Answers to Workers’ Compensation Questions From a Columbus Attorney
Could you be fired for filing for workers’ comp? Can an employer refuse to provide workplace injury compensation? Get fast answers to your injury questions by browsing our work injury FAQ page.
- Page 3
If I'm injured while driving for Uber, can I collect workers’ comp benefits?
Unfortunately, the answer to that question in Ohio right now is no. This is because rideshare drivers are considered independent contractors and aren't eligible for workers’ comp or other employee benefits.
However, if you drive for Uber or Lyft to supplement your earnings from another company where you're a regular employee, you may get wage replacement benefits for the Uber job if you're collecting workers’ comp from your primary employer.
In this age of gig employment, it’s critical for workers to understand what they're entitled to if injured on the job.
Independent Contractors Aren't Covered
Whether you drive for Uber, write articles on a freelance basis, pick up day jobs in construction, or shop for and deliver groceries for Shipt, you're an independent contractor. This means you're self-employed and not eligible for the benefits and protections given to regular employees, such as minimum wage, unemployment, and workers’ comp.
Companies like Uber and Lyft save a lot of money hiring independent contractors, and these workers have the advantage of flexibility. But if you are injured while driving for Uber, you're on your own.
Pay Attention—This Could Change
For companies like Uber, the key to denying benefits like workers’ comp is classifying their drivers as independent contractors. This is changing in a few states. New York, Pennsylvania, and California have ruled for drivers, forcing Uber and Lyft to classify their drivers as employees.
However, a ruling in May 2019 by the National Labor Relations Board concluded that drivers are contractors, not employees, striking a significant blow to millions of workers. This debate will undoubtedly continue—not only for rideshare drivers but for other workers classified as independent contractors.
Meanwhile, if you're injured in Ohio as an Uber or Lyft driver, you cannot collect workers’ comp.
Wage Replacement and Private Insurance
Many Uber drivers have regular jobs and take passengers to earn extra income after hours. This will be important to note if you're injured at your primary place of employment and granted workers comp benefits through that employer. That’s because you may collect wage replacement benefits for all the money you earned before your injury—including as an Uber driver.
If driving for Uber is your only or primary source of income, consider purchasing private driver injury insurance through Uber to pay medical bills and replace earnings if you're injured while driving and unable to work. This isn't Ohio workers’ compensation, but it’s a way to protect yourself—if you can afford it.
Consult a Workers’ Comp Attorney
Unfortunately, there’s nothing an Ohio workers’ comp attorney can do if you're injured while driving for Uber.
However, if you're eligible for workers’ comp through your primary company because of an on-the-job injury there, and want to make sure you receive all the wage replacement benefits allowed to you, I may help. Call my office in Upper Arlington to discuss your situation.
To learn more about Ohio’s workers’ comp system, request a free download of my book, The Worker’s Guide to Injury Compensation in Ohio.
What is a medical treatment hearing, and why do I have to go?
Your Ohio workers’ comp claim was approved, and you're ready to start medical treatment to overcome your workplace injury.
Unfortunately, like almost everything with the Bureau of Worker’s Compensation (BWC), it’s not that easy.
As we’ve discussed in other articles on this website, you have to go to a BWC-certified doctor who assesses your condition and decides on a course of treatment.
He or she will then have to fill out a C-9 form to request the treatment be approved by your employer’s Managed Care Organization (MCO). If the procedure is authorized, you’re all set. However, if it’s not, things become more complicated.
Next Steps After Denial of Treatment by Your MCO
If you don’t already have a workers’ comp attorney, now would be a good time to get one. Your attorney will guide you through the appeals process and make sure you're providing complete information at each step.
If the MCO denies treatment, you or your attorney has 14 days to appeal the decision to the BWC. If the BWC also issues a denial, your next step will be to request a medical treatment hearing with the Ohio Industrial Commission (IC). This hearing is your chance to explain why the treatment is necessary and demonstrate how it will help you.
Preparing for Your Medical Treatment Hearing
While not as formal as a trial, this is an official proceeding you should take seriously. Dress appropriately, be on time, and have a positive attitude. The hearing is held in a state building, so you'll need an ID and will pass through security to get in. If you have an attorney, he or she will be with you, but you're answering the questions yourself. And, for heaven's sake, make sure to be there. Clients occasionally ask me whether they need to attend treatment hearings and the answer is a resounding "yes!". It's my belief, based on experience, that hearing officers will conclude you don't care one way or another about treatment if you don't even bother to show up to argue for it.
