Chiropractor Indicted for Workers Compensation Fraud

A Franklin County grand jury has indicted chiropractor Bruce Holaday, owner of Back and Spine Center in Columbus, for workers compensation fraud.  As this article describes, Holaday was apparently using the identities of other chiropractors so that he could bill the Ohio Bureau of Workers Compensation after the Bureau had permanently banned from serving as a BWC health care provider.

Intentional tort: Employers Beware

Employer's beware:  A recent decision by a Cuyahoga County Common Pleas Court may signal a weakening of Ohio's intentional tort law. 

In December 2010, a Cleveland jury awarded plaintiff Larry Hewitt $597,785 for electrical burn injuries sustained while working for L.E. Myers, Co.  Hewitt convincingly argued that his employer did not require him to wear appropriate safety equipment, rubber gloves, to insulate his hands from electrical shock.  He also argued that as an apprentice, the employer should not have allowed him to work near power lines without supervision. 

Generally, workers compensation claimants cannot sue their employers for personal injury like this unless the employer somehow intended to injure the claimant.  Such a claim is an "intentional tort."

The current standard for intentional torts requires evidence that “the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.”  ORC §2745.01.  The statute defines “substantially certain” as “deliberate intent to cause an employee to suffer an injury.”   

The Ohio General Assembly enacted this law to significantly limit the previous common law standard. “The common-law liability of the employer,” the Supreme Court recently stated, “cannot . . . be stretched to include accidental injuries . . . or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury.”  Accidents by their nature are not intentional torts.  

Apparently, however, Hewitt's attorneys relied on ORC §2745.01(C).  Ohio Revised Code §2745.01(C) reads, in part, that "deliberate removal by an employer of an equipment safety guard . . . creates a rebuttable presumption that the removal . . . was committed with intent to injure another if an injury . . .occurs as a direct result."  Thus, failing to require appropriate safety gloves amounted to an intentional tort.  Or so Hewitt argued.

This case is under review.  L.E. Myers has appealed to the 8th District Court of Appeals. 

New BWC Administrator

Marsha Ryan is out.  Steve Buehrer is in.  Governor Kasich appointed state senator Steve Buehrer to head the Ohio Bureau of Worker's Compensation (BWC).  Ryan, appointed by Ted Strickland, had been at the BWC helm since 2007.   Her resignation is effective January 9, 2011.

Buehrer apparently used to work as an HR executive for the BWC in the 1990s.  He also served as State Representative for Northwest Ohio, and was elected State Senator in 2007.

As state senator, Buehrer voiced concern over the size of benefits awarded to claimants.

Time will tell, but Buehrer should push reforms that limit employers' costs.  This may entail limiting claimant's benefits, as well as opening the system to private insurance (a reform that will greatly please insurance companies, but may or may not lower costs).