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Eligibility Under Workers’ Comp and the Social Security Disability Insurance Program

Posted on Wednesday, November 8th, 2017 at 3:00 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

A disabling injury or medical condition can strike anyone at any time. While rehabilitation and regaining one’s health is limited by the realities of modern medical science, maintaining economic security during these trying times is possible. Depending upon one’s personal circumstances, eligibility under a state’s workers’ compensation program or the federal government’s Social Security Disability Insurance program may provide the financial security blanket needed to guarantee one’s solvency, allowing one to remain focused on what matters most: healing.

Requirements for Eligibility Under Workers’ Comp Programs

Since workers’ compensation programs are administered by individual states, the specific requirements that must be fulfilled in order to be eligible for benefits of the program vary. As a general proposition, any injury or illness for which one seeks workers’ compensation must have been sustained on the job, or must have arisen out of work-related activities.

Additionally, an individual attempting to obtain workers’ compensation benefits must be classified as an “employee.” Some states also distinguish eligibility based upon the type of work that an employee performs. Finally, one’s employer must carry workers’ compensation insurance, or, alternatively, be required to do so by law.

As alluded to earlier, the above requirements are not universal, and may differ from state by state. Generally speaking, however, these requirements are common throughout the United States. It is important to note that there is a laundry list of exceptions to the general rules that may render an otherwise eligible “employee” ineligible. In order to get a better sense of individual states’ quirks, a brief review of some of the eligibility requirements of Kentucky and Ohio follow.

According to the National Federation of Independent Business (“NFIB”), in Kentucky, all employers that (employ one or more employees are required to carry workers’ compensation insurance. That said, sole proprietors, “qualified” partners of a partnership, and “qualified” members of a limited liability companies are excluded from workers’ compensation coverage. Officers of corporations, on the other hand, are considered “employees” by statute, and, thus, workers’ compensation insurance is required for such individuals.

Like Kentucky, Ohio requires all employers with one or more employees to carry workers’ compensation insurance coverage, according to the NFIB. Under Ohio workers’ compensation law, workers’ compensation coverage for sole proprietors, partners of a partnership, individuals that have incorporated themselves as a corporation, and others, is optional. In addition, and unlike Kentucky, the only option for most employers to obtain workers’ compensation coverage in Ohio is via Ohio state’s own program (as opposed to obtaining or maintaining coverage through a private or commercial insurer).

Clearly, the state-administered workers’ compensation programs are unique and can differ greatly between states. While the eligibility requirements and laws governing workers’ compensation can vary wildly throughout the nation, the federally administered Social Security Disability Insurance program applies universally. A brief overview of the eligibility requirements of the Social Security Disability Program follows.

Requirements for Eligibility Under the Social Security Disability Program

So long as the basic requirements are met, employees are eligible for workers’ compensation from their very first day of employment. While not a requirement per se, it is nevertheless important to note that, unlike workers’ compensation programs, Social Security Disability benefits are only available to those that have worked for a longer period of time. As a general rule, in order to qualify for Social Security Disability, one must have accumulated forty “credits,” twenty of which were earned in the past ten years. The number of credits required is determined by the claimant’s age at the time of disability. A younger individual will require less work credits than an older individual. One “credit,” according to the Social Security Administration, is earned for every $1,300 of wages an employee earns. An employee may earn only four credits per year; thus, once an individual earns $5,200 for the year, that individual has earned their maximum four credits for that year.

In addition to earning the requisite number of credits, a person must meet the Social Security Administration’s definition of “disabled” in order to qualify for disability benefits. “Disability” means that a person “cannot do work that [they] did before,” one’s “disability has lasted or is expected to last for at least a year or to result in death,” and the Social Security Administration determines that the one seeking benefits “cannot adjust to other work because of [their] medical condition(s).” If these three definitional elements are met by an applicant, they will be considered disabled, and will thus have satisfied one of the requirements to be eligible for disability benefits.

In addition to the above requirements, one must have “worked in jobs covered by social security.” The individual’s affliction must result in “long-term impairment” that “preclude[s] any gainful work.” Finally, the affliction must be so severe that the social security disability applicant is unable to perform their previous work; further, the applicant must be unable to engage in “any other type of substantial gainful work.”

While the above list of requirements is by no means exhaustive, it is illustrative of what an applicant would be required to do and show in order to qualify for Social Security Disability benefits. Clearly, the eligibility criteria for workers’ compensation programs differ substantially from disability benefits. Nonetheless, under some circumstances, one may qualify for both workers’ compensation benefits and Social Security Disability benefits. When such a situation arises, the issue of offsetting becomes a concern.

The Offsetting Effect of Workers’ Compensation on Social Security Disability Insurance

The Social Security Disability Insurance program requires that, when an individual is eligible for both workers’ compensation benefits and disability benefits, said individual’s disability benefits be reduced. This reduction must result in the combined benefits from the two separate programs being less than or equal to eighty percent of the individual’s “average current earnings.” “Average current earnings,” according to the Social Security Administration’s website, is defined as “the highest of the average monthly wage on which the unindexed disability primary insurance amount is based, the average monthly earnings from covered employment and self-employment during the highest five consecutive years after 1950, or the average monthly earnings in the calendar year of highest earnings from covered employment during the five years ending with the year in which disability began.”

