by Lauren Osgood | Oct 18, 2021 | Workers' Compensation
A recent change in the law has made the question or whether an injured worker is eligible for temporary total benefits much more confusing. While the legislature attempted to make Ohio Revised Code 4123.56(F) clearer as to eligibility, in practice, this has not been the case. Typically speaking, if an injured worker has sustained injuries that would prevent a return to their former position of employment, they would be eligible for benefits. However, under the new law, the critical determination is whether an injured workers is suffering a wage loss as a direct result of an impairment arising from an injury or occupational disease.
In practice, this new law has presented a variety of interpretations of the law. This has led to some confusion among practitioners and injured workers related to whether an injured worker will ultimately be awarded compensation under workers’ compensation or whether benefits should be considered outside of workers’ compensation. These are very fact specific questions. For example, an injured worker who has restrictions and continues to work with these restrictions but is terminated during the time while he is working with restrictions may face a question as to whether he is entitled to benefits. On the one hand, the injured worker is not capable of returning to their former position of employment. On the other hand, the employer would argue that the lack of work is not due to the injury but rather is due to the termination.
While voluntary abandonment or more specifically a consideration of whether a written work rule was violated that lead to their termination has been extinguished, there typically are still arguments made related to whether the termination is justified. Ultimately, it does not matter whether a termination was handled appropriately, rather the only thing that should be considered is whether the allowed conditions are the basis for the wage loss. In doing away with voluntary abandonment, all the prior case law has also been abolished. That leaves practitioners freedom to ask a hearing officer to interpret the new law as they understand it. It is important to keep in mind that voluntary abandonment has gone hand in hand with temporary total disability for a long time, so while it has been removed from the law, it still comes up frequently. To further complicate matters there are situations where an injured worker is not in the workforce at the time that they require further treatment, perhaps even a surgery, that would preclude a return to work. These situations become increasingly complicated with the change in the law as there are arguments raised regarding whether there are wages to be replaced. This is no longer a consideration for eligibility. Rather if there is a treatment being offered that leads your doctor to remove you from work, temporary total disability should be considered.
With this new change in the law, there are some very interesting legal questions that remain. First & foremost, there are countless situations that our team has encountered where an injured worker’s loss of income is the direct result of their injury and their termination. The new law is silent about what to do in this situation. It is important to know that when a statute is silent it must be liberally construed in favor of the injured worker. Thus, where there is some argument that both termination & the injuries were responsible for the lack of income, an injured worker should be paid temporary total disability. However, if it is determined that the loss of income is due to the termination, there may be an opportunity for a wrongful termination action to be brought to protect a person’s eligibility for benefits. So in many instances, if an injured worker is turned down through workers’ compensation, there may be another venue to claim eligibility for benefits.
The Bainbridge Firm has been vigorously pursuing temporary total benefits for our clients. There has been an increase in hearings regarding whether clients are eligible for temporary total disability because of the change in the law. As has been delineated in this blog, this is a fact-specific and constantly changing law. There will be case law coming but with the law just becoming effective the courts have not had the opportunity to make a ruling. This will be an important law moving forward as it will dictate eligibility for workers during all phases of their claims. It will also dictate how employers will handle injured workers after they injured. With this relatively new change in the law and it just now being interpreted across the state, it is important to involve an attorney early on. Each situation is fact-specific, and it will be important to have the information presented appropriately at a hearing.
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