Northwest OH Legal Blog

Thursday, September 17, 2015

Employer Can’t Stop Injured Worker From Filing A Workers Compensation Claim

Many employees believe that their employer must “sign off” of their workers compensation claim before it can be processed.  Nothing could be further from the truth.  The time this situation usually arises is when an employer is self-insured (pays their own claims) and refuses to recognize the injury or process the request for treatment.  An injured worker, in that case, can file the claim with the Bureau of Workers Compensation and they will start the process.  If the employer continues to dispute everything the claim will sent to the Industrial Commission for a hearing on the injured workers claim application.  This happens whether the employer refuses to acknowledge the claim or not.  No injured worker should be intimidated by the employer into filing under “regular” insurance when they have suffered an on the job injury.

Wednesday, September 2, 2015

The insurer denied my claim. Now what?

Accidents happen.  Mother Nature causes damage.  Buildings burn down.  Because we know these things will happen, people and businesses purchase insurance to protect them from the losses these events cause.  A surprising number of times, though, after one of these events, someone makes a claim with their insurer, only to be told by the insurer that the loss isn’t covered.

But insurers make mistakes.  Some also say that insurers intentionally deny a claim in the hopes that the claim will go away.  Whatever the reason for the denial, if you have suffered a loss you believe should be covered by insurance, it is wise to have the matter reviewed by an attorney.

Ohio law recognizes that insurers write the insurance contracts, and that the purchaser has little to no say in what language is included, so insurance contracts are interpreted in favor of the insured.  Many times, courts have determined that when a contract is interpreted in favor of the insured, a claim actually is covered, despite the fact the insurer reads the contract differently.  This area of the law can be complex, and Insurance-coverage law is an area that many attorneys are unfamiliar with, so consultation with an attorney experienced in this area is critical.

Wednesday, August 12, 2015

401(k) Lawsuits by Participants Have Been Made Easier by Supreme Court

A recent U.S. Supreme Court decision has made it easier for participants in 401K Plans and other defined contribution plans to sue their plans for offering investments with excessive fees.

In a unanimous decision written by Justice Breyer, the court ruled in favor of current and former workers of Edison International, a public utility holding company based in Rosemead, Calif., who claimed that six retail-class mutual funds selected by plan fiduciaries as investment options were imprudent because they charged higher fees than identical institutional-class funds that were allegedly available to large investors, such as the defendant Edison International’s 401(k) plan..

The case is Tibble v. Edison International. In Tibble, Plan fiduciaries selected three retail-class funds as plan investment options in 1999, more than six years before plan participants filed a lawsuit claiming the investment choices were imprudent. According to the attorney for the Plaintiffs, the Tibble decision is a clear victory for plaintiffs, because the Supreme Court has confirmed that the six-year statute of limitations is not an absolute bar to a legal action with respect to the selection of investment options.

Under ERISA, employer-sponsored retirement plans have a fiduciary responsibility for selecting and monitoring appropriate investments, as well as removing investments that no longer fit criteria established in an investment policy statement..

Essentially, the Supreme Court found that plan fiduciaries are required to conduct regular reviews of plan investments

Studies have shown that investment costs can adversely impact portfolio balances. According to one Vanguard study, an investor who starts out with a $100,000 nest egg would have 30 years later $574,349 when assuming no investment costs, $523,899 with annual costs of 0.25%, and just $438,976 with annual costs of 0.9%.

Rather than a case where a poorly performing investment was allowed to remain on a plan investment menu,, the alleged violation involves the nature of the investment itself, specifically retail-class mutual funds that are usually, but not always, more expensive than comparable institutional-class funds.

The case also involved the Employee Retirement Income Security Act's (ERISA) six-year statute of limitations.  The court found the claim was not barred by the six year statute of limitations. Because a fiduciary normally has a continuing duty to monitor investments and remove imprudent ones, a plaintiff may allege that a fiduciary breached a duty of prudence by failing to properly monitor investments and remove imprudent ones. Such a claim is timely as long it is filed within six years of the alleged breach of continuing duty.