I encourage my clients to be honest and tell the Hearing Officer about:
- Limitations you have because of the injury
- Treatments tried in the past and how they did or didn't help
- Why a doctor is recommending this treatment now
- How this treatment will help you get better and return to work more quickly
- If you’ve had this treatment before, how it helped, and how long it lasted
- Your commitment to following this treatment
The job of the Hearing Officer who's deciding your appeal is to determine if the therapy is advantageous and if it's cost-effective. The clarity you use to explain how the treatment will help improves your chances of success.
If the District Hearing Officer denies your request, you can appeal again. You'll be referred to a Staff Hearing Officer at the IC.
I Can Help You Tell Your Story
As your workers’ compensation attorney, I'll guide you in how to explain the importance of your requested treatment. You need not be a medical expert to succeed in a medical treatment hearing—just tell the story in your words.
If you're struggling with a work-related illness or injury, I invite you to download my free book, The Workers' Guide to Injury Compensation in Ohio and contact my office for a personalized assessment of your claim.
How does the Ohio BWC catch people committing workers’ comp fraud?
Let’s be clear: workers' comp fraud hurts everybody. When a worker collects compensation illegally, the cost of the scam eventually trickles down to employers, workers still on the job, and, ultimately, consumers.
It's estimated that over $7 billion—that’s billion with a “b”—is paid out annually on fraudulent grounds nationwide.
With such losses, the Ohio Bureau of Workers' Compensation (BWC) will make every effort to catch these fraudsters.
However, sometimes the methods of the Special Investigations Department (SID) are a little too far-reaching, and innocent people are accused.
Special Investigations Department Methods
Workers’ comp fraud can involve employers, healthcare providers, and workers. The BWC assigns investigators to each area but relies heavily on reports from employers, co-workers, neighbors, and even family members to catch employees committing fraud. Often, these reports are anonymous tips called to the SID or submitted on its website.
When the SID receives a report about a suspicious worker, it may investigate by:
- Following the worker to catch him on another job, hitting the gym, or engaging in some activity that “proves” he’s not disabled. This may even involve taking video or photos of the target.
- Talking to neighbors, employers, or other people familiar with the accused to locate eyewitnesses to the alleged fraud.
- Interviewing the employee to get him or her to admit to something illegal. The investigators’ line of questioning can be extremely manipulative and confusing.
Don’t get me wrong. If people are collecting workers’ comp on fraudulent grounds, they should be stopped. However, the reliance on anonymous tips and the sometimes enthusiastic efforts of the SID can mean innocent people get accused.
Don’t Talk to a BWC Investigator
If you were accused of defrauding the BWC and are innocent, contact me before talking to an investigator. It’s far too easy to fall victim to the SID’s aggressive tactics and not only lose the benefits you need and deserve—but also face a criminal conviction.
To learn more about workers’ comp in Ohio, request a free digital copy of my book, The Worker’s Guide to Injury Compensation in Ohio, and call me for a consultation about your case.
What are the Official Disability Guidelines, and how do they affect my workers’ comp?
If you're collecting workers’ compensation in Ohio for an ongoing work injury or illness and seeking continued care or new treatment options, you must get approval from your managed care organization (MCO).
The Ohio Bureau of Workers’ Compensation (BWC) requires MCOs to use approved treatment and return-to-work guidelines to evaluate the necessity and effectiveness of the requested medical care.
Since 2004, the BWC follows the Work Loss Data Institute’s (WLDI) Official Disability Guidelines (ODG) to "assist" in decision making.
What Is the ODG?
It's an online database created by the WLDI on behalf of the insurance industry. When reviewing a claimant’s request, BWC or MCO staff members enter the particular illness or injury into the database, then receive the ODG’s treatment recommendations.
While the WLDI claims it provides evidence-based and data-driven treatment guidelines, the organization's ultimate goal is to “reduce excessive utilization of medical services and corresponding medical cost” and get workers back on the job "as efficiently as possible".