The receipt of workers’ compensation benefits may have an offsetting effect on disability benefits under other circumstances, as well. For example, when a particular state’s workers’ compensation program allows for the possibility of a lump-sum payment being made to the recipient, thereby discharging the obligations of the insurer and/or employer, but simultaneously permits the payment of benefits in a more structured, periodic nature, said settlement is affected by the offset. More specifically, the lump-sum payment is “prorated to reflect the monthly rate that would have been paid had the lump-sum award not been made.”

There are a multitude of exclusions that apply to the offsetting rules. For instance, certain sums expended for medical purposes “in connection with” workers’ compensation are subject to exclusion in figuring the amount of the offset. Likewise, legal fees incurred by an individual “in connection with” workers’ compensation may be subject to exclusion. Finally, many other government benefits may be excluded from the offset, as well, including VA benefits and needs-based benefits, to mention a few.

What Should You Do If You Are Eligible for Workers’ Compensation and Social Security Disability?

When faced with a disabling medical condition or health-related emergency, many may find themselves in dire straits, financially speaking. Luckily, certain government programs, such as the state-administered workers’ compensation programs and the federally administered Social Security Disability Insurance program, exist and may be able to help those in need. While the eligibility requirements may change from jurisdiction to jurisdiction depending upon the program, and can oftentimes be strict, those that qualify may receive the financial security they need to get through some of the most difficult times in their lives.

If you have any further questions, call one of the attorneys at Lawrence & Associates for a free consultation. Lawrence & Associates has handled thousands of claims for injured and disabled men, women, and children. We’re Working Hard for the Working Class, and we want to help you!

I Want a Jury Trial for My Workers’ Compensation Claim.  How Can I Get There and What Can They Decide?

Posted on Wednesday, August 16th, 2017 at 1:54 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

The Ohio Workers’ Compensation Code allows an injured worker to appeal a decision by the Industrial Commission to a regular Court of Common Pleas and have a jury trial.  But if a worker makes that kind of appeal, what issues is the jury allowed to hear?  This article will discuss the Ohio Supreme Court’s Opinion in Ward v. Kroger Co., where that question is answered.

On April 26, 2001, Howard Ward (hereinafter “Ward” or “plaintiff”), an employee of Kroger Company (hereinafter “Kroger” or “Defendant”), injured his right knee in the course of his employment. In the Workers’ Compensation claim that followed, Kroger certified the condition of “right knee sprain,” but would not certify the conditions of “medial meniscus tear” and “chondromalacia.” Throughout the administrative review process, a district hearing officer allowed plaintiff’s claim for “right knee sprain,” but disallowed the other claims, a decision that was affirmed by a staff hearing officer. These decisions were not disturbed, due to the Industrial Commission’s refusal to hear a further appeal.

In an effort to have his claims for “medial meniscus tear” and “chondromalacia” allowed, and to participate in the Workers’ Compensation Fund for those conditions, Ward appealed, pursuant to R.C. 4123.512 (an Ohio statute generally allowing for the appeal of certain decisions made by the Industrial Commission in Workers’ Compensation cases), the decisions made throughout the administrative process to the Jefferson County Court of Common Pleas. Shortly before the scheduled trial date, however, plaintiff filed a motion to amend his complaint to add the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis.” Neither of these conditions had been presented to the administrative body.

The trial court granted the plaintiff’s motion to amend his complaint, and the plaintiff dismissed the “chondromalacia” claim. However, the case proceeded to trail by jury on the remaining claims (including the original “medial meniscus tear” condition, as well as the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis” contained in the amended complaint). The jury returned a verdict against the plaintiff on the originally appealed condition (that is, “medial meniscus tear”), but found in favor of the plaintiff on the remaining claims.

Plaintiff’s victory at the trial court was appealed. On appeal, the Court of Appeals reversed the judgment of the trial court, holding that the trial court had “exceeded its jurisdiction by permitting the employee [Ward] to amend his complaint to add these two conditions, which were never presented to the administrative body” (emphasis added). Ultimately, the Court of Appeals held that, when an appeal is being made pursuant to R.C. 4123.512, “the scope of the trial is limited to the condition ruled upon below.” In other words, the trial court had erred in allowing the plaintiff to amend his complaint to add two new conditions (that is, the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis”) because those conditions had never been ruled upon by the administrative body (that is, the district hearing officer, staff hearing officer, and Industrial Commission).

The Court of Appeals’ decision was appealed to the Ohio Supreme Court. The basic issue to be decided by the Court, as alluded to above, was the scope of a R.C. 4123.512 appeal. Specifically, the question to be addressed was whether such appeals were limited in scope to those conditions addressed by the administrative body – in other words, was it permissible for trial courts to allow a plaintiff to amend his or her complaint prior to trial to include conditions that were never presented to the administrative body below?

