Commission / BWC Consider New Wage Loss Rule
Update: The Industrial Commission and BWC adopted this rule, effective February 13, 2014.
The Commission and BWC have proposed a new wage loss rule. The new rule, O.A.C. 4125-1-01, would replace the current wage loss rule. Here are some of the highlights of the proposed rule:
- injured workers must provide a medical report with their wage loss application. The medical report must both list the restrictions caused by the allowed condition(s) and whether those restrictions are permanent or temporary. [(B)(2)(a) and (B)(2)(b)].
- if the restrictions are temporary, the initial medical report must indicate how long the restrictions are expected to last. [(B)(2)(c)].
- if the restrictions are permanent, the initial medical report must be dated within 90 days of the start date requested for wage loss compensation. [(B)(2)(d)].
- if the restrictions are temporary, the injured worker must provide a supplemental medical report every 90 days. [(B)(3)].
- if the restrictions are permanent, the BWC or self-insured employer can request a supplemental medical report every 180 days. [(B)(3)].
Non-working Wage Loss
- injured workers seeking non-working wage loss must submit job search statements for every week of non-working wage loss sought, and must submit job search statements with the application. [(C)(1) and (C)(2)].
Working Wage Loss
- unless the BWC, Industrial Commission or self-insured employer excuse a job search, injured workers seeking working wage loss must submit a job search for every week they seek working wage loss. [(D)(1)].
- failure to conduct a job search is considered a voluntary limitation of income. [(D)(3)].
Factors to Consider
- the injured worker has the burden of establishing their entitlement to wage loss compensation. [(E)].
- the injured worker must demonstrate they complied with the job search requirements. [(E)(1)].
- the injured worker must seek suitable employment with the employer at the beginning of the period for which they request wage loss, unless they demonstrate that it would be futile to seek such employment. [(E)(1)(a)(ii)].
- for non-working wage loss, the injured worker must register with the Ohio Department of Job and Family Services (or the equivalent state agency if they do not live in Ohio). [(E)(1)(a)(iii)].
- for the first 60 days, the injured worker may search for suitable employment within their skills; after 60 days, they must also search for entry level or unskilled work. [(E)(1)(b)].
- the job search must be a “good faith effort.” This means “consistent, sincere, and best attempts to obtain suitable employment that will eliminate the wage loss.” The rule lists a number of factors considered when determining if the injured worker made a good faith effort. [(E)(1)(c)].
- an employer’s offer of employment will not be considered unless it is both “made in writing” and contains “a reasonable description of the job duties, hours, and rate of pay.” [(E)(2)(a)].
- unless an exception applies, wage loss is paid based on the average weekly wage and the injured worker’s present earnings. [(G)(1)].
- if an injured worker fails to accept a good faith offer of suitable employment, wage loss will be 66 2/3% of the injured worker’s AWW and the weekly wage the injured worker would have earned had they accepted the offer. [(G)(2)(a)].
- when an injured worker voluntarily limits their hours, wage loss will be 66 2/3% of the injured worker’s AWW and the weekly wage the injured worker would have earned had they not limited their hours. [(G)(2)(b)].