As Introduced

127th General Assembly Regular Session 2007-2008

S. B. No. 334

Senator Faber 

Cosponsors: Senators Seitz, Spada, Coughlin, Mumper 

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A BILL

To amend sections 4123.01, 4123.26, 4123.29, 4123.54,

1

and 4123.82 and to enact sections 4123.292,

2

4123.513, and 4123.542 to prohibit an employee

3

from receiving workers' compensation benefits in

4

this state if the employee has received a

5

decision on the merits of a claim filed in

6

another state for the same injury or

7

occupational disease, to allow an Ohio employer

8

to obtain, through the Administrator of Workers'

9

Compensation or an insurance company, workers'

10

compensation insurance for claims arising in other

11

states, and to make other changes to the Workers'

12

Compensation Law regarding interstate workers'

13

compensation claims.

14

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 4123.01, 4123.26, 4123.29, 4123.54,	15
and 4123.82 be amended and sections 4123.292, 4123.513, and	16
4123.542 of the Revised Code be enacted to read as follows:	17

Sec. 4123.01.  As used in this chapter:

18

(A)(1) "Employee" means:

19

(a) Every person in the service of the state, or of any	20
county, municipal corporation, township, or school district	21
therein, including regular members of lawfully constituted police	22
and fire departments of municipal corporations and townships,	23
whether paid or volunteer, and wherever serving within the state	24
or on temporary assignment outside thereof, and executive officers	25
of boards of education, under any appointment or contract of hire,	26
express or implied, oral or written, including any elected	27
official of the state, or of any county, municipal corporation, or	28
township, or members of boards of education.	29

As used in division (A)(1)(a) of this section, the term	30
"employee" includes the following persons when responding to an	31
inherently dangerous situation that calls for an immediate	32
response on the part of the person, regardless of whether the	33
person is within the limits of the jurisdiction of the person's	34
regular employment or voluntary service when responding, on the	35
condition that the person responds to the situation as the person	36
otherwise would if the person were on duty in the person's	37
jurisdiction:	38

(i) Off-duty peace officers. As used in division (A)(1)(a)(i)	39
of this section, "peace officer" has the same meaning as in	40
section 2935.01 of the Revised Code.	41

(ii) Off-duty firefighters, whether paid or volunteer, of a	42
lawfully constituted fire department.	43

(iii) Off-duty first responders, emergency medical	44
technicians-basic, emergency medical technicians-intermediate, or	45
emergency medical technicians-paramedic, whether paid or	46
volunteer, of an ambulance service organization or emergency	47
medical service organization pursuant to Chapter 4765. of the	48
Revised Code.	49

(b) Every person in the service of any person, firm, or	50
private corporation, including any public service corporation,	51
that (i) employs one or more persons regularly in the same	52
business or in or about the same establishment under any contract	53
of hire, express or implied, oral or written, including aliens and	54
minors, household workers who earn one hundred sixty dollars or	55
more in cash in any calendar quarter from a single household and	56
casual workers who earn one hundred sixty dollars or more in cash	57
in any calendar quarter from a single employer, or (ii) is bound	58
by any such contract of hire or by any other written contract, to	59
pay into the state insurance fund the premiums provided by this	60
chapter.	61

(c) Every person who performs labor or provides services	62
pursuant to a construction contract, as defined in section 4123.79	63
of the Revised Code, if at least ten of the following criteria	64
apply:	65

(i) The person is required to comply with instructions from	66
the other contracting party regarding the manner or method of	67
performing services;	68

(ii) The person is required by the other contracting party to	69
have particular training;	70

(iii) The person's services are integrated into the regular	71
functioning of the other contracting party;	72

(iv) The person is required to perform the work personally;

73

(v) The person is hired, supervised, or paid by the other	74
contracting party;	75

(vi) A continuing relationship exists between the person and	76
the other contracting party that contemplates continuing or	77
recurring work even if the work is not full time;	78

(vii) The person's hours of work are established by the other	79
contracting party;	80

(viii) The person is required to devote full time to the	81
business of the other contracting party;	82

(ix) The person is required to perform the work on the	83
premises of the other contracting party;	84

(x) The person is required to follow the order of work set by	85
the other contracting party;	86

(xi) The person is required to make oral or written reports	87
of progress to the other contracting party;	88

(xii) The person is paid for services on a regular basis such	89
as hourly, weekly, or monthly;	90

(xiii) The person's expenses are paid for by the other	91
contracting party;	92

(xiv) The person's tools and materials are furnished by the	93
other contracting party;	94

(xv) The person is provided with the facilities used to	95
perform services;	96

(xvi) The person does not realize a profit or suffer a loss	97
as a result of the services provided;	98

(xvii) The person is not performing services for a number of	99
employers at the same time;	100

(xviii) The person does not make the same services available	101
to the general public;	102

(xix) The other contracting party has a right to discharge	103
the person;	104

(xx) The person has the right to end the relationship with	105
the other contracting party without incurring liability pursuant	106
to an employment contract or agreement.	107

Every person in the service of any independent contractor or	108
subcontractor who has failed to pay into the state insurance fund	109
the amount of premium determined and fixed by the administrator of	110
workers' compensation for the person's employment or occupation or	111
if a self-insuring employer has failed to pay compensation and	112
benefits directly to the employer's injured and to the dependents	113
of the employer's killed employees as required by section 4123.35	114
of the Revised Code, shall be considered as the employee of the	115
person who has entered into a contract, whether written or verbal,	116
with such independent contractor unless such employees or their	117
legal representatives or beneficiaries elect, after injury or	118
death, to regard such independent contractor as the employer.	119

(d) Every person to whom all of the following apply:

120

(i) The person is a resident of a state other than this state	121
and is covered by that other state's workers' compensation law;	122

