Worker's Compensation Issues For Law Enforcement Officers
WORKERS’ COMPENSATION ISSUES FOR
LAW ENFORCEMENT OFFICERS
PRESENTED AT 2014 FOP OF OHIO ANNUAL CONFERENCE
Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
A. BRIEF HISTORY OF WORKERS’ COMPENSATION IN OHIO
Prior to this, injured 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. It reads as follows:
“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all right of claimants thereto. Such board shall set aside as a separate fund such proportion of the contributions paid by employers as in its judgment may be necessary, not to exceed one per centum thereof in any year, and so as to equalize, insofar as possible, the burden thereof, to be expended by such board in such manner as may be provided by law for the investigation and prevention of industrial accidents and diseases. Such board shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final; and for the purpose of such investigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards; and, if such compensation is paid from the state fund, the premium of such employer shall be increased in such amount, covering such period of time as may be fixed, as will recoup the state fund in the amount of such additional award, notwithstanding any and all other provisions in this constitution.”
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. As stated in Bralley v. Daugherty
(1980), 61 Ohio St. 2d 302 (1980):
The test of the right to participate in the Workers’ Compensation Fund is not whether there was any fault or neglect on the part of the employer or his employees, but whether a “causal connection” existed between an employee’s injury and his employment either through the activities, the conditions or the environment of the employment.
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.
I.C. Board administers the Fund and adjudicates disputed claims.
BWC was created to administer the claims.
Industrial Commission becomes adjudicator only; BWC is the administrator.
HB 107 reorganized the BWC, established tentative orders, MCO’s, and eliminated the Regional Boards.
Ohio General Assembly “reforms” the workers compensation program in Senate Bill 7. Included in the reforms are provisions making it more difficult to prove an injury aggravated a pre-existing condition, overruling an Ohio Supreme Court case allowing coverage for mental or psychiatric conditions in the absence of a compensable physical injury, shortening the time period for claims to be open, making it more difficult to establish Permanent Total Disability, and reducing some benefits.
Ohio Revised Code §4123.01 states the following:
“(A) (1) ‘Employee’ means:
(a) Every person in the service of the state, or of any county, municipal corporation, township, or school district therein, including regular members of lawfully constituted police and fire departments of municipal corporations and townships, whether paid or volunteer, and wherever serving within the state or on temporary assignment outside thereof, and executive officers of boards of education, under any appointment or contract of hire, express or implied, oral or written, including any elected official of the state, or of any county, municipal corporation, or township, or members of boards of education.
As used in division (A)(1)(a) of this section, the term “employee” includes the following persons when responding to an inherently dangerous situation that calls for an immediate response on the part of the person, regardless of whether the person is within the limits of the jurisdiction of the person’s regular employment or voluntary service when responding, on the condition that the person responds to the situation as the person otherwise would if the person were on duty in the person’s jurisdiction:
(i) Off-duty peace officers. As used in division (A)(1)(a)(I) of this section, ‘peace officer’ has the same meaning as in section 2935.01 of the Revised Code.
(ii) Off-duty firefighters, whether paid or volunteer, of a lawfully constituted fire department.
(iii) Off-duty first responders, emergency medical technicians-basic, emergency medical technicians-intermediate, or emergency medical technicians-paramedic, whether paid or volunteer, of an ambulance service organization or emergency medical service organization pursuant to Chapter 4765. of the Revised Code.”
Pursuant to Ohio Revised Code §ORC 4123.02, police or firefighters who are eligible to participate in pension funds maintained by a municipal corporation that covers injuries on the job may not be covered by the Ohio WC system. This does not include state pension funds under Ohio Revised Code Chapter 742.
Ohio Revised Code §4123.01 states the following:
“(B) ‘Employer’ means:
(1) The state, including state hospitals, each county, municipal corporation, township, school district, and hospital owned by a political subdivision or subdivisions other than the state;
(2) Every person, firm, professional employer organization as defined in section 4125.01 of the Revised Code, and private corporation, including any public service corporation, that (a) has in service one or more employees or shared employees regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, or (b) is bound by any such contract of hire or by any other written contract, to pay into the insurance fund the premiums provided by this chapter.”
