Nobody Ever Gets Rich on Workers Compensation.

Workers Compensation programs began a hundred years ago under a simple premise: injured workers give up the right to file a lawsuit against employers. In exchange, they receive the certainty of a pre-set schedule of compensation following workplace injury. Today, this safety net has giant holes.

13% Cut In Pay

Could you afford an unexpected and indefinite 13% cut in pay? Would this create a hardship? The likely answer is yes. But this is exactly what Ohio expects of injured workers. Compensation payments are paid at a rate of 67% of an injured worker’s average wage. Payments are not subject to tax. If net-take home pay is usually 80% of gross then, after tax, we are subjecting disabled workers to a 13% pay cut.

Seven Day Waiting Period

For short disabilities, a seven day waiting period is in place before disability comp begins. If an injured worker misses more than fourteen days, then disability comp pays back to day one. An injured worker who misses only thirteen days of work receives six days of disability (at 67%) for a 69% income reduction.

Sure, the injured worker can use vacation or sick pay. Is it fair to expect this? Especially where injury occurred due to employer negligence? Also, does this policy encourage employees to stay off work longer than necessary to cross that fourteen day threshold?

High Wage Earners

In 2017, the maximum weekly benefit is $902 per week. You would have to demonstrate earnings of $47,355 to receive that amount. If you were a disabled RN earning $90,000 per year then you would receive that same $902 per week – or 53% of pre-injury earnings. Is it fair to give a negligent employer a 47% off coupon?

Career Ending Injuries

Victims of career ending injuries suffer the worst under Ohio’s system of workers compensation. A well-paid construction worker with a severe back injury could receive disability until the injury reached “maximum medical improvement.” If that worker could perform ANY other type of work (i.e., parking-lot attendant, movie theater ticket taker, etc.) they would be considered PARTIALLY disabled and receive a modest (usually <$20,000) lump-sum award. He or she may also be eligible to receive wage-loss compensation equal to 2/3 of lost earnings for no more than 200 weeks.

What happens after 200 weeks? Nothing. The well-paid construction worker might see his or her income drop from $60k to 30k (or less) per year with no form of compensation to make up for this loss. Think it doesn’t happen? Guess again. Why 200 weeks? Because that is the amount set by the Ohio legislature.

Conclusion

Most people don’t realize how close they are to the edge of financial collapse. What began as a means of avoiding the courtroom has morphed into a system that insulates employers from liability but financially ruins the disabled employee. The cost of workers compensation programs has dropped dramatically in Ohio. Shouldn’t the pendulum begin to shift back to this program’s original purpose?

For more information, read The Uncompensated Worker: The Financial Impact of Workers’ Comp on Injured Workers & Their Families.

The Ohio Supreme Court’s gift to injured workers is a lump of coal.

Judicial Activism is when a court makes, rather than interprets, the law. Conservatives ALWAYS claim to be against judicial activism. Yet, a recent decision issued by the Ohio Supreme Court is an indisputable example of it. Worse yet, the winners (big business) and losers (injured workers) are clear cut.

In State ex rel. Presbyterian Retirement Services, Inc. v. I.C. the injured worker was deemed permanently and totally disabled. She later applied for permanent-partial disability benefits based upon a medical condition that had been added to her claim after her award of PTD. Because no written law or rule prohibited this type of application, the Industrial Commission granted her request and awarded a modest sum of permanent partial disability.

The Industrial Commission and Tenth District Court of Appeals denied the employer’s appeal of this award. Yet, the Ohio Supreme Court was able to do what neither the Commission nor Court of Appeals could: manufacture a reason to grant the employer’s appeal and deny the award.

This was a 5-2 decision. Retiring Justice Pfeiffer’s dissenting opinion was far more intellectually honest. He noted R.C. § 4123.95 requiring the Court to interpret uncertainties in favor or coverage – an often ignored provision. He added:

“…If the public policy of this state, as evidenced by the enactments of the General Assembly, does not countenance the award of concurrent benefits, the General Assembly could easily amend the statutory scheme. But even though concurrent benefits have been awarded in the past, as noted in the majority opinion, the General Assembly has not evinced its desire to prohibit concurrent benefits. Therefore, I would allow concurrent benefits in this case…”

It is hard to see this as anything other than a huge act of generosity to big business. An award of permanent partial disability is rarely more than a few thousand dollars, and even the maximum benefit under PTD (which workers rarely receive) is hardly a windfall. No one ever got rich on workers’ compensation disability – but many, many got poorer. Sadly, this trend is likely to continue until the makeup of the Ohio Supreme Court changes drastically.

