By Grace Szubski
The legal term “statute of limitations” has significance in an Ohio workers’ compensation claim. In simple terms it means a “deadline” for taking some sort of action for or with a claim. Here are some significant deadlines:
DEADLINE TO FILE A CLAIM
First, there is the statute of limitations for filing a claim with the Ohio BWC. An injured worker has TWO years from the date of an accident at work to file a claim with the Ohio BWC. An injured worker has TWO years from a date of diagnosis of an occupational disease to also file claim. There are some nuances to filing deadlines for occupational disease claims, but this is the general rule. Your attorney can provide further guidance on filing dates for an occupational disease. The point, however, is that a claim must be timely filed timely or an injured worker is barred from pursuing the claim. The burden for filing a claim is on the injured worker.
Also, all body parts must be alleged within two years. Otherwise, an injured worker is precluded from amending the allowance of a claim for body parts not alleged within that time frame. This is why it is important to be precise in listing the conditions and body parts that are alleged on an application for a new claim. It is also important to tell the doctor, urgent care facility or emergency room exactly how an accident happened and what you hurt.
DEADLINE TO SUBMIT MEDICAL BILLS FOR PAYMENT
Second, there is a ONE year statute of limitation for filing a medical bill for payment. This means one year from the date of the medical service. The bill must be submitted for payment within that time frame to either the Ohio BWC/Managed Care Organization (MCO) or the self -insured employer’s representative. Make sure your medical provider has the claim number and contact information to submit any bills in a timely manner.
DEADLINE FOR CLAIM TO EXPIRE
Third, an Ohio workers’ compensation claim expires if there is no activity after a certain period of time. The expiration date can be FIVE years or TEN years from the last date a medical bill or compensation is paid in the claim. The date of accident or diagnosis of an occupational disease determines whether the claim has a five year or ten statute of limitation. Your attorney can give you further guidance on the applicable date.
There are other statute dates to consider and be aware of in an Ohio workers’ compensation claim. This is an overview of the more important and universal dates for consideration in a claim.
By Grace A. Szubski
The pitfalls of social media are widely publicized. Your privacy on the internet should always be a concern. This is a particularly true if you have a pending workers’ compensation claim. So this is a friendly reminder to be cautious about your posts on social media.
Surveillance is no longer restricted to the old fashioned private investigator. Surveillance now encompasses social media and other information that can be accessed via the internet. Your employer and/or the Ohio BWC representatives may very well be monitoring your activities on Facebook, Twitter, Instagram etc. Information about other legal matters can easily accessed such as a prior criminal record or other civil litigation matters Some information is merely public record. Other times you can help yourself by not giving your adversaries fodder to challenge your claim.
Here are some general suggestions:
1) Do not post derogatory remarks about your employer, co-workers or supervisor on social media. If your claim goes to a hearing such posts can be used to attack your credibility. If nothing else, it may motivate your employer to be more aggressive against your claim.
2) Review your past social media posts. If there is even a hint that something could be considered contrary to what you are alleging in your claim, then delete the post immediately. What you may think is inconsequential can be construed differently by your employer or the Ohio BWC. This is particularly important if you were granted permanent total disability or a loss of use award. An example: A client alleged an injury to her wrist at work. The employer used her Facebook posts to argue against the claim. The employer argued that the wrist apparently was not injured if she was able to bake large quantities of holiday cookies. There were photos of the client using a commercial size mixer, hand mixing cookie dough with the injured wrist, and hundreds of cookies as the finished product.
3) Consider suspending your social media accounts if you can’t trust yourself to be impulsive while a claim is being adjudicated.
4) Review your resume and past work history on your social media profiles, especially LinkedIn. Or even consider taking down a LinkedIn account. Another example: a client filed for permanent total disability. He opened a Linked In account with the intent of only keeping in touch with former co-workers. However, such an account raised the possibility that he was ready and able to return to work. Obviously this was contrary to what was being sought after with the permanent total disability application.
Bottom line, THINK before you post!
WHAT IS THIS NEW LAW?
On January 4, Governor Kasich signed into law the “Michael Louis Palumbo Jr. Act”. This new law was specifically passed for the benefit of Ohio’s fire fighters, whether voluntary or full time, who contract cancer. The bill creates a rebuttable presumption that their cancer was caused by their injurious exposure to chemical toxins while in the course and scope of their employment, thereby rendering firefighters eligible for workers’ compensation benefits.
The presumption of the firefighter’s work related cancer can be rebutted by the employer if: 1) the alleged cancer preexisted before the firefighter became a member of the fire department; 2) the cancer was caused by exposure to tobacco products that presented a significant factor in the cause or progression of the disease; 3) the firefighter was not exposed to an agent as classified by the IARC (International Agency for Research on Cancer) as a group 1 or 2a carcinogens; or 4) the firefighter is 70 years of age or older.
WHAT DOES THIS MEAN FOR FIREFIGHTERS?