(ii) The person performs labor or provides services for that	123
person's employer while temporarily within this state;	124

(iii) The laws of that other state do not include the	125
provisions described in division (H)(4) of section 4123.54 of the	126
Revised Code.	127

(2) "Employee" does not mean:

128

(a) A duly ordained, commissioned, or licensed minister or	129
assistant or associate minister of a church in the exercise of	130
ministry;	131

(b) Any officer of a family farm corporation;

132

(c) An individual incorporated as a corporation; or

133

(d) An individual who otherwise is an employee of an employer	134
but who signs the waiver and affidavit specified in section	135
4123.15 of the Revised Code on the condition that the	136
administrator has granted a waiver and exception to the	137
individual's employer under section 4123.15 of the Revised Code.	138

Any employer may elect to include as an "employee" within	139
this chapter, any person excluded from the definition of	140
"employee" pursuant to division (A)(2) of this section. If an	141
employer is a partnership, sole proprietorship, individual	142
incorporated as a corporation, or family farm corporation, such	143
employer may elect to include as an "employee" within this	144
chapter, any member of such partnership, the owner of the sole	145
proprietorship, the individual incorporated as a corporation, or	146
the officers of the family farm corporation. In the event of an	147
election, the employer shall serve upon the bureau of workers'	148
compensation written notice naming the persons to be covered,	149
include such employee's remuneration for premium purposes in all	150
future payroll reports, and no person excluded from the definition	151
of "employee" pursuant to division (A)(2) of this section,	152
proprietor, individual incorporated as a corporation, or partner	153
shall be deemed an employee within this division until the	154
employer has served such notice.	155

For informational purposes only, the bureau shall prescribe	156
such language as it considers appropriate, on such of its forms as	157
it considers appropriate, to advise employers of their right to	158
elect to include as an "employee" within this chapter a sole	159
proprietor, any member of a partnership, an individual	160
incorporated as a corporation, the officers of a family farm	161
corporation, or a person excluded from the definition of	162
"employee" under division (A)(2) of this section, that they should	163
check any health and disability insurance policy, or other form of	164
health and disability plan or contract, presently covering them,	165
or the purchase of which they may be considering, to determine	166
whether such policy, plan, or contract excludes benefits for	167
illness or injury that they might have elected to have covered by	168
workers' compensation.	169

(B) "Employer" means:

170

(1) The state, including state hospitals, each county,	171
municipal corporation, township, school district, and hospital	172
owned by a political subdivision or subdivisions other than the	173
state;	174

(2) Every person, firm, professional employer organization as	175
defined in section 4125.01 of the Revised Code, and private	176
corporation, including any public service corporation, that (a)	177
has in service one or more employees or shared employees regularly	178
in the same business or in or about the same establishment under	179
any contract of hire, express or implied, oral or written, or (b)	180
is bound by any such contract of hire or by any other written	181
contract, to pay into the insurance fund the premiums provided by	182
this chapter.	183

All such employers are subject to this chapter. Any member of	184
a firm or association, who regularly performs manual labor in or	185
about a mine, factory, or other establishment, including a	186
household establishment, shall be considered an employee in	187
determining whether such person, firm, or private corporation, or	188
public service corporation, has in its service, one or more	189
employees and the employer shall report the income derived from	190
such labor to the bureau as part of the payroll of such employer,	191
and such member shall thereupon be entitled to all the benefits of	192
an employee.	193

(C) "Injury" includes any injury, whether caused by external	194
accidental means or accidental in character and result, received	195
in the course of, and arising out of, the injured employee's	196
employment. "Injury" does not include:	197

(1) Psychiatric conditions except where the claimant's	198
psychiatric conditions have arisen from an injury or occupational	199
disease sustained by that claimant or where the claimant's	200
psychiatric conditions have arisen from sexual conduct in which	201
the claimant was forced by threat of physical harm to engage or	202
participate;	203

(2) Injury or disability caused primarily by the natural	204
deterioration of tissue, an organ, or part of the body;	205

(3) Injury or disability incurred in voluntary participation	206
in an employer-sponsored recreation or fitness activity if the	207
employee signs a waiver of the employee's right to compensation or	208
benefits under this chapter prior to engaging in the recreation or	209
fitness activity;	210

(4) A condition that pre-existed an injury unless that	211
pre-existing condition is substantially aggravated by the injury.	212
Such a substantial aggravation must be documented by objective	213
diagnostic findings, objective clinical findings, or objective	214
test results. Subjective complaints may be evidence of such a	215
substantial aggravation. However, subjective complaints without	216
objective diagnostic findings, objective clinical findings, or	217
objective test results are insufficient to substantiate a	218
substantial aggravation.	219

(D) "Child" includes a posthumous child and a child legally	220
adopted prior to the injury.	221

(E) "Family farm corporation" means a corporation founded for	222
the purpose of farming agricultural land in which the majority of	223
the voting stock is held by and the majority of the stockholders	224
are persons or the spouse of persons related to each other within	225
the fourth degree of kinship, according to the rules of the civil	226
law, and at least one of the related persons is residing on or	227
actively operating the farm, and none of whose stockholders are a	228
corporation. A family farm corporation does not cease to qualify	229
under this division where, by reason of any devise, bequest, or	230
the operation of the laws of descent or distribution, the	231
ownership of shares of voting stock is transferred to another	232
person, as long as that person is within the degree of kinship	233
stipulated in this division.	234

(F) "Occupational disease" means a disease contracted in the	235
course of employment, which by its causes and the characteristics	236
of its manifestation or the condition of the employment results in	237
a hazard which distinguishes the employment in character from	238
employment generally, and the employment creates a risk of	239
contracting the disease in greater degree and in a different	240
manner from the public in general.	241

