Your workers’ compensation claim can be an open, valid claim, but it can still be “inactive” at the same time. Whether a claim is classified as active or inactive depends on when the last activity or request for action has taken place in a claim. If you have continued to receive regular medical treatment, which has been approved and paid for by the Ohio Bureau of Workers Compensation or your self-insured employer, your claim is most likely active. However, if there has been a lapse in time since your last treatment, your claim may have become inactive and there are some steps you and your doctor will need to take if you need additional treatment.
The Ohio Bureau of Workers’ Compensation defines an inactive claim as a claim where there has been no medical or indemnity payments made in the past 24 months. If you have not seen a doctor, in the past 24 months, you can schedule a visit with your doctor, but you must keep in mind that the BWC may not pay for the examination. In order to reactivate your claim, your doctor will need to submit a request to reactivate your claim to your managed care organization (MCO), who will check to see if your claim is still open. Your doctor will need to specifically request treatment, along with the request for reactivation. The request can include a request for an additional allowance of a condition, compensation, medical service, medical or pharmacy bill payment, treatment, or diagnostic testing. The MCO needs to know what specific benefits or services the doctor is requesting, or the request for reactivation will be dismissed. The medical evidence your doctor submits in support of the request for reactivation must be dated within 60 days prior to the request to reactivate.
The MCO will make a recommendation to reactivate or not and send their recommendation to the BWC, who will make the final decision regarding reactivation. They will then issue an order to allow or deny claim reactivation, based on all of the information the MCO and the BWC have received. The order will also specify the treatment that is being requested. If any party to the claim disagrees with the BWC’s order, the usual appeal period applies. Any party can appeal the order and the issue will be forwarded to the Industrial Commission of Ohio for a hearing.
Having an attorney would be very helpful at any step along the way during the reactivation process. An attorney will make sure the physician fills out the proper forms and makes the proper treatment requests, supported by adequate medical documentation. An attorney can then assist you if you need to appeal a BWC order if it is not in your favor or attend a hearing on your behalf if another party files an appeal and a hearing is scheduled. There are benefits to which you are entitled and you do not have to fight for them alone!
Elizabeth M. Strautz
Barkan & Barkan Co., LPA
Imagine a dedicated and loyal employee severely injured at work. Everyone agrees that Jim Kirk* was injured while employed at Titan Gravel Company*. The BWC recognized his Workers’ Compensation claim for a lumbar sprain. The employer even acknowledged that Jim was injured in the course of his employment. However, because Jim severely injured his back while shoveling a load of gravel, he needed surgery and needed to be off of work to recover from the injury that he sustained. At that point, the BWC, and the employer began to challenge Jim’s entitlement to treatment and compensation. They said he had a “pre-existing condition.”
In order to obtain the treatment and compensation everyone agrees he needed, Jim was forced to file a Motion and prove that he “substantially aggravated” the degenerative disc disease in his low back. Jim asked his doctors to assist him in providing medical documentation, but he was still denied the treatment and compensation he needed. At that point, Jim contacted my office to obtain assistance in pursuing the allowance of substantial aggravation of degenerative disc disease in his low back.
By the time Jim contacted my office, proceedings were under way before The Industrial Commission of Ohio. The Industrial Commission denied the request because Jim was not able to establish that he, “substantially aggravated” the degenerative disc disease that was in his back. Jim clearly demonstrated that he was worse after his injury than he was before, and his doctor provided office notes and records to support this as well.
Jim also testified at the hearing before The Industrial Commission that he worked for the same employer for 30 years and never before filed a Workers’ Compensation claim. Jim also did not have any prior treatment by a doctor or chiropractor for his low back. Jim also did not have any type of x-rays, or MRI scans, to prove the condition of his back before his injury. After his injury occurred, he saw a chiropractor, his family doctor, and the specialist that was going to perform surgery. He had x-rays and had an MRI scan performed that showed a herniated disc that needed to be repaired surgically.
The first Hearing Officer denied the requested additional condition because Jim was not able to prove that he sustained a “substantial aggravation” of his prior problems. Fortunately, after Jim came to my office, I was able to obtain the necessary documentation to meet our burden of proof and establish that a “substantial aggravation” did occur. However, why was it so difficult for Jim to meet the standard to prove a “substantial aggravation.”
