Workers Compensation


Ohio workers compensation can be a confusing and frustrating system for injured workers. Employers and their managed care organizations often have different interests and goals than injured workers. Injured workers just want to get the medical treatment needed to get better and the benefits the system provides to pay their bills. Employers and their managed care organizations, on the other hand, will try to minimize the costs associated with a worker’s compensation claim. That means they often deny legitimate claims and deny necessary treatment. They may argue that the injured worker is really not disabled and is not entitled to any benefits. They might even try to convince an injured employee to be seen and treated by the company doctor, not a doctor chosen by the worker. Employers and their representatives certainly do not believe it is not their job to advise injured workers, and they typically do not inform injured employees of what rights they have and what options are available to them.

Workers compensation claimants need a strong advocate, one who works for them and not for their employer. The lawyers at Livorno and Arnett Co., LPA, have represented injured workers, in Columbus and throughout Ohio, since 1986. We are honored to represent firefighters through the Ohio Association of Professional Fire Fighters (OAPFF) Workers Compensation Attorney Panel, police officers through the Fraternal Order of Police Ohio Labor Council (FOP/OLC), and employees represented by the United Steelworkers of America (USWA).

We never represent employers. Call us if you have any questions about a claim. We do not charge for a consultation with an injured worker, and our fees are usually based on a contingency. We do not get paid unless we recover benefits for you.

For more information about Ohio workers compensation, review our Frequently Asked Questions on this topic:

Prior to 1913, injured Ohio workers could only sue their employer for negligence. Defenses of contributory negligence, assumption of the risk, and fellow servant rule defeated most injured worker claims. However, as a result of the 1912 Ohio Constitution Convention, Article II, Section 35 was adopted, creating the Ohio workers compensation system.As a result of the constitutional amendment, injured employees are now entitled to compensation, regardless of whether they had “assumed” the risk or even if they could be considered at fault themselves. Moreover, they do not have to show that the employer was at fault, negligent, or responsible for the injury. On the other hand, injured workers were only granted the benefits provided by the workers’ compensation system (benefits which may be limited in many circumstances), and they lost the right to sue their employers or co-workers for damages incurred as a result of their injuries in most circumstances.
With some minor exceptions (e.g., a minister or an officer of a family farm corporation), almost all employees are to be covered by workers compensation. Independent contractors may have to obtain their own coverage, but OBWC will closely examine any claims that a worker is an independent contractor rather than an employee. Off duty peace officers, firefighters and first responders are covered even if off-duty when responding to an inherently dangerous situation that calls for an immediate response on the part of the person.

Ohio Revised Code §4123.01(c) states in part that “‘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.” Occupational diseases are also covered.There are a number of injuries that are not included. The excluded injuries include the following:

  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;
  4. A condition that pre existed an injury unless that pre existing condition is substantially aggravated by the injury.

An injury is generally not compensable if it is the result of horseplay which the injured worker instigated or participated in. However, an exception to the general rule prohibiting one from participating in workers’ compensation benefits may apply where the employee “is injured by horseplay commonly carried on by the employees with the knowledge and consent or acquiescence of the employer.”

Injuries should always be promptly reported to the employer, using the forms and procedures established for reporting injuries. Failure to report is often used as an argument by the employer that the injury did not actually happen, at least at work.The worker’s compensation claim is generally initiated by the filing of the First Report of Injury (FROI). Using the FROI is advisable, but not required so long as notice of the specific part or parts of the body claimed to have been injured is provided to the self-insuring employer, the OBWC or the OIC.An employer’s managed care organization or a medical provider may file the FROI as well. However, the injured worker should always verify that the claim is actually filed.

Generally, a claim must be filed within two years of the date of injury, although some things, such as payment of wages for total disability by an employer with knowledge of the work-related injury, or treatment by a company doctor, may also satisfy the two year filing requirement. A claim for an occupational disease must be filed within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician. As a general rule, the sooner you file, the better.

You can appeal a denial of your claim, but the appeal must be filed within the allotted time. Appeals are heard by the Ohio Industrial Commission. Hearings may be held in the following cities:

  • Akron
  • Cambridge
  • Cincinnati
  • Cleveland
  • Columbus
  • Dayton
  • Lima
  • Logan
  • Mansfield
  • Portsmouth
  • Toledo
  • Youngstown
Non-lawyers may represent injured workers in the process, but there are significant restrictions on what they can do as part of that representation. Non-lawyers cannot (1) examine or cross examine the injured worker or any witness at a hearing, (2) cite, file or interpret statutory or administrative provisions, rulings, or case law, (3) make or give legal interpretations with respect to testimony, affidavits or medical evidence, (4) file briefs, memoranda, or other pleadings beyond the forms actually provided by the Industrial Commission or Bureau, (5) comment upon or give opinions with respect to the evidence, credibility of witnesses, nature and weight of the evidence, or legal significance of evidence, (6) provide legal advice, give or render legal opinions, cite case law or statutes, or (7) charge a fee for representing an individual party at a hearing without providing other services to the party. Attorneys can do all of these things and advise you what should be done at each stage of your claim.Generally, Columbus and Ohio workers compensation lawyers do not charge for a consultation about your claim, so do not hesitate to contact an attorney to find out what can and should be done in your claim.
Ohio’s workers compensation system will pay for the medical treatment, including prescription drugs, for an injury or occupational disease, so long as the requested medical services are reasonably related to the industrial injury; the requested services are reasonably necessary and appropriate for the treatment of the allowed conditions; and the costs of the services are medically reasonable. A worker’s compensation claimant should make sure that all medical bills are submitted to be paid through worker’s compensation. Submitting bills that should be covered by workers compensation to an insurance company instead may have an adverse impact on the worker’s compensation claim.
An injured worker has the right to be treated by the doctor of his/her choice as long as the doctor is a BWC certified provider. Check with your medical provider, your managed care organization, or search the OBWC website to find a certified provider.
  1. TEMPORARY TOTAL DISABILITY COMPENSATION (TTD). Injured workers who are unable to perform their job for a temporary period of time as a result of the injury or occupational disease may receive temporary total compensation. Temporary total disability compensation will end if the worker is (1) released to return to his/her job, (2) the worker is released with restrictions and the employer has work that can accommodate those restrictions, (3) the injured worker has reached maximum medical improvement (MMI), (4) the injured worker is working at another job, or (5) the injured worker voluntarily abandons his/her employment.
  2. SALARY CONTINUATION (paid by the employer, not OBWC). An employer may elect to continue to pay an injured worker his/her regular (full) salary/wages, including any regular benefits, during the period following a work related injury or occupational disease/illness, in lieu of BWC paying TT compensation.
  3. WAGE LOSS COMPENSATION. Payment of wage loss compensation may be made to injured workers who are working with restrictions caused by the injury which cause a reduction in earnings, or who are actively seeking but are not able to find work within their physical capabilities.
  4. PERMANENT PARTIAL DISABILITY (PPD). A percentage of permanent partial disability award for residual impairment resulting from an injury or occupational disease may be made.
  5. PERMANENT TOTAL DISABILITY (PTD). Payment of permanent total disability (PTD) compensation is paid to injured workers who have been declared permanently and totally disabled, i.e., the injured worker is not capable of returning to the former position of employment and is not capable of engaging in any sustained remunerative employment.
  6. VIOLATION OF A SPECIFIC SAFETY REQUIREMENT (VSSR) Workers who are injured as a result of an employer’s violation of a specific safety requirement may be entitled to additional compensation. A VSSR application must be filed within two years of the injury.
  7. LUMP SUM SETTLEMENT AWARD. WC claims can be settled, with a lump sum being paid to the injured worker in exchange for the waiver and release of any further compensation or payment for medical treatment.
  8. OTHER COMPENSATION. There are other miscellaneous forms of compensation include the following:
    1. PARAGRAPH C AWARD FOR LOSS OF OR LOSS OF USE
    2. FACIAL DISFIGUREMENT
    3. DEATH BENEFITS FOR DEPENDENT SURVIVORS (INCLUDING SPOUSE)
    4. A POLICE AND FIRE CHANGE OF OCCUPATION COMPENSATION AWARD
    5. LIVING MAINTENANCE (LM)
The amount of compensation you may receive varies, depending on factors such as how much you earned the year before your injury, the year you were injured, and the type of benefits you will be receiving. Ask your Ohio workers’ compensation attorney for an estimate as to what your benefits will be.
For claims occurring on or after August 25, 2006, a claim remains open for five years after the last payment of medical benefits or any compensation (TTD, wages in lieu of compensation, PPD, etc.). Each payment extends the life of the claim. Different periods may apply for claims arising prior to August 25, 2006.Even though a claim may technically still be open, it may be considered inactive if no medical treatment is received for a lengthy period of time. If medical treatment then becomes necessary, an application to re-activate the claim may need to be filed.

Pursuant to Ohio Revised Code §4123.651, an employer of a claimant may require, without the approval of the OBWC or OIC, that the claimant be examined by a physician of the employer’s choice one time upon any issue asserted by the employee, his/her physician, or which is to be considered by the OIC. Any further requests for medical examinations must be approved by the OIC. The employer has to pay the cost of any examinations initiated by the employer and may, in certain circumstances, pay the employee’s expenses in attending.In addition, injured workers are required to sign a medical release so OBWC and employers may obtain from the worker’s medical providers the release of medical information, records, and reports relative or pertinent to the issues necessary for the administration of the claim. Thus, for example, an injured worker with a claim for a right shoulder rotator cuff tear would be obligated to release medical records related to his/her right shoulder, but not records unrelated to that body part.Employees are not obligated to sign a blanket release, allowing the employer to obtain the employee’s entire medical history, regardless of whether it is related to the claim or not.

Workers compensation is not necessarily the only resource you have if you are injured at work.If you are the victim of a crime while at work, you may want to explore the Ohio Victims of Crime Program, established under Ohio Revised Code §§2743.51, et seq.You may have a third party lawsuit against the party that injured you if that party is not your employer or a co-employee.

You may even have a lawsuit against your employer if you can prove that the employer acted with the intent to injure you or with the belief that the injury was substantially certain to occur (referred to as an “intentional tort” lawsuit).

Through collective bargaining agreements or employer policies, employers often have salary continuation or injury leave provisions designed to replace or supplement WC benefits.

In addition, Ohio Revised Code §4123.90 protects injured workers in the event the employer discharges, demotes, reassigns, or takes any punitive action against an employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act.

Consult with your lawyer to see if any of these additional resources or rights are available to you.

 

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