The media often reports that Ohio is
stigmatized with a reputation of being "claimant"
friendly when it comes to administering workers
compensation benefits. This is said to translate into
abnormally high workers compensation premiums to be paid
by Ohio's employers.
Over the years Ohio's legislators and
the Bureau of Workers Compensation (BWC) have taken
measures to reduce the costs of providing workers
compensation benefits. Various incentives and mandates
have been instituted that are designed to limit usage
and thus reduce costs.
The OPBA's members are all affected
by Ohio's system of workers compensation. As is the case
with all other Ohio workers, the only way law
enforcement personnel can seek recourse for their
work-place injuries is through the workers' compensation
system.
While the OPBA's members are
exclusively dependent on workers compensation, the OPBA
has absolutely no ability to negotiate any aspect of
workers compensation. It is one of the handful of
subjects that are expressly prohibited from bargaining
in Ohio (the others – retirement benefits, unemployment
compensation, affirmative action and civil rights
issues).
Even though the matter of workers
compensation is excluded from collective bargaining the
OPBA still deals with many workers compensation issues
and disputes.
The matters that I have addressed
over the years certainly confirm that great efforts are
being made to reduce workers compensation costs to
Ohio's employers.
The fact that workers compensation
premiums are costly is evidenced very simply in many
OPBA contracts. Contracts that provide for "wage
continuation" or regular "duty injury leave" are all
designed to provide the injured employee with his full
salary during his period of injury. Several years ago
almost all such provisions required the injured employee
to file for workers compensation "lost wages" in order
to receive the employer's fully paid injury leave.
These same provisions then required
the employee to "sign over" his workers compensation
"lost wages" to the employer. In exchange the employee
received his regular pay check from the employer.
Under this circumstance the
employer's workers compensation premiums were liable to
rise upon each employee's claim for lost wages.
Employers did not consider this a problem until the cost
of the premium got so high that employers were forced to
find cheaper alternatives.
Over the years many of the OPBA's
contracts have been modified to now provide for wage
continuation and duty injury benefits that are fully
paid by the employer with no reliance on a "lost wage"
reimbursement. In these converted provisions employees
are now actually prohibited from filing for "lost
wages".
Obviously, workers compensation
premiums have become so expensive that it is more cost
effective for the employer to pay the full salary itself
(with a cheaper premium) rather than pay a portion of
the full salary (with an expensive premium). Employers
are fighting their high premiums by simply avoiding the
filing of costly claims.
Just recently I discovered, along
with an injured municipal police officer, that time
spent on workers compensation, when full salary is not
being paid, is time not counted as service credit for
retirement. Since retirement issues are excluded from
bargaining this is a harsh result that can only be
changed politically.
The officer involved in this matter
was injured in the line of duty and pursuant to his OPBA
contract he was entitled to his full salary for 120
days. To get that benefit he was not required to apply
for workers compensation "lost wages".
Unfortunately, the officer was not
able to recover from his injuries during the 120 day
period. Remaining unable to return to work, his contract
required him to apply for workers compensation "lost
wages", which would then serve as his sole income until
his full recovery and return to duty.
This scenario left the officer
wondering whether he would accrue service credit for
pension purposes with the Ohio Police & Fire Disability
Pension Fund (OPFPF) during the time that he was on
workers compensation. Not knowing the answer off-hand I
was forced to research the matter.
The Ohio Revised Code (ORC) section
establishing and administering the OPFPF is Section 742.
All the subsections to that section are silent on this
issue.
There is a subsection, R.C. 742.221,
that addresses service credit for time spent while on
pregnancy or medical disability leave. Pursuant to this
provision employees who miss time for pregnancy or off
duty illnesses or injuries are able to obtain pension
service credit by making their own monetary
contributions for each hour that they missed from work.
One would think that if OPFPF affords
ill and pregnant employees the ability to accrue service
credit during their absence, then certainly it would
allow the injured worker to do the same. After all,
injured workers incur their injuries in the line of duty
and theoretically should not suffer any loss of wages or
benefits.
I contacted the Legal Department at
OPFPF and requested it to provide a definitive answer to
our issue – does service credit accrue for injured
employees that are exclusively on workers compensation?
I pointed out that it should since the same is
specifically authorized for the ill and pregnant
employee.
The OPFPF Legal Department informed
me that they had never been confronted with this issue
and did not know the answer. As a case of "first
impression" they decided to meet as an entity with all
of the Agency's administrators, to consider the issue
and to render a definitive and binding answer.
A few weeks later I received a voice
mail from the OPFPF Legal Department that it had been
decided that employees exclusively on workers
compensation "lost wages" do not receive service credit
and do not fall within the definition of an employee
with a medical disability and thus could not obtain
credit by making their own contributions. What a harsh,
unfair and unappealable verdict!
When employees are either on workers
compensation "lost wages" exclusively or in combination
with a wage continuation program they are probably
subject to the BWC's "Transitional Work Policies". This
is a program unilaterally established by the BWC that is
designed to get the employee back to work in some
fashion prior to the employee's full recovery.
Obviously, this serves to lower the employer's workers
compensation costs.
Under these policies, injured
employees can be made to return to work to perform
"light duty" in the amount and to the extent permitted
by the injured employee's doctor. This assumes that the
employer has light duty available and there is no
controversy in regard to the employee's ability to
perform it.
As you might know there have been
instances of employers not believing their injured
employees and/or those employees' treating physicians in
regard to the issue of the employee's disability.
Recently, I was asked if it was permissible for a
Department to send a police supervisor to visit an
injured employee's treating physician to make inquiries
regarding the employee's injuries and/or capabilities of
returning to work.
Even though the answer to that
question is not actually written, the answer is no. The
answer is no because employers are only entitled to
medical information that is transmitted in writing,
pursuant to a specific medical release.
The employer who has a need to obtain
information about an injured employee's medical
condition may send that employee to the employer's
physician, at the employer's expense. The employer may
also obtain information from the employee's physician,
but only to the extent as set forth in a specific
"Medical Release".
The ORC requires that all employees
execute a Medical Release (to their employer) in order
for them to obtain any workers compensation benefits.
Fortunately, the release that is required to be executed
is not just any release – it is a specific BWC form.
The information required to be
submitted per the BWC form is all of the information
from the employee's physician that can ever .be
discovered by the employer. The employer is not
authorized to obtain any other information in any other
manner beyond that form, except through its own
physician's medical examination of the employee. Thus, a
Department that visits the employee's doctor or
otherwise makes any additional inquiries to the doctor
does so without legal authority.
While the issue of workers
compensation is excluded from bargaining, it is not
excluded from the many issues that we address on behalf
of the OPBA.