This case involves the duty of the trustees of pension plans to manage the assets of those plans with “prudence.” The question is whether the trustees need to worry that an investment that was “prudent” when the trustees first made it will become “imprudent” because of future changes. If so, that means that the trustees must continuously monitor all the assets that they own, to make sure they don’t need to sell any of them. The Court held that the trustees do have that continuing duty to monitor.

Some quotes from the case convey the court’s views:

“Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset.”

“The trustee must systematically consider all the investments of the trust at regular intervals to ensure that they are appropriate.”

“When the trust estate includes assets that are inappropriate as trust investments, the trustee is ordinarily under a duty to dispose of them within a reasonable time.”

The Supreme Court's found that that the nature and timing of this review are contingent on the circumstances.  Justice Stephen Breyer did not state a view on whether a review should have taken place in Tibble or what kind of review would have been required if, in fact, a review had been needed.

The case was remanded to the 9th Circuit to determine more specifically to what extent fiduciaries must look at plan investments in order to satisfy their monitoring duty.

The Labor Department has published education materials to help workers better evaluate their 401(k) plan fees. 

Tuesday, July 21, 2015

United States Department of Labor Proposes Expanded Definition of ERISA Fiduciary

On April 20, 2015, more than three years after withdrawing a similar proposal that was staunchly opposed by the financial services industry, the United States Department of Labor (“DOL”) published a proposal to amend certain parts of the definition of the term “fiduciary” under the Employee Retirement Income Security Act of 1974 (“ERISA”) and regulations that were issued in 1975.  Under this regulatory proposal, the definition of a fiduciary would be expanded to encompass certain activities that were previously considered non-fiduciary in nature, or at least fell into a gray area of fiduciary status.

Background.  ERISA’s current definition of the term “fiduciary” includes any party who “renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of [a] plan, or has any authority or responsibility to do so.”  The DOL’s position is that the current definition of “investment advice” is too narrow, and does not cover some parties who are giving potentially conflicted investment advice to ERISA-governed plans and individual retirement accounts (“IRAs”) concerning the investment of plan assets.

DOL Proposal.  Pursuant to the DOL’s proposed definition of a fiduciary, a person is considered to be a fiduciary with respect to an ERISA-governed plan or IRA if the person gives advice under the following circumstances: 

  • pursuant to an agreement, arrangement or understanding,
  • when the advice is individualized or specifically directed for use in making investment decisions for a plan or IRA concerning securities or other property,
  • when the advice is provided for a fee or other compensation, or
  • when the advice falls into one of the following four categories:
    • recommendations on acquiring, holding, disposing or exchanging securities or other property (including distributions from a plan or IRA),
    • recommendations on managing securities or other property (including distributions from a plan or IRA),
    • appraisals, opinions or other statements on the value of securities or other property in connection with a specific transaction involving those securities or other property, or
    • recommendations of a person to give the plan or IRA advice described in the prior three categories for a fee or other compensation.

This new definition of a fiduciary is broader than the definition in current DOL regulations.  The new definition expands the categories of advice that can trigger fiduciary status, and does not require that the advice be given on a regular basis, or be a primary basis for investment decisions, in order for the advice-giver to be considered a fiduciary. In addition, even though IRAs are generally not ERISA-governed plans, the DOL proposal specifically addresses fiduciary status with respect to IRAs.

The DOL proposal does, however, retain a provision in the current DOL regulations shielding broker-dealers from fiduciary status.  Under this provision, a broker-dealer is not considered to be a fiduciary merely as a result of executing securities transactions on behalf of an ERISA-governed plan or IRA pursuant to specific instructions from an unaffiliated fiduciary.

Exclusions.  The proposed DOL regulation provides an exclusion from fiduciary status for certain classes of persons who provide investment advice, including the following:

  • employees of a plan sponsor (e.g., a chief financial officer or corporate treasury personnel) who provide advice to a fiduciary of the employer’s plan for no additional compensation,
  • “investment platform providers” that develop a set of investment alternatives (e.g., mutual funds) that a participant-directed plan (e.g., a typical 401(k) plan) could make available to its participants,
  • persons who provide certain financial reports and valuations to plans and collective investment funds, and
  • persons providing “investment education” to plan participants.

