Rate of Compensation
For each year there is a maximum amount of compensation payable weekly for all types of compensation. This rate is set annually by the Ohio BWC.
Full Weekly Wage:
The full weekly wage is generally calculated using the higher of the actual wages earned in the one week prior to injury or the average of the wages earned in the six weeks prior to injury. The full weekly wage is only used to calculate payment of temporary total disability for the first 12 weeks of compensation. The first 12 weeks of temporary total disability is paid at 72% of the full weekly wage.
Average Weekly Wage:
The average weekly wage is generally calculated using the earnings for the calendar year prior to injury. The total earnings are divided by 52 weeks. Under certain circumstances, weeks of unemployment can be excluded form the calculation yielding a higher rate. The average weekly wage is used to calculate payment of all types of lost time compensation other than the first 12 weeks of disability.
Types of Compensation
Disabled Worker Relief Fund (DWRF):
These benefits are available in very limited circumstances. The injured worker must be receiving permanent total disability and the injured worker’s combined permanent and total disability benefits and social security disability benefits when combined must be below a threshold dollar amount adjusted each year by the Ohio BWC. If the combined benefits are below the threshold dollar amount, the injured worker is paid DWRF benefits to make up the difference up to the threshold dollar amount.
Living Maintenance Benefits:
Living Maintenance benefits are paid to an injured worker while participating in a vocational rehabilitation program. There is an advantage in receiving living maintenance benefits rather than temporary total disability or wage loss compensation in claims where the injured worker’s average weekly wage is low, as living maintenance is paid at a minimum of 50% of the statewide maximum average weekly wage.
Permanent Partial Disability:
Permanent partial disability is compensation for residual impairment that is a result of the allowed conditions from an allowed injury or occupational disease. This award can be for physical or psychological conditions allowed in the claim.
An injured worker must wait a period of time after other types of workers’ compensation payments end prior to filing for permanent partial disability. For injuries prior to 6/30/06, the injured worker must wait 40 weeks after compensation ends to file the application. (C92 form) For injuries 6/30/06 and forward, the injured worker must wait 26 weeks after compensation ends to file the application.
The permanent partial disability award is calculated based on the percentage of impairment due to the injury. The higher the percentage an individual is found to be impaired, the higher the award.
Permanent and Total Disability:
Permanent Total Disability is compensation paid for the life of the injured worker if the injured worker is unable to perform any sustained remunerative employment due to the allowed condition(s) in the claim. Compensation is paid bi-weekly.
An injured worker must demonstrate that he/she is incapable of performing any sustained remunerative employment due to the allowed conditions in the claim.
If the injured worker has some residual capacity to work, the Industrial Commission will consider the injured worker’s age, education and prior work experience in determining whether the injured worker is employable. The Industrial Commission requires the injured worker to make every effort to attempt vocational rehabilitation to acquire new job skills which will enable re-entry in the workforce if possible.
An injured worker is entitled to a scheduled loss award for certain types of injuries which result in a loss of a body part or loss of use of the body part. The scheduled loss can awarded for amputations, loss of use of a body part for all practical purposes, and for ankylosis (complete loss of motion of the affected body party). There are also scheduled loss awards for loss of vision, total loss of hearing and facial disfigurement awards.
Temporary Total Disability:
Temporary total disability is compensation paid to an injured worker who is unable to return to his/her former position of employment due to the allowed conditions in the claim.
Temporary total disability is terminated when the injured worker returns to work. Temporary total disability can also be terminated if the injured worker is offered a light duty job in writing that is within the injured worker’s restrictions and he/she refuses to accept that light duty job offer. Lastly, temporary total disability can be terminated when the injured worker is found to have reached maximum medical improvement. (maximum medical improvement is a treatment plateau at which no functional physiological or psychological improvement is expected)
An alternative to receiving compensation and benefits under a claim is to reach a full and final settlement of the claim. A settlement must be mutually agreed to be all parties and this issue cannot be taken to a hearing or forced on any party. Injured workers must be very careful when settling a claim to make sure the settlement adequately covers the cost of future lost time from work and future medical bills.
Also, if an injured worker has an expectation of being a Medicare beneficiary within the next thirty months, Medicare requires money to be set aside out of the settlements to cover future medical bills related to the injury. Also, the injured worker must reimburse Medicare for any medical bills related to the injury that were conditionally paid by Medicare prior to the settlement of the claim. Ultimately, Medicare does not want to pay any medical bills related to the injury. This has become a very complex issue and requires competent legal advice to make sure the injured worker is protected.
The Ohio BWC policies regarding settlement are constantly changing. The Ohio BWC has recently changed its settlement policy and larger value settlements are currently backlogged. In some cases, the Ohio BWC may be undervaluing claims for settlement purposes. The Ohio BWC is currently requiring funds to be set-aside for Medicare purposes in some cases where the injured worker is not Medicare eligible and has not filed for social security disability. The advice of competent legal counsel is recommended for any settlement of a worker’s compensation claim.
Wage Loss Compensation:
Wage loss compensation is payable to an injured worker who is unable to return the former position of employment and suffers a loss of wages as a result. The inability to return to work must be due to physical or psychological restrictions/limitations as outlined by a physician that are due to the injury. The date of injury must be after 8/22/86 for wage loss compensation to be an available benefit.
An injured worker can collect wage loss compensation while looking to find another job and performing a “good faith” job search. This is called non-working wage loss compensation. An injured worker is generally required to prove that he/she has spent the same amount of time and effort looking for work as they spent actually working prior to the injury.
An injured worker must contact the employer of record and make sure that no work is available. An injured worker must also register with the Ohio Department of Job and Family Services for the job search program in order to be entitled to wage loss compensation.
An injured worker can also collect wage loss compensation if another job is found and the injured worker is making less at the new job than he/she was making on average in the year prior to the injury. This is called working wage loss compensation. In this scenario the injured worker is paid two-thirds 2/3 the difference between the earnings at the new job and the average weekly wage in the claim.
The number of weeks that an injured worker can collect wage loss compensation depends on the date of injury. For injuries prior to 8/25/06, an injured worker can collect up to 200 weeks of wage loss compensation in any combination of non-working and working wage loss. Injuries after 8/25/06 are limited to 52 weeks of non-working wage loss compensation, however, the total number of weeks of wage loss compensation is 226.
Violation of Specific Safety Requirement Awards:
An injured worker can receive additional compensation if he/she can prove that the injury was a direct and proximate result of the employer’s failure to adhere to a safety standard in the Ohio Administrative Code. An OSHA violation is insufficient, as the injured worker must prove that the employer violated a comparable Ohio Administrative Code section. If a violation is found to have caused the injury, a penalty will be applied to all past and future lost time compensation at a rate of 15% to 50% to be set by the Industrial Commission hearing officer.