of the average monthly wage on which the unindexed disability primary insurance amount is based, the average monthly earnings from covered employment and self-employment during the highest five consecutive years after 1950, or the average monthly earnings in the calendar year of highest earnings from covered employment during the five years ending with the year in which disability began.”

The receipt of workers’ compensation benefits may have an offsetting effect on disability benefits under other circumstances, as well. For example, when a particular state’s workers’ compensation program allows for the possibility of a lump-sum payment being made to the recipient, thereby discharging the obligations of the insurer and/or employer, but simultaneously permits the payment of benefits in a more structured, periodic nature, said settlement is affected by the offset. More specifically, the lump-sum payment is “prorated to reflect the monthly rate that would have been paid had the lump-sum award not been made.”

There are a multitude of exclusions that apply to the offsetting rules. For instance, certain sums expended for medical purposes “in connection with” workers’ compensation are subject to exclusion in figuring the amount of the offset. Likewise, legal fees incurred by an individual “in connection with” workers’ compensation may be subject to exclusion. Finally, many other government benefits may be excluded from the offset, as well, including VA benefits and needs-based benefits, to mention a few.

What Should You Do If You Are Eligible for Workers’ Compensation and Social Security Disability?

When faced with a disabling medical condition or health-related emergency, many may find themselves in dire straits, financially speaking. Luckily, certain government programs, such as the state-administered workers’ compensation programs and the federally administered Social Security Disability Insurance program, exist and may be able to help those in need. While the eligibility requirements may change from jurisdiction to jurisdiction depending upon the program, and can oftentimes be strict, those that qualify may receive the financial security they need to get through some of the most difficult times in their lives.

If you have any further questions, call one of the attorneys at Lawrence & Associates for a free consultation. Lawrence & Associates has handled thousands of claims for injured and disabled men, women, and children. We’re Working Hard for the Working Class, and we want to help you!


10 “Tricks” to Keeping Your Kids Safe This Halloween

Posted on Monday, October 30th, 2017 at 9:50 am    

By Karley G. Michels
glow-lightsIt’s that time of year again! All of the little ghosts, goblins (or ninja turtles) of the neighborhood will be at your doorstep asking for a sweet treat tonight. According to The Globe and Mail, most parents consider letting their kids trick-or-treat by themselves on Halloween night around the ages of 9 and 10. Allowing them to take off by themselves (in the dark) can generate a great deal of worry for a parent on Halloween night. And let’s face it, the adults want to have fun too, so here are 10 tricks (pun intended) that can help you worry less about your little creatures on Halloween night.

  1. Have them wear (or carry) something reflective – Especially if they insist on wearing an all-black costume. Get creative: use reflective tape from the hardware store to stick across their candy bags or buckets. Wearing or carrying something reflective is a great way to keep your little one in sight of neighborhood-intruding vehicles. Bright costumes are always a good idea.
  2. Give them glow sticks! – Who doesn’t like a good glow stick? They’re cheap and keep your child visible in the dark.
  3. face paintingHave your child carry a flashlight – Put it to use after it gets dark! This can be great for locating objects on the ground that can cause them to trip and fall.
  4. Eat no treats until an adult checks them – Check all of your child’s candy before allowing them to eat it. Throw out all candy with torn or open packages. If it looks suspicious, don’t eat it!
  5. Don’t eat homemade treats – Unless you absolutely know and trust the person handing them out, don’t chance it!
  6. Check ingredients on candy wrappers – If your child has a dye or nut allergy, it is important to check the ingredients before they eat the candy.
  7. Masks block vision! – Consider non-toxic face paint in place of a mask.
  8. Walk on sidewalks – Keep your kids safe by teaching them to walk on the sidewalk as far away from the street as possible and to always look both ways before crossing the street.
  9. Keep your little ones close by – If you think your child should not be able to walk the neighborhood by themselves, keep them close.
  10. Use the Buddy System – If your kids are old enough to walk without an adult, make sure they have a friend to walk with. Tell them to watch out for each other and stay safe!

Halloween night should be a fun and exciting night for kids of all ages. This doesn’t mean that you can’t take every precautious measure there is in the book to make sure your child is safe during the event. Happy Halloween from Lawrence & Associates!


The Difference Between Underinsured Coverage for Kentucky and Ohio Residents

Posted on Thursday, October 19th, 2017 at 7:29 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

Being involved in an automobile accident can be a trying experience. Even long after the accident, negotiating with insurance providers is often a major source of stress for either party involved. Given the stress of the situation it is a common temptation for the insured to agree to a quick settlement, regardless of how unfavorable it might be, simply for the sake of moving forward. In order to prevent such a situation, it is important to be fully informed of your rights and responsibilities, as well as the rights and responsibilities of all parties involved.

Uninsured and Underinsured Motorist Coverage

According to a 2014 study conducted by the Insurance Research Council, one in eight drivers in the United States are uninsured.  In the Commonwealth of Kentucky, nearly 16% of all motorists are uninsured. In the state of Ohio, the number of uninsured drivers is approaching 14%. This means that if you are injured in an automobile accident in Kentucky or Ohio, you run a 14% and 16% chance, respectively, of having to deal with a party who is uninsured.  In order to protect themselves from such a scenario, many drivers purchase Uninsured Motorist coverage (UM). UM is offered as a standard on every insurance policy. It can, however, be waived by request.

Another scenario you may experience is being involved in an accident with a driver who has insurance but doesn’t have enough insurance to cover the property damage or personal injury caused to themselves or others. This category of insured drivers is commonly known as underinsured motorist coverage, or (UIM). Whenever a claimant makes a claim against her own insurance this is also known as a first party insurance claim.  Remember this important difference:  both an uninsured claim and an underinsured claim are claims made against your own insurance policy, but an uninsured claim is made when the at-fault driver had no insurance, while an underinsured claim is made when the at-fault driver didn’t have enough insurance.

Ohio vs. Kentucky Handle No-Fault Benefits Very Differently

Some states require insurance companies to compensate the injured for medical expenses and/or lost wages regardless of who was at fault in the accident. States which enforce this regulation are known as no-fault states. Other states follow an insurance arrangement in which one party is assigned most of the blame of the accident. The party to which the blame was assigned is then legally liable for the damages. This is known as a tort system.

