Types of Compensation
There are various forms of compensation payable under the Workers’ Compensation
Law. Below is a general overview of some of the different types of compensation
that may be paid in a claim.
Average Weekly Wage & Full Weekly Wage
Temporary
Total Disability Compensation, ORC §4123.56(A)
Permanent
Partial Impairment (PPI), ORC §4123.57
Wage Loss Compensation, ORC
§4123.56(B)
Violation of a Specific
Safety Requirement
Permanent Total
Disability Compensation, ORC §4123.58
“Statutory” Permanent Total Disability Compensation, ORC §4123.58(C)
Death Benefits, ORC §4123.59
Relation of Workers' Compensation to Other Disability Retirement Programs
Average Weekly Wage & Full
Weekly Wage
In every workers’ compensation claim, before any compensation can be paid, the
Bureau of Workers’ Compensation (“BWC”) or self-insured employer must determine
the injured worker’s average weekly wage (“AWW”) and full weekly wage (“FWW”).
The AWW is the average of the earnings the injured worker received in the
one-year period immediately before the industrial accident. The FWW is the
average of the 6 weeks of earnings the injured worker received immediately
before the industrial accident.
These are the general methods used to calculate the AWW & FWW. There are
alternative methods the BWC and self-insured employer may employ to calculate
wages based on principles of “substantial justice.” It is generally the injured
worker’s responsibility to articulate the basis for a deviation from the
standard AWW & FWW calculations.
The workers’ compensation law places a maximum rate at which compensation may be
paid. The maximum rate is calculated yearly and is based upon a percentage of
the Statewide Average Weekly Wage of all workers in Ohio. For 2006, $704.00 is
the weekly maximum rate that may be paid for temporary total disability
compensation (“TTD”), wage loss compensation (“WL”), living maintenance
compensation (“LM”), living maintenance wage loss compensation (“LMWL”), and
permanent total impairment (“PTI”) compensation.
Temporary
Total Disability Compensation, ORC §4123.56(A)
One of the most important features of the Ohio Workers’ Compensation Law is the
form of benefit known as temporary total disability compensation (“temporary
total”). This is the first benefit workers receive when they are removed from
the workplace due to an injury. Temporary total disability compensation is
designed to remedy the economic loss experienced when the worker is incapable of
performing his/her former position of employment.
As the name implies, the disability is “temporary” because the injured worker is
expected to recover from his/her injuries. The disability is no longer
considered temporary when the attending physician certifies the worker is
capable of returning to employment or when the physician states the injury has
reached maximum medical improvement (“MMI”). Likewise, the disability is “total”
because the worker is not physically able to continue working in any capacity
due to the industrial injury.
Unfortunately, temporary total compensation does not pay the injured worker at
his/her full base rate. Instead, for the first 12 weeks of temporary total
disability, the injured worker is paid at a rate of 72 percent of his/her FWW,
subject to the Statewide maximum rate for the year of injury. For the 13th week
of disability and beyond, the injured worker is paid at a rate of 66 2/3 percent
of his/her AWW, subject to the Statewide maximum rate for his/her year of
injury.
For injured workers who have received temporary total compensation a consecutive
period of 90 days, the Bureau of Workers’ Compensation and/or the employer may
order the injured worker to undergo a medical examination with a physician of
their choice to determine whether the injured worker has reached MMI. Maximum
medical improvement is a treatment plateau at which no fundamental functional or
physiological change can be expected with reasonable medical probability in
spite of continuing medical or rehabilitative procedures.
Once temporary total disability has been awarded, as long as the attending
physician has continued to certify temporary total disability, the BWC and/or
employer must request the Industrial Commission of Ohio hold a hearing in order
to terminate temporary total compensation. At the hearing, all parties are
permitted to testify and present evidence in support of their respective
positions. After the hearing, the Industrial Commission mails the hearing
officer’s Order to all the parties and their representatives. The losing party
has the opportunity to file an appeal from the Order.