In other words, it's on the side of the insurance company—in our case, the BWC—and the employer. Far too often, the ODG is used merely to deny requests rather than as just another piece of information to consider. If you're requesting treatment that isn't explicitly listed in the ODG, you're likely to be denied, first by the MCO and then by the rubber-stamp of the BWC. Because, hey, medical treatment costs money and the MCOs and BWC are all about saving money!
What Can You Do About it?
Appeal the MCO’s decisions and the BWC’s order to the Industrial Commission to get a hearing. The Industrial Commission is not bound to follow the ODG guidelines. The ODG should be used as it was intended—as a guideline for decision-making, not as the sole piece of evidence being considered. Make sure you get a letter from your doctor supporting her request for treatment: i.e., why it's reasonable, beneficial and necessary in your case. This needs to be submitted to your claim file before or at the hearing.
Your treating physician’s opinion, diagnostic testing, results of past treatment attempts, and many other factors should be considered when making a treatment decision. Also, I suggest you never go into a treatment request hearing alone. A qualified Ohio workers’ comp attorney will make sure all evidence is reviewed and that your request is given fair consideration.
When You Need Help in Ohio, Call Monast Law Office
Don't go through this process alone. I've helped hundreds of injured workers get the respect they deserve as they go through the workers’ comp process. Contact my office to discover if I can help you.
For more information meanwhile, request a free copy of our book, The Worker’s Guide to Injury Compensation in Ohio.
What should I do if my employer is treating me differently after reporting an injury?
Uh oh. That's not good. As an employee in Ohio, you may file a claim for compensation with the Bureau of Workers’ Compensation (BWC) if injured on the job, or if you developed an illness due to unsafe conditions in the workplace.
It doesn't matter if you lost focus for a minute on the Honda assembly line and your leg got crushed, or if your employer failed to make sure ice was cleared from the UPS loading dock and you fell and hit your head.
Either way, your medical treatment and lost wages should be covered by workers’ comp.
Ohio workers’ compensation is a no-fault insurance system designed to take blame out of the equation. Your employer can’t blame you, and you can’t sue your employer.
Then Why Are You Being Treating Differently at Work?
Unfortunately, despite the no-fault nature of workers’ comp, we often hear from employees who feel they're treated poorly after reporting an injury or filing a claim. If this treatment reaches the level of retaliation, legal action may be taken against the employer.
Usually, tactics are more subtle, such as:
- Asking you not to file a claim. If an employer isn't in compliance with Ohio workers’ comp law, he won't want you to file so he doesn’t get caught. If he has a lot of claims and fears his premiums will go up, he may also try to keep you from filing. Either way, you may file a claim with the BWC and shouldn't be dissuaded.
- Disparaging remarks from co-workers. Sadly, workers who file claims are sometimes made to feel like liars and criminals, often by co-workers. This treatment creates a hostile workplace, and supervisors and managers should stop it.
- Withholding information. You may be excluded from meetings, left off email distribution lists, and kept out of the loop purposely when you're out recovering from a workplace injury. If these actions impede your employment, you may take legal action to stop it.
- Generally making your life harder. Increased supervision, cold shoulders, and a challenging environment can make your job a miserable place to be. This shouldn't happen just because you were injured.
When my clients have these experiences, I want to hear about them. While your employer may not be breaking the law, it's inappropriate to continue treating you this way.
When poor treatment escalates to the point that your employer is breaking an agreement, you may take legal action. Examples of this include:
- Not honoring restrictions. If you return to work with certain restrictions ordered by a doctor, they must be upheld by your employer.
- Not accommodating your schedule. Shorter workdays, medical appointments, follow-up treatment, and other accommodations must be allowed if required for your return to work.
Monast Law Office Is Here for You
No one hopes to be injured on the job so they can collect workers’ comp and take time off—that’s just not how it works. To be mistreated because of something out of your control is a terrible thing to face. Regardless of whether you're a client or not, please contact us if you're experiencing unfair treatment at work, and we'll discuss your options.
Can undocumented workers collect workers’ compensation in Ohio?
Yes. Under current Ohio law, every employee may have workers’ compensation if they're injured in the course and scope of employment—even if they're in the U.S. without documentation.
How Can Undocumented Workers Receive Benefits?
The Ohio Bureau of Workers’ Compensation (BWC) is a state agency. It's not affiliated with the federal Immigration and Customs Enforcement (ICE) department.