The Ohio Supreme Court began its analysis by making note of the dichotomy that existed between the district courts of appeals on this particular issue. Some courts were of the opinion that allowing a plaintiff to amend his or her complaint to include conditions not initially or originally presented to the administrative body was permissible. These courts rationalized this conclusion by pointing out that an appeal made pursuant to R.C. 4123.512 is subject to “de novo” review of law and fact, and that, therefore, a plaintiff is not limited to the record formed during the administrative process. In further support of this conclusion, these courts reasoned that R.C. 4123.512 “provides for the application of the Civil Rules, which freely permit amendment of issues and claims.” Additionally, these courts note that R.C. 4123.512 authorizes “the taking of depositions and other discovery,” implying that the General Assembly (Ohio’s legislative body) “contemplated that additional evidence might surface in the court of common pleas and intended, in the interest of judicial economy, to allow for the litigation of new conditions.”

As persuasive as the previous reasoning may be, the Ohio Supreme Court’s mindset was more aligned with the opposing view. Those courts that disagree with the foregoing reasoning hold that a plaintiff may not litigate a new or different condition at trial in the court of common pleas. These courts reason that, since the trial is characterized as “de novo,” only “new evidence may be presented with regard to the appealed condition” – “evidence of a new condition may [not] be presented for the first time on appeal.” Additionally, these courts “view the order appealed as framing the jurisdiction of the common pleas court” – in other words, the administrative body must first be presented with and review conditions set forth by the plaintiff before the court of common pleas can adjudicate the issue.

As noted, the Ohio Supreme Court is in agreement with the view that appeals made pursuant to R.C. 4123.512 are limited in scope to those conditions addressed by the administrative body. However, the Ohio Supreme Court, in their decision, expanded upon the reasoning provided by the lower courts. The Ohio Supreme Court reasoned that “allowing consideration of the right to participate for additional conditions to originate at the judicial level is inconsistent with [the] statutory scheme” because, in essence, it eliminates the need and purpose behind the administrative body’s existence in the first place. To put it a slightly different way, the entire reason the administrative body was put in to place was to allow for the introduction of claims and to provide a record upon which higher courts could rely during the appellate process; allowing a plaintiff to amend his or her complaint and introduce entirely new issues for litigation at the trial court would eliminate the need for the administrative body. If such were not the case, plaintiffs should logically initiate their workers’ compensation claims at the trial court itself, as opposed to the Industrial Commission or administrative body, because, under such a scheme, the trial court and the administrative body share the exact same authority to allow for the introduction and adjudication of new and initial claims.

Ultimately, the opinion rendered by the Ohio Supreme Court in this case is consistent with principles of judicial review that have always, and continue to, justify the existence of appellate practice in nearly every jurisdiction in this country. The appeals process is, in a very general sense, meant to ensure against the erroneous application of law by lower courts. Appellate courts do not exist to provide litigants with multiple opportunities to perpetually try the same case over and over again. If this were not the case, every justification provided for the existence of administrative bodies and/or trial courts would be eliminated, leaving litigants with one court, and one court only, to adjudicate their claims from beginning to end. Such a system would result in the eradication of procedural safeguards, the multiplication of incorrect applications of law, and the destruction of all available means of recourse for litigants.

Can I Sue for Being Exposed to Mold in Ohio? A Case Study of Terry v. Caputo

Posted on Wednesday, August 9th, 2017 at 4:15 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

There is only a genuine issue of material fact in mold exposure if the plaintiff is able to demonstrate through expert testimony that mold exposure generally causes the type of injury the plaintiff experienced and the exposure to mold caused the plaintiff’s specific injury. In Terry v. Caputo, the Ohio Supreme Court adopted the above test and reversed the case because the plaintiff failed to demonstrate with medical experts that exposure to mold caused the specific injury at issue.

The Facts of Terry v. Caputo

Ottawa County Board of MRDD leased several suites from W.W. Emerson, and shortly after its employees began to experience headaches and physical ailments. The Ottawa County Board of MRDD conducted a building inspection and found mold in several locations. The employees’ ailments were attributed to the damp conditions in the building, which was subsequently cleaned. The symptoms eased but returned shortly. Further testing revealed several mold spores, including a type of mold that can cause the symptoms the employees experienced.

At trial, the plaintiffs’ medical expert had not personally examined the employees during their exposure to mold, but reviewed their medical records and concluded that the plaintiffs’ symptoms were caused by mold, mildew, and poor ventilation.

The trial court granted summary judgment for the defendant – summary judgment is when a court decides if either or both of the parties are able to present evidence regarding each essential element of a claim – because the plaintiffs failed to present medical evidence that their symptoms were directly caused by the mold. The court found the plaintiffs’ medical expert’s conclusions were broad and correlative rather than specific to the plaintiffs.

The appellate court overturned the trial courts decision to exclude the plaintiffs’ medical expert’s testimony with respect to general causation. However, the appellate court affirmed that the medical testimony did not prove specific causation because the expert relied too heavily on a temporal relationship. The appellate court reversed the grant of summary judgment because the plaintiffs could still demonstrate specific causation through additional evidence.