Ohio Revised Code §4123.01 states the following:
“(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;
(4) 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.”
4. OCCUPATIONAL DISEASE
Ohio Revised Code §4123.01 states the following:
“(F) ‘Occupational disease’ means a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.”
Ohio law provides a “presumption” for cardiovascular, pulmonary, or respiratory diseases incurred by fire fighters or police officers. Ohio Revised Code §4123.68 states in part the following:
“(W) Cardiovascular, pulmonary, or respiratory diseases incurred by fire fighters or police officers following exposure to heat, smoke, toxic gases, chemical fumes and other toxic substances: Any cardiovascular, pulmonary, or respiratory disease of a fire fighter or police officer caused or induced by the cumulative effect of exposure to heat, the inhalation of smoke, toxic gases, chemical fumes and other toxic substances in the performance of his duty constitutes a presumption, which may be refuted by affirmative evidence, that such occurred in the course of and arising out of his employment. For the purpose of this section, ‘fire fighter’ means any regular member of a lawfully constituted fire department of a municipal corporation or township, whether paid or volunteer, and ‘police officer’ means any regular member of a lawfully constituted police department of a municipal corporation, township or county, whether paid or volunteer.”
This “presumption” is of little benefit to police. It would typically apply more often to firefighters. More importantly, the “presumption” is really no presumption at all; a claimant must first prove that his/her cardiovascular, pulmonary, or respiratory disease was caused or induced by the cumulative effect of exposure to heat, the inhalation of smoke, toxic gases, chemical fumes and other toxic substances in the performance of his/her duty in order for the presumption to apply. It is almost like saying that if you prove your disease is work-related, we’ll presume your disease is work-related.
C. SPECIAL ISSUES AS TO COMPENSABILITY OF AN INJURY
1. RECEIVED IN THE COURSE OF, AND ARISING OUT OF, THE INJURED EMPLOYEE’S EMPLOYMENT
(A). SPECIAL DUTY
State, ex rel. Village of Oakwood, v. Industrial Commission of Ohio (2012), 132 Ohio St.3d 406, 2012-Ohio-320
* Village of Oakwood police officer working special duty at a highway construction site.
* In uniform.
* Paid by the construction company.
* In a village cruiser (being leased by the construction company).
* Injured when another vehicle hits the cruiser.
* Issue: Which entity was the employer, the Village or the construction company? The Industrial Commission ruled the Village was the employer.
* Ruling: Ohio Supreme Court defers to the expertise of the OIC and finds no abuse of discretion in its holding that the Village was the employer.
Dayton v. Cooper (1997), 120 Ohio App. 3d 34
* Dayton police officer, working as a loss prevention specialist at a grocery store.
* Out of uniform, off-duty.
* Paid by an independent contractor, not by the City.
* Injured while trying to arrest a shoplifter.
* Ruling: Because he was exercising his arrest powers as a police officer, he was considered an employee of the City when he was injured.
(B). COMING AND GOING RULE
As a general rule, where an employee, having a fixed and limited place of employment, sustains an injury while traveling to and from his place of employment, such injury does not evidence the required causal connection to the employment; it therefore does not arise out of and in the course of his employment and is not compensable. Bralley v. Daugherty (1980), 61 Ohio St. 2d 302 (1980).
However, the general coming and going rule does not prohibit all injuries sustained by an employee while traveling to or from work. If there is a “special hazard or risk” involved in getting to the job site, and the employee is injured because of that hazard or risk, the injury could be said to have been received in the course of, and arising out of, the injured employee’s employment. As noted in Littlefield v. Pillsbury Company (1983), 6 Ohio St. 3d 389: “Accordingly, an employee will be entitled to compensation, if the employment creates a special risk, for injuries sustained in the scope of that risk. A special risk may be on the employer’s premises or involve the necessary means of access to the premises, even when the access is not under the employer’s control or management. *** Thus, when the injury occurs on the only route or at least on the normal route, which the employees must use to reach the premises, the special hazards of that route may become hazards of the employment.”
