Workers' Compensation


A Sounding Board for the Cincinnati Reds

Before claims become cases
Reds turn to Dinsmore for workers’ comp insight

Workplace and employee safety are paramount to the success of every business, especially one as high-profile as a professional baseball team.  When the unfortunate does occur, having the right counsel oftentimes makes all the difference and for the Reds, that’s Dinsmore.

Dinsmore attorneys serve as a sounding board for the Cincinnati Reds, offering strategies and advice to help the club maintain their consistent, efficient and cost-effective approach to handling workers’ compensation claims.  Collectively, Dinsmore’s nationwide network of personal contacts, working relationships and industry leaders provides the Reds with a competitive advantage in jurisdictions across the country.

Complexities abound in the world of workers’ compensation, compounded by the Reds’ largely contract-based workforce that travels regularly as part of the job.  Dinsmore attorneys provide value through case, claims and scenario analysis as well as settlement valuation and draft agreements, all with an eye toward mitigating risk.  Working closely with Jim Marx, the Reds’ General Counsel, Dinsmore helps the organization handle a variety of workers’ compensation cases, always aiming to resolve issues before they reach the stage where either party feels the need to involve the courts.

Appeal win saves small business

A single claim can destroy a small business, even if the employer has workers' compensation coverage. However, when coverage has lapsed, the results of a claim can be devastating.

Our client, a youth gymnastics educational facility, had its coverage lapse due to the fact the business owner (who made all the required premium payments) was hospitalized for several weeks. During the course of this hospital stay, a serious lower leg injury was incurred by an employee.

Given the size of the employer, the claim was going to reach maximum value. However, due to the fact there was no coverage at the time of the injury, the employer was facing being charged for the claim dollar for dollar.

In working with our client, we were successfully able to appeal the finding of lapsed coverage before the adjudicating committee and obtaining retroactive coverage during the time of the injury. Although still a costly claim, the award of retroactive coverage allowed the employer to stay in business.

Surveillance key to successful verdict

An employee of a grocery retailer had a severe ankle injury and alleged she had developed reflex sympathetic dystrophy/complex regional pain syndrome, a debilitating condition. If the claim was amended to include this condition, it would almost guarantee an award of permanent total disability benefits along with extensive expensive medical treatment.

Our client was looking at a conservative estimate of $250,000.00 in future exposure. Indeed, the injured worker indicated that her left lower extremity was essentially useless and an amputation was discussed. However, the injured worker was less than sincere about the actual state of her condition.

In formulating a litigation strategy, we elected to employ aggressive surveillance and were able to demonstrate that the injured worker was able to ambulate without difficulty and even attended church in heels. The injured worker's own physician indicated her physical abilities belied the presence of reflex sympathetic dystrophy/complex regional pain syndrome.

We successfully obtained a judgment in our favor, which significantly decreased the value of the claim. Although the injured worker's counsel fiercely litigated the matter, the decision to utilize surveillance early in the litigation process was the key factor in a successful verdict.

Settlement saves client money

A workers' compensation claim can represent an albatross for an employer, as claims can carry a significant financial strain decades after the actual injury. The annual costs of a claim can become staggering as the years roll by. These claims can become even more of an albatross when Medicare coverage issues occur.

The Center for Medicare Services often requires an approved Medicare Set Aside, which are usually extremely high dollar values. However, a high-dollar claim with a large set-aside requirement does not mean that the claim cannot be beneficially resolved for both parties, as long as creative approaches are utilized.

A decade-old claim was costing our client, a grocery retailer, significant dollars in medical costs, and the Center for Medicare Services demanded a high-dollar set-aside. A strategy was formulated to have the costly medications eliminated through the administrative process, which significantly lowered the required set-aside. Once the set-aside was reduced, we were able to negotiate a settlement that although still a high-dollar value, saved the employer tens of thousands of dollars a year.