The Ohio Supreme Court’s Reasoning – How Do You Prove Mold Caused Your Illness?

Prior to this case, the Ohio Supreme Court had yet to rule on this specific issue. The court acknowledged the issue had been frequently considered in federal courts and adopted the test outlined in Knight v. Kirby, which required the plaintiff to demonstrate both general and specific causation. Step one of the Knight test is to prove the plaintiff was exposed to a type of mold (or other toxic substance) that can cause the particular injury experienced. The second step is satisfied if the plaintiff is able to demonstrate the mold, in fact, caused the specific injury in dispute.

To establish both general and specific causation, a plaintiff must present an expert witness. Expert testimony is governed by Evidence Rule 702, which requires, in part, that an expert witness base his or her testimony on reliable, scientific, technical, or specialized knowledge and the expert’s theory must be objectively verifiable or validly derived from widely accepted knowledge, facts, or principles.

In determining if expert testimony should be admitted trial courts are privileged with the role of “gatekeeper,” which gives trial courts discretion to analyze the reliability and relevance of the expert’s testimony. Appellate courts should only overturn the trial court’s determination if the trial court has abused its discretion in deciding the expert testimony was not reliable or relevant.

Expert testimony is reliable if the methodology has been subject to peer review, if the methodology is not known to have a high error rate, and if the methodology is generally accepted in the scientific community. Courts should only be evaluating the reliability of the methodology, not the results. In addition, expert testimony is considered relevant if it advances the matter at hand, which means there is a connection between the scientific research and the test results. This two-step inquiry has been described by a federal court as determining the scientific validity of a particular theory and analyzing the reliability of the expert’s application of the tested principles.

Finally, the Ohio Supreme Court relied on two Virginia cases in which motions for summary judgment were granted and upheld because the expert’s medical testimony was unable to prove the particular type of mold that caused the ailment and the expert was unable to rule out other causes of the plaintiff’s symptoms. When both cases were appealed, the California appellate courts held that the trial courts acted properly in their role as a gatekeeper because the trial courts had determined the expert testimony was not reliable or relevant and was too heavily on temporal correlations.

The Ohio Supreme Court ruled that the appellate court properly held that the plaintiffs’ expert testimony was sufficient to establish a generally connection between the type of symptoms exhibited by the plaintiffs and the type of mold that was discovered at their workplace. The court also held that the appellate court properly determined that the medical evidence was insufficient to establish that the mold was the specific cause of the plaintiffs’ symptoms. However, the court held that the trial courts summary judgment should have been upheld because the plaintiffs’ failed to establish that the mold was the specific cause of the ailments. As a result, the Ohio Supreme Court upheld the appellate court’s test but reversed and granted summary judgment.

Pfeifer Dissent

Justice Pfeifer was the lone dissenter who argued that the majority’s test was correct, but not its application. Pfeifer argued that the prior case law, which the majority relied upon, involved the plaintiff’s expert testimony at trial, but in the present case, the court was only deciding if summary judgment should or should not be granted. In other words, was there a genuine issue of material fact that the mold caused the specific type of symptoms exhibited by the plaintiffs? Pfeifer argued that general medical causation is sufficient to overcome the low burden of summary judgment.

What Does This Mean for My Mold Exposure Claim?

A motion for summary judgment occurs relatively early in the litigation process and the court’s holding in Terry v. Caputo establishes what evidence the parties must be able to demonstrate in mold or toxic exposure cases to successfully survive the motion. If the parties are unable to demonstrate both general and specific causation the parties will see their cases dismissed before trial. Obviously, these are complex issues, and it may be wise to talk to an attorney well before filing a lawsuit or insurance claim to ensure your case is handled correctly.

If you have a personal injury claim, don’t go it alone! Lawrence & Associates may be able to help! Our attorneys offer free consultations, or can refer you to another credible firm. Call us today – We’re Working Hard for the Working Class, and we want to help you!

Why the Industrial Commission Can Stop your Workers Compensation Settlement Payments

Posted on Monday, July 10th, 2017 at 1:06 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

One of the first steps in pursuing litigation is to determine which court has jurisdiction over a claim. Jurisdiction is a court’s power to hear and decide a case. Failing to file a claim with the proper court will either result in the case being dismissed or the judgment will be appealed on the grounds that the original court did not have jurisdiction. The Ohio Supreme Court has clarified which courts have jurisdiction over claims regarding worker’s compensation lump sum payments.

Prior to the Ohio Supreme Court’s ruling, Ohio case law indicated that two courts could hear cases regarding worker’s compensation lump sum payments. The first was the Ohio Court of Common Pleas, which has general jurisdiction over all civil disputes with more than $500 in controversy. Second, was the Ohio Court of Claims, which has exclusive jurisdiction over civil suits against the State of Ohio for money damages that are “sound in law.” After the Ohio Supreme Court’s ruling in Measles v. Industrial Commission, the Ohio Court of Claims has exclusive jurisdiction over workers’ compensation lump sum disputes.