(G) "Self-insuring employer" means an employer who is granted	242
the privilege of paying compensation and benefits directly under	243
section 4123.35 of the Revised Code, including a board of county	244
commissioners for the sole purpose of constructing a sports	245
facility as defined in section 307.696 of the Revised Code,	246
provided that the electors of the county in which the sports	247
facility is to be built have approved construction of a sports	248
facility by ballot election no later than November 6, 1997.	249

(H) "Public employer" means an employer as defined in	250
division (B)(1) of this section.	251

(I) "Sexual conduct" means vaginal intercourse between a male	252
and female; anal intercourse, fellatio, and cunnilingus between	253
persons regardless of gender; and, without privilege to do so, the	254
insertion, however slight, of any part of the body or any	255
instrument, apparatus, or other object into the vaginal or anal	256
cavity of another. Penetration, however slight, is sufficient to	257
complete vaginal or anal intercourse.	258

(J) "Extraterritorial insurer" means an insurance company	259
that is authorized to provide workers' compensation insurance	260
coverage in any of the states that permit employers to obtain	261
insurance for workers' compensation claims through insurance	262
companies.	263

(K) "Extraterritorial coverage" means insurance coverage	264
purchased by an employer for workers' compensation claims that	265
arise in a state or states other than this state and that are	266
filed by the employees of the employer or those employee's	267
dependents, as applicable, in that other state or those other	268
states.	269

Sec. 4123.26.  Every employer shall keep records of, and	270
furnish to the bureau of workers' compensation upon request, all	271
information required by the administrator of workers' compensation	272
to carry out this chapter. In January of each year, every employer	273
of the state employing one or more employees regularly in the same	274
business, or in or about the same establishment, shall prepare and	275
mail to the bureau at its main office in Columbus a statement	276
containing the following information, as applicable:	277

(A) The number of employees employed during the preceding	278
year from the first day of January through the thirty-first day of	279
December;	280

(B) The number of such employees employed at each kind of	281
employment and the aggregate amount of wages paid to such	282
employees;	283

(C) If an employer elects to obtain extraterritorial coverage	284
through the administrator or an extraterritorial insurer pursuant	285
to section 4123.292 of the Revised Code for claims arising in a	286
state or states other than this state, all of the following	287
information:	288

(1) The amount of wages the employer paid to the employer's	289
employees for performing labor or providing services for the	290
employer in this state;	291

(2) The amount of wages the employer paid to the employer's	292
employees for performing labor or providing services for the	293
employer in a state or states other than this state.	294

The information shall be furnished on a blank to be prepared	295
by the bureau. The bureau shall furnish the blanks to employers	296
free of charge upon request therefor. Every employer receiving	297
from the bureau any blank, with directions to fill out the same,	298
shall cause the same to be properly filled out so as to answer	299
fully and correctly all questions therein propounded, and give all	300
the information therein sought, or if unable to do so, hethe	301
employer shall give to the bureau in writing good and sufficient	302
reasons for such failure. The bureau may require that the	303
information required to be furnished be verified under oath and	304
returned to the bureau within the period fixed by it or by law.	305
The bureau or any person employed by the bureau for that purpose,	306
may examine, under oath, any employer, or the officer, agent, or	307
employee thereof, for the purpose of ascertaining any information	308
which the employer is required to furnish to the bureau.	309

No employer shall fail to furnish to the bureau the annual	310
statement required by this section, nor shall any employer fail to	311
keep records of or furnish such other information as may be	312
required by the bureau under this section.	313

Whoever violates this section shall forfeit five hundred	314
dollars, to be collected in a civil action brought against the	315
employer in the name of the state, to be paid into the state	316
insurance fund and become a part thereof.	317

Sec. 4123.29.  (A) The administrator of workers'	318
compensation, subject to the approval of the bureau of workers'	319
compensation board of directors, shall do all of the following:	320

(1) Classify occupations or industries with respect to their	321
degree of hazard and determine the risks of the different classes	322
according to the categories the national council on compensation	323
insurance establishes that are applicable to employers in this	324
state;	325

(2)(a) Fix the rates of premium of the risks of the classes	326
based upon the total payroll in each of the classes of occupation	327
or industry sufficiently large to provide a fund for the	328
compensation provided for in this chapter and to maintain a state	329
insurance fund from year to year. The administrator shall set the	330
rates at a level that assures the solvency of the fund. Where the	331
payroll cannot be obtained or, in the opinion of the	332
administrator, is not an adequate measure for determining the	333
premium to be paid for the degree of hazard, the administrator	334
may determine the rates of premium upon such other basis,	335
consistent with insurance principles, as is equitable in view of	336
the degree of hazard, and whenever in this chapter reference is	337
made to payroll or expenditure of wages with reference to fixing	338
premiums, the reference shall be construed to have been made also	339
to such other basis for fixing the rates of premium as the	340
administrator may determine under this section.	341

(b) If an employer elects to obtain extraterritorial coverage	342
through the administrator or an extraterritorial insurer pursuant	343
to section 4123.292 of the Revised Code, calculate the employer's	344
premium for the state insurance fund in the same manner as	345
otherwise required under division (A) of this section and section	346
4123.34 of the Revised Code, except that when the administrator	347
determines the expenditure of wages, payroll, or both upon which	348
to base the employer's premium, the administrator shall use only	349
the expenditure of wages, payroll, or both attributable to the	350
labor performed and services provided by that employer's employees	351
when those employees performed labor and provided services in this	352
state only and to which the extraterritorial coverage does not	353
apply.	354

(c) The administrator in setting or revising rates shall	355
furnish to employers an adequate explanation of the basis for the	356
rates set.	357

