Debate on Workers Comp Bill Heats Up

Senate Bill 45 Could Hurt Both Sides
by: David M. Benson, Ohio Lawyers Weekly

Many worker's compensation lawyers in Ohio are hopeful that the voters this November will undo a sweeping "reform" bill that was signed into law earlier this year but has yet to take effect.

If the ballot measure fails, the new law would, among other things:

  • reduce the period an employee can receive wage loss benefits from 200 weeks to 26 weeks;
  • eliminate "permanent total disability" in favor of "permanent total impairment";
  • tighten the definition of an "occupational disease" to exclude ailments that are currently compensable; and
  • reduce the "life of a claim" from 10 years from the date of the injury or diagnosis to five years.

Lawyers who represent claimants see the law as an "attack" on them.

"You watch. This issue is going to be framed on television and in the press as anti-attorney," a Cincinnati attorney recently told Ohio Lawyers Weekly. "And we lawyers are going to be easy targets."

Even some lawyers who represent employers say the law would hurt them as well.

"With this provision, the number of hearings should go down over time," said a Cleveland lawyer who represents employers. "That translates into less work for attorneys on both sides."

But other attorneys don't feel as threatened.

"The impact upon lawyers is not going to be as great as some would say," said George B. Wilkinson, an employer representative from Cincinnati. "What [the General Assembly is] trying to do here is simply make the system work smoother."

Permanent Partial Impairment

The pending legislation, known as Senate Bill 45, eliminates waiting periods for payment of permanent partial awards where the claimant is being terminated from temporary benefits after reaching a level of permanency.

But the law will also reduce wage loss benefits from the current 200 weeks to 26 weeks.

According to Jerry Schneiberg, assistant manager of Acordia Workers' Compensation Services, the current scheme is "extremely costly [and] more in line with a welfare benefit."

Cleveland attorney John M. Gundy Jr. disagrees.

"Wage loss offers a buffer to an injured worker who is forced to take a lower paying job or look for a different line of work because his injury prevents him from returning to his former occupation," said Gundy, who represents injured workers. "Twenty-six weeks is a very small buffer and will no doubt cause-severe financial handicap to many injured workers."

But Schneiberg countered that "providing over four years of ongoing benefits can be a huge burden to Ohio employers. It's a provision that was never intended when the workers' compensation system was originally enacted. Under the current system, an individual who cannot return to his former position of employment, but is capable of working, can continue to collect benefits for four years by simply making a half-hearted effort at seeking employment. This is simply too costly and unfair to Ohio employers."

Gundy said what "really bother[ed]" him was that the bill "no longer permits an injured worker to obtain a permanent partial examination from his own physician to object to the findings of the state physician. This important determination is left solely in the hands of physicians hired by the state."

Wilkinson, however, said the examination limit makes sense.

"To get the benefit to the employee right now, the employee gets an exam, the bureau does an exam, my doctor does an exam, [claimant's counsel] is hired to take it to hearing, I'm hired to take it to hearing, there's yet another appellate level," Wilkinson said. "[the employee] can get as many exams as he wants or I can get as many exams as I want and, if there's more than one condition, that guarantees that there are going to be at least two exams per side plus two by the bureau plus another bureau exam on the combination. At $300 a pop for the exams alone, you're talking big bucks overall."

The new system "eliminates [the employer's] doc," said Wilkinson. "it also eliminates [the employee's] doc but it basically says, 'Okay, we're going to accept the bureau doctor as the guy or gal and whatever they decide is what we're going to have and, if you don't like it, then you can get another bureau doctor at your expense and let the hearing officer choose between the two."

Permanent Total Impairment

Another controversial provision of the law would change the definition of "permanent total' injuries.

Schneiberg said the change is justified.

"Currently, we have a large percentage of injured workers' who are awarded permanent total disability who are well into their retirement years," Schneiberg said. "in S.B. 45, the decision-making process will be refocused on medical impairment as opposed to age and other disability factors - thereby limiting Permanent Total benefits to those individuals who are truly unable to return to the work force because of their work related injury."

But lawyers who represent employees see the change in more ominous terms.

"Under S.B. 45, only the impairment caused by the injury may be examined in determining the ability to return to work," observed Gundy. "It doesn't look at the whole person, just the injury. The age, education and general health of the injured worker is given little or no consideration. Obviously, the impact of a herniated disc on a 60-year-old life-long factory worker with a sixth grade education may not have the same impact on a 20-year-old college student, as to his or her ability to return to work. S.B. 45 would require the [Bureau of Worker's Compensation (BWC)] to look at these two individuals in [the] same way."

Occupational Disease

The law further seeks to change the definition of an "occupational disease."

The effect of this change, according to Gundy, would be to tighten eligibility for compensation for diseases contracted outside the workplace.

"The standard for defining an occupational disease, such as carpal tunnel syndrome, has been severely tightened," Gundy said. "The way the new law is written, it would arguably be impossible to have a carpal tunnel claim. The burden is on the claimant to show that the condition could not have arisen any place but in employment. The burden here is so high that it's virtually impossible to meet."

Schneiberg disagreed.

"Diseases can have dual or multiple components," he said. "This bill eliminates dual component injuries as occupational disease claims, by questioning whether the injury would have arisen 'but for' the industrial exposure peculiar to that industry."

The bill "also eliminates conditions caused primarily by natural determination," Schneiberg continued. "The intent is to end Ohio employers' paying for non-work-related diseases through the workers' compensation system. I don't know how anyone could argue that this is unfair or mean-spirited."

Reduction Of Claim Period

Another provision of the law which worries the claimants' bar is one that would reduce the life of a claim to five years from the date of the injury or diagnosis or five years from the last payment of compensation. Previously, a claim could stay open 10 years from last payment of compensation.

Gundy criticized the legislation for "severely impacting those injured workers who wish to delay surgery or those who may require follow up procedures. For example, many individuals who receive an artificial joint may need a replacement after five years. S.B. 45 could prevent the injured worker from receiving this replacement."

But Schneiberg said that this provision had merit.

"Older claims are [often] left 'opened' for sporadic unnecessary treatment or for the increase in the percentage of permanent partial disability compensation," said Schneiberg. "It is extremely costly to the BWC and Ohio employers to keep a claim opened. This is simply another provision to streamline the system without any, or minimal, effect to the injured worker. It is an effort to refocus resources to get injured workers back to work without the problems of delayed compensation and payment of medical bills. We shouldn't spend all our energies on whether or not an individual should get heat treatments on a soft tissue injury eight years after it occurred."