Studying Measles v. Industrial Commission: Background information

A class action suit was brought against the Industrial Commission of Ohio for stopping weekly payments of workers’ compensation benefits. The individuals in the class action had opted to receive a partial lump sum and then receive discounted weekly distributions for the remainder of their life. However, in taking the partial lump sum the recipients signed a contract that provided, in part, “Lump Sum Payment is granted it will result in a permanent reduction of weekly benefits which shall continue for the life of the claim.” The members of the class action in this suit were only individuals who had taken a partial lump sum, but each member could have selected to receive a full lump sum payment and no weekly distributions at the time of selection.

The Industrial Commission of Ohio stopped paying weekly benefits to the members of the class action when the individual member’s weekly distributions and partial lump sum totaled the amount each recipient would have received if he/she had selected to receive the full lump. The Industrial Commission of Ohio argued that when the recipients signed the contract to receive partial lump sum payment the recipients had agreed to receive a specific amount of money; therefore, once that specific amount of money had been paid the Industrial Commission of Ohio was not responsible for continuing to make discounted monthly payments.

In contrast, the members of the class action argued that they were entitled to receive a reduced weekly disability payment for the remainder of their life. Therefore, the Industrial Commission of Ohio was statutorily required to continue to make payments for the remainder of their life even if the amount they would receive would exceed the amount originally offered in a lump sum.

Why the Court Decided the Industrial Commission Could Stop Payments

The court reasoned that the class action members were suing under the contract they had signed with the state. A contract is “sound in law” because it is legally binding. Therefore, the members of the class action needed to sue in the Ohio Court of Claims.

The Ohio Supreme Court differentiated between two prior cases. First, Cristino v. Ohio Bur. of Workers’ Comp. involved a class action who sued after receiving a full lump sum payment. The court held that the claim needed to be filed in the Ohio Court of Claims because the contract needed to be analyzed to determine if the state entered into a contract that the state was statutorily prohibited from entering.

The Ohio Supreme Court differentiated Cristino from Santos v. Ohio Bur. of Workers’ Comp. where Santos sued the state for money the state claimed in subrogation. Santos was not controlling in the present case because Santos sued to recover money already paid through subrogation, which, unlike a contract subrogation is not “sound in law.”

Speaking in general terms, the Ohio Supreme Court noted that if a contract was signed regarding workers’ compensation or disability benefits, then the contract always needed to be analyzed by the court to determine if the state entered into a contract that was outside of the state’s authority. In cases involving partial or full lump-sum disability payments, the parties are disputing the “consequences of the contract.” As a result, the contract must be analyzed, which means the Ohio Court of Claims has exclusive jurisdiction.

Why This Matters for Your Case

Filing a claim in a court that has jurisdiction is an important early step in the litigation process. Filing in a court that lacks jurisdiction can waste time and money. The Ohio Supreme Court has clarified that the Ohio Court of Claims has exclusive jurisdiction over workers’ compensation cases where individuals selected to receive a partial or complete lump sum payment.

Beyond workers’ compensation disputes, the Ohio Supreme Court’s decision has clarified that when a contract was signed between the state and individuals the dispute must be litigated in the Court of Common Pleas. When a contract is present, individuals or classes of individuals will be suing the state because the terms of the contract were violated. As a result, the dispute will regard the terms of the contract; therefore, the dispute will be “sound in law” and under the exclusive jurisdiction of the Ohio Court of Claims.

Do you have an Ohio Workers Compensation claim and want full compensation in your settlement? Our attorneys offer free consultations! We’re Working Hard for the Working Class, and we want to help you!

Subrogation – How Your Ohio Worker’s Compensation Claim Can Take Money Away from Your Personal Injury Claim

Posted on Tuesday, June 20th, 2017 at 7:54 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

Worker’s Compensation allows employees to recover medical expenses and lost wages for injuries that occur on the job. When employees are injured on the job by a third-party, the Bureau of Worker’s Compensation (BWC) may file a subrogation claim. Subrogation provides the BWC or a self-insured employer with the right to collect back costs of the worker’s compensation claim from the third-party who caused the injury if the injured employee receives a settlement or judgment from a third party.

This blog post is about Ohio Worker’s Compensation claims. If you have a Kentucky Worker’s Compensation claim that is also a personal injury claim – such as getting into a car accident while on the job – check out this subrogation blog post to find out more about the Kentucky system.

How Ohio’s Worker’s Compensation Subrogation Works

In Ohio, car accidents or construction projects are the leading causes of subrogation claims. For example, consider when an employee is stopped at a red light while driving his/her company’s car and is hit from behind. The employee files a worker’s compensation claim and receives lost wages and medical expenses. The Ohio BWC has the right to recover the lost wages and the medical expenses from the third-party who hit the employee from behind, if the injured employee sues the third-party who hit him/her. If the employee sues the third-party driver for medical expenses and lost wages, the Ohio BWC has the right to recover the expenses the Ohio BWC already paid, and the employee keeps any additional amount recovered.

Money recovered from a third-party is not automatically subject to subrogation. Rather, injured employees must be given the chance to demonstrate the money he/she received from a third-party was not for the same expenses already paid through worker’s compensation.

