What Does Ohio Workers’ Compensation Insurance Cover?

According to the Ohio Bureau of Workers’ Compensation, “Ohio law requires employers with one or more employees to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities associated with work-related accidents or occupational diseases.”

“Employers” include private companies, schools, healthcare facilities, state and local government agencies, and employment agencies. Individuals who are self-employed can also carry a workers’ comp policy on just themselves. This can make sense for people who do general contracting like carpentry or plumbing, as well as people who spend a lot of time driving to meet clients and customers. The risk for suffering an injury that keeps a self-employed person from working should drive the decision to carry workers’ compensation coverage.

Most employers purchase coverage through the Ohio State Insurance Fund, but some can qualify to be self-insured. A self-insured employer must prove each year that it can provide the same level of coverage for injured or ill employees that the workers’ comp plan offered by the state does.

Employers pay the premiums for Ohio workers’ compensation coverage, and an individual who suffers a work-related injury or who develops an occupational illness can apply for the following benefits:

  • Payment of medical and therapy bills related to the coverable injury or illness
  • Replacement of wages at up to two-thirds of their regular pay for the time spent off the job recovering
  • Lump-sum payments for specified injuries such as an amputation, loss of an eye or permanent hearing loss
  • Financial support for retraining or wage supplements for taking a lower-paying job after becoming able to work again

Coverage is available on a no-fault basis, meaning the injured or ill employee does not need to show that their employer or some other party was negligent in any way. Coverage is also available for any medically documented injury or illness that is work-related. Employers and the Bureau of Workers’ Compensation can challenge whether an injury or illness is work-related. Also, coverage can be denied if evidence exists to show that the condition was self-inflicted or incurred while the employee was intoxicated.

Most people who qualify to receive workers’ compensation benefits in Ohio will have their medical bills paid and their lost wages replaced. Consulting with a knowledgeable and experienced Columbus workers’ comp attorney will make it clear whether applying for additional types of coverage is justified.

A final thing to know about Ohio workers’ compensation coverage is that it can provide compensation and coverage for long and short-term injuries. However, certain long-term disability issues are best covered by another program like Social Security, a pension plan or a private insurance policy. You should contact an Ohio workers’ compensation attorney to discuss which is better for you. Attorneys with Barkan Meizlish, LLP, are available to answer all your questions regarding workers’ compensation insurance in Ohio, You can call our Columbus offices at (614) 221-4221 or schedule a free consultation online.

Can My Employer Fire Me for Filing a Workers’ Comp Claim in Ohio?

In a word, no.

In reality, it happens.

Federal and state laws make it illegal for businesses and their managers to punish employee who file claims for workers’ compensation benefits, Still, injured or ill employees do have reasons to worry about retaliation in the workplace in Ohio. When it occurs, the affected employee has rights under the whistleblower provisions of laws like the Occupational Safety and Health Act to seek a workers’ comp retaliation settlement.

How to Recognize Workplace Retaliation

Companies do not like being named in workers’ comp claims. In addition to driving up insurance costs, reports of workplace accidents require investigations that leave companies open to regulatory penalties and requirements to change the way a business operates. Too often, anger and frustration at such consequences gets illegally redirected toward the employee who suffered and called attention to unsafe working conditions.

Workers’ comp retaliation takes many forms. An employee who returns to work after filing a claim can face

  • Firing;
  • Demotion;
  • Pay and benefits cuts;
  • Reassignment to a dirty, dangerous, or low-status job;
  • Insults and bullying; and/or
  • Physical assaults.

What to Do When Retaliation Occurs

It is not always obvious how to prove that retaliation in the workplace is directly related to seeking workers’ comp benefits. Consulting with a trusted member of the HR team member or a concerned supervisor to clarify what is happening can be a good first step. It is also important to document actions that feel or are identified as retaliatory. At some point, speaking confidentially with an employee’s rights attorney will provide some peace of mind and insight on how to end the retaliation or hold the employer accountable for allowing retaliation.

A workers’ comp retaliation settlement typically includes compensation for back pay, front pay and emotional distress. If a case goes to trial, a jury is also empowered to award punitive damages and to order the defendant to pay the employee’s attorney fees. Punitive damages are noncriminal fines that are intended to penalize wrongdoing and serve as an example to other companies that might mistreat people who apply for workers’ comp benefits.

Several attorneys with Barkan Meizlish, LLP, devote themselves to assisting their fellow Ohioans with securing workers’ comp benefits. These lawyers, who work out of each of our offices in Columbus, Cleveland, and Marietta, offer free consultations throughout the state and take appointments online. Employees with concerns about violations of their rights can also get answers by calling (614) 221-4221.

