Types of Worker's Compensation
Learn from Our Columbus Worker's Comp Lawyers
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. If you have more questions about how you can be compensated for your injury, then speak to a Columbus worker's comp attorney at the offices of Charles Zamora Co., L.P.A. Our legal team only defends employees, because we believe that the injured deserve the right to get all to which they are entitled.
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Average Weekly Wage & Full Weekly Wage
In every workers' compensation claim, before any compensation can be paid, the Ohio 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 2013, $837.00 is the maximum weekly 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 disability ("PTD") compensation.
Temporary Total Disability Compensation, R.C. 4123.56(A)
Temporary total disability compensation ("temporary total") is usually the initial benefit workers receive when they have suffered an industrial 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. Likewise, the disability is "total" because the worker is not physically able to continue working in any capacity due to the industrial injury. 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").
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 full weekly wage ("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 average weekly wage ("AWW"), subject to the statewide maximum rate for his/her year of injury. The maximum temporary total disability rate for 2013 is $837.00 per week.
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 off work at least 14 consecutive days. This is the so-called "one week waiting period." However, if the injured worker is off work 10 straight days, the injured worker would receive temporary total compensation for 3 days (i.e. 10 days minus the 7-day waiting period). 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.
Police Officers, Firefighters & Temporary Total
City of Columbus police officers & firefighters, and usually police officers & firefighters from other highly populated Ohio cities, typically do not receive temporary total disability compensation following a work-related injury, because "injury leave" benefits are available from the City while the officer or firefighter is marked off. These benefits are paid at the employee's full base rate of pay but are available only for a limited duration (180 calendar days for each service-connected injury for Columbus police officers). The contract between the City of Columbus and the Fraternal Order of Police, Capital Lodge #9 controls. In cases where the City denies the officer's eligibility for injury leave, the officer has the right to a hearing before the City of Columbus
Board of Industrial Relations.
If injury leave benefits are approved, Columbus police officers may apply for an extension (up to a remaining balance of 180 calendar days) if the officer exhausts the initial period of injury leave. In those cases where the officer exhausts all periods of injury leave, the officer then becomes eligible to receive temporary total compensation.
Often, police officers may also qualify for compensation provided by the Ohio Victims of Crime program. While the Ohio BWC does not compensate officers for lost special duty earnings, the Ohio Victims of Crime program does. The Ohio Court of Claims and the Ohio Attorney General's Office administer the Victims of Crime program.
Permanent Partial Disability Compensation, R.C. 4123.57
Once 26 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 disability ("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 compensation 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 an 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. The maximum weekly permanent partial disability rate for 2013 is $279.00.
Wage Loss Compensation, R.C. 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 attributed 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 the Ohio BWC and employers to have investigators 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 2012 is $809.00 per week. The maximum duration an injured worker may receive "non-working" wage loss compensation is 52 weeks. However, the first 26 weeks of non-working wage loss compensation may be added to the otherwise maximum period of 200 weeks if the worker's compensation is converted to "working" wage loss compensation at any point after the first 26 weeks. Such worker would, therefore, qualify for 226 weeks of wage loss compensation. For employees who receive only working wage loss compensation, the maximum period is 200 weeks.
Permanent Partial "Scheduled Loss" Awards, R.C. 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, R.C. 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 2013 claim equals 175 weeks of compensation multiplied by the 2013 maximum weekly rate of $837.00. The total award for the loss of the hand in a 2013 claim is therefore $146,475.00.
Facial Disfigurement, R.C. 4123.57(B)
If an industrial accident or occupational disease causes a person to sustain or develop a serious facial or head disfigurement which either impairs or may in the future impair his or her opportunities to secure or retain employment, he or she may be eligible to receive an award up to a total of ten thousand dollars ($10,000.00). In order to prove entitlement to this award, the employee should provide before and after photographs demonstrating the extent of the disfigurement caused by the injury or occupational disease. Also, the injured worker will need to articulate the deleterious effects of the disfigurement upon continued employment or new employment. Typically, the Ohio BWC will schedule a medical examination upon the injured workers' motion for a disfigurement award. Often, a hearing before the Industrial Commission of Ohio becomes necessary. It is advisable for the injured worker to have an attorney at the hearing.
Police & Fire Change of Occupation Compensation, R.C. 4123.57(E)
For police officers or firefighters who develop a pulmonary or cardiovascular disease in the course of employment and a change in occupation is medically advisable in order to decrease substantially further exposure to smoke, toxic gases, chemical fumes, and other toxic vapors, the workers' compensation law allows for "change of occupation" compensation. The maximum weekly compensation is 50 percent of the Statewide Average Weekly Wage ("SAWW") for the first 30 weeks. For the 31st week and thereafter (up to a maximum of an additional 75 weeks), the rate is calculated as 66 2/3 percent of the actual loss of wages resulting directly and solely from the change of occupation, but not to exceed a maximum amount equal to 50 percent of the SAWW. The police officer or firefighter is, therefore, entitled to a maximum of 105 weeks of change of occupation compensation on account of his/her discontinuance of employment or change of occupation.
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. The maximum weekly VSSR rate for 2013 is $418.50 (i.e. 50% of $837.00). The VSSR benefit is paid for
each week of compensation otherwise paid in the claim.
Permanent Total Disability Compensation, R.C. 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, R.C. 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, R.C. 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 and firefighters 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 and non-firefighter 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.
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 614-221-1300 to discuss the specifics of your case.