There are also carve-outs under certain circumstances for investment advice given to a small (fewer than 100 participants) ERISA-governed plan, an independent fiduciary with at least $100 million in employee plan assets under management, or an independent fiduciary on potential swap transaction matters.

Prohibited Transaction Class Exemption.  The DOL proposal includes a prohibited transaction class exemption for so-called “best interest contracts.”  Under this exemption, advisers such as brokers and insurance agents would be allowed to give investment advice (as defined in the proposed regulation) to an ERISA-governed plan or IRA client and receive commissions or other compensation resulting from that advice, provided that they comply with the following requirements:

  • a commitment to provide advice in the client’s best interest,
  • adopting and following policies and procedures designed to identify and mitigate conflicts of interest, and
  • disclosure (including disclosure on a webpage) of conflicts of interest such as hidden fees or payments from third parties.

The DOL also proposed amendments to several current prohibited transaction class exemptions in order to harmonize those exemptions with the proposed “best interest contract” exemption.  In addition, the DOL proposed a prohibited transaction class exemption that would permit advisers to enter into principal transactions in debt securities with ERISA-governed plans or IRAs under conditions similar to those of the “best interest contract” exemption. 

Conclusion.  The DOL has established a 75-day comment period, running until July 6, 2015, for the proposed regulation, the proposed exemptions, and the proposed amendments to existing exemptions.  Within 30 days after the close of the comment period, the DOL will hold a public hearing on its proposals.  The proposed regulation would become effective 60 days after it is published in final form in the Federal Register.  However, the DOL has proposed that compliance with the final regulation would not be required until eight months after publication. 





Tuesday, June 30, 2015

What is discovery?

In a lawsuit, the parties need to learn what information and evidence the other parties have.  Statistically, the vast majority of civil disputes settle prior to trial.  Without obtaining the other parties’ information and evidence, though, the parties cannot evaluate the strengths and weaknesses of each party’s claims and defenses, and therefore cannot engage in meaningful settlement discussions.  Parties also need to obtain the other parties’ information and evidence so that a fair trial can be had if the parties cannot reach a settlement prior to trial.  The legal system is not designed for “trial by ambush.”  Instead, the law promotes the free sharing of information and evidence. 

To accomplish this sharing, the parties will typically engage in two forms of discovery:  written discovery and depositions.  Written discovery consists of written questions in the form of interrogatories, requests for production, and requests for admission.  Depositions are a procedure where a witness is asked questions under oath, and a court reporter records the answers.  These discovery methods are employed in virtually every civil lawsuit.  While simple in concept, there are a myriad of rules, written and unwritten, that much be followed.  There can be serious adverse consequences for not following rules, so having the benefit of experienced litigation counsel is critical.  

Thursday, June 25, 2015

Supreme Court Upholds Subsidies Under Affordable Care Act In Federal Exchange

By a vote of 6 to 3 the United States Supreme Court has upheld the availability of tax subsidies for people enrolled in health insurance through the federal exchange under the Affordable Care Act. The case is King v. Burwell. The challengers argued that the words “established by the state” meant that the subsidies were available only to people enrolled through a state run exchange.  Most states are operating under the federal exchange.  A ruling for the challengers would have taken subsidies away from all those receiving subsidies through the federal exchange and would have destabilized insurance markets in states operating with the federal exchange.

Chief Justice Roberts wrote for the Court and was joined by Justices Kennedy, Kagan, Ginsburg and Sotomayor.  Justice Scalia wrote the dissent and was joined by Justice Thomas and Alito.  Although Justice Roberts characterized the wording of the Act as ‘inartful,” he also noted “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

The Court said that it was following the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” The Court found numerous other provisions in the law which would not make sense if the interpretation offered by the challengers was accepted. Reading the disputed wording in context of the statute as whole, the Court found that the only logical interpretation was that the subsidies are available under either a state or federal exchange.

