OHIO WORKERS COMPENSATION COMPENDIUM. January 2011 OHIO WORKERS COMPENSATION COMPENDIUM 1

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1 OHIO WORKERS COMPENSATION COMPENDIUM January 2011 OHIO WORKERS COMPENSATION COMPENDIUM 1

2 SUBMITTING ATTORNEYS George B. Wilkinson, Esq. Gary E. Becker, Esq. Joan M. Verchot, Esq. Christopher A. Benintendi, Esq. Dinsmore & Shohl LLP 1900 Chemed Center 255 East Fifth Street Cincinnati, Ohio T F Dinsmore & Shohl LLP. These materials have been prepared to provide information about the services we offer our clients. Readers should not act or refrain from acting based upon this information without consulting an attorney. This information is not legal advice and transmission or receipt of this information does not create an attorney-client relationship. OHIO WORKERS COMPENSATION COMPENDIUM 2

3 Contents Compendium 6 1. Citation for the state s workers compensation statute. 6 Scope of Compensability 6 2. Who are covered employees for purposes of workers compensation? 6 3. Identify and describe any statutory employer provision What type of injuries are covered and what is the standard of proof for each: 6 A. Traumatic or single occurrence claims. 6 B. Occupational disease (including respiratory and repetitive use) What, if any, injuries or claims are excluded? 7 6. What psychiatric claims or treatments are compensable? 7 7. What are the applicable statutes of limitations? 7 8. What are the reporting and notice requirements for those alleging an injury? 7 9. Describe available defenses based on employee conduct: 7 A. Self-inflicted injury. 7 B. Willful misconduct, horseplay, etc. 8 C. Injuries involving drugs and/or alcohol What, if any, penalties or remedies are available in claims involving fraud? Is there any defense for falsification of employment records regarding medical history? Are injuries during recreational and other non-work activities paid for or supported by the employer compensable? Are injuries by co-employees compensable? Are acts by third parties unrelated to work, but committed on the premises, compensable (e.g. irate paramour claims)? 9 Benefits What criteria is used for calculating the average weekly wage? How is the rate for temporary/lost time benefits calculated, including minimum and maximum rates? How long does the employer/insurer have to begin temporary benefits from the date disability begins? What is the waiting or retroactive period for temporary benefits (e.g. must be out days before recovering benefits for the first days)? What is the standard/procedure for terminating temporary benefits? Is the amount of temporary total disability paid credited toward the amount entitled for permanent partial disability? What disfigurement benefits are available and how are they calculated? How are permanent partial disability benefits calculated, including the minimum and maximum rates: 11 A. How many weeks are available for scheduled members/parts, and the standard for recovery. 12 B. Number of weeks for whole person and standard for recovery Are there any requirements/benefits for vocational rehabilitation, and what is the standard for recovery? How are permanent total disability benefits calculated, including the minimum and maximum rates? How are death benefits calculated, including the minimum and maximum rates: 13 A. Funeral expenses. 13 B. Dependency claims What is the criteria for establishing a second injury fund recovery? What are the provisions for re-opening a claim for worsening of condition, including applicable limitations periods? What situation would place responsibility on the employer to pay an employee s attorney fees? 14 OHIO WORKERS COMPENSATION COMPENDIUM 3

4 Exclusivity/Tort Immunity Is the compensation remedy exclusive: 15 A. Scope of immunity. 15 B. Exceptions (intentional acts, contractual waiver, dual capacity, etc.) Are there any penalties against the employer for unsafe working conditions? What is the penalty, if any, for an injured minor? What is the potential exposure for bad faith or claims handling? What is the exposure for terminating an employee who has been injured? 16 Third Party Actions Can third parties be sued by the employee? Can co-employees be sued for work-related injuries? Is subrogation available? 17 Medicals Is there a time limit for medical bills to be paid, and are penalties available for late payment? What, if any, mechanisms are available to compel the production of medical information (reports and/or an authorization) at the administrative level? What is the rule on (a) claimant s choice of physicians; (b) employer s right to second opinion and/or independent medical exam? 18 A. Claimant s choice of physician. 18 B. Employer s right to a second opinion and/or Independent Medical Examination What is the standard for covered treatment (e.g. chiropractic care, physical therapy, etc.)? Which prosthetic devices are covered, and for how long? Are vehicle and/or home modifications covered as medical expenses? Is there a medical fee guide or schedule, or other provisions for cost containment? What, if any, provisions or requirements are there for managed care? 19 Practice/Procedure What is the procedure for contesting all or part of a claim? What is the method of claim adjudication? 20 Administrative level. 20 A. Trial Court. 20 B. Appellate What are the requirements for stipulations or settlements? Are full and final settlements with closed medicals available? Must stipulations and/or settlements be approved by the state administrative body? 21 Risk Finance for Workers Compensation What insurance is required; and what is available (e.g. private carriers, state fund, assigned risk pool, etc.)? What are the provisions/requirements for self-insurance? 22 A. For individual entities. 22 B. For groups or pools of private entities Are illegal aliens entitled to benefits of Workers Compensation as The Immigration Control Act indicates that they cannot be employees although most state acts include them within the definition of employee? Are terrorist acts or injuries covered or excluded under workers compensation law? Are there any state specific requirements which must be satisfied in light of the obligation of the parties to satisfy Medicare s interests pursuant to the Medicare Secondary Payer Act? 23 OHIO WORKERS COMPENSATION COMPENDIUM 4

