Posted By Charles J. Cochran, Jr. on February 27, 2009
I have been working in the field of Ohio Worker’s Compensation for about 18 years now. Recently, I became involved in a case where the Bureau of Worker’s Compensation is looking to set aside an award which they made two years ago for a percentage of disability ( this particular matter deals with a functional loss of use of a body part without amputation). This award was made under Ohio Revised Code 4123.57 (B) which is titled Partial Disability Compensation. This seemed to be a rather unusual matter so I checked into it with other Ohio attorneys whose practices centered in worker’s compensation and they had never heard of the Bureau taking that type of action for this type of award.
Ohio Revised Code 4123.57 (Partial disability compensation) basically provides for the recovery of a percentage of “whole person” disability under two statutory themes. The first, under ORC 4123.57(A), involves an actual percentage of disability which is calculated using the American Medical Associations Guides to the Evaluation of Permanent Impairment 5th ed. to provide a determination of the percentage of permanent disability which has been suffered to the Injured Worker’s whole body due to the injuries allowed in the Claim. The second theme, found in the same Section of the Statute under ORC 4123.57 (B) which sets the value, expressed in weeks, for parts of the body which have been amputated or, as construed by the Courts, which have suffered such damage that they are of no functional use. Under the second theme if some incidental use still exists an award still may be granted. It is under this second theme and under its functional loss portion that the matter which we are discussing is concerned.
It is not unusual for the Bureau to try to terminate permanent total disability where circumstances have changed and a person becomes able to work again. Ohio Revised Code 4123.58 which is titled Compensation for permanent total disability controls these type of awards and they are much like Social Security Disability since they require a person to be unable to work (at least not significantly) in order to qualify for the benefit. In fact, there is an Ohio Statute, found at ORC 4123.52, which gives the Industrial Commission, which is a branch of the Ohio Bureau of Worker’s Compensation, ”Continuing Jurisdiction” so they may reopen a case under certain circumstances.
In this particular matter the Bureau is alleging “new and changed circumstances” as the reason for their exercise of continuing jurisdiction to re-open and set aside this award for total loss of use of a body part. However, in this case it is not a question of being able to work, which is the central question in terminating a permanent total payment. The question here involves an alleged improvement in the current percentage of disability from that which existed at the time of the original award. There is no question that at the time that the award was given the Injured Worker was entitled to it. A Partial disability compensation award is given measured on the date of examination, or other date during the application process, without concern for a persons ability to work. In essence, the bureau awarded this Injured Worker a sum of money for his functional loss of use of a portion of his body at a particular place and time.
I can understand that if an Injured Worker is being paid on a regular basis because they cannot return to work and then that worker becomes able to work that the Bureau might be able to inquire into and if proper stop future payments. Permanent Total Disability also provides that a person must remain qualified to receive current payments. The injured worker is well aware of this continuing requirement concerning the extent of their disability and accepts their payments with the understanding that if they ever physically improve sufficiently they may be disqualified from receiving future payments and they are really not entitled to receive payments from the time that they become able to work gainfully.
This is not the case where an injured worker has received an award of Permanent Partial Disability. The injured worker receives a one time lump sum payment, in the majority of circumstances, and does not have an opportunity for any additional payment unless their condition worsens causing them additional disability. In many instances where the injured worker seeks an increase of permanent partial disability they must present their own doctor’s opinion to establish their condition has worsened since the last such award before they may even file the application for an increase in permanent partial disability. But in those instances the worker will still be examined by a doctor hired by the Bureau for purposes of determining their current percentage of disability to determine if they are entitled to any additional award.
As an example of how this new policy might work against an injured worker who might be seeking an increase in permanent partial disability. Assume that the Injured Worker has received an initial payment for permanent partial disability under their claim. Then later that same worker files for an increase in their permanent partial disability. Then the injured worker is examined by the Bureau of Workers Compensation again and a determination is made regarding that persons current percentage of disability. If the injured worker has an increased disability they may be entitled to an increase in the permanent partial disability to which they are entitled. However, if the doctor determines they are entitled to a lesser percentage of disability does that mean that now, because the Bureau of Worker’s Compensation decision to change their policy, they could be required to pay back any difference to the Bureau? Remember, any additional award is just that and the worker is not entitled to be paid twice for the same percentage of disability for which they have already been paid in the prior award. The amount of prior disability is taken out of any subsequent award before it is disbursed to the Injured Worker. What a risk the injured worker could be taking in attempting to assert a right which they believe they might have for an increased amount of disability. Even when the worker’s own doctor has provided a report which states increased disability since the last award they may face a ruling at hearing finding a lesser disability. It would seem a fairly simple procedural matter for the Bureau of Worker’s Compensation to wait out the appeal period, where a finding of a lesser percentage of permanent partial disability issues, and then file a Motion for an Overpayment under the first award of Permanent Partial Disability based upon the new lesser percentage of disability finding.