In a colorful dissent Justice Scalia called the majority’s opinion as “absurd” and characterized it as “pure applesauce.” However, the Court noted that “the words of a statute must be read in their context and with view to the place in the overall statutory scheme” and upheld the availability of the tax subsidies in all exchanges, whether federal or state.


Tuesday, June 16, 2015

Potential Exposure to Blood Borne Pathogens and Workers’ Compensation

            Periodically, confusion arises over a workers’ compensation claim to cover the cost of post-exposure testing after being exposed to blood or body fluids.  The State of Ohio currently covers the cost of post-exposure testing for peace officers, firefighters, and emergency medical workers employed or volunteering for a covered provider.

            Confusion on this issue generally arises over what is “exposure.”  For the purpose of workers’ compensation coverage exposure is defined as the exposure to blood or other bodily fluids through: (1) A splash or spatter in the eye or mouth, including when received in the course of conducting mouth-to-mouth resuscitation; (2) A puncture in the skin; or (3) A cut in the skin or another opening in the skin such as an open sore, wound, lesion, abrasion, or ulcer.  If the exposure happens in some other way than these three ways (such as exposure of unbroken skin to blood) then post exposure testing is not covered by workers’ compensation.

            If you are exposed to blood or other bodily fluids in the manner listed above, then post-exposure testing is covered.  If you are exposed in this method, you should notify your immediate supervisor immediately and get the post-exposure blood tests as soon as possible.  When notifying your supervisor it is important that you state the type of exposure.  You should also tell this to the physician or nurse administering the post-exposure testing the nature of the exposure.  It is also a good idea to note the exposure in any reports that you must complete about the incident when the exposure occurred.  This will help the Bureau of Workers’ Compensation (BWC) administer your claim and help insure that your claim is not denied.

            If your claim for post-exposure testing is denied, it is important that you file your appeal with the BWC within 14 days of receiving notice of the denial.  If you do not appeal the denial during this time period the BWC will permanently close your claim.  If you have questions about this or any other workers’ compensation matter, or need help appealing a decision by BWC please contact our office.  We are here to assist you.

Wednesday, May 20, 2015

NLRB to Consider Charging Union Fees in Right to Work States

The NLRB has solicited the submission of amicus briefs in the Buckeye Florida Corp. case, 12-CB-109654, presently pending before the Board on the issue of whether unions may charge non-members fees for processing grievances in right to work states. 

The case involves the United Steelworkers Union and a Florida-based subsidiary of Georgia-Pacific LLC in which the Union informed a non-member he would be required to pay the union a fair share fee equal to the dues paid by union members for the remainder of the term of the collective bargaining agreement in order for the union to process his grievance.  This individual, in turn, filed an unfair labor practice with the NLRB, relying upon long-standing precedent finding that unions commit unfair labor practices when they require non-members to pay a fee as a condition for having their grievances processed.  In March 2014, an ALJ ruled that the union’s requirement violated Section 8(b)(1)(A) of the NLRA.  On appeal, the union is asking the Board to adopt a rule allowing it to charge the fee as long as the fee does not exceed the amount the union could charge non-member objectors under other Board decisions on the subject.

The NLRB’s request for briefs on this issue is an indicator of possible interest in overturning the existing law that prohibits unions from charging such fees.  If the law is overturned, it would represent a significant step forward for unions representing employees in right to work states.  Our firm will continue to update you as to developments in this area.

Wednesday, May 13, 2015


            The Department of Labor (DOL) proposed a new rule that will cast a wider net over the definition and standards of a “fiduciary” where individual investors are concerned and impose greater disclosure requirements on investment advisers’ fees and conflicts of interest.  This rule has been in the making for over 5 years and was originated as a way to help less discerning investors, mainly in the middle class masses, avoid excessive fees and advice from brokers and investment advisers who may not fully disclose fees and commissions,  thereby lessening the integrity of many investment professionals who fully disclose fees and earnings, provide client-centered advice and are highly capable. If passed after a 75-day notice and comment period, the regulation will level the playing field for investment advisers who are well-intentioned and put their clients’ needs ahead of their own financial gain.  The path of this proposed regulation may be fiery, since the rule was approved by the United States Office of Management and Budget after only a 50-day review when it was projected to be reviewed for at least 90 days. 

