Governor Mike DeWine and the 133rd Ohio General Assembly recently made several substantive changes to Ohio’s workers’ compensation laws.
House Bill 81 changes, among other things, the statute of limitations on VSSR claims, post-exposure medical diagnostic testing, the five-year statutory life of a claim, eligibility for temporary total disability and/or wage loss, eligibility for permanent total disability, a state fund employer’s ability to impede settlements on old claims, and increases in funeral expenses.
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Revised Code section 4121.471 was enacted to limit the time frame in which a claimant can file a claim for a violation of a specific safety requirement (“VSSR”). A claimant must now file a VSSR claim within one year after the date of injury, the date of death, or within one year after the disability due to when an occupational disease began. This amendment is to take effect on all claims arising on or after September 15, 2020. This reflects a change from the prior time frame to file a VSSR claim, which was two years.
Amendments were made to Revised Code section 4123.026 and what type of facilities and employees are now covered under the post-exposure medical diagnostic services. This section was amended to now include detention facility employees, including corrections officers. The BWC Administrator, a self-insuring public employer, or a detention facility (that is self-insuring) shall pay the cost of conducting post-exposure medical diagnostic services to investigate whether an employee sustained an injury or occupational disease if, in the course of employment, the employee is exposed to a drug or other chemical substance AND the post-exposure medical diagnostic services are consistent with the standards of medical care existing at the time of the exposure. This Code section was amended to now include detention facility employees, including corrections officers, to make it more consistent with approved post-accident testing for peace officers, fire fighters, and emergency medical workers.
Revised Code section 4123.52 is the particular section dealing with the length of time that a claim can remain statutorily active. An amendment was made to this section whereby a claim will remain statutorily active for five years from the date of the last medical services being rendered or the date of the last payment of compensation. The amended language to this section is “medical services being rendered.” This represents a change from the prior language of “medical benefits paid.” The Legislature did not define what “medical services rendered” means, but this should not detract from the necessary causal connection between the medical treatment and the allowed conditions in the claim. The medical treatment in a claim should still only be based upon the allowed conditions and, if the treatment is not based on the allowed conditions this should not extend the life of the claim even with the new amended language. The changes to this section will be to all new claims arising on or after July 1, 2020.
Arguably the most significant changes from House Bill 81 were to temporary total disability and wage loss. The Legislature added a whole new section under Revised Code section 4123.56(F). This new section deals specifically with the claimant’s inability to receive temporary total disability and/or wage loss when the inability to work and/or wage loss is the direct result of reasons unrelated to the allowed injury or occupational disease.
Most importantly, the Legislature specifically stated that it was their intent to supersede any prior judicial decisions applying the doctrine of voluntary abandonment. This means this amendment to Revised Code section 4123.56 completely supersedes all prior court of appeals and supreme court cases that created and applied voluntary abandonment. These changes eliminate many years of voluntary abandonment case law from Louisiana Pacific to Gross II, and more. This, however, is arguably very beneficial to Ohio employers. These changes to the law allow an employer to now argue that pre-injury conduct and conduct contemporaneous with the injury can be grounds for denial of temporary total and/or wage loss. This is because a claimant is not entitled to temporary total disability and/or wage loss if they are not working, or they suffer a wage loss for reasons unrelated to the allowed injury or occupational disease. This Code section amendment is to take effect on September 15, 2020 and applies to all claims currently pending regardless of the date of injury.
Changes were also made to the permanent total disability statute under Revised Code section 4123.58. A claimant is now ineligible for permanent total disability if the claimant is retired or otherwise is not working for reasons unrelated to the allowed injury or occupational disease. This change is consistent with the changes to the temporary total disability statutes in that the disability claimed by the injured worker and the inability to work must be tied directly to the allowed conditions in the claim. The change to this section will take effect on September 15, 2020 and will apply to all claims currently pending.
Up until now, a state fund employer could stop a settlement on a state fund file even if that claim was out of their experience and the person was no longer under their employ. However, due to changes to Revised Code section 4123.65, state fund employers will not be able to deny or withdraw consent to a settlement application when both of the following apply: (1) the claim is no longer within the employer’s experience; and (2) the employee is no longer employed by that employer. This section will take effect on September 15, 2020 and will apply to all claims currently pending regardless of the date of injury or occupational disease.
The final amendment was to Revised Code section 4123.66. The cost of reimbursable funeral expenses was increased from $5,500.00 to $7,500.00. The changes to this section are meant to apply to claims arising on or after September 15, 2020.
Several of these changes by Ohio’s Legislature reflect a significant shift in how a claimant should be deemed eligible for temporary total disability, wage loss, and/or permanent total disability. When evaluating claims and requests for disability employers should now be focused on the “why” of a claimant who is currently not working. If the reason for the claimant not working is for reasons unrelated to the allowed injury or occupational disease, then the employer should challenge the payment of such benefits.
Should you have any further questions about these changes under House Bill 81, please do not hesitate to contact one of Reminger’s Ohio Workers’ Compensation Practice Group members.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
About the Author
Kevin Sanislo is a shareholder in Reminger Co., LPA’s Columbus office. He joined Reminger after spending time as an Assistant Attorney General in the Workers’ Compensation Section. He is a member of Reminger’s Workers’ Compensation Practice Group, focusing on defending Ohio employers.