5 55. How are subrogation liens of Medicaid and health insurers treated under workers' compensation law? What are the requirements for confidentiality and privacy of medical records under workers' compensation law and how are they affected by state and federal law (HIPAA)? What are the provisions for Independent Contractors? Are there any specific provisions for Independent Contractors pertaining to professional employment organizations/temporary service companies/leasing companies? Are there any specific provisions for Independent Contractors pertaining to owner/operators of trucks or other vehicles for driving or delivery of people or property? 25 About Dinsmore & Shohl 26 OHIO WORKERS COMPENSATION COMPENDIUM 5

6 Compendium 1. Citation for the state s workers compensation statute. Ohio Revised Code et. seq. Ohio Administrative Code et. seq. Ohio Revised Code et. seq. Ohio Administrative Code et. seq. Scope of Compensability 2. Who are covered employees for purposes of workers compensation? An employee is any person in the service of the state, or any county or municipal corporation, and any person in the service of any person, firm, or private corporation that employs one or more employees or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied. Ohio Rev. Code (A)(1). 3. Identify and describe any statutory employer provision. Every person in the service of any independent contractor or subcontractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the administrator of workers' compensation for the person's employment or occupation or if a self-insuring employer has failed to pay compensation and benefits directly to the employer's injured and to the dependents of the employer's killed employees as required by section of the Revised Code, shall be considered as the employee of the person who has entered into a contract, whether written or verbal, with such independent contractor unless such employees or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contract as the employer. Ohio Rev. Code What type of injuries are covered and what is the standard of proof for each: A. Traumatic or single occurrence claims. Any injury, whether caused by external accidental means or accidental in character and result, sustained in the course of, and arising out of, the employment is compensable. Ohio Rev. Code (C). Cumulative trauma injuries are also compensable. Village v. General Motors (1984), 15 Ohio St. 3d 129. B. Occupational disease (including respiratory and repetitive use). Any disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease to a greater degree and in a different manner than the public in general, is compensable. Ohio Rev. Code (F). A pre-existing condition is compensable only if it is substantially aggravated by the injury. Ohio Rev. Code (C)(4). This determination must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Id. OHIO WORKERS COMPENSATION COMPENDIUM 6

7 5. What, if any, injuries or claims are excluded? Psychiatric conditions that do not arise from an injury or occupational disease sustained by that claimant; injuries caused primarily by the natural deterioration of the body; injuries incurred in voluntary participation in employer-sponsored recreation or fitness activities are excluded, provided the employee signs a waiver of his or her right to compensation; and conditions that pre-existed an injury unless the preexisting condition is substantially aggravated by the injury. Ohio Rev. Code (C)(1-4). In addition, blind employees may waive compensation for injuries or disability caused by their blindness. Ohio Rev. Code What psychiatric claims or treatments are compensable? Psychiatric claims are not compensable unless the claimant's psychiatric conditions have arisen from an injury or occupational disease sustained by the claimant, or where the claimant's psychiatric conditions have arisen from sexual conduct that the claimant was forced by threat of physical harm to engage or participate. See Ohio Rev. Code (C)(1). Employees who have "mental-mental" injuries may have a separate cause of action outside the workers' compensation system under Bunger v. Lawson Co. (1998), 82 Ohio St.3d What are the applicable statutes of limitations? Claims for single occurrence injuries or death are barred unless filed within two years from the date of injury or death. Ohio Rev. Code An occupational disease claim is barred unless, within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician, or within two years after death occurs, application is made to the Industrial Commission or the Bureau of Workers Compensation, or to the employer in the event the employer has elected to pay compensation or benefits directly. Ohio Rev. Code The Ohio Supreme Court has held that disability due to an occupational disease begins on the latest of three dates: when the employee first (1) became aware by medical diagnosis that he or she was suffering from such disease; (2) received medical treatment for the disease; or (3) quit work because of the disease. White v. Mayfield (1988), 37 Ohio St. 3d 11. The statute of limitations will be extended by an additional day for each day that the employer, within one week after acquiring knowledge of an occupational injury or occupational disease resulting in seven days or more of total disability, fails to submit a report to the Bureau of Workers' Compensation describing the name and nature of the business of the employer; the location of his establishment or place of work; the name, address, nature and duration of occupation of the injured, disabled, or deceased employee; and the time, nature, and the cause of injury, occupational disease, or death. The statute of limitations will not be extended for more than two additional years. Ohio Rev. Code What are the reporting and notice requirements for those alleging an injury? A claim must be filed in writing and should be reported on the First Report of Injury ( FROI ) form provided by the Bureau of Workers Compensation. 9. Describe available defenses based on employee conduct: A. Self-inflicted injury. An employee who purposefully self-inflicts an injury or death is not entitled to compensation. Ohio Rev. Code (A)(2) and (A)(1). OHIO WORKERS COMPENSATION COMPENDIUM 7

