Analysis of Senate Bill 45 (as Passed by Senate)

Posted: March, 1997

Chapter 4121 Changes

• Rehabilitation: Requires Bureau of Workers’ Compensation and Industrial Commission to adopt a policy for placing a claimant, including an employee of a self-insured employer, into rehabilitation.
• Requires use of AMA Guides: Requires Bureau of Workers’ Compensation and Industrial Commission to adopt a policy for evaluation of permanent partial impairment using the AMA Guides to evaluation in its most current edition.
• District Hearing Officers to Report Fraud: R.C. 4121.34 District Hearing Officers (DHO) to report suspected fraudulent activity. DHO held harmless from reporting and inspection division of BWC to keep in confidence the identity of the DHO.
• No Permanent Partial Reconsideration: Deletes reconsideration hearing on permanent partial from Staff Hearing Officers (SHO) jurisdiction. There are no reconsiderations of permanent partial decisions.
• Staff Hearing Officers to Report Fraud: R.C. 4121.35 Same provisions for DHO on reporting fraud.
• Non-attorney Representative: R.C. 4121.361 Provides that non-attorneys by Industrial Commission rules may be authorized to represent employees or employers.
• AMA Guides: R.C. 4121.38 Commission to issue policy requiring use of the most recent edition of the American Medical Association Guides to Evaluation of Permanent Partial Impairment.
• Medical Provider or MCO Fraud — Payment by Deception: R.C. 4121.444 Prohibits health care providers and MCOs from obtaining payment to which not entitled. Establishes penalties paid to the state fund or the self insurer. Six year statute of limitations. Must show specific intent.
• Safety Violations Agricultural Buildings: R.C. 4121.47 Rules on workshops and factories do not apply to buildings or structures used for agricultural purposes and located on land zoned agricultural or to any fixtures, machinery, equipment, tools in those buildings. Excludes commercial processing, packing, canning from Agriculture definition.
• Rehabilitation Self-Insurers: R.C. 4121.61(B) Requires Administrator to adopt rule for provision of rehabilitation by self-insurers. The Industrial Commission to establish rules for a hearing procedure governing disputes on self-insured rehabilitation.
• Rehabilitation Wage Loss Reduction in Number of Weeks: R.C. 4121.67(B) Reduces weeks of rehabilitation wage loss by weeks of regular wage loss paid under R.C. 4123.56.