The passage of this law is a giant step forward for the protection of firefighters who will no longer be required at great expense and effort to prove by a preponderance of the evidence, that their cancer was caused by their exposure to carcinogenic toxins while working. It is encouraging to note that Ohio’s General Assembly has at long last recognized that firefighters have a greater risk of contracting certain occupational cancers than the larger working population. There are many other jobs that also present a greater risk to its workers of contracting an occupational cancer. We would hope that the General Assembly will see fit someday to expand the “Michael Louis Palumbo Jr. Act” to include these other occupations that pose a similar heightened risk to its workers.
WHAT DO OTHER FIREFIGHTERS THINK?
An acquaintance of Garson Johnson Attorneys and Lanny Solomon, Bill Mastroianni, was quoted in the News Harold Article.
“An untold amount of time and hard work has gone into making this law a reality,” said Lt. Bill Mastroianni of Euclid Fire Department. “It is appropriate that Gov. Kasich is giving this law the attention it deserves by signing it surrounded by the firefighters that it will help protect."
Are you a firefighter that needs help with workers' compensation issues? Call our experienced attorneys to learn how we can help you at (216) 696-9330.
On December 8, 2016, the Ohio Supreme Court held in THE STATE EX REL OHIO PRESBYTERIAN RETIREMENT SERVICES,INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-8024.pdf. that Sherry Redwine, an injured worker could not receive an award of Permanent Partial Disability (PPD) once an award of Permanent Total Disability (PTD) had been granted. Sherry Redwine, the claimant, had been awarded PTD solely for her work related psychological conditions. In addition to her psychological injury she also sustained physical injuries in the same claim. She contended that since her award of PTD was not based upon her physical injuries, she was therefore entitled to receive a PPD award on the physical injury alone. The Ohio Supreme Court in a 5- 2 per curiam decision held that the receiving of PPD and PTD in the same claim at the same time is a concurrent payment not authorized by statute. The Court specifically found that R.C. 4123.57 and 4123.58 do not “expressly authorize concurrent payment of PPD and PTD compensation”
The claimant successfully argued in the Court of Appeals that absent specific statutory language to the contrary R.C. 4123.95 requires a liberal construction in favor of the injured worker. The Supreme Court rejected that argument and held that “R.C. 4123.95 does not authorize courts to alter the meaning of unambiguous statutory language … Thus, the court of appeals could not read into either R.C. 4123.57 or 4123.58 authority to award concurrent permanent-partial-disability and permanent-total-disability compensation.”
WHAT DOES THIS MEAN TO YOU?
Claimants can still pursue Permanent Partial Disability (PPD) awards prior to the awarding of Permanent Total Disability (PTD) benefits. However once PTD is awarded, claimants may no longer apply and receive any further PPD compensation in the same claim.
Do you have an experienced attorney that focuses on Ohio Workers' Compensation? If you are not represented or your attorney isn't up to date on the current decisions, you may be missing compensation due to you. Call Garson Johnson at (216) 696-9330 if you have questions regarding your workers' compensation case.
Why do workers continue to die in the workplace in light of all the technological advances that have been made? The answer is that worker safety is a low priority due to lack of government oversight. Non enforcement of safety laws and regulations puts workers at risk. There is no financial disincentive for an employer who willfully ignores safety regulations when lawmakers see workers as the problem and businesses as the victims of workers’ compensation and safety requirements.
The AFL-CIO recently published “Death on the Job: The Toll of Neglect”. The thrust of the report is that no worker should have to die in the workplace and risk their life to make a living because companies are permitted to save money by cutting corners on safety protections. Yet this is precisely what a lack of government oversight and enforcement has created. TheOccupational Safety and Health Administration (OSHA), the government agency that inspects workplaces, can today only inspect a workplace once every 145 years. In 1992 they had the resources to inspect a workplace once every 84 years. This is no different than having a fire department that can only respond after the fire has burned down the house. No one would tolerate such a fire department, but such neglect has become acceptable in workplace safety.
Here are some disturbing statistics: Workplace violence particularly against women in healthcare is up 60% while job injuries have declined; fatalities among older workers has increased; fatalities among Latino workers is higher than the national rate; 50,000 – 60,000 workers died from occupational diseases like asbestosis, cancers and other respiratory conditions which were preventable if safety regulations were enforced.
Safety will not be enforced unless workers are willing to pursue their claims and rights under workers’ compensation laws that have been established for the benefit of workers and their families. Call an experienced attorney in workers’ compensation law to pursue your compensation and medical benefits and to make your workplace safer for you and your co-workers.
By Stuart Garson
Check out Attorney Johnson's answer to this frequently asked question.
Every 2 years, Ohio businesses can choose a new Managed Care Organization. From May 2, 2016 to May 27, 2016, Ohio employers can review the effectiveness and the report card to confirm or change the MCO managing the businesses workers compensation claims.If you have a workers compensation claim, your MCO and your MCO contact may change.If you have an active claim, do not be alarmed if you receive C-9 approvals or denials from a different company and address. On July 4, 2016, the new changes will take effect. Please contact us at Garson Johnson if you have any questions.