8 B. Willful misconduct, horseplay, etc. Horseplay is a defense to a claim for compensation if the employee was the instigator of the horseplay. The innocent victim of horseplay does have a compensable claim. Caygill v. Jablonski (1992), 92 Ohio App. 3d 31; Indus. Comm. v. Bankes (1934), 127 Ohio St C. Injuries involving drugs and/or alcohol. An injury incurred as the result of intoxication from alcohol or drugs is not compensable if the intoxication is the proximate cause of the injury. In certain circumstances, an employer can administer a qualified drug test to determine whether the employee was intoxicated at the time of the injury. Provided that an employer has posted written notice to employees that the results of, or the employee's refusal to submit to a qualifying chemical test may affect the employee's eligibility for compensation and benefits, there is a rebuttable presumption that an employee is intoxicated or under the influence of a controlled substance not prescribed by the employee's physician and that such intoxication is the proximate cause of an injury either when (1) the employee, through a qualifying drug test administered within eight hours of an injury, is determined to have an alcohol concentration equal to or in excess of the legal limit or (2) the employee, through a qualifying chemical test administered within thirty-two hours of an injury, is determined to have one of a list of controlled substances not prescribed by the employee's physician in the employee's system that tests above established levels. A chemical test is a qualifying chemical test if it is (1) administered to an employee after an injury when the employee's employer had reasonable cause to suspect that the employee may be intoxicated or under the influence of a controlled substance not prescribed by the employee's physician, (2) administered at the request of a police officer, or (3) administered at the request of a licensed physician who is not employed by the employee's employer. "Reasonable cause" means, but is not limited to, evidence that an employee is or was using alcohol or a controlled substance drawn from specific, objective facts and reasonable inferences drawn from these facts in light of experience and training. These facts and inferences may be based on, but are not limited to: (1) an observable phenomena, (2) a pattern of abnormal conduct, erratic or aberrant behavior, or deteriorating work performance, (3) the identification of an employee as the focus of a criminal investigation into unauthorized possession, use, or trafficking of a controlled substance, or (4) repeated or flagrant violations of the safety or work rules that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage. Ohio Rev. Code What, if any, penalties or remedies are available in claims involving fraud? The statute provides that no person, with purpose to defraud or knowingly facilitating a fraud, shall do any of the following: (1) receive workers compensation benefits to which he or she is not entitled; (2) make or present or cause to be made or presented a false or misleading statement with the purpose to secure payment or to secure workers compensation benefits; (3) alter, falsify, destroy, conceal, or remove any record or document that is necessary to fully establish the validity of any claim filed with, or necessary to establish the nature and validity of all goods and services for which reimbursement or payment was received or is requested from, the Bureau of Workers Compensation, or a self-insuring employer; (4) enter into an agreement or conspiracy to defraud the Bureau or a self-insuring employer by making or presenting or causing to be made a false claim for workers compensation benefits; (5) make or present, or cause to be made or presented, a false statement concerning manual codes, classification of employees, payroll, paid compensation, or number of personnel, when such information is necessary to determine the actual workers' compensation premium or assessment owed to the Bureau of Workers' Compensation by an employer; (6) alter, forge, or create a workers' compensation certificate to falsely show current or correct workers' compensation coverage; or (7) fail to secure or maintain workers' compensation coverage as required by Ohio Rev. Code 4123 with the intent to defraud the Bureau of Workers' Compensation. Ohio Rev. Code OHIO WORKERS COMPENSATION COMPENDIUM 8

9 Anyone violating Ohio Rev. Code is guilty of workers compensation fraud. A violation of this section is typically a misdemeanor of the first degree. If the value of unpaid premiums and assessments is five hundred dollars or more, and is less than five thousand dollars, a violation is a felony of the fifth degree. If the value of unpaid premiums and assessments is five thousand dollars or more, and is less than one hundred thousand dollars, a violation is a felony of the fourth degree. If the value of unpaid premiums and assessments is one hundred thousand dollars or more, a violation of is a felony in the third degree. After proper investigation, the court must order the person convicted of the violation to pay the costs of investigating and prosecuting the case. The remedies and penalties provided are not exclusive and do not preclude the use of any other criminal or civil remedy or penalty for any act that is in violation of the fraud statute. 11. Is there any defense for falsification of employment records regarding medical history? No compensation shall be awarded on account of disability or death from disease suffered by an employee who, at the time of entering into the employment from which the disease is claimed to have resulted, willfully and falsely represented himself as not having previously suffered from such disease. Ohio Rev. Code There is also a statutory defense to occupational disease claims for silicosis, asbestosis or coal miners pneumoconiosis in the event of a failure or omission on the part of the employee to truthfully state, when seeking employment, the place, duration and nature of previous employment in answer to an inquiry made by the employer. Ohio Rev. Code Are injuries during recreational and other non-work activities paid for or supported by the employer compensable? Generally, yes. However, coverage may be waived by the employee if the employee signs a waiver of the employee s right to compensation or benefits prior to engaging in the recreation of fitness activity. Ohio Rev. Code (C)(3). Such waivers must be signed for each specific recreational activity and are good for two years. 13. Are injuries by co-employees compensable? Injuries caused by co-employees are compensable, unless the horseplay defense applies. Co-employees are immune from suit if the injury is compensable. Ohio Rev. Code ; Caygill v. Jablonski (1992), 92 Ohio App. 3d Are acts by third parties unrelated to work, but committed on the premises, compensable (e.g. irate paramour claims)? The Ohio Workers' Compensation statute focuses on the conduct of the injured worker. If an employee is injured by a third party in the course of and arising out of the employee's employment, that injury will be compensated. However, if the injury is caused by a risk which is personal to the employee rather than associated with the work, that injury does not arise out of the employee's employment and is not compensable. Ohio Rev. Code For example, an employee cannot recover for injuries sustained in a fight which the employee entered into independent of any duty of employment. See Brown v. Industrial Commission (1948), 86 Ohio App. 256; see also Foster v. Cleveland Clinic Found., 8 th Dist. Nos , 84169, 2004-Ohio-6863 (citing Williams v. Ind. Comm. of Ohio (1939), 63 Ohio App. 66). OHIO WORKERS COMPENSATION COMPENDIUM 9