Chapter 4123 Changes

• Religious Exclusion from Coverage: R.C. 4123.01(A)(2)(c) Excludes from definition of employee members of religious sects conscientiously opposed to insurance providing employee signs waiver and affidavit and administrator grants waiver to the individual’s employer.
• Exclusions from Injury Definition:
  1. R.C. 4123.01(C)(4) Excludes from injury definition pre-existing conditions unless substantially worsened that condition or substantially accelerated the disease as documented by objective clinical findings and test results. Subjective complaints insufficient.
  2. R.C. 4123.01(C)(5) Excludes from injury definition cumulative or repetitive trauma.
• New Occupational Disease Definition: R.C. 4123.01(F) Deletes present definition. Puts cumulative, repetitive trauma under occupational disease and defines occupational disease as damage or harm to the physical structure of the body, due to “causes and conditions characteristic or peculiar to a particular industrial process, trade, or occupation.” The definition excludes:
  1. Ordinary disease of life absent a showing the disease is characteristic of and peculiar to a particular industrial process, trade or occupation;
  2. A disease that would arise without occupational exposure;
  3. A disease resulting from aggravation of a pre-existing disease;
  4. A disease caused primarily by natural deterioration;
  5. Psychiatric conditions except where arise from an O.D.
• Attorney Records: R.C. 4123.061 Attorney records are property of the client to be turned over to the client upon request within fifteen days at no more than twenty-five cents per page charge.
• Religious Exemption: R.C. 4123.15 Employer who is member of recognized religious sect which opposed insurance may ask Administrator, BWC for exemption. Administrator to exclude if sect makes provisions for dependent members. Protects such “employers” from suit by the blanket exemption from suit for all employers who provide workers’ compensation.
• Rules for Employer Payroll Misrepresentation: R.C. 4123.25 Administrator to adopt rules to fine or penalize employers who knowingly misrepresent to BWC the amount or classification of payroll.
• Secret Records: R.C. 4123.27 Employer information provided to BWC and records of injury and disease kept by Division of Safety and Hygiene are not open to the public. Includes as secret accident investigation reports and illness and injury data.
• Fines against Employer and Employer Appeal: R.C. 4123.352 Adds authority to Administrator to fine for failure to follow rules or pay, but Administrator need not fine. Administrator to adopt rules with advice and consent Oversight Commission. Provides for appeal by self-insurer to Self-Insured Evaluation Board. Appeals stays the order. Board’s hearing must be conducted under Chapter 119. An Administrator’s decision to revoke self-insured status must be affirmed by unanimous decision of the Board. Removed Self-Insured Board independent authority to fine.
• DWRF Only for Permanently Totally Impaired, not for Permanently Totally Disabled: R.C. 4123.412, 4123.413, 4123.414, 4123.416 Changes eligibility from people permanently totally “disabled” to permanently totally “impaired”.
• Time for Administrator to Act:
  1. R.C. 4123.511 (A) Administrator within seven days of notice that an occupational disease has been diagnosed shall notify both employer and employee; the notice is considered an application for compensation;
  2. R.C. 4123.511 (B) Administrator to issue order in statefund claims no later than twenty-eight days after receiving notice of claim granting or denying. Delete requirement that Administrator must wait twenty-one days before issuing decision.
• Payment of Compensation: R.C. 4123.511(H) Provides self-insuring employer has to pay compensation within twenty-one days of receipt of DHO, SHO or Industrial Commission order.
• Continuing Jurisdiction Reduced to Five Years: R.C. 4123.52 Reduces time claim is open to five years from date of injury or date of first diagnosis of an occupational disease. Unless compensation is paid under R.C. 4123.56 [temporary total or wage loss], wages in lieu of compensation to toll R.C. 4123.84, 4123.57(B) [amputation award] or R.C. 4123.58 [permanent total] or R.C. 4123.59 [death] or medical benefits are paid. No continuing jurisdiction after five years from last payment. Compensation can only be paid within five years after last payment of compensation under R.C. 4123.56, R.C. 4123.57(B) [amputation award], R.C. 4123.58, or R.C. 4123.59.On medical payments, treatment can be paid for only within five years after date of last treatment which is paid or ordered paid.
• Occupational Disease Continuing Jurisdiction: R.C. 4123.52(B) for occupational disease listed in R.C. 4123.68(A) through (AA) or that results from exposure to fibrosis producing or toxic dusts, jurisdiction continues for five years except that jurisdiction may be extended up to a maximum of six months after date employee first becomes totally disabled.
• Prosthesis: R.C. 4123.56(C) injured workers with prosthetic device internal or external or where determined needs prosthetic device may have temporary total for a period not to exceed nine months.
• Amputation Award: Awards cannot be made for a back period exceeding two years unless written notice as required by R.C. 4123.84 and R.C. 4123.85 has been given.
• Defines Medical Benefits for R.C. 4123.52(A): R.C. 4123.52(G) Defines medical benefit as payment of medical bill to a hospital or a licensed doctor or for prosthetic or orthopedic device, or prescription medication.
• Mandatory Rehabilitation: R.C. 4123.531 Administrator may require any employee asking compensation to submit to a vocational rehabilitation evaluation. If vocational rehabilitation is recommended, the employee shall comply. Failure to comply suspends claim.
• Intoxication or under Drug Influence: R.C. 4123.54 Creates rebuttable presumption that use is proximate cause of injury. Drug not prescribed creates the presumption. Refusal to submit to test is evidence of employee use at any hearing.
• Pre-existing Conditions: Limits payment and medical for aggravation of pre-existing condition to result of the worsening. Once returned to original condition, no further payment.
• Benefits Reduced where Receive Federal and Define Benefits: R.C. 4123.541 Civil defense workers: Reduces proportionally temporary total or permanent total impairment due to benefits from federal government.
• Occupational Disease First Diagnosed: R.C. 4123.55 Provides no payment for first week after injury or first diagnosis occupational disease.
• Net Take Home Pay: R.C. 4123.56(A) Defines net take home weekly wage: Divide total remuneration as defined in R.C. 4141.01 (unemployment compensation) paid during first four of last five calendar quarters immediately preceding first date eligible for benefits by number of weeks paid during those quarters less taxes.
• Self-Insured Voluntary Payment Temporary Total: R.C. 4123.56(B)(1) Permits self-insured to start payment voluntarily and continue such payments at its discretion. On first payment employees to be notified:
  1. payment voluntarily started;
  2. the self-insured may terminate payment at any time;
  3. the employee has a right to a hearing;
  4. if claim determined valid amount already paid is offset.

