Workers Compensation

Q. Is the workers‘ compensation system an injured worker’s only source of remedy for a work-related injury?

A. Generally yes. When a worker suffers an injury within the course of and arising out of his or her employment, the exclusive remedy is within the workers’ compensation system. However, the Ohio Supreme Court has carved out limited exceptions which allow an injured worker to recover damages both through the workers’ compensation system and directly from the employer. For more information on this process, please see the Intentional Torts and VSSR sections below.

Q. Who needs workers’ compensation coverage?

A. If you have any employees, you must have workers’ compensation coverage in the State of Ohio. If you own a sole proprietorship, you have the right to elect to have a BWC policy to cover yourself. BWC coverage is probably the least expensive form of insurance that you will ever own. The rates are based upon the type of business performed by the employer and the gross wages of covered employees.

Q. Do I still need coverage if I own my own business?

A. Individuals who are incorporated (with no employees), owners of sole proprietorships, and partners in a partnership are not considered employees and have the option of electing whether or not to purchase supplemental coverage for themselves. Any other business entity, including a corporation, that has employees must have workers’ compensation coverage in Ohio pursuant to O.R.C. section 4123.01.

Q. What benefits are provided by having BWC coverage?

A. BWC coverage first and foremost is required by law. There is further benefit to an employer having coverage if a work-related injury occurs to an employee, since the injured worker’s medical bills for treatment of the allowed conditions, temporary total disability benefits for lost wages, and other benefits will be paid directly by the BWC with no co-payment by either the employee or the employer. The injured worker cannot sue the employer for causing a work-related injury unless there has been an intentional tort. Further, an injured worker’s sole remedy in the event of a work-related injury is workers’ compensation benefits. Call our office if you have any questions regarding protection afforded to an employer who has coverage or the limited exceptions that apply.

Q. What is the result of having an employee injured at work if I do not have BWC coverage?

A. The claim will be processed just as if coverage was in place. The BWC will pay all appropriate benefits to the claimant. The BWC, through the Office of the Ohio Attorney General, will then seek to recover the costs of the claim from the “non-complying employer” dollar for dollar, plus a penalty. Our office can assist non-complying employers seek retroactive coverage, claim forgiveness, or a reasonable settlement with the BWC.

Q. What is meant by certifying a claim?

A. An employer has the right to certify or reject a claim that is filed by an employee. By certifying a claim, the employer is indicating that they agree that the facts set forth on the claim application are correct to the best of their knowledge and belief. Rejection of the claim means that the employer is not in agreement with the facts as reported. Regardless of whether the employer certifies or rejects the claim, the BWC will make an independent determination as to the validity of the claim and issue an order accordingly to both the claimant and the employer. Our office can answer any questions you may have if you are unsure whether you should certify or reject a claim. Keep in mind, there is very limited time in which to certify or reject a claim.

Hearing and Appeal Process

Q. Can an order of the BWC be appealed?

A. An appeal may be timely filed by either the claimant and/or the employer from an order of the BWC. The issue on appeal will then be heard by a District Hearing Officer of the Industrial Commission, who will issue an order following a hearing at the Industrial Commission office.

Q. Do I need an attorney to represent me at hearings before the Industrial Commission?

A. Both the claimant and the employer have the right to legal representation at hearings before the Industrial Commission and may introduce any and all medical and factual evidence that they deem appropriate. Although the parties are not required to have legal representation, only attorneys have the right to question witnesses, comment upon the evidence, and make legal arguments at hearings. Call our office if you think you may need an attorney, and we can discuss what we can do to ensure you receive the best representation possible in a cost-effective manner.

Q. Can an appeal be filed from the District Hearing Officer order?

A. The claimant and/or the employer may timely file an appeal if they are not satisfied with the decision of the District Hearing Officer. The appeal will then be heard by a Staff Hearing Officer at the Industrial Commission office. The parties may introduce new evidence, and their attorneys may again question witnesses, comment upon the medical and factual evidence, and make legal arguments.

Q. Can a further appeal be filed from the Staff Hearing Officer order?

A. Yes. Unlike the appeal to the Staff Hearing Officer, which is an appeal of right, the appeal from the Staff Hearing Officer order is a discretionary appeal to the Industrial Commission itself. The Commissioners will decide if a further hearing is appropriate. The large majority of appeals to the Industrial Commission are rejected without further hearing.

Q. Can a decision of the Commissioners of the Industrial Commission be appealed?

A. Only certain issues can be appealed to a court of common pleas, specifically those decisions that affect the claimant’s right to participate in the BWC program, and only in the county where the alleged injury was sustained. Generally, decisions regarding treatment and extent of disability are not appealable into court. Since strict time deadlines apply for the filing of any appeal, speak to our attorneys as soon as possible if you are unsure whether to file an appeal from an order of the Industrial Commission.

Claims Management and Cost Reduction

Q. How can I lower my company‘s workers’ compensation premiums?

A. First and foremost, keeping the workplace safe for all employees and avoiding injuries is the best way to keep premiums low. The BWC offers different rating programs, including base rating, experience rating, group rating, and self-insurance, any of which may best-fit your organization depending upon your company’s size and type of business. The BWC also offers various discount programs and incentives for which your company may be eligible. Our attorneys can discuss with you whether your company is eligible for the various rating programs and discounts.