10 Benefits 15. What criteria is used for calculating the average weekly wage? The average weekly wage is calculated by dividing the total earnings for the year prior to the disability or injury by 52. This calculation includes wage information from all employers during the prior year. Ohio Rev. Code Any period of unemployment due to sickness, industrial depression, strike, lockout, other causes beyond the employee s control, or when special circumstances exist, are deleted. The burden is on the employee to prove that the 52 weeks is an inaccurate denominator under the circumstances. Special circumstances are not defined by the statute, but can be invoked if the standard calculation yields a result that is substantially unjust. State ex rel. Wireman v. Indus. Comm., (1990) 49 Ohio St. 3d How is the rate for temporary/lost time benefits calculated, including minimum and maximum rates? An employee receives compensation at the rate of 72% of his or her full weekly wage (defined as the higher of the employee s earnings the week before the injury, or the average of six weeks of earnings prior to the injury) for the first twelve weeks. Thereafter he or she receives compensation at the rate of two-thirds of the average weekly wage, not to exceed a maximum amount which is equal to the state average weekly wage, nor fall below the minimum which is one-third of the state average weekly wage, unless the employee s average weekly wage is lower than the minimum, in which case the employee receives the average weekly wage. Maximum and minimum rates for injuries in recent years are as follows: Year Maximum Rate Minimum Rate 1999 $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Ohio Rev. Code (A). OHIO WORKERS COMPENSATION COMPENDIUM 10

11 17. How long does the employer/insurer have to begin temporary benefits from the date disability begins? In uncontested state-fund claims, payment of compensation is to begin on the date the Administrator completes the investigation of the claim and issues an order of allowance. Such an order is to be issued within 28 days after the Bureau of Workers Compensation has notified the employer of its receipt of the claim and the facts alleged therein, unless a medical examination is required by statute. In contested claims where the employee is successful, compensation is payable after the district hearing order is received, while medical benefits are not payable until after the issuance of the Staff Hearing Officer s order. (The district hearing is the first, and the staff hearing the second, of three administrative levels of hearings). Ohio Rev. Code What is the waiting or retroactive period for temporary benefits (e.g. must be out days before recovering benefits for the first days)? Temporary total compensation begins on the eighth day. An employee must be out 14 days before recovering benefits for the first seven days. Ohio Rev. Code What is the standard/procedure for terminating temporary benefits? An employee s compensation can be terminated without a hearing if: (1) the employee returns to work; (2) the employee s treating physician finds that the employee is capable of returning to his former position of employment or other available suitable employment; or (3) the employee s physician states that the employee has reached maximum medical improvement. Ohio Admin. Code (B)(1). Compensation can be terminated after a hearing if the employee: (1) is found to be capable of returning to the former position of employment; (2) has reached maximum medical improvement; (3) has received a written job offer of suitable employment (i.e. a light-duty job offer); or (4) abandoned employment. Abandonment may occur in a number of different ways, e.g. voluntarily retiring or if the employee is terminated for cause for violating a written company rule. Ohio Rev. Code ; State ex rel. Reitter Stucco, Inc. v. Indus. Comm. of Ohio, No , 2008-Ohio-499; State ex rel. Schlegel v. Stykemain Pontiac Buick GMC, Ltd., No , 2008-Ohio-5303; State ex rel. Valley Interior Sys., Inc. v. Indus. Comm., No , 2008-Ohio-2703; State ex rel. OmniSource Corp. v. Indus. Comm., No , 2007-Ohio Is the amount of temporary total disability paid credited toward the amount entitled for permanent partial disability? No. A permanent partial award is separate and distinct from temporary total disability compensation. 21. What disfigurement benefits are available and how are they calculated? If serious facial or head disfigurement impairs or may in the future impair employment opportunities, the Commission may award an amount up to $10,000. Ohio Rev. Code (B). 22. How are permanent partial disability benefits calculated, including the minimum and maximum rates: The Bureau pays a permanent partial award at two-thirds of the employee s average weekly wage, not to exceed the maximum statewide scheduled rate, for the number of weeks equal to 2 weeks times the percentage of impairment. There is no minimum permanent partial disability rate. The maximum rates for injuries in the past twelve years are: OHIO WORKERS COMPENSATION COMPENDIUM 11