Temporary total compensation is not payable for the first 7 days of total
disability, unless the injured worker is of work at least 14 consecutive days.
This is the so-called “one week waiting period.” If the injured worker is off
work 10 straight days, for instance, the injured worker would receive temporary
total compensation for 3 days only. However, if the injured worker is off work
for 14 or more straight days, then the one-week waiting period does not apply
and the injured worker is entitled to be paid for every day of missed work.
If the BWC or self-insured employer denies temporary total compensation, the
injured worker has the right to a hearing before the Industrial Commission of
Ohio. There are many reasons why temporary total may be contested. For instance,
the C-84 may be faulty; the injured worker may have a pre-existing condition
which is independently disabling; the injured worker may have sustained an
intervening or superseding injury unrelated to work; the injured worker may have
“voluntarily abandoned” his/her employment; the injured worker may have rejected
the employer’s offer of alternative suitable employment within the attending
physician’s restrictions (such as transitional work); or any number of other
reasons. Ultimately, the injured worker bears the burden of proving his/her
entitlement to temporary total compensation.
Permanent
Partial Impairment Compensation, ORC §4123.57
Once 40 weeks have passed from the later of the date of injury, or the date of
last payment of temporary total or wage loss compensation, the injured worker
may pursue a permanent partial impairment (“permanent partial”) award. This
award is intended to compensate the injured worker for an impairment of earning
capacity due to the industrial injury. Once the application for permanent
partial impairment is filed with the Bureau of Workers’ Compensation, the
customer service specialist schedules the injured worker for a medical
examination with a physician of the BWC’s choice. The BWC physician then issues
a report as to the injured worker’s whole person impairment using the American
Medical Association’s (“AMA”) Guides to the Evaluation of Permanent Impairment,
Fifth Edition. The BWC thereafter issues a Tentative Order, to which the parties
may file written objections. If objections are filed, additional medical
evidence must be obtained, as the Industrial Commission of Ohio will schedule
and hold a hearing to determine whether the additional medical evidence warrants
an increase or decrease from the BWC’s Order. An additional appeal is permitted
from the Industrial Commission’s Order.
Wage Loss Compensation, ORC
§4123.56(B)
Wage loss compensation is available to injured workers who are capable of
working but, due to certain medical restrictions based on the allowed conditions
in the claim sustain a wage loss after they have returned to work or while they
are engaged in a good faith effort to find alternative suitable employment
within their medical restrictions.
There are two (2) forms of wage loss compensation: (1) working wage loss
compensation and (2) non-working wage loss compensation. To qualify for working
wage loss compensation, the injured worker must be earning less than his/her
average weekly wage. The wage loss must be attributable to the restrictions
imposed by the physician of record and the employment which is deemed “suitable”
based on the injured worker’s experience, skills, and other factors.
Wage loss compensation is generally not available to workers who sustain a loss
in earnings due to a “lifestyle choice,” such as beginning or operating their
own business, or working at less than a full-time basis. Non-working wage loss
compensation is available to injured workers who are engaged in a full-time
effort to find suitable employment within their restrictions, but who are unable
to secure employment. These injured workers must keep meticulous records of
their job search efforts, as the Bureau of Workers’ Compensation and
self-insured employers invariably scrutinize the list of contacts. It is common
for employers to telephone the places the injured worker said he/she applied for
employment in order to determine (1) whether the job search was indeed made and
(2) whether the search was truly “in good faith.” For instance, applying for a
job outside of one’s medical restrictions is not “in good faith.”
Wage loss compensation is paid at a rate of 66 2/3 the difference between the
injured worker’s average weekly wage and his/her present earnings. The maximum
wage loss rate for 2006 is $704.00 per week. The maximum duration an injured
worker may receive wage loss compensation is 200 weeks.
