Effective Feb. 13, 2014, there are new rules governing wage loss compensation. Partially revising OAC 4125-1-01, the new rules are largely responsive to Ohio Supreme Court rulings. The updates affect both working and nonworking wage loss claimants. Ultimately, the new rules are a more fluid rendering of the requirements that must be met for an injured worker to receive wage loss benefits under Ohio Workers’ Compensation law.
As before, applications for wage loss compensation shall be on forms provided by the BWC, or equivalent forms. However, under the new rules, failure to file the request on the appropriate form no longer results in a suspension of the application. Instead, the BWC or self-insured employer is prohibited from paying wage loss compensation if the injured worker fails to use the correct application form. The BWC forms request very detailed information, particularly from the treating physician. Thus, self-insured employers should carefully scrutinize the application to make sure all requisite information is provided before making a determination to pay wage loss benefits.
Another important distinction with the revisions concerns the filing of supplemental medical reports. If the medical restrictions are certified as permanent by the provider, the filing of supplemental medical reports every 180 days is no longer required. Instead, the filing of such reports is at the discretion of the BWC or self-insured employer. If requested, both the medical examination shall be completed and the medical report resulting from the supplemental medical examination shall be filed with the BWC or self-insured employer within 90 days of the request for the supplemental medical report. This change in the rule serves as a reminder that self-insured employers need to stay vigilant during a period of ongoing wage loss compensation. The code has not changed with respect to restrictions that are certified as temporary. In such instances supplemental medical reports are still required every 90 days.
Under the revisions, an injured worker is no longer required to seek employment with the employer of record before receiving wage loss compensation if the injured worker establishes that it would be futile to do so (e.g., the injured worker was discharged or the employer of record is out of business). The injured worker has the burden of proving the “futility” of reaching out to the employer for suitable employment, thereby leaving the determination as to what may be considered “futile” in the hands of the adjudicator. An employer can rebut the argument by providing a statement of available positions or by showing the injured worker’s inquiry into employment would not have been futile. In addition, absent from the revisions is the requirement that the injured worker seek employment from the employer of record when there has been an interruption in wage loss benefits for a period of three months or more.
Additionally, working wage loss claimants are permitted to be compensated for missing work to obtain medical treatment during working hours. The claimant, however, must provide documentation that such treatment is necessary for the injured worker to perform his job, that the injured worker could not continue to work full time without the treatment and that the treatment was only available during the injured worker’s hours of employment.
For nonworking wage loss claimants, injured workers must submit job search statements every week in which they are seeking a nonworking wage loss. However, working wage loss claimants may be excused by the BWC, Industrial Commission or self-insured employer from submitting weekly job search statements. As before, any job search statement submitted must include name, address, phone number of each employer contacted, position, name or position of person contacted and date/method of contact. For both working and nonworking wage loss, when the injured worker searches online, the claimant must submit a copy of the online posting and verification of application.
Wage loss applicants must make a good-faith effort to search for suitable employment that is comparably paying work. Factors include skills, education, number and quality of contacts with prospective employer, amount of time devoted to making prospective employer contacts and refusal to accept assistance in finding employment. Failure to submit job search documents (unless excused from the requirement) will be deemed a voluntary limitation of income, thereby resulting in a reduction of wage loss benefits.
The nonworking wage loss claimant must also register with Ohio Department of Job and Family Services, or if the injured worker is an out-of-state resident, he or she must register with the equivalent department in the state of residence. This requirement does not apply to claimants seeking working wage loss.
There are two types of wage loss: working wage loss and nonworking wage loss. A working wage loss is the dollar amount of the reduction in wages sustained by an injured worker who returns to employment that is not his or her former position. A nonworking wage loss is the dollar amount of the reduction in wages sustained by an injured worker who has not returned to work because he or she is unable to find suitable employment. To be eligible for working or nonworking wage loss, the diminishment in wages must come as direct result of physical or psychiatric conditions allowed under the claim.