Payment of Permanent Partial Disability Benefits Concurrent with other Workers’ Compensation Benefits

Memorandum

 

 

DATE:       April 21, 2004

TO:            Melissa Gore, Claims Policy Design

FROM:      Michael Travis, Director of Legal Operations

RE:           Payment of Permanent Partial Disability Benefits Concurrent with                       other Workers’ Compensation Benefits

 

      This memorandum is in response to your request for a legal opinion regarding Percentage of Permanent Partial payments in the same claim, or a different claim but with the same claimant, concurrent with payments for Death Benefits, Living Maintenance, Living Maintenance Wage Loss, Wage Loss, Temporary Total, Permanent Total Disability, VSSR, Scheduled Loss, Family Support, Facial Disfigurement, PWRE, and Incarceration (Pre and Post Ashcraft).  Note that attached to this legal opinion is a concurrent payments comparison chart.

 

Death Benefits

      Permanent Partial Disability benefits are payable concurrently with death benefits, when the C9-2 award is filed prior to the death.  O.R.C. 4123.57(A) states in relevant part: “when an award under this division has been made prior to the death of an employee, all unpaid installments to accrue under the provisions of the award are payable to the surviving spouse...”

 

Living Maintenance, Living Maintenance Wage Loss

      According to R.C. § 4121.63, “(a) claimant receiving living maintenance payments shall be deemed to be temporarily totally disabled and shall receive no payment of any type of compensation except as provided by division (B) of section 4123.57  (scheduled loss) . . . .” (parenthetical added).  As such, claimants cannot concurrently receive percentage of permanent partial payments along with living maintenance payments.  The Supreme Court of Ohio extended this prohibition to living maintenance wage loss.

 

Wage Loss

      State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 82.  R.C. § 4123.57(C) authorizes the payment of percentage of permanent partial in addition to any compensation payable under R.C. § 4123.56 (including Wage Loss in § 4123.56(B)). 

 

Temporary Total    

      The payment of temporary total in addition to a percentage of permanent partial is allowed by R.C. § 4123.57(C).  Even though R.C. § 4123.57 creates a 40 week waiting period between temporary total and percentage of permanent partial payments, the CMRG states that “TT can be paid over the same period as %PP only when the %PP was paid first and the injured worker later requests TT compensation over the same period.”  Claims Management Resource Guide, Chapter E, Section 12-28. (emphasis added). 

      No authority was found that would not allow the concurrent allowance of percentage of permanent partial and temporary total in different claims over the same period.  As you may know, R.C. § 4123.56 (including temporary total) and § 4123.57 (including percentage of permanent partial) have different compensatory goals.  Temporary total compensates for lost wages while a percentage of permanent partial could be characterized as a damages award.  Accordingly, concurrent payments should be permissible under these circumstances.

 

Permanent Total Disability  

      According to State ex rel. Murray v. Indus. Comm. (1992), 63 Ohio St.3d 473, 475, claimants may not simultaneously receive both permanent partial disability and permanent total disability on account of the same injury.  However, the Supreme Court of Ohio found that a claimant was entitled to receive previously awarded partial disability benefits in addition to subsequently awarded permanent total disability for an injury that occurred prior to November 16, 1973. State ex rel. Martin v. Indus. Comm. (1978), 55 Ohio St.2d 18, 20.  Additionally, in State ex rel. Litten v. Indus. Comm. (1992), 65 Ohio St.3d 178, 179, the Ohio Supreme Court stated that an award for permanent total disability in one claim does not bar permanent partial disability in another, so long as the injuries affect different areas of the body.

 

Violation of Specific Safety Requirement (VSSR)    

      A VSSR award is an additional award authorized by the Ohio Constitution.  Ohio Const. art II, §35.  R.C. § 4121.47(B) states that VSSR awards are “in addition to any award paid to the claimant . . . . “  Accordingly, concurrent percentage of permanent partial and VSSR awards would be authorized.  

 

Scheduled Loss and Facial Disfigurement    

      Under R.C. 4123.57(C), a claimant is allowed to receive compensation under both § 4123.57(A) (percentage of permanent partial) and § 4123.57(B) (scheduled loss - including facial disfigurement) for the same claim.  However, the Supreme Court of Ohio had held that awards based on percentage of permanent disability and awards for scheduled losses are mutually exclusive for the same injury or condition.   State ex rel. King v. Indus. Comm. (1997), 77 Ohio St.3d 252, 257.  Therefore, concurrent payments are not allowed for the same injury or condition.

