Analysis of Senate Bill 45 (as Signed by Governor)
This is an analysis of changes which would have been made to the Ohio workers’ compensation system by Senate Bill No. 45, the Benefit Reduction Bill signed by the Governor on April 22, 1997.
The changes were rejected by the people of Ohio, who voted “NO” on Issue 2, the referendum challenge to the bill. For more information about this bill, and Issue 2, see our referendum page.
This analysis deals only with those portions of the Bill set out in Chapters 4121 and 4123, dealing with workers’ compensation. Senate Bill 45 has a section dealing with medical provider fraud and employer fraud, as well as sections dealing with unemployment compensation and workers’ compensation.
Throughout this legislation the term “disability” was changed to “impairment”, so that both permanent partial disability and permanent total disability would have become strictly impairment matters.
Highlights of the bill follow:
Chapter 4121 Changes
- Non-Lawyer Representation: 4121.121 Administrator’s rules cannot bar a non-lawyer from representing a party.
- Policies to be adopted: Bureau of Workers’ Compensation and Industrial Commission jointly to adopt a policy for  placing injured workers, including self-insured employees, into Rehabilitation;  determining permanent partial impairment under the most recent edition of the AMA Guides to Impairment Evaluation; and  determining the percentage of temporary partial disability and permanent total impairment.
- District Hearing Officers to Report Fraud: R.C. 4121.34 District Hearing Officers (DHO) to report suspected fraudulent activity to the BWC and is held harmless from making such report. Identity of DHO to be confidential.
- No Permanent Partial Reconsideration: R.C. 4121.35 Permanent partial reconsideration hearings eliminated.
- Staff Hearing Officers to Report Fraud: R.C. 4121.35 Staff Hearing Officers to report suspected fraud to BWC.
- Non-Lawyer Representative: Non-attorney may represent party by complying with Industrial Commission rules. Non-attorney may not charge a fee from claimant for advice or service.
- Impairment Evaluation: R.C. 4121.38 Industrial Commission policy manual on impairment evaluation to require use of the most recent edition of the American Medical Association Guides to Evaluation of Permanent Partial Impairment.
- HPP: R.C. 4121.44 Deletes provision permitting Administrator BWC to assume operation of the health partnership program.
- Medical Provider or MCO Fraud: R.C. 4121.444 Deals with health care provider and MCO fraud and provides for penalties. Six year statute of limitations.
- Medical Records Provision: R.C. 4121.445 Health care providers and MCO to make available a copy of medical record to employee at charge not to exceed 15 cents a page.
- 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.
- Safety Violations Reports: R.C. 4121.47 Provides that investigative reports on violations of specific safety requirements to be available to the employer involved and the claimant.
- Rehabilitation: R.C. 4121.61 Administrator to adopt rules establishing criteria for rehabilitation services, counseling training for state fund and self-insuring employers. Industrial Commission to establish hearing rules for disputes between injured worker and self-insured employer on 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.
- Rehabilitation, Incentives for Re-employment: R.C. 4121.67(C) Administrator to adopt rules to provide incentives for employers to re-employ their employees who have completed prescribed rehabilitation programs.
Chapter 4123 Changes
- Religious Exemption: 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:
- R.C. 4123.01(C)(4) Excludes from injury definition pre-existing conditions, impairments or diseases unless that condition is substantially worsened or substantially accelerated as documented by objective clinical findings and test results. Subjective complaints insufficient.
- 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 of or peculiar to a particular industrial process, trade, or occupation.” The definition excludes:
- Disease to which general public exposed outside of employment absent a showing the disease is characteristic of or peculiar to a particular industrial process, trade or occupation;
- A disease that would have arisen without occupational exposure;
- A disease resulting from aggravation of a pre-existing disease;
- A disease caused primarily by natural deterioration;
- Psychiatric conditions except where arise from an occupational disease.
- 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.
- 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.
- Premium Rates: R.C. 4123.34 Administrator in revising basic manual premium rates can exclude the experience of inactive employers if inclusion would have a significant negative impact on remaining employers.