Ohio follows the tort system, which operates on the theory of comparative negligence. Comparative Negligence, for insurance recovery purposes, means that if one party is more than 50% responsible for the accident then that party is not entitled to damages.

If you are involved in an automobile accident in Kentucky, you are not required to prove that the other driver was at fault in order for you to be compensated by your insurance company. In no fault states the portion of the insurance that covers the expenses is known as Personal Injury Protection or PIP. PIP covers motorists and pedestrians injured by motorists. Fault notwithstanding, basic PIP in Kentucky provides up to $10,000 per person per accident, for any “out of pocket” costs due to an injury. Any insurance policy that you purchase in Kentucky automatically comes with PIP coverage. Thus, all insured motor vehicles in Kentucky are required to have basic PIP coverage.

Basic Insurance Coverage Rules in Ohio

Ohio does not directly require a motorist to purchase automobile insurance, however Ohio requires all drivers to have “proof of financial responsibility,” which proves that they can pay for injuries or damages to others if they cause a car accident. Proof of financial responsibility can be, and is typically satisfied when the motorist purchases the minimally required Bodily Injury Liability coverage and Property Damage Liability coverage. The minimum bodily injury coverage in Ohio is $25,000 per injured, per accident, and $50,000 for all persons injured in any one accident. The required minimum for Property Damage Liability coverage is $25,000. In the event that the damage exceeds the minimum insurance coverage you can be held personally, legally responsible for any amount which exceeds your policy limits.

For the UIM insurance holder, any damages remaining in excess of the basic policy limit will trigger the UIM insurance, and the UIM will cover the difference between his or her UIM limits and the underinsured driver’s liability limits.  UIM insurance typically covers the driver along with his vehicle. The insured is entitled to this coverage whether she is involved in an accident as a driver, passenger, or pedestrian. The insurance policies may cover family members related through marriage and or legal adoption. However, the primary insured may not cover any other family members who have purchased their own insurance policies independent of the primary insured. Passengers can also be covered under the primary UIM insurance policy; the insured must review the specific language in order to determine how UIM coverage can be applied.

Basic Insurance Coverage Rules in Kentucky

The requisite insurance coverage for all ensured motor vehicles, with the exception of motorcycles, in the Commonwealth of Kentucky is PIP. PIP, or personal injury protection, offers up to $10,000 per insured per accident. In order for the injured party to recover any medical expenses, the medical treatment for the injuries they sustained must be in the excess of $1,000.

Assuming that both drivers, or driver and pedestrian, are both minimally insured, then the question arises is who is responsible for paying the PIP.  Regardless of whoever is at fault in the collision, if a pedestrian or a cyclist is struck by an automobile, then the PIP insurance from the automobile involved in the accident is also extended to that cyclist or pedestrian.  Kentucky Law provides that the statute of limitations for an action for PIP benefits is two years from the time the person suffers the loss of wages or incurred the medical bills caused by the accident.

As mentioned earlier, if you are involved in an automobile accident in Kentucky or Ohio you run a 14% and 16% chance, respectively, of having to deal with a party who is uninsured. In order to protect themselves from such a scenario, many drivers purchase Uninsured Motorist coverage (UM). UM is offered as a standard on every insurance policy. It can, however, be waived by written request.

Do You Need a Lawyer to Access Auto Insurance Coverage?

If you have been involved in an accident and are attempting to make a first party insurance claim, it may be wise to seek legal assistance in creating your claim. Although they theoretically exist to work for your benefit, insurance companies are ultimately profit seeking corporations. It should be of no surprise that minimizing their corporate expenses may take precedent over satisfying your claim in full. It is not uncommon for an insurance company to either deny a claim or attempt to make a quick settlement which may not cover all of your expenses. As mentioned earlier many people find that the stress of attempting to make an insurance claim, with an insurance company who is reluctant to fulfill their contractual obligations, more stressful than the actual accident that they have recently been involved in. This is why it is important to ensure that you can properly negotiate your options and receive the full amount you are entitled to. One way of ensuring this is to speak to an attorney. An experienced attorney will be able to navigate the complicated process and conduct favorable negotiations on your behalf.

Have you been injured in a car accident and need help?  We can provide the service and customer satisfaction you need.  Call one of our attorneys for a free consultation today.  We’re Working Hard for the Working Class, and we want to help you!


When can a business be held liable for an independent contractor’s negligence?

Posted on Friday, September 22nd, 2017 at 11:46 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Sam Hoops, who is pursuing his Juris Doctorate at the University of Kentucky.

In Pusey v. Bator, the court wrestled with the issue of whether a business can be held liable for an independent contractor’s negligence. Although the general rule regarding employer liability for negligent acts of a contractor acknowledges that the employer should not be held vicariously liable, the court here relied on an exception to the rule stemming from the “nondelegable duty doctrine,” specifically the “inherently-dangerous-work” criteria. The majority ultimately determined that the corporation could be held liable should the jury find that the independent contractor acted negligently.

In Pusey, Greif Bros. Corp. (“Greif”), a steel drum manufacturer, owned and operated a manufacturing plant in Youngstown, OH. After several incidents of theft, Greif hired Youngstown Security Patrol (“YSP”) to “deter theft and vandalism.” Although the contract between Greif and YSP did not specify whether YSP guards would be armed or not, the superintendent of Greif had knowledge that YSP guards often carried a firearm while on the job. After several years of providing security for Greif, YSP hired a new security guard, Eric Bator (“Bator”), whom was not licensed to work as an armed guard, yet carried a firearm nonetheless while working the night shift.

The facts giving rise to the case at hand began at approximately 1:00am during which time Bator was the sole guard on duty. Upon noticing two individuals, later identified as Derrel Pusey (“Pusey”) and Charles Thomas (“Thomas”), walking through Greif’s parking lot, Bator questioned the men of their intentions and ultimately ordered them to lie down on the ground with their arms out to their sides. Although Thomas complied with Bator’s orders, Pusey, while lying on the ground, made a quick movement like he was reaching for something in his back pocket, wherein Bator discharged his firearm, fatally wounding Pusey. As such, Pusey’s mother (“Plaintiff”), instituted a wrongful death and survivorship action against Bator, YSP, and Greif. At the trial level, Greif moved for a directed verdict, which was granted and subsequently affirmed on appeal by the Seventh District Court of Appeals.

