Ohio § 4123.57

§ 4123.57.

Partial disability compensation shall be paid as follows. Except as provided in this section, not earlier than twenty-six weeks after the date

of termination of the latest period of payments under section 4123.56 of the Revised Code or twenty-six weeks after the termination of wages in lieu of those payments, or

not earlier than twenty-six weeks after the date of the injury or contraction of an

occupational disease in the absence of payments under section 4123.56 of the Revised Code or wages in lieu of those payments, the employee may file an application with the

bureau of workers' compensation for the determination of the percentage of the employee's

permanent partial disability resulting from an injury or occupational disease. Whenever the application is filed, the bureau shall send a copy of the application

to the employee's employer or the employer's representative and shall schedule the

employee for a medical examination by the bureau medical section.  The bureau shall send a copy of the report of the medical examination to the employee,

the employer, and their representatives.  Thereafter, the administrator of workers' compensation shall review the employee's

claim file and make a tentative order as the evidence before the administrator at

the time of the making of the order warrants.  If the administrator determines that there is a conflict of evidence, the administrator

shall send the application, along with the claimant's file, to the district hearing

officer who shall set the application for a hearing. If an employee fails to respond to an attempt to schedule a medical examination by

the bureau medical section, or fails to attend a medical examination scheduled under

this section without notice or explanation, the employee's application for a finding

shall be dismissed without prejudice.  The employee may refile the application.  A dismissed application does not toll the continuing jurisdiction of the industrial

commission under section 4123.52 of the Revised Code .  The administrator shall adopt rules addressing the manner in which an employee will

be notified of a possible dismissal and how an employee may refile an application

for a determination. The administrator shall notify the employee, the employer, and their representatives,

in writing, of the tentative order and of the parties' right to request a hearing.  Unless the employee, the employer, or their representative notifies the administrator,

in writing, of an objection to the tentative order within twenty days after receipt

of the notice thereof, the tentative order shall go into effect and the employee shall

receive the compensation provided in the order.  In no event shall there be a reconsideration of a tentative order issued under this

division. If the employee, the employer, or their representatives timely notify the administrator

of an objection to the tentative order, the matter shall be referred to a district

hearing officer who shall set the application for hearing with written notices to

all interested persons.  Upon referral to a district hearing officer, the employer may obtain a medical examination

of the employee, pursuant to rules of the industrial commission. (A) The district hearing officer, upon the application, shall determine the percentage

of the employee's permanent disability, except as is subject to division (B) of this

section, based upon that condition of the employee resulting from the injury or occupational

disease and causing permanent impairment evidenced by medical or clinical findings

reasonably demonstrable.  The employee shall receive sixty-six and two-thirds per cent of the employee's average

weekly wage, but not more than a maximum of thirty-three and one-third per cent of

the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code , per week regardless of the average weekly wage, for the number of weeks which equals

the percentage of two hundred weeks.  Except on application for reconsideration, review, or modification, which is filed

within ten days after the date of receipt of the decision of the district hearing

officer, in no instance shall the former award be modified unless it is found from

medical or clinical findings that the condition of the claimant resulting from the

injury has so progressed as to have increased the percentage of permanent partial

disability.  A staff hearing officer shall hear an application for reconsideration filed and

the staff hearing officer's decision is final.  An employee may file an application for a subsequent determination of the percentage

of the employee's permanent disability.  If such an application is filed, the bureau shall send a copy of the application

to the employer or the employer's representative.  No sooner than sixty days from the date of the mailing of the application to the

employer or the employer's representative, the administrator shall review the application.  The administrator may require a medical examination or medical review of the employee.  The administrator shall issue a tentative order based upon the evidence before the

administrator, provided that if the administrator requires a medical examination or

medical review, the administrator shall not issue the tentative order until the completion

of the examination or review. The employer may obtain a medical examination of the employee and may submit medical

evidence at any stage of the process up to a hearing before the district hearing officer,