            President Obama endorsed this proposed regulation in February, 2015 as a way to promote “middle- class economics.”   By protecting investors in the generation X and Y groups, who may not be able to rely on a weak system of Social Security in the coming years or a company sponsored pension plan, this new regulation may ironically add more complexity and ultimately burden those same investors with complex compliance red tape.

            Current regulations require analysis of a 5-prong test to determine if a person or entity is providing bona-fide investment advice as a fiduciary. The five-part test requires that the advisers (1) Make recommendations on investing in, purchasing or selling securities or other property, or give advice as to their value; (2) On a regular basis; (3) Pursuant to a mutual understanding that the advice; (4) Serves as a primary basis for investment decisions; and (5) Will be individualized to the particular needs of the plan.

            Regulations proposed by the DOL broaden the definition of fiduciary to specify that a  person provides fiduciary-related investment advice by (1) providing investment or investment management recommendations or appraisals to an employee benefit plan, a plan fiduciary, participant or beneficiary, or an individual retirement account (IRA) owner or fiduciary, and (2) either (a) acknowledging the fiduciary nature of the advice, or (b) acting pursuant to an agreement, arrangement, or understanding with the advice recipient that the advice is individualized to, or specifically directed to, the recipient for consideration in making investment or management decisions regarding plan assets, pursuant to a mutual understanding of the parties.

             Further, the new definition of fiduciary investment advice generally covers the following categories of advice:  (1) investment recommendations, (2) investment management recommendations, (3) appraisals of investments, or (4) recommendations of persons to provide investment advice for a fee or to manage plan assets.  

            So who will this proposed and expanded definition of a fiduciary apply to if it makes it through the 75-day comment period and public hearings, unscathed, and is finalized? This definition will apply to anyone who gets paid for providing individualized advice to a plan sponsor, a participant in a retirement plan or an IRA in consideration for making a retirement-related investment decision.  It applies to brokers, investment advisers, insurance agents or financial planners equally.  However, the rule as it is being proposed will not deem a plan sponsor or a plan’s service providers as fiduciaries if they are educating participants on investments. 

            Brokers will still have the freedom to charge for their services in a variety of approved ways including commissions, revenue sharing arrangements and 12(b)(1) fees. The unique feature of this proposed regulation lies in the DOL’s creation of a new kind of prohibited transaction exemption, dubbed the “best interest contract exemption.”  Investment firms and advisers who operate under this exemption may receive commissions and revenue sharing amounts as long as they commit to putting their client’s best interests first and fully disclose any conflicts of interest that would encourage their recommendation of an investment based on compensation, awards or other advantages that they might receive  for doing so. All hidden fees must also be disclosed to fall under this prohibited transaction exemption.

            Originally proposed in 2010, the rule was withdrawn in 2011 amid vehement disagreement from financial industry leaders, who asserted that the expanded definition of “fiduciary” along with  increased oversight on investment advisers would significantly raise liabilities for brokers, forcing them to abandon clients with modest incomes who greatly need investment advice to meet retirement income goals.  This proposed regulation, like many others that affect retirement-related issues seems to raise more questions about how it will be implemented than answers as to how it will benefit investors that already have well-meaning and transparent advisers. 


Thursday, May 7, 2015

Question of Constitutionality of Legislative Limit on Injured Workers Right to Dismiss Employer Appeal

Recently the Cuyahoga Common Pleas court found that the legislative limit on an injured workers right to dismiss his complaint in court when the employer had initially filed the appeal into court to be unconstitutional.  This occurs when the employer seeks to challenge a decision of the Industrial Commission by appealing such decision into Court.  Once the appeal is filed the injured worker is obligated to file a complaint and is considered the plaintiff in the litigation.  The Ohio Rules of Civil Procedure permit an injured worker to dismiss his complaint and later refile within one year of the dismissal.  The Ohio legislature in 2006 amended the applicable statute to essentially deny the injured worker his right to dismiss if the complaint was pursuant to an employer’s appeal.  The Ohio Rules were not amended to reflect this legislative change and therefore the division exists.  The Cuyahoga court found a violation of due process as well as separation of powers between the legislature and the Courts.  The matter is on appeal and will ultimately be decided by the Supreme Court.     