Unlike other civil actions brought against third parties, subrogation has a six-year statute of limitations. Typically, the statute of limitations is two years for actions brought against third parties.

The Ohio Subrogation Claim Process

In Ohio, subrogation claims begin with a referral – usually from a BWC claims service specialist. Once the referral is reviewed, Ohio BWC employees will mail a letter asserting a claim against all third parties. The BWC asserts a claim by placing a lien – or right of first access – to all money the injured employee receives from the third-party. If the third-party and the injured employee settle their dispute outside of court, the Ohio BWC will negotiate the settlement with the injured employee.

Ohio statutes limit the amount the Ohio BWC may recover to the amount of money the Ohio BWC has paid or is expected to pay due to the injury. If the settlement is less than the amount the Ohio BWC has paid then the Ohio BWC and the injured employee will negotiate a settlement. If agreed, the Ohio BWC will receive its portion and the injured party will receive the remaining amount. When negotiating a settlement, the Ohio BWC considers what expenses were paid through the settlement. Usually, the Ohio BWC is only able to recover a portion of its full lien if the settlement is less than it previously paid in worker’s compensation benefits.

If the claim remains unresolved, it may be referred to mediation. If mediation fails, the Ohio BWC gives all claims to the attorney general’s office.

Ohio’s Process is Slightly Different for Self-Insured Employers

Self-insured subrogation cases must often arise in construction projects when a subcontractor’s employee is injured. If the general contractor is self-insured, it is the employer of all employees, including subcontractors, for worker’s compensation purposes. Therefore, an employee of a subcontractor can recover against the general contractor, and any funds received by the employee would be subject to subrogation by the Ohio BWC.

An injured employee could also sue the subcontractor, which would be subject to subrogation. However, under Ohio law, a subcontractor is not liable for claims of employees of other subcontractors working on the same general project provided the claim would fall under worker’s compensation law. Subcontractors may still be liable for actions that do not fall under worker’s compensation, such as an employee dropping construction equipment on another subcontractor’s employee.

Should You Talk to a Lawyer about Subrogation Between Workers’ Compensation and Personal Injury Claims?

There can often be offsets to the subrogation rights that the Bureau of Worker’s Claims recognizes, which means you can keep more of your personal injury settlement or judgment than you might first realize. However, many of the important things done to create an offset are done before the settlement of either the personal injury or the worker’s compensation claims. Therefore, it is important to talk to an attorney early. By retaining an attorney early, you maximize your chances of keeping your money.

However, not all attorneys are created equal. Make sure the attorney you hire works in a firm that practices in both personal injury and workers’ compensation. A lack of experience in either field could limit the attorney’s understanding of subrogation issues. Further, you should sit down with your attorney and ask the attorney what possibilities exist for limiting the Bureau of Worker’s Compensation’s subrogation rights. Although the attorney will not be able to give specific numbers at the beginning of the case, he or she should have the ability to explain the basic avenues that he or she will use to try to limit what you have to pay in subrogation. And if the attorney won’t take the time to sit down and explain things to you, that is probably not the attorney you want to use.

If you’ve been injured and have either a personal injury or a worker’s compensation claim, please call one of our attorneys for a free consultation. We’re Working Hard for the Working Class, and we want to help you!

What You Should Expect from an Ohio Workers’ Compensation Claim

Posted on Wednesday, April 19th, 2017 at 3:16 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

Workers’ compensation can include compensation for medical treatment, lost wages, and permanent impairment that occurs during employment. The Ohio Bureau of Workers’ Compensation (BWC) has several steps necessary to file a claim. The steps will be similar for states other than Ohio, but guidelines may vary and information should be verified with each state’s BWC.

If the injury or illness is severe, seeking medical attention should be the primary objective; however, as treatment proceeds it will be important to keep record of all medical bills for filing purposes.

How To File an Ohio Workers’ Compensation Claim

The Ohio Bureau of Workers’ Compensation has strict guidelines, which must be met to qualify for Workers’ compensation. Failure to meet the guidelines may result in a denial.

First, an employee must report the injury to the employer as soon as possible. After the injury is reported a First Report of an Injury, Occupational Disease, or Death (FROI) will need to be completed. The FROI can be completed by the employer, employee, or by the employee with the assistance of their medical practitioner. Claims can be filed online with the BWC.

Submitting an FROI has strict guidelines that must be met. A claim must be filed with the BWC within two years of the date of the injury. If filing for an occupational disease, the FROI must be filed within two years of the date one becomes permanently disabled, or within six months of the date a medical practitioner diagnosed the illness.

Within twenty-eight days of submitting the FROI form, the BWC will notify the employee if their claim has been approved or denied.

Why Was My Workers’ Compensation Claim Denied?

Workers’ compensation claims can be denied for a variety of reasons, and the specific reason an individual case was denied will be listed on the BWC’s decision, which is released within 28 days of filing. Lack of information, employer denial, or severity of the claim is the most common reasons a claim is denied.