(3) Develop and make available to employers who are paying	358
premiums to the state insurance fund alternative premium plans.	359
Alternative premium plans shall include retrospective rating	360
plans. The administrator may make available plans under which an	361
advanced deposit may be applied against a specified deductible	362
amount per claim.	363

(4)(a) Offer to insure the obligations of employers under	364
this chapter under a plan that groups, for rating purposes,	365
employers, and pools the risk of the employers within the group	366
provided that the employers meet all of the following conditions:	367

(i) All of the employers within the group are members of an	368
organization that has been in existence for at least two years	369
prior to the date of application for group coverage;	370

(ii) The organization was formed for purposes other than that	371
of obtaining group workers' compensation under this division;	372

(iii) The employers' business in the organization is	373
substantially similar such that the risks which are grouped are	374
substantially homogeneous;	375

(iv) The group of employers consists of at least one hundred	376
members or the aggregate workers' compensation premiums of the	377
members, as determined by the administrator, are expected to	378
exceed one hundred fifty thousand dollars during the coverage	379
period;	380

(v) The formation and operation of the group program in the	381
organization will substantially improve accident prevention and	382
claims handling for the employers in the group;	383

(vi) Each employer seeking to enroll in a group for workers'	384
compensation coverage has an industrial insurance account in good	385
standing with the bureau of workers' compensation such that at the	386
time the agreement is processed no outstanding premiums,	387
penalties, or assessments are due from any of the employers.	388

(b) If an organization sponsors more than one employer group	389
to participate in group plans established under this section, that	390
organization may submit a single application that supplies all of	391
the information necessary for each group of employers that the	392
organization wishes to sponsor.	393

(c) In providing employer group plans under division (A)(4)	394
of this section, the administrator shall consider an employer	395
group as a single employing entity for purposes of retrospective	396
rating. No employer may be a member of more than one group for the	397
purpose of obtaining workers' compensation coverage under this	398
division.	399

(d) At the time the administrator revises premium rates	400
pursuant to this section and section 4123.34 of the Revised Code,	401
if the premium rate of an employer who participates in a group	402
plan established under this section changes from the rate	403
established for the previous year, the administrator, in addition	404
to sending the invoice with the rate revision to that employer,	405
shall send a copy of that invoice to the third-party administrator	406
that administers the group plan for that employer's group.	407

(e) In providing employer group plans under division (A)(4)	408
of this section, the administrator shall establish a program	409
designed to mitigate the impact of a significant claim that would	410
come into the experience of a private, state fund group-rated	411
employer for the first time and be a contributing factor in that	412
employer being excluded from a group-rated plan. The administrator	413
shall establish eligibility criteria and requirements that such	414
employers must satisfy in order to participate in this program.	415
For purposes of this program, the administrator shall establish a	416
discount on premium rates applicable to employers who qualify for	417
the program.	418

(f) In no event shall division (A)(4) of this section be	419
construed as granting to an employer status as a self-insuring	420
employer.	421

(g) The administrator shall develop classifications of	422
occupations or industries that are sufficiently distinct so as not	423
to group employers in classifications that unfairly represent the	424
risks of employment with the employer.	425

(5) Generally promote employer participation in the state	426
insurance fund through the regular dissemination of information to	427
all classes of employers describing the advantages and benefits of	428
opting to make premium payments to the fund. To that end, the	429
administrator shall regularly make employers aware of the various	430
workers' compensation premium packages developed and offered	431
pursuant to this section.	432

(6) Make available to every employer who is paying premiums	433
to the state insurance fund a program whereby the employer or the	434
employer's agent pays to the claimant or on behalf of the claimant	435
the first fifteen thousand dollars of a compensable workers'	436
compensation medical-only claim filed by that claimant that is	437
related to the same injury or occupational disease. No formal	438
application is required; however, an employer must elect to	439
participate by telephoning the bureau after July 1, 1995. Once an	440
employer has elected to participate in the program, the employer	441
will be responsible for all bills in all medical-only claims with	442
a date of injury the same or later than the election date, unless	443
the employer notifies the bureau within fourteen days of receipt	444
of the notification of a claim being filed that it does not wish	445
to pay the bills in that claim, or the employer notifies the	446
bureau that the fifteen thousand dollar maximum has been paid, or	447
the employer notifies the bureau of the last day of service on	448
which it will be responsible for the bills in a particular	449
medical-only claim. If an employer elects to enter the program,	450
the administrator shall not reimburse the employer for such	451
amounts paid and shall not charge the first fifteen thousand	452
dollars of any medical-only claim paid by an employer to the	453
employer's experience or otherwise use it in merit rating or	454
determining the risks of any employer for the purpose of payment	455
of premiums under this chapter. If an employer elects to enter the	456
program and the employer fails to pay a bill for a medical-only	457
claim included in the program, the employer shall be liable for	458
that bill and the employee for whom the employer failed to pay the	459
bill shall not be liable for that bill. The administrator shall	460
adopt rules to implement and administer division (A)(6) of this	461
section. Upon written request from the bureau, the employer shall	462
provide documentation to the bureau of all medical-only bills that	463
they are paying directly. Such requests from the bureau may not be	464
made more frequently than on a semiannual basis. Failure to	465
provide such documentation to the bureau within thirty days of	466
receipt of the request may result in the employer's forfeiture of	467
participation in the program for such injury. The provisions of	468
this section shall not apply to claims in which an employer with	469
knowledge of a claimed compensable injury or occupational disease,	470
has paid wages in lieu of compensation or total disability.	471

(B) The administrator, with the advice and consent of the	472
board, by rule, may do both of the following:	473

(1) Grant an employer who makes the employer's semiannual	474
premium payment at least one month prior to the last day on which	475
the payment may be made without penalty, a discount as the	476
administrator fixes from time to time;	477

