216-447-1551
info@rbslaw.com
Taking Advantage of the Handicap Reimbursement Program
As a state-funded employer doing business in Ohio, you absolutely need to know everything you can about the Bureau of Workers’ Compensation’s Handicap Reimbursement Program.Unless your company has previously benefitted from utilizing this employer-friendly program in the past, you may not be knowledgeable about it or fully understand the extent that this program can lower the cost of a claim, thereby reducing your premiums. Now, more than ever, it is important to take full advantage of the Handicap Reimbursement Program.
So, what is a handicap reimbursement and how can your company benefit from one? Let’s start with a hypothetical (but all too common) situation:
As a state-funded employer, one of your employees is injured on the job and subsequently files a workers’ compensation claim. The claim is initially allowed for a lumbar sprain. The claimant remains off work and begins receiving temporary total disability compensation. As part of the claimant’s treatment, he undergoes an MRI scan of the lumbar spine. The MRI reveals two herniated discs, in addition to a fairly severe arthritic condition of the lumbar spine. The claimant’s treating physician believes that the arthritic condition likely pre-existed the injury. Eventually, the claim is additionally allowed for the two herniated discs. The claimant remains disabled and eventually has to undergo surgery to address his herniated discs. The operative report becomes available and, upon review, you see that the claimant’s attending physician made note of the severe arthritic condition of the claimant’s lumbar spine. The claimant remains off work for another six months post-surgery before finally returning to work. At this point, the claims costs are simply astronomical. A year of temporary total disability compensation has been paid. Extensive medical bills have been paid. There is also a significant reserve attached to the claim. There is no doubt that this claim is going to have a significant impact on your premiums. What, if anything, can be done to lower these claim costs? This is where it literally “pays” to understand the Handicap Reimbursement Program.
Here’s what you (and your attorney) would look for to see if a handicap reimbursement is possible:
The law defines a “handicapped employee” as an employee who is afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease, of such character that the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed. The actual “impairment” causing the alleged handicap must be one of the twenty-five conditions specifically noted in the law. The three most common impairments (or conditions) noted in the law are arthritis, diabetes and cardiac disease. There must always be clear evidence of the condition in the medical records. Evidence of the condition can usually be found in medical records (both prior to and subsequent to the injury) such as office notes, diagnostic tests and operative reports.
Furthermore, there must be clear evidence that the condition pre-existed the claimant’s industrial injury. Again, look to the medical records for evidence of whether or not the condition pre-existed the injury. The claimant’s treating physician may have offered an opinion. However, it is often necessary to obtain a record review from an independent physician to offer an opinion as to whether or not the condition pre-existed an injury. This is usually necessary when there are no medical records prior to an injury, and the post-injury medical records are unclear as to this point.
Additionally, it is necessary to demonstrate that the pre-existing condition contributed to the length and difficulty of the claimant’s recovery from his injury. Again, look to the medical records for evidence of this. It is often necessary for an independent physician to offer an opinion on this issue as well. An independent physician can review the claim and opine, for instance, that the condition contributed to a 75% delay in the claimant’s recovery from his injury. This would translate into a 75% handicap reimbursement.
Lastly, in order to pursue a handicap reimbursement, the appropriate type of compensation must have been paid in the claim; that is, either temporary total disability compensation (or salary continuation), permanent total disability compensation, death benefits and/or scheduled loss awards.
In our example above, should we pursue a handicap reimbursement? The answer is yes!
First, the claimant clearly has evidence of impairment (arthritis is one of the twenty-five conditions) as per the MRI scan and the operative report. However, it is also important to keep in mind that MRI scans, operative reports and other medical records might not specifically mention the word “arthritis.” Arthritis often goes by many different names and the Handicap Reimbursement Unit is very particular as to what constitutes arthritis and what does not, for purposes of granting a handicap reimbursement.