Q. Once a claim is filed or allowed, what will happen to my company’s premiums?

A. A claim’s impact on premiums can be minimal, or it can be devastating, depending on several factors, including the severity of the claim, the company’s rating program, the “max value” assigned to the employer’s policy, and the employer’s eligibility.

Intentional Torts

Q. What is an intentional tort?

A. Within the context of the employer-employee relationship, an intentional tort lawsuit may be filed when an employee alleges that he or she was injured as a result of something that the employer knew, or reasonably should have known, would cause an injury. An injured worker may file an intentional tort lawsuit even if he or she has filed for and is receiving workers’ compensation benefits.

Q. What must an injured worker prove in order to prevail in an intentional tort lawsuit?

A. The Ohio Supreme Court has established a three-prong test to determine if an intentional tort has occurred. The injured worker must prove:

1. Knowledge by the employer of the existence of a dangerous process, procedure, instrumentality, or condition within its business operation;
2. Knowledge by the employer that if the employee is subjected by his or her employment to such a dangerous process, procedure, instrumentality, or condition, then harm to the employee will be a substantial certainty; and
3. That the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.

Q. What is the effect of an intentional tort upon an employer?

A. If an injured worker succeeds in demonstrating the above-referenced three-prong test, the employer is treated by law as if it, in fact, desired to produce the resulting injuries. Thus, a successful intentional tort lawsuit can have devastating effects upon an employer. Most insurance carriers refuse to provide coverage in defense of this type of litigation, leaving the employer to defend and pay for any settlement or judgment entered by the Court.

Q. What is a VSSR?

A. Every employer in Ohio must provide a safe workplace and comply with all specific safety requirements set forth in the Ohio Administrative Code. An injured worker who believes his or her injury was the result of an employer’s violation of a specific safety requirement set forth in the Administrative Code may apply for an additional award of compensation against the employer.

Q. Is a claimant eligible for an additional award of compensation if his/her employer is in violation of a specific safety requirement?

A. A claimant is eligible for an additional award if the conditions allowed in the claim are the result of the employer’s violation of a specific safety requirement. It is the responsibility of every employee in Ohio, however, to properly use all safety equipment supplied by his/her employer.

Q. What is the potential exposure for an employer in violation of a specific safety requirement?

A. The additional award will be no less than 15% and no more than 50% of the maximum weekly compensation rate paid over the life of the claim. Further, the Industrial Commission can impose an additional penalty against an employer of up to $50,000.00 if there are two or more violations of specific safety requirements within a 24 month period.

Q. Who pays the additional award to the claimant?

A. If the employer is found to have violated a specific safety requirement, the additional award to the claimant is ordered to be paid directly by the employer.

Q. Must a VSSR application be filed within a particular time period?

A. Yes. The application must be filed within two years of the date of injury.

Q. What is the process once a VSSR additional award application is filed?

A. The employer will be notified in writing of the filing of the application and can file an answer within thirty days. A member of the BWC’s Safety Violation Investigation Unit will contact both the claimant and the employer to gather information as part of an impartial investigation. If you are served with an application for an additional award for violation of a specific safety requirement, contact our office as soon as possible to speak with an attorney knowledgeable in VSSR litigation. It is strongly recommended that you do not wait until the BWC’s investigator contacts you.

Public Safety Officers’ Benefits (PSOB) Act

Q. What type of Benefits does the PSOB program provide?

A. The PSOB program provides death benefits in the form of a one-time financial payment to eligible survivors of public safety officers, such as police officers, firefighters, and emergency responders, whose deaths are the direct and proximate result of a personal injury sustained in the line of duty. The program also provides benefits to public safety officers who are permanently and totally disabled because of injuries sustained in the line of duty. In addition, the PSOB program provides financial assistance to help pay higher education costs for the spouses and children of public safety officers for whom PSOB death or disability benefits have been paid.

Q. What is the Hometown Heroes Survivors’ Benefits Act?

A. On December 15, 2003, the Hometown Heroes Survivors’ Benefits Act became law. This legislation creates a presumption that a public safety officer who suffered a fatal heart attack or stroke up to 24 hours after on-duty, non-routine stressful or strenuous physical activity or training has died as a direct and proximate result of a personal injury sustained in the line of duty. In October of 2007 a directive was issued by the Department of Justice which provided clarification to the policy in determining whether an activity is “non-routine stressful or strenuous physical activity.” In addition, the directive also provided the policy and practice in determining whether there may be “competent medical evidence to the contrary.” For copies of the directives please see.

Q. The PSOB Office has denied my PSOB claim - is this the final word?

A. No. This initial determination is based on a review of the information submitted to the PSOB office by claimants and the public safety officer’s employing agency. For claims that have been denied, the PSOB regulations provide for two levels of administrative appeal. At both levels additional arguments or information may be submitted for consideration and the entire claim is re-examined. Any claimant unsuccessful in the administrative appeal process may appeal a final agency decision to the United States Court of Appeals for the Federal Circuit. Requests for appeals must be filed within 33 days of the date on the letter accompanying the determination.

For additional information regarding the Public Safety Officers’ Benefits program please feel free to contact our office or visit the website of the Department of Justice at psob.gov.