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.”
2. INJURIES GENERALLY DO NOT INCLUDE PSYCHIATRIC CONDITIONS
(A). MENTAL CONDITIONS GENERALLY EXCLUDED
If an employee is injured, and subsequently develops mental conditions stemming from that injury (e.g., depression as a result of the pain or not being able to work), the mental conditions may be allowed as part of the claim. On the other hand, there is no coverage for an employee who develops a mental condition (e.g., PTSD) without an accompanying physical injury. Mental conditions are specifically excluded 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.
Mental conditions, without an accompanying physical injury to the claimant, were for a short period of time recognized pursuant to a 2001 Supreme Court ruling. In Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, the Court stated: “A psychiatric condition of an employee arising from a compensable injury or an occupational disease suffered by a third party is compensable under R.C. 4123.01(C)(1).” Thus, in that case, an employee who accidentally ran over and killed a co-worker, but who was not physically injured himself, was granted worker’s compensation coverage for his subsequent severe depression.
Recognition of mental conditions, without an accompanying physical injury to the claimant, was short-lived. Bailey was overruled by McCrone v. Bank One Corporation (2005), 107 Ohio St.3d 272, in which the Ohio Supreme Court stated: “When the entire definition of ‘injury’ in R.C. 4123.01(C) is examined, it is clear that workers’ compensation covers physical injuries and psychiatric injuries that arise directly out of physical injuries or occupational disease to the claimant.” (Emphasis in original.)
Senate Bill 7 in 2006 codified the McCrone ruling, specifically stating that psychiatric conditions are not covered “except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant.” (Emphasis added.)
(B). ATTEMPTS TO CHANGE THE LAW
The law’s exclusion of mental conditions has been criticized (See Appendix, pp. 1-2), and Senate Bill 252, currently pending in the General Assembly, would allow for PTSD of peace officers and firefighters to be compensable.
D. THE CLAIM PROCESS
1. INITIATING THE PROCESS
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) (see Appendix, pp. 3-6). 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. Generally, a claim must be filed within two years, 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.
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.
2. THE INITIAL DETERMINATION
The Ohio Bureau of Workers Compensation issues an order, allowing the claim and specifying what conditions (e.g. lumbar sprain, fracture of right arm, etc.) are included, or disallowing the claim. A self-insured employer must notify the injured worker whether it is allowing the claim and the conditions being allowed (or disallowed). Decisions of the OBWC or self-insured employer can be appealed.
BWC orders can be appealed to the Ohio Industrial Commission. Hearings may be held in the following cities:
Akron Cambridge Cincinnati Cleveland Columbus Dayton Lima Logan Mansfield Portsmouth Toledo Youngstown
The first OIC hearing is held before a District Hearing Officer (DHO). Appeals can be made to a Staff Hearing Officer (SHO), then to the members of the Industrial Commission (rarely granted), and then, in certain situations, to the common pleas court.
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.
E. MEDICAL TREATMENT AND PAYMENT
1. MEDICAL BILLS
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 (see Appendix, p. 7) to find a certified provider.
Medical bills will be paid for medical services so long as they satisfy the Miller criteria. As established by the case of State, ex rel. Miller v. Indus. Comm., 71 Ohio St. 3d 229 (1994), a three-pronged test is be applied when considering requests for authorization of workers’ compensation medical services. Those criteria are as follows:
* The requested medical services are reasonably related to the industrial injury;
* The requested services are reasonably necessary and appropriate for the treatment of the industrial injury (allowed conditions); and
* The costs of the services are medically reasonable.
All three parts of the test must be met to authorize reimbursement of medical services.
Managed Care Organizations (MCO’s) are private companies selected by or assigned to each state-funded Ohio employer to medically manage the employer’s workers’ compensation claims. MCO’s or the self-insured employers formulate policies and procedures that govern provision of medical treatments and services, including either authorization or denial of the treatment. If treatment is denied, the injured worker may appeal to the OBWC and OIC.