Plaintiff appealed this case to the Ohio Supreme Court wherein the general rule regarding a company’s liability for an independent contractor’s negligence was examined. The first question in determining the liability of a company for the negligent acts of an independent contract begins with the chief question of whether one is an employee or an independent contractor. In Bobik v. Indus. Comm., the court answered this question by positing that, should “the right to control the manner or means of performing the work” lie with the company, there is an employer-employee relationship, incurring vicarious liability upon the company. In the alternative, should this right lie with the one performing the work, the employer will be insulated from liability. The court then considered exceptions to the general rule regarding independent contractors, specifically those stemming from the “nondelegable duty doctrine,” which includes two separate categories: (1) “affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law and; (2) duties imposed on the employer that arise out of the work itself because it creates danger to others, i.e., inherently dangerous work.”

Should the work assigned fall into one of the two above-listed categories, “the employer may delegate the work…., but he cannot delegate the duty,” i.e., the employer is not insulated from liability. To determine whether the work itself is inherently dangerous, it must create a peculiar risk of harm to others unless the company takes special precautions by ensuring that the work is done with reasonable care. For work to be considered inherently dangerous, “it is sufficient that the work involves a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself.” Although the exception does not apply to a general anticipation of the possibility that an independent contractor will negligently cause harm to a third party, it will apply where the work creates special risks which would cause a reasonable person to recognize a necessity to take special precautions, i.e., the work must create a risk that is “not a normal, routine matter of customary human activity.”

Although Greif argued that hiring armed guards does not create a peculiar risk of harm to third parties, the court disagreed and stated that because YSP guards were instructed to “deter theft and vandalism,” the work contracted for anticipated a confrontation between armed guards and persons entering Greif’s property. Therefore, the work that YSP was hired to do created a foreseeable and peculiar risk of harm to third parties, which was not a normal, routine matter of human activity. As such, the case was remanded to the trial court for a determination of whether Bator acted with negligence in discharging his firearm. Pursuant to the Ohio Supreme Court’s holding, upon a showing of such negligence, Greif should be held liable for the death of Pusey.

In sum, a business may be held liable for the negligent acts of an independent contractor when the employer uses said contractor in a manner that most would consider inherently dangerous, i.e., there is a high chance that the contractor’s actions cause physical harm to others.

Note from Lawrence & Associates:  Most lawsuits related to injury or death are due to negligence, but this is not always the case.  Some lawsuits have layers, such as the instant case where a company’s negligence enabled the intentional act of another party, and these actions in combination got someone killed. If you are trying to figure out whether you should contact an attorney about filing a lawsuit, consider the fact that a good attorney can investigate your claim and will sometimes find issues not immediately obvious to you that indicate you should file a lawsuit related to your injury or the death of a loved one.  If you believe you may have an injury related lawsuit or insurance claim, don’t hesitate to call one of our attorneys for a free consultation.  We’re Working Hard for the Working Class, and we want to help you!


Will Student Loan Debt Cause the Next Financial Crisis?

Posted on Wednesday, August 30th, 2017 at 3:23 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

According to a recent New York Times article, at least $5 billion are at stake in a protracted legal dispute between student borrowers and creditors. At the center of this dispute is an organization called the National Student Loan Trust (NCT). The NCT is an umbrella organization of fifteen trusts. Having purchased nearly 800,000 student loans, the NCT is one of the largest owners of private student loan debt in the United States. The way the NCT works is that it buys private student loans then subcontracts to collection firms to file lawsuits in U.S. Courts.

Statistics from the student-loan financing website Make Lemonade indicate that 11% of students default on their student loan debt. Private lenders lack many of the powers afforded to federal lenders, such as interception of tax refunds, garnishing of social security benefits, or other seizures of federal income revenue. Therefore private lenders must rely almost exclusively on lawsuits in order to collect on debt. Although the NCT isn’t the only loan purchaser which takes its borrowers to court, NCT is considered to be the most litigious among them. According to the New York Times the NCT files an average of four lawsuits per day throughout the U.S.

Essentially NCT is in the business of purchasing debt, which is also known as securitization. Mass securitization is not an uncommon practice. However, because they purchased the loans in bulk from various private lenders, NCT often cannot provide an unbroken chain of title which links the borrower to the debt actually owed. As a result of this discrepancy, many judges are dismissing NCT cases in court.  Once a case is vacated in the court the borrower is no longer on the hook for the amount the creditor claims he or she owes.

What this means is that if you are one of the 800,000 former students whose student-loan debt is owned by the NCT, it is possible that your debt may be wiped clean.

How can you beat a law suit to collect on a student loan?

Transworld is the agency that NCT hires to collect their debt and take the consumers to court. According to a review conducted by the New York Times, the lawsuits brought about by the NCT/Transworld are failing in court due to their inability to prove ownership documents. This problem is similar to that which was caused by the ‘robo signing’ which plagued the subprime mortgage crisis of last decade. Attorney Robin Smith of the National Consumer Law Center commented “This is robosigning 2.0 with student loans...You have securitized loans in these large pools; you have sloppy record keeping,” as in the mortgage crisis.”

Federal loans afford a measure of protection to the consumer through income based payment plans, and the ability to discharge the loan in the event that the borrower’s school was closed down due to fraudulent dealings. Private loans on the other hand do not afford such protections to the consumer, furthermore the double digit interest rates, which balloon over time, can leave the borrower to pay hefty monthly sums which are unaffordable to most borrowers.

How do I know if I’m being sued for student debt?

You know you are being sued for the debt if you have received a summons and complaint in the mail. Once you received this summons and complaint from a court you have twenty days in Kentucky to answer it, or twenty-eight days in Ohio. If there are other defendants listed on the lawsuit they are probably your co-signers, who may be equally liable in court. To fail to respond to a summons within the thirty day time frame is to grant your lender a default judgment in court.

Traditionally many debt collectors relied on the default judgments they would receive by defendants’ who either ignored summons or quickly agreed to payment settlement terms. NCT typically puts out lawsuits within 6-12 months of the borrower’s default on the loan. Therefore, whether or not you intend on seeking professional assistance from an attorney be sure to mark your calendar. Once you receive the summons the clock on your lawsuit begins ticking.