Linking previously denied condition to current one

A summary judgment victory is rare in a workers' compensation case, as there is almost always a genuine issue of material fact - i.e. a disagreement between the expert medical witnesses. Thus, almost every workers' compensation case, the case will proceed through an extensive litigation, which unfortunately means litigation expenses for the employer. However, the norm does not mean counsel cannot attempt to think outside of the box.

Our client, a grocery retailer, was faced with an employee who was asking for a psychological amendment for Depressive Disorder to a previous claim. The employee had had four previous back surgeries. If granted, there would likely be a finding of permanent total disability.

In working with a psychological expert, we were able to demonstrate to the judge the psychological condition alleged to be a part of the claim was actually the same as a condition previously denied. As such, there was not a genuine issue of material fact to be litigated. Thus, the employer was able to save the expense and stress of going to trial and obtained a favorable outcome early in the litigation.

Published Decisions - State of Ohio

Selected published decisions - State of Ohio:

• Scherpenberg v. City of Mason, 12th Ohio Appellate District, CA2011-02-017 (12-5-11).
Discretionary appeal denied 131 Ohio St. 3d 1499 (2012). Upholding dismissal of employment-related claims against the City by former Clerk of Courts.

• Lowe v. Cincinnati Inc., 124 Ohio St. 3d 204 (November 12, 2009).
Upheld termination of permanent total disability benefits.

• Blauvelt v. City of Hamilton, 12th Ohio Appellate District, CA2008-07-174 (June 15, 2009); Discretionary appeal denied (October 14, 2009).
Reversing trial court -- Assistant law director is not entitled to civil service protection.

• Perkins v. Live Nation, 1st Ohio Appellate District, C-080809 (May 13, 2009),
Summary judgment upheld--premises owner not liable in slip and fall case.

• Mitchell v. City of Blue Ash, 1st Ohio Appellate District, C-080657 (April 24, 2009); Discretionary appeal denied (August 26, 2009).
Summary judgment upheld--recreational use immunity bars claims against The City.

• Sexton v. City of Mason , 117 Ohio St. 3d 275 (2008).
Summary judgment upheld--city not liable for flooding on homeowners’ property and claim of permanent trespass.

• Williams v. City of Hamilton, Twelfth Appellate District, CV 2005-09-3061 (July 21, 2008); Discretionary appeal denied (December 3, 2008).
Summary judgment upheld--city not liable for intentional tort involving employee with 2nd and 3rd degree burns over large percentage of his body.

• Crosset v. Marquette, First Appellate District, 2007 Ohio 550 (February 9, 2007); Discretionary appeal denied 114 Ohio St. 3d 1428, (2007).
Summary Judgment upheld--officer did not engage in malicious prosecution.

• State ex rel. Hiatt v. Indus. Comm’n., 99 Ohio St. 3d 32; (2003).
Supreme Court affirmed industrial commission award of minimum benefit.

• State Farm Cas. v. Black & Decker, Inc., Eighth Appellate District, 2002 Ohio 5821, (October 24, 2002); Discretionary appeal denied 98 Ohio St. 3d 1480 (2003).
Reversing verdict for plaintiff in a product liability action and ruling in favor of defendant manufacturer--testimony of plaintiff’s expert was contradicted by physical facts.

• Stanley v. City of Miamisburg, Second Appellate District, 2000 Ohio App. Lexis 205, (January 28, 2000).
Summary judgment upheld--Judicial estoppel precluded plaintiff from claiming City constructively discharged him by “forcing” him to retire in retaliation for whistleblowing.

• Golden v. Kearse, Twelfth Appellate District, 1999 Ohio App. Lexis 2573,
(June 7, 1999).
Summary judgment upheld--truck driver was independent contractor at time of accident and not entitled to workers’ compensation.

• Cincinnati Bell Tel. Co. v. Village of Fairfax, 81 Ohio St. 3d 599 (1998).
Supreme Court upheld Village’s right to impose net profits tax on telephone company.