The BWC requires no Social Security number to grant benefits, so there's no way for it to know the immigration status of an injured worker. The BWC assumes every worker has legal status—because employers are required by federal law to verify the work status of every person they hire.
Therefore, as the BWC sees it, if a U.S. company employs the applicant, he or she must have a legal right to workers' comp benefits.
Some Ohioans Want to Change This
I say under current Ohio law because there's legislative action in the works to change this. In December 2017, the Ohio House of Representatives passed a bill to bar undocumented workers from receiving medical coverage and lost wages under the Ohio workers’ comp system.
The bill moved on to the state senate in 2018, but as of March 2019, it's still sitting in committee. The Senate failed to pass such measures, so the success of this bill is unlikely. However, the sentiment is there.
Should You Apply for Workers’ Comp as an Undocumented Worker?
If you're employed by an Ohio company—regardless of your immigration status—and your on-the-job injuries require expensive medical treatment, know that you're entitled to have those costs covered by workers’ comp. No one should even ask about your immigration status.
Unfortunately, undocumented workers often live in fear of being discovered and deported, so they don't report injuries or file for workers' compensation. If you suffered a serious injury, talk to an Ohio workers’ comp lawyer.
Call Me to Learn More
If you're an undocumented worker injured on the job—or are concerned about someone who is—contact my office in Upper Arlington to learn about your options. No one should be made to feel like a criminal because they were injured at work and are applying for the benefits to which they are entitled.
For more general information about Ohio workers’ comp, request a free copy of my e-book, The Worker’s Guide to Injury Compensation in Ohio.
How can I find a workers' comp attorney I can trust to do a great job in Ohio?
Many attorneys have several practice areas. But much like medicine, the law has areas of specialization. When you need a lawyer, you want to make sure he or she is qualified and experienced in the practice you need, not someone who merely dabbles in it.
Workers' compensation law is no exception. If you were seriously injured on the job and are struggling with the workers’ comp system, you want an attorney with expertise in the precise issues you're facing and understands the many intricacies of this area of law.
First Things First: Do You Need a Lawyer at All?
Your employer will probably say you don’t need a lawyer for your workers' comp claim and, sometimes, this is probably correct. If your injury is minor and you see no obstacles to your claim’s approval, you probably don’t need a lawyer.
However, if the following are true, start looking for representation:
- Your injury or illness isn't clearly work-related.
- You need extensive medical treatment.
- You require significant time off work to get better.
- Your injuries will be permanent and affect work you're able to do in the future.
If you fall into one of these categories, how do you find the right lawyer? You’ll have to do a little research.
What You Should Look for in an Ohio Workers' Comp Attorney
Just like you wouldn’t go to an orthopedist for a heart problem, you don’t want to go to a personal injury or family law attorney for a workers' comp claim, even if they will take your case.
Here’s what you want to look for in a lawyer:
- Devotes most or all of his or her practice to workers' comp law.
- Is a certified Ohio workers' comp specialist attorney.
- Knowledge about your industry and the injury you have.
- Experience with the issue you're facing—whether it's a delay, denial, or another problem.
- A record of success in administrative hearings and negotiating settlements.
How do you find this out? Look at the attorney's online reviews on Avvo, Google or even Facebook. Also, call and ask us! At Monast Law Office, we're happy to answer your questions to make sure we're the best fit for one another.
Call Monast Law Office to Learn More
I began practicing workers' compensation law in 1985. Since 2003, the first year specialization was permitted, I've been a certified Ohio workers’ comp specialist attorney, and I'm prepared to handle any workers' comp claim. Whether you were injured working for FedEx, Amazon, Ohio State, Kroger, Honda, or any other public or private employer in the Buckeye State, I've probably represented a client just like you.
Download your free copy of The Worker’s Guide to Injury Compensation in Ohio today to gain a better understanding of Ohio’s workers’ compensation laws. Then, contact our office in Upper Arlington for a free consultation to learn more about us.
Will Ohio workers’ compensation cover my cumulative trauma injury?
The short answer is yes—workers' compensation should cover any work-related injury that prevents you from completing the duties of your job in Ohio.
However, some disabling injuries are harder to connect to a specific work-related event. These are denied more often by the Ohio Bureau of Workers' Compensation (BWC). For example, cumulative trauma injuries that continue to worsen over time are usually harder to support without the help of an experienced workers' comp attorney.