Is it always in my best interests to quickly settle?

Some consumers arrange with law firms to make a settlement. What the debt collector is seeking is usually a “consent of judgment” along with an agreed upon monthly payment schedule. Keep in mind that once you sign you are consenting that you are legally liable for the debt. Before you have explored all of your legal options or verified the amount you actually owe, rushing into a settlement may not always be the best strategy. You may be one of the 800,000 consumers who has an affirmative defense. With the assistance of an attorney at the very least, with you may be able to work out a better settlement.

An affirmative defense is additional evidence which negates civil liability even if the initial charge can be proven. One typical affirmative defense is the statute of limitations. In the commonwealth of Kentucky, creditor’s generally take the position that the lawsuit must be filed within five years. In the state of Ohio, the statute of limitations on suing for student loan debt, or debt of any kind, is generally six years.

Finally, the NCT must show actual proof of the debt that you owe. This proof should be in the form of a loan agreement between you and the lender. Oftentimes in cases where the lender possesses some paper work evidence, the exact amount still may be in dispute.

If the collection agency has run the statute of limitations, they are still attempting to collect on the debt in spite of not having the proper documentation, this company may possibly be in violation of the Fair Debt Collections Act.

If you have been sued by your student loan provider, or you believe there is a discrepancy between the amount you owe and the amount that your lender is seeking to collect, contact an attorney as soon as possible for a free consultation.


I Want a Jury Trial for My Workers’ Compensation Claim.  How Can I Get There and What Can They Decide?

Posted on Wednesday, August 16th, 2017 at 1:54 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

The Ohio Workers’ Compensation Code allows an injured worker to appeal a decision by the Industrial Commission to a regular Court of Common Pleas and have a jury trial.  But if a worker makes that kind of appeal, what issues is the jury allowed to hear?  This article will discuss the Ohio Supreme Court’s Opinion in Ward v. Kroger Co., where that question is answered.

On April 26, 2001, Howard Ward (hereinafter “Ward” or “plaintiff”), an employee of Kroger Company (hereinafter “Kroger” or “Defendant”), injured his right knee in the course of his employment. In the Workers’ Compensation claim that followed, Kroger certified the condition of “right knee sprain,” but would not certify the conditions of “medial meniscus tear” and “chondromalacia.” Throughout the administrative review process, a district hearing officer allowed plaintiff’s claim for “right knee sprain,” but disallowed the other claims, a decision that was affirmed by a staff hearing officer. These decisions were not disturbed, due to the Industrial Commission’s refusal to hear a further appeal.

In an effort to have his claims for “medial meniscus tear” and “chondromalacia” allowed, and to participate in the Workers’ Compensation Fund for those conditions, Ward appealed, pursuant to R.C. 4123.512 (an Ohio statute generally allowing for the appeal of certain decisions made by the Industrial Commission in Workers’ Compensation cases), the decisions made throughout the administrative process to the Jefferson County Court of Common Pleas. Shortly before the scheduled trial date, however, plaintiff filed a motion to amend his complaint to add the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis.” Neither of these conditions had been presented to the administrative body.

The trial court granted the plaintiff’s motion to amend his complaint, and the plaintiff dismissed the “chondromalacia” claim. However, the case proceeded to trail by jury on the remaining claims (including the original “medial meniscus tear” condition, as well as the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis” contained in the amended complaint). The jury returned a verdict against the plaintiff on the originally appealed condition (that is, “medial meniscus tear”), but found in favor of the plaintiff on the remaining claims.

Plaintiff’s victory at the trial court was appealed. On appeal, the Court of Appeals reversed the judgment of the trial court, holding that the trial court had “exceeded its jurisdiction by permitting the employee [Ward] to amend his complaint to add these two conditions, which were never presented to the administrative body” (emphasis added). Ultimately, the Court of Appeals held that, when an appeal is being made pursuant to R.C. 4123.512, “the scope of the trial is limited to the condition ruled upon below.” In other words, the trial court had erred in allowing the plaintiff to amend his complaint to add two new conditions (that is, the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis”) because those conditions had never been ruled upon by the administrative body (that is, the district hearing officer, staff hearing officer, and Industrial Commission).

The Court of Appeals’ decision was appealed to the Ohio Supreme Court. The basic issue to be decided by the Court, as alluded to above, was the scope of a R.C. 4123.512 appeal. Specifically, the question to be addressed was whether such appeals were limited in scope to those conditions addressed by the administrative body – in other words, was it permissible for trial courts to allow a plaintiff to amend his or her complaint prior to trial to include conditions that were never presented to the administrative body below?

The Ohio Supreme Court began its analysis by making note of the dichotomy that existed between the district courts of appeals on this particular issue. Some courts were of the opinion that allowing a plaintiff to amend his or her complaint to include conditions not initially or originally presented to the administrative body was permissible. These courts rationalized this conclusion by pointing out that an appeal made pursuant to R.C. 4123.512 is subject to “de novo” review of law and fact, and that, therefore, a plaintiff is not limited to the record formed during the administrative process. In further support of this conclusion, these courts reasoned that R.C. 4123.512 “provides for the application of the Civil Rules, which freely permit amendment of issues and claims.” Additionally, these courts note that R.C. 4123.512 authorizes “the taking of depositions and other discovery,” implying that the General Assembly (Ohio’s legislative body) “contemplated that additional evidence might surface in the court of common pleas and intended, in the interest of judicial economy, to allow for the litigation of new conditions.”

As persuasive as the previous reasoning may be, the Ohio Supreme Court’s mindset was more aligned with the opposing view. Those courts that disagree with the foregoing reasoning hold that a plaintiff may not litigate a new or different condition at trial in the court of common pleas. These courts reason that, since the trial is characterized as “de novo,” only “new evidence may be presented with regard to the appealed condition” – “evidence of a new condition may [not] be presented for the first time on appeal.” Additionally, these courts “view the order appealed as framing the jurisdiction of the common pleas court” – in other words, the administrative body must first be presented with and review conditions set forth by the plaintiff before the court of common pleas can adjudicate the issue.