• General Accident Ins. Co. v. Black & Decker (U.S.), First Appellate District, 1996 Ohio App. Lexis 4907, (November 13, 1996).
Defense verdict in product liability claim upheld--trial court properly admitted testimony of a manufacturer’s expert witness.

• Gallaher v. Manpower Int’l, First Appellate District, 106 Ohio App. 3d 881, (October 25, 1995).
Summary judgment upheld--heart attack not caused by employment.

• Helton v. Consol. Rail Corp., Twelfth Appellate District, 1992 Ohio App. Lexis 3881, (July 27, 1992).
Summary judgment upheld--railroad had no duty to provide crossing warnings beyond those required by statute and the injured motorist was required to exercise ordinary care for his own safety.

• Sites v. Proctor & Gamble Mfg. Co., Third Appellate District, 1991 Ohio App. Lexis 6471, (December 24, 1991).
Summary judgment upheld--owner of premises had no duty to warn or protect individual independent contractors from dangers associated with work they were hired to perform.

• Dickstrom v. Southern Ohio Fabricators, Inc., Twelfth Appellate District, 1990 Ohio App. Lexis 502, (February 12, 1990).
Summary judgment upheld--employee’s death not caused by intentional tort.

• Miller v. Procter & Gamble Mfg. Co., Third Appellate District, 1989 Ohio App. Lexis 4793, (December 20, 1989).
Directed verdict upheld--manufacturer not responsible for injuries to an employee of an independent contractor where the employee was responsible for the condition of her work area and knew of the dangers of the job.

• Cox v. Consolidated Rail Corp., Twelfth Appellate District, 1989 Ohio App. Lexis 3313, (August 28, 1989).
Summary judgment upheld--Rail company’s failure to use warnings at grade crossing was not a nuisance.

• Grimsley v. General Motors Corp., Twelfth Appellate District, 1988 Ohio App. Lexis 516, February 15, 1988.
Summary judgment upheld--employer did not act with the belief that an injury was substantially certain to occur.

• Joseph v. Consolidated Rail Corp., Twelfth Appellate District, 1987 Ohio App. Lexis 9435, (October 30, 1987).
Summary judgment upheld--surveillance by private contractor did not impose liability on the employer.

• Baker v. Consolidated Rail Corp., Second Appellate District, 1986 Ohio App. Lexis 7559, (July 8, 1986).
Summary judgment upheld--railroad not liable for failing to provide warning devices in addition to the usual signs at a crossing where the decedent was killed by a train because the crossing was not especially dangerous.

Amicus Briefs Before Ohio Supreme Court

Filed amicus briefs before the Ohio Supreme Court on behalf of employers on issues of insurance coverage in intentional tort cases.

Court Cases

Selected court cases:

  • RWI Transportation LLC v. California Employment Development Department (5308590)
    Reversing imposition of a multimillion dollar state tax assessment by establishing that fleet and long haul drivers are independent contractors, not employees.
  • Goode v. Deaconess Hospital (A0708530)
    Hamilton County Common Pleas
    Defense verdict--Employee's lumbar and cervical disc conditions not caused by work-related injury.
  • Crawford v. General Motors Corp. (A-9110056)
    Hamilton County Common Pleas
    Defense verdict--Product liability--alleged defective seatbelt.
  • General Accident Ins. Co. v. Black & Decker (US) Inc.
    Hamilton County Common Pleas
    Judgment in favor of Defendant in product liability claim (bench trial).
  • Birkenheuer v. Black & Decker (U.S.), Inc.
    We represented a major household product manufacturer in a personal injury matter in Hamilton County, Ohio. The Plaintiff alleged she had suffered significant injuries when operating a hand-held mixer. The case went to trial. By utilizing effective presentations from our expert witnesses, including a live demonstration for the jury, and cross-examination of the Plaintiff and her expert witnesses, we were able to obtain a defense verdict on behalf of our client.
  • Wendt v. City of Hamilton (CV 2006-06-1966)
    Butler County Common Pleas
    Defense verdict--Firefighter’s heart attack not caused by cumulative effects of smoke, heat and gas.
  • Coleman v. City of Hamilton (CV 2004 10 2942)
    Butler County Common Pleas
    Defense verdict--Employee’s leg injuries not sustained in scope and course of employment.
  • Stone v. Ball Corp. (03 CVD-10-11034)
    Franklin County Common Pleas
    Defense verdict--Employee’s psychological condition not caused by work-related injuries.
  • Adkins v. Ball Corporation (A0101858)
    Hamilton County Common Pleas
    Defense verdict--Employee’s additional conditions not caused by work-related injuries.
  • Connelly v. Deaconess Hospital (A0005271)
    Hamilton County Common Pleas
    Defense verdict--Employee’s additional conditions not caused by work-related injuries.
  • Frazier v. Quest Diagnostics
    Defense verdict--Employee’s additional conditions not caused by work-related injuries (bench trial).
  • Miller v. Procter & Gamble Mfg. Co. 
    Directed verdict in favor of premises owner versus employee of independent contractor.

Ohio Supreme Court and Tenth District Court of Appeals Workers' Compensation Mandamus Cases

Appeared before the Ohio Supreme Court and Tenth District Court of Appeals in numerous workers' compensation mandamus cases on a variety of issues from Violation of Specific Safety Requirements to permanent total disability.

Representation at Meetings with Ohio Bureau of Workers' Compensation

Have attended numerous meetings at Ohio Bureau of Workers' Compensation over employer risk issues, PEOs, successorships, penalty-rating, association group-rating, TPA concerns, MCOs.

Representation Before Full Industrial Commission

Defended employers before the full Industrial Commission on numerous occasions, including recent defense of an employer which was issued an overly broad subpoena which the Industrial Commission substantially limited.

Representation Before Ohio Bureau of Workers' Compensation Adjudicating Committee

On numerous occasions have represented employers and TPAs before the Ohio Bureau of Workers' Compensation Adjudicating Committee.

Representation of Employers Before Ohio Bureau of Workers' Compensation Self-Insured Review Panel

On numerous occasions have represented employers on Self-Insured issues before the Ohio Bureau of Workers' Compensation Self-Insured Review Panel and in meetings with members of the Self-Insured Department.

Service on Bureau of Workers' Compensation and Industrial Commission Committees

Selected by the Administrator and by the Chairman of the Industrial Commission to serve on Bureau of Workers’ Compensation and Industrial Commission committees in charge of drafting the original rules for PEOs and wage loss, respectively.

State, ex rel. Blanton v. Ind. Comm., 2003-Ohio-3271

We successfully defended a challenge filed by a claimant to an order denying her request that our client pay for her medical bills even though they were not related to her industrial injury.  We were able to effectively shut down this claim with this decision.

State, ex rel. Crossett Co. v. Conrad, 2000-Ohio-464

We successfully challenged the Bureau of Workers' Compensation decision to hold our client responsible for workers' compensation premiums which were owed by our client's predecessor in interest which the BWC said our client inherited.  We demonstrated that because the amounts allegedly due from the predecessor were related to the retrospective rating program, it was illegal for the BWC to order that our client was responsible for this plan which was agreed to by our predecessor.  We used a novel approach to argue that the retrospective rating program was an exception to the rule that allows BWC to charge successor employers with premiums of its predecessors.

State, ex rel. Delany v. Ind. Comm., 2006-Ohio-427

The claimant sought an order requesting the payment of temporary total compensation even though she had been terminated for failing to accept a light duty job offer from the employer.  The Ohio Supreme Court agreed with our position that the claimant's actions constituted a voluntary abandonment which precluded the payment of temporary total compensation.  This decision further solidified the voluntary abandonment defense which can be utilized by all employers to defend requests for temporary total compensation by claimants who refuse light duty jobs.