What Is a Cumulative Trauma Injury?
Sometimes called a repetitive-stress injury, cumulative trauma injuries result from repetitive or strenuous actions over time. Cumulative trauma commonly affects:
- Neck. Heavy lifting, leaning over a desk or workbench, and sitting or standing for long periods may cause damage to tendons, muscles, and nerves in the neck and spinal disk injuries.
- Shoulders. One of the most common musculoskeletal injuries among workers, shoulder injuries such as rotator cuff damage is frequently caused by lifting, carrying, pushing or pulling, and working with your hands above shoulder level.
- Lower back. Damage to tendons, muscles, and nerves in the back, and bulges or herniation of spinal discs is often the result of repetitive or heavy lifting and twisting, or sitting at a desk for long periods.
- Wrist. Tendinitis of the wrist and carpal tunnel syndrome are common in workers who perform repetitive tasks, such as on an assembly line or at a supermarket check-out or computer station.
Jobs with high production requirements, such as positions at Amazon fulfillment centers, put workers at particular risk for cumulative trauma injuries, as do tasks that require employees to stay in the same position—whether sitting or standing—for extended periods.
However, even when these risks are well known, you could meet with resistance when applying for workers’ comp for a cumulative trauma injury.
Monast Law Office Can Handle Your Cumulative Trauma Injury Claim
I'm a board-certified Ohio workers' compensation lawyer who provides exceptional legal representation for job-related injury cases like yours. Whether you're considering making a compensation claim or were denied benefits for a cumulative trauma or repetitive stress injury, contact my office today.
Your initial consultation is free, and our legal team will advise you on the best course of action. Give our Upper Arlington law office a call at (614) 334-4649, or download our free guide for injured workers in Ohio.
How Long Does it Take to Get A Workers' Comp Settlement?
I’m reminded of the old Scottish proverb “If wishes were horses, beggars would ride” when reflecting on settlement timeframes. If wishing could only make things happen sooner….[Note: I am NOT equating injured workers with beggars, though I know the system sometimes makes you feel like one!]
I mention the proverb because, at first blush, the timeframes for settlements of claims should seem fairly straightforward. And, sometimes, they are: once a settlement is reached and the paperwork filed with the BWC, the parties have to wait 30 days before the settlement is final and the check issued a few days later.
That part about “once a settlement is reached”, now that’s the rub. I’ve written about determining fair settlements before. I’ve had settlements where an agreement is reached, all the documents signed and filed, and the check issued within 45-60 days. But, as my old Pappy used to say, those are “as rare as hens’ teeth”. (Actually, researchers say they have found a naturally occurring mutant chicken called Talpid with a complete set of ivories. But, I digress…).
Workers' Comp Settlements Can Take Many Months
More often, settlements take months…sometimes, many, many months. And, in my experience, larger settlements take longer because there’s lots involved. The more serious the injury, the more likely the need for ongoing medical treatment. Who’s going to pay for that treatment? Medicare doesn’t want to pay for treatment of work injuries once you’ve settled. They will require you establish a Medicare Set-Aside trust account [MSA] and put some of the settlement proceeds in that account. The set-aside amount has to be determined, usually by hiring a company to evaluate future costs of a claim over your lifetime and then submit that figure (presuming the parties agree with it) to Medicare for approval. This takes from 3 months on up. (Actually, it’s quicker now than a few years ago where approval could take 9 months).
PERS and SERS don’t yet require set-aside amounts, so settlement of claims involving folks who worked for public employers or the school system don’t require this step. However, the BWC will still insist on allocating a portion of the settlement proceeds to medical and prescription treatment. [Does this seem asinine? It is…].
Another consideration is the time to negotiate a settlement. With the BWC, the players change depending upon the settlement amount. For example, BWC Claims Service Specialists may settle claims for up to certain dollar amounts. Above this, their supervisor has to sign off. Settlements up to $175,000 require approval by appointed BWC attorneys. Settlements above this amount have to go a special committee that meets only once a month.
There’s a similar dynamic with self-insured employers, meaning you move further up the chain of command the higher the settlement. And large businesses sometimes have “excess carrier” coverage, meaning after a certain dollar amount has been spent, the excess insurance carrier gets involved in payments and, hence, any potential settlement. Large settlements are sometimes paid through annuities over many years, if the parties agree to this. It takes time to set these up.