pursuant to rules of the commission.  The administrator shall notify the employee, the employer, and their representatives,

in writing, of the nature and amount of any tentative order issued on an application

requesting a subsequent determination of the percentage of an employee's permanent

disability.  An employee, employer, or their representatives may object to the tentative order

within twenty days after the receipt of the notice thereof.  If no timely objection is made, the tentative order shall go into effect.  In no event shall there be a reconsideration of a tentative order issued under this

division.  If an objection is timely made, the application for a subsequent determination shall

be referred to a district hearing officer who shall set the application for a hearing

with written notice to all interested persons.  No application for subsequent percentage determinations on the same claim for injury

or occupational disease shall be accepted for review by the district hearing officer

unless supported by substantial evidence of new and changed circumstances developing

since the time of the hearing on the original or last determination. No award shall be made under this division based upon a percentage of disability which,

when taken with all other percentages of permanent disability, exceeds one hundred

per cent.  If the percentage of the permanent disability of the employee equals or exceeds

ninety per cent, compensation for permanent partial disability shall be paid for two

hundred weeks. Compensation payable under this division accrues and is payable to the employee from

the date of last payment of compensation, or, in cases where no previous compensation

has been paid, from the date of the injury or the date of the diagnosis of the occupational

disease. When an award under this division has been made prior to the death of an employee,

all unpaid installments accrued or to accrue under the provisions of the award are

payable to the surviving spouse, or if there is no surviving spouse, to the dependent

children of the employee, and if there are no children surviving, then to other dependents

as the administrator determines. (B) For purposes of this division, “ payable per week ” means the seven-consecutive-day period in which compensation is paid in installments

according to the schedule associated with the applicable injury as set forth in this

division. Compensation paid in weekly installments according to the schedule described in this

division may only be commuted to one or more lump sum payments pursuant to the procedure

set forth in section 4123.64 of the Revised Code . In cases included in the following schedule the compensation payable per week to the

employee is the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code per week and shall be paid in installments according to the following schedule: For the loss of a first finger, commonly known as a thumb, sixty weeks. For the loss of a second finger, commonly called index finger, thirty-five weeks. For the loss of a third finger, thirty weeks. For the loss of a fourth finger, twenty weeks. For the loss of a fifth finger, commonly known as the little finger, fifteen weeks. The loss of a second, or distal, phalange of the thumb is considered equal to the

loss of one half of such thumb;  the loss of more than one half of such thumb is considered

equal to the loss of the whole thumb. The loss of the third, or distal, phalange of any finger is considered equal to the

loss of one-third of the finger. The loss of the middle, or second, phalange of any finger is considered equal to the

loss of two-thirds of the finger. The loss of more than the middle and distal phalanges of any finger is considered

equal to the loss of the whole finger.  In no case shall the amount received for more than one finger exceed the amount

provided in this schedule for the loss of a hand. For the loss of the metacarpal bone (bones of the palm) for the corresponding thumb,

or fingers, add ten weeks to the number of weeks under this division. For ankylosis (total stiffness of) or contractures (due to scars or injuries) which

makes any of the fingers, thumbs, or parts of either useless, the same number of weeks

apply to the members or parts thereof as given for the loss thereof. If the claimant has suffered the loss of two or more fingers by amputation or ankylosis

and the nature of the claimant's employment in the course of which the claimant was

working at the time of the injury or occupational disease is such that the impairment

or disability resulting from the loss of fingers, or loss of use of fingers, exceeds

the normal impairment or disability resulting from the loss of fingers, or loss of

use of fingers, the administrator may take that fact into consideration and increase

the award of compensation accordingly, but the award made shall not exceed the amount

of compensation for loss of a hand. For the loss of a hand, one hundred seventy-five weeks. For the loss of an arm, two hundred twenty-five weeks. For the loss of a great toe, thirty weeks. For the loss of one of the toes other than the great toe, ten weeks. The loss of more than two-thirds of any toe is considered equal to the loss of the