(2) Levy a minimum annual administrative charge upon risks	478
where semiannual premium reports develop a charge less than the	479
administrator considers adequate to offset administrative costs of	480
processing.	481

Sec. 4123.292. (A) Notwithstanding sections 4123.35 and	482
4123.82 of the Revised Code, an employer may elect to obtain	483
extraterritorial coverage through an extraterritorial insurer or	484
through the administrator of workers' compensation pursuant to	485
division (B) of this section. An employer who elects to obtain	486
extraterritorial coverage shall submit a written notice to the	487
administrator stating that election and, if the employer elects to	488
obtain that coverage through an extraterritorial insurer, the name	489
of the extraterritorial insurer through whom the employer has	490
obtained that coverage. If an employer fails to pay the	491
employer's premium for extraterritorial coverage, the	492
administrator shall consider the employer to be noncompliant for	493
the purposes of having extraterritorial coverage but shall not	494
consider the employer to be a noncomplying employer for purposes	495
of this chapter or Chapter 4121., 4127., or 4131. of the Revised	496
Code unless the employer otherwise fails to comply with section	497
4123.35 of the Revised Code.	498

(B) The administrator shall secure extraterritorial coverage	499
to allow an employer who, pursuant to this section, elects to	500
obtain that coverage through the administrator for workers'	501
compensation claims arising in a state or states other than this	502
state. The administrator shall follow the competitive bidding	503
requirements specified in Chapter 125. of the Revised Code to	504
select one extraterritorial insurer. The administrator, with the	505
advice and consent of the bureau of workers' compensation board of	506
directors, shall award the contract to provide extraterritorial	507
coverage for employers located in this state to the	508
extraterritorial insurer that is the lowest bidder.	509

(C) The administrator shall calculate an employer's premium	510
for extraterritorial coverage provided through the administrator	511
separately from calculating any other premiums or assessments	512
charged under this chapter or Chapter 4121., 4127., or 4131. of	513
the Revised Code. The administrator shall calculate the employer's	514
extraterritorial coverage premium in the same manner the	515
administrator calculates an employer's premium for the state	516
insurance fund pursuant to division (A) of section 4123.29 and	517
section 4123.34 of the Revised Code, except that, when calculating	518
the employer's premium for extraterritorial coverage under this	519
section, the administrator shall do all of the following:	520

(1) Base the employer's extraterritorial coverage premium	521
on the terms specified in the contract the administrator enters	522
into with an insurance company pursuant to this section;	523

(2) When determining the expenditure of wages, payroll, or	524
both upon which to base the employer's extraterritorial coverage	525
premium, use only the amount of wages, payroll, or both the	526
employer paid to the employer's employees for performing labor or	527
providing services for the employer in a state or states other	528
than this state;	529

(3) Not take into account the amount of wages, payroll, or	530
both the employer paid to the employer's employees for performing	531
labor or providing services for the employer in this state or any	532
compensation or benefits paid for claims covered by the state	533
insurance fund.	534

(D) The administrator, with the advice and consent of the	535
board, shall adopt rules to implement divisions (B) and (C) of	536
this section.	537

(E) An extraterritorial insurer that provides	538
extraterritorial coverage to an employer pursuant to this section	539
shall do all of the following when calculating the employer's	540
premium for that coverage:	541

(1) When determining the amount of wages, payroll, or both	542
upon which to base the employer's premium, use only the amount of	543
wages, payroll, or both the employer paid to the employer's	544
employees for performing labor or providing services for the	545
employer in a state or states other than this state;	546

(2) Not take into account the amount of wages, payroll, or	547
both the employer paid to the employer's employees for performing	548
labor or providing services for the employer in this state or any	549
compensation or benefits paid for claims otherwise covered by this	550
chapter or Chapter 4121., 4127., or 4131. of the Revised Code;	551

(3) Take into account any other factors the extraterritorial	552
insurer uses to calculate premiums for workers' compensation	553
insurance.	554

(F) The board and the individual members thereof, the	555
administrator, and the bureau of workers' compensation shall not	556
incur any obligation or liability if another state determines that	557
the extraterritorial coverage provided under this section does not	558
satisfy the requirements specified in that state's workers'	559
compensation law for obtaining workers' compensation coverage in	560
that state.	561

Sec. 4123.513. If an employee is injured or contracts an	562
occupational disease or dies as a result of an injury or	563
occupational disease, and a claim for compensation or benefits for	564
that injury, occupational disease, or death is filed by or on	565
behalf of the employee under this chapter, the administrator of	566
workers' compensation shall determine whether the claimant also	567
could file a claim for compensation or benefits in a state other	568
than this state pursuant to that state's workers' compensation	569
laws for that injury, occupational disease, or death. If the	570
administrator determines that such a claim could be filed, the	571
administrator shall request the claimant to sign a waiver stating	572
that because the claimant elected to file a claim for that injury,	573
occupational disease, or death in this state, the claimant waives	574
the claimant's ability to file a claim for that injury,	575
occupational disease, or death in the other state unless the	576
claimant's claim filed in this state is dismissed for reasons	577
other than on the merits. If the claimant fails or refuses to sign	578
the waiver within twenty-one days after the claim is filed, the	579
administrator shall issue an order to dismiss the claimant's claim	580
and the claimant is ineligible to file a claim for compensation or	581
benefits in this state for that injury, disability, or death. The	582
administrator shall not issue an order granting or denying the	583
payment of compensation or benefits or both pursuant to division	584
(B) of section 4123.511 of the Revised Code before either the	585
twenty-day period specified in this section expires or the	586
administrator receives the signed waiver. An order issued under	587
this section is not appealable under section 4123.511 or 4123.512	588
of the Revised Code.	589