12 Year Maximum Rate 1999 $ $ $ $ $ $ $ $ $ $ $ $ A. How many weeks are available for scheduled members/parts, and the standard for recovery. Bodily Loss Maximum Weeks Thumb 60 Index Finger 35 Middle Finger 30 Ring Finger 20 Little Finger 15 Loss of Metacarpal 10 Hand 175 Arm 225 Great Toe (Loss of great toe up to the joint is equal to the loss of 1/2 a great toe. Loss of great toe beyond joint is equal to loss of the whole great toe) 30 Any Other Toe (2/3 loss equals total loss. No award for less than 2/3) Foot 150 Leg 200 One Eye (no award for loss less than 25% vision) Loss of Hearing One Ear Both Ears 125 Ohio Rev. Code (B). This payment is based upon the maximum rate payable for temporary total disability for the year of injury. OHIO WORKERS COMPENSATION COMPENDIUM 12

13 B. Number of weeks for whole person and standard for recovery. If the percentage of the permanent disability of the employee exceeds ninety percent (90%), compensation for permanent partial disability shall be paid for two hundred (200) weeks. Such an award is based upon the doctor s report of clinical findings reasonably demonstrable. The AMA guidelines are used to determine impairment. Ohio Rev. Code (A). 23. Are there any requirements/benefits for vocational rehabilitation, and what is the standard for recovery? Vocational rehabilitation is strictly voluntary. The Bureau, employer and employee s treating physician may make a referral. If enrolled, the employee is entitled to Living Maintenance payments which equal temporary total disability payments except that the Living Maintenance payments are not charged against a state-fund employer s risk. If a self-insured employer participates in the rehabilitation assessment for the surplus fund, it may seek reimbursement from the fund. However, most self-insurers do not do so because they may only receive recoupment up to the amount of their assessment. Ohio Rev. Code How are permanent total disability benefits calculated, including the minimum and maximum rates? The employee is entitled to two-thirds of his or her average weekly wage for life, but not more than the maximum rate for temporary total disability compensation (see answer 16), except that a permanently and totally disabled employee is entitled to receive a rate equal to his or her average weekly wage if that amount is less then the minimum rate. If the employee is receiving Social Security Disability Compensation, the permanent total award is generally two-thirds of the state average weekly wage. Ohio Rev. Code How are death benefits calculated, including the minimum and maximum rates: A. Funeral expenses. Reasonable funeral expenses up to $5,500 may be recovered. Ohio Rev. Code B. Dependency claims. Dependent persons are entitled to receive compensation at two-thirds of the decedent s average weekly wage, not to exceed two-thirds of the statewide maximum rate nor less than the standard minimum rate set by the Bureau. Ohio Rev. Code Maximum and minimum rates for the past twelve years are: Compensation is available to two classes of dependents: (1) those wholly dependent under Ohio Rev. Code (B); and (2) those partially dependent under Ohio Rev. Code (C). Although the statute does not specifically establish who is a dependent person, it does create presumptions. A spouse living with the employee at the time of death is presumed to be wholly dependent. A natural parent living with the employee at the time of death is presumed to be entitled to a minimum award of $3,000. The Industrial Commission reviews various factors in determining whether a person is a dependent. Ohio Rev. Code Year Maximum Rate Minimum Rate 1999 $ $ $ $ $ $ $ $ OHIO WORKERS COMPENSATION COMPENDIUM 13

14 Year Maximum Rate Minimum Rate 2003 $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ What is the criteria for establishing a second injury fund recovery? There is no so-called second injury fund. There is, however, handicap reimbursement for state fund employers only. As an incentive to hire handicapped individuals state fund employers receive adjustments on all or part of the cost of claims by such employees. A reimbursement nullifies the state-fund employer s merit rating to the extent of the handicap surplus charges. The Bureau of Workers Compensation decides the percentage an employee s handicap has contributed to the claim. This percentage award is applied and changes the impact of the claim s cost. Ohio Rev. Code This fund does not reimburse selfinsurers unless the handicap is service-related. Ohio Rev. Code What are the provisions for re-opening a claim for worsening of condition, including applicable limitations periods? The industrial commission and the authority of the administrator of workers' compensation have continuing jurisdiction over each case, and the commission may make modifications or changes with respect to former findings or orders as justified in its opinions. For injuries occurring before October 10, 2006, no modifications, changes, findings, or awards shall be made with respect to disability, compensation, dependency, or benefits after six years from the date of injury in the absence of the payment of medical benefits. For injuries occurring on or after October 10, 2006, no such modifications shall be made after five years from the date of injury. In the absence of payment of compensation, or wages in lieu of compensation, any modifications, changes, findings, or awards made for injuries occurring before October 10, 2006 shall be made within ten years from the date of the last payment of compensation or from the date of death. For those injuries occurring on or after October 10, 2006 such changes shall be made within five years. No modifications, changes, findings, or awards shall be made for a back period of more than two years before the application was filed. Ohio Rev. Code ; Ohio Admin. Code (B). 28. What situation would place responsibility on the employer to pay an employee s attorney fees? If the employer loses an appeal in the trial court, the employer is responsible for the employee s attorney fees. Ohio Rev. Code (F). For injuries occurring before October 10, 2006, the employer must pay up to $2,500 in such a case. For injuries occurring on or after October 10, 2006, the employer must pay up to $4,200 for attorneys' fees. This is paid by the state insurance fund if the employer is in the state fund. Self-insured employers pay this directly. In the event of an award of permanent total, death or a scheduled award, the Industrial Commission may award a fee of up to $10,000, and $1,000 in costs. An actuarial adjustment is made to the claimant's award. Attorney's fees may also be assessed against an employer in a retaliatory action claim under Ohio Rev. Code OHIO WORKERS COMPENSATION COMPENDIUM 14

