As I prepared for my most recent hearing on Wage loss compensation, I was again struck by the cumbersome and unfair rules that apply to receiving this compensation. While the Ohio Revised Code provides for wage loss compensation when an injured worker is unable to find employment consistent with his disability resulting from an injury or occupational disease, the Code is fairly silent on the requirements to get that compensation. However, the Ohio Administrative Code has extensive rules that govern the payment of wage loss compensation and these rules make the receipt of the benefit incredibly difficult for many, if not most injured workers.
The injured workers must file the appropriate forms, properly completed not only by the injured worker but also the Dr. who must follow strict requirements to detail the restrictions in place and the length of those restrictions. The Dr. must continue to complete forms either every 90 or every 180 days depending on whether the restrictions are temporary or permanent. Then, the injured work must first look for “comparably paying work” equal or greater in pay then his former job. Anyone who has represented an injured work knows there is no comparably paying work particularly if the injured worker was a long term employee!
The employee is required to engage in a “good faith” search for comparably paying work and that search requires a “consistent, sincere and best attempt(s)” to obtain suitable employment that will eliminate the wage loss. The Industrial Commission is given extensive criteria by which to judge the job search. For instance, the injured worker must seek employment with the employer of record even if that employer refused to provide him/her with light duty work ever or whether that employer terminated the injured worker for being off work for too long. Additionally, the employee must register with the Ohio Bureau of Employment Services even if they do not qualify for unemployment or have never qualified for that benefit.
Additionally, the Code tells us that the injured worker is to find full time employment and if not then the injured worker is to continue searching for jobs to mitigate his/her wage loss in any hours when the work is less than full-time.
The extensive rules are simply too great for most injured workers particular if not represented by an attorney. One minor mistake on the application or in the paperwork will lead to a denial of wage loss. Additionally, most injured workers have no idea that these extensive rules exist and are often on the losing end even if they did their best to try to find work or have found work making less money.
Employers are allowed to terminate injured workers if they can’t return to the work they were performing at the time of their injury. Employers are not required to provide light duty work for any injured employee. Yet, injured workers are denied wage loss compensation most times in these situations. It’s just not fair.