Sec. 4123.54.  (A) Every employee, who is injured or who	590
contracts an occupational disease, and the dependents of each	591
employee who is killed, or dies as the result of an occupational	592
disease contracted in the course of employment, wherever such	593
injury has occurred or occupational disease has been contracted,	594
provided the same were not:	595

(1) Purposely self-inflicted; or

596

(2) Caused by the employee being intoxicated or under the	597
influence of a controlled substance not prescribed by a physician	598
where the intoxication or being under the influence of the	599
controlled substance not prescribed by a physician was the	600
proximate cause of the injury, is entitled to receive, either	601
directly from the employee's self-insuring employer as provided in	602
section 4123.35 of the Revised Code, or from the state insurance	603
fund, the compensation for loss sustained on account of the	604
injury, occupational disease, or death, and the medical, nurse,	605
and hospital services and medicines, and the amount of funeral	606
expenses in case of death, as are provided by this chapter.	607

(B) For the purpose of this section, provided that an	608
employer has posted written notice to employees that the results	609
of, or the employee's refusal to submit to, any chemical test	610
described under this division may affect the employee's	611
eligibility for compensation and benefits pursuant to this chapter	612
and Chapter 4121. of the Revised Code, there is a rebuttable	613
presumption that an employee is intoxicated or under the influence	614
of a controlled substance not prescribed by the employee's	615
physician and that being intoxicated or under the influence of a	616
controlled substance not prescribed by the employee's physician is	617
the proximate cause of an injury under either of the following	618
conditions:	619

(1) When any one or more of the following is true:

620

(a) The employee, through a qualifying chemical test	621
administered within eight hours of an injury, is determined to	622
have an alcohol concentration level equal to or in excess of the	623
levels established in divisions (A)(1)(b) to (i) of section	624
4511.19 of the Revised Code;	625

(b) The employee, through a qualifying chemical test	626
administered within thirty-two hours of an injury, is determined	627
to have one of the following controlled substances not prescribed	628
by the employee's physician in the employee's system that tests	629
above the following levels in an enzyme multiplied immunoassay	630
technique screening test and above the levels established in	631
division (B)(1)(c) of this section in a gas chromatography mass	632
spectrometry test:	633

(i) For amphetamines, one thousand nanograms per milliliter	634
of urine;	635

(ii) For cannabinoids, fifty nanograms per milliliter of	636
urine;	637

(iii) For cocaine, including crack cocaine, three hundred	638
nanograms per milliliter of urine;	639

(iv) For opiates, two thousand nanograms per milliliter of	640
urine;	641

(v) For phencyclidine, twenty-five nanograms per milliliter	642
of urine.	643

(c) The employee, through a qualifying chemical test	644
administered within thirty-two hours of an injury, is determined	645
to have one of the following controlled substances not prescribed	646
by the employee's physician in the employee's system that tests	647
above the following levels by a gas chromatography mass	648
spectrometry test:	649

(i) For amphetamines, five hundred nanograms per milliliter	650
of urine;	651

(ii) For cannabinoids, fifteen nanograms per milliliter of	652
urine;	653

(iii) For cocaine, including crack cocaine, one hundred fifty	654
nanograms per milliliter of urine;	655

(iv) For opiates, two thousand nanograms per milliliter of	656
urine;	657

(v) For phencyclidine, twenty-five nanograms per milliliter	658
of urine.	659

(d) The employee, through a qualifying chemical test	660
administered within thirty-two hours of an injury, is determined	661
to have barbiturates, benzodiazepines, methadone, or propoxyphene	662
in the employee's system that tests above levels established by	663
laboratories certified by the United States department of health	664
and human services.	665

(2) When the employee refuses to submit to a requested	666
chemical test, on the condition that that employee is or was given	667
notice that the refusal to submit to any chemical test described	668
in division (B)(1) of this section may affect the employee's	669
eligibility for compensation and benefits under this chapter and	670
Chapter 4121. of the Revised Code.	671

(C)(1) For purposes of division (B) of this section, a	672
chemical test is a qualifying chemical test if it is administered	673
to an employee after an injury under at least one of the following	674
conditions:	675

(a) When the employee's employer had reasonable cause to	676
suspect that the employee may be intoxicated or under the	677
influence of a controlled substance not prescribed by the	678
employee's physician;	679

(b) At the request of a police officer pursuant to section	680
4511.191 of the Revised Code, and not at the request of the	681
employee's employer;	682

(c) At the request of a licensed physician who is not	683
employed by the employee's employer, and not at the request of the	684
employee's employer.	685

(2) As used in division (C)(1)(a) of this section,	686
"reasonable cause" means, but is not limited to, evidence that an	687
employee is or was using alcohol or a controlled substance drawn	688
from specific, objective facts and reasonable inferences drawn	689
from these facts in light of experience and training. These facts	690
and inferences may be based on, but are not limited to, any of the	691
following:	692

(a) Observable phenomena, such as direct observation of use,	693
possession, or distribution of alcohol or a controlled substance,	694
or of the physical symptoms of being under the influence of	695
alcohol or a controlled substance, such as but not limited to	696
slurred speech, dilated pupils, odor of alcohol or a controlled	697
substance, changes in affect, or dynamic mood swings;	698

(b) A pattern of abnormal conduct, erratic or aberrant	699
behavior, or deteriorating work performance such as frequent	700
absenteeism, excessive tardiness, or recurrent accidents, that	701
appears to be related to the use of alcohol or a controlled	702
substance, and does not appear to be attributable to other	703
factors;	704

(c) The identification of an employee as the focus of a	705
criminal investigation into unauthorized possession, use, or	706
trafficking of a controlled substance;	707

(d) A report of use of alcohol or a controlled substance	708
provided by a reliable and credible source;	709