For more information, visit the BWC website.
Ohio Truck Driver Dies of Heart Attack on the Road
Doesn’t sound like a workers compensation claim? Think again. The dedicated wife of this truck driver spoke to several attorneys. She had a story to tell and some serious concerns about the details of the accident. The other attorneys did not believe she had a case to pursue.
Find an attorney that listens, thinks creatively, and solves problems.
The wife contacted Jeff Johnson. Attorney Johnson listened intently to the wife and her story. Her husband had repeatedly mentioned that the brakes needed to be replaced on the trailer of the semi he was driving. Jeff Johnson spent time reviewing the autopsy reports. Johnson also researched the Ohio State Highway Patrol crash report and Public Utilities Commission of Ohioreport of the vehicle that confirmed 50% of the axle brakes were not operable on the trailer.
With the aid of a medical expert, Garson Johnson was able to prove the trailer brakes failed. The crash report showed severe skidding. The skidding demonstrated the driver attempted to negotiate the turn and stop but was unsuccessful. Attorney Johnson was able to demonstrate brake failure caused the heart attack when the man realized he was going to crash. The Ohio workers compensation claim was approved. His widow was awarded death benefits for the rest of her life
Article II Section 35 of the Ohio Constitution ; “For the purpose of providing compensation to workers and their dependents … laws may be passed establishing a state fund.” This is why the injured worker fund is called the Workers’ Compensation System and not the Employers’ Compensation System. Recently the Ohio Bureau of Workers’ Compensation (BWC) announced a reduction in employers’ premiums of $113 Million dollars. When combined with other premium reductions going back to 2011 employers’ premiums have been reduced by over 28%.
Ohio employers get reduction in workers’ compensation premiums_
It’s important to note this situation if and when you hear the BWC, business trade group representatives or elected officials suggest that injured worker benefits need to be reduced because the injured worker fund is running out of money. This would be a gross misrepresentation of the facts that needs to be refuted when it is raised. There is actually a compelling argument to be made that injured workers should receive an increase in their compensation and medical benefits since the BWC has instituted these significant premium rate reductions.
Where is the money coming from that allows the BWC to substantially lower employer premiums? There are a number of economic circumstances responsible for this situation, but chief among them is that the system is an adversarial one. Claims that should be summarily approved are fought by the BWC and employers alike. Many of you who have had your workers’ compensation claims contested know first-hand how difficult it can be to navigate the BWC system successfully.
Garson Johnson LLC is willing to review your situation free of charge to explain the complicated aspects of the BWC system and various benefits to which you may be entitled regarding your claim. If your injury is serious enough that you 1) seek ongoing medical treatment or; 2) lose time from work or; 3) have an ongoing concern about future treatment or lost time then you probably will benefit from a review of your claim. Unlike wine, a workers’ compensation claim does not get better over time if it is ignored.
By Stuart Garson. Partner | Attorney
While working as an EMT Apprentice, “Sam” was struck on the side of the road by a drunk driver. The tragedy could have wrecked his life. Sam lost his leg and had severe injury to his lungs making it difficult to breath. Instead of giving up, Sam worked tirelessly to put his life back together. He returned to work as a nurse thanks to a vocational rehabilitation program. Sam’s previous attorney was out of option.
Then, Sam asked for a second opinion and found Jeff Johnson. Attorney Johnson researched the case, the benefits and creatively and systematically identified legal options for Sam. Jeff Johnson’s knowledge of the law, Supreme Court decisions and Senate Bill 7 allowed Sam to apply for statutory permanent and total benefits.
Statutory Permanent total disability (PTD) is defined in the Ohio Code as:
Statutory permanent and total disability pursuant to division (C) of section 4123.58 of the Revised Code, due to the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the injured worker shall be found permanently and totally disabled, and a tentative order shall be issued.
The complexity of this case is that Sam lost 1 leg. How then did statutory PTD apply? Attorney Johnson is familiar with the Thomas V. Industrial Commission Supreme Court decision that applies to all injuries prior to the passing of Senate Bill 7 in June of 2006. This decision says that when an injured worker loses the use of or amputation of the entire extremity or limb it is actually 2 body parts. While Sam lost his entire leg, he actually lost the use of his leg and his foot meaning 2 body parts.
Because of the severity of these types of cases, Statutory PTD compensation is payable for life and the person is able to work at whatever capacity possible.
Workers comp injuries can be draining to you physically, mentally, and financially. Your story may not be as dramatic as Sam’s story. No matter the severity, don’t lose hope and do not let your workers compensation claim rule your life. Stay positive.
A POSITIVE ATTITUDE GIVES YOU POWER OVER YOUR CIRCUMSTANCES INSTEAD OF YOUR CIRCUMSTANCES HAVING POWER OVER YOU.