MRR Ohio Legislation Updates: March 11, 2016 – March 24, 2016

Notes from the Senate:

  • S.B. 292 was introduced to modify the qualified immunity from civil liability for volunteer health care services provided to indigent and uninsured persons and to permit health care professionals to earn continuing education credit by providing volunteer health care services to indigent and uninsured persons
  • S.J.R. No. 6 was offered as a joint resolution to amend Article I, Section 10 of the Ohio constitution. Currently, Section 10 requires indictment by a grand jury to charge a person with a felony, but the amendment would allow a prosecutor to choose either indictment by grand jury or a finding of probable cause by a court in a public hearing; If passed, this amendment would appear on the ballot in the November 2016 general election
  • S.B. 298 was introduced to change current law and enact new law regarding community school operator contracts and the operation of internet-based and computer-based community schools

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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MRR Article: When an Injury at Work is Not a Workplace Injury – Strategies to Further Protect Your Business’s Bottom Line in Ohio

By: Stacy V. Pollock, Esq.

Workers’ compensation premiums can be an expensive and frustrating cost of doing business. Ohio’s Workers’ Compensation is a no-fault system, meaning employees nearly always are going to be eligible for benefits, even if they, themselves, are at fault for their injury. However, there is a small caveat to the law that few businesses understand, but could potentially save tens of thousands of dollars in unnecessary increased premiums if businesses recognize the issue and timely dispute the claim with the Bureau of Workers’ Compensation (“BWC”).

Claimants, meaning injured employees, are not permitted to recover benefits in limited circumstances. Some such situations include injuries incurred during a recreational activity (ie. using the company-owned weight room) if the employee signed a C-159 form, or for injuries from horseplay or intoxication, when the business has the appropriate procedures in place. Claimants are also not entitled to benefits for idiopathic injuries.

Idiopathic injuries are injuries that arise from circumstances unique to the individual. In the context of workers’ compensation, idiopathic refers to a claimant’s preexisting physical weakness or disease which contributes to the accident. For example, a diabetic claimant has neuropathy of the leg, unexplainably falls and sustains an injury from the fall. Unless the claimant is able to demonstrate that the diabetic neuropathy was not the reason for the fall (for example, there was water on the floor that caused her to slip), she should not be entitled to any workers’ compensation benefits.

One limitation to the idiopathic injury exception involves claimants with pre-existing conditions who are exposed to a heightened risk or hazard because of their employment. For example, an employee with a history of seizures works with a welding machine. While on-duty, he has a seizure and falls onto the machine, sustaining an injury from the machine. The welding machine is an added risk or hazard to the employment and therefore makes the injury eligible for workers’ compensation benefits even though the reason for the fall was the claimant’s seizure. However, if that same seizure-prone employee walks down the hall, has a seizure and hits his head on the floor, the floor is not an added risk or hazard to the employment. The individual could have had a seizure and hit his head on the floor anywhere outside of employment. As such, his injury from hitting the floor is not compensable.

Businesses should be mindful of this caveat in workers’ compensation laws. Many idiopathic injuries tend to involve serious injuries that drive up premiums once the claim is allowed. The BWC ordinarily will tentatively allow the claim without any investigation into the cause of the accident. Businesses are only permitted to contest whether or how an accident occurred prior to the BWC allowing the initial claim. Thus, it is critical that businesses assess each workplace injury immediately after the accident to determine whether such injury was actually received in the course of, and arises out of, the employment. If the accident is of some unexplained origin, businesses should explore with legal counsel the possibility of disputing the claim.

In sum, businesses need to take an active role in investigating and questioning workplace injuries, particularly when injuries occur to employees with a pre-existing condition. Businesses must contest those claims within fourteen days of the BWC’s tentative allowance of the claim. Failure to do so will forever bar the business from arguing that the medical conditions and wage loss claims on the claim should not be paid because the accident was caused by the claimant’s own medical condition.

For more information about this matter or any workers’ compensation matter, please contact MRR Columbus Attorney Stacy Pollock at spollock@mrrlaw.com.

The Right To Investigate Versus The Right To Privacy – The Apple Vs. FBI Debate

By: Tami Zupkow Hannon, Esq.

Few things will unify Americans more than stories of terrorist attacks, especially alleged terrorist attacks on American soil. The need for, and call to, investigate those claims is undeniable. In doing just that, the FBI came into possession of the iPhone of a suspected terrorist responsible for the San Bernardino shootings last year. In accordance with the Fourth Amendment, the FBI obtained a search warrant to search the contents on the phone for additional information regarding the attacks or other potential attacks. Warrant safely in hand, the FBI now faces yet another problem – accessing that data. Unlike a house where a door can be breached or entered, the iPhone is locked and encrypted. The FBI has but 10 guesses for the 4 digit PIN number (about 10,000 possible combinations) before the phone will wipe the drive, taking all possible information with it.

Enter the lawsuit. The FBI filed suit in federal court in California to compel Apple to assist it with unlocking the iPhone. The FBI won the initial battle, with the Magistrate ordering Apple to create software that would bypass or disable the self-destruct security, enable the FBI to submit passcodes to the phone for testing against the real password (effectively “guessing” the password) and erasing any added delay between attempts at the passcode. Importantly, Apple was not ordered to directly unlock the phone, but rather to make it possible for the FBI to try to unlock it without jeopardizing the contents of the phone. Apple is resisting on the basis that to create such a device would be to allow Pandora out of her box. Once the software is created, it cannot be uncreated and could be used again in future cases. Further, the creation of such software would prove to the world that it is possible to create a program to bypass the iPhone’s security features, something that can potentially encourage the less civic minded. Due to Apple’s refusal to comply with the Court’s order, the FBI filed a Motion to Compel.