TAKE ACTION: Protect Workers Compensation for Undocumented Workers

The Ohio House recently passed, and the Ohio Senate is now considering legislation that would deny workers compensation benefits to undocumented workers who are seriously injured on the job.  The bill would also limit undocumented workers access to the courts for injuries suffered on the job. This bill is bad for all Ohio workers, and will work against those employers who comply with the law. If this bill passes, it will reduce the incentive for companies to provide safe conditions for its workers—and serious injuries among Ohio workers in the most dangerous industries will increase.

Review Does Not Mean Reweigh

Recently, in State ex rel. Turner Constr. Co. v. Indus. Comm., 142 Ohio St.3d 310, 2015-Ohio-1202, an employer requested a writ of mandamus that would compel the Industrial Commission to vacate an order of permanent-total disability compensation to a former employee.
In this case, the employee had several previous workers’ compensation claims, but only a claim from 2007 had allowed psychological conditions. In 2011, the employee applied for permanent-total disability compensation based off the psychological condition alone. This request was supported by medical, and approved by the Industrial Condition.
The employer filed a complaint for a writ of mandamus, but this was denied, as the Court of Appeals concluded that there was not an abuse of discretion. The employer appealed, and requested mandamus to determine whether the entire award should be granted under the 2007 claim, or spread amongst other claims. The court denied this mandamus request, because it is not the role of a reviewing court to assess the credibility of the evidence. State ex rel. Pass v. C.S.T. Extraction Co.. 74 Ohio St.3d 373, 376, 658 N.E.2d 1055 (1996).
Thus, so long as the commission’s order is supported by some evidence, there is no abuse of discretion and a court must uphold its decision. Id. Because the commission based its decision to approve the permanent total disability application based off the medical relating to the psychological condition, which was only allowed in the 2007 claim, the Court determined that the employer was not entitled to the extraordinary relief in mandamus.

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Retaliation and Workers’ Compensation

The Ohio Revised Code states that no employer shall discharge, demote, or take any punitive action against an employee because the employee filed a workers’ compensation claim. R.C. 4123.90. The elements of a retaliatory discharge require an employee to prove that (1) they were injured on the job; (2) the employee filed a claim for workers’ compensation benefits; and (3) that the employee was discharged in contravention of R.C. 4123.90. Once the employee establishes each of these elements, the burden shifts to the employer to articulate a legitimate and nondiscriminatory reason for terminating the employee.

In a recent case, the Court of Appeals of Ohio granted an employer’s Motion for Summary Judgment, because the employee was unable to sufficiently prove that the employer was aware that a workers’ compensation claim had been filed prior to the employee’s termination. In Dragmen v. Swagelok Co., 2014-Ohio-5345 (2014), the employee injured himself while failing to follow the employer’s standard safety procedures. As such, he was placed in a work safety program to stress the importance of following safety procedures, and warned that repeat or additional violations could constitute further discipline, including termination. Id. at ¶8. The employee also filed a workers’ compensation claim, but did not inform his supervisors, and instead filed the claim through the employer’s third party administrator.

Three weeks after being placed in the employee safety program, the employee had a disagreement with a co-worker, which resulted in the employee pulling a chair out from underneath his co-worker. Id. at ¶ 10. The employee was terminated, and he filed a suit alleging that he was fired in retaliation for filing a workers’ compensation claim. The employer filed a Motion for Summary Judgment, which was granted, because there was no evidence that the employee’s supervisors who made the decision to fire him were aware that the employee filed a workers’ compensation claim. Id. at 20.

Thus, “To be liable for retaliating against an employee for taking part in a protected activity, the employer must have knowledge of it.” Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261 at ¶22. Moreover, even though circumstantial evidence can establish knowledge, it is not enough for an employee to simply assert that their employer’s supervisors generally have knowledge of the charges filed by employees. Id. As such, an employee must prove that their employer knew of their workers’ compensation claim, and fired them as a result of it in order to have a valid retaliation claim.

Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-5345.pdf
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Temporary Total Disability & Voluntary Abandonment

Recently, the 10th Appellate District of the Court of Appeals of Ohio released a favorable decision for an injured worker who was determined to reach Maximum Medical Improvement (“MMI”) for his physical conditions, but not his allowed psychological conditions. In Cummins v. Lee, 2014-Ohio-5296 (2014), an employee was shot in the back during an attempted robbery while in the course of his employment. The employee suffered very serious physical and psychological problems as a result of the incident.

In this case, the physical conditions were determined to be “MMI” on January 25th 2009. However, on October 29th 2009, the employee’s workers’ compensation claim was allowed for post-traumatic stress disorder (“PTSD”), and he filed for Temporary Total Disability Compensation (“TTD”) which was granted. A significant gap in treatment followed, until the employee attempted to reinitiate treatment for his PTSD years later with his doctor.