2. DIAGNOSTIC SERVICES
The costs of post-exposure medical diagnostic services after a police officer’s exposure to blood or other body fluids are to be paid through workers compensation. Ohio Revised Code §4123.026 states in part:
(A) The administrator of workers’ compensation, or a self-insuring public employer for the peace officers, firefighters, and emergency medical workers employed by or volunteering for that self-insuring public employer, shall pay the costs of conducting post-exposure medical diagnostic services, consistent with the standards of medical care existing at the time of the exposure, to investigate whether an injury or occupational disease was sustained by a peace officer, firefighter, or emergency medical worker when coming into contact with the blood or other body fluid of another person in the course of and arising out of the peace officer’s, firefighter’s, or emergency medical worker’s employment, or when responding to an inherently dangerous situation in the manner described in, and in accordance with the conditions specified under, division (A)(1)(a) of section 4123.01 of the Revised Code, through any of the following means:
(1) 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;
(3) A cut in the skin or another opening in the skin such as an open sore, wound, lesion, abrasion, or ulcer.
Injured workers, depending on their circumstances, may be eligible for the following benefits.
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. An injured worker will be eligible for lost time benefits if there are more than seven days of lost work. Also, the first seven days of lost time are not payable until the worker loses 14 consecutive days.
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.
(A). VOLUNTARY ABANDONMENT
Employers may claim that TTD is no longer payable because the employee has “voluntarily abandoned” his/her job, arguing that the reason the employee is no longer working is not the injury, but some other factor. An employee may have “voluntarily abandoned” his job by refusing a written job offer of light duty work within the temporary restrictions identified by the injured worker’s physician of record, by retiring, or by being terminated from employment for valid reasons other than the injury or the circumstances surrounding the injury.
As noted in State ex rel. Gross v. Industrial Comm., 115 Ohio St.3d 249, 2007-Ohio-4916 (Ohio 2007) “the voluntary-abandonment doctrine has been applied only in postinjury circumstances in which the claimant, by his or her own volition, severed the causal connection between the injury and loss of earnings that justified his or her TTD benefits.” In State ex rel. Robinson v. Indus. Comm., 138 Ohio St.3d 471, 2014-Ohio-546, the Supreme Court stated “Employment discharge is a voluntary abandonment only when the discharge arises from a violation of a written work rule that (1) clearly defined the prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee.”
(B). MAXIMUM MEDICAL IMPROVEMENT (MMI)
Injured workers may also see their TTD cut off if they have reached “maximum medical improvement” (MMI). OBWC generally defines MMI as a treatment plateau in each person’s healing process, meaning that the patient has fully recovered from the injury or that the patient’s medical condition has stabilized to the point that no major medical improvement can be expected in the injured worker’s condition despite continuing medical treatment or rehabilitation. In other words, the patient’s condition has become permanent and can no longer be considered “temporary.”
(C). AMOUNT OF COMPENSATION
Earnings from all employers that employed the injured worker during the 52 week period prior to the date of injury are considered when setting the injured worker’s average weekly wage (AWW). Periods when the worker was unemployed due to circumstances beyond the worker’s control may be excluded. A full weekly wage (FWW) is calculated based on a comparison of earnings for the first six weeks prior to the date of injury and the first full week of earnings prior to the date of injury. For the first 12 weeks of missed work, temporary total is paid at the rate of 72 percent of the injured worker’s FWW. After 12 weeks of missed work, temporary total at the rate of 66.67 percent of the injured worker’s AWW is paid. Note that although these rates result in a gross payment less than the regular wages that would have been earned by the employee, worker’s compensation benefits are not taxable.
Weekly TTD payments are not to exceed 100 percent of the State Average Weekly Wage (SAWW); minimum payments are set as 1/3 of the SAWW. See the OBWC Compensation Rate chart (Appendix, p. 8) for the various levels of compensation that are paid.
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. Pursuant to Ohio Revised Code §4123.57, the amount of the payment is two-thirds of the employee’s average weekly wage, but not more than a maximum of one-third of the statewide average weekly wage for the number of weeks which equals the percentage of two hundred weeks. For example, a 5% award would translate into a payment of ten weeks at the 2/3 AWW rate, subject to the 1/3 SAWW cap.