 

Family Support       

      In accordance with R.C. §§ 4132.67 & 3113.21, BWC cooperates with other state agencies regarding the collection of family support. As a matter of practice, family support orders have the first claim on all awards considered lump sum awards.  Notice to the CSEA (Child Support Enforcement Agencies) is required for lump sum awards exceeding $500.00, and effective January 1, 1998 this threshold will be reduced to $150.00.  If the injured worker is in arrears, 100% of the lump sum award may be used to clear the arrearage.  Percentage of Permanent Partial awards are considered lump sum awards and require notice to the CSEA.  If the injured worker is current on his/her child support, concurrent payment of PPD is allowed.

 

Public Works Relief Compensation Fund      

      Although no case or statute was found addressing concurrent payment under the Public Works Relief Compensation Fund and percentage of permanent partial benefits under Chapter 4123, some authority exists regarding the matter.  Chapter 4127 established the fund as the sole source of benefits for work relief claimants.  R.C. § 4127.05 provides that “all compensation, death benefits, and expenses for medical, nurse, and hospital services, medicine, and funerals, shall be paid out of the fund.”  Apparently, this provision would not allow for concurrent payments.  However, § 4127.13 states that “(c)hapter 4123. of the Revised Code, except sections 4123.512 (appeals), 4123.62 (expected wage increases), and 4123.64 (commutation to lump sum) of the Revised Code, apply to this chapter.”  R.C. 4132.57 provides compensation for permanent partial disability. 

      In an unreported case, the Eleventh District Court of Appeals interpreted § 4127.13 and stated that “we cannot hold that the legislature intended to deny compensation to public work relief employees for permanent partial disability.”  Hake v. Trimble, No. 95-T5310, 1996 WL 649163, at *2 (Ohio App. 11 Dist.).  This holding, if binding, would appear to stand for the proposition that public work relief employees can be entitled to permanent partial disability benefits from the public work relief employees’ compensation fund.

                 

Incarceration          

      For all claims filed after August 22, 1986, a claimant’s receipt of workers’ compensation benefits while incarcerated in a penal institution in Ohio or any state for conviction of violation of the criminal law of this or any other state is prohibited.  R.C. 4123.54(B).  Prior to August 22, 1986, no statute or case was found that prohibited the payment of percentage of permanent partial while the claimant was incarcerated or confined as mentioned above.  The Supreme Court of Ohio decided, for applications filed before August 22, 1986, that incarceration would preclude a claimant’s receipt of temporary total disability compensation.  State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 45.  This holding was based on the theory that the claimant has voluntarily removed him or herself  from the workforce, no longer incurs a loss of earnings because he or she is no longer in a position to return to work, and is thus not entitled to temporary total compensation benefits.  Id. at 44. 

      In contrast, the Supreme Court also held that the incarceration of an injured worker was not a basis for terminating permanent total disability benefits because the incarceration does not negate the causal connection between work related injuries and his or her absence from the work force.  State ex rel. Brown v. Indus. Comm. (1993), 68 Ohio St.3d 45, 48-49.  The Court has apparently based its decisions on the legislative goal of the specific benefit.  Because percentage of permanent partial can be characterized as a “damage” award (see above), it appears unlikely that incarceration would or should have any affect on the damages suffered by a claimant.  

      Additionally, the Court indicated, in dicta, that pursuant to Chapter 4123, a claimant should not be denied compensation in similar circumstances absent legislative action.  Id. at 50.  Based on above, there is no apparent authority for denying the payment of percentage of permanent partial to incarcerated claimants.

      Please feel free to contact me if you have any further questions on the issues addressed in this legal opinion.

 

CONCURRENT PAYMENTS OF % P.P. WITH OTHER TYPES OF WORKERS’ COMPENSATION BENEFITS

 

Type of Payment

% PPD Concurrently Allowed in Same Claim?

% PPD Concurrently Allowed with Same Claimant, but Different Claim?

Death Benefits

YES

YES

Living Maintenance

NO

NO

L.M. Wage Loss

NO

NO

Wage Loss

YES

YES

Temporary Total

YES

YES

Permanent Total Disability

NO

YES *

VSSR

YES

YES

Scheduled Loss

YES **

YES **

Family Support

YES

YES

Facial Disfigurement

YES **

YES **

PWRE

YES

YES

Incarceration

YES

YES

 

* So long as the injuries affect different body parts.

**  But not for the same injury or condition.  See accompanying legal opinion for more details.