Second, the arthritis likely pre-existed the industrial injury. The treating physician actually believes that it did. Although there are no prior medical records, the MRI scan was performed soon after the claimant’s injury and revealed severe arthritis. It is likely to be accepted that the severe arthritis developed over time and pre-existed the claimant’s injury, as opposed to developing in the short time subsequent to the injury. This is when an independent physician’s opinion, subsequent to a record review, becomes useful as well. Obviously, it would be nice to have medical records prior to the industrial injury that show a pre-existing condition, but those records might not exist! When they do exist, it is obviously very clear evidence of a pre-existing condition. When they don’t exist, you may need an outside opinion.
Third, the claimant’s pre-existing (and severe) arthritis likely contributed to a delay in the claimant’s recovery from his injury. How much of a delay, though? It is important to review the claimant’s medical records to get an understanding of the treatment history and the impact of the arthritis on his recovery. Again, this is where a record review from an independent physician comes in handy. For purposes of our hypothetical situation, let’s say our physician recommended a 75% handicap reimbursement due to the impact of the claimant’s pre-existing arthritic condition.
Fourth, the claimant was clearly paid temporary total disability compensation, so the appropriate type of compensation was paid in the claim.
So, in our example, we seem to have met all the elements to pursue a handicap reimbursement. This matter should be referred to your attorney, if it has not been already, to proceed with the filing of an application for a handicap reimbursement.
At this point, it is important for your attorney to compile any and all medical documentation that supports a handicap reimbursement. As mentioned above, it is recommended to obtain a record review from an independent physician. The physician should provide a report addressing the above-referenced issues and provide an actual percentage recommendation.
Your attorney should then proceed with filing an application for a handicap reimbursement with the Bureau of Workers’ Compensation (BWC). There is a specific form for this. The application must be fully completed or it may be dismissed. Your attorney should make sure to attach all relevant claim and medical documentation to the application, in addition to the independent physician’s report. A brief summary concerning the mechanism of injury, allowed conditions, claims costs and relevant medical documentation may also be attached. Remember, it is wise to file for a handicap reimbursement before a claim enters your experience (two years post-injury). However, you have until June 30th of the sixth year after the date of injury to file an application. Also, remember that once you receive a handicap reimbursement for one condition, you cannot re-file another application for the same condition in an effort to get your reimbursement increased. You can file additional application(s), however, for other conditions that have not yet been granted a handicap reimbursement.
Once the application is filed, the BWC’s Handicap Reimbursement Unit will process the application and schedule an informal conference with a BWC attorney. This may be conducted in person or over the telephone. You must indicate which you prefer on your application. At the conference, your attorney will argue on your behalf and assert that a handicap reimbursement should be granted in the claim, meaning that the BWC should charge a certain percentage of the claim costs to the statutory surplus fund, as opposed to the employer’s experience. Basically, in our example above, we would rely upon the medical documentation and the opinion of our independent physician and ask for a 75% handicap reimbursement. If granted, this would mean that the employer is now only responsible for approximately 25% of the claim costs. Please note that handicap reimbursement awards only reduce temporary total disability compensation, permanent total disability compensation, death benefits, medical bills and a claim’s reserve.
At the end of the informal conference, the BWC attorney will decide whether or not to award a handicap reimbursement in the claim. If awarded, the BWC attorney may rely upon your independent physician’s recommendation, or issue what he deems an appropriate award. This decision may be then be appealed to the Industrial Commission of Ohio if a higher percentage is desired. After exhausting your administrative options through the Industrial Commission, you may then appeal to the Tenth District Court of Appeals if a higher percentage is still desired.
So, in our example, say we are granted a 75% handicap reimbursement from the BWC attorney. Considering that our independent physician recommended this percentage, we probably would not appeal. How important is a handicap reimbursement in this example? Very simply, the employer went from having 100% of the claim costs on their experience and from facing a probable premium increase, to having only approximately 25% of the claim costs on their experience, with much less of a premium impact, if any!
Do not hesitate to contact Tony or any of the other workers’ compensation attorneys at RBS with questions concerning the BWC’s Handicap Reimbursement Program or other ways to minimize your company’s workers’ compensation costs.