The question of what actually constitutes substantial aggravation remains murky. While the legislature that enacted substantial aggravation may view this problem as a triumph – their objective was seemingly to enact a law that would make aggravations difficult to demonstrate – the question of how exactly one proves substantial aggravation has proven difficult for the Commission and the courts. The thing that appears most clear at this time is that even though the law is written as if it wants diagnostic testing preceding an injury, the unfairness of such a request means that other evidence must exist that can prove a substantial aggravation occurred (of course some would even disagree with this statement). Various opinions have addressed what might constitute this evidence, but most of those cases have provided small windows and minimal clarity. [Read more…]
Everyone who practices workers’ compensation knows that SB7 changed the aggravation standard to a substantial aggravation supported by objective findings. Everyone in the field also knows that almost eight years later, the exact definition of objective findings remains a mystery. The lack of a pure definition of objective findings has caused significant issues for those of us who represent injured workers. Obviously, most cases do not present the kind of objective findings that would make proving substantial aggravation claims easiest to prove, namely baseline testing prior to the occurrence of an injury. Without such testing, injured workers forced to make a host of arguments which may or may not be considered based on objective findings depending on the adjudicator. Unfortunately for injured workers, the justification most commonly offered as supporting conditions by both injured workers and their physicians – the absence of problems preceding an injury – is often deemed not objective by the Industrial Commission and the courts, based on the determination that the complaints themselves are subjective. Since the statute makes clear that complaints deemed subjective can only help to support a substantial aggravation claim when objective findings are present, but cannot support substantial aggravation claims without objective medical findings laying the foundation for the condition, requests based solely on subjective history are routinely denied. These leave injured workers needing to figure out which portion of their case can actually be deemed objective enough to give them a chance at winning a substantial aggravation claim. [Read more…]
“Protecting the Fund”: How a legitimate obligation of the Bureau of Workers’ Compensation is often used as an excuse for unfair treatment of injured workers while at other times is ignored to the systems detriment.
No one denies that the Bureau of Workers’ Compensation has a legal obligation to protect the fund that supports the Ohio Bureau Workers’ Compensation system. That being said, how the obligation to protect the fund should be interpreted is unquestionably a matter of disagreement. In my opinion, protecting the fund should be defined as follows: The Bureau of Workers’ Compensation has an obligation to make sure that the fund contains an adequate amount of money to compensate legitimate workers’ compensation claim; this obligation, of course, would require the BWC to make sure that claims and costs that are not legitimate are not paid for. I do not believe this should be a contentious definition. The Bureau of Workers’ Compensation can make sure that legitimate claims are covered and claims that are not legitimate are not covered. Unfortunately, with every passing year, it appears that the BWC defines its obligation different than I define it. [Read more…]
R.C. 4121.13 sets forth the Administrator’s duty in regard to safety violations. To state it simply, the code requires the Bureau of Workers’ Compensation (BWC), to ascertain and declare safety standards which are “Best adapted to render the employees of every employment and place of employment safe.” R.C. 4121.13. The standards must be “reasonable” and equipped to ensure the “protection of the life, health, safety, and welfare of employees in employments and places of employment or frequenters of places of employment.” R.C. 4121.13(A)-(D).
Anyone who practices workers’ compensation in the state of Ohio knows that the BWC has failed to live up to its obligations under R.C. 4121.13. To the best of my knowledge, the last meaningful review of the safety violation (VSSR) codes happened over 25 years ago. More recent revisions to the codes have been little more than cursory adjustments. Unfortunately, the workplace is very different than it was 25 years ago, the codes have become so outdated such that the existing provisions rarely apply to the equipment found in the modern workplace. The result is that employers can freely apply lax safety policies with little fear of consequences rendered from the extant VSSR codes. [Read more…]
One of the most impactful parts of the legislation passed in 2006 was the change from permitting aggravation of any magnitude to requiring a “substantial aggravation.” Tied in with the defining of substantial aggravation in the new law were provisions regarding a return to baseline. The return to baseline provisions provide that if a preexisting condition that was substantially aggravated returns to the level it was prior to the aggravation, the claim can abate. Interestingly, unlike with the provisions regarding substantial aggravation itself, the legislature included the return to baseline language with almost no direct definitions.
Now that nearly seven years have passed since these legislative changes became law, motions for return to baseline are beginning to pop up. While they do not appear to be overwhelmingly common, their mere existence makes it important to further examine what the precise meaning of return to baseline is. Fortunately, while the statute lacks a direct definition of the requirements for finding a return to baseline, it does provide other language which clearly demonstrates what should be required to find a return to baseline. As the following will demonstrate, as with substantial aggravation itself, proof of return to baseline should require objective evidence. [Read more…]
If you work in a construction work zone in or around Cincinnati, OH, you know how dangerous your job is. When you put on your hard hat each day, you put your life on the line to improve our communities’ infrastructure.
Work zones are dangerous for all workers involved, but this is by no means a new problem. Many attempts have been made to protect workers specifically in transportation construction work zones throughout the years. Maybe you have seen the signs reading “Slow Down: My Mommy/Daddy Works Here” in a child’s handwriting. These were meant to remind motorists that the men and women working on the side of the road are not just men and women but mothers and fathers with families who are depending on them. The signs are meant to encourage motorists to slow down to a safer speed and thus save lives.
Do they work? Perhaps they achieve their goal for some but not for all.
ODOT’s Transportation Worker Safety Campaign
In the summer of 2015, the Ohio Department of Transportation (ODOT) again made an attempt to protect workers. They implemented a social media campaign to raise awareness about the dangers construction workers face on the roads. The state of Ohio has a “Move Over” law that requires motorists to move over and slow down for vehicles with flashing lights, which includes highway work crews, that are on the side of the road.
Serious injuries may put an employee’s working future at risk. Younger employees have a lot of time before retirement, so an injury can affect those workers far into the future. The amount of time left in a young worker’s expected career means the stakes of addressing a work-related injury are extremely high. [Read more…]
The Liberty Center located in Liberty Township, Ohio, is one of the bigger construction projects the greater Cincinnati area has seen in recent years, costing nearly $350 million for its development. The entire site spans over 100 acres and is situated between Cincinnati and Dayton at the interchange of I-75 and Ohio 129 (or Liberty Way). It is a mini-city that is expected to be a major regional attraction.
Your place of work should not be a place of fear. Unfortunately, when injuries happen frequently at your office or worksite, it can be scary to earn your living. At The Harris Firm, we work to support injured workers so that you can get back to your job and normal life after experiencing a work place injury.
Occupational injuries are very common, and can prove to be devastating to an injured worker and his or her family. Jobs that are high-risk, or lack safety devices have work places injuries. Moreover, these same jobs often fail to provide adequate training and hire too few laborers for the amount of work being done.
Injuries can come from all different kinds of accidents, from a burn in the office kitchen to a herniated disk from lifting a patient out of his or her bed. No matter what the problem is, it is not your fault, and you should not have to bear the weight of the financial burdens that it causes. Time away from work and medical bills alone could put you in the hole for a long time, not to mention the emotional cost of pain and suffering, and the impact that it can have on a family structure. [Read more…]
The Carroll Cropper Bridge that connects Boone County and Indiana has been under construction for months. Until just recently, this project was said to have an end date in November of 2015, but this date has now been pushed to December of 2015, and many Cincinnatians are even skeptical of that date. [Read more…]