Upon reinitiating treatment, the employee filed for TTD and was denied due to the lack of treatment, and alleged voluntary abandonment of his job. The employer argued that because he never returned to the workforce after February 27th 2010, the employee had voluntarily abandoned his position (the employer cited to Eckerly v. Indus. Comm., 105 Ohio St.3d 428 (2005)). However, the Court of Appeals determined that Eckerly did not apply, as the employee’s industrial injury had removed him from his job, as opposed to his own voluntary abandonment. As such, the Court issued a writ of mandamus ordering the commission to vacate its order, which denied the employee TTD and to re-determine whether or not relator is entitled to an award of TTD.

Thus, it is important to contact an attorney, should you have questions about temporary total disability compensation, voluntary abandonment, or any other issues regarding workers’ compensation. For more information, please see the Court of Appeals decision cited below.

Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-5296.pdf
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Traveling Fixed-Situs Employees?

Is an employee who travels to different job sites on a daily basis a fixed-situs employee subject to the “coming and going rule” for the purposes of determining whether he or she is entitled to workers’ compensation? If so, does the “special hazard exception” apply? Recently, in Palette v. Fowler Electric Co., 2014-Ohio-5376 (2014), the 11th Appellate District determined that they would be subject to the “coming and going rule” and the “special hazard exemption would not apply. Id.

A fixed-situs employee is one who commences his or her substantial employment duties only after arriving at a specific and identifiable workplace designated by his employer. Barber v. Buckey Masonry & Constr. Co., 146 Ohio App.3d 262, 269 (11th Dist. 2001). “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite casual connection between the injury does not exist.” MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66 (1991). This is referred to as the “coming and going” rule, and it is used to determine whether an injury suffered in an auto accident occurs in the course of and arising out of the employment relationship. Ruckman v. Cubby Drilling, Inc. 81 Ohio St.3d 117, 120, 689 N.E.2d 917 (1998).

In Palette, the employee worked as an electrician and was injured in an auto accident while driving a company car from his home, to a supply house, before going to the company office for a weekly meeting. Id. at ¶10. Here, the Court determined that because the employee did not commence his substantial employment duties until after arriving at a specific and identifiable work place, he was considered a fixed-situs employee. Palette at ¶30. Moreover, the Court determined that the “special hazard exception” to the “coming and going” rule did not apply, as his travel on the date of the accident did not create a risk that was distinctive or greater in nature than risks to the greater public. Ruckman, 81 Ohio St.3d 117 at paragraph two of the syllabus.

For more information on Palette and other cases, please see:  http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-5376.pdf.

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Scheduled Loss for Your Limbs

Losing the use of a body part, no matter how big or small can have a great impact on a person’s life. In order to compensate a claimant for such scheduled losses,  R.C. 4123.57(B) assigns specific values depending on the extent of the injury. For example, the loss of the third or distal phalange of any finger is considered equal to the loss of one-third of a finger, but the loss of the middle or second phalange of any finger is considered equal to the loss of two-thirds of the finger.

When the statute was originally written, amputation was the only compensable loss. State ex rel. Meissner v. Indus. Comm., 94 Ohio St. 3d 203, 205 N.E.2d 618 (2002). Later, the rule evolved to recognize the loss of use of a body part without amputation where an injury involved paraplegia. State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 2011-Ohio-530, 943 N.E.2d 541, ¶ 10. Finally, in State ex rel. Alcoa Bldg. Prods. V. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, the court held that a claimant may qualify for loss of total use when the body part retains some residual function if the claimant can demonstrate a total loss of use for all practical purposes with medical evidence. Id.

Recently in State ex rel. Varney v. Indus. Comm. Slip Opinion  No. 2014-Ohio-5510, the Ohio Supreme Court denied an injured worker’s claim for total loss of use of three fingers, as 50% loss of use of the hand had previously been awarded. Moreover, a physician opined that there was some residual functional use of the fingers.  Thus, unless there is medical evidence that there has been a total loss for all practical purposes, the scheduled loss in R.C. 4123.57(B) will not apply.

More Information:



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How do Workers’ Compensation Payments Affect My Disability Benefits?

Disability payment you receive from workers’ compensation and/or another public disability payment may reduce you and your family’s Social Security benefits.

Your Social Security disability benefit will be reduced so that the combined amount of the Social Security benefit you and your family receive plus your workers’ compensation payment and/or public disability payment does not exceed 80 percent of your average current earnings.

A workers’ compensation payment is one that is made to a worker because of a job-related injury or illness. It may be paid by federal or state workers’ compensation agencies, employers, or insurance companies on behalf of employers.

Public disability (PDB) payments that may affect your Social Security benefit are those paid under a federal, state, or local government law or plan. A PDB is not usually based on a work-related disability. They differ from workers’ compensation because the disability that the worker has may not be job-related. Examples are civil service disability benefits, military disability benefits, state temporary disability benefits, and state or local government retirement benefits which are based on disability.

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