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. Pursuant to Ohio Revised Code §4123.58, compensation for permanent total disability is to continue until the employee’s death (or the employee is no longer totally disabled) in the amount of two-thirds of the employee’s AWW with a maximum amount of weekly compensation equal to two-thirds of the SAWW in effect on the date of injury or on the date the disability due to the occupational disease began.
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. VSSR awards for police are not common because of the lack of specific safety requirements applicable to law enforcement.
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
Other miscellaneous forms of compensation include the following:
(A). PARAGRAPH C AWARD FOR LOSS OF OR LOSS OF USE
OBWC will pay scheduled loss benefits for the amputation, loss of use or ankylosis of specific body part(s), loss of vision, or total loss of hearing due to a work-related injury or occupational disease. The degree of loss determines the number of weeks that are paid; for injuries occurring on or after November 3, 1989, the compensation payable per week is based upon 100 percent of the SAWW.
(B). FACIAL DISFIGUREMENT
Up to a maximum of $10,000 may be paid to an injured worker who experiences a work-related facial or head disfigurement that either impairs, or may in the future impair, opportunities to seek or retain employment.
(C). DEATH BENEFITS FOR DEPENDENT SURVIVORS
If an employee loses his or her life as the result of a work-related injury or occupational disease, the surviving dependent(s) may qualify for compensation:
– Dependent children under 18 years old;- Dependent children 18 to 25 years old who are attending an accredited educational institution full time;
– Dependent mentally or physically challenged children 18 years or older;
– Other dependent relatives in certain cases.
Benefits are paid to the spouse until and unless he/she remarries. OBWC can pay benefits and cover funeral expenses for surviving dependent(s) of a work-related death (up to $5,500).
The amount may vary but generally the weekly payments are two-thirds of the average weekly wage, not to exceed a maximum aggregate amount of weekly compensation which is equal to the statewide average weekly wage.
(D). A POLICE AND FIRE CHANGE OF OCCUPATION COMPENSATION AWARD
If a firefighter or police officer has contracted a cardiovascular and pulmonary disease as defined in division (W) of section 4123.68 of the Revised Code and a change of the firefighter’s or police officer’s occupation is medically advisable in order to substantially decrease further exposure to smoke, toxic gases, chemical fumes, and other toxic vapors, a change of occupation award may be made.
(E). LIVING MAINTENANCE (LM)
Payment made to an injured worker instead of TT. To receive LM, the injured worker must be actively involved in an approved rehabilitation program.
G. LIFE OF THE CLAIM
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.). ORC §4123.52. 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.
Bills for payment of medical or vocational rehabilitation services which are first submitted for payment more than one year after the date the services were rendered or more than one year after the date the services became payable, whichever is later, will not be paid by OBWC.
Injured workers should make sure that all bills for medical services, including prescriptions, are timely submitted to OBWC or the self-insured employer for payment. Each payment extends the life of the claim, and the fact that medical bills are being paid is often relevant when determining issues such as permanent partial disability or the value of a claim for lump sum settlement purposes.
H. EMPLOYER MEDICAL EXAMINATIONS AND RELEASES
1. EMPLOYER MEDICAL EXAMINATIONS
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. Thus, for example, the employer could have the injured worker examined on a request for temporary total disability benefits, again on a request for medical treatment, again on a request for an additional allowance, etc. Any further requests for medical examinations must be approved by the OIC. The employer shall pay the cost of any examinations initiated by the employer and may, in certain circumstances, pay the employee’s expenses in attending.
2. OBLIGATION TO EXECUTE MEDICAL INFORMATION RELEASE
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.
OBWC has prepared a form for the release of medical information and records (Appendix, p. 9). Although the form states the records to be released are those “related causally or historically to physical or mental injuries relevant to my workers’ compensation claim,” the form itself does not readily inform the medical provider what injuries are relevant to the worker’s claim. Therefore, any injured worker using the form should specify what injuries or body parts are covered by the release.
