Summary of the New Wage Loss Rules

May 1, 2014Articles

As seen in the Workers’ Compensation Journal of Ohio May/June 2014 issue (Volume 28, Issue 4)

After much anticipation, the changes to Ohio Administrative Code §4125-1-01 went into effect on February 13, 2014. Wage loss undoubtedly receives far less attention in the judiciary than its statutory cousin temporary total disability, with whom it shares Ohio Revised Code §4123.56. So, what has changed since Valentine’s Day? How do these new rules compare? What controls have been added for the self-insuring employer and the Bureau? What new requirements have been placed on the injured worker requesting entitlement to wage loss? The revised rules provide some give and take for both sides. There are now some significant new tools for the self-insuring employer and/or Bureau to reign in more control over the ongoing entitlement to wage loss, while the injured worker may be relieved of his or her requirements in some circumstances.

The first difference between the new and old rules is the truncated definition section, which is reduced from nineteen defined terms to fifteen. Most of the identified terms remain unchanged from the prior statute. However, “retirement”, “voluntary separation from employment”, and “discharge for just cause” have been combined into a single definition – “voluntary retirement”, which is defined as “voluntary termination of employment by an injured worker such that the injured worker is completely removed from the active work force based on factors that are not causally related to the allowed conditions in the claim.” Gone is language regarding violations of federal, state, and local law; breach of the contract for hire; and violation of a work rule or policy clearly defining prohibited conduct previously identified by the employer as a dischargeable offense. Instead, the drafters elected move away from terminology familiar to us as bars to temporary total disability benefits and provide a more vague term to define a separation from employment.

The application requirements for wage loss remain primarily the same. As was the case with the former rules, the injured worker must still file a copy of the application with the Bureau, or with the self-insuring employer. Either the Bureau or the self-insuring employer has thirty days from the filing of the application to determine whether to pay the requested wage loss, or the matter will be referred to the Industrial Commission for hearing. The application must be accompanied by a medical report identifying the restrictions of the injured worker, an opinion as to whether the restrictions are permanent or temporary, the date of the last medical examination, the date of the report, the name of the physician who authored the report, and the physician’s signature. If the restrictions are temporary, an opinion as to the expected duration of the restrictions is required, and temporary restrictions cannot be certified for a period exceeding ninety days without a new examination of the injured worker. If the restrictions are permanent, the restrictions must be based on an examination or treatment conducted within ninety days prior to the initial date of wage loss compensation being requested.

In regards to supplemental medical records, there has been one significant change alleviating a burden on the injured worker and placing a burden on the Bureau or self-insuring employer if restrictions are permanent. If restrictions are permanent, the Bureau or self-insuring employer may request a supplemental medical report once every one hundred eighty days. This is a change from the previous rules, which dictated that the injured worker had to submit a supplemental report every one hundred eighty days regardless of whether the Bureau or self-insuring employer requested one.

The injured worker now bears additional responsibilities in order to be entitled wage loss. For both working and non-working wage loss, the injured worker still must complete job search statements every week. However, there are new exceptions eliminating the job search requirement for receipt of working wage loss. The first exception dictates that the job search statements describing the injured worker’s search for comparably paying work may be excused by the Bureau, the Industrial Commission, or the self-insuring employer. No such language was found in the former rules. A job search will also not be required in a working wage loss application where the injured worker returns to alternative employment with the same employer, or another employer at the direction of the employer of record. Such circumstances could include modified off-site duty. A job search is also excused in a working wage loss application if the injured worker must miss work in order to obtain treatment for the allowed conditions that cannot be obtained outside of work hours. This exception is a codification of State ex rel. Williams-Laker v. Industrial Comm’n, 80 Ohio St. 3d 694, 687 N.E.2d 1379, 1998 Ohio 169, (1998). In order for this exception to apply, the treatment must be medically necessary for the injured worker to perform his or her job, the injured worker could not continue to work full time without the treatment, and the treatment must be available only during the injured worker’s hours of employment.

Unless an exception applies, the injured worker must still submit weekly job search forms every four weeks to either the Bureau or self-insuring employer to be entitled to both forms of wage loss. These job search statements must include the address of the employer contacted, the employer’s telephone number, the position sought, a reasonable identification by name or position of the person contacted, and the date and method of contact. New is the requirement that for an on-line job search, the injured worker must produce a copy of the on-line posting and verification of application submission, the result of the contact, and any other information requested by the Bureau job search statement. Gone is the non-verifiable argument from the injured worker that he or she spent hours on the computer performing a job search – now, an online job search must bear fruit in the form of confirmation of an opening and an application submission.

Under the old rules, the injured worker was required to seek suitable employment with the employer of record at the outset of the application and register with the Ohio Department of Jobs and Family Services. The new rule has tweaked these requirements. Now, the injured worker must seek suitable employment with the employer of record unless the injured worker establishes that it is futile to seek employment with the employer. The rules lists examples applying this exception (e.g. where the employer of record is out of business or where the injured worker was discharged from employment). The requirement that the injured worker register with the Ohio Department of Jobs and Family Services now applies only to the non-working wage loss scenario.

Similar to the prior rules, the injured worker is required to expand his or her job search to include entry level and/or unskilled employment opportunities if after sixty days he or she is unable to find employment within his or her skills, prior employment history, and educational background. A good faith effort is still defined as the injured worker’s consistent, sincere, and best attempts to obtain suitable employment that will eliminate the wage loss. In defining a good faith effort, the new rules provided the same fifteen enumerated factors to consider as the prior rule.

The injured worker’s failure to accept a good faith offer of suitable employment can serve as a bar to wage loss benefits. Just as before, offers of suitable employment by the employer of record must be made in writing, contain a reasonable description of job duties, hours, and rate of pay to be given consideration. A lower standard is applied to job offers made by employers other than the employer of record – any description shall be considered. An injured worker still is not be required to accept a job offer which would require more hours per week than the former position of employment. However, the new statute allows the adjudicator to consider an employer’s requirement that the injured worker work different shift or relocate as factors in determining whether the injured worker failed to accept a good faith offer of suitable employment.

All told, the new wage loss rules make some subtle changes, but these subtleties can have significant impact on the success of a wage loss application and the right to continued benefits.