Three Things About Medical Marijuana and Workers Comp

Medical marijuana is coming to Ohio. What impact will this have on compensation for work-related injuries? Will workers compensation cover an injury sustained while taking medicinal marijuana? If you are injured on-the-job, will BWC pay for medicinal weed?

1.       Will workers comp cover an injury sustained while high?

No. Ohio law creates a rebuttable presumption that any injury sustained while under the influence of pot – medical or otherwise -- was caused by the worker’s own intoxication and therefore not covered. A rebuttable presumption means that the burden of proof shifts to the worker to dis-prove this presumption – an uphill battle. It is safe to assume that most injury claims sustained while under the influence of marijuana will be denied. This is true regardless of whether the marijuana is recommended by a physician.

2.       Will BWC cover marijuana for my work-related injury?

Probably not. In order to get a marijuana prescription, you need a qualifying medical condition. Some conditions – like chronic pain, PTSD, spinal cord injury, and traumatic brain injury – can be work-related. Nevertheless, existing rules provide that drugs covered by BWC are limited to those approved by the FDA and marijuana remains illegal under federal law. Also, BWC-funded prescriptions must be given by a registered pharmacist and medical marijuana will only be dispensed from retail dispensaries.

3.       You can still get fired for the use and possession of medical marijuana.

Under Ohio’s new law, an employer retains the right to fire an employee because if his use, possession or distribution of medical marijuana. This bears repeating: an employer can fire you for using medicinal marijuana. Because the ADA (Americans with Disabilities Act) does not protect individuals currently using illegal drugs, an employee can be fired for using medicinal marijuana.

It goes without saying that using dope while working is a no-no. But these rules ignore one fact: a marijuana user will test positive for days or even weeks after use. Unlike alcohol, valid detection for cannabis cannot determine an approximate degree of impairment. These rules ignore this reality and treat our system of compensating injured workers as a branch of the penal code.

Online Resources for Injured Workers

Not so long ago, to look at your claim file you had to make a written request, wait a few days, and show up in person to your local BWC service office. We’ve come a long way. This blog post will identify a few online resources available to the injured worker and discuss some ways you can use them.

The most obvious resource is Ohio BWC’s website, www.bwc.ohio.gov Once you’ve set up your account (and you should), you’ll have complete access to your entire claim file…and then some. Last week, BWC shut down the website for a few days for some new upgrades.

The newest page is under a tab called “My Claim.” Here you can identify your allowed conditions, the last compensation paid, the last medical bills paid, and obtain the contact information for your BWC claims representative. It also includes links to enable you to print a new ID card, view BWC correspondence, view the claim notes, and view your entire claim file. It is an ideal starting place for information.

Did you know that many forms can be completed online? This can be located under the “Forms” tab:

BWC Forms.PNG

Another useful resource is the Ohio industrial Commission webpage. This page can be used to file or track appeals from hearings:

This page is often the first (and fastest) place to locate the results of your hearing.

I have found that the “Help For Ohio Injured Workers” forum of Workers Compensation Insurance.com is a great place to talk to others going through the same process. I can’t always attest to the validity of the information provided, but it can certainly give you some ideas.

If you can’t answer your questions using these resources, then it may be time to give an experienced attorney a call. Feel free to contact me online or to give my office a call.  

It is a bad time to be injured at work.

A lawyer's group that I subscribe to recently included the following post that I am sure resonates with many who fight on behalf of injured workers. It is entitled "I Had a Bad Day:"

I had a bad day. Long boring story. But made me stop and think. I suspect all of us do this sometimes especially on bad days. It has never been worse for WC claimants and their lawyers. True? Might there be a handful of hearing officers and BWC doctors who try to be fair and objective? Yes. I think so. We all probably know a few. And yes, there are also a handful of defense firms who we respect because they want objective opinions and fairness.

For example, a defense attorney called me recently and alerted me to a situation that enabled me to avoid a premature termination of TT and a possible claim of fraud. Very nice of him to do that. I hope I can return the favor someday. How often does that happen? Unfortunately, we can agree that these doctors and defense firms are the exception. For those of us that have been practicing a long time, we recall better times.

The C-92 percentages are unfair (they used to be predictable and reasonable).