Friday, May 1, 2015

Court Rules That Health Care Premium Increase Is Loss of Health Care Coverage for COBRA Purposes

In a case that expands the boundaries of a so-called “qualifying event” and notice requirements under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), a federal trial court has ruled that a premium increase may be considered a loss of coverage for purposes of determining whether an employee has experienced a COBRA qualifying event.

Background.  In Green v. Baltimore City Board of School Commissioners, 2015 WL 302812 (D. Md. 2015), two employees who were suspended from their jobs without pay and were subsequently terminated filed a lawsuit against their employer (in the employer’s role as plan administrator), the Baltimore City Board of School Commissioners.  For both employees, coverage under their employer’s health plan automatically continued during their suspensions—a fact of which they first became aware months later, upon receiving invoices for the full accumulated premium amount (both employer and employee contributions) for health care coverage.  The employees sued the employer for the employer’s failure to provide a timely COBRA election notice and for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (“ERISA”).

The employer argued that the employees did not experience a COBRA qualifying event at the time of their suspension because they had a reduction in hours, but no loss of coverage.  Instead, coverage continued until the employees either requested cessation of coverage or terminated employment. The employees asserted that, to the contrary, when they became obligated to pay both the employee and employer shares of their health care premiums, the premium increase resulted in a loss of coverage.

Legal Guidance.  In general, COBRA qualifying events are events that cause an individual to lose his or her group health plan coverage. The type of qualifying event determines who the qualified beneficiaries are for that event and the period of time that a plan must offer continuation coverage.  The following are COBRA qualifying events for covered employees if they cause the covered employee to lose coverage:

  • termination of the employee's employment for any reason other than gross misconduct; or
  • reduction in the number of hours of employment.

Court Holding.  Following a bench trial, the court ruled for the employees.  The court acknowledged the correctness of the employer’s assertion that a reduction in hours, standing alone, is not sufficient to trigger a COBRA notice obligation.  However, in the court’s view, the employer had too narrowly construed the term “loss of coverage” as a loss of eligibility.  The court agreed with the employees that the premium increase constituted a loss of coverage, citing Internal Revenue Service regulations under which losing coverage means ceasing to be covered under the same terms and conditions as in effect immediately before the qualifying event.  In this case, because the loss of coverage was triggered by the reduction in hours, the employees experienced a COBRA qualifying event, and the employer did not meet its COBRA notice obligations.

The court further ruled that the employer’s failure to adequately inform the employees of the premium increase resulting from the suspension constituted a breach of its fiduciary duty under ERISA, noting that a fiduciary is obligated to communicate material facts that participants need to know for their own protection.  The court declined to assess penalties (because the employees’ complaint sought only the invalidation of the retroactive invoices) but stated that the employees were free to petition for further relief.

Key Takeaway.  In general, a COBRA qualifying event requires both a triggering event and a related loss of coverage under a group health plan.  The court’s holding in Green illustrates that a loss of coverage may include not only a complete loss of eligibility, but also an increase in the required premium, a reduction in benefits, or an increase in deductibles or co-pays.  Employers should be mindful of the types of situations that may trigger COBRA notice obligations.

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With an office located in Toledo , OH Allotta Farley Co., L.P.A. serves clients throughout northwest OH with various legal matters. Areas of service include Allen County, Ashland County, Auglaize County, Crawford County, Defiance County, Erie County, Fulton County, Hancock County, Hardin County, Henry County, Huron County, Lucas County, Marion County, Mercer County, Morrow County, Ottawa County, Paulding County, Putnam County, Richland County, Sandusky County, Seneca County, Van Wert County, Williams County, Wood County, Wyandot County.

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