- 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 of the Oversight Commission. Provides for appeal by self-insurer to Self-Insured Evaluation Board. Appeal 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: 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:
- R.C. 4123.511 (A) Administrator within seven days of notice that an occupational disease has been diagnosed by a doctor shall notify both employer and employee; the notice is considered an application for compensation.
- R.C. 4123.511 (B) Administrator to issue order in state fund claims no later than twenty-eight days after receiving notice of claim, granting or denying claim. Delete requirement that Administrator must wait twenty-one days before issuing decision.
- Payment of Compensation by Self-Insurer: 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.
- Appeal to Court: R.C. 4123.512 Adds two additional items as matters that can’t be appealed to court: “extent of impairment” or “percentage of impairment” determined pursuant to R.C. 4123.57(A). Presently “extent of disability” questions are not appealable to court.
- Continuing Jurisdiction Reduced to Five Years: R.C. 4123.52 Reduces time a lost time claim is open to five years from date of injury or date of first diagnosis of an occupational disease. Where compensation is paid under (a) R.C. 4123.56 [temporary total or wage loss], (b) wages in lieu of compensation to satisfy the statute of limitations in R.C. 4123.84, (c) 4123.57(B) [amputation award] or (d) R.C. 4123.58 [permanent total] or (e) R.C. 4123.59 [death] benefits are paid, continuing jurisdiction extends to five years from last payment of compensation under (a), (b), (c), (d), or (e) above. Payment of medical does not extend time for payment of compensation.For medical payments, treatment in any claim 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 diseases listed in R.C. 4123.68(A) through (AA) or that results from exposure to fibrosis producing or toxic dusts, fumes, mists, vapors, gases, liquids or other toxic material, 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. Thereafter the five years for lost time claims continuing jurisdiction applies.
- Prosthesis Continuing Jurisdiction: R.C. 4123.52(C) Applies to injured workers with prosthetic device (internal or external) or where treating doctor determined will need prosthetic device or replacement or repair of prosthesis. This provision provides for temporary total for a period not to exceed nine months after the implant, repair or replacement, and payment of medical benefits.Administrator to adopt rules to ensure treating doctor makes determination in a timely manner on need for prosthesis and that the determination is recorded and filed in a timely manner.
Prosthesis defined as an internal or external artificial part that substitutes for a missing or reconstructed limb or joint.
- Award for Back Period of Time: 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 and compensation cannot thereafter be paid for that suspended period.
- Intoxication or under Drug Influence: R.C. 4123.54 Creates rebuttable presumption that use is proximate cause of injury. Drug not prescribed by a doctor creates the presumption. Refusal to submit to test is evidence of employee use at any hearing. Employer may request test if reason to believe accident caused by intoxication or drug use.
- 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 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 of an occupational disease unless there is continuous period of disability or impairment for two weeks.
- 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:
- payment voluntarily started;
- the self-insured may terminate payment at any time;
- the employee has a right to a hearing;
- 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 voluntary payment] claims from requirement in 4123.56 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 determines that the injured worker was not entitled to Temporary Total before date of hearing, an overpayment to be declared and collected back from future industrial compensation as provided by 4123.511(J).
- 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, while industrial compensation is being received, extends benefit period for unemployment compensation under R.C. 4141.301. The request for non-working wage loss or payment does not affect the application for permanent total.
- Aggregates Wage Loss Maximum: R.C. 4123.56(C)(3) Limits all wage loss payable in a claim to a maximum of two hundred weeks.
- Date of Disease: R.C. 4123.56(C)(4) defines for occupational disease “date of disease” as date “first diagnosed” or for diseases in R.C. 4123.68(A) through (AA) or other disease that 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, but it 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:
- temporary total is terminated at a hearing on basis of maximum medical improvement;
- temporary total is terminated because treating doctor certifies maximum medical improvement.