As noted, the Ohio Supreme Court is in agreement with the view that appeals made pursuant to R.C. 4123.512 are limited in scope to those conditions addressed by the administrative body. However, the Ohio Supreme Court, in their decision, expanded upon the reasoning provided by the lower courts. The Ohio Supreme Court reasoned that “allowing consideration of the right to participate for additional conditions to originate at the judicial level is inconsistent with [the] statutory scheme” because, in essence, it eliminates the need and purpose behind the administrative body’s existence in the first place. To put it a slightly different way, the entire reason the administrative body was put in to place was to allow for the introduction of claims and to provide a record upon which higher courts could rely during the appellate process; allowing a plaintiff to amend his or her complaint and introduce entirely new issues for litigation at the trial court would eliminate the need for the administrative body. If such were not the case, plaintiffs should logically initiate their workers’ compensation claims at the trial court itself, as opposed to the Industrial Commission or administrative body, because, under such a scheme, the trial court and the administrative body share the exact same authority to allow for the introduction and adjudication of new and initial claims.

Ultimately, the opinion rendered by the Ohio Supreme Court in this case is consistent with principles of judicial review that have always, and continue to, justify the existence of appellate practice in nearly every jurisdiction in this country. The appeals process is, in a very general sense, meant to ensure against the erroneous application of law by lower courts. Appellate courts do not exist to provide litigants with multiple opportunities to perpetually try the same case over and over again. If this were not the case, every justification provided for the existence of administrative bodies and/or trial courts would be eliminated, leaving litigants with one court, and one court only, to adjudicate their claims from beginning to end. Such a system would result in the eradication of procedural safeguards, the multiplication of incorrect applications of law, and the destruction of all available means of recourse for litigants.


Can I Sue for Being Exposed to Mold in Ohio? A Case Study of Terry v. Caputo

Posted on Wednesday, August 9th, 2017 at 4:15 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

There is only a genuine issue of material fact in mold exposure if the plaintiff is able to demonstrate through expert testimony that mold exposure generally causes the type of injury the plaintiff experienced and the exposure to mold caused the plaintiff’s specific injury. In Terry v. Caputo, the Ohio Supreme Court adopted the above test and reversed the case because the plaintiff failed to demonstrate with medical experts that exposure to mold caused the specific injury at issue.

The Facts of Terry v. Caputo

Ottawa County Board of MRDD leased several suites from W.W. Emerson, and shortly after its employees began to experience headaches and physical ailments. The Ottawa County Board of MRDD conducted a building inspection and found mold in several locations. The employees’ ailments were attributed to the damp conditions in the building, which was subsequently cleaned. The symptoms eased but returned shortly. Further testing revealed several mold spores, including a type of mold that can cause the symptoms the employees experienced.

At trial, the plaintiffs’ medical expert had not personally examined the employees during their exposure to mold, but reviewed their medical records and concluded that the plaintiffs’ symptoms were caused by mold, mildew, and poor ventilation.

The trial court granted summary judgment for the defendant – summary judgment is when a court decides if either or both of the parties are able to present evidence regarding each essential element of a claim – because the plaintiffs failed to present medical evidence that their symptoms were directly caused by the mold. The court found the plaintiffs’ medical expert’s conclusions were broad and correlative rather than specific to the plaintiffs.

The appellate court overturned the trial courts decision to exclude the plaintiffs’ medical expert’s testimony with respect to general causation. However, the appellate court affirmed that the medical testimony did not prove specific causation because the expert relied too heavily on a temporal relationship. The appellate court reversed the grant of summary judgment because the plaintiffs could still demonstrate specific causation through additional evidence.

The Ohio Supreme Court’s Reasoning – How Do You Prove Mold Caused Your Illness?

Prior to this case, the Ohio Supreme Court had yet to rule on this specific issue. The court acknowledged the issue had been frequently considered in federal courts and adopted the test outlined in Knight v. Kirby, which required the plaintiff to demonstrate both general and specific causation. Step one of the Knight test is to prove the plaintiff was exposed to a type of mold (or other toxic substance) that can cause the particular injury experienced. The second step is satisfied if the plaintiff is able to demonstrate the mold, in fact, caused the specific injury in dispute.

To establish both general and specific causation, a plaintiff must present an expert witness. Expert testimony is governed by Evidence Rule 702, which requires, in part, that an expert witness base his or her testimony on reliable, scientific, technical, or specialized knowledge and the expert’s theory must be objectively verifiable or validly derived from widely accepted knowledge, facts, or principles.

In determining if expert testimony should be admitted trial courts are privileged with the role of “gatekeeper,” which gives trial courts discretion to analyze the reliability and relevance of the expert’s testimony. Appellate courts should only overturn the trial court’s determination if the trial court has abused its discretion in deciding the expert testimony was not reliable or relevant.

Expert testimony is reliable if the methodology has been subject to peer review, if the methodology is not known to have a high error rate, and if the methodology is generally accepted in the scientific community. Courts should only be evaluating the reliability of the methodology, not the results. In addition, expert testimony is considered relevant if it advances the matter at hand, which means there is a connection between the scientific research and the test results. This two-step inquiry has been described by a federal court as determining the scientific validity of a particular theory and analyzing the reliability of the expert’s application of the tested principles.

Finally, the Ohio Supreme Court relied on two Virginia cases in which motions for summary judgment were granted and upheld because the expert’s medical testimony was unable to prove the particular type of mold that caused the ailment and the expert was unable to rule out other causes of the plaintiff’s symptoms. When both cases were appealed, the California appellate courts held that the trial courts acted properly in their role as a gatekeeper because the trial courts had determined the expert testimony was not reliable or relevant and was too heavily on temporal correlations.

The Ohio Supreme Court ruled that the appellate court properly held that the plaintiffs’ expert testimony was sufficient to establish a generally connection between the type of symptoms exhibited by the plaintiffs and the type of mold that was discovered at their workplace. The court also held that the appellate court properly determined that the medical evidence was insufficient to establish that the mold was the specific cause of the plaintiffs’ symptoms. However, the court held that the trial courts summary judgment should have been upheld because the plaintiffs’ failed to establish that the mold was the specific cause of the ailments. As a result, the Ohio Supreme Court upheld the appellate court’s test but reversed and granted summary judgment.