(e) Repeated or flagrant violations of the safety or work	710
rules of the employee's employer, that are determined by the	711
employee's supervisor to pose a substantial risk of physical	712
injury or property damage and that appear to be related to the use	713
of alcohol or a controlled substance and that do not appear	714
attributable to other factors.	715

(D) Nothing in this section shall be construed to affect the	716
rights of an employer to test employees for alcohol or controlled	717
substance abuse.	718

(E) For the purpose of this section, laboratories certified	719
by the United States department of health and human services or	720
laboratories that meet or exceed the standards of that department	721
for laboratory certification shall be used for processing the test	722
results of a qualifying chemical test.	723

(F) The written notice required by division (B) of this	724
section shall be the same size or larger then the certificate of	725
premium payment notice furnished by the bureau of workers'	726
compensation and shall be posted by the employer in the same	727
location as the certificate of premium payment notice or the	728
certificate of self-insurance.	729

(G) If a condition that pre-existed an injury is	730
substantially aggravated by the injury, and that substantial	731
aggravation is documented by objective diagnostic findings,	732
objective clinical findings, or objective test results, no	733
compensation or benefits are payable because of the pre-existing	734
condition once that condition has returned to a level that would	735
have existed without the injury.	736

(H)(1) Whenever, with respect to an employee of an employer	737
who is subject to and has complied with this chapter, there is	738
possibility of conflict with respect to the application of	739
workers' compensation laws because the contract of employment is	740
entered into and all or some portion of the work is or is to be	741
performed in a state or states other than Ohio, the employer and	742
the employee may agree to be bound by the laws of this state or by	743
the laws of some other state in which all or some portion of the	744
work of the employee is to be performed. The agreement shall be in	745
writing and shall be filed with the bureau of workers'	746
compensation within ten days after it is executed and shall remain	747
in force until terminated or modified by agreement of the parties	748
similarly filed. If the agreement is to be bound by the laws of	749
this state and the employer has complied with this chapter, then	750
the employee is entitled to compensation and benefits regardless	751
of where the injury occurs or the disease is contracted and the	752
rights of the employee and the employee's dependents under the	753
laws of this state are the exclusive remedy against the employer	754
on account of injury, disease, or death in the course of and	755
arising out of the employee's employment. If the agreement is to	756
be bound by the laws of another state and the employer has	757
complied with the laws of that state, the rights of the employee	758
and the employee's dependents under the laws of that state are the	759
exclusive remedy against the employer on account of injury,	760
disease, or death in the course of and arising out of the	761
employee's employment without regard to the place where the injury	762
was sustained or the disease contracted. If an employer and an	763
employee enter into an agreement under this division, the fact	764
that the employer and the employee entered into that agreement	765
shall not be construed to change the status of an employee whose	766
continued employment is subject to the will of the employer or the	767
employee, unless the agreement contains a provision that expressly	768
changes that status.	769

(2) If any employee or the employee's dependents are awarded	770
workers' compensation benefits or recover damages from the	771
employer under the laws of another state, the amount awarded or	772
recovered, whether paid or to be paid in future installments,	773
shall be credited on the amount of anyand the employee or the	774
employee's dependents also receive an award of compensation or	775
benefits made to the employee or the employee's dependents by the	776
bureauunder this chapter or Chapter 4121., 4127., or 4131. of the	777
Revised Code, the administrator or a self-insuring employer, by	778
any lawful means, may collect the amount of compensation or	779
benefits paid to or on behalf of the employee or the employee's	780
dependents by the administrator or self-insuring employer pursuant	781
to this chapter or Chapter 4121., 4127., or 4131. of the Revised	782
Code for that award. The administrator or self-insuring employer	783
also may collect from the employee or the employee's dependents	784
any costs and attorney's fees the administrator or the	785
self-insuring employer incurs in collecting that payment and any	786
attorney's fees and costs incurred by an employer in contesting or	787
responding to the claim filed under this chapter or Chapter 4121.,	788
4127., or 4131. of the Revised Code by that employee or the	789
employee's dependents. If the employee's employer pays premiums	790
into the state insurance fund, the administrator shall not	791
charge the amount of compensation or benefits the administrator	792
collects pursuant to this division to the employer's experience.	793
If the administrator collects any costs or attorney's fees	794
incurred by a state fund employer, the administrator shall forward	795
the amount of such costs and fees the administrator collects to	796
that employer. If the employee's employer is a self-insuring	797
employer, the self-insuring employer shall deduct the amount of	798
compensation or benefits the self-insuring employer collects	799
pursuant to this division from the paid compensation the	800
self-insuring employer reports to the administrator under	801
division (L) of section 4123.35 of the Revised Code.	802

If(3) Except as otherwise stipulated in division (H)(4) of	803
this section, if an employee is a resident of a state other than	804
this state and is insured under the workers' compensation law or	805
similar laws of a state other than this state, the employee and	806
the employee's dependents are not entitled to receive compensation	807
or benefits under this chapter, on account of injury, disease, or	808
death arising out of or in the course of employment while	809
temporarily within this state, and the rights of the employee and	810
the employee's dependents under the laws of the other state are	811
the exclusive remedy against the employer on account of the	812
injury, disease, or death.	813

(4) Division (H)(3) of this section does not apply to an	814
employee described in that division, or the employee's dependents,	815
unless both of the following apply:	816

(a) The laws of the other state limit the ability of an	817
employee who is a resident of this state and is covered by this	818
chapter and Chapter 4123. of the Revised Code, or the employee's	819
dependents, to receive compensation or benefits under the other	820
state's workers' compensation law on account of injury, disease,	821
or death incurred by the employee that arises out of or in the	822
course of the employee's employment while temporarily within that	823
state in the same manner as specified in division (H)(3) of this	824
section for an employee who is a resident of a state other than	825
this state, or the employee's dependents;	826