The FBI has pursued its claims against Apple using a 1789 law known as the “All Writs Act.” The Act gives a court authority to order a third party to provide non-burdensome technical assistance to aid in the execution of a valid warrant. There are two main questions at issue. The first is whether the assistance is “non-burdensome” as Apple has to actually create the programming being sought. The FBI responds that Apple is in the business of writing iPhone software such that the burden should be minimal to write this particular software. The second is whether Apple is so far removed from the underlying investigation that it cannot be brought in against its will. Both the FBI and Apple argue the same facts to support their claims – Apple is responsible for the creation and distribution of the phone. The FBI asserts that Apple designed the phone such that it is indispensable in creating the code and assisting in unlocking the phone. Apple claims the limited role of designing and distributing the phone removes it from the ultimate end usage by the consumer.

There is also a potential issue under the Fourth Amendment. While the FBI possesses a valid search warrant, the search must be done in a “reasonable” manner. Apple questions whether drafting it to write code that does not currently exist to evade security measures that it put into place is a “reasonable” execution of the warrant.

What is really at issue here? Apple has designed its phones to be fortresses. The latest iPhone 8 is designed to be fully encrypted such that the phone itself cannot even read the data stored in it unless a valid password is entered. This level of encryption makes it impossible for Apple to respond to warrants by law enforcement to extract data from a phone or user. While Apple complies with law enforcement subpoenas, there has long been tension between Apple and law enforcement due to Apple’s storage policies and the limited amount of data that it makes available for law enforcement to subpoena. This case has been selected as the test case to start developing the law to challenge Apple’s security policies. If Apple wins, law enforcement may find itself handicapped in investigations moving forward as it may encourage other companies to take similar stances, resulting in making it more difficult or impossible to follow up on some leads or obtain needed evidence. If the FBI wins, it begins laying the groundwork for circumstances where a company may have “too much” security on its phones, resulting in capping the level of security an electronic device can have built in. The end result? Only time will tell.


For questions or more information on “The Right to Investigate Versus The Right to Privacy – The Apple vs. FBI Debate,” contact:

Tami Hannnon


Tami Zupkow Hannon
  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

MRR Ohio Legislation Updates: February 26, 2016 – March 10, 2016

Notes from the House of Representatives:

  • H.B. 481 was introduced to revise the requirements regarding student enrollment reporting for public schools, mandatory student withdrawal policies, and scholarship program eligibility relative to students who choose not to take state assessments during the 2015-2016 school year
  • H.B. 486 was introduced to increase the state minimum wage to ten dollars and ten cents per hour beginning January 1, 2017
  • H.B. 488 was introduced to modify the qualified immunity from civil liability for volunteer health care services provided to indigent and uninsured persons and to permit health care professionals to earn continuing education credit by providing volunteer health care services to indigent and uninsured persons

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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MRR Ohio Legislation Updates: February 12, 2016 – February 25, 2016

Notes from the House of Representatives:

  • H.B. 460 was introduced to prohibit the state, a political subdivision, and any official, agent, or employee of any state or local government agency from knowingly enforcing or attempting to enforce any federal statute or regulation regarding a firearm
  • H.B. 462 was introduced to authorize specified political subdivisions to establish a joint police district, to modify the membership of a joint police district governing body, and to provide immunity from civil liability to a peace officer who administers naloxone to a person who is apparently experiencing an opioid-related overdose
  • H.B. 463 was introduced to establish expedited actions to foreclose mortgages on vacant and abandoned residential properties, to permit private selling officers to conduct judicial and execution sales of real property, to state the intent of the General Assembly regarding mortgage foreclosure actions, to revise the Commercial Paper Law relating to mortgages and lost instruments, and to make other changes relative to foreclosure actions
  • H.B. 317 was passed upon third consideration to enable the parents or guardian of a protected consumer to freeze that consumer’s credit to protect the consumer from identity theft
  • H.B. 473 was introduced to require voter approval before a county may levy a new utilities services tax, to allow small businesses to count employees of related or affiliated entities towards satisfying the employment criteria of the business investment tax credit, to permit a bad debt refund for cigarette and tobacco product excise taxes paid when a purchaser fails to pay a dealer for the cigarettes or tobacco products and the unpaid amount is charged off as uncollecible by the dealer, and to allow vendors to receive a refund of sales taxes remitted for bad debts on private label credit cards when the debt is charged off as uncollectible by the credit card lender
  • Sub. H.B. 240 was passed upon third consideration to define the legal residence of a dead person for purposes of the body’s disposal; to recognize that coroners include medical examiners; to change the qualifications for holding office as a coroner of a charter county; to require, under certain conditions, and to authorize, under other conditions, supplemental compensation for coroners who are forensic pathologists; to revise how the office of coroner is filled when a vacancy cannot be filled by election or appointment; to specify the disposition of a firearm when a person meets death under certain circumstances; to specify who pays for the autopsy of an inmate of a state correctional facility; and to make other changes to the coroners’ law.

Notes from the Senate:

  • S.B. 181 was passed upon third consideration to prescribe the fiduciary duties of corporate and limited liability company officers, to specify that officers are not required for limited liability companies, to permit a written waiver or elimination of the fiduciary duties of limited liability company members, managers, or officers, to clarify when a limited liability company manager’s or officer’s duties can be the same as a member’s duties, to declare the of the Limited Liability Company Law generally to give maximum effect to freedom of contract, and to make other changes regarding corporations and limited liability companies

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

 

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