15 Exclusivity/Tort Immunity 29. Is the compensation remedy exclusive: A. Scope of immunity. An employer is immune from any suit in damages under common law or statutory law for an injury or occupational disease if the employer is in compliance with the workers compensation laws, except for an employment intentional tort. Ohio Rev. Code B. Exceptions (intentional acts, contractual waiver, dual capacity, etc.). Should the employee choose to bring an action against the employer alleging damages resulting from an intentional tort committed by the employer within the course of employment, the employer is immune from liability unless the employee can prove that the employer committed the tortious act with the intent to injure or with the belief that the injury was substantially certain to occur (i.e. the employer acted with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death). Further, a rebuttable presumption that the employer acted with intent to injure is created if the employer deliberately removes an equipment safety guard or makes a deliberate misrepresentation of a toxic or hazardous substance. In cases of death, the dependent survivors of the deceased employee may bring such action. Ohio Rev. Code Immunity may also be waived by contract, if the contract specifically waives workers compensation immunity. Kendall v. U.S. Dismantling Co. (1985), 20 Ohio St.3d 61. Moreover, the dual capacity doctrine is a narrow exception to employer immunity under workers compensation. To fall within the dual capacity doctrine, the employer must step outside the boundaries of the employer-employee relationship, creating separate and distinct duties to the employee. If, however, the injury is caused predominantly by the employment relationship and not by an independent relationship, the doctrine of dual capacity is inapplicable. Schump v. Firestone Tire & Rubber Co. (1989), 44 Ohio St.3d 148. Finally, an employer is not shielded by immunity if it fails to comply with the law by not paying into the state insurance fund, or as an approved self-insurer. Ohio Rev. Code Are there any penalties against the employer for unsafe working conditions? The Industrial Commission has the authority to determine claims for additional awards, commonly known as a Violation of a Specific Safety Requirement (VSSR). To obtain a VSSR award, an employee must establish that the injury resulted from the employer s failure to comply with a specific safety requirement. If granted, an additional award of 15% to 50% of the maximum rate of compensation is payable. Ohio Const. II 35; Ohio Rev. Code What is the penalty, if any, for an injured minor? A minor employee can bring a claim under his or her name without the intervention of a guardian. No other person has a right to compensation arising from a minor s work-related injury. However, any lump sum settlement award must be paid to the guardian of the minor. An additional award, equal to 100% of the maximum amount of compensation, is awarded when a minor sustains an injury, occupational disease, or death as the direct result of prohibited employment. Ohio Rev. Code Insofar as the prescribed penalty exceeded 50% of the compensation awarded, the provision was held to be unconstitutional. State, ex rel. Kanter Corp. v. Stringer (1981), 67 Ohio St.2d 8. OHIO WORKERS COMPENSATION COMPENDIUM 15

16 32. What is the potential exposure for bad faith or claims handling? The Ohio Administrative Code requires that all self-insured employers submit all employee claims, regardless of the merits, to the Bureau. Ohio Admin. Code When an employer fails to process a claim submitted by its employee and the employee is unable to file the claim because the statutory limitation period has expired, the employer is liable in tort. Vandemark v. Southland Corp. (1988), 38 Ohio St. 3d 1. The doctrine of employer-employee immunity is not applicable to such circumstances, as the cause of action is no longer a workers' compensation claim, but rather a common law action for damages outside the scope of the workers' compensation system. Id. An employee of a self-insured employer may maintain a cause of action against the employer for the intentional and wrongful termination of workers compensation benefits. Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St. 3d 126. Potentially, the selfinsured employer can lose its self-insured privilege, or can be fined up to $10,000. Ohio Rev. Code What is the exposure for terminating an employee who has been injured? No employer shall discharge, demote, reassign or take any punitive action against an employee because the employee filed a claim or testified in a workers compensation proceeding. If successful in a civil suit, the employee is entitled to reinstatement with back pay (if the action is based upon discharge), or an award for lost wages (if the action is based upon demotion, reassignment or punitive action taken), less compensation paid, plus attorney s fees. Ohio Rev. Code However, claimants who are currently receiving temporary total compensation may be terminated and are not thereby entitled to a cause of action for wrongful discharge in violation of public policy so long as a termination "for good and just cause" provision is absent from the employee's contract. Bickers v. W. & S. Life Ins. Co., 2007-Ohio-6751, No (OHSC). OHIO WORKERS COMPENSATION COMPENDIUM 16

