• Workers' Compensation Legislative Update
  • March 5, 2007
  • Law Firm: Buckingham, Doolittle & Burroughs, LLP - Canton Office
  • Now that the dust has settled on the elections and the referendum regarding Senate Bill 7 was not put to a vote, it seems a good time to recap the provisions included in Senate Bill 7 and when they became effective.

    As a result of the failed referendum challenge, there are two separate effective dates for various provisions of the bill, depending upon whether the provision was being contested or not. For those provisions not contested, the effective date is June 30, 2006. For those portions of the bill that were under challenge, the effective date is October 11, 2006. In some instances, the specific provision will apply only to claims where the dates of injury are on or after October 11, 2006.

    Of primary interest to employers participating in the workers’ compensation system are those provisions of Senate Bill 7 that affect a claimant’s entitlement to benefits and compensation and the Bureau of Workers’ Compensation’s regulation of employers.

    For dates of injury on or after October 11, 2006, psychiatric conditions that are the result of forced sexual conduct will be compensable. While the Ohio Supreme Court recently found in the McCrone case (successfully argued by Robert C. Meyer of the BDB Canton office) that a psychological injury without a contemporaneous physical injury is not compensable, the legislature recognized that there might be certain, specific incidents where an exception should apply. Sexual conduct is to be defined according to the Ohio Criminal Statutes.

    For years Ohio employers have struggled under a definition for an “aggravation” that held “any aggravation, however slight” was sufficient to establish a new claim. For claims with a date of injury on or after October 11, 2006, in order to prove an “aggravation” of a pre-existing condition and have it added to or as a claim, the claimant must prove that the condition was “substantially” aggravated and such proof must be by objective evidence such as X-rays or MRIs. Once the aggravation subsides and the pre-existing condition returns to baseline or pre-injury status, the employer is no longer liable for payment of treatment or compensation for the condition.

    As of October 11, 2006, the loss of an extremity (i.e. a leg or arm) does not constitute the loss of two body parts (i.e. a leg/foot or arm/hand) for purposes of determining eligibility for statutory permanent total disability. In addition, as to permanent total disability determinations, the new legislation specifies that PTD shall NOT be granted when the claimant is unable to engage in sustained remunerative employment if: his impairments are the not the result of the industrial injury; his inability to perform sustained remunerative employment is due to his age; the employee has voluntarily resigned or otherwise voluntarily abandoned the work place and/or the employee has failed or refused to participate in vocational rehabilitation efforts.

    When calculating the average weekly wage for the payment of PTD benefits, the BWC is now required to base its calculation on the date of injury or, in the case of occupational disease, on the date of disability. The BWC cannot recalculate the AWW solely on the basis that the claimant continued on in the work force and his wages increased after the injury or first date of disability.

    Also effective as of October 11, 2006, in all claims for injured workers with traumatic brain injuries, the claimants will be permitted to receive permanent total disability benefits while working in a sheltered workshop environment as long as they are making no more than $2,000 per quarter.

    A claimant is NOT entitled to receive compensation in a claim if that claimant is convicted of a crime and incarcerated in a county, state or federal facility. Previously, the law only addressed incarcerations in a state or federal prison.

    With respect to matters appealed into Common Pleas Court, as of October 11, 2006 attorneys’ fees for claimant’s counsel, when the claimant is found entitled to participate in the workers’ compensation fund, is raised from $2,500 to $4,200. In addition, a claimant may not dismiss an employer’s appeal into common pleas court without first obtaining the employer’s consent. It appears that this matter is still open for interpretation as one court in Franklin County has held that this provision only applies to cases filed after October 11, 2006.

    With respect to group-rated, state-funded employers, Senate Bill 7 requires that the BWC establish a program that mitigates the impact of significant claims and supports the existence of the One Claim Program. It also increases the threshold of the BWC’s $1,000 program to $5,000. However, employers should be mindful that when opting to take advantage of the $5,000 program, the employer cannot use the MCO to manage the claims nor can it take advantage of the BWC negotiated fee schedules and prescription rates.

    The settlement process, as to state-funded employers, has also changed under Senate Bill 7. As of October 11, 2006, the BWC can settle a claim in the absence of the employer’s agreement when 1) the employer is no longer doing business in Ohio; 2) the settlement application is filed after October 11, 2006 and the claim is outside the employer’s experience and the claimant is no longer employed with that employer and if the employer is doing business in Ohio, the BWC shall send written notice to the employer and the employer fails to reject the settlement within 30 days and; 3) the settlement application is made after October 11, 2006 and the employer’s coverage has lapsed, is canceled or the employer is in noncompliance status. Again, if the employer is still doing business in Ohio, the BWC must send written notice to the employer and, if the employer does not respond within 30 days, the settlement need not contain the employer’s signature.

    Senate Bill 7 provides for various new, more stringent prohibitions against any fraudulent actions by Managed Care Organizations and health care providers. It also requires that the BWC adopt rules to assess penalties against self-insured employers for failing to timely pay assessments. Senate Bill 7 also includes a provision for increased penalties for overdue premium payments. The BWC special investigations unit (SVU) was designated as a criminal justice agency. This designation allows the BWC SVU to access various criminal databases to further their investigations.

    During the drafting and the passing of Senate Bill 7 there were discussions regarding the release of claimants’ names and addresses under the Ohio Public Records laws. Senate Bill 7 provides that injured workers’ telephone numbers and addresses are no longer public record, with the only exception being the release of information to journalists.

    With the election of a new governor and the resignation of William Mabe as the Administrator/CEO of the BWC, the next transition in the Ohio workers’ compensation arena is the appointment of a new Administrator. In addition, Governor Strickland has appointed Employee Member, Patrick Gannon, as the Chairman of the Ohio Industrial Commission.

    If you have any questions regarding the contents of this article, please contact one of our BDB workers’ compensation attorneys.