whole toe. The loss of less than two-thirds of any toe is considered no loss, except as to the

great toe;  the loss of the great toe up to the interphalangeal joint is co-equal

to the loss of one-half of the great toe;  the loss of the great toe beyond the interphalangeal

joint is considered equal to the loss of the whole great toe. For the loss of a foot, one hundred fifty weeks. For the loss of a leg, two hundred weeks. For the loss of the sight of an eye, one hundred twenty-five weeks. For the permanent partial loss of sight of an eye, the portion of one hundred twenty-five

weeks as the administrator in each case determines, based upon the percentage of vision

actually lost as a result of the injury or occupational disease, but, in no case shall

an award of compensation be made for less than twenty-five per cent loss of uncorrected

vision.  “ Loss of uncorrected vision ” means the percentage of vision actually lost as the result of the injury or occupational

disease. For the permanent and total loss of hearing of one ear, twenty-five weeks;  but in

no case shall an award of compensation be made for less than permanent and total loss

of hearing of one ear. For the permanent and total loss of hearing, one hundred twenty-five weeks;  but,

except pursuant to the next preceding paragraph, in no case shall an award of compensation

be made for less than permanent and total loss of hearing. In case an injury or occupational disease results in serious facial or head disfigurement

which either impairs or may in the future impair the opportunities to secure or retain

employment, the administrator shall make an award of compensation as it deems proper

and equitable, in view of the nature of the disfigurement, and not to exceed the sum

of ten thousand dollars.  For the purpose of making the award, it is not material whether the employee is

gainfully employed in any occupation or trade at the time of the administrator's determination. When an award under this division has been made prior to the death of an employee

all unpaid installments accrued or to accrue under the provisions of the award shall

be payable to the surviving spouse, or if there is no surviving spouse, to the dependent

children of the employee and if there are no such children, then to such dependents

as the administrator determines. When an employee has sustained the loss of a member by severance, but no award has

been made on account thereof prior to the employee's death, the administrator shall

make an award in accordance with this division for the loss which shall be payable

to the surviving spouse, or if there is no surviving spouse, to the dependent children

of the employee and if there are no such children, then to such dependents as the

administrator determines. (C) Compensation for partial impairment under divisions (A) and (B) of this section is

in addition to the compensation paid the employee pursuant to section 4123.56 of the Revised Code .  A claimant may receive compensation under divisions (A) and (B) of this section. In all cases arising under division (B) of this section, if it is determined by any

one of the following:  (1) the amputee clinic at University hospital, Ohio state university;

 (2) the opportunities for Ohioans with disabilities agency;  (3) an amputee clinic

or prescribing physician, certified nurse-midwife, clinical nurse specialist, or certified

nurse practitioner approved by the administrator or the administrator's designee,

that an injured or disabled employee is in need of an artificial appliance, or in

need of a repair thereof, regardless of whether the appliance or its repair will be

serviceable in the vocational rehabilitation of the injured employee, and regardless

of whether the employee has returned to or can ever again return to any gainful employment,

the bureau shall pay the cost of the artificial appliance or its repair out of the

surplus created by division (B) of section 4123.34 of the Revised Code . Notwithstanding any provision in this division to the contrary, when a claimant has

sustained an amputation or a loss enumerated in division (B) of this section as a

result of an injury or occupational disease, the administrator shall pay the cost

to purchase, repair, or replace a prosthetic device as defined in division (B) of section 4123.52 from the surplus fund account created pursuant to division (B) of section 4123.34 of the Revised Code , even if no award has been made under division (B) of this section. In those cases where an opportunities for Ohioans with disabilities agency's recommendation

that an injured or disabled employee is in need of an artificial appliance would conflict

with their state plan, adopted pursuant to the “Rehabilitation Act of 1973,” 87 Stat.