The BWC physician reviews are biased (fair reviewers get axed).

Most DHOs and SHOs are predisposed to look for what’s wrong with a claim. Few truly objective hearing officers remain.

But for the few good ones, the hearing officers seem clueless to their biases and flaws. Is there not an arrogance and obliviousness there?

The light duty job offer trap and voluntary abandonment trap are used every day on unrepresented injured workers to defeat TT. Do others see this your practices? Employers coldly lie to injured workers about these things and get away with it nearly every time. Right? The hearing officers seemingly do not believe these things occur. They accept the employer’s version of facts and overlook the deception practiced on their unsuspecting employees. It’s like the injured worker should have known better.

When the voc rehab folks close a file, the injured worker is often blamed in a culpable way that can later defeat a PTD application. What in the system compels them to do that? This is devastating in many claims. Does this just happen to my clients?

The substantial aggravation requirements are impossible to satisfy in most cases because the requirements are strictly applied (unless the issue is intervening injury – seems like SAPE is easy for employers to use).

IME doctors find that everyone over forty years old has a pre-existing condition in whatever joint of the body is involved with the injury. This situation forces us to advance up to a $1,000 for causal relationship reports.  Either that or we just give up. Am I missing something here or doing something wrong in this area?

There are many more examples of unfairness in the system that any of us could list (unless it’s just my practice that is experiencing these bad things). Every now and then something positive happens.

I handled suicide death claim recently. The facts were compelling. The reviewing psychologist issued a report strongly supportive of the allowance of the death claim. The BWC went back to him TWICE for supplemental reports. He refused to change his opinion. Good for him. The claim was allowed. I have great respect for this psychologist. I doubt that the BWC will use him again anytime soon.

Who can recall a time when it’s been worse? I cannot.

To be fair, there are abuses on our side. Most claimants’ lawyers are good people. There are a few that are sleazy. We know who they are for the most part. And shame on them because they make an already bad situation worse for the rest of us.

Thanks to those who took the time to read this.

BWC Claims Without a Lawyer

We are all familiar with the old proverb that “a man who is his own lawyer has a fool for a client.” A recent case out of Greene County, Ohio demonstrates how true this is with workers’ compensation claims.

In Amara v. ATK Space Systems the injured worker had a back injury in 2005. His BWC claim was allowed. In 2010 he sought to additionally recognize his claim for the additional condition of “disc herniation L4-5.” When this request was denied, he filed an appeal to the Greene County Court of Common Pleas. He did this all without a lawyer.

His case lingered on until 2013 when he failed to appear for court-ordered mediation or to respond to the Court’s request for an explanation as to why his case should not be dismissed. This was all repeated in 2014. In 2015 he sought to transfer venue to a Michigan U.S. District Court arguing that extensive pre-trial publicity would make it impossible to seat an impartial jury. Again, the Court dismissed his case. The injured worker appealed.

Ohio Revised Code § 4123.512 establishes jurisdiction of the injured workers’ claim in Ohio common pleas court. It is not possible to remove a case to another state. Moreover, since the injured worker’s case was dismissed “without prejudice,” he still retains the ability to refile in Greene County and ultimately have a jury decide its’ outcome…so long as he follows the right procedure.

This case has languished in and out of court for five years. Had the injured worker retained counsel, it is likely that this could have been resolved years ago. Workers’ compensation claims are complicated legal matters. Both the BWC and the employer have lawyers, and so should you.

Cost Shifting in Workers’ Comp a Concern

Workers Compensation began over 100 years ago with a simple premise: If workers gave up their right to a jury trial then employers would insure injuries regardless of fault. This is what is known as the “Compensation Bargain.”

100 years later, this Bargain has been broken. Seasoned attorneys know that politicians permit employers to use questionable tactics to limit exposure. The “neutral” decision maker in Ohio is the Industrial Commission. Sadly, this political agency hires decision makers who permit employers to purchase negative opinions from medical examiners. By paying a grand or two to purchase an “IME” opinion, an employer can save tens of thousands or more in medical expenses.

Sadly, these political operators fail to recognize the ultimate cost of this betrayal. When they deny medically necessary treatment the injured worker is left with no choice but to pursue other sources for care. These include health insurance, Medicare or Medicaid. Ironically, the Affordable Care Act limits the ability of health insurers to refuse payment for worker’s comp caused pre-existing conditions. This “cost-shifting” means that we all pay (as increased group health premiums and taxes) for medical expenses that should have been paid through the employer’s workers’ comp coverage.