And all this presumes you have some basis for submitting a particular settlement demand. For example, a twenty-something with high wages, a devastating injury that will likely remove her from the workforce and require extensive ongoing treatment (frankly, a case I’d rarely recommend for settlement) is worth lots of money. But (1) the BWC will never offer as much as the case is actually worth and (2) much of the settlement will end up in an MSA. However, if the employer is self-insured and the client insists on pursuing a settlement, there will be time delays because
- the initial settlement evaluation must be done and a demand submitted;
- the other side responds with its offer;
- the parties go back and forth. If they tentatively agree on an amount,
- an MSA must obtained. This involves getting copies of medical records and bills for the past few years to project future costs. The MSA analysis, once done, is
- submitted to the Center for Medicare Studies (CMS) for approval. After approximately 90 days, CMS responds whether they believe the MSA adequately protects Medicare’s interests. If so, then...
- settlement paperwork is drafted, reviewed, agreed upon and sent to all parties for signatures. It’s then...
- filed with the Industrial Commission which has 30 days to review and dismiss the settlement. If they don’t act or object to the settlement as unfair, payment is made after the 30 days expire. While there’s no enforceable rule on how soon the settlement check is to be released after expiration of the 30 days, it’s typically one to two weeks.
So, how long does this settlement process take?
Well, I’ve had some settlements take one and a half years for the process to run its course.
The point is the part leading to filing the paperwork usually takes lots of time. In simpler cases (generally smaller ones involving the BWC, as opposed to a self-insured employer where an MSA analysis by an outside company is involved), the settlement process typically takes around four to six months from initial settlement workup, to filing paperwork, to BWC analysis and offer, negotiation and final agreement, to submission of final paperwork, the thirty day waiting period, and issuance of the check. The process is often quicker if an agreement has been reached with a state-funded employer where the claim is still in its experience-rating period as the BWC usually approves these if not obviously fishy. Still, look for two to three months.
In court settlements, there is no thirty-day requirement. However, getting paperwork prepared, signed by all parties and filed by the parties is often ridiculously slower than it should be. In my experience, finalization of the settlement in these cases, which should take less than 30 days between agreement and issuance of a check, takes three months or more.
The quicker you get your part of the process completed, the quicker the settlement will be finalized… presumably. But the other parties (the BWC and the employer) may not move as fast (they move faster at certain times of year, such as when premiums are being recalculated). While this is frustrating, eventually the matter will be resolved. Patience is essential. Remember another saying: The best time to plant an Oak tree is 50 years ago; the next best time is now.
I was injured while doing volunteer work. Am I covered by workers’ comp?
Unfortunately, despite the generous gift of your time and effort, you're not covered by workers’ compensation while performing non-emergency volunteer services for a private company or a non-profit organization, including a church.
In Ohio, employers are required by law to carry workers’ comp for their paid employees, but not for voluntary workers.
There's One Exception
The only exception to this rule is for volunteer emergency services providers who work for a public employer, such as a school, township, or village. This includes volunteer firefighters, police officers, or emergency medical technicians.
Public employers must purchase workers’ comp insurance for any volunteer emergency service providers working for them, and may also elect to buy coverage for volunteers performing non-emergency services or for workers completing community service hours instead of a fine or jail sentence.
If you're injured while volunteering for a public employer, ask about its workers’ comp policy.
However, volunteers who provide emergency services to private employers aren't covered by workers’ comp. Private employers and non-profit organizations may purchase additional coverage for volunteers under their general liability insurance policy, but this isn't a form of workers’ compensation.
Something Else Volunteers Should Think About
Another question I sometimes get is whether you can volunteer work while collecting workers’ comp benefits. The answer to this depends on your medical restrictions.
If you're on temporary total disability or permanent total disability because you're unable to work due to a job-related injury or illness, you shouldn't perform physical labor of any kind—including as a volunteer. Doing so could jeopardize your benefits. Just because you're not paid for the work doesn't mean you're cleared to do it.
Call Me With Questions
If you have questions about workers’ comp coverage in Ohio, please call my office. We're happy to talk to you about your status as a volunteer or to discuss what volunteer work you may be able to do while receiving workers’ comp benefits.