17 Third Party Actions 34. Can third parties be sued by the employee? Yes. An employee may sue a third-party for the injuries sustained as a result of that party s negligence. 35. Can co-employees be sued for work-related injuries? No. A co-employee who is responsible for a fellow employee s compensable workers' compensation claim is immune from suit. Ohio Rev. Code Is subrogation available? Yes. Payment of compensation or benefits creates a right of recovery in favor of a statutory subrogee against a third party, and the statutory subrogee is subrogated to the rights of a claimant against that third party. Ohio Rev. Code If a claimant, statutory subrogee, and third party settle or attempt to settle a claimant s claim against a third party, the claimant must receive an amount equal to the uncompensated damages divided by the sum of the subrogation interest plus the uncompensated damages, multiplied by the net amount recovered. The statutory subrogee must receive an amount equal to the subrogation interest divided by the sum of the subrogation interest plus the uncompensated damages, multiplied by the net amount recovered, except that the net amount recovered may instead be divided and paid on a more fair and reasonable basis that is agreed to by the claimant and statutory subrogee. A claimant may establish an interest-bearing trust account for the full amount of the subrogation interest that represents estimated future payments of compensation, medical benefits, rehabilitation cost, or death benefits, reduced to present value, from which the claimant must make reimbursement payments to the statutory subrogee for the future payments of compensation, medical benefits, rehabilitation costs, and death benefits. Claimants are now required to notify a statutory subrogee and the Attorney General of all third parties against whom the claimant has or may have a right of recovery when the statutory subrogee is a state fund employer. No settlement is final if notice is not given, and if the attorney general is not noticed the claimant and the third party may be jointly liable. OHIO WORKERS COMPENSATION COMPENDIUM 17

18 Medicals 37. Is there a time limit for medical bills to be paid, and are penalties available for late payment? All medical bills must be filed with the bureau or commission within two years of the date on which the service was rendered or shall be forever barred. Ohio Admin. Code Medical bills are to be paid no later than 30 days after receipt of a proper invoice by the Bureau or self-insured employer. Ohio Admin. Code (K)(5). Interest may be assessed on late payments. Ohio Rev. Code In a disputed claim before the Industrial Commission of Ohio, medical bills will not be paid until the claim is adjudicated at the second (staff) level of appeal and remains an allowed claim. 38. What, if any, mechanisms are available to compel the production of medical information (reports and/or an authorization) at the administrative level? The statute requires that an employee promptly provide a current signed release of medical information, records and reports when requested by the employer. If the employee refuses, the right to have the claim considered is suspended during the refusal. Ohio Rev. Code (B) and (C). The Industrial Commission generally takes the position that an employee must sign an unrestricted medical release form in order to comply. An employer may file a motion with the Industrial Commission to compel compliance. Each party must provide the opposing party with copies of the evidence they intend to introduce at hearing prior to the hearing. Ohio Admin. Code (A). The Industrial Commission Hearing Administrator may issue subpoenas, upon request and showing of good cause. The application for benefits is also a release of the physician-patient privilege. Furthermore, privileged communications and acts are waived under Ohio Rev. Code for anyone who files a claim pursuant to Ohio Rev. Code Chapter 4123 (the Workers Compensation Act). 39. What is the rule on (a) claimant s choice of physicians; (b) employer s right to second opinion and/or independent medical exam? A. Claimant s choice of physician. An employee has the right to select a licensed physician for treatment, subject to the provisions and limitations of the managed care rules. B. Employer s right to a second opinion and/or Independent Medical Examination. The employer of a claimant who is injured or disabled in the course of his employment may require, without the approval of the administrator or the Industrial Commission, that the claimant be examined by a physician of the employer s choice one time upon any issue asserted by the employee or a physician of the employee s choice or which is to be considered by the Commission. Any further requests for medical examinations shall be made to the Commission which shall consider and rule on the request. The employer shall pay the cost of any examinations initiated by the employer. Ohio Rev. Code (A) If, without good cause, an employee refuses to submit to any examination scheduled under this section or refuses to release or execute a release for any medical information, record, or report that is required to be released under this section and involves an issue pertinent to the condition alleged in the claim, his right to have his claim for compensation or benefits considered, if his claim is pending before the Administrator, Commission, or a district or staff hearing officer, or to receive any payment for compensation or benefits previously granted, is suspended during the period of refusal. Ohio Rev. Code OHIO WORKERS COMPENSATION COMPENDIUM 18

