Effective September 29, 2017, several changes to Ohio Workers’ Compensation Act took effect. These changes were the result of Sub. H.B. No. 27, the States Biennial Workers’ Compensation Budget Bill, which was passed on June 30, 2017. This article highlights some of those changes that should be of most interest to employers in evaluating their workers’ compensation liability.
Statute of Limitations is Reduced to One-Year
The time within which the employee must file the claim based on injury or death, the “statute of limitations”, has been reduced to one year. Previously, the statute of limitations was two years.
Opportunity to Settle Before Going to Court
The new law adds a larger window within which the parties may try to settle the case before heading to Court. Under R.C. 4123.52, either the employer or the injured employee who is dissatisfied with the Industrial Commission’s ruling on whether the employee has a right to participate in the workers’ compensation fund, may appeal to common pleas court within 60 days of receiving the Commission’s last order. Effective September 29, 2017, either the employer or employee may file with the BWC a notice of intent to settle the claim, within 30 days after receiving the Commission’s last order. If the opposing party does not object within 14 days, the deadline to file the appeal is expanded to 150 days. This new settlement mechanism should give the parties more of an opportunity to settle the case before undertaking the time and expense of litigating the case in court. However, the parties will still need to act promptly as it takes at least 30-45 days to finalize a settlement before the BWC after submitting the settlement application.
Claimant’s Attorney Fee Award Increased
The law increased the amount of attorney fees that a prevailing injured worker can recover in court. Previously, an injured worker who prevailed in court was entitled to reasonable attorney fees up to $4,200 plus costs in litigating the matter to a successful conclusion in court. The “costs” can be several thousands of dollars as well. These costs are taxed against either the employer, if it contested the claimant’s right to recover, or the BWC Administrator if the BWC Administrator contested the claim’s right to participate in the Workers’ Compensation Fund. Starting September 29, 2017, the attorney fees award has been increased to $5,000 plus costs.
BWC May Waive 90-Day Exams, Unless Employer Objects
For non-self-insured employers, when an injured worker was receiving temporary total disability compensation (TTD), the Act calls for the BWC to refer the employee for a medical examination every consecutive 90-day period during the receipt of TTD. Ordinarily, the BWC’s examination addressed the extent of the worker’s disability, such as whether s/he has reached maximum medical improvement (“MMI”) and would thus no longer be eligible for TTD. Effective September 29, 2017, the BWC may for good cause waive the scheduling of the “90-day” examination unless the employer objects to the BWC’s waiver. Employers should work with their third party administrators or the BWC to determine whether to object to the waiver.
BWC Adopts DOT Drug Testing Thresholds
The BWC has updated its drug testing criteria. The Act presents a rebuttable presumption that the injured worker’s intoxication, rather than the workplace, caused the injury if the injured worker fails a certain post-accident test. (note, the employer must meet other criteria as well). For urinalysis tests, the BWC deleted its current “positive” test thresholds and instead incorporated the U.S. Department of Transportation levels. Employers should review their drug-free workplace policies to verify that their positive test thresholds are current.
Firefighter Cancer Presumption, Additional Rebuttal Evidence
As reported in our July, 2017, (Article: Ohio’s Firefighter Cancer Presumption), the Act was amended earlier this year to add a presumption that certain types of cancer were contracted by firefighters as the result of duty-related exposure. Only certain narrow categories of evidence were permissible for the employer to rebut the presumption. However, Sub. H.B. No. 27, added an additional category of evidence “that shows, by a preponderance of competent scientific evidence, that exposure to the type of carcinogen alleged did not or could not have caused the cancer being alleged.” Further, the Bill amended the Act to allow an employer to rebut the presumption if it has been more than fifteen years (as opposed to the previously stated twenty years) since the firefighter was assigned to hazardous duty as a firefighter.
FHKAD attorneys routinely advise and defend employers before the BWC, Industrial Commission and in court. For more information, contact attorney David A. Riepenhoff at driepenhoff@fishelhass.com or (614) 221-1216.