Sixth Appellate District Takes on “Substantial Aggravation”
Lake v. Anne Grady Corp., 2013-Ohio-4740
Claimant in this case attempted to have her claim amended to include “substantial aggravation of pre-existing osteoarthritis left knee.” The request was approved throughout administratively. The employer was granted summary judgment based upon an Affidavit of the employer’s physician who indicated that there were no objective diagnostic findings, objective clinical findings or objective test results supporting the treating physician’s opinion that her osteoarthritis had been “aggravated.” “Merely stating that objective evidence exists is not in and of itself objective evidence.” The treating physician’s Affidavit failed to state how these unidentified x-rays and clinical findings support the conclusion that the condition has been substantially aggravated. The Court of Appeals affirmed the granting of summary judgment for the employer.
Lesson Learned: In evaluating these cases for substantial aggravation, employers must see documented clinical objective evidence, rather than just the magic words, the “substantial aggravation.”
BWC Self-Insured Rule Changes
The BWC is proposing that two changes be made to the existing self-insured rules. Specifically, they are seeking to waive the requirement that each applicant must have 500 employees in Ohio and that applicants must operate in Ohio for a minimum of two years. As always, the BWC has the discretion to waive these requirements on a case by case basis.
Additionally, it is being proposed that the cost of any commercial credit reporting bureau services used by the BWC to assist in the evaluation of an applicant’s financial strength must be paid by the applicant.
BWC turns Incidents into Allowed Claims for State Fund Employers
The BWC is now allowing incident only reporting as claims even when the employee has not sought medical treatment or in which medical treatment is rendered. It’s time for state fund employers to review their reporting requirements and determine which claims are reportable.
Additionally, state fund employers need to once again carefully review all the paperwork they are seeing and dispute those claims in which no medical treatment is sought or given. The threshold for allowance is that the injury must be in the course of and arising out of employment, without medical verifying that it was in the course and scope of employment the claim should not be allowed.
Changes, Changes and NOT Always for the Better!
State Fund Employers Forced to Act Like Self-Insured
Employers for Efficiency’s Sake
Have you seen these new letters that the BWC is sending out requesting that state fund employers either agree or disagree within a three (if received by fax) or seven day (if received by mail) timeframe?
Guess what? If you disagree some of the BWC examiners are sending them straight to hearing without securing a BWC file review or independent medical examination. So within seven days, a BWC claims examiner can theoretically move the C-86 motion off his or her desk and send it directly to the Industrial Commission.
When a state fund employer does not respond within the request letter time frame, orders are being sent out indicating that the employer did not respond, and the medical submitted by the claimant is sufficient to allow the condition. While we are assured this is not being done on every case, employers need to know that these request letters need a timely response
Additionally, state fund employers need to be aware that if they dispute a condition, they can no longer rely on the BWC in every case to perform either a file review or an independent medical evaluation. From a practical standpoint, employers need to be aware that in disputing a condition they may be required to pay for file reviews and/or independent medical evaluations in the absence of those that were once provided by the BWC as part of and paid for by their premium.
OSBA Webcast: Basics of Workers’ Compensation
Lisa Patterson will be a key speaker at the OSBA Webcast: Basics of Workers’ Compensation
on Friday, April 25, 2014.
Topics will include:
- overview of the Ohio Workers’ Compensation system
- what is compensable
- available benefits
- the Administrative hearing process
- managing a claim
- settlement considerations
- judicial review
Please click on the link below to sign up for this informative seminar!