Workers’ Compensation Legislation Introduced
Overview of Proposed Legislation
H.B. 72, introduced in the Ohio House of Representatives on Thursday, February 17, 2005, consists of 79 pages proposing changes to the workers’compensation law.
A number of changes decrease compensation and benefits for injured workers. The term “impairment” is added in various sections of H.B. 72 to differentiate between “disability” and “impairment.” Time limits for a claim remaining open are reduced from ten years (for lost time claims) or six years (for medical only claims) to four years.
A number of changes involve fines and penalties assessed by the Administrator against employers. The bill would remove the authority of the Self-Insured Evaluation Board to penalize Self-Insurers and make it an appeal body to hear appeals from the Administrator’s decisions.
Our analysis does not attempt to cover all changes. It is designed to provide a brief explanation of some of the proposed changes. Citations are to proposed statutory sections in the bill. A brief summary of S.B. 7 follows the summary of H.B. 72.
Summary of H.B. 72
Changes Affecting Injured Workers
R.C. §4123.56(A): In dispute on continuing temporary total the hearing officer may retroactively terminate temporary total so that it ends before the date of the hearing and shall declare an overpayment for the period temporary total was paid after the termination date. [Reverses effect of Ohio Supreme Court decision which held claimants entitled to payment of disputed temporary total until a hearing is held.]
Time Limits/Continuing Jurisdiction
R.C. §4123.52: Reduces time claim stays open from ten years (lost time) or six years (medical only) to four years. The four years may be extended by payment of compensation or medical benefits.
R.C. §4123.52(C): Where claimant requires surgery during the continuing jurisdiction period, then continuing jurisdiction applies only for medical benefits and compensation under 4123.56 (temporary total or wage loss) but only for a nine month period after surgery.
R.C. §4123.52(G): Defines “medical benefits” as payment for hospital bill, licensed physician bill, orthopedic or prosthetic device, or prescription medicine. Occupational disease listed in §4123.68(A) to (AA) or resulting from certain toxic exposures have an additional six months from the time the employee first becomes disabled for continuing jurisdiction. Otherwise the same time limitations apply to these claims as apply to other claims.
R.C. §4123.01(C)(1)(b): Changes injury definition to require that for an aggravation to be compensable the injury must substantially worsen, or the disease must be substantially accelerated, and must be established by objective diagnostic findings and test results.
R.C. §4123.54(G): Where there is a substantial aggravation or a substantial acceleration of a pre-existing condition, compensation is paid only until condition returns to its previous condition.
R.C. §4123.56(B)(1): Reduces number of eligible weeks (200) by number of weeks rehabilitation living maintenance was paid under §4121.67(B).
Adds requirement that inability to return to former position must be caused solely by allowed condition(s).
Provides wage loss compensation at 66 2/3 of difference between the average weekly wage at the time of injury or date of disease and present earnings.
R.C. §4123.56(B)(2): Non-working wage loss reduced to 26 weeks maximum. If unemployment benefits are in extension during this period, claimant can receive non-working wage loss up to 52 weeks.
R.C. §4123.56(B)(3): Total wage loss is 200 weeks.
Amputation/Loss of Use
R.C. §4123.57(B): Where no award is made before injured worker dies, no loss of use award can be paid to dependents unless medical evidence shows the injured worker was aware of the loss of use before death.
R.C. §4123.58(E): Provides loss of one arm or one leg does not mean two limbs are lost so as to make person permanent total automatically. [Reverses effect of Ohio Supreme Court case granting automatic permanent total for loss of two limbs where loss is an arm (arm and hand)].
Permits person granted permanent total on basis of a traumatic brain injury to continue working and continue to receive permanent total benefits.
R.C. §4123.57(B): Changes “disabilities” to “impairment” throughout.
Where temporary total is terminated by hearing or treating doctor says MMI, eliminates 40 week waiting period to apply for PP. Waiting period remains for all other situations.
Rehabilitation Living Maintenance
R.C. §4121.63: Eliminates provision that such payment shall not be less than 50% of the current statewide Average Weekly Wage. Where injured worker is in a BWC rehabilitation program, living maintenance becomes same as the temporary total rate for claimant.
