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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Workers’ Compensation and On-duty Illness/Injury Leave

Most OPBA collective bargaining agreements have a negotiated provision that allows employees who are injured on the job or in the line of duty and are unable to work to continue on their employer’s payroll and benefits for a limited period of time.  These provisions may be known as “On-duty Illness/Injury Leave,” “Injury On-Duty Leave,” “Wage Continuation” or some other title (referred to as IOD in this article) depending on each group’s CBA.  I frequently receive questions from employees who are injured on the job about their rights.  There is typically confusion about how these provisions work and what happens when they end.  Of course, each employee’s potential benefits depend exclusively on the negotiated language and specific terms in their CBA.  There are no civil service rules or state laws that require employers to continue your pay and benefits if you are injured on the job and unable to work (although employees may receive FMLA leave and may substitute their approved leaves of absence to receive pay).  Employees must follow the specific guidelines of the CBA to qualify for IOD.

As a backdrop to the discussion of “IOD” provisions, employees should know that Ohio has a statutory insurance policy for injured workers called the Bureau of Workers’ Compensation (BWC)[1].  The BWC is a complex system made up of employers, managed care organizations (MCO), insurance companies, a State board and State bureaucracies, which will not be fully analyzed here.  But it is important to know the basics to understand the interplay between the BWC and IOD provisions.  Any employee injured at work, no matter how seemingly minor or whether life threatening, should file a claim for coverage under the BWC.  Not all injuries will qualify and not all injury claims will receive coverage, but employees should document the injuries and apply.

According to the BWC, “within 28 days from the date your initial claim for benefits is filed, BWC will decide to allow or deny it.  By re­sponding to any inquiries from your MCO or BWC, you will quicken the de­cision-making process and the receipt of benefits. If you or your employer disagrees with our decision, either party can file an appeal with the Industrial Commission within 14 days.  If [the BWC] allows your claim and you cannot return to work for eight or more days, [BWC] will pay a percentage of the wag­es you lose as a result of the allowed work-related injury.”  In addition, the BWC will pay the medical claims as a result of the approved injury.  So in the absence of an IOD provision in the CBA or if the IOD claim is denied by the employer, employees still have a statutory right to receive compensation for lost wages as a result of a BWC approved work-related injury.

An IOD claim is a separate right defined by the CBA and may require different qualifications than the BWC claim.  Many employers will continue employees on their usual payroll system as a result of an on-duty injury which results in the employee being unable to continue to work.  Employers will provide benefits for a limited period of time in order to avoid having to make claims against the BWC.  The employer’s premiums or cost of paying into BWC will increase with each claim filed and the amount of each claim.  For employees that sustain injuries for which they are likely to return to work within 60 or 90 days or less, it may be more cost effective for the employer to continue to pay the employee rather than require that employee to go on the BWC wage benefits.  This is the reason why most IOD provisions have a limited period of coverage, usually 30 to 180 days.

Employees must read the IOD provision carefully to determine what is covered and what is not and when the employee must notify the employer of the claim.  There may be a notice provision that requires the employee to notify the employer within so many hours or days of the injury and to describe the circumstances of the incident and the nature of the injury.  Employees may be required to fill out a specific form.  Failure to follow the CBA requirements may disqualify the employee from receiving IOD benefits.  Also, some IOD provisions only cover “high risk” injuries, such as a result of an apprehension, training, motor vehicle accident with lights and sirens, or other injury sustained while performing law enforcement functions.  These provisions may exclude non-law enforcement injuries such as a trip and fall, routine driving incidents, or simple mishaps.  Further, some only provide wage continuation if the injury results in the employee being off-duty for more than 3, 5 or 7 days, otherwise the employee will simply use sick leave.  Almost all require that the injury be approved through the BWC process even if the employee is not seeking BWC wage benefits.  The employer may deny IOD benefits depending on the coverage provision and the circumstances of each case; however, the employee may file a grievance to contest the denial of the IOD coverage.  Obviously, employees who have claims denied through the BWC will be required to file an appeal through the BWC process.

In any event that you do not have IOD benefits or the employer has denied IOD coverage or your covered period has elapsed, employees are always entitled to approved claims through the BWC. Even for severe, life-threatening or debilitating injuries, employees may receive the IOD benefits for the covered period and then will transition onto the BWC temporary or permanent total plan or seek disability benefits through their respective pension plan.  An IOD provision is an additional negotiated benefit, not a substitute for the BWC process.  Hopefully, an employee will be able to return to full duty within the covered period in order to avoid going off their employer’s payroll.  However, even for non-covered claims or for long term illness/injuries that will extend beyond the IOD period, employees should consult with their BWC or disability attorney to seek options for work-related injuries.

 



[1] The OPBA does not provide legal representation for BWC claims.

 

Knowing the Stakes of Protective Sweeps

Recently, a defendant in one of our cases escaped drug and weapon related felony charges because of an improperly performed protective sweep. Police, responding to an anonymous emergency call involving a domestic dispute, performed a routine protective sweep and found a bag of cocaine and a gun on the bedroom floor. The officer believed that a protective sweep could be executed upon entering a home. However, the law requires more.

In order to legally perform a protective sweep, an officer must have an articulable suspicion or reasonable belief that there is someone in other rooms of the house who poses a danger to those on the arrest scene. The officer in the case above thought that he was able to perform a protective sweep at any time and stated that he always conducted them upon entering a home. This officer could not provide a specific reason for his suspicion that someone else was in the home. The officer said that he is often lied to when he asks about others in the home. That is not a solid enough reason for the sweep to hold up in court.

To avoid a situation like the one above, you should always begin by asking to search the home. If they say no, you still may search if you have a reasonable belief that there is someone else in the house that gives you reason to be concerned for your safety. Just because you hear a noise or even are advised that there is some other occupant in another room does not mean you can search there. It is important that you have some reasonable belief that a known or possible other occupant is a risk to your safety. The officer in the above case needed some reasonable suspicion in order to search, which he did not have.

The duties of a police officer can be stressful and demanding, especially when dealing with hardened criminals in high drug traffic areas. An added difficulty is having to comply with numerous, often complex, laws. Remember that you are only allowed to make a protective sweep when you have an articulable, reasonable suspicion of danger or you might watch the defendant walk free.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney

 

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Law Enforcement Bulletin October 2014

Ohio Attorney General's Law Enforcement Bulletin

October 2014

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Search and Seizure (Community Caretaking Exception): State v. Barzacchini; State v. Hendrix; and State v. Leveck

Gavel

The community caretaking exception to the warrant requirement is only available when you have a reasonable, objective belief immediate assistance is needed to protect life or prevent serious injury.  Otherwise, you need a warrant.


Miranda (Public Safety Exception): State v. Brown

If you have an objectively reasonable need to protect yourself or the public from an immediate danger associated with a weapon, you can question a suspect without giving Miranda warnings.

Proper Protocol (Sting Operation, Receiving Stolen Property): Young v. Owens

When conducting a sting operation on a Receiving Stolen Property case, statute requires the seller to give an explicit representation to the buyer that the goods were stolen.

OPOTA Courses Available This November

 

The Attorney General’s Ohio Peace Officer Training Academy (OPOTA) offers state-of-the-art courses led by expert instructors. Consider taking a course this November.