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Employers were pleased when Ohio legislators enacted a law stating that a claim could not be allowed for substantial aggravation of a pre-existing condition unless there was objective evidence of the condition prior to the claim. (Interpretation provided by my attorney.)

Objective evidence of aggravation should be an x-ray, MRI, or other objective test performed prior to the date of injury. After all, how can it be determined whether there is substantial aggravation if there is no objective evidence of the claimant’s condition prior to the date of injury?

But decisions from hearing officers are not consistent. One hearing officer will require MRI, x-ray or other objective tests while another hearing officer doesn’t require anything. Some hearing officers apparently think a claimant saying “it never bothered me until the accident at work, and now it bothers me all the time” is sufficient to allow the condition.

Why is it important? Here’s a story:

The claimant fell on her arm. The diagnosis was contusion and sprain shoulder. Then the x-ray and MRI showed a massive chronic rotator cuff tear, so severe that it could not be surgically repaired. The claimant filed to get the claim additionally allowed for torn rotator cuff, but it was denied because all doctors agreed that the tear was chronic and not new.

Then the claimant filed for substantial aggravation of rotator cuff tear. The District Hearing Officer disallowed the claim, but the Staff Hearing Officer allowed it, even though there is no objective evidence of the tear prior to the date of injury. The Industrial Commission has stated that it will accept an appeal when it wants to clarify an issue, but in this case it refused to grant another hearing. The employer filed a motion to the court of common pleas to grant summary judgment, but the court dismissed the motion without mentioning a reason.

The doctor has over treated so much that the claimant’s condition has worsened, and the employer is paying for it because the treatments are charged to the employer’s premiums.

How can the Industrial Commission and the court get away with ignoring the law?

Today’s the day if your company is going to enroll in group rating for the 2010 policy year and hasn’t sent in the paperwork.

The group TPAs must provide all information to the BWC by the close of business on Friday, February 26. They must have the AC-26 form for each company along with the roster of companies in each group. Group TPAs form and represent more than one group, and the rosters of companies in each group have to be correct.

If you have not already mailed your AC-26 form and check, fax the AC-26 Employer Statement for Group-Experience-Rating Program to the group TPA today.

Here’s an update on medical reserves being included in medical-only claims.

Effective 7/1/2011, the BWC will implement a split-rating plan. Part of that plan will include medical reserves when calculating an employer’s experience modifier (EM).

However, there will be a certain dollar amount, the BWC example is $1,000, that will not be included in the employer’s experience. Your premiums will actually cover some of your losses!

Medical-only claims that go above the threshold will be subject to reserves.

The vast majority of med-only claims are less than $1,000, so this could be good for employers. There are some businesses that will always have minor injuries due to the nature of the work, even if employees wear their Kevlar gloves and eye protection. Accidents happen, and too often employers pay premiums and then are charged more when there are small claims. What do those premiums actually cover?

A new option for employers for the 2010 rating year is group retrospective rating. Here’s how it works: each employer in the group pays premiums at its individual premium rates. At the end of the each of the next three rating years (the rating year for private employers is July 1 to Jun 30), the BWC will analyze the claims experience of the group, and if certain benchmarks are met, the BWC will refund a percentage of the premium to each employer in the group.

If the group overall doesn’t perform well, all employers in that retro group will be assessed additional premium at the end of the rating year.

Do you want to gamble on the safety practices or luck of other employers?

If so, read the group retro TPA contract carefully. You may see that you must agree that the group TPA may take actions it deems best “for the group” when appealing or settling your claims. You may see that there is no guarantee that your company will be included in the group for any subsequent years. You may see that the yearly group TPA fee is large compared to the rebate you “may” realize at the end of the rating year, and you have to pay the fee upfront each year to be included in the group. What if you don’t like the way the group TPA handles your claims?

You will see that the discount number, which is in the biggest type, is possible savings at the end of three years. You may see that the net individual premium for the first year has the entire three year projected rebate subtracted from the first year projected premium.

Let’s say that the total rebate at the end of the 3rd year is projected to be $30,000, with $11,000 the first year, $13,000 the second year and $5,500 the third year. The TPA fee is $2,500 the first year. To sign up, you will pay the TPA about one-fourth of the possible first year rebate and then pay your individual premiums. By the third year, the projected yearly rebate has dropped to $5,000, so you will have already paid one-half of that to the TPA to continue to be included in the group, assuming that the fee hasn’t increased.