First, claims are denied for a lack of information, failure to file on time, or failure to report. One of the simplest ways to help ensure a claim does not lack information is to keep records of medical expenses and doctor’s diagnoses throughout the process.

Another common reason a claim is denied is because an employer may deny that an employee’s injury occurred at work or that the injury is not a result of the workplace accident. Employers often deny claims because successful claims increase their Workers’ compensation insurance premiums, thus defeating the claim will not raise their rates.

Finally, claims may be denied because the injury was not severe enough to be covered by Workers’ compensation. Regardless of the reason a claim was denied, the all claims may be appealed.

How Appeals Work in the Ohio Workers’ Compensation System

After the claim is denied, an employee has 14 days to appeal. To file an appeal a form will need to be completed through the Ohio Industrial Commission. The forms can be filled out online or printed and mailed. Once the appeal request is received, several steps will follow.

First, a district level hearing will take place within 45 days of the initial appeal. Before the hearing, witness affidavits, depositions, and other evidence may be submitted to the Ohio Industrial Commission’s office for review. In addition, the Ohio Industrial Commission may require an independent medical examination. The examination is mandatory, but the results will be made available to both parties. After hearing the evidence, the presiding officer will make a written decision and mail it to both parties within seven days.

After the district level hearing, either party can appeal for a staff level hearing, which will take place within 45 days of the initial hearing. Usually, no new evidence is permitted, but an officer reviews the information and issues a written opinion to both parties.

The first two levels of appeal are guaranteed, but if the parties are still unhappy they may appeal for a commission level hearing. After reviewing the information from the staff hearing, the Ohio Industrial Commission will either grant or deny an appeal. If the appeal is granted a hearing will be conducted within 45 days and a written decision will be mailed within seven days. The Ohio Industrial Commission’s decision may be appealed to the state courts of Ohio. If the decision is denied an appeal can be made to the state courts of Ohio within 60 days.

Why an Attorney Should Help You Get Workers’ Compensation

The appeal process can be long, and it may be in the employee’s best interest to get help from an attorney to receive the benefits they deserve. Due to the multitude of reasons a claim may be denied – failure to file on time, employer dispute – an appeal may be able to provide an opportunity to add additional evidence in support of the claim.

Additional information such as surveillance videos, co-workers testimony, medical history, and doctor testimony may be able to provide the necessary information on appeal. However, it is possible that evidence that should have been introduced originally will not be allowed to be introduced for the first time on appeal. The best way to make sure you don’t have to appeal is to make sure all your evidence and best legal arguments get presented immediately, and continually re-raised throughout the process. Getting an attorney is the best way to make sure you don’t miss anything.

Seeking legal council is advised for an appeals process because deadlines are short and strict, the process can be long, and the Ohio Industrial Commission will expect an appeal to properly follow the rules of evidence. Additionally, an attorney can help decide if an appeal is the best option based on the specific reason an individual case was denied.

If you’ve been injured in an Ohio Work Accident, don’t go it alone. Call Lawrence & Associates for a free consultation today. We’re Working Hard for the Working Class, and we want to help you!

What Should You Do If You Get Injured at Work?

Posted on Wednesday, October 26th, 2016 at 11:59 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Nolan Weddle, a Juris Doctor student at the University of Kentucky College of Law.

What Should You Do If You Get Injured at Work?

An injury, of any kind, often creates an incredibly stressful and trying time for everyone involved. The pressures are further compounded, however, when the injury is work-related and interferes with our ability to provide for ourselves and for our loved ones. Thankfully, the Kentucky Legislature has enacted a series of laws aimed at helping hard-working employees recover from injuries and diseases incurred while on the job. At its core, Kentucky’s Workers’ Compensation laws require employers to either provide Workers’ Compensation insurance or to become self-insured, so that an injured employee or a deceased employee’s dependents can be compensated for lost earnings, medical expenses, and rehabilitation expenses. In almost every circumstance, the injured employee is entitled to recover from a work-related injury—even if the injury is the fault of the employee (see footnote for exceptions). Furthermore, it is illegal for an employer to prevent his or her employee from taking full advantage of the employee’s rights, or to harass or punish the employee for filing a Workers’ Compensation claim. In order for an employee to make the most of his or her rights following a work-related injury or disease, he or she should commit to the actions discussed below.

Seeing a Physician

In the event that an employee’s injuries require immediate medical attention, the employee should seek out the nearest emergency facility. In the vast majority of circumstances, however, an employee’s injuries will not require such immediate care. When this is the case, the employee should first check with his or her employer to determine if the employer is part of an authorized managed care program that requires the employee to choose a particular physician or to choose from a list of pre-selected physicians.

There will be times when an injured employee will be dissatisfied with the medical opinion given by a physician within the above stated program. If this occurs, the employee should consider a second opinion from a physician of his or her own choosing. Filing a Form 113, provided on the Department of Workers’ Claims website, allows the employee to designate his own physician, and the Workers’ Compensation insurance carrier should provide payment to the new physician for reasonable and related treatment, so long as the new physician is either within the carrier’s managed care network or within a reasonable distance of the employee’s home.

