In recent years, the Ohio Bureau of Workers’ Compensation (BWC) and Industrial Commission (IC) have been touting a reduction in the number of workers’ compensation claims in the state. Indeed, the statistics included in BWC’s Annual Reports for fiscal years 2013 and 2016 reveal that BWC’s net allowed injuries were down 6% between fiscal year 2015 and fiscal year 2016, and down nearly 16% since 2011. The 2016 Annual Report attributes this decline to “[e]xpanded safety funding; [c]ontinued promotion of safe and healthy workplace; [and m]ore employers putting safety education resources to work.”
But based on our experience with Ohio’s workers’ compensation system and with helping injured Ohio workers get full and fair compensation for on-the-job injuries, we think that more is at play here than the BWC’s and IC’s management. Here are some less-rosy explanations for the reduction evidenced in BWC’s statistics that we think better explain them.
1. More Employers are Self-Insuring
In 2016, the General Assembly enacted HB 207, which amended O.R.C. § 4123.35 effective August 31, 2016. Prior to that amendment, employers could only self-insure if they had at least 500 employees. While the 500-employee threshold could be waived by BWC, it would only do so if the employer satisfied certain prerequisites, such as having a substantial employee count outside of Ohio or obtaining excess insurance. Among other changes, HB 207 eliminated the 500-employee threshold, meaning that more employers are now eligible to self-insure.
This has had a direct impact on BWC’s statistics, because self-insured companies are not required to report claims with no lost time to BWC. Lost-time claims are claims in which a worker misses eight or more calendar days due to a work-related injury. But self-insured employers have creative ways of artificially reducing the number of even the lost-time claims they must report to BWC. For instance, by paying injured workers to come to work and do nothing, they limit the number of days those workers take off for their work-related injuries.
2. The Workers’ Compensation Process is Tilted Against Workers
Consider the following three aspects of Ohio’s workers’ compensation process: First, BWC has delegated authority for coordinating care and making treatment decisions to managed care organizations (MCOs). These MCOs are selected by employers, and under their “coordination,” injured workers are often left waiting for treatment for up to six months, further exacerbating their health problems.
Second, when BWC requires an “independent” medical examination, BWC provides the doctors. But BWC has an interest in minimizing benefits, and the doctors it selects know this. Accordingly, BWC’s examinations commonly lead to reports that result in reduced benefits or flat-out denials. Even when a report favors the injured worker, BWC will often request an addendum rather than simply rely on the original report.
Finally, in cases of permanent total disability, the Supreme Court of Ohio has held that IC’s hearing officers need not accept the opinion of a vocational expert regarding an injured worker’s disability. Instead, the hearing officers, who are not vocational experts themselves, may ignore even the uncontroverted opinions of vocational experts and substitute their own analysis of relevant vocational factors, such as age and education.
3. Workers are Discouraged from Seeking Redress through the Workers’ Compensation System
All of the factors above combine to discourage workers from seeking redress for their injuries through Ohio’s workers’ compensation system. Injured workers we’ve spoken to have expressed a belief that the system will not help them. Their reluctance to file naturally contributes to the reduction in claims filed with BWC.
If that weren’t bad enough, we’ve also heard reports of employers pressuring injured workers to either not file workers’ compensation claims, or to report them as having occurred outside of work. Worse still, some employers have gone so far as to threaten workers’ jobs in an effort to create a culture of fear that further discourages workers from truthfully reporting their work-related injuries. While such retaliation would be illegal under Ohio law if carried out after a worker’s compensation claim is filed, no law prohibits employers from threatening retaliation before a claim is filed to prevent workers from filing a claim through intimidation. And, even after a claim is filed, an employer can defend retaliatory conduct using a decade-old Ohio Supreme Court case if it can find a way to frame its retaliation as somehow non-retaliatory.
The Bottom Line: Statistics Only Tell One Side of the Story
To summarize, we believe that there are factors at play in driving down BWC’s reported workers’ compensation claims other than the BWC’s efforts to enhance worker safety. The recent expansion of the right to self-insure, along with its lack of reporting requirements for certain claims, surely accounts for some of the reduction in reported claims. And the problems inherent in the workers’ compensation process, as well as employers’ efforts to intimidate workers to prevent claims from ever being filed, should also be considered.
If you’ve been injured at work, we can help. The experienced workers’ compensation attorneys of Plevin & Gallucci can help you understand your benefits, help you file a claim, and work with you on your appeal should your claim be denied. Workers’ compensation cases can be extremely complicated, so give us a call today at 1-855-4-PLEVIN or contact us through our online form for a free consultation.
For more information about workers’ compensation in Ohio, check out some of our most popular blog posts below:
- 10 Common Misconceptions about Workers’ Compensation in Ohio
- Workers’ Compensation Fraud: When Employers Break the Law
- Injury or Occupational Disease? What Ohio Workers Should Know
- Hernia and Workers’ Compensation: A Legal Trap for Injured Ohio Workers
- Firefighter Cancer Cases in Ohio Now Eligible for Workers’ Compensation