State, ex rel. Eckerly v. Ind. Comm., 2005-Ohio-2587

We successfully defended an order of the Industrial Commission which denied temporary total compensation to a claimant who had been fired due to his failure to comply with the "no call, no show" policy, despite the claimant's allegations that his condition significantly worsened following his termination.  We were able to convince the Ohio Supreme Court not to extend the ability of claimants who were terminated as the result of a clear violation of company rules, to obtain temporary total compensation even though the claimant's medical condition had worsened following the termination.  This resulted in a significant cost savings to our client.

State, ex rel. Genuine Parts Co. v. Ind. Comm., 2005-Ohio-1447

We challenged an award of temporary total compensation to a claimant on the basis that her doctor was treating her for conditions not related to the industrial injury.  The court agreed with our position, finding that despite the disability forms signed by the treating doctor listing the allowed conditions, his office notes proved that he was actually treating her for conditions not related to her claim.  This case saved our client a considerable amount of money and presently serves as legal precedent which allows employers to look beyond the disability forms completed by doctors to determine if in fact the disability is related to the industrial injury.

State, ex rel. McCoy v. Dedicated Transport, 2002-Ohio-5305

We successfully defended a request made by a terminated employee for temporary total compensation.  The Ohio Supreme Court ruled that because the employee was fired for violating company rules, he forfeited his eligibility for temporary total compensation, even though his disability worsened to the point where he could no longer work.  This resulted in significant cost savings to our client.  It also served as a landmark case on the issue of voluntary abandonment.

State, ex rel. OSU v. Allen, 2004-Ohio 3839

The Ohio Supreme Court agreed with our challenge of a permanent total disability award and vacated the award.  The Court found that the evidence relied upon by the Industrial Commission was flawed and not submitted in a timely fashion.  The client saved a considerable amount of money as the order that the claimant be awarded lifetime disability was vacated.  The decision reaffirmed the principle that the Industrial Commission was obligated to follow its own rules when adjudicating permanent total disability matters.

State, ex rel. OSU v. Wooten, 2001-Ohio-1596

We successfully challenged an award of permanent total disabillity to the claimant on the basis that the evidence relied upon to support this award was submitted at the hearing table in violation of all applicable rules.  The Ohio Supreme Court found that the decision was an abuse of discretion.  This decision saved our client a considerable amount of money.  It also established precedent that the Industrial Commission was required to follow its own rules.

State, ex rel. Paysource USA v. Industrial Commission of Ohio

Our firm represented the Employer in State, ex rel. Paysource USA v. Industrial Commission of Ohio, which was decided by the 10th District Court of Appeals on June 30, 2009. In its decision, the Court found in favor of our client, ruling that the Claimant was not entitled to temporary total compensation due to the fact that he had abandoned the workforce when he was terminated for having violated the Employer's Drug Free Workplace policy. Previously caselaw had held that an employee who was already disabled from a work-related injury did not have the ability to abandon the workforce, and would therefore be entitled to temporary total. In our case, it was argued that since the Claimant had been terminated based upon a positive post-accident drug screen, he was already disabled by the time of the termination, and the Industrial Commission had awarded the Claimant temporary total. On the Employer's appeal, however, the Court of Appeals reversed, agreeing with our contention that the Claimant had effectively abandoned the workforce at the time he used the illegal drugs, despite the fact that his usage was not discovered until after the injury.


On behalf of a PEO, won a court trial which overturned an Industrial Commission finding. The court denied the claim for occupational asthma. This result is a vacation of subsequent a finding of permanent total disability, saving the employer over $100,000 in premiums.


Defended a temporary agency in a suicide case involving an injured worker who killed himself three years after the injury because of unbearable pain from his back injury. The case was ultimately settled for a nuisance-value amount, saving the employer over $500,000 in premiums.