  Self-insurer to either certify or contest claim within seventy-five days after first payment. A claim is deemed contested if employer fails to certify or contest.

  R.C. 4123.56(B)(2) Excepts the (B)(1) [self-insured vountary payment] claims from requirement for continued payment of compensation on the report of the attending physician.

• Overpayment on Back-dating Temporary Total Termination: R.C. 4123.56(B)(4) If Hearing Officer terminates temporary total before date of hearing, an overpayment to be declared and collected back from future industrial compensation.
• Wage Loss Reductions: R.C. 4123.56(C)(1) Provides: wage loss must be due solely to allowed conditions. Limits amount paid to difference between employee’s average weekly wage and present earnings. Reduces two hundred weeks by any rehabilitation wage loss paid.
• Non-Working Wage Loss: R.C. 4123.56(C)(2) Provides for twenty-six weeks non-working wage loss. However, period may be extended up to fifty-two weeks maximum, if Administrator, Bureau of Employment Services, extends benefit period for unemployment compensation under R.C. 4141.301.
• Aggregates Wage Loss Maximum: R.C. 4123.56(C)(3) Aggregates all wage loss payable to a maximum of two hundred weeks.
• Date of Disease: R.C. 4123.56(C)(4) defines “date of disease” as date “first diagnosed” or for diseases in R.C. 4123.68(A) through (AA) or other disease the results from exposure to fibrosis producing or toxic dusts, the date the employee first misses work as a result of the occupational disease.
• Self-Insured Payment Not Recognition: R.C. 4132.56(F) Provides that payment of temporary total voluntarily made by self-insured under R.C. 4123.511(B) is not recognition of the claim, does toll the statute of limitations for filing a claim.
• Permanent Partial: R.C. 4123.57(A)(2) Changes disability to impairment. Eliminates forty week waiting period to file application for award where:
  1. temporary total is terminated at a hearing on basis of maximum medical improvement;
  2. temporary total is terminated because treating doctor certifies maximum medical improvement.

  R.C. 4123.57(A)(3) Impairment to be evaluated by BWC medical examiner using the most recent AMA Guide. Administrator to issue tentative order unless finds medical report clearly erroneous. If erroneous new examination to be scheduled. Employee and employer within fourteen days of receipt of order to file either acceptance or objection and serve the other party. If nothing filed, order becomes final. Payment to be made in twenty-one days of order becoming final.

  R.C. 4123.57(A)(4) Within fourteen days of receipt of tentative order either party may object and serve the opposite party not later than date of filing. If no objection, order is final.

  R.C. 4123.57(A)(5) If objection filed, either party may request another BWC examination within fourteen days of objection and pay for that examination. Matter referred to DHO who shall rubber stamp BWC medical examination unless:

  1. report is based, in part, on non-allowed conditions;
  2. medical did not consider all allowed conditions;
  3. medical examiner prejudiced against employee or employer;
  4. permanent partial is barred by law.

  If District Hearing Officer finds one, two, or three above, s/he rejects report and orders new examination by BWC. If s/he finds number four, issues order barring permanent partial. If none of above apply, DHO issues order at same percentage as first report or any second report.