OSHA issued a report in 2015 entitled “Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job.” This report found that workers’ compensation payments cover only a small fraction (about 21%) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63% of these costs, with taxpayers shouldering the remaining 16%.

The Center for Economic Policy Research made a similar finding. The number of workers receiving Social Security Disability Insurance (SSDI) in the United States has gone from 25 per thousand in 1990 to 59 per thousand in 2014, bringing the SSDI trust fund close to depletion. Their report, entitled “Rising Disability Payments: Are Cuts to Workers Compensation Part of the Story?” found that more than one fifth of the rise in the percentage of workers receiving SSDI awards can be explained by cuts to workers’ compensation programs.

Work related injuries should be paid for through employer sponsored workers’ compensation insurance. This enables an employer to factor premiums into the price of goods and services. Sadly, the routine denial of coverage shifts these costs to health insurance and taxpayers at a cost to us all.

Volunteer service while receiving workers’ compensation temporary total disability?

According to the National & Community Service Corp., 63 million people volunteer a total of 7.9 billion hours of community service each year. This raises an interesting question: should you perform volunteer work while receiving workers’ compensation temporary total disability?

One does not need to be completely, utterly and abjectly helpless to qualify for disability. In order to receive temporary total compensation, one must be temporarily unable to return to the job held at the time of injury. Thus, the same shoulder sprain that would render a custodian disabled might not render someone like me – an attorney who performs desk work – disabled.

My colleagues recently discussed the advice to give to an injured worker on temporary total who wished to participate in a volunteer program teaching children to read. In exchange for their service, the volunteer received a stipend of $640 per month.

The consensus was to discourage participation. Every injured worker who receives temporary total completes a “C-84 Request for Temporary Total Compensation.” This form requests the worker to report all earnings “…to include full or part time, self-employment, including income-producing hobbies or commission work.” Obviously, even a small amount of volunteer or hobby income can produce a red flag inviting scrutiny. Thus, even a small amount of remuneration can jeopardize the injured workers’ compensation.

But what about volunteer service with no stipend? Even that can create issues. The Ohio Supreme Court has suggested that the demonstration of an ability to engage in activity that “could” be income producing may be enough to render an injured worker ineligible. State ex rel. Schultz v. Indus. Comm. 96 Ohio St.3d 27, 2002-Ohio-3316.

It is better to be safe than to risk losing your source of income. It is better to think twice and seek legal advice before performing even volunteer service while receiving disability compensation.

 

Win your claim or lose your job? UPDATE

In May of 2015 I wrote an amicus brief on behalf of the Ohio Association for Justice in the matter of Onderko v. Sierra Lobo, Inc. The issue: Can an employee sue for retaliation if terminated following the denial of a workers’ compensation claim? The Ohio Supreme Court’s answer is yes from a decision released last week.

In this case the plaintiff filed a claim for workers’ compensation benefits. At various levels of appeal his claim was denied, then allowed, then ultimately denied. Then, he got fired. There was no question that he was fired for pursuing workers’ compensation benefits. Yet, the employer asserted that his retaliation claim should fail because his workers’ compensation claim got denied.

Writing for the majority, Justice O’Neill stated, “…Interpreting the statute to prohibit retaliation against only those workers whose claims have been allowed misses the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from their employers…”

One can only imagine the consequences of a “win your claim or lose your job” type of setup. Some claims are not clear cut. A decision to deny a claim is merely a finding that the claimant failed to meet his or her burden of proof. A claim denial is not tantamount to fraud.

Injured workers can abandon the pursuit of their claims for a variety of reasons. They can grow anxious over the prospect of participating in unfamiliar legal proceedings where their veracity is repeatedly called into question. They can grow frustrated over the loss of more and more time from work to attend hearings and deposition. They can also, perhaps, grow fearful that their continued pursuit of their claim will cause their employer to manufacture a pre-textual basis for discipline and/or termination. The decision to abandon even a meritorious claim is even more likely in cases like this one where the time lost from work was very minimal.

An employee’s right to file a workers’ compensation claim is not protected if an employer can directly or indirectly intimidate the worker not to file a claim. I am grateful for the opportunity given to me by the Ohio Association for Justice to defend this right.

The Ohio Supreme Court announces decision in Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027.

The Ohio Supreme Court announces decision in Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027.