Workers' Compensation

This is an overview of the workers’ compensation law and is not meant to be an exhaustive analysis of the system. The following is meant to give you a brief thumbnail sketch of the workers’ compensation system in Ohio. You should call our office for a free consultation if you have been injured on the job. 330-792-2336. Our lawyers are ready to assist you in any way that we can so that you can get through a difficult time in your life occasioned by an industrial injury

Prior to filing a claim:

The first thing that a person must do following an injury at work is to immediately report the injury to your employer. Even if you think that the injury is minor, i.e. a cut finger, a bruise, you should make a report. One of the employers’ arguments against the allowance of a claim is that the injury or occurrence was never reported to the employer. If necessary, please seek medical attention as soon as possible after the injury. Give a complete history of the injury or accidental occurrence to your doctor or the emergency room personnel. If you don’t mention the injury to these medical providers your employer can argue later that you never told your physician about the injury, i.e. implying that it occurred somewhere outside of the employment area.

Definition of Injury:

Ohio Revised Code section 4123.01 defines injury as follows:

(C) “Injury” includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment. “Injury” does not include:

(1) Psychiatric conditions except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant or where the claimant’s psychiatric conditions have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate;

(2) Injury or disability caused primarily by the natural deterioration of tissue, an organ, or part of the body;

(3) Injury or disability incurred in voluntary participation in an employer-sponsored recreation or fitness activity if the employee signs a waiver of the employee’s right to compensation or benefits under this chapter prior to engaging in the recreation or fitness activity;

A condition that pre-existed an injury unless that pre-existing condition is substantially aggravated by the injury. Such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.
One may also file a claim for an occupational disease. In order to do this the disease must be one listed in Ohio Revised Code section 4123.68, scheduled diseases or fall under the provisions of Ohio Revised Code section 4123.01(F) cited above.

A death claim can be filed on behalf of a dependent individual, i.e. a worker’s spouse or minor children.

Filing a claim

You should seek the assistance of an attorney who specializes in workers’ compensation law in filing your claim. It is very important to get the right information into the FROI (First Report of Injury) form. Our office knows the legal definitions of injuries and occupational diseases and can properly complete your FROI. If you claim is contested, we can make sure that all available information bearing on your claim is available for the hearing. Going to a hearing in a contested claim is not advisable as your employer will be represented by a service company or attorney who are well-versed in fighting your claim. Don’t get into a miss match!

The hearing process

In state fund claims, the administrator of the BWC makes an initial decision in the claim. In a self-insured case, the employer will make an initial determination in your claim. Either party may appeal that decision and the matter will be set for hearing before the Industrial Commission. The Industrial Commission hears all matters in contest.

Appeals

The initial hearing on a claim in most cases is before a District Hearing Officer. Either party may appeal and that appeal is heard by a Staff Hearing Officer of the Commission (IC). After that, an additional appeal may be made to the IC who has discretion as to whether they will hear the appeal. Most cases they will refuse to hear an appeal. Appeals have very specific time limits for appealing an adverse decision. If you fail to follow these time limits you will be forever barred from raising that issue again. Ignorance is not an acceptable excuse.

Appeals to court

A party may appeal to court from an adverse decision. Ohio Revised Code section 4123.512 governs appeals to common pleas courts from the denial of a claim or an additional condition in an already allowed claim. The time limits for appeals and the manner of perfecting your appeal is very specific as set forth in the statute and a failure to comply strictly with the procedure can be fatal to your appeal.

All matters that deal with extent of disability issues, i.e. medical, compensation, and other non-allowance type issues, must be filed in a mandamus action in the 10th Appellate District Court in Columbus, Franklin County, Ohio. The standard for review in that court is “some evidence”. If the Industrial Commission’s hearing had “some evidence” to rely on in rendering his or her decision then that decision will not be disturbed. If the hearing office did not, then the matter is remanded (sent back) to the Commission for further hearing on the matter.

What benefits can I expect

If your claim is allowed you can at a minimum expect that your injury-related medical bills will be paid. If you miss work then you may be entitled to temporary total disability (ORC 4123.56(A). The standard to determine TT payments is that the injured worker is not able to return to the work he or she was performing at the time of the injury. There are rules that apply to special situations which may prevent you from getting TT payments, i.e. you were under the influence of drugs or alcohol and your injury was proximately caused by such influence; you were terminated for violating a written work rule. The BWC publishes a rate chart indicating the TT payment to which you are entitled. For instance for 2011 maximum temporary total is $ 783.00 per week, $ 261.00 the minimum.

Wage Loss

compensation is also available. There are two types, working and non-working wage loss. If you are working at a different job but your injury prevents you from earning at the level you had been earning at the job on which you were injured, you may be entitled to working wage loss. Non-working wage loss can be received but this involves the injured worker conducting job searches every week.

Permanent Partial Disability

Workers compensation does not recognize pain and suffering such as would be awarded in an auto accident or other negligence case. Ohio Revised Code section 4123.57(A) provides for permanent partial disability compensation. This is commonly referred to as a “percentage award”. For injuries occurring after June 30, 2006 there is a 26 week waiting period 26 weeks after the injured worker is off TT benefits or 26 weeks after the injury date in the event no TT has been paid in the claim. For claims occurring before June 30, 2006, the waiting period is 40 weeks. The PPD award maximum for 2011 is $ 261.00. Your earnings for the year prior to the injury dictate whether you will receive the maximum amount. The award is based on 2 weeks of compensation for every 1% of PPD. So if the person can get the maximum rate of $ 261.00 for a 10% award would = 20 weeks@ $261 or an award of $ 5,220.00.

Permanent Total Disability (PTD)

PTD benefits are awarded to a worker when the injured worker is incapable of performing sustained remunerative employment. This means that because of injuries sustained in the claim and only considering those injuries, the injured worker is rendered unable to perform work. This entitles the injured to PTD payments for life. These benefits may be terminated if the injured worker is committing fraud, i.e. he is collecting PTD benefits and working, or in some instances if he is performing activities that show an ability to perform work ( a PTD recipient playing 95 rounds of golf during the summer when his disability was based upon lumbar and cervical back problems.) Once again, this is a very intricate process, filing for and litigating PTD claims and our attorneys can provide assistance in this regard.

VSSR awards

The Industrial Commission has adopted a book of specific safety regulations or codes. If it can be proven that the injured worker was injured because of the employer’s violation of one of these specific safety rules, then he may be entitled to an additional award, a VSSR award. This is paid as a percentage of all compensation that has previously been paid in the claim. An example of this might be that the employer purposely removes a safety guard from a dangerous machine to speed up production and the operator is injured as a direct result.

Loss of use awards

Ohio Revised Code section 4123.57(B) provides for loss of a body part or loss of use of that part. For instance, for loss of a second finger, commonly known as the index finger, an injured worker would be entitled to thirty-five weeks of compensation. This is now payable in a lump sum.

Death Claims

If a worker is killed or his death can be directly attributable to the injuries sustained in a claim, the dependents of the deceased worker can receive death benefits. These benefits are paid to the surviving spouse for life but if the spouse remarries, then benefits are payable for a period 2 years after the date of marriage. If there is a surviving spouse and children of the deceased, the award will be pro-rated among the parties.

There are no other awards other than those listed in the workers’ compensation statutes.