Experience
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
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.