Pfeifer Dissent

Justice Pfeifer was the lone dissenter who argued that the majority’s test was correct, but not its application. Pfeifer argued that the prior case law, which the majority relied upon, involved the plaintiff’s expert testimony at trial, but in the present case, the court was only deciding if summary judgment should or should not be granted. In other words, was there a genuine issue of material fact that the mold caused the specific type of symptoms exhibited by the plaintiffs? Pfeifer argued that general medical causation is sufficient to overcome the low burden of summary judgment.

What Does This Mean for My Mold Exposure Claim?

A motion for summary judgment occurs relatively early in the litigation process and the court’s holding in Terry v. Caputo establishes what evidence the parties must be able to demonstrate in mold or toxic exposure cases to successfully survive the motion. If the parties are unable to demonstrate both general and specific causation the parties will see their cases dismissed before trial. Obviously, these are complex issues, and it may be wise to talk to an attorney well before filing a lawsuit or insurance claim to ensure your case is handled correctly.

If you have a personal injury claim, don’t go it alone! Lawrence & Associates may be able to help! Our attorneys offer free consultations, or can refer you to another credible firm. Call us today – We’re Working Hard for the Working Class, and we want to help you!


When Is Creditor Harassment Illegal, and How Can You Stop Harassment?

Posted on Tuesday, August 1st, 2017 at 2:39 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

During the 2016-2017 school year, Colleges and Universities in the U.S. have awarded approximately; 1 million Associates degrees; 3 million Bachelor’s degrees; 790,000 Master’s degrees; and 180,000 PhD’s. According to the most recent statistics from the Federal Reserve there is 1.2 trillion owed in total student loan debt. Of these approximate 3 million graduates, 11% will default in their student loan debts. Even if you have not taken out student loans, chances are you have, at least once in your life, been in communication with debt collection agents.

Losing your job, being involved in an accident, or losing a loved one are some of the many things that can trigger an unexpected loss or income, or an increase in medical bills. Aside from being tragic these unexpected events can ultimately result in the victim falling into debt. If the consumer has defaulted it is important for them to work out any arrangement they can before the debt goes to a collection agency. Once your debt has been sold to a debt collection agency, it will have been handed off to an entirely new group of people. This new group of people have no knowledge or concern about how the debt was accrued. The collection agencies sole purpose is to collect debt in any way they can.

For those who have been contacted by a debt collector, one of the first steps is to: 1) verify the validity of the debt; and 2) verify that the company contacting you legitimately owns the debt.  Unfortunately many consumers feel the stigma that accompanies being in a state of indebtedness. Among the emotions associated with this stigma is a feeling of defeat and vulnerability. While in such a state of vulnerability, many consumers either forget or fail to realize that they are still entitled to protection against consumer harassment. Some debt collectors take advantage of this circumstance by employing improper tactics in their attempt to collect on your debt. Every consumer reserves the right to not be subjected to such improper tactics regardless of their financial circumstance. Many people acquire debt in the aftermath of a tragic life experience. In the aftermath of a tragedy these same people would be most vulnerable to harassment and exploitation. However, it is important for the consumer to realize that one simply does not relinquish their right to be treated with civility simply because they are in a state of indebtedness.

To ensure that debt collectors do not abuse their power, several states have enacted statutes designed to protect the consumer from unscrupulous debt collection practices. Ohio has enacted the Ohio Fair Debt Collection Practices Act. Although Kentucky has no similar state counterpart, residents of all states are protected by the Fair Debt Collection Practices Act (FDCPA).

What Debt Collectors Are Not Allowed To Do

The FDCPA is a document which enumerates what is considered “fair communication” in debt collection. The entire act consists of eighteen sections and several sub clauses. Among the information contained therein is: the definition of what would be considered harassment or abuse; definition of false and misleading information; and a delineation of the legal parameters of debt collection. The following bullet points cover a general understanding of the issues which most commonly affect the consumer as it pertains to what the debt collector isn’t allowed to do.

  • Harass you by phone- If you make it clear to a debt collector that you do not wish to be called by telephone they must respect this wish. Instead of constant phone calls you can request that the debt collectors relegate their correspondence to written communication. Debt collectors should not correspond by means of post card or any other form in which a third party may discover that you are being contacted in reference to a debt.
  • Contact you outside of a normal time frame – For those who do not mind phone correspondence, rest assured that debt collectors are not allowed to contact you between 9:00pm and 8:00am.
  • Target third Parties – Unless expressly authorized by the addressee, debt collectors are not permitted to intentionally contact third parties for the purposes of collecting your debt. This applies to spouses, children, co-workers, or anyone else who may answer the phone.  A second federal law, called the Telephone Consumer Protection Act also prohibits this kind of harassment.
  • Target you at Work – Unless expressly authorized by the addressee, debt collectors are not allowed to contact you at your workplace.
  • Engage in False Representation – Debt collection specialists are not allowed to represent themselves as court officers, law enforcement agents, or attorneys. They are also not permitted to threaten any legal action – or jail time – that they have no intention of following through with.
  • Circumvent your Attorney – Once you are represented by an attorney, or have otherwise referred the debt collector to contact your lawyer, the debt collector is no longer allowed to contact you directly.

What Can You Do If a Debt Collector Is Violating The Fair Debt Collection Practices Act in Kentucky or Ohio?

Among the debt collection workforce are a large number of part time, seasonal, or non-career employees. While there are several reputable legal firms and skilled attorneys that work in the business of Debt Collection, many of the debt collection specialist jobs require no more education beyond a GED and basic computer proficiency.

Thus, the consumer should never assume that all debt collectors are either thoroughly versed in the Federal Fair Debt Collection Practices Act, or particularly concerned about adhering to their training guidelines beyond what is required for them to remain employed. That being said, among those employed as debt collectors are students, stay-at-home parents, business owners, and others who have full time careers outside of their debt collection jobs.  Thus it should not be a surprise that many collection specialists are knowledgeable in fee dispute resolution and inclined to working with the consumer in an affable way.

Despite this fact, the consumer should never assume that all specialists will follow all guidelines in the absence of any reminders or specific requests from the consumer. It would therefore be wise to make such requests in writing, preferably with a certified letter.