Employers often will ask an injured worker 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. Employees are under no obligation to sign such a release and should insist that the release be limited to the issues and conditions raised or included in the claim.
The employer is to promptly provide copies of all medical information, records, and reports to the OBWC and to the claimant or his representative upon request. Be sure you make such a request.
3. CLAIM SUSPENSION
If the injured worker refuses, without good cause, to submit to any examination scheduled by the employer or to execute a release for any medical information, record, or report that is required to be released and which involves an issue pertinent to the condition alleged in the claim, the worker’s right to have the claim considered or benefits paid is suspended during the period of refusal.
I. OTHER RESOURCES
1. OHIO VICTIMS OF CRIME PROGRAM
Ohio Revised Code §§2743.51, et seq. provides for the Ohio Victims of Crime (VOC) program. Police officers may be eligible for victims of crime compensation in limited circumstances. Generally, the victim must have incurred expenses that are not fully covered by certain other sources. Compensation is not provided for pain and suffering, for stolen, damaged or lost property, or for expenses payable by collateral sources (such as insurance, workers’ compensation benefits, or restitution), and the total award of compensation may not exceed $50,000. Compensation may be provided for counseling for the victim and immediate family members of victims for specific crimes, or for lost wages from being unable to work (including lost special duty earnings by police officers).
2. THIRD PARTY LAWSUITS
Redress against a third party is generally barred by the “Fireman’s Rule.” The fireman’s rule is a principle that limits a landowner’s duty to police officers and firefighters in certain circumstances. It provides that ” [a]n owner or occupier of private property can be liable to a firefighter or police officer who enters premises and is injured in the performance of his or her official job duties if (1) the injury was caused by the owner’s or occupier’s willful or wanton misconduct or affirmative act of negligence; (2) the injury was a result of a hidden trap on the premises; (3) the injury was caused by the owner’s or occupier’s violation of a duty imposed by statute or ordinance enacted for the benefit of fire fighters or police officers; or (4) the owner or occupier was aware of the fire fighter’s or police officer’s presence on the premises, but failed to warn them of any known, hidden danger thereon.” If none of the four conditions applies, a landowner or occupier owes no duty to a firefighter or police officer who is injured while performing official duties on the landowner’s or occupier’s premises.
There may be exceptions to the Fireman’s Rule. For instance, in Torchik v. Boyce, 121 Ohio St.3d 440, 2009-Ohio-1248, the Supreme Court of Ohio stated the following: “An independent contractor whose negligence is alleged to have caused injury to police officers or firefighters acting in the scope of their official duties is not relieved of potential liability under the fireman’s rule.” In Brady v. Consolidated Rail Corp., 35 Ohio St.3d 161 (Ohio 1988), the Ohio Supreme Court ruled that a railroad company may be liable for negligence to a police officer who enters upon such company’s public right-of-way in the performance of his official duties. In Revlock v. Lin, 2013-Ohio-2544, (Court of Appeals of Ohio, Eighth District, Cuyahoga June 20, 2013), the Court held that a police officer could not sue the driver of a vehicle involved in an accident which the officer was investigating, but the officer sued and settled with the driver of another vehicle which struck the officer’s vehicle while he was sitting in it completing the paperwork for the accident.
3. INTENTIONAL TORTS
Ohio Revised Code §2745.01 provides in part as follows:
“(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”
Ohio Revised Code §4123.90 states in part as follows:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court of the county of such employment in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section 4123.56 and Chapter 4141. of the Revised Code plus reasonable attorney fees.
A §4123.90 action may only be pursued if written notice of a claimed violation is provided to the employer within ninety days of the alleged violation and the lawsuit is filed within one hundred eighty days.
5. YOUR COLLECTIVE BARGAINING AGREEMENT OR EMPLOYER POLICIES
Employers often have salary continuation or injury leave provisions designed to replace or supplement WC benefits. Injured workers should file their WC claims even if such programs are available; a failure to timely file a claim often means the claim is over and will not be covered by workers’ compensation.