Otherwise, forty week waiting period applies and the award cannot be applied for earlier than forty weeks after the date of injury or date first diagnosed occupational disease where no temporary total or wage loss is paid or forty weeks after last payment temporary total or wage loss. 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. First report is disregarded. The tentative order is for the percentage found by the BWC examination. R.C. 4123.57(A)(4) Within fourteen days of receipt of tentative order either party may file an objection and serve the opposite party not later than date of filing. Service is accomplished by mailing a copy to the other party. 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 filing or receipt of objection. Party requesting examination must pay for that examination. Matter referred to DHO who shall rubber stamp BWC medical examination unless:
- report is based, in part, on non-allowed conditions;
- medical did not consider all allowed conditions;
- medical examiner prejudiced against employee or employer;
- the most recent edition of the AMA Guides was not used properly;
- permanent partial is barred by law.
If District Hearing Officer finds one, two, three or four, above, DHO rejects report and orders new examination by BWC. If DHO finds number five, DHO 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.
- Alternate Resolution by Agreement: R.C. 4123.57(A)(7) The employee and employer by written agreement may utilize the alternative method of determining the percentage. The Administrator within seven days shall assign a BWC doctor from its evaluation panel and notify the parties. The employee and employer each select a doctor from the BWC panel to serve as consultants to the BWC examining doctor if either the employee or employer object to the examination report.BWC examining doctor to examine within twenty-one days of being assigned to examine. Within twenty-one days of receipt of examination report either party may notify Administrator of objection. If no objection the report is final. If objection Administrator in seven days provides copy of report to the selected consultants. Within twenty-one days the consultants shall confer with examining doctor and by a majority vote, jointly issue as final a report on the percentage. Within fourteen days of receipt of report the Administrator shall send copy to employer and employee. This report is final.
- Amount of Compensation for Permanent Partial: R.C. 4123.57(A)(8) 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. If percentage is 90%, pay 100%. No award exceeds 100%.Payment to be made within twenty-one days.
Paragraph defines date of disease as date first diagnosis or for disease in R.C. 4123.68(A) through (AA) or other occupational disease resulting from exposure to fibrosis-producing or toxic dusts, fumes, mists, gases, liquids, or toxic material the date the employee first misses work.
- Permanent Total Bar to Other Compensation: R.C. 4123.57(C) Prohibits compensation for permanent partial or an examination for permanent partial or an 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.
- Change of Occupation: Change of occupation deletes language limiting award to state fund employers. Now award applies to both state fund and self-insured employers. Change of occupation award applies to silicosis, pneumoconcosis and asbestosis.
- Permanent Total Definition: R.C. 4123.58 Changes permanent total disability to permanent total impairment (PTI) directly resulting from the allowed conditions. Defines PTI as physical or mental limitations preventing the employee from sustained remunerative employment (SRE). Age may be considered in determining whether employee is prevented from engaging in SRE or by training, rehabilitation, education acquiring capacity to engage in SRE. PTI may not be awarded if age is the primary reason preventing SRE or “acquiring the capacity to engage in SRE.”
- Prospective Dependency: Amount raised from $3,000 to $5,000.
- Settlement not Abated by Death: R.C. 4123.60(B) Death of claimant entitled to payment of a settlement in accordance with R.C. 4123.65 does not abate settlement. Payment to the dependents; if no dependents to estate.
- Date of Diagnosis Fixes Benefits Average Weekly Wage: R.C. 4123.61 In occupational disease claims, the average weekly wage is established by the earnings in the twelve months before the date of disease. Date of disease is defined as date first diagnosed or for 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 for the period enrolled where the person is a full- or part-time student.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 him 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. Signature not needed where employer not doing business in Ohio.
- 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:
- attorney admitted in Ohio;
- representative of an employee organization recognized by the employer for collective bargaining;
- person providing workers’ compensation services to employers;
- self-insured employer whose duties include administering the self-insured workers’ compensation program.
- Home Health Care: R.C. 4123.66 If administrator 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.
- Occupational Disease: 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. Payment meets (tolls) the two year time limitation requirement of this section.
- 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 Adds chapters 4126, 4127 or 4131 to Chapter 4123 in specifying no discrimination against employee who files a claim or pursues compensation.Noticeable by its absence is Chapter 4121 – which contains safety violation, rehabilitation provision.