If all else fails, contact an attorney to stop the harassment. Attorneys that can help with situation generally come in two varieties – those who file bankruptcies, and those who file civil actions under the Fair Debt Collection Practices Act. Either kind of attorney can help stop the harassment. A bankruptcy attorney is typically better for those who actually owe the debt and are no longer able to set up a reasonable budget to pay it back. A civil court, FDCPA lawsuit is better for those who don’t owe the debt, or who have the ability to make payments on it but simply need the creditor or collection agency to stop violating the law. When it pertains to creditor harassment each person has her own unique set of circumstances. By contacting either type of attorney, you can be ensured that the debt collector will cease harassing you; and that your attorney will be able to represent you in court if necessary.

At Lawrence & Associates, we file bankruptcies to stop creditor harassment, and we will bring the creditors to federal court for harassment that occurs after the bankruptcy’s filing. If you are being harassed by a creditor, call one of our attorneys today for a free consultation. We’re Working Hard for the Working Class, and we want to help you!


Does My Insurance Company Have to Pay If an Unidentified Vehicle Hits My Car?

Posted on Monday, July 24th, 2017 at 2:15 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

A Brief Review of the Ohio Supreme Court’s Opinion in Smith, et al. v. Erie Insurance Company

In Smith, et al. v. Erie Insurance Company , the Ohio Supreme Court held that an insurance company was obligated to provide coverage to a policy-holder when an unidentified motorist caused a no-contact accident, resulting in injury to the policy-holder.

At first blush, for those not well-versed in insurance law, the legal concepts that underlie this case seem to be somewhat out of the ordinary. However, upon closer inspection, it becomes clear that the primary, driving force behind this decision is derived from well-settled principles of contract law. For laymen who may be unfamiliar with contract law, the facts of the case may, nonetheless, seem all-too familiar.

Before delving into the legal analysis employed by the court, and before determining how and why an insurance company was held liable for an accident resulting from the actions of an unidentified motorist, becoming acquainted with the basic facts of the case is necessary.

In July of 2011, Scott Smith (hereinafter “plaintiff” or “insured”) was driving his vehicle on what appears to have been a two-lane road. As the plaintiff progressed south down the highway, another motorist (hereinafter “unidentified motorist”), traveling northbound, crossed the center-line. The plaintiff, in an effort to avoid a head-on collision, swerved off of the road and crashed into a small collection of trees. As a result of this crash, the plaintiff suffered several injuries.

Soon thereafter, the plaintiff contacted the appropriate authorities. Upon arrival, law enforcement took photos of the accident scene, completed an accident report, and, relying upon the plaintiff’s statement, incorporated into the report the following: “[plaintiff was traveling southbound when he] swerved to avoid an unknown northbound vehicle that was left of center. [Plaintiff’s vehicle] went off the right side of the road and struck several small trees.”

The plaintiff held an auto insurance policy with Erie Insurance Company (hereinafter “Erie,” “insurer,” or “defendant”). In order for the policy to apply to situations in which an unidentified or unknown motorist was the cause of an injury, the plaintiff was required to “provide ‘independent corroborative evidence’ that the unknown driver caused the injury.” In other words, the plaintiff was required, by the terms of the policy, to provide some additional evidence, separate from his own account of the accident, that an unknown motorist had caused the harm in question; otherwise, the policy would not cover the costs of the plaintiff’s injuries.

The plaintiff had filed a claim with Erie; however, Erie denied the claim, grounding the basis for their denial in the language of the policy. Under Erie’s interpretation of the contractual language at issue, there was no “independent corroborative evidence” that the unknown driver had caused the injury, because the only evidence that existed to such effect, asides from the plaintiff’s own account of the accident, was a police report (and accompanying photographs) that had been produced only because of the plaintiff’s recollection of the events at issue. In other words, the police report was not “independent corroborative evidence” because it owed its entire existence to the plaintiff’s own testimony, and did not rest on any independent, third-party accounts of the accident that corroborated the plaintiff’s version of events.

The plaintiff filed suit, and the trial court granted summary judgment in favor of Erie, basing their decision upon the contractual language contained in the policy. The court held that “the policy requiring the insureds to provide ‘independent corroborative evidence’ that the unknown driver caused the injury meant that the [plaintiff] had to submit evidence, independent of [plaintiff’s] own testimony, corroborating that the accident was caused by an unknown motorist, which they failed to do.” In essence, the trial court agreed with Erie’s interpretation of the contractual language: evidence cannot be “independent,” nor “corroborative,” if that evidence rests entirely upon the plaintiff’s own account of the accident. In other words, if not for the plaintiff’s own testimony, the police report itself would never have existed. Therefore, the police report cannot be said to have been “independent.”

The plaintiff appealed. The intermediate appellate court found that the language contained in the policy was susceptible to two interpretations. The first, the interpretation advanced by the plaintiff, was that “‘additional evidence’ may consist of items of evidence, such as medical records and police reports, that are based on the testimony of the insured” (emphasis added). The second interpretation, the interpretation adopted by Erie, was that “‘additional evidence’ must be independent, third party evidence not derived from the insured.”

Because the policy language was susceptible to more than one interpretation, the appellate court considered it to be ambiguous. Applying principles of insurance and contract law (specifically, the principle of “contra proferentum,” or the idea that, particularly in the case of “adhesion contracts,” any ambiguity present in a contract should be construed against that of the drafter, or the “master,” of the contract), the court construed the language of the policy “strictly against the insurer and liberally in favor of the insured.” In reaching this conclusion, the court found in favor of the plaintiff, holding that “[additional evidence] may consist of items of evidence, such as medical records and police reports, that are based on the testimony of the insured.”

The Ohio Supreme Court also found in favor of the plaintiffs. Citing the general contract principle that “in interpreting contracts, courts must give effect to the intent of the parties,” and “that intent is presumed to be reflected in the plain and ordinary meaning of the contract language,” the court concluded that the policy language meant, essentially, just what it said – that “[t]estimony of [the insured] does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence” (emphasis added). Thus, the court concluded, the insured’s testimony can constitute “independent corroborative evidence” so long as that testimony is “supported by additional evidence” (emphasis added).

