NUTS & BOLTS OF OHIO S WORKERS COMPENSATION SYSTEM

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1 NUTS & BOLTS OF OHIO S WORKERS COMPENSATION SYSTEM It is neither charity, nor pension, nor indemnity, nor insurance, nor wages, though, if a definition of each and all of these terms were placed in parallel columns with a definition of compensation, certain elements would be found common to all. Austin Co. v. Brown (1929), 121 Ohio St With the rise of modern industrialism, it became apparent that common law remedies were insufficient and impractical to address the resultant and unavoidable workplace injuries. In 1912, the Ohio General Assembly adopted the Workers Compensation Act, which authorized the General Assembly to establish a workers compensation system. The basis of this new system would be a state fund designed to compensate workers and their dependents for injuries sustained in the course and arising out of employment. The Bargain: A no-fault system and the exclusive remedy The new system would eliminate tort-based theories of fault and negligence as a basis for recovery. The workers compensation system recognizes that injury is an inherent risk of employment and production. Injuries to workers cause an economic loss, and this loss should be borne by the industry. Compensation to workers should be paid out of the common fund supported by the industry. For injured workers, compensation under this system became the exclusive remedy for workplace injuries. Except in cases where an intentional tort has occurred, injured workers do not have a right to sue employers for a work injury, even if a dangerous work environment can be established. Both injured workers and employers are guaranteed a (relatively) speedy and inexpensive process when a claim is filed. The benefits available to the injured worker under the system are predictable, without the uncertainties that exist under the tort system. Employee/Employer relationship For private employers, there must be a basic contract of hire, which simply means an agreement to pay wages. The agreement may be expressed or implied. For public employers, a worker may be paid or volunteer and working under appointment or contract of hire. Self-employed persons may carry coverage on themselves.

2 Independent contractors may carry coverage on themselves, but are not employees of any other employer for claim purposes (A)(1)(c) provides some guidance as to who is considered an independent contractor. There is no absolute standard as to who is an independent contractor, but rather, a case-by-case analysis is required. The ultimate question: Who controls the work? Ohio s workers compensation system compensates injured workers for acute physical injuries, aggravations of pre-existing injuries, psychological injuries, and occupational diseases. 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 (C) For an injury, the statute of limitation for filing a claim is two years. An injured worker has two years from the date of injury to file his claim with the Bureau of Workers Compensation Pre-2006 claims can be recognized for an aggravation of a pre-existing condition, while claims arising 2006 or later must prove that the pre-existing condition was substantially aggravated by the work injury or activities. Psychological conditions alone cannot be the basis of a workers compensation claim, but rather, must have arisen from an injury or occupational disease sustained by that claimant (C)(1) Occupational disease is one contracted in the course of employment where the nature of the employment creates a risk of contracting the disease in greater degree and in a different manner from the general public (F) For an occupational disease, calculating the statute of limitation is tricky. An injured worker has the longest of three options: (1) Two years after disability due to the disease began; (2) Six months after the date of diagnosis by a physician; or (3) Two years after death due to the disease The statute is so convoluted, that the Industrial Commission has published Policy Memo B3 to assist practitioners and Hearing Officers is figuring out the statute of limitation on an OD claim. Occupational diseases encompass both overuse conditions, like carpal tunnel syndrome, and more serious pulmonary conditions, like asbestosis, silicosis, and pneumoconiosis. In the Course and Arising Out of Employment An Analysis of Work Connectedness In the course of is typically construed as relating to the time and place of the accident.

3 Arising out of asks whether there is a causal relationship between the employment and the injurious event. Consider the totality of the circumstances: Did the accident occur within the zone of employment? How much control did the employer exercise over the site of the accident? Did the employer enjoy a benefit from the injured worker s presence at the accident site? Was the injured worker doing something incidental to his employment at the time of the injury? Was the injury caused by some sort of special hazard created by the employer? (1) But for the employment the employee would not have been at the location of the injury; and (2) The risk to the employee is distinctive in nature or greater than the risk common to the public. Not compensable: For a fixed-situs worker, injuries sustained while traveling to and from work; Injuries sustained while participating in a work-sponsored recreational event provided the employer has obtained a waiver; Injuries that are self-inflicted or sustained as the result of horseplay; Injuries that are caused by the injured worker s intoxication Dual Causation Injuries and OD s are compensable so long as the work-related hazard is a proximate cause of the condition. It does not matter that other hazards might also be proximate causes of the condition. IC Policy Memo S14 Reasons for Filing a Claim Medical bills for treatment of the work injury are paid at 100%. Temporary Total Disability Compensation compensation for time missed from work while the injury is healing An injured worker will not begin to receive TT until he misses more than seven consecutive days of work. Weeks 1-12 are paid at 72% of the injured worker s full weekly wage. Week 13 onward are paid at 66 2/3% of the injured worker s average weekly wage. TT can terminate for various reasons: (1) When an injured worker returns to work, has the ability to return to work;

4 (2) The disabling condition reaches a level of permanency or maximum medical improvement; (3) The injured worker voluntarily abandons his employment or the workforce in general. Wage Loss Compensation Working wage loss a wage loss suffered due to and injured worker s having to seek alternative employment because of the injury. Non-working wage loss a wage loss suffered as a result of being unable to find employment consistent with restrictions due to the injury. In the aggregate, an injured worker is entitled to 226 weeks of wage loss compensation throughout the life of his claim. Permanent Total Disability Compensation After a work-related medical condition has reached a level of maximum medical improvement, an application for PTD benefits is appropriate if the work injury has rendered the injured worker incapable of sustained remunerative employment. Applications for PTD benefits are filed with the Industrial Commission. When adjudicating the application, the IC may not consider the work injury alone. The IC must also evaluate an injured worker s age, education, work experience, or any other factors affecting the applicant s employability. State ex rel Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Permanent Partial Disability Awards (C-92 Awards) The C-92 application can be filed 26 weeks after the last compensation paid in the claim. Scheduled Loss Awards (B) The ORC authorizes payment of compensation for the loss of specified parts of the body. The Supreme Court has defined loss for purposes of paragraph (B) awards to include the loss of use. State ex rel Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402. The purpose of the scheduled loss awards is to compensate injured workers for an impairment in earnings capacity.

5 THE CLAIM PROCESS A workers compensation claim will require you to deal with two of Ohio s agencies: The Ohio Bureau of Workers Compensation and the Industrial Commission of Ohio. The BWC is the administrator of the state fund and will make initial decisions on all issues arising in a state-fund claim. Decisions of the BWC (or self-insured employers) can be appealed to the IC, which is the adjudicatory agency. FROI is filed with BWC Injured worker or employer appeals BWC allowance Order within 14 days using IC-12 or Injured worker, employer, or BWC appeals DHO Order within 14 days using IC-12 or Injured worker, employer, or BWC seeks an appeal to the SHO Order within 14 days using IC-12 or Injured worker or employer appeals the allowance issue into the court of common pleas under BWC determines allowance or disallowance of claim issues an Order IC schedules and conducts a hearing before a District Hearing Officer on the claim allowance; an Order is issued IC schedules and conducts a hearing before a Staff Hearing Officer on the claim allowance; an Order is issued IC grants or denies a discretionary third-level hearing on the issue