355, 29 U.S.C.A. 701 , the administrator or the administrator's designee or the bureau may obtain a recommendation

from an amputee clinic or prescribing physician, certified nurse-midwife, clinical

nurse specialist, or certified nurse practitioner that they determine appropriate. (D) If an employee of a state fund employer makes application for a finding and the administrator

finds that the employee has contracted silicosis as defined in division (Y), or coal

miners' pneumoconiosis as defined in division (Z), or asbestosis as defined in division

(BB) of section 4123.68 of the Revised Code , and that a change of such employee's occupation is medically advisable in order

to decrease substantially further exposure to silica dust, asbestos, or coal dust

and if the employee, after the finding, has changed or shall change the employee's

occupation to an occupation in which the exposure to silica dust, asbestos, or coal

dust is substantially decreased, the administrator shall allow to the employee an

amount equal to fifty per cent of the statewide average weekly wage per week for a

period of thirty weeks, commencing as of the date of the discontinuance or change,

and for a period of one hundred weeks immediately following the expiration of the

period of thirty weeks, the employee shall receive sixty-six and two-thirds per cent

of the loss of wages resulting directly and solely from the change of occupation but

not to exceed a maximum of an amount equal to fifty per cent of the statewide average

weekly wage per week.  No such employee is entitled to receive more than one allowance on account of discontinuance

of employment or change of occupation and benefits shall cease for any period during

which the employee is employed in an occupation in which the exposure to silica dust,

asbestos, or coal dust is not substantially less than the exposure in the occupation

in which the employee was formerly employed or for any period during which the employee

may be entitled to receive compensation or benefits under section 4123.68 of the Revised Code on account of disability from silicosis, asbestosis, or coal miners' pneumoconiosis.  An award for change of occupation for a coal miner who has contracted coal miners'

pneumoconiosis may be granted under this division even though the coal miner continues

employment with the same employer, so long as the coal miner's employment subsequent

to the change is such that the coal miner's exposure to coal dust is substantially

decreased and a change of occupation is certified by the claimant as permanent.  The administrator may accord to the employee medical and other benefits in accordance

with section 4123.66 of the Revised Code . (E) If a firefighter or police officer makes application for a finding and the administrator

finds that the firefighter or police officer has contracted a cardiovascular and pulmonary

disease as defined in division (W) of section 4123.68 of the Revised Code , and that a change of the firefighter's or police officer's occupation is medically

advisable in order to decrease substantially further exposure to smoke, toxic gases,

chemical fumes, and other toxic vapors, and if the firefighter, or police officer,

after the finding, has changed or changes occupation to an occupation in which the

exposure to smoke, toxic gases, chemical fumes, and other toxic vapors is substantially

decreased, the administrator shall allow to the firefighter or police officer an amount

equal to fifty per cent of the statewide average weekly wage per week for a period

of thirty weeks, commencing as of the date of the discontinuance or change, and for

a period of seventy-five weeks immediately following the expiration of the period

of thirty weeks the administrator shall allow the firefighter or police officer sixty-six

and two-thirds per cent of the loss of wages resulting directly and solely from the

change of occupation but not to exceed a maximum of an amount equal to fifty per cent

of the statewide average weekly wage per week.  No such firefighter or police officer is entitled to receive more than one allowance

on account of discontinuance of employment or change of occupation and benefits shall

cease for any period during which the firefighter or police officer is employed in

an occupation in which the exposure to smoke, toxic gases, chemical fumes, and other

toxic vapors is not substantially less than the exposure in the occupation in which

the firefighter or police officer was formerly employed or for any period during which

the firefighter or police officer may be entitled to receive compensation or benefits

under section 4123.68 of the Revised Code on account of disability from a cardiovascular and pulmonary disease.  The administrator may accord to the firefighter or police officer medical and other

benefits in accordance with section 4123.66 of the Revised Code . (F) An order issued under this section is appealable pursuant to section 4123.511 of the Revised Code but is not appealable to court under section 4123.512 of the Revised Code .