Proposed Legislation in Ohio Workers’ Compensation:The Good,The Bad & The Ugly

by Dean Pavick on April 21, 2012

On 4/17/2012 H.B.No.517 was introduced into the Ohio House of Representatives.Considering that most legislation in the area of Ohio Workers’ Compensation Law over the last two decades has significantly eroded the rights of Ohio injured workers,it is not surprising that the highly partisan and pro big business forces are at it again.On the “bad’ side, the bill appears to open the door for the BWC to further limit the injured’s worker’s free choice of a physician by driving out certified healthcare providers who are more interested in the welfare of the patient than in the bottom line cost cutting goals of the BWC.My guess is that this is the beginning of slowly herding injured workers into BWC/employer-friendly healthcare facilities which are rewarded for their cost saving activities regardless of whether it is the best interest of the injured worker.

On the “ugly” side, H.B.No.517, if ultimately enacted, will result in forfeiture of the claimant’s right to compensation and/or benefits for a number of listed reasons.Most alarming is proposed Section 4123.66(D)which results in forfeiture of the rights to compensation or benefits “if without good cause, an employee refuses to undertake or unreasonably delays undertaking medical,nursing,and hospital services and medicine that are ordered by the employee’s treating physician…” In theory, this proposed legislation might seem logical.After all, why should an injured worker receive compensation or  have his/her medical bills paid by the BWC for going on vacation rather than attending physical therapy sessions or refusing,without a good reason, to have an x-ray of a smashed hand to detect any fractures which might require more extensive treatments to achieve a satisfactory recovery? However,this proposed section raises a number of legal concerns for the injured worker.

Firstly, a “fault system” is being injected into the Ohio workers’ compensation program at the treatment level which sounds more like the mitigation of damages doctrine in personal injury cases which requires that the injured party(plaintiff) use reasonable care and diligence in an effort to minimize or avoid injury.The failure to mitigate damages may result in a lower jury verdict award.However, in most personal injury cases,the plaintiff must first establish that the defendant was liable for causing the injuries and damages.The Ohio workers compensation system since 1911 has been a no fault system.Under personal injury law,the mitigation of damages is an affirmative defense which must be pleaded and proven by the defendant.Under the proposed legislation, it appears that the injured worker has the burden of proof to establish good cause for refused treatments or unreasonable delays of care.What if the employer sent the employee to a healthcare facility for initial treatment, which is fairly common in Ohio.How much trust is the employee going to have in the doctor’s recommended treatments if he/she believes this is basically the “employer’s doctor”?What if the employee does’t want to undergo a recommended elective surgical procedure? Is it good cause to refuse low back surgery out of fear because Uncle John underwent low back surgery and ended up in a wheelchair? What if the doctor prescribed a medication which the claimant read has serious side effects? What if the the employee has a personality conflict with an arrogant doctor who then submits a chart note stating that the patient is uncooperative?What if a litigious or harassing employer frequently challenges the employee’s attitude or conduct regarding treatments to delay or destroy the employee’s rights to benefits in the workers’ compensation claim?If the injured worker refuses either reasonably or “unreasonably” to undergo a recommended  multi-level spinal fusion(which always has risks including death)should that individual later be denied permanent total disability compensation based upon the allowed conditions in the claim? Under the current workers compensation law the injured worker already has the burden of proof to establish that compensation payments are supported by competent medical evidence and that treatments or diagnostic procedures are directly related to the allowed injuries/conditions in the claim and are reasonable,necessary and appropriate.The system works well in weeding out specious or unsupported claims for compensation or treatments.Why add further hurdles and land mines for the injured worker in a (supposedly) no fault system which is already frequently burdensome for injured employees?

There are two  good revisions in these proposed changes to the workers compensation law. Firstly,the BWC can begin paying for certain medical treatments and prescriptions at a much earlier stage in the claim prior to issuance of a BWC allowance order or during an appeal process.If the claim or additional conditions are ultimately disallowed,the cost of treatments are charged to the statutory surplus fund which does not increase the employer’s premiums.Secondly, if the BWC determines that there is insufficient medical information for an initial allowance of a state fund claim, the BWC can dismiss the claim without prejudice which means the injured worker can refile the claim upon obtaining sufficient medical evidence.Under the current law, if there is insufficient medical documentation to support an allowance, the BWC must issue a disallowance order forcing the injured worker to timely file an appeal to the Industrial Commission or else lose all rights in the claim.Of course, this proposed legislation, as has previous legislation in recent years, followed the usual pattern of serving up heaping helpings of bad and ugly law interspersed with a few “good” crumbs for the injured worker.

 

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