In 2006, the Ohio Legislature, once again, modified the Workers’ Compensation Act to limit benefits to injured workers. Part of the additions to the Workers’ Compensation Act was a provision that makes it much more difficult to obtain an allowance for a pre-existing condition. The Legislature specifically indicated that it wanted injured workers to prove that any pre-existing conditions were “substantially aggravated” in order to be approved as part of a valid Workers’ Compensation claim.
Before the law was changed, an injured worker was still required that his condition was worse because of the injury that occurred at work. However, under the new law, the injured worker has the additional burden to show that the “substantial aggravation” occurred by both “objective and subjective findings.”
By inserting this provision into the Workers’ Compensation Act, employers, and the BWC, now routinely argue that an injured worker must provide objective testing, such as x-rays for an MRI scan both before and after he sustains an injury at work. The argument goes that this is the only way that an injured worker can truly prove, objectively, that he is worse now than he was prior to the injury. Some Hearing Officers for The Industrial Commission of Ohio have even accepted this type of argument.
Luckily, nothing in the law requires that an injured worker have an MRI scan prior to his accident in order to prove that he is worse following the injury at work. With the assistance of a skilled attorney, an injured worker can navigate the new Workers’ Compensation Act and be successful at proving entitlement to treatment and compensation for all of the injuries sustained at work.
*All names have been changed
Neal J. Barkan, Esq.
If you have an open workers’ compensation claim, you may be eligible for a cash settlement of your claim. Ohio Revised Code (ORC) section 4123.65 provides the statutory authority for this option.
ORC 4123.65 (A) (B) allows both state fund and self-insured claims to be settled as long as all parties (the injured worker, the employer, and the Bureau of Workers’ Compensation-BWC) agree to the terms of the settlement. Once the settlement documents are filed with the BWC, ORC 4123.65 (C) requires that parties wait 30 days before the agreement takes effect. During this period, any party may withdraw consent to the settlement by providing written notice to all other parties. ORC 4123.65 (D) gives the Industrial Commission authority to make a final determination as to the fairness of all settlement agreements.
Provisions in federal law include a requirement that injured workers who receive a lump sum workers’ compensation settlement greater than $25,000.00 set aside a portion of the settlement for future medical care. This Medicare set aside mandate applies to both state fund and self-insured claims.
Injured workers should keep in mind that a settlement of their claim would end all compensation and medical benefits in exchange for the settlement payment. A settlement may not be in your best interest if you require frequent medical treatment, or need surgery, but have no other medical insurance coverage.
Contact an attorney experienced in Ohio Workers’ Compensation law for best results and to answer any questions you may have regarding the settlement of your workers’ compensation claim.
Colors do affect our actions and reactions in traffic as well as in interior environments. Colors can create conditions that can cause fatigue, increase stress, decrease visual perception, damage eyesight, increase possible worker errors, and negatively affect orientation and safety.
The healthy, accident-free workspace is an issue that is being redefined by new facts. The “sick building syndrome” has made us aware of the toxic effects of many interior elements. Ergonomics has made us aware of furniture which can help to avoid strain and injury. Of equal importance is the role that color plays in creating accident-free, physically and visually sound interiors. Incorrect use of colors and patterns in interior and exterior environments can create visual impairments and cause serious accidents.
Some examples of color as the cause of accidents and injuries in interior and exterior environments:
When meeting with your attorney for the very first time you should provide as much information as possible. This will allow the attorney to carefully review the claim and for you to obtain a professional analysis of what is transpiring with your case. Make sure that you provide names, addresses, and phone numbers for your medical providers so the attorney can contact them and gain access to your medical information. Also provide the date in which you became injured and any witnesses’ names and telephone numbers in case they need to be contacted. Another important piece of information to have ready for your attorney is how the accident occurred. You want to be as descriptive as you can, so that you can paint a vivid picture to anyone reviewing your case to what has actually happened to you. The more information you provide will greatly help your attorney to put together all the facts of your claim so that he or she can represent you and your case properly.
This is currently the only issue, please check back soon for any updates.