(b) The laws of the other state limit the liability of the	827
employer of the employee who is a resident of this state and who	828
is described in division (H)(4)(a) of this section for that	829
injury, disease, or death, in the same manner specified in	830
division (H)(3) of this section for the employer of an employee	831
who is a resident of the other state.	832

(I) Compensation or benefits are not payable to a claimant	833
during the period of confinement of the claimant in any state or	834
federal correctional institution, or in any county jail in lieu of	835
incarceration in a state or federal correctional institution,	836
whether in this or any other state for conviction of violation of	837
any state or federal criminal law.	838

Sec. 4123.542. Notwithstanding any provision of Chapter	839
4121., 4123., 4127., or 4131. of the Revised Code to the contrary,	840
if an employee or the dependents of an employee are eligible to	841
assert or file a claim for compensation or benefits under the	842
workers' compensation laws of any state other than this state, and	843
the employee or the employee's dependents assert or file such a	844
claim in another state or states and receive a decision on the	845
merits of that claim for compensation or benefits, the employee or	846
the employee's dependents shall not receive compensation or	847
benefits under this chapter or Chapter 4121., 4127., or 4131. of	848
the Revised Code for the same injury, occupational disease, or	849
death for which the employee or the employee's dependents	850
received a decision on the merits of a claim for compensation or	851
benefits asserted or filed in the other state or states,	852
regardless of whether the employee or the employee's dependents	853
are awarded compensation or benefits pursuant to that state's or	854
those states' laws.	855

Sec. 4123.82.  (A) All contracts and agreements are void	856
which undertake to indemnify or insure an employer against loss or	857
liability for the payment of compensation to workers or their	858
dependents for death, injury, or occupational disease occasioned	859
in the course of the workers' employment, or which provide that	860
the insurer shall pay the compensation, or which indemnify the	861
employer against damages when the injury, disease, or death arises	862
from the failure to comply with any lawful requirement for the	863
protection of the lives, health, and safety of employees, or when	864
the same is occasioned by the willful act of the employer or any	865
of the employer's officers or agents, or by which it is agreed	866
that the insurer shall pay any such damages. No license or	867
authority to enter into any such agreements or issue any such	868
policies of insurance shall be granted or issued by any public	869
authority in this state. Any corporation organized or admitted	870
under the laws of this state to transact liability insurance as	871
defined in section 3929.01 of the Revised Code may by amendment of	872
its articles of incorporation or by original articles of	873
incorporation, provide therein for the authority and purpose to	874
make insurance in states, territories, districts, and counties,	875
other than the state of Ohio, and in the state of Ohio in respect	876
of contracts permitted by division (B) of this section,	877
indemnifying employers against loss or liability for payment of	878
compensation to workers and employees and their dependents for	879
death, injury, or occupational disease occasioned in the course of	880
the employment and to insure and indemnify employers against loss,	881
expense, and liability by risk of bodily injury or death by	882
accident, disability, sickness, or disease suffered by workers and	883
employees for which the employer may be liable or has assumed	884
liability.	885

(B) Notwithstanding division (A) of this section:

886

(1) No contract because of that division is void which	887
undertakes to indemnify a self-insuring employer against all or	888
part of such employer's loss in excess of at least fifty thousand	889
dollars from any one disaster or event arising out of the	890
employer's liability under this chapter, but no insurance	891
corporation shall, directly or indirectly, represent an employer	892
in the settlement, adjudication, determination, allowance, or	893
payment of claims. The superintendent of insurance shall enforce	894
this prohibition by such disciplinary orders directed against the	895
offending insurance corporation as the superintendent of insurance	896
deems appropriate in the circumstances and the administrator of	897
workers' compensation shall enforce this prohibition by such	898
disciplinary orders directed against the offending employer as the	899
administrator deems appropriate in the circumstances, which orders	900
may include revocation of the insurance corporation's right to	901
enter into indemnity contracts and revocation of the employer's	902
status as a self-insuring employer.	903

(2) The administrator may enter into a contract of indemnity	904
with any such employer upon such terms, payment of such premium,	905
and for such amount and form of indemnity as the administrator	906
determines and the bureau of workers' compensation board of	907
directors may procure reinsurance of the liability of the public	908
and private funds under this chapter, or any part of the liability	909
in respect of either or both of the funds, upon such terms and	910
premiums or other payments from the fund or funds as the	911
administrator deems prudent in the maintenance of a solvent fund	912
or funds from year to year. When making the finding of fact which	913
the administrator is required by section 4123.35 of the Revised	914
Code to make with respect to the financial ability of an employer,	915
no contract of indemnity, or the ability of the employer to	916
procure such a contract, shall be considered as increasing the	917
financial ability of the employer.	918

(C) Nothing in this section shall be construed to prohibit	919
the administrator, in accordance with section 4123.292 of the	920
Revised Code, or an extraterritorial insurer from providing to	921
employers in this state extraterritorial coverage.	922

Section 2. That existing sections 4123.01, 4123.26, 4123.29,	923
4123.54, and 4123.82 of the Revised Code are hereby repealed.	924

Section 3. This act applies to all claims pursuant to	925
Chapters 4121., 4123., 4127., and 4131. of the Revised Code	926
arising on and after the effective date of this act.	927

Section 4. In the case of any institution of higher education	928
that has sustained claims arising from deaths and injuries of a	929
catastrophic nature arising from a motor vehicle accident	930
occurring outside of this state, the Administrator of Workers'	931
Compensation shall suspend the imposition of any premium increase	932
or any change in the experience of such an institution of higher	933
education until after the conclusion of any subrogation claims	934
that are brought by the Administrator in relation to those deaths	935
and injuries.	936