19 40. What is the standard for covered treatment (e.g. chiropractic care, physical therapy, etc.)? All medical treatment reasonable and necessary as a result of the injury is covered, including chiropractic care, physical therapy, acupuncture, braces, etc., although some of these treatments require prior approval. Ohio Rev. Code See also answer Which prosthetic devices are covered, and for how long? Prosthetic devices, including wheelchairs, canes, crutches, walkers and braces, shall be paid for if it is determined by (1) the amputee clinic at the Ohio State University Medical Center; (2) an approved amputee clinic; or (3) a prescribing physician that the employee is in need of the prosthetic device or appliance. Ohio Admin. Code (A). 42. Are vehicle and/or home modifications covered as medical expenses? These are not specifically covered by statute. These may, however be approved on a case-by-case basis. Ohio Rev. Code Is there a medical fee guide or schedule, or other provisions for cost containment? There is a fee schedule. Fees are limited to the usual, customary and reasonable fee charged for like services in the area in which the services are provided, but in no event shall such charges be greater than the fee schedule. See answer What, if any, provisions or requirements are there for managed care? Managed Care was authorized in 1993 by House Bill 107. The Bureau of Workers Compensation s program is known as the Health Partnership Plan ( HPP ). The Bureau s HPP is administered by private vendors known as Managed Care Organizations ( MCOs ). State-fund employers are permitted to selfselect an MCO, which is paid separately by contract with the Bureau. Self insurers are required to have medical experts available to review and determine the necessity for care and approval of requests for medical services. The Bureau approves medical providers who meet its credentialing requirements.those providers must complete a provider agreement which requires them to follow a published fee schedule and follow the treatment protocols of an approved MCO. The MCOs are responsible for compiling a provider panel which includes all types of providers, including physicians, hospitals and chiropractors. When an employee is injured, the employer directs the employee to the MCO, which will medically manage the employee s care. The MCO authorizes treatment, monitors the medical bills, and disburses payment to the providers according to the Bureau fee schedule. If the employee goes to a provider who has not signed an agreement with the Bureau, only the first medical bill will be paid. The employee may go to a provider not enrolled in his or her employer s MCO, but such a provider will be paid for treatment beyond the first visit only if it applies to the MCO for emergency credentialing as necessary for care and services which are unavailable through like MCO panel providers. Ohio Admin. Code et seq. MCOs are paid directly by the Bureau of Workers Compensation, and no MCO may receive a fee for services, or a portion of a fee, from one of its providers. OHIO WORKERS COMPENSATION COMPENDIUM 19

20 Practice/Procedure 45. What is the procedure for contesting all or part of a claim? Upon submission of a claim application, the employer has the opportunity to accept or reject the claim. If the employer rejects the claim or appeals from a Bureau Order allowing a claim, it is scheduled for hearing before a district hearing officer of the Industrial Commission of Ohio for a decision on the allowance of the claim. Ohio Rev. Code (C); Ohio Admin. Code What is the method of claim adjudication? Administrative level. There is a four-tiered administrative process for adjudicating claims The Bureau of Workers Compensation makes the decision at the first stage in state-fund claims (self-insured claims go directly to the second stage if rejected by the self-insurer). The second level is the district hearing. These decisions are appealable by right to a staff hearing officer. The decision of a staff hearing officer is subject to a discretionary appeal to the full Industria1 Commission of Ohio. Each such appeal must be filed within 14 days of the party s receipt of the order appealed from. Ohio Rev. Code A. Trial Court. An employee or employer has the right to appeal a decision of the Industrial Commission of Ohio to the Court of Common Pleas, other than a decision as to the extent of disability. The appeal must be made to the Court of Common Pleas of the county where the injury or exposure occurred, or in which the contract of employment was made if the injury occurred outside of the state. An appeal to the court must be filed within 60 days after the date of receipt of the Industrial Commission s decision. The appeal is de novo, and the jury is not to consider the amount of compensation to be paid. Ohio Rev. Code B. Appellate. A decision by the Court of Common Pleas may be appealed to the Appellate Court. An appeal from that court to the Ohio Supreme Court is subject to discretionary review. Decisions of the Industrial Commission regarding extent of disability are subject to mandamus review by the Tenth District Court of Appeals or the Ohio Supreme Court. There is an appeal of right to the Ohio Supreme Court from a mandamus action in an extent of disability case. 47. What are the requirements for stipulations or settlements? Claims involving self-insured employers may be settled by agreement. The settlement agreement will be deemed approved unless, within thirty days of submission, a staff hearing officer deems it to be clearly unfair or a gross miscarriage of justice. Ohio Rev. Code Claims involving state-fund employers may also be settled. The application for such a settlement requires: (1) the settlement agreement; (2) the signatures of the claimant and employer, unless the employer is no longer doing business in Ohio, the claim is outside the employer's experience as provided in Ohio Rev. Code (B) and the claimant is no longer employed with that employer, or the employer has failed to comply with Ohio Rev. Code ; and (3) an indication of the parties agreement to the terms and a recitation of the circumstances by reason of which the settlement is deemed desirable. Id. The Bureau of Workers Compensation has the sole authority to approve such a settlement, which will be effective 30 days after approval. OHIO WORKERS COMPENSATION COMPENDIUM 20

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