Federal Energy Employee Occupational Illness Compensation Program Act
R.C. §4123.542: Prohibits injured worker from pursuing state benefits at same time pursing federal benefits for same condition. If the injured worker obtains federal benefits, they are not eligible for state benefits from same condition.
Eliminates requirement that employer sign settlement agreement in following situations:
- Employer no longer doing business in state;
- Claim is not in employer experience;
- Claim is not in employer’s retrospective rating period.
R.C. §4123.65(A): Permits claimant to file settlement application without employer signature. Requires notice to employer by the Administrator. No response in 45 days, requires second notice. No response 60 days, employer signature not required.
R.C. §4123.65(C): Provides if employee dies within the 30 day waiting period after settlement approved, agreement is void. Permits dependents to file for payment compensation and benefits for which decedent was entitled, but not for the payment of the settlement agreement.
Appeal to Court
R.C. §4123.512: On an employer appeal, claimant may not file a dismissal (Rule 41A, Rules of Civil Procedure) without the employer’s consent.
R.C. §4123.54(I): No compensation or medical benefits are payable if claimant is confined to county jail.
Changes Affecting BWC
R.C. §4123.88(B): Provides certain workers’ compensation records are not public records.
Provision does not apply to journalists as defined in 149.43(B)(5) who may receive addresses and phone numbers of specified claimants and dependents.
Criminal Justice Agency
R.C. §4121.131: Makes the BWC Specialist Investigator Department (Fraud Section) a criminal justice agency. This would permit access to certain computerized data bases which make criminal justice information available.
R.C. §4121.441: Administrator may provide that resolution of medical dispute rules do not apply to medical service approved by standard treatment guidelines, pathways, or presumptive authorization guideline.
R.C. §4121.44(H)(3): Eliminates requirement of Administrator to report twice a year on qualified health plan system.
R.C. §4121.444: Defines various frauds as applied to workers’ compensation in Criminal Code §2913.48.
Subjects health care providers who obtain payment by deception to fines and penalties in addition to existing penalties. Such monies go into state insurance fund where collected by Administrator or to self-insurer where collected by self-insurer.
R.C. §4123.311: Permits Administrator to require direct deposit electronic transfers.
Changes Affecting Employers
R.C. §4123.25: Self-insured misrepresents compensation paid is liable in amount determined by Administrator – instead of Self-Insured Evaluation Board (SIEEB).
R.C. §4123.271: Permits Administrator to obtain report from Ohio Tax Commission of compensation paid by employer to employees.
Adds requirement that employer report “impairment” resulting in seven or more days of disability (§ 4123.28) to requirement that employers report injury or disease resulting in seven or more days of disability.
Penalties provided where employer does not pay premium timely, includes a $4500 late filing fee and percentage of premium varying from 10% to 20% depending on period delinquent.
R.C. §4123.352(B): Provides for Administrator to adopt rules for assessment of fine or penalty against self-insurer.
Eliminates requirement for Administrator to refer complaints against self-insurers to SIEEB.
R.C. §4123.352(C): Provides for appeal to SIEEB from Administrator decision and a stay of Administrator order. Eliminates SIEEB imposing penalty.
R.C. §715.30: Prohibits issuance of a building permit without evidence of compliance with workers’ compensation law by the contractors and subcontractors.
Summary of S.B. 7
S.B. 7 was introduced in the Ohio Senate February 22, 2005. Again, this is not an all-inclusive analysis, but an effort to note some changes that are different from H.B. 72. S.B. 7 parallels H.B. 72 on many of the changes. Note some exceptions as listed below:
Claimant not entitled to permanent total when age is primary reason for not working or acquiring capacity to engage in sustained remunerative employment.
Changes permanent total disability to permanent total impairment. (Thus eliminating the disability factors.)
Provides workers’ compensation coverage for psychiatric condition resulting from rape or sexual assault in the course and arising out of the employment when there is no physical injury requiring treatment.
Permits Administrator to adopt rules with approval of Oversight Commission, which grants immediate allowance for medical conditions which have a historical record of being allowed and to pay the medical bills for such conditions immediately. If challenged by the employer and the claim is disallowed, charge off to surplus fund.