On September 18, 2013, the Ohio Supreme Court affirmed a court of appeals decision finding that the Bureau of Workers’ Compensation (BWC) was not required to award scheduled loss of use benefits during an injured worker’s lifetime when no application was filed. Additionally, the Court ruled that after the injured worker’s death, scheduled loss benefits were properly limited by a statute governing retroactive payments. State ex rel. Estate of Sziraki v. Admr., Bur. Of Workers’ Comp., Slip Opin. No. 2013-Ohio-4007.
Mr. Sziraki suffered a serious injury in a work related car accident in 1991, resulting in catastrophic brain and spinal cord injuries. While he was alive, his mother applied on Mr. Sziraki’s behalf for permanent total disability benefits. However, she did not apply for scheduled loss benefits for the loss of use of her son’s four extremities. Mr. Sziraki died in 2007 and his mother was appointed as administrator of his estate. After his death, Mr. Sziraki’s mother applied for scheduled loss benefits. It was undisputed that had these benefits been requested during Mr. Sziraki’s life, he would have been entitled to compensation for 850 weeks, which is provided for loss of four extremities under ORC 4123.57(B). However, the Industrial Commission limited the amount payable to two years, or 104 weeks, based on the retroactive payment limitation under ORC 4123.52(A).
In requesting mandamus relief, Mr. Sziraki’s estate argued that the BWC should have awarded the scheduled loss benefits during the injured worker’s lifetime, even in the absence of an application. However, the court of appeals denied the writ of mandamus. Upon further appeal, the majority of the Ohio Supreme Court Justices agreed. The Court found that an application is necessary as the vehicle for starting the process of determining eligibility for scheduled loss benefits. The BWC had no legal duty to award scheduled loss benefits to Mr. Sziraki in the absence of an application.
This decision makes it clear that the BWC is not under an obligation to award loss of use compensation where no application is filed by an injured worker or his representative. This is true even where the parties do not dispute that the injured worker would have been entitled to the benefits had an application been filed. However, employers should keep in mind that there are still limited scheduled loss of use benefits available to the estates of injured workers’ who have passed away under the retroactive payment provision of ORC 4123.52(A).