The doctor’s orders should not be viewed by the employee as merely a suggestion. Rather, the injured employee should take great care in following the recommendations given to him or her by the attending physician. Often, these recommendations will include instructions for the employee to refrain from engaging in certain work-related activities. If this is indeed the situation, the employee should have the physician write down his or her instructions so that the orders can be given to the employee’s employer.

Report the Injury

Once the injured employee has provided for all of his or her immediate medical needs, the employee should report the injury to his or her supervisor. This report should include the employee’s name, department of employment, a list of the individuals who witnessed the injury, a description of the work the employee was undertaking at the time of the injury, the cause and extent of the injury, and any additional information the employee deems to be relevant. Too often employees fail to report injuries because the injury seems insignificant at the time the injury was inflicted. Yet unfortunately some of the most serious and life altering ailments do not manifest themselves until months or even years after the injury occurred. The problem with waiting to report an injury is that, if the employee waits too long, he or she may find that the law prevents the employee from being compensated for his or her injury or disease.

In Kentucky, an injured employee is not eligible for the benefits of worker’s compensation unless the employee reports the accident to his or her employer “as soon as practicable” and submits a claim for compensation (discussed at greater length below) within two years of the injury’s occurrence. While the two-year time period provides a bright-line rule for submitting the claim for compensation, Kentucky courts have been less clear about how soon is “as soon as practicable.” Although “as soon as practicable” does not mean that the employee must provide his or her employer with notice on the same day of the accident, courts have found that five months is too long to wait. Ultimately, because what amounts to “as soon as practicable” depends upon the unique facts of each case, the employee should report any accident to his or her employer as soon as the employee can, and the employee should do so regardless of whether he or she believes the injury is serious or not. Waiting to report the accident until all of the consequences of the injury are fully known may result in the passage of too much time and the employee’s loss of his or her benefits.

Keep On-Going Records

Although the process of applying for worker’s compensation will generate a great deal of paperwork, it is always wise for the injured employee to keep a detailed account of events for his or her own records. Included in the account should be a timeline of events, significant contacts with anyone involved in the injury, doctor’s appointments and doctor’s recommendations, interactions with the employee’s supervisors and employer, and any other significant event. In situations such as this, a detailed record of events can be critical in proving the injured employee’s right to certain benefits.

Final Thoughts

Although a work-related injury is never a welcomed event, Kentucky’s Workers’ Compensation laws do provide injured employees with a number of rights in the event of an accident. However, in order to benefit from all of the rights that an employee is entitled to, it is important that the employee take the necessary steps following his or her injury. It is only then that the injured employee can maximize all of the rights that he or she is entitled to under the law.

Additional Links

What to Do After an Accident at Work

Filing a Workers’ Compensation Claim – Kentucky

Kentucky Workers’ Comp Claims: Eligibility, Filing and Appeals

Two exceptions to this general rule are (1) when the employee intended to injure himself or herself or (2) when the injury occurred as a result of the employee ingesting intoxicating substances without a doctor’s prescription. 

Charles Clark v. W & M Kraft, Inc

Posted on Friday, September 30th, 2016 at 10:32 am    

Follow this link to read a 2007 decision in which Justin Lawrence successfully argued that his client, an employee of Consolidated Grain and Barge (CGB) qualified as a seaman under the law. Justin Lawrence also argued that W & M Kraft (corporation from South Carolina that provided safety consulting services to CGB) be held responsible for failing to make general safety recommendations in which would have protected Mr. Lawrence’s client at the time of accident. The client fell from a cell tower and onto a barge while working for CGB on the banks of the Ohio River.

Just another reason why Lawrence & Associates is always Working Hard for the Working Class. Follow the link for more details.

When a Civil Defendant Files for Bankruptcy

Posted on Monday, September 12th, 2016 at 10:09 pm    

Justin Lawrence wrote this article to teach other attorneys how to handle a personal injury case, such as a car accident or a slip-and-fall, when the defendant in the case files for bankruptcy.  If you have a personal injury or workers’ compensation claim, the case law and advice in this article can help you navigate the minefield that this situation creates – if and only if you are certain you fully understand the terminology and statutory law underlying the case decisions.

If you have any questions about how to pursue a personal injury or workers’ compensation claim when the responsible party is in bankruptcy, or how to navigate such a claim when you have to file bankruptcy, please give us a call.  We’re Working Hard for the Working Class, and we would like to help you!

Suing a Tortfeasor in Bankruptcy for Insurance Proceeds

Turner v. Midland Decision

Posted on Thursday, September 8th, 2016 at 10:13 pm    

Follow the link to read an important published decision by the Eastern District of Kentucky federal court, in which Justin Lawrence successfully argued that his admiralty client, a Jones Act Seaman working on the Ohio River, was entitled to proceed to a trial by jury on all his claims for damages.  Lawrence & Associates later settled the claim for a confidential amount.

Turner v. Midland

Thanks to Westlaw, a Thompson Reuters company that helps attorneys perform legal research, for providing this document.  Attorneys can find out more about Westlaw by following the link to their website.

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