To put it a slightly different way, in the Ohio Supreme Court’s view, Erie itself defined the phrase “independent corroborative evidence,” and that definition explicitly provided that testimony of the insured party is “independent corroborative evidence” if it is supported by “additional” evidence. Erie itself, as drafters of the contractual language, had every opportunity to define “independent corroborative evidence” in any way that they wished. Erie itself decided that mere “additional” evidence was enough to constitute “independent corroborative evidence.”

Therefore, it seems that, in the Ohio Supreme Court’s view, the policy language, even if ambiguous, should not be interpreted against the insured simply because Erie failed to define “independent corroborative evidence” as, for example, “independent evidence derived solely from a third-party’s own recollection or account of the events that transpired” or simply “independent third-party testimony.” Therefore, from the court’s perspective, any evidence, so long as it is in addition to the insured’s testimony, would satisfy the dictates of the contractual language, even if that evidence was derived solely from the insured’s testimony.

Smith, et al. v. Erie Insurance Company broadly stands for the proposition that an insurance company can be obligated to provide coverage to a policy-holder when an unidentified motorist causes a no-contact accident, resulting in injury to the policy-holder. Perhaps more significantly (and perhaps more importantly to legal practitioners), however, Erie serves as an important reminder of how very vital the careful, and extremely precise, drafting of contractual provisions can be. As was the case in Erie, regardless of whether evaluated from the point of view of the plaintiff or the defendant, it can mean the difference between victory and defeat for one’s case.

Have you been involved in an automobile accident with a hit-and-run driver, or with an uninsured driver? We can help! Call one of our attorneys for a free consultation. We’re Working Hard for the Working Class, and we want to help you!


Why the Industrial Commission Can Stop your Workers Compensation Settlement Payments

Posted on Monday, July 10th, 2017 at 1:06 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

One of the first steps in pursuing litigation is to determine which court has jurisdiction over a claim. Jurisdiction is a court’s power to hear and decide a case. Failing to file a claim with the proper court will either result in the case being dismissed or the judgment will be appealed on the grounds that the original court did not have jurisdiction. The Ohio Supreme Court has clarified which courts have jurisdiction over claims regarding worker’s compensation lump sum payments.

Prior to the Ohio Supreme Court’s ruling, Ohio case law indicated that two courts could hear cases regarding worker’s compensation lump sum payments. The first was the Ohio Court of Common Pleas, which has general jurisdiction over all civil disputes with more than $500 in controversy. Second, was the Ohio Court of Claims, which has exclusive jurisdiction over civil suits against the State of Ohio for money damages that are “sound in law.” After the Ohio Supreme Court’s ruling in Measles v. Industrial Commission, the Ohio Court of Claims has exclusive jurisdiction over workers’ compensation lump sum disputes.

Studying Measles v. Industrial Commission: Background information

A class action suit was brought against the Industrial Commission of Ohio for stopping weekly payments of workers’ compensation benefits. The individuals in the class action had opted to receive a partial lump sum and then receive discounted weekly distributions for the remainder of their life. However, in taking the partial lump sum the recipients signed a contract that provided, in part, “Lump Sum Payment is granted it will result in a permanent reduction of weekly benefits which shall continue for the life of the claim.” The members of the class action in this suit were only individuals who had taken a partial lump sum, but each member could have selected to receive a full lump sum payment and no weekly distributions at the time of selection.

The Industrial Commission of Ohio stopped paying weekly benefits to the members of the class action when the individual member’s weekly distributions and partial lump sum totaled the amount each recipient would have received if he/she had selected to receive the full lump. The Industrial Commission of Ohio argued that when the recipients signed the contract to receive partial lump sum payment the recipients had agreed to receive a specific amount of money; therefore, once that specific amount of money had been paid the Industrial Commission of Ohio was not responsible for continuing to make discounted monthly payments.

In contrast, the members of the class action argued that they were entitled to receive a reduced weekly disability payment for the remainder of their life. Therefore, the Industrial Commission of Ohio was statutorily required to continue to make payments for the remainder of their life even if the amount they would receive would exceed the amount originally offered in a lump sum.

Why the Court Decided the Industrial Commission Could Stop Payments

The court reasoned that the class action members were suing under the contract they had signed with the state. A contract is “sound in law” because it is legally binding. Therefore, the members of the class action needed to sue in the Ohio Court of Claims.

The Ohio Supreme Court differentiated between two prior cases. First, Cristino v. Ohio Bur. of Workers’ Comp. involved a class action who sued after receiving a full lump sum payment. The court held that the claim needed to be filed in the Ohio Court of Claims because the contract needed to be analyzed to determine if the state entered into a contract that the state was statutorily prohibited from entering.

The Ohio Supreme Court differentiated Cristino from Santos v. Ohio Bur. of Workers’ Comp. where Santos sued the state for money the state claimed in subrogation. Santos was not controlling in the present case because Santos sued to recover money already paid through subrogation, which, unlike a contract subrogation is not “sound in law.”

Speaking in general terms, the Ohio Supreme Court noted that if a contract was signed regarding workers’ compensation or disability benefits, then the contract always needed to be analyzed by the court to determine if the state entered into a contract that was outside of the state’s authority. In cases involving partial or full lump-sum disability payments, the parties are disputing the “consequences of the contract.” As a result, the contract must be analyzed, which means the Ohio Court of Claims has exclusive jurisdiction.

Why This Matters for Your Case

Filing a claim in a court that has jurisdiction is an important early step in the litigation process. Filing in a court that lacks jurisdiction can waste time and money. The Ohio Supreme Court has clarified that the Ohio Court of Claims has exclusive jurisdiction over workers’ compensation cases where individuals selected to receive a partial or complete lump sum payment.

Beyond workers’ compensation disputes, the Ohio Supreme Court’s decision has clarified that when a contract was signed between the state and individuals the dispute must be litigated in the Court of Common Pleas. When a contract is present, individuals or classes of individuals will be suing the state because the terms of the contract were violated. As a result, the dispute will regard the terms of the contract; therefore, the dispute will be “sound in law” and under the exclusive jurisdiction of the Ohio Court of Claims.

Do you have an Ohio Workers Compensation claim and want full compensation in your settlement? Our attorneys offer free consultations! We’re Working Hard for the Working Class, and we want to help you!

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