Permanent Partial “Scheduled Loss” Awards, §ORC
4123.57(B)
If the injured worker sustains a loss or “loss of use” of certain body parts due
to the industrial accident, he/she may be eligible for an additional permanent
partial award. This award is called a “Paragraph B” or “scheduled loss” award
because the workers’ compensation law specifically identifies the loss or loss
of use of certain body parts in a “schedule” contained within the statute, ORC
§4123.57(B). For each body part “lost,” the statute
assigns a certain number of weeks to pay the injured worker. For instance, the
loss or loss of use of a hand in a 2006 claim equals 175 weeks of compensation
multiplied by the 2006 maximum weekly rate of $704.00.
Violation of a Specific
Safety Requirement
An injured worker may be entitled to an additional award if the employer
violates a specific safety requirement (“VSSR”) enacted for the protection of
the life, health or safety of employees. Article II, Section 35 of the
Constitution of the State of Ohio provides the legal authority for the
Industrial Commission of Ohio to grant an additional VSSR award. A VSSR award is
in addition to other forms of compensation and is considered to be a “penalty”
assessed against the employer. The Industrial Commission has discretion to
determine the amount of the award, but the award may not be greater than 50% nor
less than 15% of the maximum award established by law for the year of injury.
Permanent
Total Disability Compensation, ORC §4123.58
If the industrial injury permanently prevents the injured worker from performing
all forms of sustained remunerative employment, he/she is eligible for permanent
total disability compensation. The Industrial Commission of Ohio adjudicates
applications for permanent total compensation and addresses two (2) primary
issues: First, what, if any, are the injured worker’s residual functional
physical and/or psychological limitations based upon the allowed conditions in
the claim? Second, do the non-medical disability factors (such as age,
education, previous work history, and capacity to retrain or learn new skills)
permanently preclude the injured worker from obtaining all other forms of
sustained remunerative employment, not only the injured worker’s previous type
of work?
Once granted, permanent total compensation continues for the remainder of the
injured worker’s life. However, the BWC and/or self-insured employer have the
right to determine whether subsequent acts warrant the termination of permanent
total compensation. If a motion to terminate permanent total compensation is
filed, the Industrial Commission of Ohio schedules the matter for hearing.
“Statutory” Permanent Total Disability Compensation, ORC
§4123.58(C)
If an injured worker sustains a loss of two or more specified body parts (for
example, the loss of a hand and a foot), he/she is entitled to receive
“statutory” permanent total disability compensation for the remainder of his/her
life, regardless of whether he/she is otherwise capable of working, or is
working.
Death Benefits, ORC
§4123.59
The dependents of an employee who dies as a result of an industrial accident, or
who dies as a result of allowed medical conditions in an existing workers’
compensation claim, are entitled to death benefits. The right of the dependents
to pursue death benefits is independent of the rights of the deceased employee.
For instance, if the employee died as a result of a myocardial infarction (heart
attack), and he/she had a workers’ compensation claim previously allowed for
myocardial infarction, the dependents would be entitled to death benefits even
if the employee had previously settled his/her workers’ compensation claim with
the Bureau of Workers’ Compensation or self-insured employer.
Relation of BWC Compensation to Other Disability Retirement Programs
Police officers who retire under the Police & Fire Disability Pension Fund are
generally eligible for all forms of workers’ compensation in addition to their
Police and Fire benefits. Likewise, non-police City of Columbus employees who
retire under the Public Employees Retirement System (“OPERS” or “PERS”) are
still eligible for workers’ compensation benefits. The same applies to Ohio
state troopers and deputy sheriffs.
Individuals who receive Social Security Disability benefits are entitled to also
receive workers’ compensation benefits. However, the Social Security
Administration does calculate an offset of benefits when the claimant
concurrently receives workers’ compensation.
The above information is intended solely as an overview. It is advisable to
contact an attorney to assess the merits of your individual claim. Please call
us at
800-362-1674 to discuss the specifics of your case.
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