A New Ohio Workers Compensation disability policy is appearing.
The Bureau of Workers Compensation now alleges the injured worker regained a portion of this functional loss of use and therefore is not entitled to the entire award. This raises some very interesting questions for the injured worker and attorney alike. Most attorneys who work in his field are paid by taking a percentage of the permanent partial award as their fee. The attorney takes this fee at the time of award and then disburses the remainder, less any costs involved, to the injured worker. If these awards are not permanent and a client recovers from the injury, after the award is made, will she need to pay back the entire percentage of improvement to the bureau of worker’s compensation. This would also include a portion of the Attorney’s fee which was based, in most instances, upon the entire amount of the initial award. Of course if fraud, mistake or potential other very limited situations are not involved then the obligation to repay any sum would be charged against the receipt of future benefits. (and then only against some types of benefit). Still I do not think that an injured worker will appreciate the fact that at a time when she needs the help of full worker’s compensation benefits, in the future, those benefits could be reduced for a period of time until she has paid back any sum that the Bureau of Worker’s Compensation has determined to be an overpayment. This matter seems to be one which could have substantial impact upon practitioners and injured workers alike. As an interesting note there could also be an impact upon the Bureau if this increases Motion practice and litigation.
What could be the impact of this “New Policy” initiative to the Injured Worker or the Bureau of Worker’s Compensation itself?
It seems to me that if the Bureau of Worker’s Compensation is going to take these type of actions that it will discourage people who are injured at work in attempting a full recovery from their injuries. That is not to say that an injured worker will not attempt to recover from the injury but rather it could discourage them at a time when they could use all of the support which they can muster. Further, it could easily discourage a worker from seeking an increase in their prior disability award where a new decision could put them into a position where the new disability determination causes the Bureau of Worker’s Compensation to obtain an over payment order against them for the money which they have already received. Additionally, it raises a question regarding the fee which the Attorney earned in the initial determination of percentage of disability if that award is then later reduced. The question of finality to any judgment is raised in this scenario and it does not have a good answer to it. In prior use the exercise of continuing jurisdiction by the Ohio Industrial Commission (which itself is the enforcement arm of the Ohio Bureau of Worker’s Compensation) seemed to be mostly limited to providing oversight over Permanent Total Awards, to permit an increase in Permanent Partial Awards, to permit book keeping and other error type corrections and to my recollection for other minimally intrusive reasons. There is no real problem where the Commission is using its “continuing jurisdiction” when dealing with mistakes or fraud since for those situations it only makes common sense that a tool should exist, with reasonable limits upon it, to provide fairness to the process. After all the State Fund should not have its funds stripped away wrongfully and it is not the Lottery.
The Bureau of Worker’s Compensation itself is buying into an area of extreme controversy if it claims it now has continuing jurisdiction to redetermine, at any given time for as long as the period for continuing jurisdiction may be exercised, many of the prior permanent partial disability cases which it has determined simply upon the basis of the existence of “new and changed circumstances”. In effect, a finding in this case adverse to the injured worker, will also provide a definition for “new and changed circumstances” which includes a decrease in the current percentage of existing physical disability as one type of new and changed circumstances which is actionable. With the four-fold increase of Worker’s Compensation premium over the last few years I would expect many Employers to be very interested in the outcome of this matter. After all, percentage of permanent partial awards make up part of the claim expenses which go into calculating their insurance premiums. I also wonder if the Bureau Actuaries who calculate the reserves which are to be set on each claim will also be considering the estimated recovery rate for particular types of injury as well as any future expense reductions which occur when over payments are set off against future benefits. This could be the birth of a new legal niche triggered by these future “Decrease in Permanent Partial Disability Cases” ? I would really be interested in any comments which anyone has on this subject.