• Permanent Partial Increase (C-92A): R.C. 4123.57(A)(6) No application for increase unless supported by new and changed circumstances since last award. No award unless medical or clinical findings that condition has progressed. Application processed same as original application.
• Amount of Compensation for Permanent Partial: R.C. 4123.57(A)(7) Compensation paid at two-thirds of the employee’s average weekly wage as defined in R.C. 4123.62 subject to a maximum of one-third of the statewide average weekly wage for number of weeks that equals the percentage of two hundred weeks. Payment to be made within twenty-one days.Changes disability to impairment throughout.
• Permanent Total Bar to Other Compensation: R.C. 4123.57(C) Prohibits permanent partial or an examination for permanent partial or amputation award where injured worker is getting permanent total in any claim or temporary total in the same claim in which permanent partial is sought.
• Permanent Total Definition: R.C. 4123.58 Changes permanent total disability to permanent total impairment (PTI). Defines PTI as physical or mental limitations preventing the employee from sustained remunerative employment (SRE). Age may be considered, but PTI may not be awarded if age is a significant factor preventing SRE or “acquiring the capacity to engage in SRE.”
• Death Settlement not Abated by Death: R.C. 4123.60(B) Death of claimant entitled to payment of a settlement does not abate settlement. Payment to estate.
• Date of Diagnosis Fixes Benefits Average Weekly Wage: R.C. 4123.61 Requires use of date of disease in occupational disease claim as basis on which average weekly wage is computed. Date defined as date first diagnosed or for R.C. 4123.68(A) through (AA) or fibrosis-producing or toxic dusts date first misses work.Excludes from special circumstances to adjust wage any periods when injured worker is a full- or part-time student in a college or university. Orders by Administrator appealed to Industrial Commission but not to court.
• College Students Excluded for Adjustment AWW: R.C. 4123.62 Presently permits adjustment of the average weekly wage where the person is of such age and experience that it would be expected the wage would increase. This amendment prevents an adjustment where the person is a full- or part-time student for the period enrolled.Date of disease defined as in R.C. 4123.61, above.
• Settlement Employer Signature Absent: R.C. 4123.65(A) Permits injured worker to file settlement application without employer’s signature. If employer still doing business in state, Administrator to send notice. If no response, a second written notice to be sent by Administrator, within forty-five days. If employer not respond within sixty days, or if claim not in employer’s experience, the agreement does not need the employer’s signature.
• Settlement Unrepresented Party: R.C. 4123.65(D) Where one party is unrepresented, the Administrator in state fund claims and the self-insurer send copy of the agreement to the Industrial Commission where a Staff Hearing Officer shall determine if the settlement is clearly unfair, and if so, disapprove the settlement.
• Defines Represented: R.C. 4123.65(G) Represented means:
  1. attorney admitted in Ohio;
  2. representative of an employee organization recognized by the employer for collective bargaining;
  3. person providing workers’ compensation services to employers;
  4. self-insured employer whose duties include administering the self-insured workers’ compensation program.
• Home Health Care: R.C. 4123.66 If treating doctor determines in best interest injured worker to receive home health care, it shall be paid for up to and including twenty four hour care, provided estimated cost does not exceed estimated cost of receiving the care outside the employee’s home.
• Medical Examination: R.C. 4123.68 Adds impairment throughout.Administrator before awarding compensation on asbestosis, berylliosis and other diseases to refer claim for medical examination. In no event is compensation to be paid without an examination.
• Injury Time Limits: R.C. 4123.84 Provides that payment or furnishing benefits or compensation is not recognition of a claim or condition.
• Occupational Disease Time Limits: R.C. 4123.85 Deletes two years after disability began as a criteria. Also deletes six months after diagnosis. Time runs two years from first diagnosis of occupational disease.
• Discrimination: R.C. 4123.90 Specifies no discrimination against employee who files a claim or pursues compensation under R.C. 4123, 4126, 4127 or 4131.Noticeable by its absence is Chapter 4121 – which contains safety violation, rehabilitation provision.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.